Opinions

Opinions Aug. 4, 2016

August 4, 2016
7th Circuit Court of Appeals
Glenn Patrick Bradford v. Richard Brown, superintendent
15-3706
Appeal from U.S. District Court, Southern District of Indiana, Terre Haute Division. Judge Jane Magnus-Stinson.
Civil. Denies Glenn Bradford’s request for a new trial on 1992 murder and arson charges. Bradford had his chance and failed to present reliable evidence that would establish his innocence of the arson and murder. Judge Hamilton dissents with separate opinion, believing the court should order a new trial to test all the relevant evidence.
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Opinions Aug. 3, 2016

August 3, 2016
Indiana Court of Appeals
Lynn K.C. Sines v. State of Indiana (mem. dec.)
91A05-1603-CR-544
Criminal. Affirms denial of Sines’ motion to modify his 10-year sentence.
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Opinions Aug. 2, 2016

August 2, 2016
Indiana Court of Appeals
State of Indiana v. Wallace Irvin Smith, III
45A05-1507-CR-945
Criminal. Affirms grant of Smith’s petition for alternative misdemeanor sentencing. Indiana Code 35-50-2-7(d) (2014) permits the trial court to modify his sentence and the language in Smith’s plea agreement did not preclude it.
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Opinions July 29, 2016

July 29, 2016
Indiana Court of Appeals
William H. Ellis, Sr. v. State of Indiana
02A03-1602-CR-376
Criminal. Reverses denial of petition for credit time not previously awarded by the Department of Correction. The court denied Ellis’ petition without considering whether he had exhausted his administrative remedies. Remands for the post-conviction court to determine this, and if so, to address his petition on the merits.
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Opinions July 28, 2016

July 28, 2016
Indiana Court of Appeals
Anthony J. Wampler v. State of Indiana

14A05-1510-CR-1606
Criminal. Affirms 33-year sentence for two counts of Class B felony burglary and Wampler’s status as a habitual offender. Acknowledges Wampler’s mental health problems, but he has not taken medication from 1995 until this case. Also finds sentence be appropriate given the long-term stalking Wampler has done of the victim and his criminal history. Judge Mathias dissents with opinion.
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Opinions July 27, 2016

July 27, 2016
Indiana Court of Appeals
Lisa R. Harris v. State of Indiana
83A01-1509-CR-1311
Criminal. Reverses denial of Harris’ motion to suppress evidence obtained from a consent search during a seat belt enforcement stop, which led to a Level 6 felony possession of methamphetamine charge. The officer lacked an independent basis of reasonable suspicion justifying inquiry above and beyond the seat belt violation. Remands for further proceedings Judge Najam dissents with opinion.
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Opinions July 26, 2016

July 26, 2016
7th Circuit Court of Appeals
Mikeal G. Cole Jr. v. Carolyn W. Colvin, acting commissioner of Social Security
15-3883
Appeal from U.S. District Court, Northern District of Indiana, Fort Wayne Division. Judge Robert L. Miller Jr.
Civil. Reverses denial of Cole’s application for disability benefits and remands to the Social Security Administration for reconsideration. The administrative law judge’s decision was unreasoned and should not have been affirmed, as it appears she cherry picked the medical record, which is improper.
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Opinions July 25, 2016

July 25, 2016
Indiana Court of Appeals
Darrell Birge and Sandra Birge v. Town of Linden, Indiana
54A01-1509-PL-1495
Civil plenary. Reverses trial court dismissal of the Birges’ nuisance and civil conspiracy suit against the town of Linden for damage to their farm property caused after an independent contractor modified an existing drainage system for municipal purposes. The trial court erred in concluding it was clear on the face of the evidence that the town’s discretionary function immunity applied, that the Birges were barred from seeking damages for inverse condemnation, and that the Birges failed to allege facts supporting a civil conspiracy. Remands for further proceedings.
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Opinions July 22, 2016

