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Tuesday, February 05, 2013

Ind. Courts - Supreme Court Vacates Grant of Transfer in NFP Case Argued Last Week

Updating this ILB entry from yesterday, today the Supreme Court issued an order dated February 4th unanimously vacating the grant of transfer in Darrell Lawrence v. State. As discussed in yesterday's post, NFP decisions often have a significant impact on litigants, although they have no precedential value. This case makes clear that not every NFP opinion is a Supreme Court case.

Posted by Marcia Oddi on Tuesday, February 05, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

In Ignacio Perez v. State of Indiana , an 18-page opinion, Judge Baker writes:

In this interlocutory appeal, the appellant-defendant, Ignacio Perez, challenges the trial court’s denial of his motion to suppress evidence that police officers seized from his person and his residence.

Notwithstanding Perez’s arguments, we find that the detention, arrest, and search incident to that arrest were reasonable and did not violate Perez’s right to be free from unreasonable search and seizure under the Fourth Amendment to the United States Constitution. Moreover, we conclude that a “dog sniff” outside Perez’s residence was reasonable, and that there was probable cause for the issuance of a search warrant. Thus, the seizure of cocaine from Perez’s residence was proper and the trial court properly denied his motion to suppress.

Finally, we conclude that there was no violation of Perez’s rights under Article I Section 11 of the Indiana Constitution. We therefore remand this cause for trial.

In Keiyun L. Mays v. State of Indiana , aan 8-page opinion, Judge Bradford writes:
Sixteen-year-old D.K. was asleep in her bed when she felt someone on top of her, beating and stabbing her on her head and upper body. As the attack progressed, D.K. was struck several times with a tire iron, was stabbed several times, lost consciousness three times, and urinated on herself. At some point, D.K. recognized that her attacker was Appellant-Defendant Keiyun Mays, known to her because he had dated her sister. D.K. eventually escaped from Mays and obtained assistance. A jury found Mays guilty of Class B felony criminal confinement, and the trial court sentenced him to fifteen years of incarceration and found him to be a sexually violent predator (“SVP”). Mays contends that the trial court abused its discretion in sentencing him, that the State produced insufficient evidence to sustain an SVP finding, and that the SVP interview process violated his right against self-incrimination such as to constitute fundamental error. Concluding that all of Mays’s arguments are without merit, we affirm.
In Vance R. Pace v. State of Indiana , a 16-page opinion, Judge Pyle writes:
Vance R. Pace (“Pace”) appeals from the post-conviction court’s order denying his petition for post-conviction relief, which sought to set aside his convictions for Class B felony dealing in amphetamine and Class B felony unlawful possession of a firearm by a serious violent felon (“SVF”) based on claims of ineffective assistance of trial and appellate counsel, stemming from trial counsel’s failure to file a motion to bifurcate1 Pace’s jury trial on his dealing in amphetamine and SVF charges. We reverse and remand. * * *

Given the prejudicial nature of the evidence regarding his prior dealing in cocaine conviction and dealing charges for which he was not convicted, especially in light of his dealing in amphetamine conviction, we conclude that Pace has met his burden of showing that he was prejudiced by counsel’s failure to file a motion to bifurcate. * * *

Because trial counsel’s performance was deficient and Pace was prejudiced by that deficient performance, the post-conviction court erred by denying post-conviction relief to Pace on his claim of ineffective assistance of trial counsel. We, therefore, reverse the denial of Pace’s petition for post-conviction relief and remand this case for a new trial.

NFP civil opinions today (4):

Shabbir Hussain v. Syed Ali (NFP)

Term. of the Parent-Child Rel. of L.R., Minor Child, and Her Father, R.R.: R.R. v. Indiana Dept. of Child Services (NFP)

Term. of the Parent-Child Rel. of: M.A.P. (Minor Child) and M.L.P. (Father) v. Indiana Dept. of Child Services, Allen County Office (NFP)

Term. of the Parent-Child Rel. of D.B., Minor Child, and His Mother, J.B.: J.B. v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (5):

Donald Tatum v. State of Indiana (NFP)

Eddie Rogers v. State of Indiana (NFP)

Alfredo Lopez v. State of Indiana (NFP)

Joshua W. Joyner v. State of Indiana (NFP)

Jereamy M. Barnes v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, February 05, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - Should we pass a constitutional amendment when no one knows what it means?

