Opinions

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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Opinions March 21, 2014

March 21, 2014
Indiana Court of Appeals
Nathan Wertz v. Asset Acceptance, LLC.
71A03-1305-CC-175
Civil Collection. Affirms trial court’s dismissal of Wertz’s counterclaim against Asset Acceptance, LLC. Finds that the Indiana Uniform Consumer Credit Code’s licensure requirement does not apply to Asset because it does not have a physical location in Indiana. Since Asset is not required to obtain a license under IUCCC, Wertz’s claims that Asset violated the Indiana Deceptive Consumer Sales Act and the federal Fair Debt Collection Practices Act cannot stand. 
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Opinions March 20, 2014

March 20, 2014
7th Circuit Court of Appeals
Zachary Mulholland v. Marion County Election Board
13-3027
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Reverses dismissal of Mulholland’s lawsuit to enjoin Marion County Election Board proceedings relating to a slating violation and to enjoin the future enforcement of I.C. 3-14-1-2(a), the anti-slating law. The election board’s investigation is too preliminary a proceeding to warrant Younger abstention, at least in the wake of Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584 (2013). Even if Younger abstention were theoretically available after Sprint, the previous final federal judgment against the defendant Election Board holding the same statute facially unconstitutional would still amount to an extraordinary circumstance making Younger abstention inappropriate.
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Opinions March 19, 2014

March 19, 2014
Indiana Tax Court
Fraternal Order of Eagles #3988, Inc. v. Morgan County Property Tax Assessment Board of Appeals and Morgan County Assessor
49T10-1201-TA-4
Tax. Affirms board of tax review’s determination that the Fraternal Order of Eagles #3988 Inc. was not entitled to either a fraternal beneficiary association exemption or a charitable purposes exemption for the 2006 tax year.
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Opinions March 18, 2014

March 18, 2014
Indiana Supreme Court
David S. Delagrange v. State of Indiana
49S04-1304-CR-249
Criminal. Affirms convictions of four counts of Class C felony attempted child exploitation, finding sufficient evidence supports them. The state did not need to show Delagrange actually succeeded in capturing images of uncovered genitals, just that he took a “substantial step” toward doing so.
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Opinions March 17, 2014

March 17, 2014
Indiana Court of Appeals
Eddie Horton v. State of Indiana (NFP)
49A05-1307-CR-323
Criminal. Affirms conviction of Class C felony child molesting.
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Opinions March 14, 2014

March 14, 2014
7th Circuit Court of Appeals
Leonard Thomas v. Keith Butts, et al.
12-2902
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane E. Magnus-Stinson.
Civil. Vacates dismissal of Thomas’ lawsuit against prison officials alleging deliberate indifference to his epilepsy in violation of the Eighth Amendment. The judge dismissed the suit without determining if Thomas was at fault for not paying the initial filing fee.
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Opinions March 13, 2014

March 13, 2014
 Indiana Supreme Court
Joseph D. Hardiman and Jaketa L. Patterson, as Co-Administrators of the Estate of Britney R. Meux, Deceased v. Jason R. Cozmanoff
45S03-1309-CT-619
Civil tort. Affirms the trial court’s ordering the limited stay of discovery regarding only Cozmanoff in the estate’s wrongful death lawsuit against him and requiring him to answer the complaint. The civil suit was brought while criminal charges for Meux’s death were still pending. Notes the ruling does not mean the trial court was constitutionally required to impose the stay but that it did not abuse its discretion by so doing. Remands for further proceedings.
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Opinions March 12, 2014

March 12, 2014
7th Circuit Court of Appeals
Cindy Golden v. State Farm Mutual Automobile Insurance Company
12-3901
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge James T. Moody.
Civil. Affirms dismissal of Golden’s complaint under Rule 12(b)(6) and denies her motion to certify questions of state law to the Indiana Supreme Court. She alleges in her lawsuit that State Farm owes its insureds a duty to explain at the time a policy is issued that in-house counsel may be used to defend its insureds against third-party claims.
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Opinions March 11, 2014

March 11, 2014
Indiana Supreme Court
State of Indiana v. Adrian Lotaki
32S01-1403-CR-151
Criminal. Reverses sentencing order, holding the trial court erred in calculating credit time for a battery committed while Adrian Lotaki was serving a sentence in the Department of Correction. Because sentences for crimes committed in prison are by statute served consecutively, the credit time awarded against the battery conviction effectively enabled Lotaki to serve part of his consecutive sentence concurrently. Remands for resentencing.
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Opinions March 10, 2014

March 10, 2014
Indiana Court of Appeals
Jeff L. Ewing and Renee Ewing, Household Finance Corporation III v. U.S. Bank, N.A., as Trustee for the Structured Asset Securities Corp., Series 2005-GEL4
50A03-1308-MF-327
Mortgage foreclosure. Finds summary judgment in favor of U.S. Bank was appropriate. Also affirms U.S. Bank’s motion to dismiss the Ewings’ supplemental complaint for failure to state a claim upon which relief could be granted. The Ewings argued the bank failed to act in good faith during the settlement discussions as required by the Alternative Dispute Resolution rules. The COA held the settlement talks were not a mediation, so the A.D.R. rules did not apply.
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Opinions March 7, 2014

March 7, 2014
Indiana Court of Appeals
Jimel Pimpton v. State of Indiana (NFP)
49A02-1308-CR-676
Criminal. Affirms revocation of placement in community corrections.
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Opinions March 5, 2014

March 5, 2014
7th Circuit Court of Appeals
United States of America v. Carol Y. Woodard
12-3363
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Larry J. McKinney.
Criminal. Finds the District Court did not abuse its discretion by not ordering a second competency evaluation because the court reached a reasonable conclusion after it reviewed a previous psychological evaluation, considered the advice of two mental health professionals, and considered Woodard’s interactions with her attorney. Finds the District Court violated the ex post facto clause at sentencing by sentencing her under the wrong version of the sentencing guidelines. Remands for resentencing.
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  1. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

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