Volume 39 Issue 4 January 27, 2012

Jones v. United States, No. 10–1259, 565 U.S. __ (Jan. 23, 2012).

Warrantless placement of a wireless GPS monitor on underbody of auto was a Fourth Amendment “search.”

Hill v. State, No. 45S03-1105-PC-283, __ N.E.2d __ (Ind., Jan. 24, 2012).

Standard for assessing effective performance of Post-Conviction Rule 2 counsel is the Baum “due-course-of-law” standard, not the two-prong Sixth Amendment Strickland standard.

Bowling v. State, No. 35A04-1107-CR-407, __ N.E.2d __ (Ind. Ct. App., Jan. 24, 2012).

Guilty plea judge’s failure to advise defendant of right to appeal sentence did not make agreed waiver of the right to appeal open plea sentence unenforceable, when record showed defendant had read the waiver agreement, gone over it with defense counsel, and agreed to it.

Long v. State, No. 49A02-1105-CR-381, __ N.E.2d __ (Ind. Ct. App., Jan. 25, 2012).

Master commissioner, given the same statutory authority as a magistrate, was accordingly not authorized to impose sentence following a guilty plea.

Ind. Dept. of Ins. v. Everhart, No. 84S01-1105-CV-28, ___ N.E.2d ___ (Ind., Jan. 20, 2012).

The Indiana Patient’s Compensation Fund was not entitled to a reduction in the award of damages to account for the chance that the plaintiff would have died even in the absence of the physician’s negligence, because of how the trial court’s particular findings of fact interact with the rules for calculating a set-off.

Jones v. United States, No. 10–1259, 565 U.S. __ (Jan. 23, 2012).

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and SOTOMAYOR, JJ., joined.

            We decide whether the attachment of a Global-Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.

            In 2004 respondent Antoine Jones, owner and operator of a nightclub in the District of Columbia, came under suspicion of trafficking in narcotics and was made the target of an investigation by a joint FBI and Metropolitan Police Department task force. Officers employed various investigative techniques, including visual surveillance of the nightclub, installation of a camera focused on the front door of the club, and a pen register and wiretap covering Jones’s cellular phone. Based in part on information gathered from these sources, in 2005 the Government applied to the United States District Court for the District of Columbia for a warrant authorizing the use of an electronic tracking device on the Jeep Grand Cherokee registered to Jones’s wife. A warrant issued, authorizing installation of the device in the District of Columbia and within 10 days.

            On the 11th day, and not in the District of Columbia but in Maryland, [footnote omitted]  agents installed a GPS tracking device on the undercarriage of the Jeep while it was parked in a public parking lot. Over the next 28 days, the Government used the device to track the vehicle’s movements, and once had to replace the device’s battery when the vehicle was parked in a different public lot in Maryland. By means of signals from multiple satellites, the device established the vehicle’s location within 50 to 100 feet, and communicated that location by cellular phone to a Government computer. It relayed more than 2,000 pages of data over the 4-week period.

            The Government ultimately obtained a multiple-count indictment charging Jones and several alleged coconspirators with, as relevant here, conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of 21 U. S. C. §§841 and 846. Before trial, Jones filed a motion to suppress evidence obtained through the GPS device. The District Court granted the motion only in part, suppressing the data obtained while the vehicle was parked in the garage adjoining Jones’s residence. 451 F. Supp. 2d 71, 88 (2006). It held the remaining data admissible, because “‘[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.’ ” Ibid. (quoting United States v. Knotts, 460 U. S. 276, 281 (1983)). Jones’s trial in October 2006 produced a hung jury on the conspiracy count.

            In March 2007, a grand jury returned another indictment, charging Jones and others with the same conspiracy. The Government introduced at trial the same GPS-derived locational data admitted in the first trial, which connected Jones to the alleged conspirators’ stash house that contained $850,000 in cash, 97 kilograms of cocaine, and 1 kilogram of cocaine base. The jury returned a guilty verdict, and the District Court sentenced Jones to life imprisonment.

            . . . .

            . . . We hold that the Government’s installation of a GPS device on a target’s vehicle, [footnote omitted] and its use of that device to monitor the vehicle’s movements, constitutes a “search.”

            It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.  . . . The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to “the right of the people to be secure against unreasonable searches and seizures”; the phrase “in their persons, houses, papers, and effects” would have been superfluous.

            Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century.  . . . .

            Our later cases, of course, have deviated from that exclusively property-based approach. In Katz v. United States, 389 U. S. 347, 351 (1967), we said that “the Fourth Amendment protects people, not places,” and found a violation in attachment of an eavesdropping device to a public telephone booth. Our later cases have applied the analysis of Justice Harlan’s concurrence in that case, which said that a violation occurs when government officers violate a person’s “reasonable expectation of privacy,” id., at 360. See, e.g., Bond v. United States, 529 U. S. 334 (2000); California v. Ciraolo, 476 U. S. 207 (1986); Smith v. Maryland, 442 U. S. 735 (1979).

            The Government contends that the Harlan standard shows that no search occurred here, since Jones had no “reasonable expectation of privacy” in the area of the Jeep accessed by Government agents (its underbody) and in the locations of the Jeep on the public roads, which were visible to all. But we need not address the Government’s contentions, because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo, supra, at 34. As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates.  [Footnote omitted.]  Katz did not repudiate that understanding.  . . . .

            . . . .

            The second “beeper” case, United States v. Karo, 468 U. S. 705 (1984), does not suggest a different conclusion. There we addressed the question left open by Knotts, whether the installation of a beeper in a container amounted to a search or seizure. 468 U. S., at 713. As in Knotts, at the time the beeper was installed the container belonged to a third party, and it did not come into possession of the defendant until later. 468 U. S., at 708. Thus, the specific question we considered was whether the installation “with the consent of the original owner constitute[d] a search or seizure . . . when the container is delivered to a buyer having no knowledge of the presence of the beeper.” Id., at 707 (emphasis added). We held not. The Government, we said, came into physical contact with the container only before it belonged to the defendant Karo; and the transfer of the container with the unmonitored beeper inside did not convey any information and thus did not invade Karo’s privacy. See id., at 712. That conclusion is perfectly consistent with the one we reach here. Karo accepted the container as it came to him, beeper and all, and was therefore not entitled to object to the beeper’s presence, even though it was used to monitor the container’s location. Cf. On Lee v. United States, 343 U. S. 747, 751–752 (1952) (no search or seizure where an informant, who was wearing a concealed microphone, was invited into the defendant’s business). Jones, who possessed the Jeep at the time the Government trespassorily inserted the information-gathering device, is on much different footing.

            . . . .

            The concurrence begins by accusing us of applying“18th-century tort law.” Post, at 1. That is a distortion. What we apply is an 18th-century guarantee against unreasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted. The concurrence does not share that belief. It would apply exclusively Katz’s reasonable-expectation-of-privacy test, even when that eliminates rights that previously existed.

