Monday, June 18, 2012
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 6/18/12):
Tuesday, June 19th
- 9:00 AM - Daniel Ray Wilkes v. State of Indiana (10S00-1004-PD-185) - Wilkes was previously convicted of three murders that he committed in Vanderburgh County. The Clark County jury did not reach a unanimous decision on the sentence; the trial court sentenced Wilkes to death. The convictions and sentence were affirmed on direct appeal in Wilkes v. State, 917 N.E.2d 675 (Ind. 2009). In post-conviction proceedings, the trial court vacated the death sentence and imposed three sentences of life without parole, but denied the remainder of Wilkes’s post-conviction claims. In this appeal from the post-conviction judgment, Wilkes argues he was deprived of the effective assistance of counsel and of an impartial jury.
- 9:45 AM - John Haegert v. University of Evansville (82S01-1204-PL-235) - After the University of Evansville terminated Haegert’s employment for violation of the University’s sexual harassment policy, Haegert sued the University alleging breach of his tenure contract. The trial court awarded summary judgment to the University. The Court of Appeals reversed and remanded, a majority holding that Haegert’s conduct did not constitute sexual harassment. Haegert v. University of Evansville, 955 N.E.2d 753 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This Sept. 19, 2011 opinion relates to harassment and intentional infliction of emotional district claims at a university.
- 10:30 AM - Elmer Bailey v. State of Indiana (82S01-1204-PL-235) - Bailey poked his wife in the forehead with his index finger and shoved her as he entered their residence. Following a bench trial in the Marion Superior Court, he was convicted of domestic battery as a class D felony, Indiana Code section 35-42-2-1.3. The Court of Appeals concluded there was insufficient evidence of “bodily injury” as defined in Indiana Code section 35-41-1-4. The class D felony conviction was reversed, and the case remanded with instructions for the trial court to enter a conviction for class B misdemeanor battery, Indiana Code section 35-42-2-1. Bailey v. State, 49A02-1106-CR-487, slip op. (Ind. Ct. App. Feb. 3, 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This Feb. 3., 20012 opinion reversed Bailey’s conviction for class D felony domestic battery because the spouse "did not suffer bodily injury as that term is defined by statute.
- ILB Note: As also noted last week, the Court calendar lists the same Supreme Court Cause # for both the Haegert and Bailey cases.
Next week's oral arguments before the Supreme Court (week of 6/25/12):
Thursday, June 28th
- 9:00 AM - Elvis Holtsclaw v. State of Indiana (49S02-1205-CR-264) - The Marion Superior Court granted a motion to suppress evidence on May 23, 2011, and denied the State’s motion to correct error on July 25, 2011. The State filed a notice of appeal on August 18, 2011. A divided panel of the Court of Appeals dismissed the appeal on grounds the State cannot appeal from the denial of a motion to correct error pursuant to Indiana Code section 35-38-4-2 and the notice of appeal was not filed within thirty days of the trial court’s suppression order. State v. Holtzclaw, 961 N.E.2d 1026 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is a 2-1, Feb. 2, 2012 COA opinion dismissing the State's appeal as untimely. From the opinion:
The trial court granted Holtsclaw’s motion to suppress on May 23, 2011. The State filed its notice of appeal of this order on August 18, 2011, well after the thirty day deadline. The State’s appeal is therefore untimely and must be dismissed. See Ind. App. R. 9(A)(5) (“Unless the Notice of Appeal is timely filed, the right to appeal shall be forfeited”). Dismissed.
[From the dissent] I respectfully dissent, and part ways with the majority’s decision to dismiss this appeal. More specifically, I cannot agree that Indiana Code section 35-38-4-2 precludes the State from appealing the trial court’s denial of its motion to correct error in this instance.
