Filed: 6/20/2017 3:21 PM
IN THE COURT OF APPEALS OF INDIANA
Cause No. 35A02-1705-CR-1060
WPTA-TV, ) ) Appeal from the Huntington Appellant (Intervenor below), ) Circuit Court ) v. ) Trial Court Cause No. ) 35C01-1605-F3-000096 STATE OF INDIANA, ) ) The Honorable Thomas M. Appellee (Plaintiff below), ) Hakes, Judge ) v. ) ) JOHN C. MATHEW, ) ) Appellee (Defendant below). )
APPENDIX OF APPELLANT, WPTA-TV Volume 2 of 2 Volumes Pages 1 through 18
Margaret M. Christensen, Atty. No. 27061-49 Jessica E. Whelan, Atty. No. 30779-49 BINGHAM GREENEBAUM DOLL LLP 2700 Market Tower 10 W. Market Street Indianapolis, IN 46204-4900 (317) 635-8900 (317) 236-9907 Fax [email protected] [email protected]
Attorneys for Appellant, WPTA-TV
APP_01 Appellant's Appendix, Volume 2 Page 1 of 5
Skip to Main Content Logout My Account Search Menu New Criminal & Citation Case Records Search Refine Search Location : Huntington County Help Back CHRONOLOGICAL CASE SUMMARY CASE NO. 35C01-1605-F3-000096
State of Indiana v. John C Mathew § Case Type: F3 - Felony 3 § Date Filed: 05/27/2016 § Location: Huntington Circuit Court § Protection Order Registry: 605720 § §
RELATED CASE INFORMATION
Related Cases 35C01-1605-MC-000359 (Other) 35A02-1705-CR-01060 (Lower Trial Court Case)
PARTY INFORMATION
Attorneys Defendant Mathew, John C Male Indian Robert William Gevers Retained 704 Rocky Run 809 S Calhoun Street Huntington, IN 46750 Suite 600 Fort Wayne, IN 46802-0000
260-407-7071(W)
State Plaintiff State of Indiana Amy Christine Richison Room 420, Courthouse Huntington, IN 46750-0000
CHARGE INFORMATION
Charges: Mathew, John C Statute Level Date 1. 35-42-4-8(a)(1)(A)/F6: Sexual Battery Victim compelled to submit 35-42-4-8(a)(1)(A) Felony 6 12/30/2015 by force or imminent threat of forc Filed As: 35-42-4-1(a)(1)/F3: Rape when compelled by force or 35-42-4-1(a)(1) Felony 3 12/30/2015 imminent threat of force. 2. 35-42-4-8(a)(1)(A)/F6: Sexual Battery Victim compelled to submit 35-42-4-8(a)(1)(A) Felony 6 01/20/2016 by force or imminent threat of forc 3. 35-42-2-1(b)(1)/MB:Battery 35-42-2-1(b)(1) Misdemeanor Class B 12/30/2015 4. 35-42-2-1(b)(1)/MB:Battery 35-42-2-1(b)(1) Misdemeanor Class B 12/30/2015
Bonds Huntington Cash Bond $5,000 06/01/2016 CASH BOND RECEIVED BY CLERK 04/25/2017 RELEASED Counts:1, 2, 3, 4 Comments: Bond posted 5-31-16
Huntington Non Corporate $30,000 Surety Bond 06/01/2016 SURETY BOND RECEIVED BY CLERK Counts:1, 2, 3, 4 Comments: Bond posted 5-31-16
EVENTS & ORDERS OF THE COURT
05/27/2016 Case Opened as a New Filing 05/27/2016 Warrant or Writ of Attmnt for the Body of a Person Issued 05/27/2016 Appearance Filed For Party: State of Indiana Attorney: Richison, Amy Christine File Stamp: 05/27/2016 05/27/2016 Notice of Exclusion of Confidential Information Filed By: Richison, Amy Christine
https://mycase.in.gov/CaseDetail.aspx?CaseID=23260764 6/16/2017 APP_02 Appellant's Appendix, Volume 2 Page 2 of 5
File Stamp: 05/27/2016 05/27/2016 Information Filed Counts I, II, III, IV Filed By: Richison, Amy Christine File Stamp: 05/27/2016 05/27/2016 Probable Cause Affidavit Filed Counts I, II, III, IV Filed By: Richison, Amy Christine File Stamp: 05/27/2016 05/27/2016 Report Filed Police Report. Same placed in confidential envelope. Filed By: Richison, Amy Christine File Stamp: 05/27/2016 05/31/2016 Appearance Filed Attorney Gevers files Appearance (by fax) on behalf of Defendant. For Party: Mathew, John C Attorney: Gevers, Robert William File Stamp: 05/31/2016 05/31/2016 Warrant or Writ of Attmnt for the Body of a Person Served 06/01/2016 Cash Bond Entered in Clerk's Office 06/01/2016 Surety Bond Entered in Clerk's Office 06/01/2016 Amended Pleading