Opinions

Opinions March 5, 2015

March 5, 2015
Indiana Supreme Court
Kenneth Griesemer v. State of Indiana
49S04-1408-CR-564
Criminal. Affirms conviction of patronizing a prostitute. Finds the undercover detective merely presented Griesemer with an opportunity to patronize a prostitute and there was no inducement and therefore no entrapment. Justices Dickson and Rucker dissent with separate opinion.
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Opinions March 4, 2015

March 4, 2015
Indiana Court of Appeals
David Bisard v. State of Indiana
02A03-1312-CR-492
Criminal. Affirms convictions and sentence for Class B felony operating a vehicle with a BAC of 0.15 or higher causing death and two counts of Class D felony operating a vehicle with a BAC of more than 0.08 percent causing serious bodily injury. The trial court did not abuse its discretion in denying Bisard’s motion for a mistrial based upon issues relating to juror misconduct and the statement by the court that admitting testimony from Bisard regarding his drinking habits would open the door to a subsequent drunken-driving conviction did not amount to denial of due process.
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Opinions March 3, 2015

March 3, 2015
Indiana Court of Appeals
Gordon A. Etzler v. Indiana Department of Revenue
50A04-1406-PL-285
Civil plenary. Reverses summary judgment in favor of the revenue department on Etzler’s complaint for breeder’s award funds. Because the judgment resulting from the department’s Marshall County tax warrant only creates a lien on property “in the county,” I.C. 6-8.1-8-2(e), and because the department did not take measures to establish a lien on property located in any other county, the department’s ability to levy on Dale Dodson’s property was limited to Marshall County. Etzler filed a valid UCC financing statement that perfected his interest in the breeder’s awards.
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Opinions March 2, 2015

March 2, 2015
7th Circuit Court of Appeals
Mir S. Iqbal v. Tejaskumar M. Patel, et al.
14-1959
U.S. District Court, Northern District of Indiana, Hammond Division. Judge James T. Moody.
Civil. Reverses dismissal of Iqbal’s complaint for want of jurisdiction because it is barred by the Rooker-Feldman doctrine since it challenges state court judgment. Because he seeks damages for activity that (he alleges) predates the state litigation and cause injury independently of it, the Rooker-Feldman doctrine does not block his suit.
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Opinions Feb. 27, 2015

February 27, 2015
Indiana Court of Appeals
Tyrone Shelton v. State of Indiana
71A03-1408-CR-309
Criminal. Affirms convictions of Class A misdemeanor possession of marijuana, Class C felony possession of cocaine, and Class D felony possession of a Schedule I controlled substance. The anonymous tip exhibited sufficient indicia of reliability to create reasonable suspicion for the search in accordance with the Fourth Amendment.
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Opinions Feb. 26, 2015

February 26, 2015
7th Circuit Court of Appeals
Betty Ruth Nelson v. Peggy Holinga Katona, individually and in her official capacity as Lake County Auditor, et al.
13-1652
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Joseph S. Van Bokkelen.
Civil. Affirms judgment entered against Nelson on her lawsuit that she was unlawfully terminated from her job in the auditor’s office because of her political support of Barack Obama. Nelson failed to file any post-verdict motions.
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Opinions Feb. 25, 2015

February 25, 2015
Indiana Court of Appeals
Gordon L. Peak, Jr. v. State of Indiana
27A04-1406-CR-260
Criminal. Affirms conviction of Class D felony possession of marijuana in excess of 30 grams. Trial counsel was not deficient for failing to file a motion to suppress the marijuana or for not objecting at trial to the admission of it on the grounds the traffic stop was illegal.
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Opinions Feb. 24, 2015

February 24, 2015
Indiana Court of Appeals
Meridian North Investments LP v. Anoop Sondhi DDS, MS
49A02-1405-PL-311
Civil plenary. Affirms on interlocutory appeal denial of Meridian North’s motion for summary judgment on Sondhi’s negligence claim arising from injuries sustained after a fall caused by slipping on ice as he attempted to enter his office. While Sondhi signed a lease as an officer of a partnership, a landlord exculpatory clause in the lease contract limiting Meridian’s liability did not bind Sondhi personally from pursuing a negligence claim.
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Opinions Feb. 20, 2015

February 20, 2015
7th Circuit Court of Appeals
Timothy W. Austin v. Andrew Pazera
14-2574
United States District court for the Northern District of Indiana, Hammond Division,
Judge James Moody.
Criminal. Reverses the denial of Austin’s petition for federal habeas corpus and remands with instructions to order the relief sought by the appellant. Austin was punished in a prison disciplinary proceeding for having attempted to traffic in tobacco. However, he appealed and the 7th Circuit agreed that he had been denied due process of law by being convicted without sufficient evidence.
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Opinions Feb. 19, 2015