- 9:45 AM - Roger L. Bushhorn v. State of Indiana (40S01-1206-CR-309) - Bushhorn was convicted of kidnapping and several other offenses during an attempt to escape from the Jennings County jail. The Jennings Circuit Court sentenced him to an aggregate sentence of 47 years, with three years suspended. Citing Appellate Rule 7(B), the Court of Appeals revised the sentence to 35 years in a not-for-publication memorandum decision, Roger L. Bushhorn v. State, No. 40A01-11-7-CR-315, slip op. (Ind. Ct. App. Feb. 16, 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a Feb. 16th NFP COA opinion where the panel ruled at p. 10:
After due consideration and under the circumstances, we conclude that Bushhorn has met his burden of establishing that his forty-seven year sentence is inappropriate in light of the nature of the offense and his character. Pursuant to Appellate Rule 7(B), we exercise our authority to revise Bushhorn’s sentence for his conviction under Count II to thirty-five years executed in the Department of Correction, to run concurrently with the six-year sentences imposed by the trial court under Counts IV, VI, and VII, for an aggregate sentence of thirty-five years, and we remand with instructions to resentence Bushhorn accordingly.
- 10:30 AM - Andre Gonzalez v. State of Indiana (45S03-1206-CR-307) - The Lake Superior Court denied a petition to remove the appellant’s lifetime sex offender designation. The Court of Appeals reversed, concluding that Indiana Code section 11-8-8-19(c) was an unconstitutional ex post facto law as applied to Gonzalez. Gonzalez v. State, No. 45A03-1108-CR-369, slip op. (Ind. Ct. App. March 16, 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: From the March 16th COA NFP opinion:
Andre Gonzalez appeals the denial of his petition to remove his sex offender designation pursuant to Ind. Code § 11-8-8-22. We reverse and remand. * * * [T]he seventh factor of the intent-effects test indicates Ind. Code § 11-8-8-19(c) is an unconstitutional ex post facto law as applied to Gonzalez because the imposition of the requirement without recourse tips the test toward the change in law being punitive.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 6/18/12):
Tuesday, June 19th
- 11:00 AM - The City of Indianapolis v. National Trust Insurance Company, et al (49A04-1108-PL-412) - In January 2010, a fire started in a Texas Roadhouse restaurant in Indianapolis. When firefighters arrived, they found that the hydrants near the restaurant were frozen. Due to the delay caused by the frozen hydrants, the restaurant was a total loss. The restaurant’s insurers sued the City of Indianapolis, the City’s Department of Waterworks, and Veolia Water Indianapolis LLC. The insurers alleged that the hydrants froze because the defendants sell water from the hydrants to private companies, which sometimes fail to properly close the hydrants. The City and the Department of Waterworks filed a motion to dismiss, and Veolia filed a motion for judgment on the pleadings. Both motions claimed that the defendants had immunity. The trial court denied the motions in part, and the defendants now appeal.
The Scheduled Panel Members are: Judges Vaidik, Crone and Bradford.
[Where: Court of Appeals Courtroom (WEBCAST)]
- 1:15 PM - Andre Graham v. State of Indiana (10A01-1108-CR-440) - Andre Graham appeals his convictions for Class A felony dealing in cocaine, Class A felony possession of cocaine, Class B felony dealing in a Schedule III substance, and Class D felony possession of a controlled substance. Graham argues the trial court abused its discretion when it admitted into evidence hydrocodone and cocaine seized from Graham during a traffic stop because the length of Graham’s detention during the traffic stop was unreasonable and violated the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution. Graham also argues the State did present sufficient evidence to prove he intended to deal cocaine or hydrocodone. The Scheduled Panel Members are: Judges Baker, Bailey and May. [Where: Clark Circuit Court, Jeffersonville, Indiana ]
Thursday, June 21st
- 2:30 PM - Donald G. Huls v. State of Indiana (64A04-1110-CR-552) - Donald G. Huls appeals his convictions for Class C felony criminal recklessness and Class D felony criminal recklessness. He argues the prosecutor committed misconduct when, during trial, the prosecutor allegedly commented on Huls’ failure to testify. Huls also argues that the trial court erroneously rejected several of his proposed jury instructions. Finally, Huls contends that the State did not present sufficient evidence to disprove his claim of self-defense. The Scheduled Panel Members are: Judges Riley, May and Sr. Judge Barteau. [Where: Tirey Hall, Indiana State University, Terre Haute, Indiana ]
- No arguments currently scheduled.
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 June 18, 2012 06:58 AM
Posted to Upcoming Oral Arguments