Opinions

Opinions Sept. 24, 2012

September 24, 2012
Indiana Court of Appeals
State of Indiana v. Russell Oney
49A05-1204-CR-196
Criminal. Reverses and remands a trial court ruling that vacated a determination that a defendant was a habitual traffic violator, holding that even though one of the predicate offenses later was vacated in post-conviction relief, the BMV’s determination that Oney was a habitual traffic offender did not constitute manifest injustice.
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Opinions Sept. 21, 2012

September 21, 2012
Indiana Court of Appeals
Justin Taylor v. State of Indiana
49A05-1201-CR-4
Criminal. Affirms conviction of Class C felony failing to register as a sex offender. Rejects argument that ankle bracelet alerted authorities Taylor was living at a different address.
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Opinions Sept. 19, 2012

September 19, 2012
Indiana Court of Appeals
Michael Carpenter v. State of Indiana
85A05-1202-CR-57
Criminal. Affirms conviction of Class B felony conspiracy to commit dealing in methamphetamine. The police officers did not violate Carpenter’s Fourth Amendment rights when they entered the house’s curtilage pursuant to an arrest warrant and looked into the bathroom window. The officers also did not violate his rights under the Indiana Constitution.
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Opinions Sept. 18, 2012

September 18, 2012
Indiana Court of Appeals
Marlon Sims v. State of Indiana (NFP)
49A02-1203-CR-183
Criminal. Affirms sentence for Class C felony robbery, Class D felony criminal confinement and finding Sims is a habitual offender.
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Opinions Sept. 17, 2012

September 17, 2012
7th Circuit Court of Appeals
Fred E. Dowell v. United States of America
10-2912
U.S. District Court, Southern District of Indiana, Evansville Division, Chief Judge Richard L. Young.
Civil. Remands with instructions for the District Court to make a determination as to whether Dowell told his attorney to file an appeal to contest whether he was a career offender. Dowell claimed his plea agreement specifically reserved his right to appeal the career offender designation, but his attorney did not file the appeal.
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Opinions Sept. 14, 2012

September 14, 2012
7th Circuit Court of Appeals
Alan Kress and Randy Carr v. CCA of Tennessee LLC, doing business as Corrections Corporation of America, et al.
11-2950
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Larry J. McKinney.
Civil. Affirms order denying class certification regarding the reduction of daily pill calls for inmates and granting summary judgment in favor of Corrections Corporation of America, et al., owner and operator of the Marion County Correctional Center. There was lack of evidence of any ongoing constitutional violations.
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Opinions Sept. 13, 2012

September 13, 2012
Indiana Supreme Court
An-Hung Yao and Yu-Ting Lin v. State of Indiana
35S02-1112-CR-704
Criminal. Cannot conclude that as a matter of law the defendants engaged in no conduct nor effected any result in Indiana that was an element of either the theft or the counterfeiting charge. The trial court did not abuse its discretion in denying sub silentio Lin’s motion to dismiss for lack of jurisdiction. The defendants’ airsoft gun is a written instrument within the meaning of the statute and therefore reverses the trial court’s dismissal of the counterfeiting charges. The trial court did not abuse its discretion in denying the defendants’ motions to dismiss the theft and corrupt business influence charges.
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Opinions Sept. 12, 2012

September 12, 2012
Indiana Court of Appeals
Dezmon Gaines v. State of Indiana
34A05-1201-CR-21
Criminal. Affirms denial of motion to suppress evidence. Indiana Code 9-19-19-4 is not void for vagueness and the officer’s search of Gaines was reasonable. Judge Crone concurs in result.
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Opinions Sept. 11, 2012

September 11, 2012
Indiana Court of Appeals
Phillip A. Collins v. HSBC Bank USA, National Association, as Trustee for Home Equity Loan Trust Series Act 2004-HE3
45A03-1111-MF-600
Mortgage foreclosure. Affirms summary judgment in favor of HSBC, holding that Collins is estopped from asserting claims previously lost and litigated.
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Opinions Sept. 7, 2012

September 7, 2012
7th Circuit Court of Appeals
Robert S. Filus v. Michael J. Astrue, Commissioner of Social Security
No. 12-1164
U.S. District Court, Northern District of Indiana, Fort Wayne Division. Magistrate Judge Roger B. Cosbey.
Civil/Social Security. Affirms denial of disability benefits, holding that substantial evidence supports the decision of the administrative law judge. 
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Opinions Sept. 5, 2012

September 5, 2012
Indiana Court of Appeals
Cody B. Honeycutt v. State of Indiana
92A04-1203-CR-149
Criminal. Reverses denial of motion to dismiss charges on grounds that they were barred by the Successive Prosecution Statute. Because the four charges were supported by probable cause and based on a series of acts so connected that they constituted parts of a single scheme or plan, they should have been charged in a single prosecution.
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Opinions Sept. 4, 2012

September 4, 2012
Indiana Court of Appeals
Nathan S. Berkman v. State of Indiana
45A04-1111-CR-583
Criminal. Affirms conviction of and sentence for murder. The trial court did not abuse its discretion in declaring a witness unavailable or in admitting the deposition testimony of another unavailable witness. Berkman’s sentence is not inappropriate as he had argued.
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Opinions Aug. 31, 2012

August 31, 2012
Indiana Court of Appeals
Seabrook, Dieckmann & Naville, Inc. v. Review Board of the Indiana Dept. of Workforce Development and Monica Hilbert
93A02-1202-EX-100
Agency action. Reverses board’s conclusion that Hilbert’s employment was not terminated for just cause. Based on the evidence and testimony, Seabrook Dieckmann & Naville showed that Hilbert breached a duty in connection with work which was reasonably owed to her employer and her conduct was of such a nature that a reasonable employee would understand that the conduct was a violation of a duty owed to the funeral home. Remands for further proceedings.
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Opinions Aug. 30, 2012

August 30, 2012
7th Circuit Court of Appeals
Sung Park v. Indiana University School of Dentistry, et al.
11-1933, 11-2109
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Affirms dismissal for failure to state a claim in Park’s suit alleging equal protection and due process violations and claims for state law breach of contract. She has no state law claim for breach of contract, and Park has not identified a protectable property interest.
 
