Opinions

Opinions June 29, 2011

June 29, 2011
7th Circuit Court of Appeals
United States of America v. Brook Abebe
10-3966
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Criminal. Affirms sentence of 300 months in prison following guilty plea to armed bank robbery, discharge of a firearm during a crime of violence, and unlawful possession of a firearm by a convicted felon. There was no procedural error in the District Court’s calculation of Abebe’s sentence and his sentence is not substantively unreasonable.
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Opinions June 28, 2011

June 28, 2011
Indiana Supreme Court
Randy Horton v. State of Indiana
48S04-1106-CR-386
Criminal. Affirms convictions of child molesting but reverses 324-year sentence and orders it be reduced to an aggregate executed term of 110 years. Enhances one Class A felony conviction to 50 years and orders the 30-year advisory sentence on the remaining Class A felony convictions. Orders the Class C felony convictions to be four years on each count. Remands for the trial court to issue an amended sentencing order.
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Opinions June 27, 2011

June 27, 2011
Indiana Court of Appeals
Vincent M. Butler, Jr. v. State of Indiana
84A01-1008-CR-414
Criminal. Affirms revocation of Butler’s probation. The record shows that the trial court adequately advised Butler of his right to counsel and that he knowingly, intelligently, and voluntarily waived that right. The trial court did not abuse its discretion by imposing the balance of his four-year previously suspended sentence. Judge Kirsch dissents.
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Opinions June 24, 2011

June 24, 2011
Indiana Court of Appeals
Involuntary Commitment of S.S.
49A02-1011-MH-1251
Mental health. Affirms order for S.S.’s temporary commitment. There was no prejudice to S.S. due to the doctor’s report being filed 16 minutes after the end of her detention period. The timely filing of the report is a procedural requirement, not a jurisdiction prerequisite. 
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Opinions June 23, 2011

June 23, 2011
7th Circuit Court of Appeals
Joseph E. Corcoran v. Bill Wilson, superintendent
07-2093, 07-2182
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Allen Sharp.
Civil. Reinstates and incorporates by reference the earlier opinion in Corcoran v. Buss to the extent that it reversed the District Court’s judgment granting habeas relief on the basis of the claimed Sixth Amendment violation; and affirmed the District Court’s conclusion that the Indiana courts did not mishandle the issue of his competence to waive post-conviction remedies. Remands to District Court to permit it to address Corcoran’s remaining grounds for habeas relief.
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Opinions June 22, 2011

June 22, 2011
7th Circuit Court of Appeals
United States of America v. Michael Lee Mokol Jr.
10-2334
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Joseph Van Bokkelen.
Criminal. Affirms two convictions of being a felon in possession of a firearm. The District Court did not abuse its discretion in admitting bad acts testimony through Lori Miller’s testimony as to Mokol’s statement that he would put anyone who told on him “in the ground;” or in admitting bad acts evidence involving his daughter’s testimony about the gun “prank” in the Rising Sun parking lot. The District Court did not err in restricting cross-examination of his daughter and the District Court didn’t abuse its discretion by instructing the jury as to constructive possession.
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Opinions June 21, 2011

June 21, 2011
7th Circuit Court of Appeals
United States of American v. Donella Locke
10-1351.
Criminal. Affirms convictions on five counts of wire fraud. Vacates Donella Locke’s 71-month sentence and restitution order and remands for resentencing proceedings, holding that the length of the sentence and amount of restitution were based in part on conduct not necessarily encompassed in the charges of conviction. Also holds that the court erred in ordering Locke to pay restitution to victims not clearly harmed by the conduct in Locke’s counts of conviction.
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Opinions June 20, 2011

June 20, 2011
Indiana Court of Appeals
Nelson E. Rios v. State of Indiana (NFP)
49A05-1010-CR-612
Criminal. Affirms sentence for two counts of Class C felony dealing in a look-alike substance.
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Opinions June 17, 2011

