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Tuesday, June 25, 2013

Ind. Decisions - Court of Appeals issues 5 today (and 4 NFP)

For publication opinions today (5):

In Gerry Scheub, and the Lake County Draingage Board v. Van Kalker Family Limited Partnership, Lake County Trust Company as Trustee of Trust No. 5240 and Singleton Stone, LLC., a 15-page opinion, Judge Riley writes:

The Appellants raise one issue on appeal, which we restate as follows: Whether the trial properly denied the Appellants’ motion to dismiss for lack of subject matter jurisdiction. * * *

Here, as in Rumpke, it is clear that Scheub’s actions in the quarry project amounted to an actual bias against Singleton. In order to give the Drainage Board an opportunity to prevent an error as a result of bias, Singleton requested Scheub’s disqualification. See New Trend, 518 N.E.2d at 1105. Upon the Drainage Board’s refusal to disqualify Scheub, any further action by the Drainage Board became futile and of no value under the circumstances because any decision in which a biased Board Member participates will be vacated. See Patriotic Fireworks, 871 N.E.2d at 994; Couch v. Hamilton County Bd of Zoning Appeals, 609 N.E.2d 39, 42 (Ind. Ct. App. 1993). Therefore, as the exhaustion of administrative remedies was excused, the trial court acquired subject matter jurisdiction over the cause and properly denied Appellants’ motion to dismiss.[2]
[2]Appellants only challenge the trial court’s denial of their motion to dismiss; they do not challenge the trial court’s enforcement of the settlement agreement, disqualifying Scheub and replacing him with McDevitt.

In Elnesto Ray Valle v. State of Indiana, an 11-page opinion [including a "concurs in part and dissents in part" without opinion (!)], Judge Bradford writes:
As a result of two misbegotten schemes to bail himself out of jail, Appellant-Defendant Elnesto Ray Valle was charged with and convicted of two counts of Class C felony forgery and one count each of Class D felony attempted theft, Class C felony inmate fraud, and Class A misdemeanor resisting law enforcement. The trial court sentenced Valle to an aggregate term of sixteen years of incarceration. On appeal, Valle argues that Appellee-Plaintiff the State of Indiana presented insufficient evidence to support his conviction for Class C felony inmate fraud, claiming he did not obtain money or property by misrepresenting his ability to re-pay his alleged victim. The evidence shows that Valle obtained a future interest in the bail money as well as his release from prison, both of which, we conclude, constitute property under Indiana Code section 35-31.5-2-253(a). Valle also argues that his sixteen-year aggregate sentence is inappropriate in light of his character and the nature of his crimes. We affirm.
In George Cole v. State of Indiana, a 6-page opinion, Sr. Judge Barteau concludes:
Given that the trial court did not believe Cole’s claim as well as the fact that nearly five decades had passed from the time of his conviction until he finally sought an appeal under Post-Conviction Rule 2, we cannot say the court abused its discretion by concluding Cole was not diligent in pursuing permission to file a belated notice of appeal and by thus denying his petition for permission to file a belated notice of appeal. We therefore affirm.
In Daniel J. Hollen v. State of Indiana, a 20-page opinion with a pro se appellant, Judge Brown writes:
Daniel J. Hollen appeals the trial court’s denial of his Petition to Remove Registration Act, Sexual Violent Predator Status, and Global Positioning Satellite. Hollen raises nine issues which we consolidate and restate as whether the court erred in denying his petition. We affirm.
In Timmy T. Zieman v. State of Indiana, a 19-page opinion, Judge Crone writes:
Timmy T. Zieman fled from police and crashed his car into an officer’s vehicle, causing that officer serious bodily injury. The State charged Zieman with several crimes including attempted murder and class C felony resisting law enforcement resulting in serious bodily injury. A jury found Zieman guilty but mentally ill of these offenses. The trial court sentenced Zieman to an aggregate sentence of thirty-five years.

Zieman filed a petition for post-conviction relief (“PCR”), arguing that his trial and appellate counsel were ineffective in failing to argue that the same evidence supporting the attempted murder conviction also supported the serious bodily injury element that elevated the resisting law enforcement conviction to a class C felony and therefore his convictions violated double jeopardy principles. The post-conviction (“PC”) court found that there was no double jeopardy violation and denied Zieman’s petition.

Zieman now appeals the denial of his PCR petition. He argues that trial counsel was ineffective in failing to challenge the elevation of his resisting law enforcement conviction to a class C felony based on serious bodily injury because there is a reasonable possibility that the jury used the same evidence to support the substantial step element of his attempted murder conviction. Based on the prosecutor’s arguments at trial and the lack of specificity in the charging information and jury instructions, we conclude that such a reasonable possibility existed, and therefore double jeopardy principles were violated. Accordingly, the PC court clearly erred in finding that trial counsel did not provide ineffective assistance, and we reverse the denial of Zieman’s PCR petition. We remand with instructions for the PC court to reduce Zieman’s class C felony conviction to a class D felony conviction and sentence him to one and a half years on that count, for an aggregate sentence of thirty-three and a half years.

NFP civil opinions today (1):

Daniel M. Sulkoske v. Statewide Credit Association (NFP)

NFP criminal opinions today (3):

Cornelious Elliott v. State of Indiana (NFP)

Ryan Byfield v. State of Indiana (NFP)

Shawn Anthony Craft v. State of Indiana (NFP)

Posted by Marcia Oddi on June 25, 2013 10:58 AM
Posted to Ind. App.Ct. Decisions