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Friday, August 14, 2015

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 6 NFP memorandum decisions)

For publication opinions today (2):

In Wesley McDivitt v. Sue McDivitt , a 10-page opinion, Judge Baker writes:

Wesley McDivitt appeals the judgment of the trial court ordering him to pay one-half of his monthly pension benefits to his ex-wife, Sue McDivitt. Finding that the trial court based its judgment on an erroneous interpretation of Wesley’s employment severance agreement, we reverse. * * *

While we admit that Wesley’s severance agreement is not a model of precision, we are obliged to determine its meaning in accordance with the parties’ reasonable expectations. Here, neither the plain terms of the agreement nor extrinsic evidence in the record counsel in favor of adopting Sue’s interpretation. The terms unambiguously list Sue as a beneficiary rather than a co-annuitant, and evidence in the record indicates that the checks under the agreement have been made payable to Wesley alone. In light of this, we cannot conclude that when Wesley entered into the agreement, the parties reasonably believed that Sue had acquired an ownership interest in annuity payments made to Wesley during his lifetime. As we find that Wesley transferred no such ownership interest to Sue, the payments remain his sole property pursuant to the terms of the couple’s prenuptial agreement.

In Charles Gross v. State of Indiana , a 19-page opinion, Judge Robb writes:
Charles Gross was arrested on February 28, 2003, on charges of child molesting, a Class B felony, and dissemination of matter harmful to a minor, a Class D felony. He has never been tried on these charges, however, as he was found to be incompetent and has been either incarcerated in Johnson County or confined by the State Division of Mental Health and Addiction (“DMHA”) since his arrest. In August 2014, Gross filed a motion to dismiss the charges against him and a request for release from custody because he had been confined for a period of time equivalent to the maximum sentence he could have to serve if convicted. The trial court denied his motion, finding Gross was subject to the credit restricted felon statute and therefore had not yet been confined for the maximum time allowed by law.

Gross appeals the trial court’s denial of his motion to dismiss the charges pending against him and release him from custody. He raises two issues:
1) whether the trial court erred in finding he was subject to the credit restricted felon statute; and
2) whether the trial court abused its discretion in denying his motion because due process requires the charges to be dismissed.
The State concedes that Gross is not subject to the credit restricted felon statute and has been confined for the maximum time allowed by law but argues the charges should not be dismissed. We conclude the parties are correct that Gross is not subject to the credit restricted felon statute and has therefore been confined for the equivalent of the maximum sentence he could have been ordered to serve. In addition, because there has been a finding that it is unlikely Gross will ever be restored to competency, it is a violation of due process for the underlying criminal charges to continue to pend against him. The trial court abused its discretion in denying Gross’s motion to dismiss, and we therefore reverse. * * *

May, J., concurs.
Mathias, J., concurs in result with opinion. [which begins, at p. 16] I concur wholeheartedly in Judge Robb’s well-reasoned opinion. I write separately for two reasons.

First, I wish to emphasize that there is little reason to believe that dismissal of the criminal charges against Gross will lead to his release into society. Instead, Gross mostly likely faces a lifetime of civil commitment as a result of his mental illness. See supra, slip op. at 14 n.5.

Secondly, I wish to repeat what I wrote in concurring in Habibzadah v. State, 904 N.E.2d 367, 370 (Ind. Ct. App. 2009) ...

NFP civil decisions today (2):

Randy L. Thornton v. State of Indiana, Indiana Department of Corrections, Marion County, Indiana, Matthew Pietrzak, Stephanie Buttz, Eric Lee, Dianna Johnson (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of: B.C.M. (Minor Child), and C.J.C.M. (Mother) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (4):

Lisa L. Baker v. State of Indiana (mem. dec.)

Jeremy Schmitt v. State of Indiana (mem. dec.)

Dennis William Smith v. State of Indiana (mem. dec.)

Lawrence E. Kellems v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on August 14, 2015 11:01 AM
Posted to Ind. App.Ct. Decisions