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Tuesday, May 26, 2015

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 8 NFP memorandum decisions)

For publication opinions today (4):

In James E. Reed v. Review Board of the Indiana Department of Workforce Development, and A.W. Holdings, LLC, a 21-page opinion, Judge Brown writes:

James E. Reed (“Employee”) appeals a decision by the Review Board of the Indiana Department of Workforce Development (the “Board”) denying his claim for unemployment benefits. Employee raises two issues, which we revise and restate as whether the record supports the Board’s decision. We reverse. * * *

We conclude that the record lacks substantial evidence to support a finding that Employee knew that his conduct violated Employer’s professional conduct rule that employees “in no way exploit, neglect or inflict physical or psychological harm on a client.” Exhibits at 18. The record does not establish Employee knew or could be charged with the knowledge or reasonably anticipate that his action to restrain Client D in the vehicle under the circumstances could result in the termination of his employment. We reverse the decision of the Board that Employee was terminated for just cause and denying Employee unemployment benefits and remand for further proceedings consistent with this opinion.

In Willie B. Jenkins v. State of Indiana, a 9-page opinion, Judge May concludes:
The State presented sufficient evidence Jenkins committed Class A felony burglary. Blackmon’s testimony was not incredibly dubious, and any error in the admission of the picture of Jenkins’ co-actor was harmless. Accordingly, we affirm.
In Bobby Dunn v. State of Indiana, a 10-page, 2-1 opinion, Judge May writes:
Bobby Dunn and the State entered into a plea agreement, which the court accepted. Then on the morning of his sentencing hearing, the State moved to withdraw the plea agreement. The court granted the State’s motion. We reverse and remand for sentencing. * * *

The State and Dunn reached a plea agreement and presented it to the court. The trial court accepted it on May 16, 2014, when it found Dunn guilty and scheduled the sentencing hearing. While Dunn had no right to be offered a plea agreement and the State could have withdrawn it at any point prior to acceptance by the court, once it was accepted, the court could not revoke or vacate it. * * *

To the extent the trial court permitted withdrawal based on Deputy Prosecutor Baldwin’s assertion at the sentencing hearing that the victim had not been notified, any error in the trial court’s original acceptance of the plea was invited by the State, as Deputy Prosecutor Kelly’s affidavit represented at the guilty plea hearing that the State had, in fact, notified the victim. * * *

Pyle, J., concurs.
Barnes, J., dissents with separate opinion. [that begins on p. 7 and that concludes] Here, because the victim never knew of the proposed plea agreement, she could not have intentionally relinquished her constitutional rights to be consulted about the plea and to be present at the change of plea hearing. That the original prosecutor may have misrepresented having consulted with the victim, as found by the trial court, does not change that fact.

In my view, this is a case in which withdrawal of the plea agreement before sentencing was warranted. The trial court did not abuse its discretion in reaching that conclusion. I vote to affirm.

In William Bowman v. State of Indiana, a 6-page opinion, Judge May writes:
William Bowman appeals his conviction of and sentence for Class A felony dealing in a narcotic within 1,000 feet of a school and his adjudication as an habitual offender. As the State did not prove Bowman committed Class A felony dealing in a narcotic within 1,000 feet of a school, we reverse. * * *

Because the State did not prove the product of the “controlled” buy was heroin, there was not sufficient evidence Bowman committed Class A felony dealing in a narcotic within 1,000 feet of a school. Accordingly, we reverse.

NFP civil decisions today (3):

In the Matter of the Involuntary Term. of the Parent-Child Relationship of E.T., M.T., J.T., S.T., T.W., Minor Children, and their Mother, J.R., J.R. v. Ind. Dept. of Child Services (mem. dec.)

Lake County Trust Co., as Trustee for Lake County Trust 5434, James L. Gagan and Eugene H. Deutsch v. United Consumers Club, Inc. (mem. dec.)

Jason T. Myers v. Anonymous Medical Group, Anonymous Physician (mem. dec.)

NFP criminal decisions today (5):

Thomas W. Burton v. State of Indiana (mem. dec.)

David S. Murray v. State of Indiana (mem. dec.)

Christopher McGrath v. State of Indiana (mem. dec.)

Bradley E. Kennedy v. State of Indiana (mem. dec.)

Emmanuel Joseph Cain v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 26, 2015 11:27 AM
Posted to Ind. App.Ct. Decisions