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Opinions Oct. 19, 2012

October 19, 2012
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Indiana Supreme Court and Indiana Tax Court posted no opinions by IL deadline Friday.

U.S. 7th Circuit Court of Appeals posted no Indiana opinions by IL deadline Friday.

Indiana Court of Appeals
Rodney Killebrew II v. State of Indiana

34A02-1204-CR-303
Criminal. Reserves a conviction of possession of marijuana after concluding the trial court abused its discretion when it admitted evidence obtained at an illegal traffic stop. The court found the police officer had no grounds to stop the driver because the continuous use of a turn signal is not a traffic violation and the officer’s actions did not fall within his community caretaking function.  

Alton Neville v. State of Indiana
49A05-1201-CR-9
Criminal. Affirms conviction of murder and carrying a handgun without a license, holding that while there was prosecutorial error that included improperly presenting facts not in evidence and improperly inflaming the passions and prejudices of the jury, the improper comments did not rise to the level of fundamental error.

In Re the Marriage of Yan Wolfman v. Estelle Wolfman (NFP)
45A03-1201-DR-17
Domestic relations/divorce. Remands to the trial court to clarify division of assets.

Jeffery Sanders v. State of Indiana (NFP)
49A04-1203-CR-150
Criminal. Affirms conviction of Class D felony theft and adjuctication as a habitual offender.
 
Delareco Pacely v. State of Indiana (NFP)
44A03-1110-CR-488
Criminal. Affirms 18-year sentence for three convictions of Class C felony child molesting.

Albert Harris v. State of Indiana (NFP)
49A02-1205-PC-386
Post conviction. Affirms trial court denial of petition for post-conviction relief.

Brandon Boles v. State of Indiana (NFP)
49A02-1203-CR-226
Criminal. Reverses 10-day sentence for failure to complete community service as a requirement of a sentence for a conviction of public intoxication.

Donzahue Pearson v. State of Indiana (NFP)
49A02-1202-CR-119
Criminal. Affirms denial of motion to dismiss Class D felony charge of sex offender who failed to possess valid identification.  

Dean Eric Blanck v. State of Indiana (NFP)
29A02-1204-CR-281
Criminal. Affirms 730-day sentence after a guilty plea to charges of Class D felony resisting law enforcement and Class C misdemeanor operating while intoxicated.

 

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  2. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  3. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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