            The concurrence faults our approach for “present[ing] particularly vexing problems” in cases that do not involve physical contact, such as those that involve the transmission of electronic signals. Post, at 9. We entirely fail to understand that point. For unlike the concurrence, which would make Katz the exclusive test, we do not make trespass the exclusive test. Situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.

            . . . .

            The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment because “officers had reasonable suspicion, and indeed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.” Brief for United States 50–51. We have no occasion to consider this argument. The Government did not raise it below, and the D. C. Circuit therefore did not address it.  . . . .

SOTOMAYOR, J., concurring:

            I join the Court’s opinion because I agree that a search within the meaning of the Fourth Amendment occurs, at a minimum, “[w]here, as here, the Government obtains information by physically intruding on a constitutionally protected area.”  . . . .

            . . . .

            Nonetheless, as JUSTICE ALITO notes, physical intrusion is now unnecessary to many forms of surveillance. Post, at 9–12. With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones. See United States v. Pineda-Moreno, 617 F. 3d 1120, 1125 (CA9 2010) (Kozinski, C. J., dissenting from denial of rehearing enbanc). In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion’s trespassory test may provide little guidance. But “[s]ituations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.” Ante, at 11. As JUSTICE ALITO incisively observes, the same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations. Post, at 10–11. Under that rubric, I agree with JUSTICE ALITO that, at the very least, “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” Post, at 13.

            In cases involving even short-term monitoring, some unique attributes of GPS surveillance relevant to the Katz analysis will require particular attention. GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.  . . . The Government can store such records and efficiently mine them for information years into the future.  . . . And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility.” Illinois v. Lidster, 540 U. S. 419, 426 (2004).

            . . . .

            I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. I do not regard as dispositive the fact that the Government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques.  . . . I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent “a too permeating police surveillance,” United States v. Di Re, 332 U. S. 581, 595 (1948).  [Note omitted.]

            More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.  . . .This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellullar providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Gov­ernment of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

JUSTICE ALITO, with whom JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE KAGAN join, concurring in the judgment:

            This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a 21st-century surveillance technique, the use of a Global Positioning System (GPS) device to monitor a vehicle’s movements for an extended period of time. Ironically, the Court has chosen to decide this case based on 18th-century tort law. By attaching a small GPS device [footnote omitted] to the underside of the vehicle that respondent drove, the law enforcement officers in this case engaged in conduct that might have provided grounds in 1791 for a suit for trespass to chattels.  [Footnote omitted.]  And for this reason, the Court concludes, the installation and use of the GPS device constituted a search. Ante, at 3–4.

            This holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial.

            I would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.

            . . . .

            . . . [T]he Court’s reliance on the law of trespass will present particularly vexing problems in cases involving surveillance that is carried out by making electronic, as opposed to physical, contact with the item to be tracked. For example, suppose that the officers in the present case had followed respondent by surreptitiously activating a stolen vehicle detection system that came with the car when it was purchased. Would the sending of a radio signal to activate this system constitute a trespass to chattels? Trespass to chattels has traditionally required a physical touching of the property. See Restatement (Second) of Torts §217 and Comment e (1963 and 1964); Dobbs, supra, at 123. In recent years, courts have wrestled with the application of this old tort in cases involving unwanted electronic contact with computer systems, and some have held that even the transmission of electrons that occurs when a communication is sent from one com­puter to another is enough.  . . . But may such decisions be followed in applying the Court’s trespass theory? Assuming that what matters under the Court’s theory is the law of trespass as it existed at the time of the adoption of the Fourth Amendment, do these recent decisions represent a change in the law or simply the application of the old tort to new situations?

            . . . .

            The Katz expectation-of-privacy test avoids the problems and complications noted above, but it is not without its own difficulties. It involves a degree of circularity, see Kyllo, 533 U. S., at 34, and judges are apt to confuse their own expectations of privacy with those of the hypothetical reasonable person to which the Katz test looks. See Minnesota v. Carter, 525 U. S. 83, 97 (1998) (SCALIA, J., concurring). In addition, the Katz test rests on the as­sumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations. But technology can change those expectations. Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes. New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.  [Footnote omitted.]

            On the other hand, concern about new intrusions on privacy may spur the enactment of legislation to protect against these intrusions. This is what ultimately happened with respect to wiretapping.  . . . .

            Recent years have seen the emergence of many new devices that permit the monitoring of a person’s movements. In some locales, closed-circuit television video monitoring is becoming ubiquitous. On toll roads, automatic toll collection systems create a precise record of the movements of motorists who choose to make use of that convenience. Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car’s location at any time so that roadside assistance may be provided if needed and the car may be found if it is stolen.

            Perhaps most significant, cell phones and other wireless devices now permit wireless carriers to track and record the location of users—and as of June 2011, it has been reported, there were more than 322 million wireless devices in use in the United States.  [Footnote omitted.]  For older phones, the accuracy of the location information depends on the density of the tower network, but new “smart phones,” which are equipped with a GPS device, permit more precise tracking. For example, when a user activates the GPS on such a phone, a provider is able to monitor the phone’s location and speed of movement and can then report back real-time traffic conditions after combining (“crowdsourcing”) the speed of all such phones on any particular road.  [Footnote omitted.]  Similarly, phone-location-tracking services are offered as “social” tools, allowing consumers to find (or to avoid) others who enroll in these services. The availability and use of these and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements.

            In the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken. The surveillance at issue in this case—constant monitoring of the location of a vehicle for four weeks—would have required a large team of agents, multiple vehicles, and perhaps aerial assistance.  [Footnote omitted.]  Only an investigation of unusual importance could have justified such an expenditure of law enforcement resources. Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap. In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. See, e.g., Kerr, 102 Mich. L. Rev., at 805–806. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.

            To date, however, Congress and most States have not enacted statutes regulating the use of GPS tracking technology for law enforcement purposes. The best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.

            Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. See Knotts, 460 U. S., at 281–282. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant.  [Footnote omitted.] We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously available techniques.

            For these reasons, I conclude that the lengthy monitoring that occurred in this case constituted a search under the Fourth Amendment. I therefore agree with the majority that the decision of the Court of Appeals must be affirmed.

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Hill v. State, No. 45S03-1105-PC-283, __ N.E.2d __ (Ind., Jan. 24, 2012).


            Here, the defendant’s counsel filed a Post-Conviction Rule 2 petition, seeking permission to file a belated notice of appeal. The trial court denied permission, and counsel did not timely appeal this denial. Subsequently, defendant, through different counsel, filed a Post-Conviction Rule 1 petition, alleging that his Post-Conviction Rule 2 counsel was ineffective for failing to timely appeal the trial court’s denial of permission to file a belated notice of appeal.

