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Wednesday, January 28, 2015

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

In Ind. Education Employment Relations Board and Nettle Creek School Corp. v. Nettle Creek Classroom Teachers Assoc., an 18-page opinion, Judge Bradford writes:

In 2011, Appellant Nettle Creek School Corporation (the “School Corporation”) and Appellee Nettle Creek Classroom Teachers Association (the “Association”) were engaged in collective bargaining for the 2011-2012 school year. The School Corporation and the Association (collectively, “the parties”) were unable to agree to a Collective Bargaining Agreement (“CBA”) and came to an impasse. Both sides submitted a last best offer (“LBO”) to Appellant the Indiana Education Employment Relations Board (the “Board”) after mediation failed.

The Association initiated judicial review after the Board adopted the School Corporation’s LBO. On November 27, 2013, the trial court found that the Board erroneously determined that the relevant proffered provisions of the parties’ LBOs included an improper attempt to bargain hours rather than wages. The trial court also found that the Board erroneously concluded that the Association’s LBO contained an improper attempt by the Association to bargain for an overtime compensation system that is inconsistent with both Federal and Indiana law.

Upon review, we conclude that while teachers are not entitled to earn overtime for the completion of direct teaching functions, the relevant legal authority does not exclude the bargaining for and potential receipt of additional wages for the completion of required ancillary or voluntary co-curricular duties. Accordingly, we remand the matter to the Board for further proceedings that are consistent with this opinion.

ILB: See this Jan. 5th ILB post for more on the Nettle Creek appeal.

In N.S. v. State of Indiana, an 8-page opinion, Judge Bailey writes:

N.S. was adjudicated a juvenile delinquent for having committed acts that would be Dangerous Possession of a Firearm and Possession of Marijuana, as Class A misdemeanors, if committed by an adult. He appeals the adjudication, presenting the sole issue of whether the juvenile court, having declared a search and seizure of N.S.’s property illegal, abused its discretion by admitting evidence that was a product of the illegal search. We reverse. * * *

“Generally speaking, evidence obtained pursuant to an unlawful seizure must be excluded under the fruit of the poisonous tree doctrine.” Id. at 266. This extension of the exclusionary rule bars evidence directly obtained via an illegal search as well as evidence derivatively gained as a result of information learned or leads obtained during that same search or seizure. Id. The question to be addressed is whether “the derivative evidence ‘has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’” Id. (quoting Wong Sun v. U.S., 371 U.S. 471, 488 (1963)). Courts generally consider the time elapsed between the illegality and the acquisition of the evidence, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. Id. * * *

Both the physical exhibits and D.M.’s testimony were fruit of the illegal search. When “none of [the] evidence should have been admitted … the conviction cannot stand.” Clark, 994 N.E.2d at 273. Likewise, N.S.’s adjudication as a delinquent, resting upon inadmissible evidence, cannot stand. Reversed.

In Brent Anthony Dimmitt v. State of Indiana , a 14-page opinion, Judge Bradford writes:
On December 28, 2012, a fight broke out between several people outside of a Lafayette bar. During the altercation, Appellant-Defendant Brent Dimmitt attacked and injured two men, one of whom was seriously injured. Dimmitt admitted to being the president of a criminal gang called Rebel Cause. Dimmitt instigated and took part in the fight with several other members of Rebel Cause. Dimmitt was convicted of Class C felony battery, Class A misdemeanor battery, Class D felony criminal gang activity, and being a habitual offender. Dimmitt was sentenced to consecutive terms of eight years for Class C felony battery, one year for Class A misdemeanor battery, two years for criminal gang activity, and eight years for being a habitual offender, for a total of eighteen years served and one year suspended to probation.

Dimmitt claims that (1) the trial court fundamentally erred by failing to properly instruct the jury on the elements of the charge of criminal gang activity, (2) the trial court’s sentence exceeded the maximum sentence allowed by statute, and (3) the evidence was insufficient to support the conviction for criminal gang activity. We find that Dimmitt’s sentence was erroneous in two respects: (1) the trial court erred by imposing the habitual offender sentence as a separate count rather than as an enhancement of the underlying felony and (2) the sentence exceeded the statutory limitation for consecutive terms. We reverse and remand with instructions that Dimmitt’s sentence be reduced by one year. In all other respects, we affirm.

NFP civil opinions today (3):

Indiana Law Enforcement Training Board v. Theodore D. Comer, Sr. (mem. dec.)

Steven DuPont and April DuPont, on Behalf of Minor Child M.D. v. Kiddie Academy of Fishers and Kiddie Academy Childcare Learning Centers, Inc. (mem. dec.)

Nina Ozuyener v. Korkut Ozuyener (mem. dec.)

NFP criminal opinions today (6):

Scott Hedrick-Dwyer v. State of Indiana (mem. dec.)

Cameron Williams v. State of Indiana (mem. dec.)

T.M. v. State of Indiana (mem. dec.)

Jon Holman v. State of Indiana (mem. dec.)

Shelby Makowsky v. State of Indiana (mem. dec.)

Aaron J. Taylor v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on January 28, 2015 11:58 AM
Posted to Ind. App.Ct. Decisions