According to this AP story today in the Indianapolis Star, a number of other states have done so:

Seventeen states now have guaranteed the right to hunt and fish in their constitutions, according to the National Conference of State Legislatures. Four states added the language last year -- Idaho, Kentucky, Nebraska, and Wyoming. All the constitutional provisions except for Vermont have been added since 1996.
Here is the wording of the proposal:
ARTICLE 1 OF THE CONSTITUTION OF THE STATE OF INDIANA IS AMENDED BY ADDING A NEW SECTION TO READ AS FOLLOWS: Section 39. The people have a right to hunt, fish, harvest game, or engage in the agricultural or commercial production of meat, fish, poultry, or dairy products, which is a valued part of our heritage and shall be forever preserved for the public good, subject only to laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly. Hunting and fishing shall be the preferred means of managing and controlling wildlife. This section shall not be construed to limit the application of any provision of law relating to trespass or property rights.
From a story by Eric Bradner of the Evansville Courier & Press:
A state senator’s effort to protect hunters and farmers from the “tentacles” of organizations like the Humane Society by enshrining their rights in Indiana’s constitution took another step forward Monday.

A Senate panel unanimously approved the proposal to give Hoosiers the final say through a 2014 statewide referendum on an amendment that would make clear that hunting, fishing and farming are “a valued part of our heritage and shall be forever preserved for the public good.”

The amendment is necessary because of “the radicalism that our nation is facing at this time from outsiders who attack these two very important traditions in this state,” said its author, Sen. Brent Steele, R-Bedford.

“This idea is nothing new,” he said. “The king of England owned the land and the hunting rights were exclusively his, and when our forefathers came to America, they wanted to make sure that never happened again.”

Agriculture is an $8 billion industry in Indiana, Steele said. He said the state has nearly 15 million acres’ worth of farms that produce more than 3 billion pounds of dairy products each year.

Meanwhile, he said, there are more than 284,000 Hoosier hunters and 965,000 Hoosiers who fish and both industries create jobs and bolster the state’s bottom line with more than $15 million per year in hunting and fishing licenses.

Those rights are now being threatened, Steele said. He specifically pointed the Humane Society of the United States, which he said “not only opposes hunting but they oppose farming,” as one such outside organization.

He cited literature from the Humane Society’s website indicating the group seeks to reduce the suffering of animals raised for food and improve the treatment of farm animals. He also highlighted its complaints about how plant products are used in farming.

“Fishing and hunting and farming are part of our heritage in Indiana, and all are under attack,” Steele said. “They have spread their tentacles.”

But how would the amendment do that, given the language "subject only to laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly"? Are we considering meaningless language for our Bill of Rights, or language which will involve years of expensive litigation?

For more, see this Jan. 25th ILB entry, and this one from Dec. 2, 2012 headed "How the NRA is larding state constitutions with frivolous, redundant 'right to hunt' amendments," the headline referencing an article in Slate.

[More] See also this Nov. 4, 2012 story from ABC9/WCPO.com on a similar amendment in Kentucky. It begins:

Voters in Kentucky will decide on Nov. 6 whether or not hunting and fishing should be considered constitutional rights.

Approving the state constitutional amendment would put the right to hunt, fish and harvest wildlife right up there with life, liberty and free speech in Kentucky.

While there are no obvious arguments against amending the constitution to make hunting and fishing a right, some in Kentucky have expressed concern that there are more important things to consider as constitutional amendments, others have said the amendment is just a means to ensure more extremist Republicans make it to the polls and still others say the amendment amounts to special interest groups making a statement and nothing more.

Posted by Marcia Oddi on Tuesday, February 05, 2013
Posted to Indiana Law