July 22, 2016
Indiana Court of Appeals
Santiago Valdez v. State of Indiana

18A02-1509-CR-1514
Criminal. Affirms conviction of Class B felony attempted rape and Class C felony criminal confinement. While a prosecutor’s hint during closing arguments that defense counsel improperly influenced an expert witness constituted prosecutorial misconduct, the trial court’s prompt admonishment prevented Valdez from being placed into grave peril. The trial court made no evidentiary errors. Admonishes Delaware County deputy prosecutor Eric Hoffman regarding ‘wild, baseless accusations of misconduct’ hurled at defense counsel.
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Opinions July 21, 2016

July 21, 2016
Indiana Supreme Court
In the Matter of: Joseph C. Lehman
20S00-1507-DI-431
Discipline. Disbars Lehman for unauthorized practice of law while suspended. Previous sanctions have not deterred him from continuing to engage in the practice of law in defiance of his suspension order, and his repeated violations have exposed the public to the danger of attorney misconduct by him.
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Opinions July 20, 2016

July 20, 2016
Indiana Supreme Court
In the Matter of: Timothy S. Durham
49S00-1212-DI-672
Discipline. Disbars Tim Durham following his conviction on 12 felony counts for securities and wire fraud, 10 of which were upheld on appeal. Finds he violated two Rules of Professional Conduct for “fraudulent looting of funds entrusted to him by investors.”
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Opinions July 19, 2016

July 19, 2016
Indiana Court of Appeals
Jonathan Gibson v. State of Indiana (mem. dec.)
49A05-1601-PC-129
Post conviction. Affirms denial of petition for post-conviction relief.
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Opinions July 18, 2016

July 18, 2016
Indiana Court of Appeals
Pinnacle Properties Development Group, LLC v. Sarah Oliver (mem. dec.)
10A01-1512-SC-2143
Small claim. Affirms judgment in favor of Oliver on Pinnacle Properties’ small claim action seeking as damages unpaid rent and an unpaid utility bill, as well as possession of Oliver’s apartment.
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Opinions July 15, 2016

July 15, 2016
Indiana Court of Appeals
Larenz Jordan v. State of Indiana

27A02-1511-CR-1897
Criminal. Affirms Jordan’s convictions of 12 counts of rape and one count of conspiracy to commit rape, as Level 1 felonies; one count of Level 4 felony burglary, and one count of Level 5 felony robbery. The juvenile court, in waiving him to adult court, did not abuse its discretion as there was no error associated with the judge’s use of the phrase “criminal thinking” without reference to evidence-based measures of criminogenic behavior, where here, the elements of the waiver statute are other properly addressed and supported. Concludes his 40-year aggregate sentence is appropriate.
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Opinions July 14, 2016

July 14, 2016
Indiana Court of Appeals
Fireman's Fund Insurance Company v. Matthew W. Ackerman and American Casualty Co.
82A01-1509-CT-1350
Civil tort. Reverses denial of the Fireman’s Fund’s motion for summary judgment regarding Ackerman’s claim for underinsured motorist coverage. Given Indiana Code 27-7-5-1.5(b), Fireman’s Fund was not required to provide UM/UIM coverage in the 2008 Evansville Marine policy. Fireman’s Fund was entitled to judgment as a matter of law and there were no genuine issues of material fact. Remands for further proceedings.
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Opinions July 13, 2016

July 13, 2016
Indiana Court of Appeals
Noe Escamilla v. Shiel Sexton Company, Inc. (dissent on rehearing) 54A01-1506-CT-602 Civil tort. Denies Escamilla’s petition for rehearing. Judge Baker dissents with opinion, writing that knowledge of a party’s immigration status alone sheds no meaningful light on the question of whether that party will one day face deportation.
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Opinions July 12, 2016

