Hardley v. State

an insurance purchased policy would Conclusion have Although from an insurance carrier. we an person” pursuant GPTC is not “other her are position, by understand we hound to Indiana Code Section 22-3-2-13. Act, prohibits employee which an in Therefore, the trial properly granted court jured scope or her employ of his GPTC’s motion to dismiss based directly recovering ment from an em from subject jurisdiction. lack of matter How- ployer employee or fellow even when the ever, subject because the trial court lacked See, unfair. might results considered jurisdiction matter it could not address the e.g., Cmty. Rehab. Servs. Hosp. Procare grant merits of the case and GPTC’s mo- (Ind.Ct. Vitatoe, 349, v. N.E.2d 355-56 summary tion for judgment. We affirm in App.2008) (observing pursuant to the part part. reverse employee injured during Act a hospital employment may course of recover for part in part. Affirmed in and reversed negligent by provided aftercare the em employees ployer-hospital or fellow while FRIEDLANDER, J., DARDEN, J., at the time a same construction worker concur. injured during the of employment course negligent who receives aftercare from the

same would hospital pursue be able

additional remedies against hospital result)

and acknowledging the unfair

(Barnes, J., concurring). inequity cre by application

ated Act of the is not an courts;

issue for the it is issue that must legislature. be addressed our HARDLEY, Samuel Appellant/Defendant, We conclude that is not an GPTC “other person” purposes of Indiana Code Sec- tion 22-3-2-13. Because is GPTC not an person,”

“other remedy Smith’s exclusive Indiana, Appellee/Plaintiff. STATE of is a claim for benefits under the Act. Ac- No. 49A05-0801-CR-29. cordingly, the trial subject court lacked jurisdiction matter and properly granted Appeals Court of of Indiana. GPTC’s motion to dismiss. 26, Sept.

Although the court properly trial granted GPTC’s motion to dismiss because subject

it jurisdiction, lacked matter it im

properly granted motion GPTC’s for sum

mary judgment. summary judg Because merits,

ment is a decision on it

not be rendered lacks

subject jurisdiction. matter See Perry v. GMC, Inc.,

Stitzer Buick (Ind.1994). Thus, we reverse the tri

al grant summary judgment court’s

favor of subject GPTC because it lacked jurisdiction.

matter AND

FACTS PROCEDURAL HISTORY August 2006, Hardley On ap- stole proximately of alcoholic bever- $528-worth steaks, ages, clothing Meijer’s and from a 25, 2006, Indianapolis. August store in On Harley charged the State with in theft number cause 49F08-0608-FD-159522 (“Cause 159522”), the trial and court re- him on recognizance. leased his own approximately At to 3:00 2:00 a.m. on 13, 2006, September Hardley while was still released on recognizance his own Cause Ethel Richmond let him into Indianapolis apartment. her When Rich- mond awoke at to prepare 6:00 a.m. to go work, Hardley to still a asleep was IN, Kathy Bradley, Indianapolis, Attor- Richmond, recliner. When who was out of ney for Appellant. cigarettes, apparently took one of Hard- Carter, Attorney Steve General of ley’s, Hardley accused her of stealing from Indiana, Worden, Deputy Gene Michael backpack. his Richmond then told Hard- General, IN, Attorney Indianapolis, Attor- ley Bailey, and Norma stay- who was also neys Appellee. her

