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Tuesday, April 07, 2015

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 1 NFP memorandum decisions)

For publication opinions today (3):

In Glenn Sciaraffa v. State of Indiana , a 16-page opinion, Judge Riley concludes:

Based on the foregoing, we hold that no fundamental error occurred during the admission of the presumptive positive test for methamphetamine or the State’s closing arguments. We also conclude that the State presented sufficient evidence beyond a reasonable doubt to sustain Sciaraffa’s conviction for dealing in methamphetamine.
In John W. Light v. State of Indiana , a 7-page opinion, Judge Riley writes:
Light raises one issue on appeal, which we restate as follows: Whether the trial court erred when it ordered Light’s conviction for operating a motor vehicle while privileges are forfeited for life to be served consecutively to his habitual substance offender sentence enhancement, attached to his Class A misdemeanor conviction. * * *

Unlike Sweatt, Light’s two enhancements were not based on the same prior felony convictions: his Class C felony enhancement is based on the underlying Cause DF-190; while his HSO enhancement is based on the underlying Cause CF-89 and Cause CM-32. See Brock v. State, 983 N.E.2d 636, 642 (Ind. Ct. App. 2013), reh’g denied (when two separate enhancements are not based on the same prior felony conviction, Sweatt is not controlling and the trial court’s imposition of consecutive sentences is not an improper double enhancement). We therefore conclude that the trial court’s imposition of consecutive sentences does not constitute an improper double enhancement under the facts and circumstances of the present case.

In Mark M. Jervis v. State of Indiana, a 14-page opinion, involving an appellant pro se, Judge Riley writes:
Jervis argues that his appellate counsel should have raised his own incompetence—specifically his own failure to challenge the State’s destruction of the evidence, and failure to raise jury misconduct—as grounds for ineffective assistance of trial counsel. As discussed above, we determined that Jervis’s unfounded assertion that the State destroyed the oral swab is without merit. As for the jury misconduct claim, we have already concluded that it is barred by res judicata. Here, Jervis has not demonstrated that appellate counsel’s own failure to challenge the State’s destruction of the evidence and failure to raise jury misconduct were “clearly stronger” than the issues raised by his appellate counsel. See Bieghler, 690 N.E.2d at 194.

In light of the foregoing, we find that Jervis has not demonstrated that but for his appellate counsel’s alleged error, there is a reasonable probability that the result of the proceeding would have been different. See McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002). Therefore, we find that Jervis has failed to show that his appellate counsel’s performance was deficient or that he was prejudiced as a result of counsel’s performance.

NFP civil decisions today (0):

NFP criminal decisions today (1):

Jon Jerricco Haupert v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on April 7, 2015 10:55 AM
Posted to Ind. App.Ct. Decisions