Filed Amended Appearance: TCN 3510025108 Filed By: Richison, Amy Christine File Stamp: 06/01/2016 06/06/2016 Initial Hearing (9:30 AM) (Judicial Officer Hakes, Thomas) Result: Commenced and concluded 06/06/2016 Hearing Scheduling Activity Initial Hearing scheduled for 06/06/2016 at 9:30 AM. 06/06/2016 Hearing Journal Entry (Judicial Officer: Hakes, Thomas ) State appears by Chief Deputy Prosecutor, Jamie Groves. Defendant appears in person and by counsel, Bob Gevers. Attorney Gevers waives reading of charges and files Receipt for Discovery. Omnibus date set for August 15, 2016 at 9:30 a.m. LNT: Prosecutor, Probation & Atty Gevers. 06/07/2016 Hearing Scheduling Activity Status Conference scheduled for 08/15/2016 at 9:30 AM. 07/05/2016 Administrative Event Victim Impact Statement filed. Filed By: Richison, Amy Christine File Stamp: 07/01/2016 07/14/2016 Affidavit Filed State of Indiana files Affidavit in Support of Search Warrant. Filed By: Richison, Amy Christine File Date: 07/14/2016 07/14/2016 Order Granting Request for Search Warrant Court enters Search Warrant. Copy to Prosecutor for service, and copy to Attorney Gevers. Order Signed: 07/14/2016 08/15/2016 Status Conference (9:30 AM) (Judicial Officer Hakes, Thomas) Omnibus date Result: Commenced and concluded 08/15/2016 Hearing Journal Entry (Judicial Officer: Hakes, Thomas ) State appears by Chief Deputy Prosecutor, Jamie Groves. Defendant appears in person and by counsel, Bob Gevers. Matter is set for jury trial for four (4) days commencing March 21, 2017 at 9:00 a.m. Final pre-trial conference set for February 13, 2017 at 9:30 a.m. Court enters Pre-Trial Conference Order. Copy of Order to Prosecutor, & Atty Gevers. LNT: Probation & Sheriff's Dept. 08/15/2016 Order on Pretrial Conference Order Signed: 08/15/2016 08/17/2016 Hearing Scheduling Activity Final PreTrial Conference scheduled for 02/13/2017 at 1:30 PM. 08/17/2016 Hearing Scheduling Activity Jury Trial scheduled for 03/21/2017 at 9:00 AM. 08/17/2016 Hearing Scheduling Activity Jury Trial scheduled for 03/21/2017 at 1:00 PM. 08/17/2016 Hearing Scheduling Activity Jury Trial scheduled for 03/22/2017 at 9:00 AM. 08/17/2016 Hearing Scheduling Activity Jury Trial scheduled for 03/22/2017 at 1:00 PM. 08/17/2016 Hearing Scheduling Activity Jury Trial scheduled for 03/23/2017 at 9:00 AM. 08/17/2016 Hearing Scheduling Activity Jury Trial scheduled for 03/23/2017 at 1:00 PM. 08/17/2016 Hearing Scheduling Activity Jury Trial scheduled for 03/24/2017 at 9:00 AM. 08/17/2016 Hearing Scheduling Activity Jury Trial scheduled for 03/24/2017 at 1:00 PM. 08/29/2016 Hearing Scheduling Activity Final PreTrial Conference originally scheduled on 02/13/2017 at 1:30 PM was rescheduled to 02/13/2017 at 9:30 AM. Reason: Data Entry Error. 02/02/2017 Motion In Limine Filed Motion in Limine Penalty.pdf Filed By: State of Indiana
https://mycase.in.gov/CaseDetail.aspx?CaseID=23260764 6/16/2017 APP_03 Appellant's Appendix, Volume 2 Page 3 of 5
File Stamp: 02/02/2017 02/02/2017 Motion In Limine Filed Motion in Limine Rape Shield.pdf Filed By: State of Indiana File Stamp: 02/02/2017 02/02/2017 Motion In Limine Filed MotionLimine Burden of Proof.pdf Filed By: State of Indiana File Stamp: 02/02/2017 02/02/2017 Witness and/or Exhibit List Filed Witness List - Matthew, John - redacted copy.pdf Filed By: State of Indiana File Stamp: 02/02/2017 02/02/2017 Witness and/or Exhibit List Filed Witness List - Matthew, John.pdf Filed By: State of Indiana File Stamp: 02/02/2017 02/02/2017 Notice of Exclusion of Confidential Information AR9 for W & E List.pdf Filed By: State of Indiana File Stamp: 02/02/2017 02/03/2017 Preliminary Instructions Filed