ing apartment, they had to leave because she to going work. OPINION Hardley told Richmond he was not BRADFORD, Judge. and, going anywhere ‘You stole something Appellant/Defendant Hardley Samuel my out backpack, Tr. p. bitch.” 24. appeals from his convictions of and sen- Richmond, Hardley slapped who fell onto a imposed tences for Class D felony Crimi- At that point, Hardley began mattress. nal and Confinement1 Class A misdemean- beat Richmond and restrained her such or Battery.2 Hardley contends that she could not stand up. While he had State produce failed to sufficient evidence restrained, Hardley Richmond beat and to sustain his conviction for criminal con- kicked her in the chest and stomach. finement and that that conviction his managed Richmond nonetheless reach a prohibitions conviction violate and, telephone she although was unable to against jeopardy. double The State cross- speak, she dialed 911 such that authorities appeals, contending that the trial court apparently were hear able to the alterca- erred in ordering Hardley sentences re- Hardley tion. Bailey ran off when told ceived in two different cause numbers to police him that way were on their concurrently. served but was We affirm in part, part, apprehended. soon reverse in with As result remand of the attack, instructions. suffered swollen lip, 35-42-3-3(a)(l) (2005). § 1. 35-42-2-l(a)(l)(A) (2005). Ind.Code § Ind.Code AND a bruise on DISCUSSION DECISION fingernails, and broken some arm. her Sufficiency I. of the Evidence to Sustain Criminal Confinement 14, 2006, in cause number September On Conviction (“Cause 173415”), 49F18-0609-FD-173415 D charged Hardley with Class Hardley contends confinement, D Class felo- felony criminal enough failed to establish a substantial intimidation, A misdemeanor and Class ny liberty sus inference with Richmond’s charging information that battery, in a tain a criminal conviction and confinement part, follows: in relevant as provided, testimony regarding that her incident to incredibly is dubious. In order convict I COUNT D Hardley felony criminal con of Class Septem- Hardley, on about Samuel or finement, required the State was to estab 13, 2006, confine Eth- knowingly did ber knowingly intentionally con lish that he or Richmond, without the consent of el fined her consent. Ind. Richmond without Richmond, by Ethel Rich- holding Ethel 35-42-3-3(a)(l). § to According Code down; mond statute, a requires confinement substantial a liberty person. interference with of the (2005). § 35-42-3-1 Ind.Code COUNT III review chal Our standard of for Septem- Hardley, on or about Samuel the lenges sufficiency to the of evidence 13, 2006, touch Ethel knowingly ber did supporting a criminal conviction is well- rude, insolent, angry in a or Richmond settled: manner, that is: struck Ethel Richmond sufficiency a of reviewing In the evi- fists, which resulted with hands and/or claim, reweighs the dence neither Court redness, injury, pain, in bodily that is: credibility the nor the evidence assesses cuts, to Ethel Rich- swelling, and/or of witnesses. look the evi- the We mond^] [judgment] to the dence most favorable Appellant’s App. pp. 18-19. drawn there- reasonable inferences the if from. will affirm conviction We 14, 2007, May Following a bench trial on probative from which there is evidence Hardley guilty trial found the court could have [trier fact] reasonable battery. criminal confinement and Also beyond guilty Defendant a reason- found 14, 159522, 2007, the May in Cause trial able doubt. Hardley D guilty court found Class (Ind. 346, 750 352 Vitek v. N.E.2d felony theft3. trial sentenced 2001) omitted). (citations years of Hardley to one-and-one-half incar- however, ‘in may, apply the We theft, and, in ceration for Cause dubiosity’ impinge rule to credible years trial him to two court sentenced judge the credi trier fact’s function to year one for criminal confinement and bility witness. Love v. 761 of a battery. Although request- had (Ind.2002). 806, 810 N.E.2d the two ed that the sentences from cause im- inherently If a consecutively, presents trial sole witness numbers be served there a com- probable testimony and is that all three sentences court ordered evidence, a plete lack of circumstantial concurrently. were be served challenge theft tion. Hardley does not his convic- conviction defendant’s be reversed. lishes that he held her arms and kneeled not, only throughout where the court We do appropriate This is incident. how- ever, testimony read inherently improbable way. Richmond’s has confronted view, coerced, wholly our the evidence testimony equivocal, or establishes a struggle, Hardley somewhat fluid with testimony of incredible uncorroborated standing or kneeling at different times and dubiosity. Application of this rule is restraining in, perhaps, various applied rare and the standard to is ways, holding of which her arms. testimony incredibly whether the is so Hardley’s argument regard in this is mere- inherently improbable dubious or ly invitation reweigh evidence, person no reasonable could believe it. one that we decline. Love, (citations at 761 N.E.2d omit- Jeopardy II. Double ted). Hardley contends he did sub- Richardson v. (Ind.1999), stantially with liberty Supreme interfere Richmond’s the Indiana Court because able to held “that two or more are she was reach tele- offenses phone Richmond, however, I, ‘same offense’ in of and dial 911. violation Article Constitution, if, 14 of Section the Hardley testified that Indiana “had down [her] respect to ... actual with with the evidence up[,]” arms that could not [her] she convict, used to the up[,]” move essential elements of “get or and that had [her] “he challenged offense also establish the pinned pp. down.” Tr. 24-26. Richmond essential elements of another challenged testified the telephone “right that was Id. at offense.” 49-50. The Richardson there the beside mattress” and that she court stated the actual evidence test as was able to knock it off the hook and dial view, follows: 911. In our the record indicates that able to telephone reach the that challenged To show two offenses and despite physical dial 911 Hardley’s constitute the “same offense” in a claim confinement of her to primarily thanks the of jeopardy, double a defendant must fortuitous location of the and device then demonstrate a possibility reasonable only difficulty. with reaching Even after evidentiary that the facts used the telephone, the Richmond was unable to fact-finder to the establish essential ele- speak anyone to on the other end of the ments one offense also may have been line. any authority We are unaware of to used establish the essential elements holding complete that incapacitation is re- of a second challenged offense. quired in to order establish a substantial Id. at Supreme Indiana Court has liberty, interference with and decline im- that, explained also applying when the ac- pose requirement such a today. We do test, tual evidence question the not ability believe that Richmond’s merely is not the evidentiary whether reach telephone the indicates that her lib- facts used to establish one the essen- erty substantially was not impaired. tial elements of one offense also