February 19, 2015
Indiana Court of Appeals
In re the Paternity of Snyder, M.S. v. D.A.
79A02-1407-JP-497
Juvenile. Affirms in part, reverses in part and remands. The trial court erred when it denied father M.S.'s motion to permit him to tell his daughter that he is her father. Because a finding of physical endangerment or emotional impairment was not made prior to imposing the restriction, the trial court erred in denying father's request, and that portion of the trial court's orders is reversed. Affirms trial court ruling on modification of parenting time order, holding that father has not demonstrated there was a change in circumstances to warrant a change in the parenting time that now permits him to talk with his daughter once weekly in 15-minute supervised Skype sessions.
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Opinions Feb. 18, 2015

February 18, 2015
Indiana Supreme Court
Jeffrey A. Weisheit v. State of Indiana
10S00-1307-DP-492
Death penalty. Affirms two convictions of murder and one conviction of Class A felony arson resulting in serious bodily injury and sentence to death. There is sufficient evidence to support the convictions. The trial court did not err in excluding a prison administration expert’s testimony that Weisheit could be safely incarcerated in prison nor did it err in refusing to excuse 12 jurors for cause.
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Opinions Feb. 17, 2015

February 17, 2015
Indiana Tax Court
Alloy Custom Products, Inc. v. Indiana Department of State Revenue
49T10-1102-TA-17
Tax. Grants summary judgment in favor of the Department of State Revenue and denies Alloy Custom Products’ motion for summary judgment regarding a refund of sales tax paid on utilities Alloy consumed while “rehabilitating” cryogenic tanker trailers between September 2006 and March 2010. Alloy’s rehabilitation process does not produce other, or new, tangible personal property.
 
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Opinions Feb. 16, 2015

February 16, 2015
The following 7th Circuit Court of Appeals opinion was posted after IL deadline Friday:
United States of America v. Anthony Wilbourn
13-3610
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Criminal. Affirms imposition of a two-level enhancement after the judge determined Wilbourn committed obstruction of justice by pretending to be mentally incompetent in an effort to derail or delay his prosecution. An evaluation by medical professionals found he was competent to stand trial. Holds when a judge has doubts about the bona fides of a defendant’s behavior at the competence hearing, the judge should not find an obstruction of justice.
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Opinions Feb. 13, 2015

February 13, 2015
Indiana Court of Appeals
Kevin A. Mathews v. State of Indiana
73A04-1406-CR-288
Criminal. Affirms conviction of Class B felony robbery. Finds Mathews waived his right to a face-to-face confrontation with the victim by failing to attend her deposition. Her deposition, conducted through Skype, was given under oath and transcribed by a court reporter.

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Opinions Feb. 12, 2015

February 12, 2015
The following Indiana Supreme Court decision was posted after IL deadline Wednesday:
Brandon Brummett v. State of Indiana
49S02-1502-CR-69
Criminal. Clarifies that Ryan v. State, 9 N.E.3d 663 (Ind. 2014), a case involving prosecutorial misconduct, did not alter the doctrine of fundamental error. Summarily affirms Court of Appeals reversal of several of Brummett’s convictions due to prosecutorial misconduct.
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Opinions Feb. 11, 2015

February 11, 2015
7th Circuit Court of Appeals
Howard Piltch, et al. v. Ford Motor Company, et al.
14-1965
U.S. District court, Northern District of Indiana, South Bend Division. Judge James T. Moody.
Civil. Affirms summary judgment for Ford on the Piltches’ claim that their 2003 Mercury Mountaineer was defective because the airbags didn’t deploy in an accident. Without expert testimony provided by the Piltches, a jury would only be able to speculate as to the viability of their Indiana Products Liability Act claims.

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Opinions Feb. 10, 2015

February 10, 2015
Indiana Supreme Court
In the Matter of the Honorable Dianna L. Bennington, Judge of the Muncie City Court
18S00-1412-JD-733
Judicial discipline. Formalizes the conditional agreement for discipline jointly submitted by Bennington and the Commission on Judicial Qualifications in which the former Muncie City Court judge admitted to 10 of 13 alleged violations of the Rules of Judicial Conduct.
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Opinions Feb. 9, 2015

February 9, 2015
Indiana Court of Appeals
Shane L. Keller v. State of Indiana
88A04-1404-CR-168
Criminal. Affirms in part, reverses in part and remands the 50-year aggregate sentence for convictions of two counts of Class B felony burglary, one count of Class C felony burglary, three counts of Class D felony theft, two counts of Class D felony receiving stolen property, and enhancement for habitual offender. Remands with instructions to vacate two receiving stolen property convictions and the sentences for them because they violate the prohibition against double jeopardy with respect to the theft convictions.
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Opinions Feb. 6, 2015