Mathew Preliminary Jury Instructions.pdf Filed By: State of Indiana File Stamp: 02/03/2017 02/13/2017 Final PreTrial Conference (8:00 AM) (Judicial Officer Hakes, Thomas) 02/13/2017 Reset by Court to 02/13/2017 Result: Continued 02/13/2017 Hearing Journal Entry (Judicial Officer: Hakes, Thomas ) State appears by Chief Deputy Prosecutor, Jamie Groves. Defendant appears in person and by counsel, Bob Gevers. On motion of defense, the final pre-trial conference is continued to February 27, 2017 at 9:00 a.m. 02/15/2017 Hearing Scheduling Activity Final PreTrial Conference scheduled for 02/27/2017 at 8:00 AM. 02/27/2017 Final PreTrial Conference (8:00 AM) (Judicial Officer Hakes, Thomas) Change of plea hearing Result: Commenced and concluded 02/27/2017 Hearing Journal Entry (Judicial Officer: Springer, Karen -SR ) State appears by Chief Deputy Prosecutor, Jamie Groves. Defendant appears in person and by counsel, Bob Gevers. State files State's Notice of Amendment and State's Motion to Amend the Information. Defense does not object and Court enters Order granting motion to amend count 1 from "Rape as a level 3 felony" to "Sexual Battery as a level 6 felony". State files Information for Sexual Battery, a level 6 felony. Attorney Gevers waives reading of amended count 1 and parties file Motion to Enter a Plea of Guilty. Court reviews plea with defendant; makes findings; takes plea under advisement and sets hearing for April 17, 2017 at 8:00 a.m. to determine if it will accept or reject the plea. If the plea is accepted the court will move to immediate sentencing thereafter. The Probation Department is ordered to prepare a pre-sentence investigation report and provide to the prosecutor and defense counsel. The jury trial scheduled to commence 3/21/17 is vacated. Court to prepare Order on Entry of Guilty Plea. 02/27/2017 Notice Filed Filed By: State of Indiana File Stamp: 02/27/2017 02/27/2017 Motion to Amend Information Filed Filed By: State of Indiana File Stamp: 02/27/2017 02/27/2017 Order Granting Motion to Amend Information (Judicial Officer: Springer, Karen -SR ) Order Signed: 02/27/2017 02/27/2017 Information Filed File Stamp: 02/27/2017 02/27/2017 Motion to Enter Plea Pursuant to Plea Agreement Filed Filed By: Gevers, Robert William Filed By: Mathew, John C Filed By: State of Indiana File Stamp: 02/27/2017 02/28/2017 Hearing Scheduling Activity Sentencing Hearing scheduled for 04/17/2017 at 8:00 AM. 02/28/2017 Hearing Scheduling Activity Jury Trial scheduled for 03/21/2017 at 9:00 AM was cancelled. Reason: Agreed Resolution. 02/28/2017 Hearing Scheduling Activity Jury Trial scheduled for 03/21/2017 at 1:00 PM was cancelled. Reason: Agreed Resolution. 02/28/2017 Hearing Scheduling Activity Jury Trial scheduled for 03/22/2017 at 9:00 AM was cancelled. Reason: Agreed Resolution. 02/28/2017 Hearing Scheduling Activity Jury Trial scheduled for 03/22/2017 at 1:00 PM was cancelled. Reason: Agreed Resolution. 02/28/2017 Hearing Scheduling Activity Jury Trial scheduled for 03/23/2017 at 9:00 AM was cancelled. Reason: Agreed Resolution. 02/28/2017 Hearing Scheduling Activity Jury Trial scheduled for 03/23/2017 at 1:00 PM was cancelled. Reason: Agreed Resolution. 02/28/2017 Hearing Scheduling Activity Jury Trial scheduled for 03/24/2017 at 9:00 AM was cancelled. Reason: Agreed Resolution. 02/28/2017 Hearing Scheduling Activity
https://mycase.in.gov/CaseDetail.aspx?CaseID=23260764 6/16/2017 APP_04 Appellant's Appendix, Volume 2 Page 4 of 5
