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Tuesday, August 06, 2013

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

In Robert E. Redington v. State of Indiana, a 49-page, 2-1 ruling with 3 separate opinions, Judge Brown writes for the majority in a 41-page opinion:

Robert E. Redington appeals from the trial court’s order to retain firearms. Redington raises four issues, which we consolidate and restate as: I. Whether Ind. Code § 35-47-14-1 et seq., as applied to Redington, is unconstitutional; and II. Whether the evidence is sufficient to support the order that Redington’s firearms be retained. * * *

For the foregoing reasons, we affirm the trial court’s order to retain firearms.

BRADFORD, J., concurs with separate opinion.
RILEY, J., dissents with separate opinion.

[J. Bradford's concurring opinion begins on p. 41 and continues through p. 44. Some quotes] I concur with the majority in all respects. However, I write simply to reiterate that while I have the utmost respect for the constitutionally protected right to bear arms, in the instant matter, I believe that the State met its burden of proving that Redington was “dangerous” as defined by Indiana Code section 35-47-14-1.

During the hearing, the State presented evidence establishing that Redington suffered from a schizotypal personality disorder, exhibited delusional thought patterns that continued despite the anti-psychotic medication that he was prescribed to take, and engaged in arguably unstable behavior. For example, while armed, Redington would, on numerous occasions, travel to Bloomington from Indianapolis and park in a third story parking lot where he would use a range finder to scope out the distance from the parking lot to different locations around Kilroy’s Bar-N’Grill. He did so in the hopes of seeing Lauren Spierer or communicating with spirits whom he believed could provide him with information to help him find Spierer or avenge her disappearance.

Additionally, mental health professionals opined that Redington may suffer from a delusional disorder or a paranoia disorder in addition to schizotypal personality disorder. Redington exhibited an unhealthy obsession with the Spierer disappearance and told police officers and medical professionals, among others, that he “feels the ‘negative energy’ of death all around him, believes bizarre ‘dreams’ or premonitions that he has (often involving dead people) come true or really happened.” Appellee’s Br. p. 13. In addition, Redington claimed to have suffered visual hallucinations, and Dr. Mayer indicated that there was concern that Redington could harm someone during one of his visual hallucinations. * * *

Thus, in light of the fact that Redington was found to be “dangerous” coupled with the relevant controlling State and Federal authority which demonstrates that certain attempts to regulate Article I, Section 32 and the Second Amendment have been found to be constitutional, I agree that Indiana Code section 35-47-14-1 et seq. is not unconstitutional as applied to Redington and join the majority’s conclusion that the judgment of the trial court should be affirmed.

[J. Riley's dissent begins on p. 45 and continues through p. 49. Some quotes] I respectfully dissent from the majority’s decision to affirm the trial court’s Order seizing and retaining Robert Redington’s (Redington) firearms and suspending his firearms license. Ind. Code § 35-47-14-6(b) permits the trial court to order firearms forfeiture and license suspension only if the State “has proved by clear and convincing evidence that the individual is dangerous.” “Dangerous” is defined by I.C. § 35-47-14-1, which provides two alternative tests to determine whether an individual is dangerous. The first test is based on an individual’s risk of imminent harm to himself or others; the second, on the individual’s risk of future harm to himself or others. In my view, a reasonable trier of fact could not find that Redington was dangerous under I.C. § 35-47-14-1.

In Billy L. Musgrave, Jr. and Kim A. Musgrave v. The Aluminum Company of America, Inc., and Alcoa Fuels, Inc., a 29-page opinion, Judge Najam writes:
In 2006, Bil and Kim Musgrave filed suit against The Aluminum Company of America, Inc. (“Alcoa”) and its wholly owned subsidiary, Alcoa Fuels, Inc. (“Alcoa Fuels”). According to their complaint, Bil had been exposed to Alcoa’s toxic chemicals both in the course of his work on land owned by Alcoa Fuels and his recreational use of that land, which caused Bil to develop a rare form of cancer. Before trial, the court dismissed the Musgraves’ work-related claims pursuant to Indiana Trial Rule 12(B)(1) for lack of subject matter jurisdiction. Following a trial on the Musgraves’ recreational claims, the jury returned a general verdict in favor of Alcoa and Alcoa Fuels.