            We hold that the appropriate standard for judging the performance of Post-Conviction Rule 2 counsel is the standard set forth in Baum v. State, 533 N.E.2d 1200 (Ind. 1989). We further hold that Post-Conviction Rule 2 counsel in this case did not violate Baum because she represented the defendant in a procedurally fair setting which resulted in a judgment of the court.

            . . . .

            . . . [T]here is no constitutional right to counsel in post-conviction, or collateral review, proceedings under either the federal or the state constitution. Graves v. State, 823 N.E.2d 1193, 1196 (Ind. 2005). Accordingly, this Court has “explicitly declined to apply the well-known standard for trial and appellate counsel.” Id. Thus, instead of using the “rigorous standard set forth in Strickland,” courts instead judge post-conviction counsel by a “lesser standard” based on due-course-of-law principles. Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989). When evaluating post-conviction counsel, courts inquire whether “counsel in fact appeared and represented the petitioner in a procedurally fair setting which resulted in a judgment of the court.” Id. This standard for judging post-conviction counsel, commonly

referred to as the “Baum standard,” has been applied routinely in the context of counsel’s performance during Post-Conviction Rule 1 (P-C.R. 1) proceedings. See, e.g., Matheney v. State, 834 N.E.2d 658, 661–63 (Ind. 2005); Graves, 823 N.E.2d at 1197; Waters v. State, 574 N.E.2d 911, 912 (Ind. 1991).

The question remains: which standard—Strickland or Baum—is appropriate for judging the performance of counsel in conjunction with P-C.R. 2 petitions and proceedings? The answer, unfortunately, is not straightforward as P-C.R. 2 straddles two distinct legal spheres: direct review and collateral review. On one hand, P-C.R. 2 deals with direct appeals of convictions of sentences (albeit “belated” ones); on the other hand, P-C.R. 2 is grouped with the collateral review rules.

            In determining which standard applies to the performance of P-C.R. 2 counsel,2 the Court of Appeals concluded that “[b]ecause Hill is seeking post-conviction relief premised upon Attorney Reed’s representation, and not his trial counsel’s representation, the Baum standard is applicable in this case, not the Strickland standard employed by the post-conviction court.” Hill II, slip op. at 5. We agree with the Court of Appeals that P-C.R. 2 counsel’s performance should be measured under the Baum, and not Strickland, standard. We write to explain the underlying bases for this conclusion.

            First, a P-C.R. 2 petition and hearing are distinct from the filings and proceedings on direct appeal.3 It is true that P-C.R. 2 deals with belated notices of appeals, among other things. P-C.R. 2(1). In fact, once a defendant files a belated notice of appeal following a meritorious P-C.R. 2 petition, the defendant is in the same position as he would have been had he filed a timely notice of appeal. See Gallagher v. State, 274 Ind. 235, 239, 410 N.E.2d 1290, 1292 (1980); see also Gutermuth, 868 N.E.2d at 434 (stating that defendants who filed belated notices of appeal should be neither “rewarded” nor “penalized” for their delay). But the focus of P-C.R. 2 is whether a defendant should be granted permission to file a belated notice of appeal, and the trial court inquires into the defendant’s lack of fault and his diligence to make that determination. P-C.R. 2(1)(a)(2), (3). The P-C.R. 2 petition or hearing, on the other hand, should not include the underlying merits of the appeal itself. For example, the trial court conducting a P-C.R. 2 hearing would not address a substantive challenge to the defendant’s sentence—that issue, if the P-C.R. 2 petition is granted, is left for the appellate court to decide. Notably, this Court has described P-C.R. 2 as a “vehicle” or “avenue” to obtain a direct appeal. Howard v. State, 653 N.E.2d 1389, 1390 (Ind. 1995). This signifies that although P-C.R. 2 is a means or a way of getting a direct appeal, its proceedings are not equal to those of a direct appeal. See Greer v. State, 685 N.E.2d 700, 702 (Ind. 1997) (“P-C.R. 2(1) provides a method for seeking permission for belated consideration of appeals . . . .” (emphasis added)).

            Second, this Court’s decision in Kling v. State, 837 N.E.2d 502 (Ind. 2005), demonstrates that P-C.R. 2 is more of a collateral review, versus direct review, rule. In Kling, this Court addressed “the relative roles and responsibilities of County Appellate Public Defenders and the State Public Defender in handling belated appeals of sentences imposed following open pleas.” 837 N.E.2d at 504 (emphases omitted). We first noted, as a background matter, that County Appellate Public Defenders represent indigent criminal defendants in direct appeals whereas the State Public Defender handles post-conviction relief. Id. In determining who was responsible for providing representation in P-C.R. 2 proceedings, this Court ultimately decided on the State Public Defender. Id. at 507. Specifically, this Court held that when the State Public Defender is representing a defendant in a P-C.R. 1 proceeding, the State Public Defender shall assess which issues may be raised in a P-C.R. 1 petition and which issues should be raised in a P-C.R. 2 petition and consult with the defendant accordingly. Id. “If a person so advised by the State Public Defender decides to seek relief immediately under P-C.R. 2 . . . , the State Public Defender should represent the defendant in filing that P-C.R. 2 petition, at any hearing on that petition, and, if relief is denied, in the appeal of that decision.” Id. We further held that if a P-C.R. 2 petition is granted, the County Appellate Public Defender then takes over and handles the belated direct appeal. Id. at 508. Thus, P-C.R. 2 proceedings are treated as collateral review, at least in terms of who handles those cases.

            Finally, the responsibilities required of P-C.R. 2 counsel and direct appellate counsel differ in one very important respect. In Mosley v. State, 908 N.E.2d 599, 608 (Ind. 2009), this Court held that in any direct criminal appeal, as a matter of right, counsel must submit an advocate brief. This is true even if counsel regards the defendant’s claims as frivolous. Id. In contrast, this Court has held that the State Public Defender does not have to file a P-C.R. 2 petition if he determines that the “petition is not meritorious or in the interest of justice.” Kling, 837 N.E.2d at 507. We believe that the greater responsibility imposed on direct appellate counsel correlates to the more rigorous Strickland standard governing direct appellate counsel’s performance. Likewise, we believe the lesser responsibility of P-C.R. 2 counsel parallels the less cumbersome Baum standard governing collateral review counsel.

            For the foregoing reasons, we hold that the correct standard to judge P-C.R. 2 counsel is under Baum, and not under Strickland.

Shepard, C.J., and Dickson, J., concur.