February 6, 2015
Indiana Court of Appeals
Kirk R. Jocham v. Melba Sutliff
29A02-1406-DR-424
Domestic relation. Reverses order granting Sutliff grandparent visitation. The court ruled that Sutliff, the maternal grandmother, had no standing to petition for visitation when she did because her former son-in-law had remarried and the couple had adopted the grandchild after the death of Sutliff’s daughter, the grandchild’s mother.
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Opinions Feb. 5, 2014

February 5, 2015
7th Circuit Court of Appeals
Richard Wagoner v. Bruce Lemon, commissioner of the Indiana Department of Corrections, and Indiana Department of Corrections
13-3839
U.S. District Court, Northern District of Indiana, South Bend Division, Magistrate Judge Christopher A. Nuechterlein.
Civil. Affirms summary judgment in favor of the commissioner and DOC on Wagoner’s claims of violations of Section 1983 and Title II of the ADA and the Rehabilitation Act. Wagoner did not show that he was denied access to any service or program because of his disability. Stresses it is better practice to hold a Pavey hearing separate from and before considering a motion for summary judgment.
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Opinions Feb. 4, 2015

February 4, 2015
Indiana Court of Appeals
Loren H. Fry v. State of Indiana
09A05-1404-CR-178
Criminal. Affirms felony murder conviction. Concludes the state properly corroborated the hearsay evidence it submitted in support of its request for a search warrant for Fry’s home, circumstantial evidence supports his conviction, there was no prosecutorial misconduct or an error by the court in denying his jury instruction on mere presence.
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Opinions Feb. 3, 2015

February 3, 2015
Indiana Court of Appeals
Nick Hunckler v. Air Sorce-1, Inc., Timothy Miller and Kelly A. Brannen
84A01-1405-CT-217
Civil tort. Reverses summary judgment in favor of the defendants on Hunckler’s personal injury claim. There are material issues of fact that exist and therefore preclude any grant of summary judgment that determined Miller was not liable by virtue of his position as an officer of the corporation as that would be erroneous. Remands for further proceedings. Judge Robb concurs in result with opinion.
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Opinions Feb.2, 2015

February 2, 2015
Indiana Tax Court
Brandenburg Industrial Service Co., an Illinois Corp. v. Ind. Dept. of State Revenue
49T10-1206-TA-37
Tax. Denies Brandenburg’s request that the Department of State Revenue must disclose its potential non-expert witnesses, but orders the department to produce the two pages of handwritten notes that Brandenburg seeks.  Finds the department has adequately answered the interrogatory and will not compel it to identify any additional potential non-expert witnesses, but the handwritten notes are relevant.
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Opinions Jan. 30, 2015

January 30, 2015
7th Circuit Court of Appeals
United States of America v. Anthony Bailey
13-3229
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Criminal. Finds Bailey’s motion asking for a reduced sentence is best understood as a petition for relief under 28 U.S.C. Section 2255 for a sentence that was imposed contrary to the law. Based on Dorsey v. United States, Bailey should have been subject to a mandatory minimum sentence of only 10 years, instead of 20, after he pleaded guilty in 2011 to distributing crack cocaine. Remands for a new sentencing hearing.
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Opinions Jan. 29, 2015

January 29, 2015
Indiana Court of Appeals
State of Ind., Consolidated City of Indianapolis/Marion Co., et al. v. El Rodeo #11, LLC
49A05-1406-MI-257
Miscellaneous. Vacates order that Marion County return El Rodeo’s seized funds that are being held in the Tippecanoe County Prosecutor’s Office. The trial court should have granted Marion County’s motion to dismiss its forfeiture complaint against El Rodeo because Tippecanoe County already had the funds. Remands for further proceedings.
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  1. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  2. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

  3. Lets talk about this without forgetting that Lawyers, too, have FREEDOM OF SPEECH AND ASSOCIATION

  4. Baer filed with the U.S. Court of Appeals Seventh Circuit on April 30 2015. When will this be decided? How many more appeals does this guy have? Unbelievable this is dragging on like this.

  5. They ruled there is no absolute right to keep a license, whether it be for a lifetime or a short period of time. So with that being said, this state taught me at the age of 15 how to obtain that license. I am actually doing something that I was taught to do, I'm not breaking the law breaking the rules and according to the Interstate Compact the National Interstate Compact...driving while suspended is a minor offense. So, do with that what you will..Indiana sucks when it comes to the driving laws, they really and truly need to reevaluate their priorities and honestly put the good of the community first... I mean, what's more important the pedophile drug dealer or wasting time and money to keep us off the streets?

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