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Wednesday, September 30, 2015

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 9 NFP memorandum decisions)

For publication opinions today (5):

In In Re: The Matter of the Petition to Expunge Conviction Records of James D. Borel v. State of Indiana , a 7-page opinion, Sr. Judge Barteau writes:

James D. Borel1[1] appeals the trial court’s denial of his Petition to Expunge Conviction Records and his motion to correct error. We reverse and remand.

The dispositive issue is whether the trial court erred by denying Borel’s motion to correct error. * * *

The trial court denied Borel’s petition for expungement and motion to correct error pursuant to Indiana Code section 35-38-9-8(b)(11) (2014). At the time Borel filed his petition, that statute stated: “The petitioner shall provide evidence that the petitioner has paid all fines, fees, and court costs, and satisfied any restitution obligation imposed on the person as part of the sentence.”[3]

In denying Borel’s motion to correct error, the trial court determined the “Docket Sheet submitted by the petitioner shows that judgment was entered for costs and that the court costs of $37.00 was entered in” the judgment docket. The typed entries in the docket sheet do not indicate that any court costs were imposed. There is a handwritten note next to one of the entries that consists of the following: “[illegible word, perhaps ‘costs’] 37.00 J.D. 29 pg 123.” Appellant’s App. p. 96. The note is not signed or initialed. There is no indication as to who wrote the note or when it was added to the docket over the last thirty years. * * *

There is insufficient evidence that the trial court imposed court costs or that such court costs remain unpaid, and the trial court’s denial of Borel’s motion to correct error is clearly against the logic, facts, and circumstances presented.

There is insufficient evidence that the trial court imposed court costs or that such court costs remain unpaid, and the trial court’s denial of Borel’s motion to correct error is clearly against the logic, facts, and circumstances presented.
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[1] Both parties identify Borel by initials in their briefs. They do not cite any authority for using initials rather than Borel’s full name. The chapter of the Indiana Code that governs expungement petitions, Indiana Code section 35-38-9-1 et seq., does not mandate the use of initials on appeal. To the contrary, a 2015 amendment to Indiana Code section 35-38-9-10 provides that documents filed in expungement cases are not confidential until and unless the court grants the petition for expungement. 2015 Ind. Acts. 1279-80. In addition, Indiana Administrative Rule 9(G) does not include expungement proceedings among those types of cases in which a party’s identity must be withheld from public access. Finally, recent decisions by the Court in appeals involving the denial of petitions for expungement do not refer to petitioners by their initials. See, e.g., Trout v. State, 28 N.E.3d 267 (Ind. Ct. App. 2015); Mallory v. State, 15 N.E.3d 112 (Ind. Ct. App. 2014); Taylor v. State, 7 N.E.3d 362 (Ind. Ct. App. 2014). For these reasons, we use Borel’s full name in this opinion.

[3] A later amendment to the statute eliminated the provision requiring proof of payment of fines, fees, and court costs. See 2015 Ind. Acts 1275-76. Pursuant to other statutes governing petitions for expungement, the trial court is still required to determine whether all fines, fees, and court costs have been paid. See id. at 1267-70.

In Joan E. Gochenour and James E. Gochenour v. CSX Transportation, Inc. Gerald Konz, Cody Cooper, et al., a 31-page opinion, Judge Robb writes:
Defendants CSX Transportation, Inc., Gerald Konz, and Cody Cooper (collectively, “CSXT”); the Boone County Commissioners and Boone County Highway Department (collectively, “Boone County”); and the State of Indiana and Indiana Department of Transportation (collectively, “the State”), moved for summary judgment on Joan and James Gochenour’s complaint for damages for injuries Joan sustained in a car versus train accident. The trial court ultimately granted summary judgment on all claims to all defendants, and the Gochenours appeal, raising the sole issue of whether summary judgment was proper. We conclude the Gochenours’ inadequate warning device claims, in all their iterations, are preempted by federal law. We also conclude that a genuine issue of material fact exists regarding whether CSXT failed to provide an unobstructed view at the crossing as required by law due to lack of vegetation control. Therefore, we affirm the trial court’s grant of summary judgment to Boone County and the State in full. We affirm the trial court’s grant of summary judgment to CSXT in part, and reverse and remand for further proceedings in part.
In Christopher A. Lothamer v. State of Indiana, a 7-page opinion, Judge Altice, in his first opinion on the COA, writes:
Following a jury trial, Christopher Lothamer was convicted of Dealing in Methamphetamine by Manufacturing,1 a class B felony, along with numerous other drug offenses. On appeal, Lothamer presents one issue for our review: Whether the evidence is sufficient to sustain his conviction for dealing in methamphetamine by manufacturing. * * *