Hardley also contends that Richmond’s have been used to establish one of the testimony incredibly is dubious in that she essential elements of a second chal- testified that he held her words, arms but that she lenged offense. In other under was able to dial the telephone test, and that she the Richardson actual evidence the testified that he had been but kneeling also Indiana Double Jeopardy Clause is not managed to kick her. Hardley’s argument evidentiary violated when the facts es- assumes, however, that tablishing the evidence estab- the essential elements of one Hardley’s even it did. convictions for only one or here establish

offense also all, several, battery ele- and not of the essential criminal confinement do but offense. actual of a second violate the Richardson evidence ments test. (Ind. 831, 761 N.E.2d Spivey v.

2002). the determining what evidence III. Consecutive Sentences5 essential to establish the trier fact used On the con cross-appeal, State offense, “we consider elements of an failing tends that trial court erred in information, evidence, jury final charging Hardley’s sentences in order Causes coun arguments ... and instructions consecutively. 173415be served sel.” Rutherford matter, argues an initial the dissent As (Ind.Ct.App.2007). not have able to State should been Here, a rea- we do not believe there is cross-appeal. In so raise this issue on used possibility that trial court sonable doing, the dissent first concludes that the find that the same actual evidence to failing lodge waived the issue a criminal Hardley committed contemporaneous objection. We decline to conclusion, reaching confinement. conclude, however, that doc waiver charging consider information we both from precludes raising trine the State charged, the presented.4 and evidence As It illegal issue. is well-settled any do essen- offenses not share common sentence constitutes fundamental error. elements, the bat- tial much less all. For Generally, object failure to to error charge, specifically alleged tery proceeding, preserve and thus an issue fists the striking that with hands and/or However, in waiver. appeal, on results any that touching, touching the not was may er remedy unpreserved a court an for have Richmond. As might restrained it the trial court ror when determines charge, the State the criminal confinement An im committed fundamental error. alleged Hardley that restrained specifically proper sentence constitutes fundamental down, holding not her ignored and be on re error “cannot through any physical blows. The evidence sentencing er mayWe correct view.” charges and clearly specific these supports by the court on even appeal rors trial Hardley punched, slapped, establishes that the was not below. though issue raised (evidence supporting kicked Richmond and 1229, 1232 v. Groves and he held charge) the also that (citations omitted). We (Ind.Ct.App.2005) (evidence crimi- supporting the her down sentence, if ignore illegal even cannot an charge). fact that the nal confinement The preserve the properly did fail to taken simulta- place have might crimes issue. Richard- neously dispositive is not in the on court’s dissent also relies this only analysis. The actual evidence son Hoggatt 805 N.E.2d 1281 ruling the relied question is whether fact-finder that the (Ind.Ct.App.2004), to conclude evidentiary support to on different facts thirty days if it convictions, that must act within the two we conclude State immediate release from opening or that he is entitled to party 4. Neither made statements course, are, arguments, no Department and there he has final of Correction because the jury a bench trial. instructions in already “[n]o served his sentence. Because brieff,]" reply shall be raised in new issues directly Hardley respond to the does not argument this not we will address brief, reply cross-appeal State’s issue in his 46(C). Rule appeal. Appellate Ind. but, rather, argue time to the first seems cases, an in criminal an illegal peal seeks to sentence. erroneous correct case, erroneously trial im- among that court sentence is not listed them. Hog- words, posed concurrent sentences where strict to Hoggatt other adherence crimes released