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Friday, December 27, 2013

Ind. Decisions - Court of Appeals issues 2 today (and 13 NFP)

For publication opinions today (2):

In In the Matter of M.S. (A Child Alleged in Need of Services), and K.S., (Mother) v. The Indiana Department of Child Services, a 12-page opinion, Chief Judge Robb writes:

K.S. (“Mother”) appeals the trial court’s dismissal of the Child in Need of Services (“CHINS”) case regarding her son M.S. Mother raises two issues for our review: (1) whether the trial court’s out-of-state placement of M.S. with his father (“Father”) was error; and (2) whether the Indiana Department of Child Services’ (“DCS”) request for dismissal of the CHINS proceedings violated Indiana Code section 31-34-21-5.5 by failing to make reasonable efforts to preserve a family. Concluding the trial court’s placement of M.S. was not error and that Indiana Code section 31-34-21-5.5 was not violated, we affirm. * * *

BARNES, J., concurs.
BROWN, J., concurs with separate opinion. [which begins, at p. 10] The majority observes that the court did not have independent knowledge of the condition of Father’s home at the time of M.S.’s placement, noting that the inspection was not conducted until after M.S. began living with Father in Washington, and states that “[a] more cautious approach would be preferable when placing a child out-of-state in this scenario.” Slip op. at 8. Although I concur with the majority, I write separately to note that not only do I agree it would have been prudent to perform the home inspection prior to placing M.S., but I am also concerned about the subsequent lack of supervision provided by the trial court prior to dismissing the CHINS proceedings.

In State of Indiana v. Frank Greene , a 12-page opinion, Judge Riley writes:
Appellant-Respondent, the State of Indiana (State), appeals the post-conviction court’s grant of Appellee-Petitioner’s, Frank Greene (Greene), petition for post-conviction relief.
We affirm and remand.

The State raises one issue on appeal, which we restate as: Whether the post-conviction court erred when it found that Greene’s trial and appellate counsel were ineffective for failing to adequately challenge the sufficiency of the evidence for criminal confinement as a Class B felony based on counsels’ omission to cite Long v. State. * * *

We find both Long and Redman to be on point with the facts of the case before us. * * *

Therefore, by failing to adequately research and bring a meritorious issue to the attention of the court, both trial and appellate counsels’ representation was inadequate and ineffective. See Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002); Bieghler v. State, 690 N.E.2d 188, 193-96 (Ind. 1997). Both counsels’ failure prejudiced Greene as the application of Long and Redman indicate that he should not have been convicted of criminal confinement as a Class B felony. Thus, we affirm the post-conviction court, reduce Greene’s conviction in Count I to a conviction for criminal confinement as a Class D felony, and remand to the trial court for resentencing. * * *

KIRSCH, J. concurs
ROBB, C. J. concurs in result with separate opinion [which concludes] Because the statute itself precludes the enhancement to a Class B felony, and because neither Greene’s trial nor his appellate counsel raised this issue irrespective of Long, I concur with the majority that the post-conviction court properly granted post-conviction relief.

NFP civil opinions today (5):

In Re the Matter of R.K.: A Child Alleged to be a Child in Need of Services, A.K. v. The Indiana Department of Child Services (NFP)

Clarian Health Partners, Inc., d/b/a Methodist Hospital v. Jessica Sprunger, as next best friend of James Daniel Sprunger, Minor (NFP)

Virginia Davis v. Indiana State Board of Nursing (NFP)

In Re the Estate of Ruby Shuler Blankenbaker Botkins, Deceased, Mark Allen Shuler and David Lee Shuler v. Estate of George Botkins by Larry Botkins (NFP)

Bonnie Shipley v. Anonymous Doctor A and Anonymous Hospital C (NFP)

NFP criminal opinions today (8):

DeWayne Nalls v. State of Indiana (NFP)

Cleverly Lockhart v. State of Indiana (NFP)

Jamar Perkins v. State of Indiana (NFP)

John D. May v. State of Indiana (NFP)

Darrell McNary v. State of Indiana (NFP)

Brandon White v. State of Indiana (NFP)

James E. Britt, Jr. v. State of Indiana (NFP)

Ron Rose v. State of Indiana (NFP)

Posted by Marcia Oddi on December 27, 2013 10:40 AM
Posted to Ind. App.Ct. Decisions