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Opinions Aug. 15, 2014

August 15, 2014
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The following 7th Circuit Court of Appeals opinion was posted after IL deadline Thursday:
United States of America v. Randall Ray Fletcher Jr.
12-3104
U.S. District Court, Northern District of Indiana, Hammond Division. Judge Joseph S. Van Bokkelen.
Criminal. Affirms 30-year sentence in prison plus a lifetime of supervised release following a guilty plea to five counts involving child pornography that occurred over a seven-year period. Because his crimes spanned a range of years during which the guidelines for child pornography offenses underwent significant changes, his sentencing posed complex calculations and raised potential constitutional problems. Any errors the court made in calculating the guidelines sentence for Fletcher were harmless.

Friday’s opinions
Indiana Court of Appeals

Dee Ward v. State of Indiana
49A02-1401-CR-25
Criminal. Affirms convictions of Class C felony battery and Class A misdemeanor domestic battery. The Confrontation Clause does not apply because victim J.M.’s statements to the treating paramedic and forensic nurse were not testimonial and the evidence is sufficient to prove Ward committed the underlying battery by means of a deadly weapon.

Michael Kevin Mallory v. State of Indiana
20A03-1403-MI-76
Miscellaneous. Reverses denial of Mallory’s petition to expunge his Class D felony conviction records. Because the word “shall” is ordinarily construed as mandatory language, I.C. 35-38-9-3(e) unambiguously requires expungement if all statutory requirements are met. Remands with instructions.

Allison I. (Wagaman) DeCloedt v. Shane C. Wagaman
92A03-1401-DR-39
Domestic relation. Affirms dissolution court’s order denying DeCloedt’s motion to relocate and granting Wagaman’s petition to modify custody and parenting time. It is in the best interests of the child to stay in Indiana with his father and future stepsiblings, both sets of grandparents and cousins living nearby.

In the Matter of: S.A. (Minor Child), Child in Need of Services and M.H. (Father) v. The Indiana Department of Child Services
49A02-1402-JC-74
Juvenile. Reverses order continuing the adjudication of S.A. as a child in need of services. The evidence does not support that court intervention is required for father to meet S.A.’s needs.

In the Matter of the Termination of the Parent-Child Relationship of: D.D. (Minor Child) and B.T. (Mother) and D.D. (Father) v. Indiana Department of Child Services (NFP)
49A02-1312-JT-1027
Juvenile. Affirms termination of parental rights.

Thomas Yoder v. State of Indiana (NFP)
20A03-1401-CR-2
Criminal. Reverses part of the sentencing order that restitution for the victim be ordered through a victim-offender reconciliation program instead of determined by the court. Remands for a restitution hearing.

Terry A. Moore v. State of Indiana (NFP)
49A05-1401-PC-11
Post conviction. Affirms denial of petition for post-conviction relief.

J.E. v. State of Indiana (NFP)
49A02-1312-JV-1053
Juvenile. Affirms adjudication of delinquency based on findings J.E. committed what would be two counts of Class B felony child molesting if committed by an adult.

In Re: The Paternity of R.M.: Laura K. Chivers v. Jeffery L. Marquardt (NFP)
02A05-1310-JP-496
Juvenile. Affirms order modifying custody and parenting time.

Dennis Wireman v. State of Indiana (NFP)
75A03-1312-CR-504
Criminal. Affirms sentence for convictions of three counts of Class D felony illegal possession of a controlled substance, Class D felony illegal possession of a syringe and Class D felony operating a vehicle while intoxicated with a prior conviction.

In the Matter of Q.F. v. State of Indiana (NFP)
03A01-1401-JV-45
Juvenile.  Finds entering true findings of both battery resulting in bodily injury and disorderly conduct violates double jeopardy principles. Remands with instructions to vacate Q.F.’s true finding of disorderly conduct. Affirms true finding of battery resulting in bodily injury.

Marshawn A. Moore v. State of Indiana (NFP)
02A04-1312-CR-623
Criminal. Affirms conviction of Class A felony burglary.

Debb Durbin v. State of Indiana (NFP)
49A02-1312-CR-1043
Criminal. Affirms conviction of Class A misdemeanor criminal trespass.

Stephen W. McIntyre v. State of Indiana (NFP)
35A02-1402-CR-82
Criminal. Affirms conviction of Class D felony theft.

Darnell M. Rias, Sr. v. State of Indiana (NFP)
45A05-1312-CR-630
Criminal. Remands with instructions to vacate Rias’ conviction for Class D felony failure to register as a sex or violent offender due to double jeopardy principles. Affirms second conviction and sentence for Class D felony failure to register as a sex or violent offender as a Class D felony.
 

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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