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Tuesday, September 10, 2013

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

For publication opinions today (4):

In Myron Jay Rickman v. Sheila Rena Rickman , an 8-page opinion, Judge Brown writes:

Myron Jay Rickman, pro se, appeals the trial court’s denial of his petition for modification of visitation order and denial of his motion to correct error. Rickman raises one issue which we revise and restate as whether the court erred in denying Rickman’s petition for modification of visitation order and motion to correct error. We reverse and remand. * * *

The CCS entry related to the denial of Rickman’s petition states only that the petition was denied without a hearing and that Rickman was incarcerated on child molesting charges. That statement is factual and does not constitute a sufficient written explanation indicating why the petition was denied or whether it was denied pursuant to Ind. Code § 31-17-4-2, or whether the court considered the Parenting Time Guidelines. In either event, a factual basis and a finding as to potential endangerment of M.R.’s physical health or safety or significant impairment of his emotional development are necessary.

If on remand, the trial court determines the Guidelines to be applicable, it must then proffer an explanation for its departure from the Guidelines. Thus, the trial court must reflect upon the best interests of the child and the possible consequences of its departure from the provisions of Indiana Parenting Time Guideline I(A). Doing so would enable us to thoroughly and appropriately review the trial court’s deviation and the reasons behind it.

Under these circumstances and recognizing that Sheila did not file an appellee’s brief, we remand for the trial court to provide a written explanation for its reasons for denying the petition or to conduct other proceedings consistent with this opinion.

For the foregoing reasons, we reverse the trial court’s denial of Rickman’s petition for modification of visitation and remand for proceedings consistent with this opinion.

In Kelvin Fuller v. State of Indiana, an 8-page opinion, Judge Riley writes:
Fuller raises one issue which we restate as: Whether the trial court abused its discretion by denying his motion to discharge in accordance with Ind. Crim. Rule 4(C). * * *

It is Fuller’s burden on appeal to give us a record that supports his claims. See Delao v. State, 940 N.E.2d 849, 852 (Ind. Ct. App. 2011). At best, Fuller presented us with some evidence suggesting that Lake County sheriff’s department might have been aware of Fuller’s incarceration in Indiana. However, because the record does not show that the Lake County prosecutor or trial court were actually aware of Fuller’s return to Indiana’s jurisdiction prior to Fuller’s filing of his motion to discharge on June 13, 2012, the Crim. R. 4 (C) clock did not start until that date. Therefore, the trial court properly denied Fuller’s motion.

In H.M. v. State of Indiana, a 6-page opinion, Judge Riley writes:
Appellant-Petitioner, H.M., appeals the trial court’s summary denial of his four petitions to restrict the disclosure of arrest records pursuant to Ind. Code § 35-38-5-5.5.[1] We affirm. * * *

In the case before us, H.M. was arrested but the State never filed its Information. Therefore, H.M. was not “charged” as interpreted in I.C. § 35-38-5-5.5 and is thus not eligible to restrict the disclosure of his arrest records.[2] We conclude that the trial court properly denied H.M.’s petitions.
1 We note that this statute has been repealed by Public Law 194-2013, effective July 1, 2013, and replaced by the current I.C. § 35-38-9 (2013); however, as H.M.’s petition was filed on February 15, 2013 and the trial court’s summary denial occurred on March 14, 2013, such legislative action has no effect in this case.

2 We note, however, that the revised statute with respect to the sealing of arrest records specifically includes the situation of “a person who has been arrested if: (1) the arrest did not result in a conviction or juvenile adjudication[.]” I.C. § 35-38-9-1.

In Jerome Binkley v. State of Indiana, a 9-page opinion, Judge Pyle writes:
Jerome Binkley (“Binkley”) appeals pro se from the post-conviction court’s order denying his petition for post-conviction relief. We reverse and remand. * * *

Because Binkley has pled sufficient facts to raise an issue of possible merit, we find that the trial court erred in summarily denying Binkley’s PCR petition. As a result, we remand for further proceedings on Binkley’s ineffective assistance of counsel claim and direct the post-conviction court to issue findings of fact and conclusions of law consistent with Post-Conviction Rule 1(6).

NFP civil opinions today (2):

Tim L. Godby v. James Basinger, Et Al., (NFP)

Century Surety Company v. The Ugly Monkey, LLC and Camburad, LLC, Amber Pagel, Dale Ueber a/k/a Dale Uebersetzig and Ueber Insurance Inc., (NFP)

NFP criminal opinions today (2):

Ronald Andrew Manley v. State of Indiana (NFP)

Reco Terrell v. State of Indiana (NFP)

Posted by Marcia Oddi on September 10, 2013 10:55 AM
Posted to Ind. App.Ct. Decisions