Jury Trial scheduled for 03/24/2017 at 1:00 PM was cancelled. Reason: Agreed Resolution. 03/01/2017 Automated ENotice Issued to Parties Order Granting Motion to Amend Information ---- 2/27/2017 : Robert William Gevers;Amy Christine Richison 03/02/2017 Order Issued Order on Entry of Plea of Guilty entered. Order Signed: 02/27/2017 03/03/2017 Automated ENotice Issued to Parties Order Issued ---- 3/2/2017 : Robert William Gevers;Amy Christine Richison 03/21/2017 CANCELED Jury Trial (9:00 AM) (Judicial Officer Hakes, Thomas) Agreed Resolution 04/05/2017 Pre-Sentence Investigation Report Filed PreSentence Investigation Report Filed By: Huntington County Probation Department File Stamp: 04/05/2017 04/06/2017 Notice Filed Notice of Letters of Support Filed By: Mathew, John C File Stamp: 04/06/2017 04/12/2017 Memorandum/Brief Filed Sentencing Memorandum Filed By: Mathew, John C File Stamp: 04/12/2017 04/13/2017 Correspondence to/from Court Filed Sentencing Letters for Victim.pdf Filed By: State of Indiana File Stamp: 04/13/2017 04/17/2017 Sentencing Hearing (8:00 AM) (Judicial Officer Hakes, Thomas) Result: Commenced and concluded 04/17/2017 Hearing Journal Entry (Judicial Officer: Hakes, Thomas ) Chief Deputy Prosecutor, Jamie Groves, appears on behalf of the State. Defendant appears in person and by counsel, Bob Gevers. Court reviews with the Defendant his plea of guilty and waiver of appeal. State presents several witnesses. Curriculum Vitae of Dr. Stephen Ross made a part of the record. Defense presents several witnesses. Arguments heard by State and Defense prior to sentencing. Court addresses the Defendant; accepts the plea; enters judgment of conviction and reviews aggravators and mitigators. On counts 1 & 2 the Defendant is sentenced to the Indiana Department of Corrections for two (2) years with counts to run consecutive to each other. The Court suspends the entire sentence of four (4) years to probation with the Defendant serving two (2) years on electronic monitoring/home detention as a condition of probation. Special Probation Conditions for Adult Sex Offenders entered and Defendant is required to register as a sex offender. 04/17/2017 Correspondence to/from Court Filed Dr. Ross's Curriculum Vitae Filed By: State of Indiana File Stamp: 04/17/2017 04/17/2017 Conditions of Probation Conditions of Probation (including special conditions for sex offenders) 04/17/2017 Judgment (Judicial Officer: Hakes, Thomas) 1. 35-42-4-8(a)(1)(A)/F6: Sexual Battery Victim compelled to submit by force or imminent threat of forc Plea by Agreement 2. 35-42-4-8(a)(1)(A)/F6: Sexual Battery Victim compelled to submit by force or imminent threat of forc Plea by Agreement 3. 35-42-2-1(b)(1)/MB:Battery Dismissed 4. 35-42-2-1(b)(1)/MB:Battery Dismissed
04/17/2017 Sentence (Judicial Officer: Hakes, Thomas) 1. 35-42-4-8(a)(1)(A)/F6: Sexual Battery Victim compelled to submit by force or imminent threat of forc Comment (Counts run consecutive to each other with all suspended & 2 yrs on E.M.) Confinement to Commence 04/17/2017 County Jail Term:2 Yr Suspended: 2 Yr 2. 35-42-4-8(a)(1)(A)/F6: Sexual Battery Victim compelled to submit by force or imminent threat of forc Comment (Counts run consecutive to each other with all suspended & 2 yrs on E.M.) Confinement to Commence 04/17/2017 County Jail Term:2 Yr Suspended: 2 Yr
04/19/2017 No Contact Order Issued POR - No Contact Order No Contact Order - Probation/Executed Sentence; Issued by: HON THOMAS M. HAKES Order Signed: 04/17/2017 04/20/2017 Order of Confinement (Sentenced) (Judicial Officer: Hakes, Thomas ) Court enters Sentencing Order. Order Signed: 04/17/2017 04/20/2017 Abstract of Judgment Completed for non-DOC case Court enters Abstract Of Judgment. Date Signed: 04/17/2017 04/20/2017 Request for Records Court receives request from TV station ABC 21 for access to public records.
