Opinions

Opinions Nov. 23, 2015

November 23, 2015
Indiana Court of Appeals
Ralph Jackson v. State of Indiana
34A02-1505-CR-453
Criminal. Reverses 20-year sentence following guilty plea to Class B felony dealing in a Schedule II controlled substance. The trial court does not have the option of selecting a sentence based solely on the defendant’s conduct apart from the circumstances of the crime. Because the trial court did not issue an adequate sentencing statement, it abused its sentencing discretion.
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Opinions Nov. 20, 2015

November 20, 2015
Indiana Court of Appeals
Tyrone Causey v. State of Indiana
49A02-1503-CR-185
Criminal. Reverses Causey’s conviction of Class D felony intimidation. The state failed to present sufficient evidence from which a jury could find beyond a reasonable doubt that Causey communicated a threat to the officers that was intended to place them in fear of retaliation for responding to a call at his residence. 
 
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Opinions Nov. 19, 2015

November 19, 2015
Indiana Court of Appeals
Mary K. Patchett v. Ashley N. Lee
29A04-1501-CT-1
Civil tort. Affirms on interlocutory appeal the grant of a motion in limine filed by Lee and order that evidence of payments made by the Healthy Indiana Plan to reimburse Lee’s medical providers in full satisfaction of her bills was barred by the collateral source statute and is not admissible under Indiana case law. Determines that the rule of Stanley applies only to lower paid amounts when those amounts are the result of negotiated discounts and therefore are probative of a medical service’s reasonable value.
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Opinions Nov. 18, 2015

November 18, 2015
Indiana Court of Appeals
Ada Brown v. Indiana Family and Social Services Administration
87A01-1501-PL-38
Civil plenary. Reverses imposition of a transfer penalty by FSSA against Brown, after finding she is eligible for Medicaid benefits, based on the sale of Brown’s home in 2010. Evidence shows the proceeds from the sale of the home were placed back in her irrevocable trust and the fair market value of her home was $75,000, not $91,900 as FSSA had valued it.
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Opinions Nov. 17, 2015

November 17, 2015
Indiana Court of Appeals
Luis Fuerte v. State of Indiana (mem. dec.)
45A03-1501-CR-15
Criminal. Affirms aggregate 19-year executed sentence and convictions of Class B felony attempted incest, Class C felony child molesting and Class D felony sexual battery.
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Opinions Nov. 16, 2015

November 16, 2015
Indiana Court of Appeals
John Belork v. Robin Latimer, Davis Township Trustee and DMK&H Farms, Inc.
75A04-1503-MI-100
Miscellaneous. Affirms grant of appellees’ motion for judgment. Rules the fences that Belork wants his neighbors to help build along the southern and eastern boundaries of his property do not constitute partition fences under Indiana Code 32-26-9. Finds the statute does not apply in this situation because the neighbors would not derive a benefit from the fences.  
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Opinions Nov. 13, 2015

November 13, 2015
Indiana Court of Appeals
Jay Classroom Teachers Association v. Jay School Corporation and Indiana Education Employment Relation Board
49A05-1412-PL-586
Civil plenary. Reverses trial court order affirming the order of the Indiana Education Employment Relation Board and remands to the board for proceeding. A provision of the Jay Classroom Teachers Association contract allowing additional compensation for ancillary duties, including covering another teacher’s class, was not impermissible and should not have been stricken by the board. The board also erred in allowing a provision permitting the superintendent to set salaries of teachers hired after the start of the school year. The provision was impermissible and should have been stricken by the board.
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Opinions Nov. 12, 2015

November 12, 2015
Indiana Court of Appeals
Madison County Board of Commissioners and Madison County Highway Department v. American Federation of State County and Municipal Employees Local 3609
33A05-1505-PL-409
Civil plenary. Affirms summary judgment in favor of the union on the county’s motion to correct or vacate the arbitrator’s award, in which it reduced two union workers’ discipline from termination to a five-day unpaid layoff. The county circumvented the collective bargaining agreements’ progressive discipline scheme and the CBA does not require discharge for the infractions committed by the employees or prohibit the arbitrator from reducing an employee’s punishment.
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Opinions Nov. 10, 2015