June 17, 2011
Indiana Court of Appeals
Shaun M. Berry v. State of Indiana
57A03-1011-CR-579
Criminal. Reverses trial court’s imposition of public defender fee and remands for a determination of Shaun Berry’s ability to pay for his legal services and for clarification of $364 in court costs. Holds the court failed to identify statutory authorization for imposing court costs and failed to make statutorily required finding that Berry had the ability to pay public defender fee.
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Opinions June 16, 2011

June 16, 2011
Indiana Court of Appeals
T.R. v. Review Board
93A02-1005-EX-640
Agency action. Affirms Indiana Department of Workforce Development Review Board decision affirming the findings by the administrative law judge that T.R. left her employment without good cause. T.R. was afforded due process and the ALJ’s findings are supported by the evidence.
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Opinions June 15, 2011

June 15, 2011
Indiana Court of Appeals
The Board of Commissioners in County of Allen, Commissioner Linda K. Bloom, et al. v. Northeastern Indiana Building Trades Council, et al. (NFP)
02A03-1009-PL-534
Civil plenary. Affirms summary judgment for Northeastern Indiana Building Trades Council and other appellees in their suit challenging the common wage determination for renovation of a building.
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Opinions June 14, 2011

June 14, 2011
Indiana Supreme Court
Alva Curtis v. State of Indiana
49S02-1010-CR-620
Criminal. Reverses denial of Curtis’ motion to dismiss. The trial court should have granted Curtis’ motion to dismiss and discharge because the days that counted toward the Rule 4(C) period exceeded 365. Curtis is not entitled to dismissal on fundamental-fairness grounds because he has not been involuntarily committed and there hasn’t been an appropriate finding that he will never be restored to competency. Remands with instructions to dismiss the charging information.
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Opinions June 13, 2011

June 13, 2011


Indiana Court of Appeals
Antwon Abbott v. State of Indiana

34A02-1009-CR-1067
Criminal. Affirms convictions of and sentence for Class B felony possession of cocaine and Class A misdemeanor possession of marijuana. The trial court did not abuse its discretion in admitting into evidence the cocaine and marijuana found during the search of Abbott’s person. His argument fails that the statute that elevated his possession crime to a Class B felony is unconstitutionally vague as applied to him.

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Opinions June 10, 2011

June 10, 2011
Indiana Court of Appeals
Liberty Country Club v. Landowners of Country Club Estates Housing Development
81A01-1007-MI-364
Miscellaneous. Affirms summary judgment in favor of the landowners of the housing development, concluding that under the terms of the covenant, Liberty is required to provide potable water to the homeowners in the development.
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Opinions June 9, 2011

June 9, 2011
7th Circuit Court of Appeals
Harriett Ellis, et al. v. CCA of Tennessee LLC d/b/a Corrections Corporation of America
10-2768
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Affirms summary judgment in favor of CCA of Tennessee on the former jail nurses’ claims of racial discrimination, hostile work environment, and violations of the state whistleblower law. Although the District Court correctly determined there was no genuine issue of material fact related to the plaintiffs’ legal claims, the District Court erred with respect to its claim preclusion ruling. That was a harmless error.
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Opinions June 8, 2011

June 8, 2011
Indiana Supreme Court
Randy Edward Johnson v. State of Indiana
53S01-1106-CR-335
Criminal. Johnson failed to establish that his trial counsel was burdened by a conflict of interest sufficient to trigger the Sixth Amendment duty of inquiry under Holloway or Sullivan. Under similar circumstances, though, a judge should do more than simply pass a complaint by a defendant to the public defender’s office.
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Opinions June 7, 2011

June 7, 2011
Indiana Court of Appeals
Michael J. Gaby v. State of Indiana
79A02-1006-CR-804
Criminal. Reverses conviction of Class A felony child molesting and remands for new trial, stating the trial court erred in permitting the state to refresh the victim’s recollection by allowing her to read a previous statement she made. Holds that retrial will not violate double jeopardy grounds because sufficient evidence exists to support conviction.
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Opinions June 6, 2011

June 6, 2011

Indiana Court of Appeals
Estate of Verna D. Carter v. Holly F. Szymczak
71A04-1008-CT-472
Civil tort. Affirms jury verdict of $125,000 in favor of Szymczak on her negligence complaint against Carter alleging her negligence caused a car accident and injury to Szymczak. Based on the evidence, a reasonable jury could infer that Carter made an unsafe lane change, negligently causing the collision and injury to Szymczak. The trial court did not err in allowing the Permanent Partial Impairment rating evidence to be admitted.