The totality of the evidence supports a reasonable inference that Lothamer knowingly and intentionally aided Jensen in the manufacture of methamphetamine. We therefore affirm Lothamer’s conviction for dealing in methamphetamine by manufacturing.

In Logan M. Dull v. State of Indiana, a 20-page opinion, Judge Pyle writes:
On appeal, Dull challenges only the amount of restitution ordered. Specifically, he argues that the trial court abused its discretion by ordering him to pay $145,633.40 in restitution because part of that amount was based on uncharged acts to which he neither pled guilty nor agreed to pay restitution. We agree with Dull’s assertion. Absent an agreement to pay restitution, a defendant may not be ordered to pay restitution for an act that did not result in a conviction. Because the trial court ordered restitution for amounts that related to dates outside Dull’s indictment for which he did not plead guilty and for which he did not agree to pay, we reverse the trial court’s order of restitution. However, because Dull did agree to a specific amount of restitution that fell within the dates contained in the indictment, we remand to the trial court to enter an order for that specific amount. Reversed and remanded.
In John Larkin v. State of Indiana , a 12-page opinion, Judge Barnes writes:
Larkin raises one issue, which we restate as whether the trial court properly denied his petition to disqualify the LaPorte County Prosecutor’s Office with respect to his pending voluntary manslaughter charge. * * *

We agree with the State that the appointment of a special prosecutor is moot here because Szilagyi is no longer the prosecutor. The new prosecutor Espar was not involved in listening to Larkin’s confidential conversation with his attorney. Because there is no basis to disqualify Espar, there is no basis to disqualify the entire LaPorte County Prosecutor’s Office as Larkin is requesting. We also conclude that the public interest exception is not applicable here. Although the issues involve a question of great public importance, i.e., improper interference with an attorney-client relationship by at least one deputy prosecutor, the circumstances here are unusual enough that they are not likely to recur or continue to evade review. Larkin’s request to disqualify the entire LaPorte County Prosecutor’s Office is moot. Consequently, we dismiss the appeal of the trial court’s denial of Larkin’s motion to disqualify the Prosecutor’s Office and appoint a special prosecutor. * * *

Whether the trial court erred by denying Larkin’s motion to disqualify the LaPorte County Prosecutor’s Office from this case is moot. Consequently, we dismiss.

NFP civil decisions today (3):

Matthew Longest, Deceased, by Robert Longest, et al. v. Lisa M. Sledge, a minor and Roger Brown and Donna Sledge, a/k/a Donna Seldge Brown (mem. dec.)

In Re the Termination of the Parent-Child Relationship of: H.B. (Minor Child) and T.S. (Alleged Father) v. Ind. Dept. of Child Services (mem. dec.)

David Moss v. Indianapolis Dept. of Natural Resources (mem. dec.)

NFP criminal decisions today (6):

Denny Brock v. State of Indiana (mem. dec.)

Danean Childress v. State of Indiana (mem. dec.)

James H. Gosnell v. State of Indiana (mem. dec.)

Wenston Watson v. State of Indiana (mem. dec.)

Gerald Binfet v. State of Indiana (mem. dec.)

Wilbert T. Sturgis v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on September 30, 2015 10:54 AM
Posted to Ind. App.Ct. Decisions