Monday, December 10, 2012
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of (12/10/12):
Thursday, December 13th
- 9:00 AM - State of Indiana v. John Doe (49S00-1201-CT-14) - After a jury awarded the plaintiff in a personal injury action $150,000 in punitive damages, the Marion Superior Court declared that the limitations on punitive damage awards set out in IC 34-51-3-4 and 5 violate Article 3, Section 1 and Article 1, Section 20 of the Indiana Constitution. The State of Indiana intervened and initiated this direct civil appeal.
- 9:45 AM - Michael D. Perkinson, Jr. v. Kay Char Perkinson (36S05-1206-DR-371) - A Father who signed an agreement giving up his parenting time rights when child was an infant filed a petition for parenting time. The Jackson Superior Court denied Father's petition. The Court of Appeals reversed and remanded in an unpublished memorandum decision, concluding that there was insufficient evidence for a total denial of parenting time. Perkinson v. Perkinson, No. 36A05-1106-DR-322, slip op. (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 NFP 1/25/12 COA opinion, where the COA reversed the trial court: "While Father’s prior actions do not put his parenting skills and decision making in the best light, we cannot conclude that there was sufficient evidence that his conduct was so egregious as to warrant total elimination of his parenting time under section 31-17-4-2, particularly where Father’s most worrying conduct occurred more than five years prior to the trial court’s decision in this case."
- 10:30 AM - Sharon Wright and Leslie Wright v. Anthony E. Miller, D.P.M., and Achilles Podiatry Group (54S01-1207-CT-430) - The defendants moved to strike the plaintiff’s expert witness and dismiss her medical malpractice complaint due to the plaintiff’s failure to comply with discovery deadlines, and the Montgomery Superior Court granted the defendants’ motions. The Court of Appeals reversed, holding that the trial court abused its discretion by striking the plaintiff’s expert witness and dismissing her complaint. Wright v. Miller, 965 N.E.2d 135 (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 an April 5, 2012 COA opinion holding: "We therefore hold that the trial court abused its discretion in striking Wright’s expert witness under Trial Rule 37(B)."
Thursday, December 20th
- 9:00 AM - Juan M. Garrett v. State of Indiana (49S04-1207-PC-431) - Garrett was charged with two counts of rape and other offenses. A jury found him not guilty on Count 1, but it could not reach a verdict on Count 2. Count 2 was retried to the bench, and the trial court found him guilty. The convictions were affirmed on direct appeal in Garrett v. State, No. 49A02-0807-CR-609, slip op. (Ind. Ct. App. Feb. 25, 2009), trans. denied. In post-conviction proceedings, Garrett contended trial and appellate counsel had been ineffective in not arguing that the retrial on the second rape charge violated his federal and state constitutional protections against double jeopardy. The Marion Superior Court denied relief and the Court of Appeals affirmed in Garrett v. State, 965 N.E.2d 115 (Ind. Ct. App. March 28, 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
- 9:45 AM - Jason Michael Palilonis v. State of Indiana (42A05-1104-CR-197) - Following a jury trial in the Knox Superior Court, Palilonis was convicted of rape. The Court of Appeals affirmed in Palilonis v. State, 970 N.E.2d 713 (Ind. Ct. App. Jun 20, 2012), trans. pending. Palilonis has petitioned the Supreme Court to accept jurisdiction over the appeal, raising issues relating to extraneous jury communications, informing the jury the victim was dead, and the admission of certain statements of the victim.
ILB: See this June 20, 2012 ILB summary of the 37-page COA opinion; the case has not yet been granted transfer.
