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Monday, May 07, 2012

Ind. Decisions - "While ordinarily Rule 65(E) would require certification of the opinion prior to action by the trial court ..., courts have inherent authority to require immediate compliance with their orders and decrees to give effective relief."

Last Friday, May 4th, a panel of the Court of Appeals heard this case:

10:30 AM - James Ripps vs. State of Indiana (15A01-1109-CR-436) - James Ripps was convicted of child molesting and sentenced to eight years with six years and 300 days of his sentence suspended to probation. Among the conditions of his probation were that he not reside within one thousand feet of a school property and that he inform all persons living at his place of residence of his conviction. On May 27, 2011, the State filed a notice of probation violation alleging that Ripps had violated both of these conditions of his probation. Following a hearing, the trial court revoked Ripps’s probation and ordered that he serve the remainder of his suspended sentence. Ripps appeals the sentence, arguing that revoking his entire sentence was an abuse of discretion. The Scheduled Panel Members are: Chief Judge Robb, Judge Baker and Senior Judge Shepard. [Where: Franklin Community High School, Performing Arts Center, 2600 Cumberland Drive, Franklin, Indiana]
Two things to note right off. The oral argument was held in Franklin, so there is no videocast. And the panel is made up of the Chief Judge of the COA, the former Chief Judge, and the man who was until a few weeks ago the Chief Justice of the State of Indiana.

And one more remarkable thing. Last Friday afternoon the panel issued a 2-page Order that concludes:

Having reviewed the matter, the Court FINDS AND ORDERS AS FOLLOWS:

1. This Court held oral argument this morning and having read all the briefs and deliberated on the issues, we conclude that Ripps has adequately demonstrated that revoking his probation on the present basis was an abuse of discretion.

2. While ordinarily Indiana Appellate Rule 65(E) would require certification of the opinion prior to action by the trial court, in equity and law, courts have inherent authority to require immediate compliance with their orders and decrees in order to give effective relief. Noble County v. Rogers, 745 N.E.2d 194, 198 (Ind. 2001); State ex rel. Brubalcer v. Pritchard, 236 Ind. 222, 226-27, 138 N.E.2d 233, 235 (1956). A formal opinion will follow in due course. Accordingly, we direct the trial court to order Rípps’ release forthwith.

The facts of the Ripp case, as set out in the Order, are worth reading, particularly in light of the recent press focus on sex offender registries:

Appellant James Ripps is a 69-year-old man with terminal prostate cancer, congestive heart failure and obstructive pulmonary disease among other maladies.

He has been serving probation from 2006 child molesting charges that were based on events in 1997 or 1998. The trial court at one point revoked Ripps' probation on grounds that he lived too close to a public park, and Ripps served more than a year as executed time before it became apparent that under Pollard v. State, 908 N.E.2d 1145 (Ind. 2009), applying the 2006 statutes on registration and residency violated the Ex Post Facto Clause. Ripps was ordered released.

When Ripps returned from prison after this ruling, he moved into an assisted living facility in Milan, Indiana, where his medical conditions could be managed. Unsure whether he needed to register, he reported his new whereabouts to the Ripley County Sheriff. The Sheriff determined that the nursing home was 980 feet from the local library and told Ripps he needed to move.

As Ripps was preparing to move somewhere new in order to stay in compliance, the Prosecutor filed for revocation again, contending that the library was a "youth center" and that living in the nursing home violated the terms of Ripps' probation conditions, even though the condition in question could not be charged as a crime under Pollard. The trial court agreed and revoked the entire remainder of Ripps' original eight-year sentence (namely, the better part of three years).

Ripps' contention on appeal is that ordering him to serve all the back-up time was an abuse of discretion, in light of his terminal health condition, his having wrongly served prison time, the very technical nature of the violation (980 feet), the fact that the authorities only having learned of Ripps' living arrangements because he went to the Sheriff to report his location, and his having been about to move when he was charged anew.

[Many of you will recall that Bei Bei Shuai was not so fortunate. See this post from Feb. 14, 2012. The trial court refused a bond hearing on the basis that Ind. R. App. P. 65(E) forbids reliance on a COA opinion prior to certification, even though the COA on Feb. 8, 2012 had reversed the denial of her motion for bail and remanded for determination of the amount of bail. Ms. Shuai remains in jail.]

Posted by Marcia Oddi on Monday, May 07, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 4, 2012

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the Feb. 24, 2012 list.]

Here is the Clerk's transfer list for the week ending Friday, May 4, 2012. It is two pages (and 20 cases) long.

Two transfers were granted last week:

Posted by Marcia Oddi on Monday, May 07, 2012
Posted to Indiana Transfer Lists

Ind. Courts - "Disbarred lawyer charged with forgery"

The ILB has a number of entries relating to disbarred attorney Rodney P. Sniadecki. In a story today in the South Bend Tribune, Jeff Harrell reports in a story that begins:

SOUTH BEND -- A disbarred attorney faces criminal charges for forging names on legal documents and filing fraudulent tax returns while he was under suspension.

Rodney P. Sniadecki was indicted by a grand jury Friday on three counts of forgery stemming from the filing of court documents for clients signed under the names of other attorneys and filing fraudulent tax returns while operating a mortgage brokerage in the same building as his law office -- all while he was suspended.

Sniadecki, who practiced law as a sole practitioner in Mishawaka and South Bend, was suspended in November 2007 from practicing law for six months.

Here is the disbarrment order from April 1, 2010.

Posted by Marcia Oddi on Monday, May 07, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

In Re the Marriage of : Tasha Rose v. Melvin Rose (NFP)

NFP criminal opinions today (4):

Luis Ramos v. State of Indiana (NFP)

Raymond S. Schmitt v. State of Indiana (NFP)

Richard Williams v. State of Indiana (NFP)

Juan De Dios Orozco-Mitchel v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, May 07, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - Ceremonial Swearing-In Ceremony for new Justice Mark S. Massa today

From the news release:

Mark Massa will be sworn-in as Indiana’s 107th Justice at 2 PM on Monday, May 7th in Indianapolis.

The one-hour ceremony will include remarks from Governor Mitch Daniels, former gubernatorial advisor Mark Lubbers and former Marion County Prosecutor Scott Newman. Governor Daniels named Mr. Massa to succeed Chief Justice Randall T. Shepard, who retired in March.

The ceremony will be videocast. Watch it here at 2 PM.

Posted by Marcia Oddi on Monday, May 07, 2012
Posted to Indiana Courts

Catch-up: What did you miss over the weekend from the ILB?

Below is the answer to "What did you miss over the weekend from the ILB?"

But first, something I totally missed! The ILB's first entry was on March 16, 2003. That means the ILB is now well over 9 years old! (The first year of the ILB, from March 16, 2003 to Jan. 29, 2004, is accessible here.)

So, Happy Belated Birthday, ILB!

If you value the ILB, then please make the move to supporting the ILB, today!

From Sunday, May 6, 2012:

Posted by Marcia Oddi on Monday, May 07, 2012
Posted to About the Indiana Law Blog

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 5/7/12):

Thursday, May 10th

Next week's oral arguments before the Supreme Court (week of 5/14/12):

Monday, May 14th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 5/7/12):

Monday, May 7th

Next week's oral arguments before the Court of Appeals (week of 5/14/12):

Thursday, May 17th

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

The past COA webcasts which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, May 07, 2012
Posted to Upcoming Oral Arguments