Opinions Nov. 11, 2014

November 11, 2014
All courts are closed Nov. 11 in observance of Veterans Day.

Opinions Nov. 10, 2014

November 10, 2014
Indiana Court of Appeals
Christa Allen v. Richard Hinchman, M.D.; Richard Tanner, M.D.; and Jeffery Smith, M.D.
Civil plenary. Reverses summary judgment in favor of the doctors on Allen’s medical malpractice claim. Holds that the standard of care for doctors practicing in prisons is the same as the standard of care for doctors practicing outside of prison.

Opinions Nov. 7, 2014

November 7, 2014
Indiana Supreme Court
Gregory F. Zoeller, Attorney General and Rick J. Ruble, Commissioner of the In. Dept. of Labor v. James M. Sweeney, David A. Fagan, Charles Severs et. al.
Civil plenary. Reverses finding by Lake Superior Court that I.C. 22-6-6-8 and 22-6-6-10 violate Article I, Section 21 of the Indiana Constitution. Any compulsion to provide services does not constitute a demand made by the state. Justice Rucker concurs in result with separate opinion.

Opinions Nov. 6, 2014

November 6, 2014
Indiana Court of Appeals
Victor Keeylen v. State of Indiana
Criminal. Grants rehearing and affirms original opinion in all respects. Clarifies point from original opinion and still holds that it is unlikely the detective attempted to mislead the judicial officer into issuing the search warrant.

Opinions Nov. 5, 2014

November 5, 2014
Indiana Court of Appeals
Erie Insurance Exchange v. Troy Sams and Teresa Sams
Civil tort. Affirms judgment ordering Erie Insurance to pay the Samses $63,924.89 for losses they suffered after a storm damaged their home. The trial court did not err in finding the policy covered the storm damage to the home and the judgment amount was not clearly erroneous.

Opinions Nov. 3, 2014

November 3, 2014
Indiana Court of Appeals
In the Matter of the Termination of the Parent-Child Relationship of D.B.M. and H.B. (Father) v. Indiana Department of Child Services
Juvenile. Affirms trial court’s order to terminate father’s parental rights. Rules the testimony of Allen County Department of Child Services supervisor was cumulative of the other evidence so any error in admitting the testimony was harmless. Also finds the evidence presented at the hearing supports the trial court’s conclusion that the conditions which necessitated the child’s removal from the father’s care would not be remedied.

Opinions Oct. 31, 2014

October 31, 2014
Indiana Court of Appeals
Michael Dwain Neal v. Amanda Lee Austin
Domestic relation. Reverses grant of Austin’s petition for post-secondary education expenses on behalf of her and Neal’s adult child. The trial court did not have authority to issue an order for educational support. Holds that I.C. 31-16-6-6(c) and -6(d) necessitates that where the most recent order establishing a child support obligation was issued after June 30, 2012, the child must file a petition for educational needs before he or she becomes 19 years of age.

Opinions Oct. 30, 2014

October 30, 2014
Indiana Supreme Court
Wayne A. Campbell v. State of Indiana
Post conviction. Affirms denial of petition for post-conviction relief, finding no ineffective assistance by trial counsel for, in part, failing to object to an instruction on the definition of “intentionally.” The second sentence of the contested instruction serves to emphasize the heavy burden placed on the state to prove that a defendant acted intentionally.

Opinions Oct. 29, 2014

October 29, 2014
7th Circuit Court of Appeals
Marshall G. Welton v. Shani J. Anderson, et al.
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane E. Magnus-Stinson.
Civil. Affirms dismissal of Welton’s claims of malicious prosecution, violations of the Fourth and 14th amendments and state law violations. Welton failed to state a predicate constitutional violation in support of his malicious prosecution claim and failed to show the requisite malice.

Opinions Oct. 28, 2014

October 28, 2014
7th Circuit Court of Appeals
United States of America v. Trevor Hinds
U.S. District Court, Southern District of Indiana, New Albany Division, Judge Tanya Walton Pratt.
Criminal. Affirms two-level sentencing enhancement for production or trafficking under U.S.S. G. 2B1.1(b)(11)(B)(i). Hinds’ crime involved the production of counterfeit access devices (credit cards) and the court did not err in applying the enhancement. Vacates the two special conditions imposed: that Hinds pay a portion of the court-ordered substance abuse treatment and drug testing and that he submit to suspicionless searches and seizures. The court did not make a finding whether Hinds could pay for the testing, and the government concedes that the search and seizure condition is unlawfully broad and invasive.

