Citimortgage, Inc. v. Barabas

955 N.E.2d 260

Ind. Ct. App.

2011

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CITIMORTGAGE, INC., Appellant-Intervenor/Cross-Claimant, v. Shannon S. BARABAS a/k/a Shannon Sheets Barabas, Cross-Claim Defendant, ReCasa Financial Group, LLC, Appellee-Plaintiff/Cross-Claim Defendant, and Rick A. Sanders, Appellee/Third-Party Defendant.

No. 48A04-1004-CC-232.

Court of Appeals of Indiana.

Oct. 20, 2011.

957 N.E.2d 260

Matthew S. Love, Feiwell & Hannoy, P.C., Indianapolis, IN, Attorney for Appellant. Mary A. Slade, Plunkett Cooney, Indianapolis, IN, Christopher C. Hagenow, Sarah S. Fanzini, Hopper Blackwell, P.C., Indianapolis, IN, Attorneys for Appellees.

relied on by the trial court to impose the maximum sentence. As to Laughner, although the defendant received the presumptive sentence, the trial court there had found several valid mitigating circumstances. Here, the trial court found only a single mitigator.¹⁰ As such, neither case persuades us that a sentencing error was significant and obvious on the face of the record.

Furthermore, in this case, the trial court’s sentencing statement does not suggest that the trial court attributed significant weight to either the aggravating factor or the mitigating factor. The record reveals little regarding Massey’s military service, which was not acknowledged in his presentence investigation report. At the sentencing hearing, Massey claimed that he had served from 1980 to 1990 and was honorably discharged. A defendant’s military service may be assigned some mitigating weight, but it is not necessarily a significant mitigating factor. See Baird v. State, 604 N.E.2d 1170, 1182 (Ind.1992) (attributing defendant’s military service mitigating weight in the low range); Forgey v. State, 886 N.E.2d 16, 23-24 (Ind.Ct.App.2008) (finding trial court was within its discretion in rejecting defendant’s military record as a mitigating factor). Thus, it is unlikely that this Court on direct appeal would have remanded Massey’s case for resentencing based on a lack of confidence that the trial court would have imposed the same sentence if it had not considered Massey’s conviction for driving while intoxicated.

Massey has failed to carry his burden to show that the sentencing issue was significant and obvious on the face of the record and clearly stronger than the three issues raised by his counsel. In fact, on direct appeal this Court agreed with appellate counsel that the voluntary manslaughter instruction was erroneous, albeit not fundamentally erroneous. As such, we conclude that Massey did not receive ineffective assistance of appellate counsel and affirm the judgment of the post-conviction court.

Affirmed.

BAILEY, J., and MATHIAS, J., concur.

OPINION ON REHEARING

RILEY, Judge.

Citi filed a petition for rehearing of our 2011 Opinion. In that Opinion, we affirmed the trial court’s denial of amended default judgment in favor of ReCasa. We grant Citi’s petition for rehearing to clarify our reasoning, but reaffirm our opinion in all respects.

On rehearing, Citi first argues that our interpretation of Ind.Code § 32-29-8-3 was erroneous. We agree that the correct interpretation of the statute is that the one-year redemption period begins after the sale of the property, not after Citi first acquired interest in the property. However, we find that Citi has failed to demonstrate that the trial court abused its discretion when it denied its motion to intervene and for relief from judgment. Based on the ambiguous language in the mortgage, where MERS was named “solely as nominee for [Irwin],” MERS, and subsequently Citi, did not have an enforceable right separate from Irwin’s interest. Citimortgage, Inc. v. Barabas, 950 N.E.2d 12, 13 (2011).

ROBB, C.J., concurs.

BROWN, J., concurs in part and dissents in part with separate opinion.

BROWN, Judge, concurring in part and dissenting in part.

I concur in that part of the opinion on rehearing in which the majority agrees that the correct interpretation of Ind.Code § 32-29-8-3 is that the one-year redemption period begins after the sale of the property, not after Citi first acquired an interest in the property.

For the reasons set forth in my original dissent, I respectfully dissent from the remainder of the opinion on rehearing.

Notes

Shannon S. Barabas does not participate in this appeal. However, pursuant to Indiana Appellate Rule 17(A), a party of record in the trial court is a party on appeal.

Massey also cites , disapproved on other grounds by , but like Laughner, Eaton involved more than one mitigating factor.