November 10, 2015
Indiana Supreme Court
John Hernandez v. State of Indiana
49S02-1511-CR-644
Criminal. Holds it was an error for the trial court to have refused giving Hernandez’s tendered final jury instruction on the defense of necessity because Hernandez presented some evidence to support the instruction. Vacates Hernandez’s Class A misdemeanor conviction of carrying a handgun without a license and remands for a new trial.
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Opinions Nov. 9, 2015

November 9, 2015
Indiana Court of Appeals
Robert L. Woods v. State of Indiana (mem. dec.)
27A05-1502-CR-61
Criminal. Affirms Woods’ convictions of two counts of Class A felony child molesting and 100-year sentence.
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Opinions Nov. 6, 2015

November 6, 2015
7th Circuit Court of Appeals
BRC Rubber & Plastics Inc. v. Continental Carbon Company
14-1416, 14-1555
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Magistrate Judge Roger B. Cosbey.
Civil. Vacates judgment for BRC on its lawsuit that Continental Carbon had breached and repudiated the contract for it to supply carbon black to BRC. The agreement did not obligate BRC to buy any or all of its carbon black from Continental, so the trial court erred in concluding the contract was a requirements contract. Remands without reaching BRC’s cross-appeal related to damages.  
 
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Opinions Nov. 5, 2015

November 5, 2015
Indiana Supreme Court
Latoya Lee v. State of Indiana
49S02-1511-CR-638
Criminal. Reverses Lee’s conviction of attempted aggravated battery as a lesser included offense of a murder charge dismissed by the court and remands with instructions to enter a judgment of acquittal. Charging murder, or conspiracy to commit murder, by shooting does not, without more, give fair notice of lesser included charges based on a beating. It was fundamental error to convict her based on a critical operative fact the state never pleaded and in fact disclaimed at trial.
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Opinions Nov. 4, 2015

November 4, 2015
Indiana Court of Appeals
Mario Allen v. Wendy Knight, Superintendent of Correctional Industrial Facility (mem. dec.)
48A02-1505-MI-416
Miscellaneous. Affirms trial court decision to transfer Allen’s petition for writ of habeas corpus filed in the county of his incarceration to the county where he was tried and sentenced.
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Opinions Nov. 2, 2015

November 2, 2015
Indiana Court of Appeals
Chris Harkins v. State of Indiana (mem. dec.)
15A01-1412-CR-553
Criminal. Affirms conviction of five counts of Class C felony forgery, two counts each of Class D felony identity deception and credit card fraud, Class A misdemeanor deception, and a jury’s adjudication of Harkins as a habitual offender. The trial court did not err in denying Harkins’ motions for severance, continuance and to exclude evidence. The convictions did not violate the prohibition against double jeopardy. 
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Opinions Oct. 30, 2015

October 30, 2015
Indiana Court of Appeals
Brooks Berg v. State of Indiana
32A01-1504-CR-127
Criminal. Affirms convictions of Class D felony operating while intoxicated and Class B misdemeanor reckless driving. Berg argued the state violated his double jeopardy rights under Richardson v. State, 717 N.E.2d 32 (Ind. 1999), when it used the evidence it had presented to the jury to support the reckless-driving charge to demonstrate the endangerment element of the operating-while-intoxicated charge. The state conceded the argument, but the court rejected the reasoning as a misunderstanding of Richardson, because one offense required intoxication and the other required the act of reckless driving.
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Opinions Oct. 29, 2015

