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Opinions Nov. 20, 2012

November 20, 2012
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7th Circuit Court of Appeals
United States of America v. Lincoln Plowman
11-3781
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Larry J. McKinney.
Criminal. Affirms Plowman’s convictions of federal funds bribery and attempted extortion under color of official right. The District Court did not err when it precluded him from arguing entrapment to the jury.

Shane A. Holloway v. Delaware County Sheriff, in his official capacity, et al.
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2012/november/ND0NZ09G.pdf
12-2592
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane E. Magnus-Stinson.
Civil. Affirms summary judgment for the defendants on Holloway’s lawsuit alleging the sheriff violated his rights by detaining him without charges for nine days and that the jail physician and two of his attending nurses violated his constitutional rights by acting with deliberate indifference as to his serious medical condition. Based on the evidence, no reasonable jury could have concluded the doctor acted with deliberate indifference, the nurses could not prescribe medicine on their own, and Holloway can’t demonstrate that the sheriff’s actions violated due process or that the sheriff acted pursuant to an unconstitutional policy or custom.

Indiana Court of Appeals
Dennis Vermillion v. State of Indiana
13A01-1201-CR-17
Criminal. Affirmed in part, reversed in part and remanded for resentencing. The COA ruled Vermillion’s convictions do not violate double jeopardy and while the admission of prior-misconduct evidence was an error, it did not constitute a fundamental error. Also, the court concluded the trial court acted within its discretion in ordering Vermillion to serve consecutive sentences. However, it did find Vermillion’s total sentence exceeds the cap permitted by the Indiana Code section 35-50-1-2(c).

Cynthia L. Seleme v. JP Morgan Chase Bank, National Association, as successor by merger to Chase Home Finance
02A03-1205-MF-234
Mortgage foreclosure. Affirms trial court denial of relief from judgment on a residential mortgage, finding that the plaintiff did not demonstrate a meritorious defense as required under Trial Rule 60(B)(1), (3), or (7).

Richard Troy Dunno v. Ronalee Rasmussen
02A03-1207-PO-310
Protective order. Reverses trial court’s judgment ordering Dunno to pay Rasmussen’s attorney fees when she contested a protective order that Dunno had been granted against her on the allegation that she hit him with a vodka bottle, resulting in 18 stitches. The COA held that the trial court abused its discretion in awarding attorney fees to Rasmussen when she presented evidence at a hearing Dunno didn’t attend saying that she wasn’t the aggressor. The court held that awarding of fees was an abuse of discretion because the trial court cited no statutory authority under which the award could be made.

In the Matter of the Commitment of L.W. v. Wishard Health Services, Midtown Community Mental Health Center (NFP)
49A05-1202-MH-70
Mental Health. Affirms trial court’s order to involuntarily commit L.W. to Midtown Community Mental Health Center.

A.M. v. State of Indiana (NFP)
67A01-1205-JV-211
Juvenile Delinquency. Reverses trial court’s order adjudicating A.M. as a delinquent child.

Daniel R. Fuquay, Sr. v. State of Indiana (NFP)
82A01-1110-PC-519
Post-Conviction Relief Petition. Affirms denial of petition for post-conviction relief.

Paulette Petkovich, et al. v. Prime Contractors Co., Inc. (NFP)
64A03-1203-MF-102
Mortgage Foreclosure. Affirms in part, reserves in part, and remands. The COA affirms the award of attorney’s fees to Prime Contractors; but reverses and remands the trial court’s judgment in setting the priority of the various liens on the home.

Jose Gonzalez v. State of Indiana (NFP)
48A02-1203-CR-182
Criminal. Affirms the trial court’s decision to sentence Gonzalez to 40 years.

Damian Ray Ramirez v. State of Indiana (NFP)
71A04-1205-CR-274
Criminal. Affirms conviction for battery with a deadly weapon, a Class C felony.

In the Matter of the Term. of the Parent-Child Rel. of B.T., C.K. and D.K.; D.K. v. Indiana Dept. of Child Services (NFP)
49A05-1202-JT-89
Juvenile Termination of Parental Rights. Affirms mother’s involuntary termination of her parental rights to her minor children, B.T., C.K. and D.K.

Gerald E. Smith v. Ronda K. (Smith) Busch (NFP)
67A01-1205-DR-241
Domestic Relation. Reverses the granting of the motion to correct error and remands this matter to the trial court with instructions to reinstate its order granting the Trial Rule 41(E) dismissal.

Carmel Lofts LLC and Keystone Construction Corp. v. Elbrecht Investments, LLC (NFP)
29A05-1205-PL-266
Civil Plenary. Affirms trial court’s granting of summary judgment for Elbrecht on its mechanic’s lien claim against Carmel Lofts for the full amount of its retainage.

Edward Graveline v. Melina (Graveline) Peyovich (NFP)
45A04-1201-DR-28
Domestic Relation. Affirms trial court’s denial of Graveline’s motion for relief from judgment and declines to award appellate attorney fees in this matter.

In the Matter of the Term. of the Parent-Child Rel. of J.R. and L.R.; and J.E. v. Indiana Dept. of Child Services (NFP)
09A05-1203-JT-152
Juvenile Termination of Parental Rights. Affirms the involuntary termination of father’s rights to his children, J.R. and L.R.

Dequincy Lopez v. State of Indiana (NFP)
49A04-1204-PC-184
Post-Conviction Relief Petition. Affirms denial of Lopez’s request for post-conviction relief.

Ivan Calderon v. State of Indiana (NFP)
49A04-1202-CR-88
Criminal. Affirms conviction of disarming a law enforcement officer as a Class C felony, pointing a firearm as a Class D felony, resisting law enforcement as a Class D felony, possession of marijuana as a Class A misdemeanor, and carrying a handgun without a license as a Class A misdemeanor. Finds trial court did not commit a fundamental error when it admitted the evidence seized from Calderon.  

John R. Northern v. State of Indiana (NFP)
56A03-1202-CR-62
Criminal. Affirms conviction of dealing in methamphetamine as a Class A felony and conspiracy to deal in methamphetamine as a Class A felony.

Dannie Engram v. State of Indiana (NFP)
49A02-1204-PC-309
Post-Conviction Relief Petition. Affirms denial of Engram’s petition for post-conviction relief.

Washaun Jones v. State of Indiana (NFP)
49A02-1204-CR-342
Criminal. Reverse and remands with instructions to vacate trial court’s order regarding the denial of Jones’s credit time for bad behavior and to correct the abstract of judgment so it reflects that Jones was convicted of dealing in cocaine as a Class B felony.

Todd Baker and Susan Baker v. Marathon Pipe Line, LLC (NFP)
87A01-1204-PL-156
Civil Plenary. Affirms denial of Bakers’ motion to correct error on the issue of whether their amended counterclaim for malicious prosecution was properly dismissed and of their motion to file a second amended counterclaim on the malicious prosecution and attorney fees issues.  
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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