https://mycase.in.gov/CaseDetail.aspx?CaseID=23260764 6/16/2017 APP_05 Appellant's Appendix, Volume 2 Page 5 of 5
File Stamp: 04/18/2017 04/20/2017 Order Issued Court enters Order Limiting the Use of Court Record and Barring its Broadcast for Dissemination. Order Signed: 04/20/2017 04/21/2017 Automated ENotice Issued to Parties No Contact Order Issued ---- 4/19/2017 : Robert William Gevers;Amy Christine Richison Order of Confinement (Sentenced) ---- 4/20/2017 : Robert William Gevers;Amy Christine Richison Order Issued ---- 4/20/2017 : Robert William Gevers;Amy Christine Richison 04/25/2017 Clerk Releases Bond Per Order 04/25/2017 Clerk Administrative Event Per court order Clerk releases bond. Bond admin fee, fines & court costs, balance of bond applied to elec. monitoring fees 05/02/2017 Appearance Filed Appearance For Party: WPTA-TV File Stamp: 05/01/2017 05/02/2017 Motion to Intervene Filed WPTA-TV's Verified Motion to Intervene and Reconsider Ordr of April 20, 2017 Filed By: WPTA-TV File Stamp: 05/01/2017 05/04/2017 Order Issued Court enters Order granting motion to intervene. The motion to reconsider will be handled per trial rule 60D. Served: Byron, Daniel P Served: Gevers, Robert William Served: State of Indiana Order Signed: 05/04/2017 05/05/2017 Automated ENotice Issued to Parties Order Issued ---- 5/4/2017 : Daniel P Byron;Robert William Gevers 05/17/2017 Order Issued Court enters Order on Motion to Reconsider. Served: Byron, Daniel P Served: Gevers, Robert William Served: State of Indiana Order Signed: 05/17/2017 05/18/2017 Automated ENotice Issued to Parties Order Issued ---- 5/17/2017 : Daniel P Byron;Robert William Gevers 05/19/2017 Notice of Appeal Received Clerk received Notice of Appeal from the Court of Appeals by electronic mail file stamped May 19, 2017 File Stamp: 05/19/2017 05/24/2017 Notice of Completion of Clerk's Record Clerk sends Notice of Completion of Clerk's Record to Margaret Christensen, Attorney General and Court of Appeals by Certified Mail; to prosecutor by courthouse mail. 06/01/2017 Certified Mail Returned Signed by John Harvey Party Served: Christensen, Margaret Marie Date Signed: 05/26/2017 06/01/2017 Certified Mail Returned Signed by Scott Crays for Curtis Hill, Attorney General. Date Signed: 05/30/2017 06/05/2017 Certified Mail Returned Stamped Received by Mail Clerk of The Courts for the Appellate Court Clerk. Date Signed: 05/30/2017
Please note that any Balance Due does not reflect interest that has accrued since the last payment.
https://mycase.in.gov/CaseDetail.aspx?CaseID=23260764 6/16/2017 APP_06 Appellant's Appendix, Volume 2
STATE OF INDIANA ) IN THE HUNTINGTON CIRCUIT COURT ) SS: COUNTY OF HUNTINGTON ) ) STATE OF INDIANA ) Plaintiff ) ) VS. ) CAUSE NO. 35C01-1605-F3-000096 ) JOHN C. MATHEW ) Defendant
ORDER LIMITING THE USE OF COURT RECORD AND BARRING ITS BROADCAST OR DISSEMINATION
1. News Channel ABC 21 of Fort Wayne, Indiana, has requested a copy of the digitally recorded record from this case.
2. The Court is required to provide the record as requested.
3. The requesting person may not broadcast the record, subject to the , contempt power of this Court.
4. The requesting pers:on may not alter, add, delete or replace any part of the record provided.
5. The requesting person may not allow others to do the actions prohibited by paragraphs 3 and 4.
So Ordered This 20th Day of April. 2017
Thomas M. Hakes, Judge Huntington Circuit Court
APP_07 Appellant's Appendix, Volume 2 STATE OF INDIANA ) IN THE HUNTINGTON CIRCUIT COURT ) SS: COUNTY OF HUNTINGTON ) ) STATE OF INDIANA ) Plaintiff ) ) vs. ) CAUSE NO. 35C01-1605-F3-000096 ) JOHN C. MATHEW ) Defendant
ORDER ON MOTION TO RECONSIDER
The Court has examined the Record in the case and has examined the Intervenors Motion to Reconsider. On April 18, 2017, the Court received the Request for Records; the Request was granted and the requested items were provided. On April 20, 2017, the Court issued the Order Limiting the Use of Court Record and Barring its Broadcast.
