Monday, October 12, 2015
Ind. Decisions - Upcoming oral arguments this week and next [Updated]
This week's oral arguments before the Supreme Court (week of 10/12/15):
- No oral arguments currently scheduled.
Thursday, October 22
- 9:00 AM - Michael Ackerman v. State of Indiana (49S00-1409-CR-770) At a bench trial held in 2014, the Marion Superior Court found that Ackerman committed second degree murder in 1977, and it sentenced him to life imprisonment with the possibility of parole. In this direct appeal, Ackerman argues that the trial court erred by admitting the 1977 autopsy report as evidence, by denying his motion to dismiss based on the delay in prosecution, and by considering the current sentencing range for murder in deciding the appropriate sentence for Ackerman.
- 9:45 AM - Lamont Wilford v. State of Indiana (49A02-1408-CR-534) Wilford, driving his sister’s car while his license was suspended, was stopped by police when they observed multiple equipment problems with the car. Wilford pulled off the road, parked on a nearby business’s property, and was arrested. Police impounded the car according to their procedure, they testified, because the car was in unsafe condition, the driver was arrested, and the owner was not present. During an inventory search of the car, police discovered a stolen handgun in the console. At a bench trial, the Marion Superior Court admitted evidence of the gun, and Wilford was convicted of carrying a handgun without being licensed and one other offense. The Court of Appeals affirmed, concluding the search was reasonable and there was sufficient evidence concerning the impoundment and inventory procedure. Wilford v. State, 31 N.E.3d 1023 (Ind. Ct. App. 2015), trans. pending. Wilford has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This was a May 7, 2015 COA opinion (3rd case).
- [Tyson and Zerbe rescheduled, see this post]
10:30 AM - Sidney Tyson v. State of Indiana (45S03-1509-CR-528), and State of Indiana v. Scott Zerbe (49S05-1509-MI-529) Tyson was charged with failure to register as a sex offender. The Lake Superior Court denied Tyson’s motion to dismiss the charge, and the Court of Appeals affirmed. Tyson v. State, 28 N.E.3d 1074 (Ind. Ct. App. 2015), vacated. In an unrelated matter, Zerbe petitioned the Marion Superior Court for removal of his sex offender designation, which the court denied. The Court of Appeals affirmed in a divided opinion. State v. Zerbe, 32 N.E.3d 834 (Ind. Ct. App. 2015), vacated. The Court of Appeals concluded in both cases that Indiana Code sections 11-8-8-5-(b)(1) and 11-8-8-19(f)—which require sex offenders who must register their home states to register in Indiana upon moving here—did not violate the Indiana Constitution’s ex post facto clause as applied to Tyson and Zerbe. The Supreme Court has granted petitions to transfer in both cases and has assumed jurisdiction over both appeals. The Court will hold a combined oral argument for the two cases, but otherwise has not consolidated the appeals per Appellate Rule 38(B).
ILB: Tyson was a March 3rd NFP decision where the COA ruled "Because Tyson had fair warning of the registration requirement, SORA was not an ex post facto violation as applied to Tyson."
Zerbe was a 2-1, May 29th COA opinion where the majority ruled: " Zerbe had fair warning of SORA’s registration requirement before he moved to Indiana, and SORA imposed no additional punishment because he was already required to register in Michigan."
