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Wednesday, March 27, 2013

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (5):

In State of Indiana v. Antonio Gonzalez-Vazquez, a 10-page opinion, Judge Bailey writes:

The post-conviction court excluded the State’s response on grounds that Rule 6(E) was inapplicable; this was erroneous as a matter of law and the State’s motion and response were timely. Therefore, the grant of summary judgment must be reversed. * * *

The post-conviction court erred in striking the State’s response as untimely. We reverse and remand for further post-conviction proceedings.

In In Re The Guardianship of A.J.A. and L.M.A., J.C. v. J.B. and S.B. , an 11-page opinion, Judge Baker writes:
Paternal Grandmother J.C. (Grandmother) appeals from the trial court’s order vacating the grandparent visitation rights she had enjoyed since 2009 on the basis that the trial court that initially granted these rights lacked the statutory authority to do so. Among other things, Grandmother contends that her lack of standing under the Grandparent Visitation Act was waived when her granddaughters’ guardians, J.B. and S.B. (collectively, “the Guardians”), failed to appeal the original order. The Guardians cross-appeal, arguing that even if their objection to the original order was waived, Grandmother’s appeal is nevertheless moot because S.B., a non-relative, and J.B. have since adopted the girls, and grandparent visitation rights do not survive adoption by a non-relative.

We conclude that although Grandmother did lack standing to pursue the original grandparent visitation order, the Guardians’ objections to her want of standing were waived when they failed to appeal the original order. We also conclude that Grandmother’s visitation rights were not terminated by the adoption because the girls were not adopted only by S.B. but also by J.B., who is their uncle. As a result, we reverse the judgment of the trial court.

In Terrence J. Fuqua v. State of Indiana , a 14-page opinion, Judge Mathias concludes:
We conclude that the investigating detectives had reasonable suspicion to search Fuqua’s trash, and that the subsequent search warrant was supported by probable cause. For this reason, the trial court acted within its discretion when it admitted evidence seized during execution of the search warrant.
In Michael L. Harris v. State of Indiana , a 30-page opinion with a separate concurring opinion and with an appellant pro se, Judge Riley writes:
Appellant-Defendant, Michael L. Harris (Harris), appeals his conviction and sentence for Count I, failure to register as a sex offender, a Class D felony, Ind. Code § 11-8-8-17; and Count II, sex offender internet offense, a Class A misdemeanor, I.C. § 35-42-4-12. We affirm in part and reverse in part.

Harris raises three issues on appeal, which we restate as the following four issues:
(1) Whether Harris’s convictions under I.C. § 11-8-8-17 and I.C. § 35-42-4-12 violate the First Amendment of the United States Constitution;
(2) Whether Harris’s conviction under I.C. § 11-8-8-17 violates Harris’s right of free expression under the Indiana Constitution;
(3) Whether I.C. § 11-8-8-8 constitutes an ex post facto law under the Indiana Constitution as applied to Harris; and
(4) Whether the evidence was sufficient to convict Harris of failure to register as a sex offender under I.C. § 11-8-8-17. * * *

Based upon the foregoing, we conclude that Harris’s conviction under Ind. Code § 35-42-4-12 violates the First Amendment to the United States Constitution and reverse his conviction under that statute. However, Harris’s constitutional challenges to I.C. § 11-8-8-8(a)(7) under the First Amendment as well as Article 1, Sections 9 and 24 of the Indiana Constitution fail. We also conclude that the State produced sufficient evidence to support Harris’s conviction under I.C. § 11-8-8-17. Affirmed in part, reversed in part.

BAILEY, J. concurs
CRONE, J. concurs in part and concurs in result in part with separate opinion
objection [which concludes] As for Indiana Code Section 35-42-4-12, the majority acknowledges that the Seventh Circuit Court of Appeals recently addressed its constitutionality under the First Amendment in Doe v. Marion County Prosecutor, 705 F.3d 694 (7th Cir. 2013), but never quite gets around to saying that the court found the statute unconstitutional on its face. See id. at 695 (“We … hold that the law as drafted is unconstitutional. Though content neutral, we conclude that the Indiana law is not narrowly tailored to serve the state’s interest.”). I acknowledge that we are not bound by the Seventh Circuit’s holding and that Doe is both factually and procedurally distinguishable, but I see no reason to reinvent the wheel here and would reverse Harris’s conviction under Indiana Code Section 35-42-4-12 based on Judge Flaum’s persuasive analysis in that case. We need not address Harris’s state constitutional argument here, but I would simply note that the protections of Article 1, Section 9 of the Indiana Constitution are at least equal to if not greater than those of the First Amendment.

In Joseph J. Scott v. State of Indiana , an 8-page opinion, Judge Bradford writes:
Joseph Scott was operating a vehicle with a blood alcohol concentration (“BAC”) of 0.18 grams per deciliter when he fled a police officer and lost control of the vehicle, killing another. Scott indicated that he wanted to plead guilty, and his trial counsel advised him that the maximum sentence he could receive following that guilty plea would be thirty years of incarceration. Scott pled guilty to Class B felony operating a vehicle with a BAC of at least 0.18 g/dl and Class B felony resisting law enforcement causing death. The trial court sentenced Scott to an aggregate sentence of thirty years of incarceration with five suspended to community corrections, and Scott did not appeal. Eventually, Scott filed a petition for post-conviction relief (“PCR”), alleging fundamental error and that he received ineffective assistance of trial counsel. Because we conclude that Scott received ineffective assistance of trial counsel, we reverse and remand with instructions to impose a sentence of twenty-three years of incarceration.
NFP civil opinions today (2):

Pamela A. Thompson v. Carroll E. Thompson (NFP)

In Re Paternity of G.K., A Minor Child; K.D.K. v. N.K. (NFP)

NFP criminal opinions today (2):

Marc Stults v. State of Indiana (NFP)

William D. Everage, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on March 27, 2013 12:49 PM
Posted to Ind. App.Ct. Decisions