Tuesday, February 26, 2013
Ind. Decisions - Court of Appeals issues 5 today (and 8 NFP)
For publication opinions today (5):
In Curves for Women Angola An Indiana Partnership, Dan Cole, and Lori Cole v. Flying Cat, LLC , a 12-page opinion, Judge Mathias writes:
Dan Cole (“Dan”) appeals the judgment of the Steuben Circuit Court in favor ofIn Paul M. Brock v. State of Indiana , a 12-page opinion, Judge Mathias concludes:
Flying Cat, LLC (“Flying Cat”), in Flying Cat’s breach-of-contract claim against Dan and his ex-wife Lori Atkison f/k/a Lori Cole (“Lori”) arising out of a lease agreement between the Coles and Flying Cat for the operation of a business owned and operated by the Coles. On appeal, Dan presents three issues, which we consolidate and restate as: (1) whether the trial court clearly erred in finding that Dan and Lori were in a business partnership, and (2) whether the trial court clearly erred in finding that a lease extension signed by Lori could bind Dan and make him liable for a breach of the lease. We affirm.
The trial court did not abuse its discretion in considering Brock’s behavior while incarcerated as an aggravating factor, and even if it did abuse its discretion, any error was harmless. Nor did the trial court subject Brock to impermissible double enhancement when it ordered his elevated sentence for auto theft to be served consecutively to the sentence for intimidation that was enhanced under the general habitual offender statute. Lastly, Brock’s sentence of twelve years, with one year suspended to probation, is not inappropriate in light of the nature of the offenses and the character of the offender. Affirmed.In Dennis Ray Smith v. State of Indiana, an 11-page opinion, Judge Baker writes:
In the instant case, appellant-defendant Dennis Smith claims that his recorded statement to police, during which he admitted to inappropriately touching his stepdaughter, who was about five years old at the time, should not have been admitted into evidence at trial because it was obtained in violation of the Fifth Amendment to the United States Constitution. Accordingly, Smith requests that we reverse his four convictions for class A felony Child Molesting.In Pedro Alvarez v. State of Indiana , a 5-page opinion, Judge Pyle concludes:
Additionally, both the State and Smith maintain that Smith’s convictions violate the prohibition against double jeopardy found in Article I, Section 14 of the Indiana Constitution. Insofar as the State was pleading in the alternative in Counts III and IV,rather than alleging four separate counts of child molesting, but finding no other error, we affirm in part, reverse in part, and remand with instructions to the trial court to vacate Smith’s convictions on Counts III and IV.
“When we find an irregularity in the trial court’s sentencing decision [“stacking” the individual counts], we may remand to the trial court for a clarification or a new sentencing determination, or affirm the sentence if the error is harmless, or impose a proper sentence.” Rios, 930 N.E2d at 669. We elect to impose a proper sentence pursuant to Beno; Alvarez’s sentences shall run concurrently and not consecutively. All other aspects of the sentence are affirmed. We remand to the trial court with instructions to enter a new sentencing order and abstract of judgment consistent with this opinion.In Paul Sparks v. State of Indiana, an 8-page opinion, Chief Judge Robb writes:
Paul B. Sparks’s probation was revoked and he was ordered to serve the entirety of his previously-suspended sentence at the Department of Correction after he admitted to violating a condition of his probation. He now appeals, raising two issues, one of which we restate and find dispositive: whether the trial court violated Sparks’s due process rights in its handling of his probation revocation hearing. Concluding that Sparks’s due process rights were violated, we reverse and remand for a new probation revocation hearing. * * *
Like the court in Sims, we do not decide the issue of whether a probation violation admission must be made voluntarily, knowingly, and intelligently in Indiana. Rather, we base our decision on the cumulative effect of the lack of an evidentiary hearing, the unknowing nature of Sparks’s admission, and the trial court’s comment. Thus, while an evidentiary hearing is not required if the defendant admits to the probation violation, the lack of an evidentiary hearing in this case in light of the trial court’s comment and the suspect quality of Sparks’s admission constitutes fundamental error. Accordingly, we reverse and remand for a new probation revocation hearing consistent with the requirements of due process.
NFP civil opinions today (3):
NFP criminal opinions today (5):
Posted by Marcia Oddi on February 26, 2013 10:09 AM
Posted to Ind. App.Ct. Decisions