October 29, 2015
Indiana Court of Appeals
Citizens Action Coalition of Indiana, Inc., Sierra Club, Inc., and Valley Watch, Inc. v. Southern Indiana Gas and Electric Co. d/b/a Vectren Energy Delivery of Indiana, Inc., Ind. Utility Regulatory
93A02-1502-EX-110
Agency action. Reverses approval of Vectren’s proposal to modify current coal-powered generating stations and request for financial incentives and reimbursement from ratepayers for costs associated with the projects by the Indiana Utility Regulatory Commission. The commission erred in failing to make findings on the factors listed in I.C. 8-1-8.7-3. Remands with instructions for commission to make the required findings.
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Opinions Oct. 28, 2015

October 28, 2015
Indiana Court of Appeals
Andre L. Owens v. State of Indiana (mem. dec.)
49A05-1503-CR-98
Criminal. Affirms Owens’ conviction of Class A misdemeanor trespass, finding the state presented sufficient evidence.
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Opinions Oct. 27, 2015

October 27, 2015
Indiana Court of Appeals
Jonathan E. Powell v. State of Indiana
49A02-1503-CR-135
Criminal. Reverses conviction of Class A misdemeanor criminal trespass. The state failed to prove Powell was on the bar’s property when an off-duty police officer asked him to leave.
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Opinions Oct. 26, 2015

October 26, 2015
Indiana Court of Appeals
Robbie Lomax v. Jennie L. Michael

12A05-1503-CT-124
Civil tort. Reverses final judgment against Lomax in his wrongful death action against Michael, in which the trial court granted partial summary judgment in Michael’s favor based on its conclusion that Lomax does not qualify as a dependent next of kin as required by the General Wrongful Death Statute. A question of fact exists as to whether Lomax is a dependent next of kin to Edward Lomax. Remands for further proceedings.
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Opinions Oct. 23, 2015

October 23, 2015
Indiana Court of Appeals
Russell A. Prosser, Jr. v. State of Indiana (mem. dec.)
50A05-1502-CR-51
Criminal. Affirms convictions for 11 counts, including theft and unauthorized entry of a vehicle, following two separate jury trials. Prosser waived his challenge to a witness’s in-court identification of him, and there is sufficient evidence to support the convictions.
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Opinions Oct. 22, 2015

October 22, 2015
Indiana Court of Appeals
Eric Brazier d/b/a Brazier Painting v. Maple Lane Apartments I, LLC
71A04-1406-CC-278
Civil collection. Affirms judgment in favor of Maple Lane Apartments on Brazier’s lawsuit alleging he had performed more than $60,000 in painting services and had not been paid. The trial court also imposed sanctions against his counsel toward Maple Lane’s attorney fees because his attorney misrepresented the nature of the documents on which Brazier based his entire case.
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Opinions Oct. 21, 2015

October 21, 2015
Indiana Court of Appeals
Loren J. Adams v. Review Board of the Indiana Department of Workforce Development, and F&J Pizza III LLC (mem. dec.)
93A02-1501-EX-16
Agency action. Affirms denial of claim for unemployment benefits.
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Opinions Oct. 19, 2015

October 19, 2015
Indiana Court of Appeals
G.T. v. State of Indiana (mem. dec.)
49A02-1504-JV-239
Juvenile. Affirms restitution order.
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Opinions Oct. 16, 2015

October 16, 2015
Indiana Supreme Court
Robert A. Masters v. Leah Masters
02S04-1504-DR-156
Domestic. Affirms award of attorney fees in a dissolution of marriage case to an arbitrator under the Family Law Arbitration Act. The award of attorney fees in this case is supported by the findings, and Robert Masters failed to show clear error as prescribed by Trial Rule 52(A).
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Opinions Oct. 15, 2015

October 15, 2015
Indiana Supreme Court
In the Matter of: Anonymous
79S00-1508-DI-512
Discipline. Issues private reprimand after finding attorney engaged in misconduct by communicating ex parte with a judge without authorization to do so, a violation of Professional Conduct Rule 3.5(b).
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  1. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  2. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  3. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  4. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

  5. Can I get this form on line,if not where can I obtain one. I am eligible.

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