Opinions

Opinions Oct. 16, 2012

October 16, 2012
Indiana Court of Appeals
Charles Mitchell v. State of Indiana
49A02-1202-CR-125
Criminal. Affirms conviction and sentence for Class D felony theft. The evidence is sufficient to show Mitchell and the other defendants knowingly exerted unauthorized control over the apartment complex’s water heater with the intent to deprive the apartments of any part of its value or use. The advisory sentence imposed, with all but 60 days suspended to probation, was not inappropriate.
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Opinions Oct. 15, 2012

October 15, 2012
Indiana Court of Appeals
Ted L. Cecil, Cecil Septic LLC, and Max Haas Company, LLC v. Fisk Excavating, Plumbing and Septic Services, Inc., Dennis Fisk, Dennis Fisk, Jr.,Michelle Fisk, Bob Murphy, et al. (NFP)
33A05-1112-MI-686
Miscellaneous. Affirms summary judgment in favor of Fisk Excavating and other defendants on the plaintiffs’ legal malpractice claim. Remands for determination of Gregg Morelock’s appellate attorney fees.
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Opinions Oct. 12, 2012

October 12, 2012
Indiana Court of Appeals
Jeffrey Riggs and Mark Ashmann v. Mark S. Weinberger, M.D., Mark Weinberger, M.D., P.C., Merrillville Center for Advanced Surgery, LLC, and Nose and Sinus Center, LLC
45A03-1109-CT-394
Civil tort. Reaffirms original opinion in all respects, and finds that a trial court when confronted with the facts and circumstances like those in this case, may compel an involuntary psychiatric examination in accordance with Ind. Trial Rule 35. There is no requirement that the court must do so.
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Opinions Oct. 11, 2012

October 11, 2012
7th Circuit Court of Appeals
Edward Jeroski, doing business as USA Cleaning Service and Building Maintenance v. Federal Mine Safety and Health Review Commission and U.S. Secretary of Labor
11-3687
Agency review. Denies USA Cleaning’s petition to review the order of the Federal Mine Safety and Health Review Commission, which affirmed the denial of an application for attorney fees under the Equal Access to Justice Act. The meaning of “prevailing party” under the act does not apply to USA Cleaning, which was the subject of an order by the Federal Mine Safety and Health Administration that was later dropped.
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Opinions Oct. 10, 2012

October 10, 2012
7th Circuit Court of Appeals
Charles R. Kastner v. Michael J. Astrue, Commissioner of Social Security
11-1166
U.S. District Court, Southern District of Indiana, Evansville Division, Magistrate Judge William G. Hussmann Jr.
Civil. Reverses denial of disability benefits, finding the administrative law judge did not adequately explain why Kastner had not met the requirements for a presumptive disability. Remands for further proceedings.
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Opinions Oct. 9, 2012

October 9, 2012
Indiana Court of Appeals
Ralph Jennings d/b/a A Cut Above Tree Service v. Terrance Kinnard (NFP)
49A05-1203-CC-117
Collections. Reverses and remands trial court’s grant of relief to Kinnard from a default judgment of $4,189.22 for the plaintiff.
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Opinions Oct. 5, 2012

October 5, 2012
Indiana Court of Appeals
Heartland Crossing Foundation, Inc. v. Chris M. Dotlich
55A01-1203-SC-119
Small claims. Affirms judgment in favor of Dotlich on a breach of contract claim, holding that the trial court did not err in rejecting Heartland’s claim for attorney fees assessed on the late payment of homeowner association dues. The trial court had called an “administrative fee” assessed to Dotlich “nothing more than an abusive junk fee.”
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Opinions Oct. 4, 2012

October 4, 2012
7th Circuit Court of Appeals
Angelina Povey v. City of Jeffersonville, Indiana
11-1896
U.S. District Court, Southern District of Indiana, New Albany Division, Judge Richard L. Young.
Civil. Affirms summary judgment for the city on Povey’s claim that her termination of employment by the city animal shelter violated the Americans with Disabilities Act and on her retaliation claim. Povey failed to meet her burden to demonstrate that she was disabled under the ADA and is not protected by its provisions.
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Opinions Oct. 3, 2012

October 3, 2012
Indiana Court of Appeals
Steven B. Steele v. State of Indiana
49A05-1202-CR-54
Criminal. Affirms denial of motion to suppress. Evidence Rule 617 does not apply in this case because the police officer’s interrogation of Steele did not occur in a place of detention. The rule also does not explicitly or implicitly impose an affirmative duty on law enforcement officers to transport a person to a place of detention before conducting a custodial interrogation.
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Opinions Oct. 2, 2012

October 2, 2012
Indiana Court of Appeals
Moise Joseph v. State of Indiana
82A05-1108-CR-387
Criminal. Reverses convictions of Class A felony burglary resulting in serious bodily injury, Class B felony attempted armed robbery and Class B felony criminal confinement. The trial court abused its discretion in admitting Joseph’s statements to the police detective.
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Opinions Oct. 1, 2012

