Thursday, January 24, 2013
Ind. Gov't. "Franklin County fights federal gun control measures with 'Second Amendment Preservation Act'"
Renee Jameson has this report, with video, this evening at WRTV6. The story begins:
FRANKLIN COUNTY, Ind. - As the highly charged debate over gun control rages in Washington, an Indiana county is taking a stand against federal gun laws.
Franklin County commissioners recently adopted what they call the Second Amendment Preservation Act, declaring that all federal laws on gun control violate the U.S. Constitution's Second Amendment.
"If you have a license for an assault gun, than yes, you should be able to own one," said Donald Grizzell, one of the county's 24,000 residents.
The act says all federal gun control measures should be considered null and void in Franklin County.
"This is just another piece of the puzzle that we do need to step up and hold our public officials accountable for their oath to the Constitution," said Scott McDonough, a Franklin County commissioner.
Law - More on "NCAA calls misconduct on itself for University of Miami investigation"
Ind. Decisions - Supreme Court files one opinion late this afternoon
In Iltzsch v. State, a 5-page, 4-1 per curiam opinion, the majority writes:
Following a bench trial, Carlin Iltzsch was found guilty of burglary, a class B felony, adjudicated an habitual offender, and sentenced to an executed term of twenty-two years. In addition, the trial court ordered Iltzsch to pay restitution to the victim in the amount of $711.95. At issue in this appeal is the restitution order. * * *
The Court of Appeals unanimously reversed the restitution order on grounds there was insufficient evidence to support the amount of restitution awarded. Iltzsch v. State, 972 N.E.2d 409, 412-14 (Ind. Ct. App. 2012), vacated. Without doubt, the better practice for the State would have been to present more substantial evidence about the nature and extent of the property damage, as outlined by the Court of Appeals. Similarly, the better practice for a defendant would have been to make contemporaneous objections (for example, hearsay and lack of foundation) as appropriate.
We grant transfer, though, to address whether the case can be remanded for a new restitution hearing. This question divided the Court of Appeals panel. * * *
[P]recedent supports remanding for additional evidence when appropriate. That has been the view of this Court and the Court of Appeals. [cites omitted] * * *
Accordingly, transfer of jurisdiction is granted pursuant to Appellate Rule 56(B). This case is remanded to the trial court with instructions to conduct a new restitution hearing at which the State will be permitted to present, and Iltzsch will be allowed to confront, any additional evidence supporting the victim’s property loss. The Court of Appeals opinion is vacated as to the remand; the remaining portions of the opinion are summarily affirmed. See Ind. Appellate Rule 58(A).
Rucker, David, Massa, and Rush, JJ., concur.
Dickson, C.J., dissents: I respectfully dissent, believing that we should not remand. As acknowledged by the per curiam opinion, Indiana statutory law requires that an order of restitution be "based on the actual cost of repair (or replacement if repair is inappropriate)." Ind. Code § 35-50-5-3(a). When on appeal the quantum of evidence presented by the State is found insufficient to satisfy its burden of proof on an issue, permitting the State a second opportunity to overcome its deficiency in proof is inconsistent with principles prohibiting double jeopardy. [cites omitted]
Ind. Law - Still more on "Indiana legislator's bill could upset coal-gas plant plan at Rockport"
A top Indiana lawmaker said the state’s 30-year deal to buy and then resell the proposed Rockport coal-to-gas plant’s product at a fixed rate needs a fresh review – either in the General Assembly or before utility regulators.More from the post:
“Just the fact that the world has changed since this idea came into being requires us to take another look at it and see if it’s viable,” said state Senate President Pro Tem David Long, R-Fort Wayne.
Long said he’d like the Indiana Utility Regulatory Commission to review the contract once again – something Vectren Corp. has sued to force, since the Indiana Court of Appeals ruled last year that the contract needed some tweaks.
He said he is not willing to say “yet” that Indiana should try to kill the deal. But since natural gas prices that were around $13 per million British thermal units when the deal was negotiated have tumbled closer to $3 per unit now as a result of a shale gas boom, he said lawmakers “all have questions about it.”
“Energy prices have dropped substantially, and what looked like it had real potential when the price of gas was so much higher – now you have to bring into question whether it makes sense,” Long said.
“The idea of using coal in a cleaner way is a great idea, but whether or not this project per se is the way we go about it, given the costs associated with it, we have to ask those questions.”
Long’s comments come as the chairmen of the Indiana House and Senate utility committees consider holding a rare joint hearing on two bills that would revamp consumer protection mechanisms included in the contract.
House Speaker Brian Bosma, R-Indianapolis, said he agreed with Long that the deal should be reviewed.
“I would concur that the world has changed since that project first hit the books here in Indiana,” he said. * * *
Bosma said he has “some philosophical concerns” related to the state’s role in advancing the Rockport plant, and that he is not sure lawmakers would have approved the project at all if they knew how it’d turn out.
“There were some revisions to the original program that didn’t receive a lot of attention that collectively, now, when you look back at the program, you wonder if it would have passed that way in the first place,” Bosma said. “I think it is fair to have a fresh look at the program.”
Law - "Penn State Law Dean Flees To China"
A sample from the post by Elie Mystal of Above the Law:
I don’t see what else could have happened. Penn State Law is looking at a 20 percent drop in law school applications, one of the largest in the country. Dean McConnaughay’s major plan to consolidate Penn State’s two campuses was stopped in its tracks by politicians who, frankly, have no idea about the economics of running a law school these days. Then he proposed splitting the two campuses into two different law schools.
