Opinions

Opinions April 28, 2014

April 28, 2014
Indiana Court of Appeals
John M. Weidman v. State of Indiana
03A01-1306-CR-255
Criminal. Affirms 14-year sentence following guilty pleas in two separate causes. Weidman specifically agreed in his plea agreement that he was not entitled to credit for the time he was on electronic monitoring as a condition of his release on bond. Accordingly, he may not now claim that he was entitled to credit for the time he was on electronic monitoring.
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Opinions April 25, 2014

April 25, 2014
Indiana Court of Appeals
Marvin Garner v. State of Indiana
49A02-1310-CR-834
Criminal. Affirms aggregate 60-year sentence for four counts of Class A felony child molesting. His offenses were committed against multiple victims and against the same victims repeatedly, and his victims were young and he abused this position of trust.
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Opinions April 24, 2014

April 24, 2014
Indiana Court of Appeals
Donnetta Newell v. State of Indiana
49A02-1309-CR-744
Criminal. Affirms Class A misdemeanor intimidation conviction. The trial court did not abuse its discretion in admitting evidence of the incident that led to Newell’s eviction and there is sufficient evidence for the finder of fact to conclude that Newell knew her statement to a security guard would be transmitted to the subject of her threat.
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Opinions April 23, 2014

April 23, 2014
Indiana Court of Appeals
Matthew P. Wilhoite v. State of Indiana
34A04-1303-CR-138
Criminal. Affirms conviction of Class B felony “conspiracy to commit attempted armed robbery.” Wilhoite argued his conviction is invalid because a person may not be convicted of “conspiring to attempt” any crime. Although the state referenced a non-existent crime when it listed “conspiracy to commit attempted robbery” on the charging information as the crime committed, Wilhoite has not demonstrated fundamental error.
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Opinions April 22, 2014

April 22, 2014
Indiana Court of Appeals
Shelly Bailey v. Lance Bailey
25A04-1309-DR-452
Domestic relation. Reverses trial court’s modification of physical custody of the two children. Finds the Parallel Parenting Time Order did not enable the court to modify the children’s custody to joint custody especially since neither parent petitioned for a change in custody. Judge John Baker dissented, writing that, as instructed by the Parallel Parenting Time Order, the trial court was trying to act in the best interest of the children and to prevent any further destructive behavior by the parents.
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Opinions April 21, 2014

April 21, 2014
Indiana Court of Appeals
Old Utica School Preservation, Inc., Kenneth Morrison, Scott Sandefur, and Pamela Sandefur v. Utica Township, John Durbin, Utica Township Trustee, Jacobs Well, Inc., Kevin Williar, John Posey, et al.
10A05-1308-PL-388
Civil plenary. Reverses trial court grant of summary judgment in favor of Utica Township defendants and remands for proceedings on their claims. Old Utica School Preservation plaintiffs are entitled under the public standing doctrine to proceed with their claim that the township violated language in a quitclaim deed requiring the former school to be operated by the township solely for park and recreation purposes. Plaintiffs sued when the township leased the building for purposes including temporary housing or a halfway house for criminal offenders.
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Opinions April 17, 2014

April 17, 2014
Indiana Court of Appeals
Jason Taylor v. State of Indiana
45A03-1310-CR-406
Criminal. Reverses denial of petition for expungement. Determines that the word “shall” in Section 35-38-9-2(d) is mandatory language requiring expungement. And such an interpretation does not render Section 35-38-9-9(d) meaningless because that section applies to other parts of the statute where the trial court does have discretion to deny a petition for expungement.
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Opinions April 16, 2014

April 16, 2014
Indiana Supreme Court
David Bleeke v. Bruce Lemmon, in his capacity as Commissioner of the Indiana Department of Correction; Thor R. Miller, as Chairman of the Indiana Parole Board; et al.
02S05-1305-PL-364
Civil plenary. Reverses the trial court’s grant of summary judgment in favor of the parole board with respect to Bleeke’s additional parole conditions 4, 5, 17, 19 and 20, and remands with instructions that it enter an order enjoining the parole board from enforcing those conditions. Affirms the trial court’s grant of summary judgment to the parole board with respect to Bleeke’s claims about the constitutionality of the Sex Offender Management and Monitoring Program.
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Opinions April 15, 2014

April 15, 2014
7th Circuit Court of Appeals
United States of America v. Marcus Henderson
13-2483
Criminal. Affirms denial of motion to suppress and conviction of being a drug user in possession of firearms in violation of 18 U.S.C. Section 922(g)(3). The record is replete with specific and articulable facts which the SWAT officers reasonably relied upon to conclude that the officers or others faced a dangerous situation without a protective sweep of his house.
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Opinions April 14, 2014

April 14, 2014
Indiana Court of Appeals
Ball State University v. Jennifer Irons, In re the Marriage of: Jennifer Irons, Wife, and Scott Irons, Husband
45A03-1307-DR-296
Domestic relation. Dismisses Ball State’s appeal of the order to release the college transcript of Jennifer Irons’ child. This appeal was not properly brought under Appellate Rule 14(A)(3). Denies Jennifer Irons’ request for appellate attorney fees. Judge Brown concurs in part and dissents in part.
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Opinions April 11, 2014

