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Thursday, August 15, 2013

Ind. Decisions - Court of Appeals issues 7 today (and 10 NFP)

For publication opinions today (7):

In Natasha F. Hortenberry v. Thomas Palmer , a 9-page opinion, Judge Crone writes:

Thomas Palmer attempted to initiate a negligence action against Natasha F. Hortenberry, but the check he sent to the clerk along with the complaint was $2 less than the applicable filing fee. By the time that Palmer realized the mistake and rectified it, the statute of limitations had run. Palmer filed a motion with the trial court requesting that the complaint be treated as if it had been timely filed, and the court granted the motion. On the same day that the motion was granted, an attorney entered an appearance for Hortenberry, and when he realized that Palmer’s motion had been granted, he filed a motion to set aside the order. The trial court denied that motion, and Hortenberry now appeals. Because Indiana Trial Rule 3 and Indiana Supreme Court precedent clearly indicate that paying the filing fee is required for the commencement of an action, we conclude that the trial court erred by denying Hortenberry’s motion. Therefore, we reverse and remand.

[ILB: The opinion does reference the July 30th Supreme Court opinion in Miller v. Dobbs, which involved a $7 fee paid 3 days later, stating: "Miller turned on a “straightforward statutory ground,” and did not involve interpretation of Trial Rule 3."]

In Charles Kietzman v. Amanda S. Kietzman, a 10-page opinion, Judge Bailey concludes:
We find no abuse of discretion in the dissolution court’s decision to grant Mother’s request to relocate with K.K. Nor do we find any abuse of discretion in the dissolution court’s decision to deny Father’s request to modify custody. We accordingly affirm the decision of the dissolution court.
In Roger Jay Piatek, M.D., and The Piatek Institute v. Shairon Beale , a 5-page opinion, Judge May writes:
We grant the petition for rehearing in order to address an argument Piatek advanced on appeal and to note a mischaracterization of the record by Piatek’s counsel in their rehearing petition. We reaffirm our original opinion.
In Adrian Jackson v. State of Indiana, a 16-page opinion, Judge Baker writes:
In this case, a criminal defendant asserted his constitutional right to self-representation but unfortunately discovered that proceeding pro se is riddled with pitfalls. Following a jury trial, the appellant-defendant, Adrian Jackson, was found guilty of Counts I and II, class B felony Criminal Confinement, Counts III, IV, and V, class B felony Robbery, and Counts VI and VII, class C felony Battery. Following a sentencing hearing, the trial court sentenced Jackson to an aggregate term of thirty years.

Jackson appeals, requesting a new trial with new counsel. Jackson claims that the trial court failed to inquire into his appointed counsel’s alleged conflict of interest when Jackson advised the court that he wished to proceed pro se and that the trial court should have appointed him alternative counsel. Jackson also claims that the trial court violated his Sixth Amendment right to counsel because he did not make a knowing, voluntary, and intelligent waiver of this right.

Concluding that the trial court had no duty to inquire into Jackson’s conflict of interest allegations or to appoint Jackson alternative counsel when he decided to proceed pro se and that Jackson made a knowing, voluntary, and intelligent waiver of his right to counsel, we affirm the judgment of the trial court. * * *

In conclusion, we find that the trial court properly inquired into Jackson’s request to proceed pro se and provided him with sufficient advisements related to his decision to forfeit that right. Jackson also signed a written advisement form that stated that he had thoroughly reviewed all the dangers and disadvantages of self-representation and had full knowledge of them. Jackson cannot now contend that his waiver of his right to counsel was not knowing, voluntary, or intelligent just because his choice to proceed pro se was due to his dissatisfaction with the way his appointed counsel was representing him.

In Danny Stephens v. State of Indiana , a 6-page opinion, Judge Crone writes:
Danny Stephens got drunk at home, was assaulted by his niece’s boyfriend, and left the house when the police failed to arrest the boyfriend. He went to a public place and called the police, admitting that he was drunk and requesting that they take him to jail so that he would not have to return home. The State charged him with class B misdemeanor public intoxication, and a trial court convicted him as charged.

Stephens now appeals, challenging the sufficiency of evidence to support his conviction. Finding the evidence insufficient to establish that Stephens endangered either his life or another person’s life, breached the peace or was in imminent danger of breaching the peace, or harassed, annoyed, or alarmed another person, we reverse.

In Kenneth McBride v. State of Indiana, a 17-page opinion, Judge Baker writes:
Following a jury trial, the appellant-defendant, Kenneth McBride, was found guilty of Counts I and II, class B felony criminal Confinement,1 Counts III, IV, and V, class B felony Robbery,2 and Count VI and VII, class C felony Battery,3 for which the trial court sentenced McBride to an aggregate term of thirty years.

McBride appeals, asking our Court to vacate all of his convictions or, in the alternative, to revise his sentence pursuant to our authority under Indiana Appellate Rule 7(B). Specifically, McBride claims that the trial court committed reversible error when it allowed him to proceed pro se because he did not make a knowing, voluntary, and intelligent waiver of his right to counsel. McBride also contends that the trial court committed fundamental error when it admitted evidence obtained through an improper show-up identification procedure and that his thirty-year executed sentence is inappropriate in light of the nature of the offenses and his character.

Finding no reversible error and concluding that McBride’s sentence is not inappropriate, we affirm.

In State of Indiana v. Robert Owens, a 13-page, 2-1 opinion, Judge Bradford writes:
Appellant-Plaintiff the State of Indiana appeals from the trial court’s grant of Owens’s motion to suppress evidence. Owens concedes that any evidence relating to Owens’s alleged flight from or battery of the police officers should not have been suppressed. The State argues that (1) even if the initial stop of Owens was illegal, Owens’s subsequent criminal actions were sufficient to remove the taint of that illegal stop and (2) the officers’ actions were reasonable such that Article I, Section 11 of the Indiana Constitution does not require suppression of any evidence. Finding the State’s arguments unpersuasive, we conclude that Owens’s actions following the illegal stop were not sufficient to dissipate the taint of the stop, and so any evidence gathered pursuant to the stop should have been suppressed. Consequently, we affirm in part, reverse in part, and remand for further proceedings. * * *

BROWN, J., concurs.
RILEY, J., concurs in part and dissents in part with opinion. [which begins at p. 11 of 13] I respectfully dissent from the majority’s decision to reverse the trial court’s suppression of evidence pertaining to Owens’s battery upon and flight from Officers Shipley and Solomon.

NFP civil opinions today (2):

In Re the Paternity of C.H.: S.L. v. K.H. (NFP)

Auto-Owners Insurance Company v. C & J Real Estate, Inc. (NFP)

NFP criminal opinions today (8):

William D. Cornett v. State of Indiana (NFP)

Jessica Wilkinson v. State of Indiana (NFP)

William R. Marks, Jr., v. State of Indiana (NFP)

Mark A. Atherton v. State of Indiana (NFP)

David Newson v. State of Indiana (NFP)

Willie G. Maffett v. State of Indiana (NFP)

Antwon Davis v. State of Indiana (NFP)

Chad Matthew Hagan v. State of Indiana (NFP)

Posted by Marcia Oddi on August 15, 2013 10:33 AM
Posted to Ind. App.Ct. Decisions