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Monday, December 12, 2016

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (3):

In Richard Dobeski v. State of Indiana , a 12-page opinion, Judge Altice writes:

Richard Dobeski appeals following his conviction for failure to register as a sex offender. Under the terms of the applicable statute, Dobeski was required to register “not more than seven (7) days after” his release from prison. Ind. Code § 11-8-8-7(g). On appeal, Dobeski argues that the State presented insufficient evidence to support his conviction because seven days had not yet elapsed at the time he was arrested. * * *

For all of these reasons, we conclude that T.R. 6(A) sets forth the proper method of computing the seven-day time frame set forth in I.C. § 11-8-8-7(g). Accordingly, we must exclude the day of the triggering event—Dobeski’s release, which took place on July 16, 2015—and allow Dobeski until the end of the seventh succeeding calendar day—or Thursday, July 23, 2015—to register as a sex offender. When Dobeski was arrested sometime between 2:00 and 2:30 p.m. on that date, “seven (7) days” had not yet elapsed for the purposes of I.C. § 11-8-8-7(g). Accordingly, Dobeski’s conviction for failure to register as a sex offender is not supported by the evidence.

Judgment reversed and remanded with instructions.

In Antonio Waters v. State of Indiana, a 12-page opinion, Chief Judge Vaidik writes:
Antonio Waters pled guilty to criminal deviate conduct, battery resulting in bodily injury, and strangulation after assaulting a woman in 2008. The trial court entered a sentence of imprisonment to be followed by probation. The court imposed the standard probation conditions but said that it would consider sex-offender conditions at a date closer to Waters’ release from prison. Waters did not object to this procedure. The day before Waters was released from prison in 2016, the court held a hearing and imposed twenty-six sex-offender conditions. Waters appeals the imposition of those conditions, arguing that holding the delayed second hearing violated Indiana law and that, in the alternative, seventeen of the twenty-six conditions are unnecessary and inappropriate.

We agree with the State that Waters waived any objection to the bifurcation of the sentencing hearing. However, probation conditions must be reasonably related to the defendant’s treatment and the protection of public safety. Several of Waters’ conditions fall short of this standard. Applying our Supreme Court’s holding in Bleeke v. Lemmon, 6 N.E.3d 907 (Ind. 2014), we conclude that the trial court erred when it imposed four conditions that restrict Waters’ contact with minors even though his offenses did not involve minors. Furthermore, condition 26, which restricts Waters’ access to the internet, is overly broad in its application. Waters’ internet restriction should be limited to websites that are related to his offenses—such as dating websites and websites with sexually explicit material—because the internet has become increasingly pervasive in our daily lives, and Waters did not use the internet to commit his crimes. We affirm in part, reverse in part, and remand with instructions. * * *

Here, there is no evidence in the record to show that Waters used the internet to commit his attack on S.C. or that he has a history of illegal internet use. The trial court noted that Waters has “issues with respect to women,” not issues with the internet. Tr. p. 33. In light of this observation, we acknowledge that the internet has become a popular medium for people to meet, and it is one way Waters could meet women. Modern technology affords the court the tools to limit Waters’ access to certain dating websites and phone applications, as well as websites with sexually explicit materials—restrictions that are reasonably related to his rehabilitation and the protection of public safety.4 For example, the court can order that the parental controls on Waters’ phone be turned on, can order that software be downloaded to Waters’ computer to block specific websites, and can identify the category of websites to be blocked. On remand, the trial court should impose a narrower internet restriction that is more in line with Waters’ conviction and “issues with women.”

Affirmed in part, reversed in part, and remanded with instructions.

In David A. Mathews v. State of Indiana, a 15-page opinion, Judge Mathias writes:
David A. Mathews (“Mathews”) was convicted in Adams Superior Court of misdemeanor operating a vehicle while intoxicated and felony obstruction of justice. Mathews appeals the order of the trial judge, his former lawyer in a tangentially related case, denying his motion for recusal and requests a new trial. We affirm.
NFP civil decisions today (4):

Carolyn F. Brundage v. Brian R. Brundage (mem. dec.)

In the Termination of the Parent-Child Relationship of: Ne.K. & Ni.K. (minor children) and L.K. (Mother) v. Indiana Department of Child Services (mem. dec.)

Afsaneh S. Kleinman and Dr. Elliot Kleinman v. Fifth Third Securities, Inc. (mem. dec.)

Jeremy A. Wroblewski v. FS Financial, LLC (mem. dec.)

NFP criminal decisions today (5):

Michael D. Webb v. State of Indiana (mem. dec.)

James Kaylor v. State of Indiana (mem. dec.)

Terry L. Hill v. State of Indiana (mem. dec.)

Kadijah Danner v. State of Indiana (mem. dec.)

Moses Giger v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on December 12, 2016 11:09 AM
Posted to Ind. App.Ct. Decisions