gatt require had committed while do something would State to it on cause number. Id. at legally bond another do. cannot result, Hoggatt’s 1282. As a sentence Second, Hoggatt relied on court Rob than it should have been. shorter (Ind.2004), inson v. 805 N.E.2d 783 following Hog- Approximately year Id. proposition for the that a sentence chal release, motion gatt’s the State filed a by the lenge State must filed within sentence, the trial correct erroneous which Robinson, however, days. thirty does not Hoggatt granted, ordering also that for that proposition, requiring only stand custody. appeal, be taken back into Id. On challenge that a to a sentence defect not court, concluding the trial we reversed apparent facially “may only be raised that not an a motion correct error was appeal[,]” challenge direct that such an appropriate correcting vehicle for thirty brought days. must be within Id. at error, Hoggatt’s was not because sentence 787. We conclude that the State chal erroneous on its face. Id. at We 1283-84. lenge illegal in a cross-appeal,6 an sentence the opportunity concluded that for correc- facially appar even when the defect is not tion of error would be such an such, ent. As we conclude the State’s challenges brought thirty limited to within challenge Hardley’s properly sentence is days. Id. at 1284. before this court. extent, however, Hoggatt To the suggests challenge Turning that the State must to the merits of the claim, (d) illegal thirty days, sentence within we de- pro State’s Indiana Code section view, vides, “[i]f, cline to it. In our crucial part, follow in relevant after (1) question crime, is not whether the is raised being person issue arrested for one days, thirty within but whether it is raised per commits another crime ... on direct While it true that appeal. recognizance!,] is son’s own the terms of im generally direct must initiated appeals prisonment the shall be crimes served days within thirty judg- consecutively, of the challenged regardless of the order in order, Appellate ment or see Ind. Rules which the crimes are and tried sentences 14, imposition rigid a thirty-day imposed.” agree of deadline are We with the State in this context leads to results. that absurd the sentences from the two cause foremost, First concluding required and that the are numbers to be served consec thirty State such a utively must raise claim within and that the trial erred in entirely the with- ordering would leave State otherwise. reverse We and re remedy. out Indiana Code section 35-38- mand with that instructions to order Hard- 4-2 governs types rulings of from ley’s the sentences from 159522 Causes and which ap- consecutively. initiate a direct 173415be served raised, any 6. We cross-appeal are unaware of un- circumstances lee's brief. Once issues cross-appeal any der which a identically by issue is treated are treated to issues raised the 46(D). differently by appellant, appellant. Appellate than raised the See Ind. Rule Moreover, Appellate and the Indiana Rules of imposition thirty- Procedure as with the of a deadline, support equal Appellate day concluding cross-appeal treatment. Indiana that a 9(D) provides appellee may part appeal” Rule that an issue is not of a “direct would cross-appeal filing appeal remedy without a notice leave the without in cases such by raising cross-appeal appel- the issues in its as this. slapping af- that alleges of the trial court is the act her. It he judgment fists, and re- her “with hands part, in struck which part, in reversed firmed and/or bodily pain, in is: injury, resulted instructions. manded with redness, swelling ...” In cuts ordi- and/or MATHIAS, J., concurs. a nary parlance slap is administered a Furthermore, although hand not a fist. SULLIVAN, S.J., opinion. dissents with slap the knocked Richmond to the mat- SULLIVAN, concurring Judge, Senior depicted it was blow single tress as a and in part dissenting part. and than any would not result more the lips degree pain swollen which respect I Part I of the concur with Richmond said However, respectfully slap. was caused majority opinion. I Richmond, however inju- II sustained other to Parts III. dissent as beating place