Sullivan, J., concurs in result with separate opinion:

            The Court, in footnote 4, correctly points out that “[i]f a P-C.R. 2 petition is granted, counsel’s performance in conjunction with the direct (albeit belated) appellate review of a defendant’s claims is judged under Strickland.” Slip Op. 8 n.4. This is so because the Equal Protection and Due Process Clauses guarantee an appellant in a criminal case the right to the effective assistance of counsel in a first appeal of right. Evitts v. Lucey, 469 U.S. 387, 396-97 (1985); Mosley v. State, 908 N.E.2d 599, 604 (Ind. 2009). And it is well settled that we measure effective assistance of counsel on appeal by the two-pronged standard first enunciated in Strickland. Bieghler v. State, 690 N.E.2d 188, 192-93 & n.1 (Ind. 1997) (citing Lissa Griffin, The Right to Effective Assistance of Appellate Counsel, 97 W. Va. L. Rev. 1, 20 n.120 (1994)).

This limits the issue in this case to the very narrow question of whether a person convicted of a crime is entitled to Strickland counsel during proceedings litigating whether a belated appeal may be pursued or not. The Court says no – Baum counsel is enough – but I respectfully disagree. 

            . . . .

            Believing that federal constitutional law requires that we apply Strickland and that, even if it doesn’t, we should apply Strickland to infuse Art. VII, § 6, with the full measure of protection our citizens deserve, I analyze counsel’s performance here through Strickland’s two-pronged standard. While I find counsel’s performance to have been deficient in failing to meet the filing deadline, I find no prejudice in that Hill has not met the diligence requirement of P-C.R. 2 and so his appeal would not have prevailed as a matter of law. For this reason, I concur in the result of the Court’s opinion.

Rucker, J., dissents with separate opinion.

            I agree with the majority that the appropriate standard for judging the performance of Post-Conviction Rule 2 counsel is the standard set forth in Baum v. State, 533 N.E.2d 1200 (Ind. 1989). And the majority makes a respectable though intricate argument that Hill’s counsel was not ineffective under Baum. But at the end of the day all Hill seeks is appellate review of his fifty-two year sentence, something he has thus far been denied. Our rules should not be applied so rigorously or our case law dissected so finely as to deny a defendant in Hill’s position the opportunity to make his best effort in challenging the sentence imposed.

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Bowling v. State, No. 35A04-1107-CR-407, __ N.E.2d __ (Ind. Ct. App., Jan. 24, 2012).


            In 2006, Jessica Bowling agreed to plead guilty to class A felony neglect of a dependent, and the State agreed to a cap of forty years on the executed portion of her sentence. Along with the plea agreement, Bowling signed a written advisement and waiver of rights that contained the following provision: “By pleading guilty you have agreed to waive your right to appeal your sentence so long as the Judge sentences you within the terms of your plea agreement.” Appellant‟s App. at 22. The trial court sentenced Bowling to forty years, executed.

            In 2011, Bowling filed a petition for permission to file a belated notice of appeal pursuant to Indiana Post-Conviction Rule 2. The State argued that Bowling waived her right to appeal her sentence pursuant to the aforementioned provision. The trial court agreed with the State and denied Bowling’s petition. Bowling appeals, arguing that the waiver should not be enforced because it is a misstatement of law. We conclude that the waiver is valid and therefore affirm the trial court.

            . . . .

            The language in paragraph 10 is similar to that in Creech [v. State, 887 N.E.2d 73 (Ind. 2008)].  [Footnote omitted.]  There, the defendant’s written plea agreement contained the following provision:

I understand that I have a right to appeal my sentence if there is an open plea. An open plea is an agreement which leaves my sentence to the Judge’s discretion. I hereby waive my right to appeal my sentence so long as the Judge sentences me within the terms of my plea agreement.

887 N.E.2d at 74. Our supreme court held that this “express language” was enforceable. Id. at 76. In so holding, the court rejected Creech’s argument that because the trial court erroneously advised Creech at the end of his sentencing hearing that he retained the right to appeal his sentence his waiver was not knowing and voluntary. The supreme court noted that “most waivers are effective when set out in writing and signed,” and “[t]he content and language of the plea agreement itself, as well as the colloquy where necessary, govern the determination as to the validity of the waiver.” Id. (citations and quotations omitted).

            Bowling attempts to distinguish Creech by arguing that in her case the trial court failed to advise her that she had a right to appeal her sentence. However, in Creech, the trial court’s erroneous statement to Creech at the sentencing hearing indicating that he had the right to appeal his sentence served as the basis for Creech’s argument on appeal that the waiver was not knowing and voluntary.  [Footnote omitted.]  Here, Bowling cannot claim that she was confused by any statement provided by the trial court because the trial court did not provide her with incorrect information. Thus, the difference between the cases that Bowling highlights actually reveals that her argument is weaker than Creech’s.

            In any event, “’a specific dialogue with the judge is not a necessary prerequisite to a valid waiver of appeal, if there is other evidence in the record demonstrating a knowing and voluntary waiver.’” Id. (quoting U.S. v. Agee, 83 F.3d 882, 886 (7th Cir. 1996)). Here, during the guilty plea hearing, Bowling agreed that she had received the Advisement, had read it, had gone over it with her attorney, understood it, and signed it. Appellant’s App. at 10

43-44. We conclude that the content and language of the Advisement and the trial court’s discussion of it with Bowling at the guilty plea hearing are sufficient to support enforcement of the waiver in paragraph 10.  [Footnote omitted.]

            Although we prefer the waiver language in Creech over that in paragraph 10, paragraph 10 sufficiently informs a defendant that although she has a right to appeal an open sentence, she is agreeing to waive that right as part of her plea agreement. That said, to avoid even the possibility of confusion, such a waiver provision would be improved by using the following language or language similar thereto: “As a condition of entering this plea agreement, I knowingly and voluntarily agree to waive my right to appeal my sentence on the basis that it is erroneous or for any other reason so long as the Judge sentences me within the terms of my plea agreement.” In addition, it would be helpful to include a waiver of the right to appeal an open sentence in the plea agreement itself, as well as any written advisement and waiver of rights that is executed along with the plea agreement.

MAY, J., and BROWN, J., concur.

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Long v. State, No. 49A02-1105-CR-381, __ N.E.2d __ (Ind. Ct. App., Jan. 25, 2012).


            On February 14, 2011, Long pleaded guilty before Master Commissioner Teresa Hall to Class A misdemeanor operating a vehicle while intoxicated and being a habitual substance offender in exchange for the State’s dismissal of the other two charges. The written plea agreement provided for an executed one-year sentence for the Class A misdemeanor and a three-year enhancement for being a habitual substance offender, for an aggregate sentence of four years. The agreement left to the court’s discretion the amount of the three-year enhancement that would be executed and Long’s placement for the executed sentence. Appellant’s App. p. 33; Tr. p. 9. Master Commissioner Hall accepted the plea agreement and set the matter for sentencing. At the sentencing hearing on February 28, 2011, Master Commissioner Hall imposed a sentence of one year executed in the Marion County Jail on the Class A misdemeanor enhanced by one year executed in the Marion County Jail and two years executed in the Marion County Community Corrections Work Release Program for being a habitual substance offender.