The Intervenors received as per their request the documents and CD on April, 2017. This was in proper compliance with Administrative Rule 9D. The providing of the requested items gave the intervenors the ability to inspect and copy a court record which is the definition of Public Access as found in Administrative Rule 9C(6).
The Court then, as required by Administrative Rule 9D(4) issued the order limiting the use of the record. The Intervenors entire argument in its Motion to Reconsider revolves around Administrative Rule 9G and the intervenors argument that the Court in prohibiting the use and dissemination of the Record violates the provisions of Rule 9G.
The Court followed Administrative Rule 9D4 and examined Judicial Conduct Rule 2.17 which states in part: "Except with prior approval of the Indiana Supreme Court, a Judge shall prohibit broadcasting, televising, recording or taking photos in the courtroom ... " The limit placed upon Intervenors is in compliance with this rule. Broadcasting all or parts of a court record is no different than the Intervenors making their own recording and then broadcasting it ... an act that is not allowed by the Rule.
Copies of all documents requested were promptly provided but limited in use by the Court in following the dictates of Administrative Rule 9D4.
The Intervenors Motion to Reconsider is DENIED.
So Ordered This 17th Day of May, 2017
Thomas M. Hakes, Judge Huntington Circuit Court
APP_08 6/20/201611:26AM SCANNED Appellant's Appendix, Volume 2
In The Huntington Circuit Court State of Indiana FftED 2016Term MAY 2 7 2016 State of Indiana ) ~_u__ ~ ;bDv.J I ) ) cause No. 35C01-1605-F3-000 ) John JMathew, ) efendant )
inistrative Rule 9{G)(5) Notice of Exclusion onfidential Information from Public Access (FILED WITH TRIAL COURT CLERK)
ontempor eous with the filing of this notice, Amy C. Richison has filed confidential
informltion on gre n paper in accordance with Administrative Rule 9(G)(6). Pursuant to
A · .ltrative Ru 9(G)(5), Amy C. Richison, provides this notice that the confidential
infor tion conta' ed on that green paper is to remain excluded from public access in
nee with th authority listed below:
Administrative Rule 9(G) grounds upon which exclusion is authorized.
Hf1J Investig tive Report (7 pgs) 9(G)(2)(f) & 9(G)(2)(g)(i) Narrative Rept pg 1, 5, 8, 9, 14, 15 & 16 of 9(G)(2)(g)(i) / De .Jones · · · BMir Record of ohn Mathew (2 pgs) 9(G)(2)(f)
APP_09 Appellant's Appendix, Volume 2 Filed: 212/2017 2:19:36 PM Kittle Keiffer Clerk In The Huntington Circuit Court Huntington County, Indiana State of Indiana 2017Term
State of Indiana, ) ) vs ) Cause No. 35C01-1605-F3-000096 ) John c. Mathew, ) Defendant )
Administrative Rule 9(G)(5) Notice of Exclusion of Confidential Information from Public Access (FILED WITH TRIAL COURT CLERK)
Contemporaneous with the filing of this notice, Jamie M. Groves has filed confidential
information on green paper in accordance with Administrative Rule 9(G)(6). Pursuant to
Administrative Rule 9(G)(5), Jamie M. Groves, provides this notice that the confidential
information contained on that green paper is to remain excluded from public access in
accordance with the authority listed below:
Name or description of document Administrative Rule 9(Gl grounds upon filed on green paper. which exclusion is authorized.