ries from the which took II. during the confinement. Jeopardy

Double circumstances, these I am Under unable say degree with a of assurance Hardley claims that under the “actual separately compartmentalized trial court test of 717 evidence” Richardson of the (Ind.1999) slap the evidence from the evidence convictions N.E.2d 32 the two beating during of the administered I jeopardy violate double considerations. It confinement. to me that appears agree. court, reaching determination its evidentiary maintains that the The State totality charges, the two considered the charging information “dem- facts and the events and actions of the defendant as separate (Appel- two onstrate incidents.” continuing incident. 11). supports Br. The State lee’s concluding position by Here, inas Bruce v. “exclusively on the was based conviction (Ind.Ct.App.2001), at 592 Richmond, of Ms. while the Crim- slapping injuries beating-con- during the sustained exclusively on inal was based Confinement slap. unrelated I am un- finement to the thereafter, Rich- happened when Ms. what say that no able to there is reasonable (Id.). call attempted to 911” mond evidentiary that the facts possibility same so used to both convictions. appear support conclusions do not to be were not These Bradley v. N.E.2d justified. charge obviously Although See State, (Ind.2007); Hardley’s v. 850 N.E.2d for does not refer to Ransom (Ind.Ct.App.2006).7 Richmond it 491 at 504 kicking of is not restricted Furthermore, appropriate cog- to take Although published prece- it is I find no Indiana opinion separate Justice nizance of Boehm's upon directly point, I no basis dent discern State, Guyton 1141 at in v. 771 N.E.2d apply evidence” a different "same which to (Ind.2002). opinion he seq. However, essentially the rationale for this court's cable law. unless the court states State, opinion in Alexander v. 768 N.E.2d 971 differentiating evidentiary analysis its there is (Ind.Ct.App.2002), denied. upon no basis which a transfer conclusion could be reached with assurance that the court did not respect 8. With to whether the trial court’s consider some of the same evidence as it battery conviction here for as well as for charges. related to the two It is for this confinement jeopardy runs afoul of double reason that I am unable to concur in affir- principles, acknowledge I would trial mance of both conviction. judges presumed correctly are apply appli- of an erroneous view of considerations fundamen right challenge or forfeit is matters, at 1284. tal fairness in such I have altered N.E.2d sentence.” 805 that I my position to the extent now feel by- this result seeks to avoid The State may unreasonably delay not that the State State, N.E.2d 169 to Barnett v. 834 citing presenting question. such It should not be In that case a different (Ind.Ct.App.2005). permitted any length to “wait of time it State, cited v. panel of this court Groves Snider, appeal..”. chooses to See State v. (Ind.Ct.App.2005) which 823 N.E.2d 1229 (Ind.Ct. 657, 3463254, 892 N.E.2d 2008 WL State, 417 upon Morgan v. in turn relies App.), published order a unanimous for (Ind.Ct.App.1981) N.E.2d 1154 panel of court. The rationale of Hog improper sentence is proposition that an just gatt supra v. constitutes a ig- cannot be fundamental error which proper resolution to the issue before us. However, proposi- review. nored on tion, stated, complete is not a recitation as For the reasons stated I would vacate applicable law. of conviction but would affirm the says appellate that on review

Morgan conviction and sentence the confine- addressed. It states the issue is ment conviction and would also affirm the however, that if way qualification, even of imposed dispa- in the concurrent sentences at the trial court the issue was not raised rate cause numbers. sentencing “may error be cor-

level the 417 N.E.2d at (emphasis supplied)

rected”