            On March 4, 2011, the presiding judge, Linda Brown, issued an order declining to approve Master Commissioner Hall’s sentencing recommendation and resetting the matter for sentencing. At the sentencing hearing on March 31, 2011, Judge Brown imposed a sentence of one year executed in the Marion County Jail on the Class A misdemeanor enhanced by two years executed in the Department of Correction and one year executed in the Marion County Community Corrections Work Release Program. Long now appeals.


            Long contends that Master Commissioner Hall was statutorily authorized to impose his sentence and that Judge Brown thus erred by rejecting that sentence. Indiana Code section 33-33-49-16(e) (2004) provides that a Marion County master commissioner “has the powers and duties prescribed for a magistrate under IC 33-23-5-5 through IC 33-23-5-9.” Indiana Code chapter 33-23-5 grants various powers to magistrates but generally precludes them from entering a final appealable order. Boyer v. State, 883 N.E.2d 158, 160 (Ind. Ct. App. 2008); see Ind. Code § 33-23-5-8(2) (2008) (“Except as provided under sections 5(14) and 9(b) of this chapter, a magistrate . . . may not enter a final appealable order unless sitting as a judge pro tempore or a special judge.”). The principal exception to this rule is Indiana Code section 33-23-5-9(b) (2004), which provides:

If a magistrate presides at a criminal trial, the magistrate may do the following:

(1) Enter a final order.

(2) Conduct a sentencing hearing.

(3) Impose a sentence on a person convicted of a criminal offense.

See also Ind. Code § 33-23-5-5(14) (2008) (“A magistrate may . . . [e]nter a final order, conduct a sentencing hearing, and impose a sentence on a person convicted of a criminal offense as described in section 9 of this chapter.”).

            Master Commissioner Hall did not preside at a criminal trial. Instead, Long pleaded guilty, and Master Commissioner Hall presided at the guilty plea hearing. Long cites Boyer v. State, 883 N.E.2d 158 (Ind. Ct. App. 2008), to support his assertion that Master Commissioner Hall was statutorily authorized to sentence him and enter a final order. In Boyer, however, the magistrate presided at the defendant’s criminal trial, id. at 160, and this Court held that Section 33-23-5-9(b) gives “a magistrate presiding over a criminal trial the power to enter a final order and to enter a judgment of conviction,” id. at 161-62. The facts in Boyer are thus unlike the facts presented here, where Master Commissioner Hall presided at a guilty plea hearing and not a criminal trial.

            Long also cites Ivy v. State, 947 N.E.2d 496 (Ind. Ct. App. 2011), for support. In that case, the defendant pleaded guilty to Class B felony burglary and being a habitual offender, and the State agreed to dismiss the remaining charges. The plea agreement set a sixteen-year executed sentence and contained a provision in which the defendant agreed that the sentence was appropriate and waived any request to modify his sentence. The trial court sentenced the defendant to sixteen years in the Department of Correction but noted that it would consider alternative placement for the last two years. The defendant later filed a motion to modify his sentence in Marion Superior Court. A master commissioner denied the motion. On appeal, the defendant argued that the master commissioner did not have the authority to rule on his motion. The State responded that the terms of the plea agreement precluded the defendant from seeking a modification of his sentence.

            At the outset, this Court stated that it was affirming the denial of the defendant’s motion to modify his sentence because the terms of the plea agreement precluded him from seeking a modification. Id. at 497. In its analysis of the issues, this Court first addressed the defendant’s argument and concluded that the master commissioner had the power to enter a final judgment on the defendant’s motion to modify his sentence because “magistrates, and therefore master commissioners, are authorized to enter final orders in criminal trials, conduct sentencing hearings, and impose sentences on convicted persons.” Id. at 498-99. We then concluded that the trial court’s incorrect advisement at the sentencing hearing had no effect on the defendant’s knowing and voluntary waiver of the right to request a modification of his sentence. Id. at 500. We therefore affirmed the denial of the defendant’s motion to modify his sentence.

            Long argues that Ivy establishes that a master commissioner can enter a final order after a defendant has pleaded guilty. We disagree. This Court’s conclusions regarding the master commissioner’s authority were unnecessary to the decision, which was on the basis, announced at the outset, that the defendant could not challenge his sentence pursuant to the terms of the plea agreement. Moreover, there is no indication that this Court was asked to consider whether the legislature intended to treat guilty pleas in the same manner as criminal trials with regard to the authority of magistrates and master commissioners.  [Footnote omitted.]  Further, to the extent Ivy stands for the proposition argued by Long, we respectfully disagree. The master commissioner did not preside at a criminal trial. In fact, detrimental to Long’s own argument, there is no evidence that the master commissioner even presided at the defendant’s guilty plea hearing. We would have concluded that the master commissioner did not have the authority to enter a final order on the defendant’s motion to modify his sentence.

            Long also argues that “[i]f the legislature has deemed master commissioners competent to preside over criminal trials, pronounce the sentence, and enter final judgment, then they are quite competent to do so at a guilty plea hearing.” Appellant’s Reply Br. p. 4. This is not a judgment for us to make. Section 33-23-5-9(b) clearly states that a magistrate, and thus a master commissioner, may enter a final order, conduct a sentencing hearing, and impose a sentence if he or she has presided at a criminal trial. We are not at liberty to conclude that the clear language of the statute indicating “criminal trial” really means “criminal trial or guilty plea hearing.”

CRONE, J., and BRADFORD, J., concur.

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Ind. Dept. of Ins. v. Everhart, No. 84S01-1105-CV-28, ___ N.E.2d ___ (Ind., Jan. 20, 2012).

Shepard, C.J.

Robin Everhart filed suit against the Indiana Patient’s Compensation Fund (PCF) to recover excess damages after settling a wrongful death claim against an emergency room physician in whose care her husband died. The PCF asked the trial court to reduce its award of damages to account for the twenty percent chance that Robin’s husband would have died anyway, even in the absence of the physician’s negligence. The trial court declined to do so, awarding Robin the statutory maximum $1 million in excess damages. We affirm, but on slightly different grounds.


I. Cahoon Did Not Address the Better-Than-Even Cases.

The Indiana Medical Malpractice Act caps a recovery for a patient’s injury or death at $1,250,000. Ind. Code § 34-18-14-3(a)(3) (2008). The Act limits the liability of a qualified health care provider whose medical negligence proximately caused the injury or death to the first $250,000 of damages. Ind. Code § 34-18-14-3(b). If a judgment or settlement fixes damages in excess of a qualified health care provider’s liability, then a plaintiff may recover excess damages from the PCF. Ind. Code § 34-18-14-3(c).

In a suit to recover excess damages from the PCF, an earlier settlement with a qualified health care provider conclusively establishes his liability. Ind. Code § 34-18-15-3(5) (2008). Nevertheless, in Herbst, we held that evidence of a patient’s preexisting risk of harm was still admissible for the purpose of determining the amount of excess damages to which the plaintiff was entitled. Herbst, 902 N.E.2d at 222–23. The fact that evidence of a preexisting risk of harm would also be relevant to liability were liability at issue did not preclude admitting that evidence for some other purpose. See id.