April 11, 2014
Indiana Court of Appeals
Randall Langford v. State of Indiana (NFP)
30A01-1309-CR-431
Criminal. Affirms conviction of Class A misdemeanor operating a motor vehicle while intoxicated.
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Opinions April 10, 2014

April 10, 2014
Indiana Court of Appeals
HRC Hotels, LLC v. Metropolitan Board of Zoning Appeals Division II of Marion County, Indiana, Jeffrey R. Baumgarth and The Myers Y. Cooper Company
49A04-1307-PL-313
Civil plenary. Reverses dismissal of HRC Hotels’ amended petition for judicial review, which substituted I-465 LLC as the real party in interest instead of HRC Hotels. The standing requirements under I.C. 36-7-4-1603 are procedural rather than jurisdictional, so HRC Hotels’ alleged lack of standing when the petition was filed does not deprive the trial court of subject-matter jurisdiction. It should substitute I-465 LLC as a real party in interest and hear the merits of the petition for judicial review. Remands for further proceedings.
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Opinions April 9, 2014

April 9, 2014
Indiana Court of Appeals
In re the Order for the Payment of Attorney Fees and Reimbursement of Expenses, State of Indiana v. Jeffrey Cook
48A02-1307-MI-615
Miscellaneous. Affirms order the state should pay Pendleton Correctional Facility inmate Jeffrey Cook’s appellate counsel $5,232.35 in attorney fees and expenses. I.C. 33-37-2-4, which recognizes the financial burden placed on counties containing state correctional facilities, and shifts the burden to the state to pay both trial and appellate costs.
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Opinions April 8, 2014

April 8, 2014
Indiana Court of Appeals
Michael A. Ney v. Susan A. Ney (Beery) (NFP)
49A02-1309-DR-836
Domestic relation. Affirms denial of Michael Ney’s motion to decrease his child support obligation.
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Opinions April 7, 2014

April 7, 2014
7th Circuit Court of Appeals
United States of America v. Stephanie L. Donelli
13-2548
Criminal. Affirms 60-month sentence for convictions of wire fraud and tax evasion. Donelli’s claim that the trial court erred by failing to consider her mental illness, bipolar II disorder, as a principal argument in mitigation was rejected because she failed to present the diagnosis as a principal argument in mitigation, and because she waived the argument by failing to object to her sentence apart from the fact that it was above the guidleline range.
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Opinions April 4, 2014

April 4, 2014
7th Circuit Court of Appeals
The following opinion was issued after IL deadline Thursday.

United States of America v. Lori Hargis
12-2153
Criminal. Affirms 60-month sentence for Lori Hargis’ conviction of conspiracy to use fire to commit wire fraud for her role in recruiting a man to set fire to her home to collect insurance proceeds. Circuit judges rejected Hargis’ argument that the District Court erred when it adjusted her sentence from the guideline range of 15 to 21 months in prison, finding that the judge adequately explained his rationale for imposing sentence.
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Opinions April 3, 2014

April 3, 2014
Indiana Court of Appeals
Jeffrey M. Miller and Cynthia S. Miller v. Federal Express Corporation and 500 Festival, Inc.
49A02-1307-PL-619
Civil plenary. Affirms summary judgment in favor of Federal Express and 500 Festival. The panel held that the entities were immune from the Millers’ claims of defamation and intentional infliction of emotional distress due to online comments critical to his leadership of Junior Achievement of Central Indiana. The entities are immune to the claims under the Communications Decency Act, which recognizes them as providers, not publishers, of Internet content.
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Opinions April 2, 2014

April 2, 2014
Indiana Court of Appeals
David S. Healey v. State of Indiana (NFP)
33A01-1308-MI-368
Miscellaneous. Affirms the trial court’s order directing law enforcement and the Indiana Department of Correction to ensure that Healey’s information was no longer published on the Sex and Violent Offender Registry. Healey had appealed the order, arguing the trial court should have stated the 1995 amendment to the Sex and Violent Offender Registration Act was ex post facto punishment as applied to him and the trial court should have specifically noted any extraneous statements that it had made.
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Opinions April 1, 2014

April 1, 2014
Indiana Supreme Court
Bryant E. Wilson v. State of Indiana
27S02-1309-CR-584
Criminal. Reverses trial court denial of motion to correct erroneous sentence and remands for resentencing. Holds that the Indiana Code does not authorize a sentence to be imposed in part as consecutive and in part as concurrent, and orders Wilson resentenced on a rape conviction for an aggregate term not to exceed 50 years in prison.
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Opinions March 31, 2014

March 31, 2014
7th Circuit Court of Appeals
USA v. Randall Causey, 13-1321
Criminal. Affirms Causey’s convictions and 108-month sentence for one count of conspiring to commit wire fraud in violation of 18 U.S.C. 1349 and eight counts of aiding and abetting the commission of, and committing the offenses of, wire fraud in violation of 18 U.S.C. 1343. Ruled that the District Court did not abused its discretion in admitting evidence and that the District Court erred in barring the defense witness from giving expert testimony while allowing the expert testimony by the government witness. Also finds the District Court properly applied two-level sentencing enhancement. 
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Opinions March 28, 2014

