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Supreme Court grants 3 transfers

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The Indiana Supreme Court granted three transfers Wednesday, including a case of first impression on sentence enhancements.

Joshua G. Nicoson v. State of Indiana, No. 32S04-1003-CR-150, is a case of first impression that divided the Indiana Court of Appeals about whether Joshua Nicoson's sentence enhancement based on his use of a deadly weapon violated double-jeopardy principals. The majority affirmed his 5-year sentence enhancement for the use of a firearm following Nicoson's convictions of criminal confinement with a deadly weapon and pointing a firearm.

The majority concluded it was apparent that Nicoson's convictions for confinement and the enhancement for that offense relied on separate facts. His criminal confinement conviction was elevated to a Class B felony because he was armed with a deadly weapon, and there's no requirement that the state has to prove a defendant actually used the weapon during the commission of the offense. The enhancement provision refers to actual use.

Judge Carr Darden dissented because Nicoson was charged and convicted of confining the victims while armed with a deadly weapon and of using a firearm while committing the confinement. If the deadly weapon is a firearm, how could a person thereby armed not also commit the offense of confinement using a firearm, questioned Judge Darden.

In Richard Patrick Wilson and Billy Don Wilson v. Gene Isaacs, Sheriff of Cass County, and Brad Craven, No. 09S05-1003-CV-149, the Court of Appeals held the use of excessive force is not conduct immunized under Section 3(8) of the Indiana Tort Claims Act. It reversed summary judgment in favor of Cass County Sheriff Gene Isaacs in the Wilson brothers' suit alleging injuries as a result of excessive force. The appellate court noted there has been some confusion whether the ITCA law enforcement immunity provision applies to claims for injuries resulting from the use of excessive force during detention or arrest.

There are questions about whether Kemezy v. Peters, 622 N.E.2d 1296 (Ind. 1993), still remains good law. In Kemezy, the Supreme Court found law enforcement officers owe a private duty to refrain from excessive force when making arrests and the use of excessive force isn't immunized by Section 3(8). The judges followed the U.S. District Court for the Southern District of Indiana's reasoning on Kemezy to conclude the use of excessive force is not conduct immunized under section 3(8) of the ITCA.

In In the matter of the involuntary termination of the parent-child relationship of I.A.; J.H. v. Indiana Department of Child Services, No. 62S01-1003-JV-148, the Court of Appeals unanimously affirmed the involuntary termination of father J.H.'s parental rights in the not-for-publication decision. The father argued the Department of Child Services didn't prove by clear and convincing evidence that the conditions that resulted in I.A.'s removal wouldn't be remedied and that his relationship with his son threatened I.A.'s well-being. He argued it was I.A.'s mother's behavior and acts of negligence and not his that led to I.A.'s initial removal from his mother's home.

The Court of Appeals found sufficient evidence, such as J.H. hadn't bonded with his child and he lacked proper parenting skills after months of training.

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  1. I have had an ongoing custody case for 6 yrs. I should have been the sole legal custodial parent but was a victim of a vindictive ex and the system biasedly supported him. He is an alcoholic and doesn't even have a license for two yrs now after his 2nd DUI. Fast frwd 6 yrs later my kids are suffering poor nutritional health, psychological issues, failing in school, have NO MD and the GAL could care less, DCS doesn't care. The child isn't getting his ADHD med he needs and will not succeed in life living this way. NO one will HELP our family.I tried for over 6 yrs. The judge called me an idiot for not knowing how to enter evidence and the last hearing was 8 mths ago. That in itself is unjust! The kids want to be with their Mother! They are being alienated from her and fed lies by their Father! I was hit in a car accident 3 yrs ago and am declared handicapped myself. Poor poor way to treat the indigent in Indiana!

  2. The Indiana DOE released the 2015-2016 school grades in Dec 2016 and my local elementary school is a "C" grade school. Look at the MCCSC boundary maps and how all of the most affluent neighborhoods have the best performance. It is no surprise that obtaining residency in the "A" school boundaries cost 1.5 to 3 times as much. As a parent I should have more options than my "C" school without needing to pay the premium to live in the affluent parts of town. If the charter were authorized by a non-religious school the plaintiffs would still be against it because it would still be taking per-pupil money from them. They are hiding behind the guise of religion as a basis for their argument when this is clearly all about money and nothing else.

  3. This is a horrible headline. The article is about challenging the ability of Grace College to serve as an authorizer. 7 Oaks is not a religiously affiliated school

  4. Congratulations to Judge Carmichael for making it to the final three! She is an outstanding Judge and the people of Indiana will benefit tremendously if/when she is chosen.

  5. The headline change to from "religious" to "religious-affiliated" is still inaccurate and terribly misleading.

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