Our holding in Herbst was a necessary consequence of Cahoon, in which we held that a successful Mayhue claim for causing an increased risk of harm entitled a plaintiff to damages in proportion to that increased risk. Cahoon, 734 N.E.2d at 541. In Cahoon, a wife filed suit for the wrongful death of her husband, who stood only a twenty-five to thirty percent chance of recovering even before a physician failed to diagnose his esophageal cancer. Id. at 538. We concluded that the appropriate measure of damages was equal to the total amount of damages ordinarily allowed in a wrongful death suit multiplied by the difference between the pre-negligence and post-negligence chances of survival. See id. at 540–41 (citing McKellips v. St. Francis Hosp., Inc., 741 P.2d 467, 476–77 (Okla. 1987)).

The PCF therefore argues that our decision in Herbst required the trial court to reduce its award of damages in proportion to Everhart’s preexisting risk of death. (Appellant’s Br. at 14.) But the PCF has not cited any Indiana cases in which a court held that a plaintiff who more likely than not would have avoided any injury but for the defendant’s negligence could only recover proportional damages. [Footnote omitted.] As both Robin and the trial court noted, however, all the decisions in our Mayhue line of cases involved patients who stood a fifty percent or worse chance of recovering before suffering some medical negligence. (Appellant’s App. at 21; Appellee’s Br. at 10–14.)

This distinction is not a coincidence, as Mayhue reflects a special concern for plaintiffs who stood a fifty percent or worse chance of recovering before suffering some form of medical negligence. In Mayhue, a husband filed suit for loss of consortium after a physician negligently failed to diagnose cancer in his wife, who later passed away. Mayhue, 653 N.E.2d at 1385–86. We affirmed the trial court’s decision to deny summary judgment to the defendant even though the wife would have stood less than a fifty percent chance of surviving even if the physician had rendered proper medical care, and even though the husband therefore could not establish that the physician’s negligence was the cause-in-fact of her death. Id. at 1385.

As we noted in Mayhue, this situation presents an obvious problem because this type of plaintiff could never establish proximate cause under the traditional analysis no matter how negligent the physician’s conduct. Id. at 1387. We therefore fashioned a solution to this particular problem based on Restatement (Second) of Torts § 323 (1965). [Footnote omitted.] Id. at 1388. Other courts that based their loss-of-chance doctrines on Section 323 likewise made clear that their purpose in adopting a loss-of-chance doctrine was to ensure that patients with a fifty-percent or worse chance of recovering would still receive the same care as healthier patients by preventing physicians from claiming a blanket release from liability under the label of cause-in-fact. See, e.g., Herskovits v. Group Health Coop., 664 P.2d 474, 476–77 (Wash. 1983) (thirty-nine percent chance of recovery pre-negligence); see also Thompson v. Sun City Cmty. Hosp., 688 P.2d 605, 615–16 (Ariz. 1984) (five to ten percent chance); McKellips, 741 P.2d at 470 (chance uncertain). See generally John D. Hodson, Medical Malpractice: “Loss of Chance” Causality, 54 A.L.R.4th 10 (1987 & Supp. 2011).

Mayhue’s scope is important because Cahoon established only the measure of damages in cases involving a Mayhue claim. In Cahoon, we stated that “upon a showing of causation under Mayhue, damages are proportional to the increased risk attributable to the defendant’s negligent act or omission.” Cahoon, 734 N.E.2d at 541. Because bringing a Mayhue claim is only necessary when a plaintiff cannot establish cause-in-fact under traditional negligence principles, Cahoon did not, at least by its terms, apply to cases in which a plaintiff stood a better-than-even chance of recovering before suffering some form of medical negligence.

Indeed, the general rule in a suit for negligence is that a plaintiff may recover damages for all injuries the defendant proximately caused. See Bader v. Johnson, 732 N.E.2d 1212, 1220 (Ind. 2000) (citing Erie Ins. Co. v. Hickman by Smith, 622 N.E.2d 515, 519 (Ind. 1993); Peak v. Campbell, 578 N.E.2d 360, 361 (Ind. 1991)). We therefore interpret the PCF’s argument as a request that we extend the Cahoon approach to cases involving patients who stood a better-than-even chance of recovering. We conclude that this case represents an inappropriate vehicle for deciding whether to do so.

Decisions like Mayhue and Cahoon arose from the scholarly criticism that the traditional rule undercompensated some plaintiffs for their injuries and undercharged some physicians for their negligence. See, e.g., Joseph H. King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353, 1377, 1387 (1981). Under the traditional analysis, a plaintiff who could show only a forty-nine-percent chance that the patient would not have suffered some injury but for the physician’s negligence would not recover anything. See David A. Fischer, Tort Recovery for Loss of Chance, 36 Wake Forest L. Rev. 605, 627 (2001). Because over a large number of cases it seems statistically certain that some of these less-than-even patients would have lived, this all-or-nothing rule left some plaintiffs who had actually suffered an injury at the hands of a defendant out in the cold. See King, supra, at 1377.

But this coin had a flip-side: A plaintiff who showed a fifty-one percent chance that the patient would not have died but for the physician’s negligence would be entitled to recover damages in the amount of 100 percent of her injuries. See Fischer, supra, at 627. Because over a large number of cases it seems statistically certain that some of these better-than-even patients would have died anyway, the all-or-nothing rule punished some physicians who did not actually cause any injury at all. See King, supra, at 1387. Assuming the probabilities of patients avoiding harm in the absence of medical negligence fell in an even distribution around a mean of fifty percent, however, these errors may have simply canceled each other out, adequately compensating plaintiffs for injuries and deaths and adequately charging physicians for their negligence as classes, if not as individuals. See Fischer, supra, at 631.

Once courts addressed the problem of undercompensating plaintiffs by issuing decisions like Mayhue and Cahoon, however, some commentators argued that awarding proportional damages in less-than-even cases and full damages in better-than-even cases systematically imposed punitive damages on physicians. E.g., Fischer, supra, at 628. Thus, the argument goes, courts should extend decisions like Cahoon to better-than-even cases. See Fischer, supra, at 628; Jonathan P. Kieffer, The Case for Across-the-Board Application of the Loss-of-Chance Doctrine, 64 Def. Couns. J. 568, 568–69 (1997); King, supra, at 1387. But others have defended awarding proportional damages at or below the fifty percent threshold and full damages above it. E.g., Lori R. Ellis, Note, Loss of Chance as Technique: Toeing the Line at Fifty Percent, 72 Tex. L. Rev. 369, 383 (1993); see also Fischer, supra, at 628–29 (acknowledging one-time tortfeasors and difficulty financing lawsuits as possible reasons for not extending proportional damages to better-than-even cases).