Witness & Exhibit List 9(G)(2)(g)(i)
Respectfully submitted,
/s/Iamie M. Groves Jamie M. Groves, #19992-49
APP_10 Appellant's Appendix, Volume 2 ACCESS TO PUBLIC RECORDS REQUEST COUNTY OF HUNTINGTON
Name of requesting party: A\fY.\S 6 (d/ , A'f:f;2J W(JTl\-~ 1 ' Address of r~q_u~sting party: 3LiOI 6UtlOC erni) ~let~~ re .) )N '10 elf( ce\1·. (~)282- . . . Phone Number: 91-Bo D e of Request: ~/ \8 I 13- Time: I )~ lS a YYl
v 35COI# APP_11 Filed: 5/1/2017 5:39:40 PM Kittie Keiffer Appellant's Appendix, Volume 2 Clerk Huntington County, Indiana STATE OF INDIANA ) IN THE HUNTINGTON CIRCUIT COURT ) COUNTY OF HUNTINGTON ) CAUSE NUMBER: 35C01-1605-F3-96 STATE OF INDIANA, ) Plaintiff ) ) vs. ) ) JOHN C. MATHEW,) Defendant ) WPTA-TV’S VERIFIED MOTION TO INTERVENE AND RECONSIDER ORDER OF APRIL 20, 2017 WPTA-TV, by counsel, and pursuant to Indiana Rule of Trial Procedure 24(A)(2), and Indiana Administrative Rule 9(G), respectfully petitions the Court for leave to intervene in this matter for the limited purpose of objecting to the Court’s April 20, 2017 Order (“Order”) and moving for reconsideration of the same. In support of this request, WPTA-TV states as follows: 1. This criminal matter involves charges against Defendant for misdemeanor battery, I.C. § 35-42-2-1(b)(1), and level 6 felony sexual battery where the victim was compelled to submit by force or imminent threat of force, I.C. § 35-42-4-8(a)(1)(A). 2. On April 17, 2017, the Defendant entered a plea by agreement to the two level 6 felony charges. The two misdemeanor battery charges were dismissed. That same day, the Court held its sentencing hearing. 3. On April 18, 2017, WPTA-TV filed a Request for Records, seeking access to a digitally recorded victim impact statement (the “Record”). 4. On April 20, 2017, the Court issued its Order acknowledging that it was required to provide the Record but limiting its use by, among other things, prohibiting WPTA-TV from broadcasting the Record, subject to the Court’s contempt power. (Order at ¶¶ 2-5) APP_12 Appellant's Appendix, Volume 2 I. Motion to Intervene 5. As set forth by Rule 24(A)(2) of the Indiana Rules of Trial Procedure: anyone shall be permitted to intervene in an action: when the applicant claims and interest relating to a property, fund or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect his interest in the property, fund or transaction, unless the applicant’s interest is adequately represented by existing parties. (emphasis added). 6. WPTA-TV has a clear property interest in the victim impact statement which it has requested and been provided, but which it is prohibited from broadcasting or disseminating as a member of the free press. Accordingly, this Court shall permit WPTA-TV to intervene to protect its rights and interests. II. Motion to Reconsider 7. Prohibiting the use and dissemination of the Record in this manner violates the provisions of Indiana Administrative 9(G), which does not contemplate the relief ordered. Administrative Rule 9(G) allows for the restriction of public access of individual court records in two instances. 8. First, under Administrative Rule 9(G)(2), certain individual case records must be excluded from public access, including records declared confidential under federal law, state law or court rule, social security numbers, financial account numbers, and so forth. Here, the Record is not the type of individual case record that must be excluded from public access pursuant to Administrative 9(G)(2), as recognized by the Order in its acknowledgment that it was required to provide the requested record. (Order at ¶ 2) 9. Second, Administrative Rule 9(G)(4) states that, “in extraordinary circumstances,” an otherwise publicly available court record may be excluded if the following 2 APP_13 Appellant's Appendix, Volume 2 four conditions are met: (a) a verified written request to prohibit public access to a court record; (b) notice to all parties and the right to respond; (c) public hearing; and (d) a written order. By sua sponte issuing a written order limiting the use of the Record here, the Court improperly bypassed the provisions of Administrative Rule 9(G)(4)(a)-(c), and its Order is thus invalid. See Allianz Ins. Co. v. Guidant Corp., 884 N.E.2d 405 (Ind. Ct. App. 2008) (trial court order sealing litigation from public view violated Admin. R. 9 and was improper because no public hearing was held). 10. Even if the procedures required pursuant to Administrative Rule 9(G)(4)(a)-(c) were to be followed in this case, the victim impact statement would not qualify as a record that may be excluded or limited in its use. See, e.g., In re T.B., 895 N.E.2d 321 (Ind. Ct. App. 2008) (although juvenile court records are generally maintained confidentially affirming in part trial court’s grant of access to newspaper of certain DCS and juvenile court records where newspaper had legitimate interest in informing the public about death of child); cf. Angelopoulos v. Angelopoulos, 2017 Ind. App. 170 (Ind. Ct. App. Apr. 19, 2017) (petitioner proved by clear and convincing evidence that portions of deposition describing financial transactions should remain excluded from public access because of increased risk to petitioner and his family, public figures in native Greece should testimony be made public). 