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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 May 7, 2012 06:26 PM
Posted to Ind. App.Ct. Decisions