For all the academic interest in this issue, however, very few courts in other jurisdictions have confronted it. The PCF has cited Chief Justice Marshall’s opinion in Renzi v. Paredes, 890 N.E.2d 806 (Mass. 2008), for the proposition that a Massachusetts court would apply proportional damages in a better-than-even case, but Renzi provides less support for this proposition than the PCF asserts. In Renzi, a husband sued a physician for failing to diagnose his wife’s cancer. Id. at 810. The plaintiff’s expert witness testified that the wife would have stood a fifty-eight percent chance of surviving had the physician timely diagnosed her cancer from her mammogram, but the defendant’s expert testified that she would have stood only a twenty percent chance. See id. at 811 & n.8. The jury found that the physician’s negligence was not a substantial contributing factor in causing the wife’s death, but that it was a substantial contributing factor in causing the loss of a substantial chance to survive. Id. at 812. Nevertheless, the jury awarded the plaintiff full damages,3 apparently because the judge refused to instruct the jury on proportional damages. Id. at 813–16.

On appeal, the Supreme Judicial Court held that the trial court should have instructed the jury on proportional damages. Id. at 813. It noted that loss of chance and wrongful death were distinct theories of injury, and that the physician’s negligence proximately caused only the wife’s loss of chance, not her actual death. Id. Indeed, the Massachusetts court remanded for a new trial solely on the issue of damages, thereby accepting the jury’s finding that the physician’s negligence was not the proximate cause of the patient’s death. Id. at 813. Renzi therefore seems not to demonstrate that a Massachusetts court would apply proportional damages in a case like Robin Everhart’s, in which the plaintiff could show that the physician’s negligence did proximately cause the patient’s actual death, not merely a loss of chance.

The case coming closest to bearing on point seems to be Scafidi v. Seiler, 574 A.2d 398 (N.J. 1990). In Scafidi, parents sued a physician for failing to prevent a premature birth by timely administering medication to halt the mother’s labor, seeking to recover for the wrongful death of their daughter. Id. at 400–01. The mother suffered from a preexisting condition that put the child at risk of premature birth and death. Id. The plaintiffs’ expert testified that if the physician had timely administered the medication, then the child would have stood a seventy-five to eighty percent chance of avoiding premature birth. Id. But the defendant’s expert testified that even if the physician had acted timely, then the child would still have stood only a twenty-five percent chance of avoiding premature birth. Id. The jury found that the physician was negligent but that his negligence did not proximately cause the child’s death. Id. at 401.

Remanding for a new trial, however, the New Jersey Supreme Court instructed the trial court that “any damages . . . assuming that defendant’s proofs include evidence that the infant’s premature birth and death might have occurred even if defendant’s treatment had been proper, should be apportioned to reflect the likelihood that the premature birth and death would have been avoided by proper treatment.” Id. at 400 (emphasis added). It is therefore possible to read Scafidi as indicating that the New Jersey Supreme Court would apportion damages to account for the mother’s preexisting condition even if the child had a better-than-even chance of survival.

Still, even this quick survey of a theoretically thorny area of law makes it clear that both courts and commentators have been focusing on cases in which a single tortfeasor’s negligent conduct interacted with a preexisting medical condition. That is not the case here. Robin’s case differs from our Mayhue line of cases not only in that Everhart stood a better-than-even chance of recovering in the absence of any medical negligence, but also in that joint tortfeasors negligently caused him an indivisible harm. That latter distinguishing fact triggers our rules on joint and several liability, which make it unnecessary for us to decide today whether to extend Cahoon to better-than-even cases.

II. The Rule for Calculating Set-Offs Can Decide This Case.

There is no critical need to decide the Cahoon valuation issue because of how the trial court’s peculiar findings of fact interact with the rules for calculating a set-off. The court found that Robin and Troy’s total injuries exceeded the sum of all distinct, legally allowable awards of damages. A double recovery would therefore have been impossible under a correct application of the set-off rules. Even if we embraced the PCF’s reading of Mayhue and the resulting application of Cahoon, the PCF would still have to pay the statutory maximum in excess damages.

The PCF argues that the trial court should have reduced its finding on injuries by twenty percent to account for harm Dr. Clarke probably did not cause and then further reduced the damages by the amount of Robin’s settlement with Dr. Clarke’s insurance company and by the full value of her settlement with Standard Forwarding. In other words, it says that after finding that Robin and Troy suffered injuries of at least $3,150,000, the trial court should have reduced that amount to $2,250,000 (twenty percent chance of death in any event), subtracted $250,000 (Dr. Clarke’s insurance company) and then subtracted another $1.9 million (Standard Forwarding) to arrive at its final award of damages.

Again, this contention ignores a critical distinction between the Mayhue cases and Robin’s case. In the Mayhue cases, the chance that a patient would have suffered some injury regardless of a physician’s medical negligence arose from a natural, preexisting medical condition. Here, the chance that Everhart would have died anyway arose as a result of the independent negligence of a joint tortfeasor.

Two or more co-defendants constitute joint tortfeasors if their independent negligent conduct proximately caused some indivisible harm. See Palmer v. Comprehensive Neurologic Servs., P.C., 864 N.E.2d 1093 (Ind. Ct. App. 2007). At common law, joint tortfeasors were jointly and severally liable for the indivisible harm they caused a plaintiff. Hoesel v. Cain, 222 Ind. 330, 53 N.E.2d 165 (1944); see also Restatement (Third) of Torts: Apportionment § A18 (2005). A plaintiff could sue any of the joint tortfeasors and recover damages in the amount of the entire harm even though another joint tortfeasor had a hand in the injury. Hoesel, 222 Ind. at 334, 53 N.E.2d at 170–71; Restatement (Third) of Torts: Apportionment § 10.

But the Legislature altered this landscape when it passed the Indiana Comparative Fault Act. A leading effect of the Act was to abolish the rule that contributory negligence constituted a complete bar to recovery in most suits for negligence. Ind. Code § 34-51-2-5 (2008). Instead, the Act requires a jury to allocate a percentage of responsibility for the plaintiff’s injuries to each defendant and any nonparty who contributed to those injuries, and each defendant need only pay his proportional share. Ind. Code § 34-51-2-7, -8 (2008). In exchange for giving negligent plaintiffs greater access to the courts, however, the Act abrogates the old rule of joint and several liability in suits to which the Act applies. Huber v. Henley, 656 F. Supp. 508, 511 (S.D. Ind. 1987) (“In return for the removal of the contributory negligence bar to recovery, plaintiffs lost the ability to recover the full measure of damages from any one joint tortfeasor.”). Because the Act expressly exempted medical malpractice claims from its ambit, however, the historical rule of joint and several liability would appear to still apply to medical malpractice suits. See Ind. Code § 35-51-2-1(b)(1) (2008); see also Palmer, 864 N.E.2d at 1099–1100. But see Ind. Code § 34-51-2-17 (2008) (imposing time limits on a qualified health care provider’s opportunity to plead a nonparty defense and allowing enlargements in limited circumstances). [Footnote omitted.]