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Opinions Aug. 29, 2012

August 29, 2012
Indiana Court of Appeals
Willis Pryor v. State of Indiana
49A02-1202-CR-101
Criminal. Reverses conviction of Class A misdemeanor resisting law enforcement. Pryor’s trial counsel’s failure to preserve his right to a jury trial denied Pryor effective assistance of counsel. Remands with instructions to vacate the conviction and hold a new trial by jury.
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Opinions Aug. 28, 2012

August 28, 2012
7th Circuit Court of Appeals
Angela M. Farrell v. Michael J. Astrue, Commissioner of Social Security
11-3589
Civil. Reverses District Court’s affirmation of the decision to deny disability insurance benefits. The Social Security Administration Appeals Council did not follow its own regulations which require it to consider “new and material evidence.” Also finds the administrative law judge’s residual functional capacity determination is based on an incomplete assessment of the record. Remands for further proceedings.
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Opinions Aug. 27, 2012

August 27, 2012
Indiana Court of Appeals
Ian McCullough v. State of Indiana
49A02-1106-PC-571
Post-conviction relief. Affirms post-conviction court’s judgment that trial counsel was not ineffective, holding that McCullough failed to carry his burden to show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court.
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Opinions Aug. 24, 2012

August 24, 2012
Indiana Court of Appeals
MSKTD & Associates, Inc. v. CCJ Enterprises, LLC, Jeffrey Sassmannshausen, Loretta Sassmannshausen, Salin Bank & Trust Company (NFP)
02A04-1202-PL-101
Civil plenary. Affirms summary judgment in favor of defendants.
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Opinions Aug. 23, 2012

August 23, 2012
Indiana Court of Appeals
Konrad Motor and Welder Service, Inc., Konrad Lambrecht, and Sharon Lambrecht v. Magnetech Industrial Services, Inc.
45A04-1203-CC-109
Civil collection. Reverses summary judgment for Magnetech and piercing Konrad Electric’s corporate veil because there are genuine issues of material fact. Affirms summary judgment for Magnetch on whether Konrad Motor and Welder Service is the alter ego of Konrad Electric. Remands for determination whether Konrad Electric’s corporate veil should be pierced and liability imposed upon the Lambrechts. If pierced, Konrad and Sharon Lambrecht may be held individually liable. Judge Crone concurs in part and dissents in part.
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Opinions Aug. 22, 2012

August 22, 2012
Indiana Court of Appeals
Ashley T. Tucker v. Michelle R. Harrison, M.D.
79A05-1108-CT-404
Civil tort. Affirms judgment in favor of Dr. Harrison on Tucker’s medical malpractice complaint. The trial court did not abuse its discretion in excluding Tucker’s expert testimony, limiting her questioning of a witness about possible bias, or in instructing the jury.
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Opinions Aug. 21, 2012

August 21, 2012
Indiana Court of Appeals
Jason Fields v. State of Indiana
47A04-1110-CR-577
Criminal. Affirms two convictions of Class B felony dealing in methamphetamine. The trial court’s response to the jury’s mid-deliberation question did not constitute a modification of the jury instructions.
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Opinions Aug. 20, 2012

August 20, 2012
7th Circuit Court of Appeals
Joshua Resendez v. Brian Smith
11-1121
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Affirms dismissal of petition for writ of habeas corpus, in which Resendez claimed the state denied him his constitutional right to counsel in a sentence correction proceeding under I.C. 35-38-1-15.  His claims may not be presented via that statute as his motion is a collateral challenge to his sentence.
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Opinions Aug. 17, 2012

August 17, 2012
7th Circuit Court of Appeals
Amerisure Insurance Co. v. National Surety Corp. v. Scottsdale Insurance Co.
11-2762, 11-2771
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Affirms breakdown that Amerisure, Scottsdale, and National are liable for $1 million, $1 million and $900,000, respectively, of the $2.9 million settlement a steel worker won after injuring himself on the job. Declines to apply the ‘mend-the-hold’ doctrine in this case, and Amerisure and National were not prejudiced by Scottsdale’s litigation conduct.
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Opinions Aug. 16, 2012

August 16, 2012
7th Circuit Court of Appeals
Thomas Rosenbaum, et al. v. Beau J. White, et al.
11-3224
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springmann.
Civil. Affirms summary judgment for the attorney defendants in a lawsuit filed by investors in a failed business alleging state and federal RICO violations, conversion, securities fraud, common-law fraud, civil conspiracy, and legal malpractice.
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Opinions Aug. 15, 2012

August 15, 2012
Indiana Court of Appeals
Reko D. Levels v. State of Indiana
82A01-1201-CR-25
Criminal. Reverses convictions of battery and public intoxication as Class B misdemeanors. Levels did not validly waive his right to a jury trial.
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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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