- 10:30 AM - Felix C. Sickels v. State of Indiana (20S03-1206-CR-308) - Sickels was convicted of nonsupport of his children. The trial court ordered him to pay the arrearage to the mother as restitution. The Court of Appeals reversed on grounds the mother was not “the victim.” Sickels v. State, 960 N.E.2d 205 (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 was a 30-page Jan. 6th COA opinion which included on p. 28:
Sickels next argues that the trial court improperly ordered him to pay restitution. At the sentencing hearing, the trial court stated that “restitution” in the amount of “$86,420” is to be made to “Ms. Sickels, the victim in the case.” Transcript at 87. But in its written sentencing order, the court states: “Arrearage in the amount of $84,420.00 as of 2/8/11 reduced to judgment in favor of Kathy L. Sickles [sic], civil cause number 20D03-9107-DR205.” Appellant’s App. at 118 (emphasis original). These two statements are unclear in three respects and require a remand for clarification.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 12/10/12):
Monday, December 10th
- 1:30 PM - Duke Energy v. Indiana Utility Regulation Commission (93A02-1111-EX-1042) - On October 5, 2010, Governor Mitch Daniels fired Indiana Utility Regulatory Commission (IURC) Chairman David Lott Hardy. Hardy was aware that one of his administrative law judges, Scott R. Storms, had been communicating with Duke Energy Indiana regarding a position with the company while Storms was presiding over administrative proceedings involving Duke, yet Hardy did not remove Storms from matters involving Duke. This was one such case; Storms was the ALJ, the Indiana Office of Utility Consumer Counselor (OUCC) recommended denying Duke relief, but the IURC found in favor of Duke. The IURC conducted an audit and eventually found that Storms did not exert any undue influence in his decision. Nevertheless, the IURC reopened this case for further review and consideration of the evidence presented. After another evidentiary hearing before a new ALJ and the full Commission, the IURC found against Duke. Duke now appeals, mainly arguing that the IURC did not have the authority to reverse its original decision. The IURC and the OUCC ask us to affirm. The Indiana Energy Association appears as amicus curiae. The Scheduled Panel Members are: Judges Vaidik, Mathias and Barnes. [Where: Indiana Supreme Court Courtroom (WEBCAST)]
- 10:30 AM - Nathan Carl Gilbert v. State of Indiana (10A05-1204-CR-220) - Nathan Carl Gilbert appeals his convictions of and sentence for four (4) counts of Class B felony burglary, arguing the trial court’s entry of his convictions violated the Interstate Agreement on Detainers and the manner in which the trial court conducted his sentencing hearing violated both his right to due process under the Fourteenth Amendment and his right to counsel under the Sixth Amendment. The Scheduled Panel Members are: Judges Baker, Najam and May. [Where: Ivy Tech Community College, 3204 Highway 311, Sellersburg, Indiana ]
Monday, December 17th
- 1:30 PM - State of Indiana v. Gregory Lagrone (49A05-1203-CR-135) Indianapolis Metropolitan Police Officers received an open parcel containing marijuana from a private parcel delivery company. The officers repackaged the marijuana with a GPS tracking device and parcel wire, affixed the original label addressed to “Michael Davis,” and then conducted a controlled delivery to the address on the shipping label, a hotel. Gregory Lagrone retrieved the parcel from the hotel, and surveillance officers followed him by car to his home. A short time later, the parcel wire activated a monitor with surveillance officers, indicating that the parcel had been opened. The officers then knocked and announced themselves. When no one answered, they entered the home without a warrant due to the risk of destruction of the marijuana. In the subsequent prosecution of Lagrone, the trial court granted his motion to suppress evidence obtained from the warrantless entry of the home. The State appeals. We ordered oral argument to ask the parties to address, in part, the relevance to this case of United States v. Jones, 132 S. Ct. 945 (2012), regarding the constitutionality of attaching a warrantless GPS tracking device to a person’s effects. The Scheduled Panel Members are: Judges Judges Najam, Kirsch and May. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
Tuesday, December 18th
- 11:00 AM - Seth Anderson vs. Huntington County Board of Commissioners (35A04-1207-MI-357) Appellant-plaintiff Seth Anderson filed for access to public records from appellee-defendant Huntington County Board of Commissioners. His request was denied for “lack of particularity.” Anderson requested and obtained an advisory opinion by the Indiana Public Access Counselor, which affirmed the Board of Commissioners position for denial. This appeal followed
On appeal, Anderson argues that, as an issue of first impression, an email communication is a “public record” within the definition of Indiana Code section 5-14-3-2(n). Moreover, Anderson maintains that his requests were offered with “reasonable particularity” as required by Indiana Code section 5-14-3-9(f).
The Scheduled Panel Members are: Judges Baker, Riley and Barnes. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
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 December 10, 2012 08:21 AM
Posted to Upcoming Oral Arguments