Opinions

Opinions Feb. 14, 2013

February 14, 2013
7th Circuit Court of Appeals
In the matter of: Castleton Plaza LP; Appeal of: El-SNPR Notes Holdings LLC
12-2639
U.S. Bankruptcy Court, Southern District of Indiana, Indianapolis Division, Judge Basil H. Lorch III.
Bankruptcy. Holds an equity investor cannot evade the competitive process by arranging for the new value to be contributed by (and the new equity to go to) an “insider” as 11 U.S.C. Section 101(31) defines that term. Competition is essential whenever a plan of reorganization leaves an objecting creditor unpaid yet distributes an equity interest to an insider.
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Opinions Feb. 13, 2013

February 13, 2013
7th Circuit Court of Appeals
United States of America v. Jesus Uribe
11-3590
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge Jane Magnus-Stinson.
Criminal. Affirms decision granting Uribe’s motion to suppress heroin found after traffic stop. The government failed to show that the officer had reasonable suspicion to stop Uribe’s vehicle to investigate why its registration was tied to a white Nissan whereas the Nissan Uribe was driving was blue. Investigatory stops based on color discrepancies alone are insufficient to give rise to reasonable suspicion.
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Opinions Feb. 11, 2013

February 11, 2013
Indiana Court of Appeals
Michael Gray v. State of Indiana
49A02-1205-CR-352
Criminal. Affirms conviction and sentence of Class D felony possession of cocaine, holding that the court erred in failing to allow a defendant to play a tape of an officer’s deposition that contained inconsistent statements, but that the error was harmless because other evidence at trial strongly pointed to Gray’s guilt.
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Opinions Feb. 8, 2013

February 8, 2013
Indiana Court of Appeals
Billy Russell v. State of Indiana
49A04-1203-CR-148
Criminal. Affirms conviction and sentence on charges of murder and Class B felony possession of a firearm by a serious violent felon. The panel found that the trial court did not abuse its discretion in refusing to completely bifurcate the trial of the SVF charge from the murder charge or in refusing to tender Russell’s self-defense jury instruction. The court also determined the 85-year sentence was not inappropriate.

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Opinions Feb. 7, 2013

February 7, 2013
7th Circuit Court of Appeals
Jurijus Kadamovas v. Michael Stevens, et al.
12-2669
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge William T. Lawrence.
Civil. Reverses dismissal of prisoner Kadamovas’ lawsuit against prison officials and other inmates for unintelligibility. The suit is actually written clearly and not 99 pages as the judge believed, but just 28 pages. Remands for further consideration.
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Opinions Feb. 6, 2013

February 6, 2013
Indiana Court of Appeals
Walter E. Smith, Jr. v. State of Indiana
84A04-1112-CR-637
Criminal. Affirms conviction of Class A felony dealing in cocaine. The trial court did not abuse its discretion in refusing to use Smith’s tendered instruction because the substance of that instruction was covered by instructions given by the court nor in refusing to discharge Smith pursuant to Criminal Rule 4(B). The trial court also did not abuse its discretion in admitting at trial the cocaine evidence seized pursuant to a valid search warrant.

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Opinions Feb. 5, 2013

February 5, 2013
Indiana Court of Appeals
Ignacio Perez v. State of Indiana
20A03-1206-CR-247
Criminal. Affirms denial of motion to suppress. Finds the detention, arrest and search incident to the arrest were reasonable and did not violate Perez’s right to be free from unreasonable search and seizure under the Fourth Amendment. The dog sniff outside his residence was reasonable and there was no violation of his rights under the Indiana Constitution. Remands for retrial.
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Opinions Feb. 4, 2013

February 4, 2013
Indiana Court of Appeals
Connie S. Landers v. Wabash Center, Inc.
79A04-1204-CT-191
Civil tort. Affirms judgment for Wabash Center Inc. in its lawsuit against Landers for the return of money her ex-husband stole from his employer Wabash and gave to her during and after their marriage. The court ordered she pay more than $1.037 million and granted Wabash an equitable lien on her home. Wabash’s lawsuit is not barred by the statute of limitations and the ruling is supported by sufficient evidence.
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Opinions Feb. 1, 2013

February 1, 2013
7th Circuit Court of Appeals
Eugene Devbrow v. Dr. Eke Kalu, et al.
12-2467
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Larry J. McKinney.
Civil. Reverses judgment for the defendants on prisoner Devbrow’s suit that two prison doctors and a prison nurse were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. The statute of limitations for a Section 1983 deliberate-indifference claim brought to redress a medical injury doesn’t begin to run until the plaintiff knows of his injury and its cause, so his suit is timely.

