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Opinions Jan. 21, 2014

January 21, 2014
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7th Circuit Court of Appeals
United States of America v. Lovoyne Drain
12-3684
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Criminal. Affirms above-guidelines sentence for possession of a firearm by a felon. Section 4A1.3(a)(3), like every provision of the sentencing guidelines, is advisory. And the judge did not violate Drain’s right to due process by taking into account his arrest history as part of her evaluation of the sentencing factors under 18 U.S.C. Section 3553(a).

Indiana Supreme Court
American Cold Storage, et al. v. The City of Boonville
87S01-1303-PL-157
Civil plenary. Reverses the decision of the trial court and remands for further proceedings consistent with this opinion. Holds that the land in this case, which comprises the portion of State Road 62 included in the annexed territory, should be considered and counted as a single parcel in determining whether the remonstrating Landowners comprise 65 percent of the owners of the annexed territory.

Indiana Court of Appeals
Michael Weist v. Kristen Dawn and State Farm Insurance Companies
49A02-1306-PL-541
Civil plenary. Affirms summary judgment in favor of State Farm on Weist’s complaint for monetary damages based on the direct action rule. Reverses summary judgment in favor of Dawn and remands for a trier of fact to resolve whether she is equitably estopped from asserting the defense that the statute of limitations bars Weist’s claim.

In the Matter of the Petition for Temporary Protective Order: A.N. v. K.G.
49A04-1212-PO-649
Protective order. Affirms order of contempt in favor of K.G. The trial court did not improperly act as an advocate and therefore did not deny A.N. her due process right to a fair trial before an impartial tribunal. Judge Robb concurs in separate opinion.

Terry Berry v. State of Indiana (NFP)
49A02-1307-CR-583
Criminal. Affirms conviction of Class A misdemeanor criminal trespass.

Christopher Jethroe v. State of Indiana (NFP)
49A05-1304-CR-155
Criminal. Remands with instructions to the trial court to revise the sentence on the Class C felony dealing in marijuana conviction downward to a term of imprisonment within the range authorized by the Class C felony sentencing statute. Affirms conviction of Class A felony dealing in a controlled substance within 1,000 feet of school property.

Tievon N. Nichols v. State of Indiana (NFP)
20A03-1307-CR-293
Criminal. Affirms aggregate 50-year executed sentence following guilty plea to one count of Class A felony burglary, two counts of Class B felony robbery while armed with a deadly weapon and one count of Class B felony criminal confinement.

Brandon M. Ebeyer v. State of Indiana (NFP)
49A02-1304-CR-372
Criminal. Reverses conviction of Class A misdemeanor criminal trespass.

In the Matter of the Termination of the Parent-Child Relationship of: N.I., the minor child, and K.I., the mother, K.I. v. The Indiana Department of Child Services (NFP)
91A04-1305-JT-244
Juvenile. Affirms involuntary termination of parental rights.

Smita Radhakrishnan v. Access Therapies, Inc. (NFP)
49A02-1303-PL-202
Civil plenary. Reverses award of $32,237.60 in damages plus costs for a breach of contract and remands for further proceedings. Affirms dismissal of Radhakrishnan’s counterclaim requesting attorney fees and costs.

Charles E. Howard v. State of Indiana (NFP)
53A01-1304-CR-164
Criminal. Dismisses appeal of denial of motion to correct error following denial of motion for jail time credit.

Edward Zaragoza v. State of Indiana (NFP)
79A02-1209-CR-744
Criminal. Affirms convictions of Class A felonies murder, conspiracy to commit robbery, conspiracy to commit burglary, attempted robbery and burglary; Class D felonies conspiracy to commit theft and theft; and Class B felony possession of a firearm by a serious violent felon as well as determination Zaragoza is a habitual offender.

Darrell Kirkwood v. State of Indiana (NFP)
31A01-1305-CR-209
Criminal. Affirms revocation of probation and imposition of previously suspended sentence.

VPR Properties, LLC and Purna Veer and Radhika Veer v. Affiliated Foot Care Clinic, PC (NFP)
10A04-1304-PL-177
Civil plenary. Affirms judgment in favor of Affiliated Foot Care Clinic after it filed a breach of contract action against VPR properties.

Timothy J. Padgett v. State of Indiana (NFP)
51A01-1305-CR-228
Criminal. Affirms conviction of Class B felony burglary.

Donald Ware v. State of Indiana (NFP)
49A02-1304-PC-370
Post conviction. Affirms denial of petition for post-conviction relief.

The Indiana Tax Court posted no opinions by IL deadline.
 

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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