Opinions October 27, 2014

October 27, 2014
Indiana Court of Appeals
In Re the Adoption of K.W.: M.W. v. S.L. and T.L.
Adoption. Reverses decree granting S.L. and T.L.’s petition to adopt K.W. The trial court violated father’s due process rights when it failed to rule on his request for appointed counsel. Remands for the trial court to determine whether father, who is incarcerated, is indigent, and if so, to appoint counsel to represent him at a new adoption hearing.

Opinions Oct. 24, 2014

October 24, 2014
Indiana Court of Appeals
219 Kenwood Holdings, LLC v. Properties 2006, LLC
Miscellaneous. Affirms finding that Properties 2006 LLC substantially complied with the requirements of I.C. 6-1.1-25-4.5(e), which requires the purchaser of property sold at a tax sale to notify the owner of record of, among other things, the purchaser’s intent to petition for a tax deed on or after a specified date.

Opinions Oct. 23, 2013

October 24, 2014
Indiana Court of Appeals
Gabina Hernandez v. State of Indiana (NFP)
Criminal. Affirms convictions of Class A misdemeanors conversion and contributing to the delinquency of a minor.<

Opinions Oct. 22, 2014

October 22, 2014
Indiana Supreme Court
Gary Wayne Oswalt v. State of Indiana
Criminal. Oswalt preserved appellate review of three for-cause challenges of prospective jurors, but because the trial court was within its discretion to deny all of them, affirms his convictions. Holds as a matter of first impression that parties satisfy the exhaustion rule the moment they use their final peremptory challenge, regardless of whom they strike. Also holds that if parties fully comply with the exhaustion rule and demonstrate they were unable to remove any prospective juror for lack of peremptories, appellate courts may review denial of any motion to strike for cause, regardless of whether a challenged juror actually served on the jury.

Opinions Oct. 21, 2014

October 21, 2014
Indiana Court of Appeals
Gary A. Gallien v. State of Indiana
Post-conviction. Reverses denial of post-conviction relief due to defense attorney’s failure to raise the issue of maximum consecutive sentences under I.C. 35-50-1-2. The majority held Gallien was prejudiced by his defender’s failure to raise the issue regarding burglaries that were “closely related in time, place, and circumstance.” Dissenting judge Cale Bradford agreed with the majority’s analysis but would affirm the trial court because he didn’t believe Gallien was prejudiced by his counsel’s failure to raise the issue.

Opinions Oct. 20, 2014

October 20, 2014
7th Circuit Court of Appeals
United States of America v. Kenneth Schmitt
U.S. District Court for the Southern District of Indiana, Evansville Division, Chief Judge Richard Young.
Criminal. Affirms conviction for possessing a firearm while being a felon and sentence of 110 months in prison with three years of supervised release. Finds police officers did not violate the Fourth Amendment’s restrictions on warrantless searches because the officers were doing a protective sweep to secure the premises when they unlocked the basement door and searched the basement where the AK-15 semi-automatic assault rifle was found. Rules although the District Court erred in admitting evidence of Schmitt’s conviction for possession of methamphetamine, the error was harmless. And concludes District Court did not err in applying a four-level enhancement to Schmitt’s base offense level.

Opinions Oct. 17, 2014

October 17, 2014
Indiana Court of Appeals
Dominic Johnson v. State of Indiana (NFP)
Criminal. Affirms convictions for auto theft, a Class C felony, and resisting law enforcement, a Class A felony.

Opinions Oct. 16, 2014

October 16, 2014
Indiana Supreme Court
Indiana State Ethics Commission, Office of Inspector General, and David Thomas, in his Official Capacity as Inspector General v. Patricia Sanchez
Civil plenary. Affirms State Ethics Commission’s decision that Sanchez’s conduct – keeping several items that were state property after she was fired from the Department of Workforce Development – ran afoul of an administrative rule and that she should be barred from future state executive branch employment. Double jeopardy does not bar the proceeding before the commission, the criminal court’s probable cause determination is not binding upon the commission, and there is substantial independent evidence to support the commission’s decision.

Opinions Oct. 15, 2014

October 15, 2014
7th Circuit Court of Appeals
Randy M. Swisher v. Porter County Sheriff’s Dept., et al.
U.S. District Court, Northern District of Indiana, South Bend Division, Magistrate Judge Christopher A. Nuechterlein.
Civil. Reverses judgment in favor of the defendants on Swisher’s 42 U.S.C. 1983 complaint that he was denied medical care during his nine-month stint in jail. The magistrate judge, while fully crediting the plaintiff’s testimony at an evidentiary hearing, erred in dismissing Swisher’s suit for failure to exhaust administrative remedies.

