Friday, July 27, 2012
Ind. Decisions - Court of Appeals issues 6 today (and 9 NFP)
For publication opinions today (6):
In Ronald Davis v. State of Indiana , a 10-page opinion in which in which Ronald Davis appeals a 245-year prison sentence imposed after his conviction on four counts of felony murder and other charges (the "Hovey Street homicides"), Judge Friedlander concludes:
We agree with the State and the trial court that Davis is a dangerous person from whom society must be protected. In light of Davis’s character and the particularly heinous nature of the crime, we conclude that his 245-year sentence is not inappropriate. Judgment affirmed.In John Cherry v. State of Indiana , a 16-page, 2-1 opinion, Judge Bradford writes:
Appellant-Defendant John Cherry appeals from his convictions of and sentences for Class B felony Aiding, Inducing, or Causing Dealing in Heroin1 and Class D felony Unlawful Possession of a Syringe. As restated, Cherry contends that the trial court abused its discretion in admitting certain evidence, the State failed to produce sufficient evidence to sustain his convictions, the trial court abused its discretion in denying his mistrial motion, and his sentence is inappropriately harsh. We affirm. * * *In Phillip L. White v. State of Indiana , an 8-page opinion, Judge Najam writes:
CRONE, J., concurs.
VAIDIK, J., concurs in part and dissents in part.
I respectfully dissent from the majority’s conclusion that the evidence is sufficient to support Cherry’s conviction for Class B felony aiding, inducing, or causing dealing in heroin. Because I believe that the evidence is insufficient to prove that the substance in the balloons that Quick swallowed was actually heroin, I would reverse Cherry’s conviction.
The identity of a drug is an essential element of a crime that the State must prove beyond a reasonable doubt. * * *
Simply put, there was no testimony in this case of someone sufficiently experienced with the drug indicating that the substance in the balloons was indeed a dangerous drug. ... No police officer identified the substance in the balloons as heroin. And even though Quick and Cherry may have been hard-core heroin junkies, because Quick and Cherry never tested or even saw the substance in the balloons, there was no testimony in this case that the substance in the balloons was actually heroin. I would therefore reverse Cherry’s conviction for Class B felony aiding, inducing, or causing dealing in heroin. I otherwise concur with the majority as to Cherry’s conviction and sentence for Class D felony unlawful possession of a syringe.
Phillip L. White appeals the post-conviction court’s denial of his petition for post-conviction relief. White raises a single issue for our review, namely, whether he received ineffective assistance from his appellate counsel when his appellate counsel did not raise as an issue on direct appeal whether White’s conviction for felony murder was unconstitutional under Article I, Section 16 of the Indiana Constitution (“the Proportionality Clause”). We affirm. * * *In Kathleen K. Peterink v. State of Indiana , an 8-page, 2-1 opinion, Judge Friedlander writes:
In sum, White cannot demonstrate that his appellate counsel’s performance was deficient. Hence, he likewise cannot demonstrate that he received ineffective assistance from his appellate counsel. We affirm the post-conviction court’s judgment denying White’s petition for post-conviction relief.
Peterink challenges the sentence imposed, presenting two issues for our review:In Andre Graham v. State of Indiana , an 11-page opinion, Judge May concludes:
1. Is the sentence imposed contrary to Ind. Code Ann. § 35-50-3-1 (West, Westlaw current through legislation effective May 31, 2012)?
2. Is a defendant serving time on home detention as part of probation entitled to good time credit? * * *
As noted by the Jennings court, we have before held that for purposes of I.C. § 35-50-3-1(b), the “term of imprisonment” includes both the executed and suspended portions of a sentence. Jennings v. State, 956 N.E.2d at 206 (citing Collins v. State, 835 N.E.2d 1010 (Ind. Ct. App. 2005)). Thus, as in Jennings, here, the trial court sentenced Peterink in excess of the statutory maximum (i.e., one year) when it sentenced her to a one-year suspended sentence and one year of probation. While we recognize that there is a split among the judges of this court regarding the interpretation of I.C. § 35-50-3-1, we decline the State’s request to revisit the Jennings decision. We therefore reverse the sentence imposed by the trial court and remand for resentencing. * * *
Here, the State concedes that Peterink is entitled to goodtime credit and we think a fair reading of the statutes taken together leads to that result. The trial court’s order to the contrary is reversed. The trial court is instructed to amend its sentencing order to allow for credit time. Judgment reversed and remanded for resentencing.
MAY, J., concurs.
BARNES, J., concurs in part and dissents in part. [which begins] I concur in part two of the majority opinion but respectfully dissent from part one. I do not agree with the holding in the Jennings case cited by the majority, at least to the extent it holds that for purposes of determining whether a misdemeanor sentence exceeds the one year limitation found in Indiana Code Section 35-50-3-1(b), a sentence such as the one here that orders a term of one year suspended, to be served on probation, is actually the equivalent of a two-year sentence.
Graham’s federal and state constitutional rights were not violated during the traffic stop that resulted in his arrest for possession of and intent to deal hydrocodone and cocaine. As Graham testified he intended to deliver the drugs in his possession, there was sufficient evidence to prove he committed Class A felony dealing in cocaine and Class B felony dealing in a Schedule III substance. Accordingly, we affirm.In Dale Brenon v. The 1st Advantage Corp, d/b/a Omega Insurance Services, an 11-page opinion, Judge Friedlander concludes:
In summary, the Board’s decision dismissing Brenon’s claim for worker’s compensation benefits is not sustainable under the doctrine of collateral estoppel, the laws of the State of Wisconsin, or Supreme Court precedent. Further, the Board’s decision gave no effect to the reservation of rights clauses contained in the settlement agreements. We therefore reverse the Board’s dismissal of Brenon’s claim and remand for further proceedings. Judgment reversed.NFP civil opinions today (3):
NFP criminal opinions today (6):
Posted by Marcia Oddi on July 27, 2012 11:00 AM
Posted to Ind. App.Ct. Decisions