Monday, October 19, 2015
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 10/19/15):
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."
Wednesday, October 28
- 9:00 AM - State of Indiana v. Brian Taylor (46S04-1509-CR-522) Having been arrested for murder, Taylor was speaking to his attorney in the interview room of the Michigan City Police Department. They were later informed that some police officers and the chief deputy prosecuting attorney had heard part of the conversation. During discovery, some of the officers invoked their Fifth Amendment right against self-incrimination and refused to answer questions about their eavesdropping. Ruling on Taylor’s motion to suppress evidence, the LaPorte Superior Court ordered that the State would be required to establish an independent basis before certain exhibits could be admitted, and ruled that any officer who asserted the Fifth Amendment would be barred from testifying at trial. In the State’s interlocutory appeal, the Court of Appeals affirmed in part, reversed in part, and remanded with instructions. State v. Taylor, __ N.E.3d __ (Ind. Ct. App. 2015), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
- 9:45 AM - Dennis Johnson & Raymond Johnson v. State of Indiana (48A05-1408-CR-390; 84A05-1405-CR-206) The appellants were each sentenced to terms of 55 years in 1997. In 2013, they filed motions to modify their sentences; the prosecutor did not consent. The Madison Circuit Court denied both petitions. In this consolidated appeal, the appellants argue consent is not required under the current version of Indiana Code section 35-38-1-17. The Court of Appeals affirmed. Johnson v. State, __ N.E.3d __ (Ind. Ct. App. 2015). The appellants have petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a 35-page, June 25th COA opinion, including a separate concurring opinion.
- 10:30 AM - Travis Ley v. State of Indiana (84A05-1405-CR-206) Following a jury trial, Ley was convicted of causing the death of a person while operating a motor vehicle with a controlled substance in his blood and of causing serious bodily injury while intoxicated. Ley’s motion for discharge under Indiana Criminal Rule 4(C) and his motion for mistrial based on text messages between the jury foreman and an acquaintance during the trial were both denied by the Vigo Superior Court. The Court of Appeals affirmed in Ley v. State, No. 84A05-1405-CR-206 (Ind. Ct. App. Apr. 23, 2015) (Mem. Dec.), trans. pending. Ley has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a 2-1, 21-page, NFP April 23rd COA opinion.
Friday, October 30
- 9:20 AM - Leonard Suggs v. State of Indiana (02S03-1508-CR-510) Suggs threw a bowling ball while attending a family reunion. Children observed the event; the ball struck a woman who was the sister of a man who had once been married to Suggs’s aunt. When he was young, Suggs had called the woman “Auntie.” Following a jury trial in the Allen Superior Court, Suggs was convicted of battery as a Level 6 felony, which requires proof that the victim was a “family or household member” as defined in Indiana Code section 35-31.5-2-128. The Court of Appeals affirmed in Suggs v. State, 31 N.E.3d 998 (Ind. Ct. App. 2015), vacated.
[NOTE: The calendar indicates this oral argument will take place in Porter County.]
This week's oral arguments before the Court of Appeals (week of 10/19/15):
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]
Tuesday, October 27
- 1:00 PM - 2007 East Meadows LP v. RCHM Phoenix Partners LLC (49A05-1407-PL-300) RCM Phoenix Partners, LLC ("Phoenix") entered into a purchase agreement with the predecessor-in-interest to Texas-based East Meadows, LP ("Meadows"). While Meadows struggled to obtain bank approval to assume the mortgage on the property, the death of a child in the apartment complex attracted the attention of the Indianapolis Housing Authority, which brought an enforcement action against Phoenix regarding the manner in which it operated and managed the apartments. After closing was delayed several times at Meadows' request, it was still unable to obtain approval to assume the mortgage. When Meadows requested another extension of the closing date, Phoenix refused. Meadows then announced that it would not close on the agreement, citing the enforcement action as the reason and claiming that Phoenix was in breach of the purchase agreement. Phoenix sought a declaratory judgment that it was not in breach of contract and did not commit fraud. Meadows counter-claimed, alleging that Phoenix committed breach of contract and fraud and seeking a declaratory judgment, a constructive trust, and specific performance. Both parties moved for partial summary judgment, and the trial court granted partial summary in favor of Phoenix. Meadows appeals and claims: (1) that there are genuine issues of material fact regarding whether Phoenix breached the terms of the purchase agreement; (2) that the trial court erred in concluding that Meadows was not entitled to specific performance; and (3) that there are genuine issues of material fact regarding whether Phoenix committed fraud. The Scheduled Panel Members are: Judges May, Robb and Mathias. [Where: Court of Appeals Courtroom (WEBCAST)]
- 2:00 PM - Kerr v. City of South Bend (71A03-1502-CT-49) For years, noxious sewer gases have emanated into Raymond Kerr's home, forcing him to leave the home in 2005. Kerr sued the City of South Bend in 2012, alleging that the gases constituted a trespass, nuisance, and inverse condemnation. He also alleged injury to his health. The City filed a motion for summary judgment, arguing that Kerr's claim was barred by the applicable statutes of limitations and failure to file timely Indiana Tort Claims Act notice. The City also argued that it owed Kerr no duty. The trial court agreed on all points and granted the City's motion. The Scheduled Panel Members are: Judges Baker, Riley and Brown. [Where: Court of Appeals Courtroom (WEBCAST)]
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 19, 2015 08:36 AM
Posted to Upcoming Oral Arguments