1156, appears facially. error when the light my reading Morgan,

In of as the

authority Barnett and deci- for the Groves opinion Hog- I conclude that the

sions

gatt applicable remains the law for situa- tion such as now before us.9 SMITH, Appellant- Michael A. stating, In I am not unaware that so Defendant, notwithstanding that I.C. 35-38-4-2 does v. permit appeal by the State for error, sentencing cases have held sen- Indiana, Appellee-Plaintiff. STATE tencing error be raised for the first No. 49A02-0710-CR-861. In appeal. Stephens time on 818 (Ind.2004) Supreme N.E.2d 936 our Court Appeals of Court of Indiana. acknowledged that line of cases and with- Sept. 2008. endorsing holdings said that out those “precedent sentencing dictates” that before the properly

issue was Court. opinion at author of this

N.E.2d 940. The

did likewise in Abron v. (Ind.Ct.App.1992). light Hoggatt (the brief, reply Hardley opines #3415 confinement convic- that even his tion) that the sentences in the if we were to hold Because I would vali- less credit time. served two cause numbers should have been imposed, concurrent date the sentences as i.e. consecutively, he has been incarcerated sentences, opinion express an as to I do not equivalent time to consecutive sentences viewpoint. conviction) (the theft on # 9522 In that notes et. jury as to a trial. opposed test to a bench trial effectively Supreme aban- that the Court has fact, opinion v. point of in Richardson of Justice the Richardson test in favor doned (Ind.1999) which estab- 717 N.E.2d five Richardson enunciation Sullivan's test, same evidence does not use lished the in which two convictions not situations jury restricting application tri- language its One of is where crime coexist. these phrases fact” and It uses the "trier of als. an very of the act as element "consists same Many, if 717 N.E.2d at 53. "fact-finder.” (Emphasis supplied). Rich- other].” [the most, subsequent the matter use cases on not (Sullivan supra concurring) J. ardson phrasing. similar at 55. enunciated situation This Accordingly, thirty I would reverse the convic- in day period, allowable file a Battery felony as a A tion for Class and Motion to Correct Erroneous Sentence. It upon vacate the concurrent sentence that was not until the response State filed its affirm, I conviction.8 would as does the appeal brief in this the issue was majority, day the conviction and 730 sen- raised. upon charge. tence the Confinement v.State, (Ind. Hoggatt 805 N.E.2d 1281 Ct.App.2004), reh. 810 N.E.2d 737 dealt III. analogous There, with an situation. defen Consecutive Sentences dant was out on bond from an unrelated charge when he committed another of The State notes that less than one judgment fense. The upon conviction month after he had been released his each of the cause numbers failed to reflect recognizance upon own an unrelated Class that the sentences were to be served con felony D charge, Hardley Theft committed secutively. Accordingly Department the confinement here involved. of Correction ran the sentences concur The State is therefore correct that I.C. rently and Hoggatt released at the end of 35-50-l-2(d) specifies that the Confine- later, year the indicated time. One ment sentence must be ordered consecu- State filed a Motion Sentencing to Correct day tive to the 910 sentence the theft Error which the granted. Hoggatt case under Cause Number 49F18-0608- was ordered to custody be taken into FD-159522. majority opinion agrees The serve the additional 514 which would with the orders the sentences have been served under consecutive sen the two cause numbers to be served con- tences. secutively. This court held that a motion to case, correct In this at the sentencing hearing only erroneous sentence is appropriate during which the sentences both cause where the sentence is “erroneous on its numbers were considered and imposed, face”. Robinson v. 805 N.E.2d 783 requested the sentences “under (Ind.2004). Hoggatt court further each cause number to ob- be served consecu- (Tr. 12). tively.” However, served that whether the defendant was the State did free on bond premise request apparent its was not from upon the mandato- ry face sentencing judgment consecutive of the provision sentence and that I.C. 35-50-l-2(d). any event therefore the facially the trial court sentence was not er- explicitly Where, here, made it clear that roneous. the sentences as the error must were concurrent and the State did not discovered resort to matters not on respond or react pointing order, out the statu- the face of the sentencing and it is tory requirement relief, consecutive sen- State which is seeking “the tences; thereafter, nor did the State with- State must take thirty days action within

Case Details

Case Name: Hardley v. State

Court Name: Indiana Court of Appeals

Date Published: Sep 26, 2008

Citation: 893 N.E.2d 1140

Docket Number: 49A05-0801-CR-29

Court Abbreviation: Ind. Ct. App.