March 28, 2014
Indiana Court of Appeals
In Re Paternity of D.T. (Minor Child) Diamond T. Parks (Mother) v. Deante Rashon Tate (Father)
48A05-1309-JP-486
Juvenile. Reverses award of custody to father, who resided in Indiana, from mother, who lived in Mississippi. The trial court lacked subject matter jurisdiction. The trial court adjudicated the custody request of father as part of the Uniform Interstate Family Support Act cause of action, even though the UIFSA specifies that the court lacks jurisdiction to make such a determination absent a stipulation between the parties. 
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Opinions March 27, 2014

March 27, 2014
Indiana Supreme Court
Christopher Smith v. State of Indiana
18S02-1304-CR-297
Criminal. Affirms conviction and sentence for Class B misdemeanor failure to report a student’s rape allegation to DCS or local law enforcement based on the statute that requires a school to report instances of child abuse. The reporting requirement is not unconstitutionally vague and there is sufficient evidence to sustain Smith’s conviction. Justices Rucker and Chief Justice Dickson dissent in a separate opinion.
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Opinions March 26, 2014

March 26, 2014
Indiana Supreme Court
In the Matter of the Involuntary Termination of the Parent-Child Relationship of I.P., T.P. v. Indiana Department of Child Services, and Child Advocates, Inc.
49S02-1402-JT-81
Juvenile. Reverses termination of parental rights. Finds the procedure used violated the father T.P.’s due process rights. The magistrate who presided over the termination hearing resigned before reporting recommended findings and conclusions to the judge. Another magistrate, without holding a new evidentiary hearing, reviewed the record and reported recommended findings and conclusions to the judge, who ordered the mother’s parental rights terminated. Holds Trial Rule 63(A) is inapplicable.
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Opinions March 25, 2014

March 25, 2014
Indiana Supreme Court
Joanna S. Robinson v. State of Indiana
20S04-1307-CR-471
Criminal. Affirms trial court’s denial of Robinson’s motion to suppress. Agrees with trial court in giving deference to deputy’s testimony that he initiated the traffic stop after observing Robinson drive off the roadway twice even though the video from the deputy’s in-car camera only shows Robinson weaving onto the fog line. Rucker dissents, asserting giving credit to the deputy’s testimony over the video amounts to reweighing evidence.
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Opinions March 24, 2014

March 24, 2014
Indiana Supreme Court
State of Indiana v. I.T.
20S03-1309-JV-583
Juvenile. Affirms juvenile court’s dismissal of a delinquency petition against I.T. that had been filed on the sole basis of a polygraph examination taken while he was receiving treatment as a condition of probation for a delinquency adjudication for what would be Class B felony child molesting if committed by an adult. Finds that the limited immunity in the Juvenile Mental Health Statute, I.C. § 31-32-2-2.5, provides a safe harbor that prevents the state from using statements during court-ordered therapy as the sole basis for juvenile delinquency petitions.  Concludes the state may appeal a juvenile court order that suppresses evidence, if doing so terminates the proceeding.
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  1. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

  2. As an adoptive parent, I have to say this situation was as shameful as it gets. While the state government opens its wallet to the Simons and their friends, it denied payments to the most vulnerable in our state. Thanks Mitch!

  3. We as lawyers who have given up the range of First amendment freedom that other people possess, so that we can have a license to practice in the courts of the state and make gobs of money, that we agree to combat the hateful and bigoted discrimination enshrined in the law by democratic majorities, that Law Lord Posner has graciously explained for us....... We must now unhesitatingly condemn the sincerely held religious beliefs of religiously observant Catholics, Muslims, Christians, and Jewish persons alike who yet adhere to Scriptural exhortations concerning sodomites and catamites..... No tolerance will be extended to intolerance, and we must hate the haters most zealously! And in our public explanations of this constitutional garbledygook, when doing the balancing act, we must remember that the state always pushes its finger down on the individualism side of the scale at every turn and at every juncture no matter what the cost to society.....to elevate the values of a minority over the values of the majority is now the defining feature of American "Democracy..." we must remember our role in tricking Americans to think that this is desirable in spite of their own democratically expressed values being trashed. As a secular republic the United States might as well be officially atheist, religious people are now all bigots and will soon be treated with the same contempt that kluckers were in recent times..... The most important thing is that any source of moral authority besides the state be absolutely crushed.

  4. In my recent article in Indiana Lawyer, I noted that grass roots marketing -- reaching out and touching people -- is still one of the best forms of advertising today. It's often forgotten in the midst of all of today's "newer wave" marketing techniques. Shaking hands and kissing babies is what politicians have done for year and it still works. These are perfect examples of building goodwill. Kudos to these firms. Make "grass roots" an essential part of your marketing plan. Jon Quick QPRmarketing.com

  5. Hi, Who can I speak to regarding advertising today? Thanks, Gary

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