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Thursday, February 27, 2014

Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)

For publication opinions today (3):

In In the Matter of the Termination of the Parent-Child Relationship of: J.G. and C.G. (Minor Children) and B.G. (Mother) v. The Indiana Department of Child Services , an 11-page opinion, Judge Mathias writes:

B.J.G. (“Mother”) appeals the Vigo Circuit Court’s order terminating her parental rights to J.G. and C.G., two of her seven children. Concluding that Mother has forfeited her right to appeal because she failed to file a timely Notice of Appeal, we dismiss her appeal.
In State of Indiana v. Michael E. Cunningham, an 11-page, 2-1 opinion, Judge Barnes writes:
The State appeals the trial court’s granting of Michael Cunningham’s motion to suppress marijuana and a marijuana pipe. We affirm. * * *

The dispositive issue is whether Cunningham validly consented to a pat-down search that revealed the presence of marijuana on his person and further led to discovery of the pipe in his vehicle.

Although Officer Hammock was entitled to pull Cunningham over for having only one red tail lamp, the ensuing pat-down search of Cunningham violated the Fourth Amendment and the resulting fruits of that search must be suppressed. We affirm the granting of the motion to suppress.

ROBB, J., concurs.
BROWN, J., dissents with opinion. [that begins on p. 10] While I concur with the majority’s conclusion that Officer Hammock was entitled to pull Cunningham over for having only one red tail lamp, I respectfully dissent from the conclusion that Cunningham’s Fourth Amendment rights were violated when he was searched. The trial court based its decision entirely on its perceived illegality of the traffic stop and made no determination as to the validity of Cunningham’s consent to a pat-down search. The majority concludes that “Cunningham had no choice but to submit to the pat-down when he exited the vehicle . . . .” In my view, however, the circumstances did not necessitate that Cunningham exit his vehicle, and indeed he chose to do so with full knowledge that, if he exited the vehicle, it would result in a pat-down search.

In State of Indiana v. Chad Bryant , a 13-page opinion, Judge Pyle writes:
The State appeals the trial court’s dismissal of its charges against Chad Bryant (“Bryant”) for Class D felony operating a vehicle as an habitual traffic violator (“HTV”). We reverse and remand. * * *

In the instant case, Bryant has not challenged his HTV determination, either through the BMV or judicial review. Accordingly, in line with the preceding judicial precedent, we need not address whether the BMV’s erroneous listing of Bryant’s charges was a material error because we must consider his suspension valid until he directly challenges it. See id. at 815. As a result, we conclude that the State properly charged Bryant with Class D felony operating a vehicle as an HTV as a matter of law and that the trial court abused its discretion when it granted Bryant’s motion to dismiss. We reverse the trial court’s dismissal and remand for further proceedings.

MATHIAS, J., concurs.
BRADFORD, J., concurs in result with opinion. [which begins at p. 12, and concludes] Because Bryant has not established material error in any of the convictions underlying his HTV determination, he cannot successfully challenge his suspension on that basis. Because Bryant cannot establish that his suspension was invalid, he cannot successfully challenge his operating a vehicle as an HTV conviction on that basis. I would dispose of Bryant’s appeal on that ground, and therefore respectfully concur in result.

NFP civil opinions today (4):

Kathy K. Brunner v. Review Board of the Indiana Department of Workforce Development (NFP)

Paul Farrell v. Deborah Farrell (NFP)

In the Matter of the Civil Commitment of: E.G. v. Eskenazi Health Midtown Community Mental Health Center (NFP)

Rapkin Group, Inc., as a minority Member on behalf and for the benefit of The Eye Center Group, LLC and Surgicenter Group, LLC. v. L. Marshall Roch, M.D. and Lynnette M. Watkins, M.D. (NFP)

NFP criminal opinions today (8):

M.M. v. State of Indiana (NFP)

Brad S. Brown v. State of Indiana (NFP)

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

Jose Ayala Cuevas v. State of Indiana (NFP)

Anna Marie Kelley v. State of Indiana (NFP)

David E. Matney v. State of Indiana (NFP)

David Burroughs v. State of Indiana (NFP)

Johnny D. Wayt v. State of Indiana (NFP)

Posted by Marcia Oddi on February 27, 2014 01:35 PM
Posted to Ind. App.Ct. Decisions