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Opinions June 3, 2011

June 3, 2011
7th Circuit Court of Appeals
Maetta Vance v. Ball State University, et al.
08-3568
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Affirms District Court’s summary judgment for the defendants and dismissal of discrimination lawsuit, stating the plaintiff failed to prove that her treatment at work was in any way affected by her race, and that the plaintiff did not prove that Ball State University was negligent in taking steps to remediate reported harassment.
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Opinions June 2, 2011

June 2, 2011
Indiana Court of Appeals
Larry Ault v. State of Indiana
49A04-1008-CR-492
Criminal. Reverses conviction of felony murder and remands for a new trial. There was sufficient evidence, without Ault’s testimony, to support a jury instruction on self-defense.
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Opinions June 1, 2011

June 1, 2011
Indiana Supreme Court
Jeffery Sloan v. State of Indiana
18S04-1009-CR-502
Criminal. Affirms convictions of and sentence for Class A felony and Class C felony child molesting. Holds once concealment has been established, statutes of limitations for criminal offenses are tolled under Indiana Code 35-41-4-2(h) until a prosecuting authority becomes aware or should have become aware of sufficient evidence to charge the defendant. Also holds that under the facts of this case, there was no double jeopardy violation because each challenged offense was established by separate and distinct facts. Justices Sullivan and Rucker dissent.
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Opinions May 31, 2011

May 31, 2011
Indiana Court of Appeals
Dennis Block v. Mark Magura
64A05-1012-PL-752
Civil plenary. Reverses summary judgment for Magura on Block’s lawsuit filed after Magura didn’t complete the purchase of Block’s interest in a partnership. The letter of intent is an enforceable contract because it contains the essential terms of the parties’ agreement and expresses their intent to be bound. Remands for summary judgment in favor of Block as to Magura’s liability for breach of contract and to conduct further proceedings with respect to damages.
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Opinions May 27, 2011

May 27, 2011
In the Matter of the Honorable William J. Hughes, Judge of the Hamilton Superior Court
29S00-1105-JD-279
Judicial discliplinary action. Reprimands Hamilton Superior Judge William J. Hughes, terminating disciplinary proceedings relating to the circumstances giving rise to the cause.
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Opinions May 26, 2011

May 26, 2011
Indiana Court of Appeals
Jerry French, et al. v. State Farm Fire & Casualty Company
18A02-1005-PL-489
Civil plenary. Affirms the trial court properly denied summary judgment for both parties on the question of whether the insurance policy terms covered the cost of replacing the Frenches’ manufactured home with a stick-built one. Remands with instructions to enter summary judgment in favor of State Farm on the Frenches’ coverage-by-estoppel claim because there is no dispute that coverage exists; to enter summary judgment for the Frenches on the question of reformation of the policy based on mutual mistake of fact and rescission of the policy based on concealment of material facts by the Frenches. Remands for trial on whether State Farm should be liable for the costs of a stick-built home.
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Opinions May 25, 2011

May 25, 2011
Indiana Court of Appeals
Estate of Bradley Kinser, et al. v. Indiana Insurance Company
29A02-1009-PL-1093
Civil plenary. Reverses summary judgment in favor of Indiana Insurance on its motion for declaratory judgment that it’s not obligated to cover any losses following Bradley Kinser’s accident and death while driving his girlfriend’s car because his policy excluded coverage for a vehicle furnished or available for his regular use. A genuine issue of material fact remains as to the scope and extent that Kinser felt he needed his girlfriend’s permission to drive her car, which affects the determination of whether the car was furnished or available for his regular use.
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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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