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 10/12/15):
Tuesday, October 13
- 1:30 PM - Patchett v. Lee (29A04-1501-CT-1) On July 5, 2012, Ashley N. Lee and Mary K. Patchett were involved in an automobile accident. Lee sustained serious injuries, and Patchett admitted fault for the accident. Lee was billed a total of $87,706.36 to treat her injuries by her medical providers. At the time of the accident, Lee was insured under the Healthy Indiana Plan ("HIP"), which paid Lee's medical providers a total of $12,051.48 in full satisfaction of her bills. Lee filed a complaint for damages against Patchett, and, while a jury trial was pending, Lee filed a motion in limine seeking to prevent Patchett from introducing evidence of the HIP payments. The motion was addressed at a pretrial conference, and on Oct. 16, 2014, the court issued an order granting Lee's motion. Patchett brings this discretionary interlocutory appeal from the court's order, arguing that evidence of the amount paid by HIP in full satisfaction of Lee's medical bills was admissible to prove the "reasonable value of medical services," which is the amount of damages Lee is entitled to recover, under the Indiana Supreme Court's opinion in Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009), and the collateral source statute, Ind. Code Section 34-44-1-2. The Scheduled Panel Members are: Judges Riley, Brown and Altice. [Where: Court of Appeals Courtroom (WEBCAST)]
- 1:00 PM - Wartell v. Lee (87A01-1501-PL-38) Dr. Michael Wartell ("Wartell"), former chancellor of Indiana University Purdue University Fort Wayne ("IPFW"), filed a complaint against Lawrence Lee ("Lee") alleging, among other claims, defamation per se based on the contents of private letter that Lee sent to former Purdue president Dr. France Cordova ("Cordova") urging her to deny Wartell's request for an exception to Purdue's retirement policy. The letter generally remarked concerning Wartell's character and integrity, and Wartell's request for an exception to the policy was denied, requiring him to retire.
Lee filed a motion for summary judgment, and the trial court granted his motion on Wartell's claim of defamation per se. Wartell now appeals. The sole issue for our review is whether the trial court erred in concluding that Lee's statements made in the letter to Cordova did not constitute defamation per se as a matter of law.
The Scheduled Panel Members are: Judges Mathias, Barnes and Crone. [Where: Allen County Courthouse, Courtroom 1, Fort Wayne, IN]
[ILB: Here is a long list of earlier posts on the Wartell litigation.]
Monday, October 19
- 1:00 PM - Devereux v. DiBenedetto (49A02-1411-CT-780) Timothy Devereux appeals from the denial of his motion for summary judgment. Rene DiBenedetto sued Devereux based on his employment with William Conour, who was involved in a scheme to steal client funds; DiBenedetto was a victim of this crime. Devereux argues in his motion for summary judgment that DiBenedetto's claim is barred by the statute of limitations based on the contract she signed with the Conour Law Firm, LLC, changing the statute of limitations for actions related to the legal representation to one year. DiBenedetto argues that her claims against Devereux are not subject to the one-year statute of limitations because he was not a party to the contract and the contract provided that there would be no third-party beneficiaries. The Scheduled Panel Members are: Chief Judge Vaidik, Judges May and Robb.. [Where: Court of Appeals courtroom (WEBCAST)]
Tuesday, October 20
- 12:50 AM - Rick Sasso, M.D., and See LLC v. Warsaw Orthopedic Inc., Medtronic Sofamor Danek Inc. and Medtronic Inc. (43A04-1504-PL-175) In this case, Rick Sasso and SEE LLC are appealing the trial court's grant of summary judgment against them. They argue that the defendants, medical device manufacturers, were bound under a 1998 contract to pay either 2.5 percent or 5 percent of all the revenues defendants made selling a spinal stabilization device. Defendants argue that the 1998 agreement was never completed and that, instead, they did business with Sasso in the following years pursuant to new agreements, and, therefore, Sasso has already been compensated. The Scheduled Panel Members are: Judges Baker, Robb and Sr.Judge Shepard. [Where: Purdue University Krannert Center, Room 124, 425 W. State St., West Lafayette]
- 1:00 PM - NO NAME PROVIDED (____) An Indianapolis Police Department officer initiated a traffic stop of a truck driven by Phillip Whitley after the officer determined that the license plate displayed on the truck was registered to another vehicle. During the stop, Whitley was unable to produce a vehicle registration or a valid driver's license, and the officer determined that the truck was not registered to Whitley; therefore, the officer decided to impound the truck. An inventory search of the vehicle was conducted at the scene, before the truck was impounded, and an officer found a decorative box containing methamphetamine and a pill bottle containing methamphetamine, two Alprazolam pills, and eight Clonazepam pills, both of which are Schedule IV controlled substances. Whitley was subsequently charged with Class A felony dealing in methamphetamine, Class C felony possession of methamphetamine, Class D felony possession of a controlled substance, and Class A misdemeanor driving while suspended. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Mathias Barnes. [Where: Indiana Tech Law School, 1600 E. Washington Blvd., Fort Wayne]
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Posted by Marcia Oddi on October 12, 2015 08:28 AM
Posted to Upcoming Oral Arguments