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Friday, November 21, 2014

Ind. Decisions - Court of Appeals issues 4 today (and 5 NFP)

For publication opinions today (4):

In Destination Yachts, Inc., and Sheldon Graber v. Jim R. Fine, a 9-page opinion, Judge May writes:

Destination Yachts, Inc., (“Destination”) and Sheldon Graber1 appeal the entry of judgment in favor of Jim R. Fine. Although they raise two issues, we find one dispositive: Whether the trial court abused its discretion by denying Destination’s and Graber’s request for a continuance and entering judgment in favor of Fine because Destination was not represented by counsel. Finding the trial court abused its discretion, we reverse and remand for further proceedings. * * *

In this case, the record does not reflect that any evidence was taken. Rather, the record makes clear the only reason judgment was entered against Destination was that Destination appeared without counsel. Indiana Small Claims Rule 8(C)(3) provides that claims by or against a corporate entity that exceed $1,500.00 must be defended or presented by counsel. However, that rule is silent with respect to how a trial court should proceed when a corporation appears without counsel. Because that rule provides no guidance, we turn to case law. * * *

We believe under these facts, and under our standard of review in this case of prima facie error, the denial of a motion to continue was an abuse of discretion. We are aware that Fine travelled from Las Vegas for the hearing and that returning at a later date may have inconvenienced him. However, inconvenience is not a reason to justify the denial of a continuance where the basic rights of representation and defense against a claim are at issue. As a result, we reverse and remand to the trial court for further proceedings.

In Deriq Watters v. State of Indiana, a 4-page opinion, Judge May writes:
Deriq Watters appeals the revocation of his probation. We reverse. * * *

At the hearing, the State submitted two uncertified documents: an Abstract of Judgment convicting Watters of Class B felony robbery in the Marion Superior Court, and a purported plea agreement resolving that same cause. Watters objected to both arguing they were inadmissible hearsay because they were uncertified. The court overruled Watters’ objections and entered the exhibits into evidence. After the hearing, the court ordered Watters to serve the remainder of his suspended sentence in the Department of Correction. * * *

In the case at hand, we do not have certified copies, affidavits, or testimony to substantiate the exhibits offered into evidence. * * *

While trial courts have the discretion to admit hearsay evidence at a probation revocation hearing, the admission must not violate the due process standards provided by the United States Supreme Court. See Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973) (when a loss of liberty is at stake, the parolee is to be accorded due process). We decline to extend the lowered bar for admission of hearsay at probation revocation hearings to include evidence with no “indicia of reliability.” See Cox, 706 N.E.2d at 552 (court is not bound by the hearsay exclusion rule, but the hearsay must be reliable). Although there is no bright line test of this reliability, testimony of the parties directly involved, affidavits of parties directly involved, and certified copies would have sufficed without putting an undue burden on the State. As the State did not provide any of those indicia of reliability herein, we hold the evidence was inadmissible.

In Christopher M. Montgomery v. State of Indiana, a 34-page opinion, Judge Brown writes:
Pursuant to an order from the post-conviction court, Judge Grant W. Hawkins presiding, Christopher Montgomery filed this “new direct appeal on his convictions for Count I, Murder, and Count III, Neglect of a Dependent,” which the post-conviction court “limited to issues related to the introduction of 404(b) evidence and sufficiency consistent with [the] court’s findings.”

We first address an issue sua sponte, which is whether the post-conviction court erred when, following a determination that Montgomery received ineffective assistance of appellate counsel, it ordered that Montgomery be granted a second direct appeal.

Following this discussion, we address the two issues raised by Montgomery, which we revise and restate as: I. Whether the trial court abused its discretion by excluding certain evidence; and II. Whether his conviction of neglect of a dependent as a class B felony violates double jeopardy principles. * * *

For the foregoing reasons, we affirm Montgomery’s conviction for murder under Count I, reverse his conviction for neglect of a dependent as a class B felony under Count III, and remand with instructions to enter a conviction under Count III for neglect of a dependent as a class D felony and to sentence him to three years thereon, to be served consecutive to his conviction for murder under Count I.

In Antwonna Smith v. State of Indiana, a 9-page opinion, Judge May writes:
Antwonna Smith was convicted after a jury trial of Class D felony theft and Class D felony resisting law enforcement. Resisting law enforcement is a Class A misdemeanor, but when Smith committed the offense it could be enhanced to a Class D felony if the person “inflicts bodily injury on or otherwise causes bodily injury to another person.” IC 35-44.1-3-1. Smith’s conviction of resisting law enforcement was enhanced to a Class D felony on the ground she inflicted bodily injury after a police officer scraped his knuckle and fingertip while forcing Smith to the ground. Smith argues on appeal the enhancement was error because she did not “inflict” the injury on the officer and the “cause”3 of the injury was the officer’s action, not hers. We agree and therefore reverse and remand so the trial court may enter a conviction of resisting law enforcement as a Class A misdemeanor. * * *

Smith did not “inflict” an injury on the officer or “cause” the officer’s injury, and her conviction should not have been enhanced to a felony. Officer Jones scraped his knuckle and fingertip when he fell while forcing Smith to the ground, but we agree with Smith that she was “a passive part of the encounter” and “took no actions toward” him.

We acknowledge that in Whaley v. State, 843 N.E.2d 1, 10-11 (Ind. Ct. App. 2006), trans. denied, a panel of this court reached the opposite result. * * *

As we do not believe a person who is thrown to the ground necessarily “inflicts” or “causes” an injury suffered by the person who throws her to the ground, we decline to follow Whaley * * *

[ILB: The opinion then cites at length a 2009 COA order by then-CJ Baker. As a COA Order, it is not available on the Indiana Courts website, but it can be found in West and at Google Scholar: In re the Matter of C.F. and A.F.. It says in short:

[E]ach panel of this Court has coequal authority on an issue and considers any previous decisions by other panels but is not bound by those decisions. See, e.g., O’Casek v. Children’s Home and Aid Society of Illinois, 229 Ill.2d 421, 323 Ill. Dec. 2, 892 N.E.2d 994, 1014 n.4 (2008) (horizontal stare decisis is not an inexorable command, whereas vertical stare decisis is an obligation to follow the decisions of superior tribunals).
Today's opinion then concludes by distinguishing the facts of the two cases.]

In the instant case, Officer Jones chose to halt Smith’s resistance by throwing her to the ground, and the officer was injured in so doing. Unlike Whaley, Smith did not create a scenario in which Officer Jones’ only option in handcuffing her was to remove her hands from a location in which he could not reach.

As Smith did not inflict or directly cause Officer Jones’ injury, her conviction should not have been enhanced to a felony. We must therefore reverse and remand.

NFP civil opinions today (2):

In the Matter of the Termination of the Parent-Child Relationship of: A.P., P.M., & A.T. and S.T. v. The Indiana Department of Child Services (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: Z.J.C. and L.C. v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (3):

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

Charles Smith v. State of Indiana (NFP)

William A. Russell v. State of Indiana (NFP)

Posted by Marcia Oddi on November 21, 2014 10:59 AM
Posted to Ind. App.Ct. Decisions