Opinions Oct. 14, 2014

October 14, 2014
Indiana Court of Appeals
Brandon Earthman v. State of Indiana (NFP)
Criminal. Affirms 12-year sentence for Class B felony robbery.

Opinions Oct. 13, 2014

October 13, 2014
There are no opinions Monday because the courts are closed in observance of Columbus Day.

Opinions Oct. 10, 2014

October 10, 2014
Indiana Court of Appeals
Susan A. Snyder v. Town of Yorktown, Delaware County Surveyor, Delaware County Drainage Board, Randall Miller & Associates, Inc., and Watson Excavating, Inc.
Civil tort. Reverses grant of the defendants’ motion to dismiss Snyder’s complaint regarding inverse condemnation because her complaint sufficiently states a claim for it. Affirms dismissal as it relates to her claim for trespass because the allegations in her complaint fail to establish any circumstances under which she would be entitled to relief for trespass. Remands for further proceedings.

Opinions Oct. 9, 2014

October 9, 2014
Indiana Court of Appeals
Stacey D. Cox v. State of Indiana
Criminal. Affirms convictions of Class D felony involuntary manslaughter and Class B misdemeanor operating a child care home without a license. The state presented sufficient evidence that Cox operated a child care home under I.C. 12-17.2-5-28.6.

Opinions Oct. 8, 2014

October 8, 2014
Indiana Court of Appeals
Rodney A. Richard v. State of Indiana
Criminal. Affirms Class A felony conviction of dealing in cocaine within 1,000 feet of a public park, but reverses Class A felony conviction of dealing in cocaine within 1,000 feet of a family housing complex. The state did not offer sufficient evidence to prove he committed dealing within 1,000 feet of a family housing complex. Remands for the trial court to enter a conviction as a Class B felony and resentence him on that count.

Opinions Oct. 7, 2014

October 7, 2014
Indiana Supreme Court
Evansville Courier & Press and Rita Ward v. Vanderburgh County Health Department
Civil plenary. Reverses determination by trial court and finds death certificates which include the cause of death are public records. Holds a plain reading of the state statute denies public viewing of death information at the Indiana State Department of Health but gives private citizens access to death records at the local county health department. Remands for summary judgment in plaintiffs’ favor and to determine award of attorney fees.
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  1. Great observation Smith. By my lights, speaking personally, they already have. They counted my religious perspective in a pro-life context as a symptom of mental illness and then violated all semblance of due process to banish me for life from the Indiana bar. The headline reveals the truth of the Hoosier elite's animus. Details here: Denied 2016 petition for cert (this time around): http://tinyurl.com/zdmawmw (“2016Pet”) Amicus brief 2016: http://tinyurl.com/hvh7qgp (“2016Amici”) As many may recall, I was banned for five years for failing to "repent" of my religious views on life and the law when a bar examiner demanded it of me, resulting in a time out to reconsider my "clinging." The time out did not work, so now I am banned for life. Here is the five year time out order: Denied 2010 petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh (“2010Pet”) Read this quickly if you are going to read it, the elites will likely demand it be pulled down or pile comments on to bury it. (As they have buried me.)

  2. if the proabortion zealots and intolerant secularist anti-religious bigots keep on shutting down every hint of religious observance in american society, or attacking every ounce of respect that the state may have left for it, they may just break off their teeth.

  3. "drug dealers and traffickers need to be locked up". "we cannot afford just to continue to build prisons". "drug abuse is strangling many families and communities". "establishing more treatment and prevention programs will also be priorities". Seems to be what politicians have been saying for at least three decades now. If these are the most original thoughts these two have on the issues of drug trafficking and drug abuse, then we're no closer to solving the problem than we were back in the 90s when crack cocaine was the epidemic. We really need to begin demanding more original thought from those we elect to office. We also need to begin to accept that each of us is part of the solution to a problem that government cannot solve.

  4. What is with the bias exclusion of the only candidate that made sense, Rex Bell? The Democrat and Republican Party have created this problem, why on earth would anyone believe they are able to fix it without pushing government into matters it doesn't belong?

  5. This is what happens when daddy hands over a business to his moron son and thinks that everything will be ok. this bankruptcy is nothing more than Gary pulling the strings to never pay the creditors that he and his son have ripped off. they are scum and they know it.