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Monday, December 29, 2014

Ind. Decisions - Court of Appeals issues 3 today (and 3 NFP) - including ruling in Charlie White appeal

For publication opinions today (3):

In Charles P. White v. State of Indiana , a 55-page opinion, Chief Judge Vaidik writes for the 3-judge panel:

Four months after Charles “Charlie” P. White was elected Indiana Secretary of State, a Hamilton County grand jury indicted him on seven felonies, including theft, perjury, and voter fraud. The charges arose from White’s conduct while he was a member of the Fishers Town Council and a candidate for Secretary of State; specifically, he purchased a townhome outside his district but kept his town-council position; submitted a form to the Hamilton County Board of Voter Registration that changed his address from his apartment to his ex-wife’s house, which was located inside his district; voted in the May 2010 primary election using his ex-wife’s address; and applied for a marriage license using his ex-wife’s address. Former Marion County Prosecutor Carl Brizzi defended White at trial. A jury convicted White of six of the seven counts, and the trial court sentenced him to one year of electronic home monitoring. His sentence was stayed pending appeal.

White utilized the Davis-Hatton procedure to temporarily suspend his direct appeal and seek post-conviction relief in the trial court. The trial court denied White’s request for post-conviction relief, which alleged, among other things, that Attorney Brizzi was ineffective. White’s reinstated direct appeal and the appeal of the denial of post-conviction relief are now before us.

We divide White’s claims into direct-appeal and post-conviction issues, and we ultimately conclude that three of White’s convictions must be vacated. As the State concedes, two of the convictions violate double-jeopardy principles. As for the third conviction, the perjury charge against White should have been dismissed because it was based on White’s street address, which was not material to his marriage-license application—only the county of residency is material. As for White’s post-conviction claims, we conclude that Attorney Brizzi was not ineffective. We affirm in part, reverse in part, and remand with instructions. * * *

Because three of White’s six convictions were improper, we remand to the trial court with instructions to vacate White’s convictions on Counts 1, 5, and 6. We affirm White’s remaining convictions, Counts 2 (perjury), 4 (voting in other precinct), and 7 (theft). With respect to White’s post-conviction claims, we conclude that Attorney Brizzi was not ineffective. Because the trial court ordered White’s sentences to be served concurrently, his sentence remains the same despite our instructions.

ILB: The video of the oral argument is available and the ILB recommends it to any attorney doing appellate work.

In State of Indiana v. Allison Moore , a 22-page opinion involving an appeal by the State from an interlocutory ruling of the trial court, Judge Bradford writes:

Moore filed a motion to suppress her statements to police, and the trial court granted Moore’s motion following a hearing. The trial court granted the State’s motion for certification of the matter for interlocutory appeal, and this court accepted jurisdiction. The State contends that the trial court erroneously granted Moore’s motion to suppress because she waived her right to silence by reinitiating the conversation with police. Moore contends that police continued to question her after she invoked her right to silence and that police interference led to her giving a statement without being re-Mirandized. * * *

Especially when one considers that neither Sergeant Scott nor Detective Baxter had any apparent authority to actually do anything about the children who had been in Moore’s care, it seems likely that their continued questioning of Moore was intended to eventually induce her to make incriminating statements. We conclude that Sergeant Scott’s and Detective Baxter’s questioning of Moore amounted to interrogation, which was pursued despite Moore’s clear invocation of her right to silence. Because the State did not scrupulously honor Moore’s right to silence in this case, the trial court did not err in granting her motion to suppress her incriminating statements. We affirm the judgment of the trial court.

In FLM, LLC v. The Cincinnati Insurance Company, et al. , a 24-page opinion by Judge Crone in a complex insurance coverage case, J. Crone writes:
FLM now appeals, raising three issues: (1) whether Cincinnati waived any challenge to FLM’s proposed order by failing to make a timely objection and expressly agreeing to it; (2) whether property damage coverage is available under the CGL policy; and (3) whether the CGL policy has separate $1 million limits for property damage coverage and personal injury coverage. We decide these issues as follows: (1) regardless of any waiver by Cincinnati, the trial court had inherent power to reconsider and revise its nonfinal order; (2) property damage coverage is available under the CGL policy; and (3) the CGL policy has separate $1 million limits for property damage coverage and personal injury coverage. Therefore, we reverse and remand with instructions to enter summary judgment in FLM’s favor as to property damage coverage and separate coverage limits. The amount of coverage over $1.7 million to which FLM may be entitled must be determined in further proceedings.
NFP civil opinions today (0):

NFP criminal opinions today (3):

Frank R. Lempera, III v. State of Indiana (NFP)

Joseph Rolle v. State of Indiana (NFP)

Michael D. Hickingbottom v. State of Indiana (NFP)

Posted by Marcia Oddi on December 29, 2014 10:35 AM
Posted to Ind. App.Ct. Decisions