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Friday, August 21, 2015

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 5 NFP memorandum decisions)

For publication opinions today (1):

In Amanda Dillon v. Matthew Dillon, a 12-page opinion, Judge Baker writes:

Amanda Dillon (Mother) appeals the judgment of the trial court granting custody of their daughter to Matthew Dillon (Father). Finding no error, we affirm. * * *

To be sure, the trial court has made a difficult decision in this case. However, its order displays a breadth and depth that has not only assisted our review, but assured us that we would be foolish not to defer to its judgment. Simply put, it is clear that the trial court has thought this one through. The judgment of the trial court is affirmed.

NFP civil decisions today (2):

Floyd Kinslow v. Dennis Coddington, Travis Sheets and Gina Sheets (mem. dec.)

In James Pollard v. Michael Pence, as Governor of the State of Indiana, Bruce Lemmon, as the Comm. of the Ind. Dept. of Corr., and the Ind. Parole Board (mem. dec.), a 7-page opinion, Judge Baker writes:

In State v. Hernandez, our Supreme Court examined the law as it existed in 1975 and held that individuals serving life sentences for crimes committed at this time are not eligible for parole. 910 N.E.2d 213 (Ind. 2009). James Pollard, who is currently serving four life sentences for crimes he committed in 1975, believes this decision was erroneous. Accordingly, Pollard filed a petition for writ of mandamus in the trial court asking it to order the respondents, Governor Pence, Commissioner Lemmon, and the Indiana Parole Board, to consider him eligible for parole. The trial court denied the petition, and we are compelled to affirm. * * *

In Hernandez, our Supreme Court determined that, under the law as it existed in 1975, those serving life sentences were not eligible for parole. Hernandez, 910 N.E.2d at 221. Thus, the Court, in its estimation, had simply determined what the law had always been. Pollard therefore suffered no disadvantage, as the law had never given him the advantage he claims. The same analysis can be applied to Pollard’s claim that the decision in Hernandez constitutes judicial legislation. The Court was not creating anything new and, therefore, did not “legislate.” See Black’s Law Dictionary (10th ed. 2014) (defining “legislate” as “[t]o make or enact law”; “[t]o bring (something) into or out of existence by making laws.”).

Respondents argue that we need not have considered Pollard’s arguments at all because the constitutional prohibition on ex post facto laws is a prohibition placed on the legislature alone and “‘does not of its own force apply to the Judicial Branch of government.’” Armstrong, 848 N.E.2d at 1093 (quoting Marks, 430 U.S. at 191). We agree, however, this is not to say that individuals are provided no constitutional protection from judicial interpretations that effectively function as ex post facto laws. “[T]he Due Process Clause of the Fifth Amendment, made applicable to the states by the Fourteenth Amendment, protects offenders from judicial decisions that retroactively alter the import of a law to negatively affect the offender’s rights without providing fair warning of that alteration.” Id.

However, we are not at liberty to conclude that such is the case here. Not only are we bound by our Supreme Court’s holding as to the meaning of the previous parole eligibility statute, we are also bound by its implicit holding that this is what the statute has always meant. Thus, we are compelled by Hernandez to conclude that Pollard’s claims must fail. The judgment of the trial court is affirmed.

NFP criminal decisions today (3):

Percy Lee Blake v. State of Indiana (mem. dec.)

Matthew Flowers v. State of Indiana (mem. dec.)

Antwon Davis v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on August 21, 2015 09:30 AM
Posted to Ind. App.Ct. Decisions