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Wednesday, September 30, 2015

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

Additional for publication opinions today (3):

In Michael W. Troyan and MT Management, LLC v. The Commissioner of the Indiana Department of Revenue et al., an 8-page opinion, Sr. Judge Shepard writes:

Appellant Michael W. Troyan has contended that the Department of Revenue was wrong to assess withholding tax against his limited liability company. A trial court denied his request for injunctive relief against the Department. On appeal, he contends this denial was an abuse of discretion. We remand with instructions to dismiss, inasmuch as exclusive jurisdiction rests with the Tax Court. * * *

To be sure, when an unpaid tax assessment is reduced to judgment, a circuit or superior court acquires jurisdiction for the limited purpose of enforcing the judgment, id., but Troyan and MT Management asked the Marion Superior Court for relief in excess of that limited power.

The trial court may well have been right as a matter of injunction law, but we remand this matter for dismissal on jurisdictional grounds.

In Thomas L. Hale v. State of Indiana, an 11-page, 2-1 opinion, Judge Bailey writes:
Thomas E. Hale (“Hale”) was convicted of one count of Dealing in Methamphetamine, as a Class A felony, and was sentenced to forty years imprisonment. He now appeals, raising for our review the sole issue of whether the trial court abused its discretion when it did not, before trial, permit him to depose two of the State’s witnesses against him. We affirm. * * *

Here, Hale did not seek a ruling in limine excluding the testimonies of Fisher and Casto after the pre-trial denial of his motion for payment of deposition expenses. The trial date was continued after the court’s denial of the motion, but Hale did not renew his efforts to obtain payment of deposition expenses.

At trial, when Fisher and Casto were called as witnesses, Hale did not seek to exclude their testimony, renew a request to depose them, or seek a continuance. He instead proceeded on to generally well-conducted cross-examinations. Thus, we conclude that Hale’s contention as to the propriety of the trial court’s denial of his motion for payment of deposition costs is waived for appellate review. We accordingly affirm his conviction.

Baker, J., concurs
Mathias, J., dissents with separate opinion.[which begins, at p. 9] I believe that the trial court’s denial of Hale’s request to depose Casto and Fisher was improper. I therefore respectfully dissent. * * *

In the present case, however, Hale did not request to depose the witnesses during trial. He requested to depose certain witnesses prior to trial, and the trial court denied these requests. As such, I do not believe that O’Conner is controlling. Instead, I believe that Murphy suggests that denying a defendant the right to depose a witness before trial is a violation of due process, i.e., fundamental error, which need not be preserved. Pursuant to Murphy, I would hold that depriving the defendant the ability to depose the State’s witnesses was an abuse of discretion and reversible error.

In Jason A. Henderson v. State of Indiana, a 7-page opinion, Judge Mathias concludes:
The trial court did not abuse its discretion when it ordered Henderson to serve
consecutive terms of 365 days for his misdemeanor convictions. However,
before imposing a $5,000 fine for each conviction, the trial court should have
held an indigency hearing as required by Indiana Code section 35-38-1-18. We
therefore remand this case to the trial court for proceedings consistent with this opinion.
Additional NFP criminal decisions today (1):

Patrick C. Garvey v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on September 30, 2015 05:03 PM
Posted to Ind. App.Ct. Decisions