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Thursday, June 25, 2015

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 2 NFP memorandum decisions)

For publication opinions today (2):

In Dennis Johnson, Raymond Johnson v. State of Indiana , a 35-page opinion with a separate concurring opinion, Judge Robb writes:

For their participation in a 1996 robbery gone awry, Dennis Johnson and Raymond Johnson were each convicted in 1997 of felony murder and carrying a handgun without a license and sentenced to serve an aggregate term of fifty-five years. In 2013, Dennis and Raymond filed petitions to modify their respective sentences. Following a hearing in August of 2014, the trial court denied both petitions because the prosecutor did not consent to modification. In this consolidated appeal, the Johnsons contend the trial court erred in requiring the prosecutor’s consent because prior to the hearing on their petitions, the statute allowing sentence modifications was amended to remove that requirement. Concluding the trial court did not err in applying the prior version of the statute which required prosecutorial consent and in denying the petitions to modify on that basis, we affirm. * * *

Conclusion. Because the 2014 amendment to Indiana Code section 35-38-1-17 was neither remedial nor procedural, and because the savings clause evinces the intent of the legislature to apply the new criminal code only prospectively, the 2014 version of the sentence modification statute does not apply to the Johnsons. Therefore, the trial court properly determined that, in the absence of prosecutorial consent, it had no authority to modify the Johnsons’ sentences. The trial court’s orders denying the petitions for sentence modification are affirmed.

Brown, J., concurs.
Bailey, J., concurs in result with opinion. [which begins, at p. 16 of 35] The majority concludes that, because the recent revisions to the sentencing modification statute are neither remedial nor procedural, a prior version of the sentencing modification statute applies to the Johnsons’ petitions. I agree that the prior version of the statute applies in this case, but do so because of the time the Johnsons filed their petitions. I disagree that their dates of conviction and sentencing are controlling and therefore respectfully concur only in the result. * * *

Conclusion. I would hold that the revised statute applies to all petitions filed on or after July 1, 2014, regardless of the petitioner’s conviction or sentencing date. Here, the Johnsons filed their petitions before the effective date of the statute, and thus the trial court did not err in applying the prior version of the statute and denying their petitions for lack of prosecutorial consent. Because I reach this conclusion on a different basis than the majority, I respectfully concur in the result.
[5] [on p. 14 of main opinion] We note, as does the dissent ...

In Lakisha Jordan v. State of Indiana, a 20-page opinion, Judge Brown writes:
Lakisha Jordan appeals her convictions for resisting law enforcement as a class A misdemeanor and disorderly conduct as a class B misdemeanor. Jordan raises two issues which we consolidate and restate as whether the evidence is sufficient to sustain her convictions. We affirm in part, reverse in part, and remand. * * *

Jordan challenges whether the evidence is sufficient to sustain her conviction for disorderly conduct, with particular emphasis on whether her speech constituted free speech under the Indiana Constitution. * * *

As noted, if the claimant demonstrates under an objective standard that the impaired expression was political speech, the impairment is unconstitutional unless the State demonstrates that the “magnitude of the impairment” is slight or that the speech amounted to a public nuisance such that it “inflict[ed] ‘particularized harm’ analogous to tortious injury on readily identifiable private interests.” Barnes, 946 N.E.2d at 577 (quoting Whittington, 669 N.E.2d at 1369-1370 (quoting Price, 622 N.E.2d at 964)). We cannot say that the State demonstrated that the magnitude of the impairment was slight. Nor can we say that the harm suffered by the people in the liquor store lot and across the street rose above the level of a fleeting annoyance or that the State demonstrated that the speech amounted to a public nuisance such that it inflicted particularized harm analogous to tortious injury on readily identifiable private interests. Accordingly, we conclude that Jordan may not be punished, consistent with the Indiana Constitution, for her particular speech. See Price, 622 N.E.2d at 964-965.

NFP civil decisions today (2):

Gumwood HP Shopping Partners, L.P. v. Simon Property Group, Inc. (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of: L.G. (Minor Child) and D.G. (Father) v. Indiana Department of Child Services, and Child Advocates, Inc. (mem. dec.)

NFP criminal decisions today (0):

Posted by Marcia Oddi on June 25, 2015 10:58 AM
Posted to Ind. App.Ct. Decisions