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Tuesday, February 19, 2013

Ind. Decisions - More on: Petition to transfer filed in Brewington, along with amicus brief with many signatories

Updating this ILB entry from yesterday, those following the Brewington case may be interested in Dan Brewington's blog.

Among other things, it includes a link to Brewington's petition to transfer.

Posted by Marcia Oddi on Tuesday, February 19, 2013
Posted to Ind. App.Ct. Decisions

Law - Still more on "NCAA calls misconduct on itself for University of Miami investigation"

Updating this most recent ILB entry on the topic, from January 24th, here are three Stories:

Posted by Marcia Oddi on Tuesday, February 19, 2013
Posted to General News

Ind. Decisions - Court of Appeals issues 0 today (and 13 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In the Matter of the Term. of the Parent-Child Rel. of S.K.W. and D.L.W.J.: D.W. v. Indiana Dept. of Child Services and Lake County Court Appointed Special Advocate (NFP)

Metropolitan Property & Casualty Ins. Co. v. Gary Darland (NFP)

NFP criminal opinions today (11):

Ernesto Roberto Ramirez v. State of Indiana (NFP)

Brandon E. Klein v. State of Indiana (NFP)

Thomas Clements v. State of Indiana (NFP)

Olie McNeal v. State of Indiana (NFP)

Megan Parker v. State of Indiana (NFP)

Bradley Franks v. State of Indiana (NFP)

Daniel Miller v. State of Indiana (NFP)

Tyrone Frazier v. State of Indiana (NFP)

Ricky L. Flake v. State of Indiana (NFP)

Luke White v. State of Indiana (NFP)

Anthony E. Thomas v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, February 19, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Ronald B. Hawkins v. State of Indiana, an 11-page, 5-0 opinion, Justicve David writes:

When a criminal defendant fails to appear at trial, it is appropriate to consider whether or not the absence waives his right to counsel and right to be present at trial before trying that defendant in absentia. Such was the case here, where a defendant who lived in North Carolina arrived late for trial in Elkhart, Indiana, only to discover that he had already been convicted. Based on the particular facts and circumstances of this case, however, we conclude that trying the defendant in absentia, without counsel, was not the proper course of action for the trial judge to take. Accordingly, we vacate the defendant’s convictions and remand for a new trial. * * *

[B]ased on the facts and circumstances of this particular case, we find that Hawkins’s failure to appear at trial was not a waiver of his right to counsel and it was inappropriate to try him in absentia without representation. We therefore vacate his convictions and sentence and remand for a new trial. * * *

Because we reverse the trial court’s decision to try Hawkins in absentia and remand for a new trial, the issues he raises with respect to his sentence are necessarily moot. However, we write briefly on them just to highlight two points. * * *

We think the State’s proposed interpretation of “personally present” would effectively render Rule 14(A)(2)(c) meaningless. If a defendant could be “personally present” at sentencing via video conference and satisfy § 35-38-1-4(a), there would be no reason for the Administrative Rules to explicitly require the defendant to give “a written waiver of his or her right to be present in person” before that video conference could be held.

A better interpretation—and one that gives force to both provisions—is that “personally present” and “present in person,” as used in Indiana Code § 35-38-1-4(a) and Indiana Administrative Rule 14(A)(2)(c), respectively, refer to the defendant’s actual physical presence. Thus, a trial court may conduct a sentencing hearing at which the defendant appears by video, but only after obtaining a written waiver of his right to be present and the consent of the prosecution.

ILB: Here is the vacated July 3, 2012 2-1 COA opinion (5th case).

Posted by Marcia Oddi on Tuesday, February 19, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Allen County Judicial Nomination Commission to meet to choose new judge for the first time since 2000

An editorial today in the Fort Wayne Journal Gazette, written by Tracy Warner, supplements this announcement from last Friday. Here it is in full, as it adds to our trove of judicial selection lore:

Judge Stephen Sims’ retirement announcement last week didn’t exactly shock the local legal community – he had been discussing his plans for months.

Now, his departure will initiate a procedure not used in Allen County for more than a dozen years – selecting three finalists, one of whom Gov. Mike Pence will appoint to the bench.

For the first time since the Allen County Judicial Nomination Commission chose three finalists in 2000 to succeed Judge Paul Mathias, who was appointed to the state Court of Appeals, the commission will meet to again select three names to give to the governor. Two of them may well be local officials who have privately expressed interest in the position: Circuit Court Magistrate Craig Bobay and Michael McAlexander, chief deputy prosecutor. More applicants are expected.

By law, the chairman of the seven-member commission is Indiana Chief Justice Brent Dickson or his designee, and Dickson has named Justice Steven David to head the panel. Pence will appoint three non-attorney members; no more than two can be from the same party. Every four years, Allen County attorneys elect three attorneys as members of the commission. The current members are Ed Beck, Susan Rutz and James O’Connor. The seven members will review the applications and select three finalists based on criteria specified in the law.