A plaintiff who settled with one joint tortfeasor, however, might still wish to sue another joint tortfeasor to increase her recovery. Historically, Indiana prevented the plaintiff from doing so under the release rule. See, e.g., Cooper v. Robert Hall Clothes, Inc., 390 N.E.2d 155, 157–58 (Ind. 1979) (citing Bedwell v. DeBolt, 221 Ind. 600, 50 N.E.2d 875 (1943)) (plaintiff’s settlement with two defendant companies released remaining jointly and severally liable defendant).

We abrogated the release rule in Huffman v. Monroe County Cmty. Sch. Corp., 588 N.E.2d 1264 (Ind. 1992). We noted that many authorities heavily criticized the release rule and argued for the modern rule that a release of one joint tortfeasor would not discharge any other joint tortfeasor, but that any payments accompanying the release would diminish the recovery the plaintiff could seek from subsequent joint tortfeasors by the amount of the payment. Id. at 1266 (citing Restatement (Second) of Judgments § 50 (1982); Restatement (Second) of Torts §§ 885, 886 (1979); 3 Harper, Gray & James, The Law of Torts 37 (2d ed., 1986)). Under our present rule, the plaintiff in Cooper would have been able to continue her suit against the third company, but subject to a rule requiring the trial court to reduce the amount of her allowable damages to protect the third jointly and severally liable defendant. See id. at 1267.

We noted in Huffman that a trial court has the power and duty to reduce a jury verdict by an amount already received in an earlier settlement to ensure that a plaintiff does not receive more than one recovery. Huffman, 588 N.E.2d at 1267 (citing Manns v. Indiana Dep’t of Highways, 541 N.E.2d 929 (Ind. 1989)). Indeed, we had already held that when a jury returned a verdict against a jointly and severally liable defendant after another jointly and severally liable defendant had already settled in exchange for a covenant not to sue, a court should adjust pro tanto the amount of any damages determined by the jury verdict by subtracting any consideration received from the amount of any damages determined by the jury verdict. Manns, 541 N.E.2d at 934.

The action in Manns arose before the effective date of the Comparative Fault Act, which would appear to abrogate Manns for cases that come within its provisions. See Mendenhall v. Skinner & Broadbent Co., 728 N.E.2d 140, 143 (Ind. 2000); see also Manns, 541 N.E.2d at 931. The Manns rule for set-offs, however, remains good law for cases that involve joint torfeasors but fall outside the Comparative Fault Act. [Footnote omitted.]

The Court of Appeals applied this same one-satisfaction doctrine in Palmer, the case the PCF cites for the proposition that a joint tortfeasor in a medical malpractice suit is entitled to a set-off for any amount the plaintiff received in exchange for settling with another joint tortfeasor. Palmer, 864 N.E.2d at 1100–01. In Palmer, the plaintiff filed suit against a physician, the physician’s professional corporation, and multiple non–qualified health care providers on a theory of joint and several liability for medical malpractice, seeking damages for the wrongful death of her husband. Id. at 1095. The non–qualified providers settled with the plaintiff in an aggregate amount that exceeded the jury’s subsequent $375,000 finding on total injuries. Id. at 1097 & n.4. The remaining joint tortfeasors filed a motion to correct error asking the trial court to reduce the award of damages by the amount of the earlier settlements. Id. at 1097. The court did so, entering judgment against the remaining joint tortfeasors in the amount of $0, and the Court of Appeals affirmed. Id. at 1095, 1102.

Here, the PCF belatedly concedes that Perkins and Dr. Clarke constitute joint tortfeasors. [Footnote omitted.] (Appellant’s Br. at 23–24.) Perkins’s negligent driving and Dr. Clarke’s negligent medical care both caused a single indivisible harm: Everhart’s death. Under the pure common law rule of joint and several liability, Robin could have sued either Perkins or Dr. Clarke and recovered from the defendant of her choice damages in the entire amount of the injuries she and Troy suffered. The second defendant, however, would have been entitled to a set-off from the total judgment against him in the amount of any settlement Robin reached with the first. Because the PCF assumes Dr. Clarke’s liability over and above the statutory cap in the Medical Malpractice Act, the PCF is entitled to the same set-off and no more.

The trial court found that Robin and Troy suffered injuries of at least $3.15 million. Under the Manns rule for set-offs, the court should have reduced its finding on total injuries by $1.9 million on account of the settlement with Standard Forwarding. The court should have further reduced that amount by another $250,000 on account of the settlement with Dr. Clarke’s insurance company. The convenient result: $1 million in uncompensated damages, which is precisely equal to the statutory limit of the PCF’s liability for excess damages. [Footnote omitted.]

And this result would not change if the trial court had applied Cahoon in apportioning damages. Cahoon apportions damages between all the parties who should fairly bear some of the loss. The PCF concedes that Dr. Clarke caused eighty percent of the plaintiffs’ injuries. Because the only possible causes of Everhart’s death are two known joint tortfeasors, however, this concession is tantamount to conceding that Standard Forwarding caused the remaining twenty percent. Initially, the PCF would be responsible for $2,520,000 in damages, whereas Standard Forwarding would be responsible for $630,000. At most, the PCF would therefore only be entitled to a set-off on account of the settlement with Standard Forwarding to the extent that it exceeded Standard Forwarding’s liability. Giving the PCF the benefit of this set-off in the amount of $1,270,000 and a further $250,000 set-off on account of the settlement with Dr. Clarke’s insurance company would still leave a remaining $1 million in uncompensated damages for the PCF to cover in excess damages payable to Robin and Troy.

Reducing the finding on injuries by twenty percent and then subtracting the full $1.9 million from the remainder, and then another $250,000, as the PCF asks, effectively ignores that Standard Forwarding, not Robin and Troy, should bear the remaining loss. Indeed, doing so would magically wipe out $630,000 of Robin and Troy’s total recovery and leave the PCF with a windfall in the same amount. In essence, the PCF would succeed in turning the one-satisfaction doctrine from a shield into a sword. The purpose of the one-satisfaction doctrine is to prevent a plaintiff from realizing more than one recovery. It is plainly not to reduce a plaintiff to realizing less than one full recovery.

As a result, we do not see any grounds on which we could reduce the trial court’s award of $1 million in excess damages, so deciding whether to extend or halt Cahoon’s advance would seem unnecessary at best. Because we hold that the PCF was not entitled to a set-off, we also need not address Robin’s argument that the trial court should reduce any set-off based on fees and expenses.


For the reasons stated above, we affirm the trial court.

Dickson, Sullivan, Rucker, and David, JJ., concur.


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