On appeal, the Musgraves raise three issues for our review, but we need only address the following two dispositive issues: 1. Whether the trial court properly dismissed the Musgraves’ work-related claims. 2. Whether the trial court erroneously instructed the jury on the statute of limitations on the Musgraves’ claims that their injuries resulted from their recreational exposure to Alcoa’s chemicals. * * *

In sum, the trial court properly dismissed the Musgraves’ work-related claims against Alcoa pursuant to Indiana Trial Rule 12(B)(1). The trial court also properly instructed the jury on the statute of limitations, and the Musgraves did not preserve their argument that the jury instruction was not supported by the evidence for appellate review. Accordingly, we affirm the trial court’s judgment and the jury’s verdict for Alcoa.

In Derek Hale v. State of Indiana, a 20-page opinion, 2-1 opinion, Judge Brown writes:
Derek Hale appeals the trial court’s order on his Verified Petition for Writ of Habeas Corpus. Hale raises two issues which we consolidate and restate as whether the court abused its discretion when it entered its order clarifying Hale’s sentence. We reverse and remand. * * *

While serving the work release portion of his sentence, Hale is entitled to credit time which is credited against his aggregate suspended term. Put another way, Hale’s sentence is not divided into executed and suspended portions, in which case the credit time accumulated while serving the executed term accrues against that portion and effects an earlier transition to the suspended portion of the sentence. Here, there is a suspended sentence only, and the court established a timeline on how that sentence is to be served. Thus, upon completion of his two years on work release, assuming Hale is not deprived of any credit time, he will have accumulated a total of four years against his ten-year suspended sentence. Hale will then transition to home detention, where he will serve one year and again will be able to earn one year of credit time. Once that portion of his sentence is complete, assuming no deprivation of credit time, Hale will have served a total of six years of his ten-year suspended sentence. He will then be placed on probation for the remainder of his sentence.

For the foregoing reasons, we reverse the court’s order on Hale’s Verified Petition for Writ of Habeas Corpus, and we remand with instructions that the court enter an order instructing the Fulton County Sheriff to administer Hale’s sentence consistent with this opinion.

RILEY, J., concurs in result.
BRADFORD, J., dissents with separate opinion. [which begins at p. 15 of 20] Because I believe that Hale met his burden of proof of showing that he is being illegally detained in the Fulton County work release program (“the work release program”) and, as a result, is entitled to immediate release, I respectfully dissent. * * *

In the instant matter, Hale’s verified petition stated that he had been confined in the work release program for more than one year and that he had earned one day of credit time for each day served. The confining authority did not present a return containing any evidence that would disprove the statements contained in Hale’s verified petition. As such, Hale’s complaint was sufficient to make a prima facie showing that he was entitled to immediate release because he had completed his two-year term of confinement in the work release program.8 See generally Willis, 105 Ind. at 365, 5 N.E. at 9. Because Hale is entitled to immediate release from the work release program, I would conclude that the habeas court abused its discretion in denying Hale’s complaint seeking a writ of habeas corpus, and, accordingly, would reverse the judgment of habeas court.

NFP civil opinions today (2):

Indiana-American Water Company, Inc. v. Indiana Office of Utility Consumer Counselor, City of Crown Point, Indiana (NFP)

In the Matter of the Guardianship of: M.A.M.J., a minor; Diana Sullivan v. Katherine Ashley Oliver (NFP)

NFP criminal opinions today (4):

Marcus L. Wilson v. State of Indiana (NFP)

Lamar Allen Colley v. State of Indiana (NFP)

Travis Cunningham v. State of Indiana (NFP)

Cody Hoffman v. State of Indiana (NFP)

Posted by Marcia Oddi on August 6, 2013 10:48 AM
Posted to Ind. App.Ct. Decisions