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Opinions Jan. 31, 2013

January 31, 2013
Indiana Court of Appeals
Mark S. Weinberger, M.D., et al. v. Gloria Gill
45A05-1203-CT-107
Civil tort. Affirms award of $150,000 in damages to Gloria Gill following her medical malpractice action. Concludes that the testimony concerning Weinberger’s odd behavior before his flight from the country was relevant evidence because it established an inference of consciousness of guilt.

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Opinions Jan. 30, 2013

January 30, 2013
Indiana Court of Appeals
Peter F. Amaya v. D. Craig Brater, M.D., in his capacity as Dean and Director of Indiana University School of Medicine; The Board of Trustees of Indiana University; et al.
49A04-1204-PL-208
Civil plenary. Affirms summary judgment in favor of the medical school on Amaya’s claims including breach of contract and breach of good faith and fair dealing after he was dismissed from the school. Amaya didn’t designate evidence that the school’s decision was in bad faith, arbitrary or capricious.

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Opinions Jan. 29, 2013

January 29, 2013
Indiana Court of Appeals
John Alden v. State of Indiana
30A01-1209-CR-412
Criminal. Affirmed trial court’s denial of petition to reduce Alden’s Class D felony conviction for operating while intoxicated to a Class A misdemeanor. In a review of the state statute covering the sentencing range for Class D felonies, the COA found the statute contained the word “may” instead of “shall” which gives the courts the freedom to deny petitions.

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Opinions Jan. 25, 2013

January 25, 2013
Indiana Court of Appeals
David Delagrange v. State of Indiana
49A04-1203-CR-144
Criminal. Reversed conviction of four counts of Class C felony attempted child exploitation and remanded for further proceedings. Ruled Delagrange’s act of secretly photographing minor girls’ underwear did not meet the Indiana statute’s definition of “child exploitation” because the girls did not intentionally expose themselves for the purpose of satisfying or arousing sexual desires of another.
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Opinions Jan. 24, 2013

January 24, 2013
Indiana Court of Appeals
Danny Boling v. State of Indiana
20A04-1205-CR-237
Criminal. Affirms conviction of Class A felony attempted child molesting based on the evidence presented at trial and 45-year sentence. Finds the trial court erred in determining Boling is a credit restricted felon because a person convicted of attempted child molesting isn’t a credit restricted felon under I.C. 35-31.5-2-72(1). Remands with instructions to correct Boling’s record to remove that designation.
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Opinions Jan. 23, 2013

January 23, 2013
7th Circuit Court of Appeals
John Doe v. Prosecutor, Marion County, Indiana
12-2512
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Civil. Reverses District Court decision to uphold statute prohibiting most registered sex offenders from using certain social networking and holds the law as drafted is unconstitutional. Though content neutral, the law is not narrowly tailored to serve the state’s interest. It broadly prohibits substantial protected speech rather specifically targeting the evil of improper communications to minors. Remands with instructions to enter judgment in favor of Doe and issue the injunction.
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Opinions Jan. 22, 2013

January 22, 2013
Indiana Court of Appeals
Lula L. Jenkins, et al. v. South Bend Community School Corp.
71A03-1206-PL-260
Civil plenary.  Reverses summary judgment for South Bend Community School Corp. on Jenkins’ action seeking an independent determination of whether she was discharged for just cause from her position as a bus driver. The advisory nature of the arbitrator’s award allows the non-prevailing party, here SBCSC, to reject the award, thus triggering judicial review, either under the Uniform Arbitration Act’s provisions or for a determination whether the facts found by the arbitrator support the award. Remands for further proceedings.
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Opinions Jan. 18, 2013