Sims’ position is arguably the most work-intensive of the nine Superior Court judges. Unlike his eight colleagues, Sims works not in the Courthouse but the Allen County Juvenile Detention Center, which he ultimately oversees and where he hears Family Division cases, most involving juvenile delinquency. And, in some ways, Sims also oversees a school for juveniles held in the center.

Last year, Sims and Superior Court Judge Wendy Davis spoke about the possibility of Davis’ moving into Sims’ position, but she ultimately decided against it. Davis was elected to a criminal court slot in 2010 and decided to stay in that position. The law would have allowed her – or any other Superior Court judge – to transfer to the court’s Family Division. The commission then would have selected finalists for the open spot.

Retiring mid-term

Superior Court judges were elected on a partisan basis until a 1971 reorganization that changed the selection process to appointment by the governor, with judges later facing retention votes. But the law changed again, to non-partisan elections, in 1982.

Despite the move to elections, it was common for judges to leave the bench mid-term to allow the governor to appoint their successor. Republican-leaning judges tended to retire when a Republican governor was in office; while judges leaning toward the Democratic Party left during the administrations of Govs. Evan Bayh and Frank O’Bannon.

The last judge to retire in mid-term was Vernon Sheldon in 1998, and O’Bannon appointed Stan Levine to replace him. Two years later, Judge Paul Mathias was appointed to the state Court of Appeals, and O’Bannon selected David Avery for the bench.

Posted by Marcia Oddi on Tuesday, February 19, 2013
Posted to Indiana Courts

Ind. Law - "Criminal code revamp passes: Could end 50% ‘good time credit’"

Well, HB 1006 hasn't passed, it has passed out of House Ways & Means, to which it had been refer by Committee on Courts and Criminal Code because of fiscal impact issues.

Niki Kelly reports today in the Fort Wayne Journal Gazette:

The House Ways and Means Committee on Monday unanimously approved a bill overhauling the state’s criminal code, with some slight amendments.

The goal of House Bill 1006 is to make punishment more proportional to the crime, make the most serious offenders serve longer sentences and divert drug addicts and low-level offenders from state prisons to local treatment and supervision programs to reduce recidivism.

The bill increases the number of felony levels from the current four to six and spells out new rules for how prisoners could earn “credit time” for early release.

All felons would have to serve 75 percent of their sentences. Under current law “good time credit” automatically cuts sentences in half and then educational credit can reduce that further.

Chairman Tim Brown, R-Crawfordsville, initially offered an amendment to reduce this percentage out of concern that it might increase the state prison population in future years.

Rep. Greg Steuerwald, R-Danville, said the bill’s parts all work together, noting the 75 percent requirement needs to be considered along with judges receiving more discretion to suspend sentences altogether for low-level crimes and the overall rearrangement of the crimes and possible length of sentence.

He said under current law the Indiana Department of Correction expects to have to build a new prison in 2019. The estimate with these changes is 2025.

Brown withdrew his amendment, but the committee did restore the ability of an offender to earn back credit time that has been taken away because of bad behavior.

The DOC was concerned about not having that leverage to encourage good conduct.

The bill also lowers some drug penalties, including reducing the size of the “drug-free zones” around schools. And it recalibrates theft charges to allow more misdemeanor charges.

The legislation now moves to the full House.

Posted by Marcia Oddi on Tuesday, February 19, 2013
Posted to Indiana Law

Ind. Gov't. - "Richard Feldman: Indiana should expand Medicaid"

Richard Feldman, director of medical education and family medicine residency at Franciscan St. Francis Health and is a former state health commissioner, makes a strong case for Medicaid expansion in this opinion piece this morning in the Indianapolis Star. He concludes:

If Indiana rejects expansion, Indiana tax dollars, rather than benefiting Hoosiers, will go to other states to support their expansion programs.

Gov. Mike Pence and most Republican lawmakers are loath to expand traditional-styled Medicaid. Two bills have been introduced with alternative expansion models that would provide for greater state autonomy and the patient accountability and cost-sharing characteristics of the Healthy Indiana Plan. But so far HIP has been rejected by the federal government as a Medicaid alternative. If the state and the feds remain uncompromising, Indiana’s expansion opportunity could be lost.

Existing money has been identified as possible funding sources for Medicaid expansion, including redirected money from the anticipated dissolution of the state high-risk insurance program.

To pass on this opportunity would be fiscally imprudent and morally wrong.

Some may say it is unfortunate lawmakers are not held to a fiduciary standard with respect to the citizens they represent.

Posted by Marcia Oddi on Tuesday, February 19, 2013
Posted to Indiana Government

About this Blog - Problems with ILB host server

Readers: I'm sorry to say I am having serious problems with service from the site that has hosted the ILB for over 10 years. I am working to resolve them.

Posted by Marcia Oddi on Tuesday, February 19, 2013
Posted to About the Indiana Law Blog

Ind. Law - Bills of interest to the judiciary heard in committee during Week 6 of the General Assembly

Here is the sixth weekly installment of the Indiana Courts' Legislative Update for the 2013 legislative session.

Posted by Marcia Oddi on Tuesday, February 19, 2013
Posted to Indiana Law