July 12, 2016
Indiana Supreme Court
Victor Roar v. State of Indiana
49S02-1607-CR-372
Criminal. Affirms Victor Roar’s Class A misdemeanor intimidation conviction. Grants transfer and incorporates by reference the portion of the Court of Appeals opinion on sufficiency of the evidence and affirms the trial court. Summarily affirms the COA opinion addressing the admission of other evidence.
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Opinions July 11, 2016

July 11, 2016
Indiana Court of Appeals
Shawn M. Sobolewski v. State of Indiana (mem. dec.)
46A03-1511-CR-2011
Criminal. Affirms convictions of Class A felony aiding, inducing or causing burglary and Class B felony aiding, inducing or causing robbery.
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Opinions July 8, 2016

July 8, 2016
Indiana Court of Appeals
Brad L. Sullivan v. State of Indiana
16A01-1512-CR-2175
Criminal. Reverses revocation of Sullivan’s community corrections placement. Based on the totality of the circumstances, including the nature of the violation – Sullivan’s commitment for mental health issues, and the sanction, an order he serve the sentence in the DOC – the trial court abused its discretion in finding his violation warranted revoking his community corrections placement. Remands for placement in community corrections.
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Opinions July 7, 2016

July 7, 2016
Indiana Court of Appeals
In the Matter of the Term. of the Parent-Child Relationship of: K.B., Minor Child, and L.B., Father v. The Ind. Dept. of Child Services (mem. dec.)
54A05-1601-JT-55
Juvenile. Affirms involuntary termination of father’s parental rights.
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Opinions July 6, 2016

July 6, 2016
Indiana Court of Appeals
James E. Rogers v. State of Indiana
49A02-1508-CR-1033
Criminal. Reverses the denial of Rogers’ motion to compel a woman who provided social services support to Rogers’ minor victim and her family to answer four questions during a deposition.
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Opinions July 5, 2016

July 5, 2016
Indiana Supreme Court
State of Indiana, Acting on Behalf of the Indiana Family & Social Services Administration
49S00-1605-OR-294
Original action. Concludes that the state is entitled to a change of judge. Removes Marion Superior Judge David Dreyer and orders the trial court to grant the change of judge motion. Vacates all orders Dreyer issued in the case on or after May 6, 2016, the date the Supreme Court’s order was certified, and prohibits Dreyer from exercising further jurisdiction except to effectuate the change of judge.
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Opinions July 1, 2016

July 1, 2016
Indiana Court of Appeals
Richard J. McVey v. State of Indiana
73A04-1601-CR-12
Criminal. Affirms in part and reverses in part denial of McVey’s petitions to be removed from the lifetime sex-offender registry and to be exempted from the unlawful-entry statute. Finds the lifetime-registration requirement for sex offenders violates the Indiana Constitution’s prohibition against ex post facto laws as applied McVey, who was convicted of molesting his half-sister between 1998 and 2001. Holds the unlawful-entry statute, which makes it a crime for a person who is required to register as a sex offender and who is convicted of child molesting to enter school property, is not an ex post facto law as applied to him.
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Opinions June 30, 2016

June 30, 2016
Indiana Court of Appeals
Keyaunna Hurley v. State of Indiana
49A05-1601-CR-108
Criminal. Rules Keyaunna Hurley’s inability to give a sufficient sample on a chemical breath test after she was suspected of driving under the influence was a refusal to take the test under section 2-4-2(b)(5) of Title 260 of the Indiana Administrative Code and the evidence was sufficient to sustain the refusal determination.
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Opinions June 29, 2016

June 29, 2016
Indiana Court of Appeals
Anonymous M.D. and Anonymous Hospital v. Kenneth Lockridge, on behalf of Lily Lockridge, Rose Lockridge, and Kenneth Lockridge, Jr., Minors
39A01-1509-CT-1498
Civil tort. Affirms ruling that a medical malpractice suit filed by minor children Lily, Rose and Kenneth Lockridge Jr. can proceed due to an exception in the Medical Malpractice Act, and the Act includes derivative lawsuits because the General Assembly did not exclude them when it drafted the legislation.
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