Ind. Decisions - Court of Appeals issues 3 today (and 3 NFP)
For publication opinions today (3):
In William Pereira and Joseph McConnell v. Monica Pereira, John LeFebre and Karen LeFebre , a 13-page opinion, Judge Bailey writes:
William Pereira and Joseph McConnell appeal a summary judgment order which denied their complaint to quiet title in real estate acreage bequeathed by Joseph Sleeper (“Sleeper”) and allowed inheritance of a share of the acreage by John LeFebre and Karen LeFebre. We affirm.In Danny Boling v. State of Indiana , a 12-page opinion, Chief Judge Robb concludes:
A single issue is presented for review: whether the trial court erred in granting summary judgment, based upon a construction of Sleeper’s will to conclude that he had not devised a contingent remainder, subject to the condition of outliving a life tenant, but rather had made a gift to a class, which included John and Karen LeFebre’s mother, with a life estate intervening.
The evidence is sufficient to support Boling’s conviction of attempted child molesting as a Class A felony and his forty-five year sentence is not inappropriate. However, the trial court erred in determining him to be a credit restricted felon because IC 35-31.5-2-72 does not include attempted child molesting as an offense for which one can be found a credit restricted felon. The conviction and sentence are affirmed, the credit restricted felon designation is reversed, and the case is remanded to the trial court to amend its records consistent with this opinion.In Diano L. Gordon v. State of Indiana , a 10-page opinion, Judge Mathias concludes:
The admission of Pearce’s show-up and subsequent in-court identifications of Gordon did not amount to fundamental error because the show-up procedure was not unduly suggestive. We also conclude that the rule of lenity does not apply in this case, and therefore, we affirm Gordon’s Class D felony escape conviction.NFP civil opinions today (1):
NFP criminal opinions today (2):
Ind. Decisions - Still more on: 7th Circuit decides one Indiana case today, declaring unconstitutional Ind. law prohibiting registered sex offenders from using social networking websites
The ruling from the 7th U.S. Circuit of Appeals in Chicago overturned a decision by U.S. District Judge Tanya Walton Pratt in Indianapolis. In June, Pratt upheld the law enacted by the legislature in 2008.[More] Sentencing Law Policy Blog had this post yesterday on the 7th Circuit decision.
The American Civil Liberties Union of Indiana filed the class-action suit challenging the law on behalf of sex offenders, including a man identified only as John Doe who served three years for child exploitation. The offenders were all restricted by the ban even though they had served their sentences and were no longer on probation.
“We reverse the district court and hold that the law as drafted is unconstitutional,” judges Joel M. Flaum, John D. Tinder and John J. Tharp Jr. wrote in the ruling. * * *
It was unclear Wednesday how many people may have been charged under the law over the past four years and what their immediate recourse might be.
Larry Landis, executive director of the Indiana Public Defender Council, said one thing is clear: convictions will not automatically be vacated.
“There is no self-correction,” he said, “in our criminal justice system.”
Instead, those charged under the law will have to ask a court to vacate their conviction.
“It takes the person with a wrong conviction to initiate an action,” Landis explained.
Landis said he spoke out against the law when it was being discussed in the legislature “for the obvious reasons that it was overly broad and might interfere with employment opportunities.” But he said it was a hard sell because lawmakers have little sympathy for sex offenders — even when they have paid for their crimes.
“Often, with these kind of bills, your only success in killing them is to convince the committee chairman to not give it a hearing because you know everyone will vote for it when it comes up on the floor,” he said.
Ind. Law - Still more on "Criminal code re-write would restore ‘fairness and proportionality’"
Updating this long ILB entry from Jan. 21st, and this one from Jan. 17th, a lengthy editorial today in the Fort Wayne Journal Gazette takes a close, sometimes critical look at the current versions of the bills to rewrite the criminal code [SB 601, HB 1006]. A few quotes:
Now, two years after the General Assembly shot down a reform package from Gov. Mitch Daniels’ administration, a new proposal cleared a House committee last week. It appears to have a much better chance of success.
Whether it marks significant progress in its current form is a matter of debate. One welcome goal of the 2011 proposal was to put more lower-level criminals in county-based alternative sentencing programs instead of state prison, reducing costs to taxpayers and helping keep criminals from becoming repeat offenders.
But Larry Landis, executive director of the Indiana Public Defender Council, believes that as proposed the bill would have the opposite effect. “We think it will increase sentences across the board,” Landis said, and “undermines the goal” of reducing Indiana’s growing prison population.
Indeed, the bill would keep at least some criminals in prison longer, though many Hoosiers would argue that the bill does so appropriately in some cases. The proposal has a “truth in sentencing” component that would significantly reduce the amount of early-release credit that prisoners can earn by behaving in prison and earning college degrees. Most significantly, many criminals would have to serve at least three-fourths of their sentence, rather than half, before release – which seems appropriate for murder and other violent, high-level felonies but perhaps not for less-serious felonies.
The proposal also rightly increases the penalties for certain sex crimes, particularly those involving child victims.
Ind. Courts - "Chief justice praises change, seeks more"
Here is Niki Kelly's coverage in the Fort Wayne Journal Gazette of Supreme Court Chief Justice Brent Dickson's State of the Judiciary speech yesterday.
You may watch the video or read the transcript here.