Opinions

Opinions Nov. 13, 2014

November 13, 2014
7th Circuit Court of Appeals
United States of America v. Evelyn Rivera Borrero, et al.

13-3430, 13-3468, 13-3516, 13-3517, 13-3559
U.S. District Court, Northern District of Indiana, South Bend Division. Judge Jon E. DeGuilio.
Criminal. Reverses convictions of conspiring to violate 8 U.S.C. Section 1324 (a)(1)(A)(iii) and (iv) by shielding unauthorized aliens from detection and encouraging them to live in the United States; and vacates convictions of conspiracy to commit mail or wire fraud. Remands for entry of acquittal on the first count. The government’s legal argument that vehicle tiles and license plates are “property” from the perspective of Indiana is a legal error.
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Opinions Nov. 12, 2014

November 12, 2014
Indiana Court of Appeals
Jeffrey Z. Hayden v. State of Indiana
55A04-1403-CR-116
Criminal. Affirms sufficient evidence to convict Hayden of burglary, theft and residential entry. Remands with instructions to vacate guilty verdict on residential entry as it is a lesser-included offense of burglary and to clarify the entry of judgment as to whether to enter judgment and sentence on the theft conviction or to vacate the jury’s guilty verdict.
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Opinions Nov. 11, 2014

November 11, 2014
All courts are closed Nov. 11 in observance of Veterans Day.
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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.
49A02-1311-PL-975
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.
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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.
45S00-1309-PL-596
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.
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Opinions Nov. 6, 2014

November 6, 2014
Indiana Court of Appeals
Victor Keeylen v. State of Indiana
49A05-1308-CR-419
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.
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Opinions Nov. 5, 2014

November 5, 2014
Indiana Court of Appeals
Erie Insurance Exchange v. Troy Sams and Teresa Sams
44A03-1403-CT-97
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.
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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
02A03-1405-JT-171
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.
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Opinions Oct. 31, 2014

October 31, 2014
Indiana Court of Appeals
Michael Dwain Neal v. Amanda Lee Austin
49A02-1404-DR-225
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.
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Opinions Oct. 30, 2014

October 30, 2014
Indiana Supreme Court
Wayne A. Campbell v. State of Indiana
13S05-1410-PC-682
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.
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Opinions Oct. 29, 2014

October 29, 2014
7th Circuit Court of Appeals
Marshall G. Welton v. Shani J. Anderson, et al.
13-3336
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.
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Opinions Oct. 28, 2014

October 28, 2014
7th Circuit Court of Appeals
United States of America v. Trevor Hinds
13-3543
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.
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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.
10A04-1309-AD-469
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.
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Opinions Oct. 24, 2014

October 24, 2014
Indiana Court of Appeals
219 Kenwood Holdings, LLC v. Properties 2006, LLC
45A03-1401-MI-49
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.
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Opinions Oct. 23, 2013

October 24, 2014
Indiana Court of Appeals
Gabina Hernandez v. State of Indiana (NFP)
20A03-1403-CR-78
Criminal. Affirms convictions of Class A misdemeanors conversion and contributing to the delinquency of a minor.<
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Opinions Oct. 22, 2014

October 22, 2014
Indiana Supreme Court
Gary Wayne Oswalt v. State of Indiana
35S02-1401-CR-10
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.
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Opinions Oct. 21, 2014

October 21, 2014
Indiana Court of Appeals
Gary A. Gallien v. State of Indiana
22A01-1402-PC-50
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.
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Opinions Oct. 20, 2014

October 20, 2014
7th Circuit Court of Appeals
United States of America v. Kenneth Schmitt
13-2894
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.
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Opinions Oct. 17, 2014

October 17, 2014
Indiana Court of Appeals
Dominic Johnson v. State of Indiana (NFP)
49A05-1403-CR-125
Criminal. Affirms convictions for auto theft, a Class C felony, and resisting law enforcement, a Class A felony.
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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
49S02-1402-PL-80
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.
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Opinions Oct. 15, 2014

October 15, 2014
7th Circuit Court of Appeals
Randy M. Swisher v. Porter County Sheriff’s Dept., et al.
13-3602
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.
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Opinions Oct. 14, 2014

October 14, 2014
Indiana Court of Appeals
Brandon Earthman v. State of Indiana (NFP)
49A04-1404-CR-147
Criminal. Affirms 12-year sentence for Class B felony robbery.
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Opinions Oct. 13, 2014

October 13, 2014
There are no opinions Monday because the courts are closed in observance of Columbus Day.
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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.
18A02-1405-CT-332
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.
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Opinions Oct. 9, 2014

October 9, 2014
Indiana Court of Appeals
Stacey D. Cox v. State of Indiana
29A05-1312-CR-637
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.
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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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