11. The commentary to Administrative Rule 9 makes clear that “given the societal interests in access to court records, this rule also reflects the view that any restriction to access must be implemented in a manner tailored to serve the interests in open access.” Commentary to Ind. Admin. R. 9(A); see also Allianz, 884 N.E.2d at 408. The stringent restriction placed on WPTA-TV by the Order – that WPTA-TV may not broadcast the Record – unnecessarily impinges WPTA-TV’s ability to report the circumstances of this case, which are of legitimate public interest. This restriction is not tailored to serve the interests of open access. 3 APP_14 Appellant's Appendix, Volume 2 12. Further, the Order amounts to an impermissible prior restraint on free speech by prospectively restricting WPTA-TV’s use of a publicly accessible document. See In re K.D., 929 N.E.2d 863, 868 (Ind. Ct. App. 2010) (juvenile court order prohibiting mother from discussing legal proceedings with the media following the establishment of paternity of her child determined to be invalid prior restraint of mother’s free speech rights). Use of the Record at issue here falls at the core of First Amendment protections and there is no basis to restrict WPTA-TV’s method of reporting the allegations against the Defendant. See Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976) (“prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” and are presumed unconstitutional); U.S. v. Brown, 250 F.3d 907, 914-15 (5th Cir. 2001) (finding prior restraints on media are constitutionally disfavored nearly to the point of extinction and will be upheld only if the government can establish that the activity restrained either poses a clear and present danger or a serious or imminent threat to a protected competing interest). The Order therefore violates the First Amendment and must be vacated. For the foregoing reasons, WPTA-TV respectfully requests that it be permitted to intervene in this matter and that the Court vacate its Order which impermissibly restricts WPTA- TV’s use of the victim impact statement at issue. Respectfully submitted, /s/ Margaret M. Christensen Daniel P. Byron, Atty. No. 3067-49 Margaret M. Christensen, Atty. No. 27061-49 Jessica Whelan, Atty. No. 30779-49 BINGHAM GREENEBAUM DOLL LLP [email protected] [email protected] [email protected] Attorneys for Intervenor, WPTA-TV 4 APP_15 Appellant's Appendix, Volume 2 CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 1st day of May, 2017, the foregoing document was electronically filed using the Indiana E-filing System (“IEFS”). I certify that the following were electronically served a copy of the foregoing document: Richison, Amy Christine Room 420, Courthouse Huntington, IN 46750-0000 Gevers, Robert William 809 S Calhoun Street Suite 600 Fort Wayne, IN 46802-0000 /s/ Margaret M. Christensen An Attorney for Intervenor Daniel P. Byron, Atty. No. 3067-49 Margaret M. Christensen, Atty. No. 27061-49 Jessica Whelan, Atty. No. 30779-49 BINGHAM GREENEBAUM DOLL LLP 2700 Market Tower 10 West Market Street Indianapolis, IN 46204-2982 (317) 635-8900 (317) 236-9907 (facsimile) [email protected] [email protected] [email protected] 18431895 5 APP_16 Appellant's Appendix, Volume 2 VERIFICATION OF ACCURACY I verify under penalties of perjury and pursuant to Appellate Rule 50(A) that the documents in this 2-Volume Appendix of Appellant, WPTA-TV, are accurate copies of parts of the Record on Appeal. Respectfully submitted, /s/ Margaret M. Christensen Margaret M. Christensen, Atty. No. 27061-49 Jessica E. Whelan, Atty. No. 30779-49 BINGHAM GREENEBAUM DOLL LLP 2700 Market Tower, 10 W. Market Street Indianapolis, IN 46204-4900 (317) 635-8900 (317) 236-9907 Fax [email protected] [email protected] Attorneys for Appellant, WPTA-TV APP_17 Appellant's Appendix, Volume 2 Appendix of Appellant, WPTA-TV Volume 2 CERTIFICATE OF FILING AND SERVICE I hereby certify that on June 20, 2017, the foregoing 2-Volume Appendix of Appellant, WPTA-TV was filed with the Clerk of the Indiana Court of Appeals via electronic filing utilizing the Indiana E-Filing System (IEFS). I further certify that on June 20, 2017, the foregoing 2-Volume Appendix of Appellant, WPTA-TV was served upon the following counsel of records via IEFS: Indiana Attorney General’s Office [email protected] Amy C. Richison Jamie Groves Huntington County Prosecutor’s Office [email protected] [email protected] Robert Gevers II [email protected] /s/ Margaret M. Christensen 2 APP_18