January 18, 2013
7th Circuit Court of Appeals
Linda K. Roddy v. Michael J. Astrue, Commissioner of Social Security
12-1682
U.S. District Court, Southern District of Indiana, New Albany Division, Judge Tanya Walton Pratt.
Civil. Vacates judgment of the District Court and remands Roddy’s case for disability insurance benefits to the Social Security Administration for further proceedings. Finds the administrative law judge made a number of errors in his consideration of the record, in which he denied her benefits.
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Opinions Jan. 17, 2013

January 17, 2013
Indiana Court of Appeals
Daniel Brewington v. State of Indiana
15A01-1110-CR-550
Criminal. Reverses convictions and sentences for intimidation of Dr. Edward Connor and intimidation of Heidi Humphrey and remands with instructions to vacate, which does not alter Daniel Brewington’s aggregate sentence. Affirms conviction for intimidation of Judge James Humphrey and for attempted obstruction of justice relating to Connor. Affirms in all other respects.
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Opinions Jan. 16, 2013

January 16, 2013
Indiana Court of Appeals
Nick Domaschko and Edwina Domaschko, and their Respective Trusts, et al. v. State of Indiana
58A01-1206-PL-261
Civil plenary. Affirms trial court’s order of immediate appropriation and appointment of appraisers. The trial court properly determined that the state, through the Indiana Department of Transportation, was entitled by law to acquire the Domaschkos’ property.
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Opinions Jan. 15, 2013

January 15, 2013
Indiana Supreme Court
Timothy W. Plank, Individually and as Personal Representative of the Estate of Debra L. Plank, Deceased v. Community Hospitals of Indiana, Inc., and State of Indiana
49S04-1203-CT-135
Civil tort. Affirms trial court denial of Timothy Plank’s request to hold an evidentiary hearing to challenge the constitutionality of the Medical Malpractice Act. Plank forfeited his opportunity to conduct such a hearing.
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Opinions Jan. 14, 2013

January 14, 2013
Indiana Court of Appeals
Deantoine M. Harris v. State of Indiana (NFP)
02A03-1204-CR-185
Criminal. Affirms conviction of Class B felony burglary and adjudication as a habitual offender.
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Opinions Jan. 11, 2013

January 11, 2013
Indiana Court of Appeals
Dejuan T. Lowe v. State of Indiana (NFP)
71A03-1206-CR-264
Criminal. Dismisses as untimely Lowe’s appeal of sentence following guilty pleas to multiple felony charges of burglary and attempted burglary.
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Opinions Jan. 10, 2013

January 10, 2013
Indiana Supreme Court
Andre Gonzalez v. State of Indiana
45S03-1206-CR-307
Criminal. Reverses denial of petition to remove the lifetime registration requirement and remands for further proceedings. Finds the Ex Post Facto Clause of the Indiana Constitution prohibits retroactive application of a lifetime registration requirement for Gonzalez, whose requirement to register for life was added while he was completing the 10-year required registration as a sex offender that was in place at the time due to his child solicitation conviction. Justice Rucker concurs in result.
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Opinions Jan. 9, 2013

January 9, 2013
7th Circuit Court of Appeals
United States of America v. Michael D. Weir
11-3321
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge Jane Magnus-Stinson.
Criminal. All the judges on the original panel have voted to deny the petition for rehearing and no judge in regular active service asked for a vote on the petition for rehearing en banc. The petition is therefore denied. Weir complained that his Fourth Amendment rights were violated when a police officer seized $6,655 from him during a traffic stop.

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Opinions Jan. 8, 2013

January 8, 2013
7th Circuit Court of Appeals
West Bend Mutual Insurance Co. v. Arbor Homes LLC
12-2274
U.S. District Court, Southern District of Indiana, Indianapolis Division, Magistrate Judge Tim A Baker. Affirms District Court ruling in favor of West Bend Mutual Insurance that it has no duty to defend or indemnify Arbor Homes. Arbor Homes agreed to a settlement with homeowners without obtaining the prior consent of West Bend after raw sewage backed up into their brand new home.
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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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