October 1, 2012
Indiana Court of Appeals
Scott F. West v. State of Indiana
11A01-1203-CR-123
Criminal. Orders discharge of marijuana charges because West was held to answer those charges for more than a year without a trial date while a motion to suppress awaited a ruling. West did not request an indefinite continuance such that he needed to notify the court that he wished to proceed to trial.
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Opinions Sept. 28, 2012

September 28, 2012
Indiana Court of Appeals
Steven Duncan v. State of Indiana
82A01-1201-CR-22
Criminal. Affirms in part and reverses in part six convictions of Class A misdemeanor cruelty to an animal. Duncan did not knowingly waive his right to a jury trial because the court did not fully advise him of his rights and obligations. Finds the animal cruelty statute is not vague as applied to him and there was sufficient evidence to overcome a defense of necessity. Remands for a jury trial.
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Opinions Sept. 27, 2012

September 27, 2012
Indiana Court of Appeals
John Jorman, Jr. v. Review Board of the Indiana Dept. of Workforce Development, et al. (NFP)
93A02-1203-EX-263
Agency action. Affirms suspension of unemployment benefits.
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Opinions Sept. 26, 2012

September 26, 2012
7th Circuit Court of Appeals
Sandra M. Bontrager, on her own behalf and on behalf of a class of those similarly situated v. Indiana Family and Social Services Administration, Michael A. Gargano and Patricia Casanova
11-3710
U.S. District Court, Northern District of Indiana, South Bend Division, Chief Judge Philip P. Simon.
Civil. Affirms grant of Bontrager’s request for a preliminary injunction in her putative class-action complaint challenging Indiana’s $1,000 annual limit for dental services covered by Medicaid. The state is required to cover all medically necessary dental services, irrespective of the monetary cap.
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Opinions Sept. 25, 2012

September 25, 2012
Indiana Court of Appeals
Charles Hall v. State of Indiana
13A04-1111-CR-622
Criminal. Affirms conviction and aggregate 24-year sentence for convictions of dealing in methamphetamine, possession of precursors, operating a vehicle after a lifetime suspension, and resisting law enforcement. The court held that a search of the vehicle that Hall fled after leading police on a chase did not implicate the Fourth Amendment and that the sentence was not inappropriate given Hall’s dangerous conduct and long record of driving and drug convictions.

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Opinions Sept. 24, 2012

September 24, 2012
Indiana Court of Appeals
State of Indiana v. Russell Oney
49A05-1204-CR-196
Criminal. Reverses and remands a trial court ruling that vacated a determination that a defendant was a habitual traffic violator, holding that even though one of the predicate offenses later was vacated in post-conviction relief, the BMV’s determination that Oney was a habitual traffic offender did not constitute manifest injustice.
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Opinions Sept. 21, 2012

September 21, 2012
Indiana Court of Appeals
Justin Taylor v. State of Indiana
49A05-1201-CR-4
Criminal. Affirms conviction of Class C felony failing to register as a sex offender. Rejects argument that ankle bracelet alerted authorities Taylor was living at a different address.
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Opinions Sept. 19, 2012

September 19, 2012
Indiana Court of Appeals
Michael Carpenter v. State of Indiana
85A05-1202-CR-57
Criminal. Affirms conviction of Class B felony conspiracy to commit dealing in methamphetamine. The police officers did not violate Carpenter’s Fourth Amendment rights when they entered the house’s curtilage pursuant to an arrest warrant and looked into the bathroom window. The officers also did not violate his rights under the Indiana Constitution.
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Opinions Sept. 18, 2012

September 18, 2012
Indiana Court of Appeals
Marlon Sims v. State of Indiana (NFP)
49A02-1203-CR-183
Criminal. Affirms sentence for Class C felony robbery, Class D felony criminal confinement and finding Sims is a habitual offender.
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Opinions Sept. 17, 2012

September 17, 2012
7th Circuit Court of Appeals
Fred E. Dowell v. United States of America
10-2912
U.S. District Court, Southern District of Indiana, Evansville Division, Chief Judge Richard L. Young.
Civil. Remands with instructions for the District Court to make a determination as to whether Dowell told his attorney to file an appeal to contest whether he was a career offender. Dowell claimed his plea agreement specifically reserved his right to appeal the career offender designation, but his attorney did not file the appeal.
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Opinions Sept. 14, 2012

September 14, 2012
7th Circuit Court of Appeals
Alan Kress and Randy Carr v. CCA of Tennessee LLC, doing business as Corrections Corporation of America, et al.
11-2950
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Larry J. McKinney.
Civil. Affirms order denying class certification regarding the reduction of daily pill calls for inmates and granting summary judgment in favor of Corrections Corporation of America, et al., owner and operator of the Marion County Correctional Center. There was lack of evidence of any ongoing constitutional violations.
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Opinions Sept. 13, 2012

September 13, 2012
Indiana Supreme Court
An-Hung Yao and Yu-Ting Lin v. State of Indiana
35S02-1112-CR-704
Criminal. Cannot conclude that as a matter of law the defendants engaged in no conduct nor effected any result in Indiana that was an element of either the theft or the counterfeiting charge. The trial court did not abuse its discretion in denying sub silentio Lin’s motion to dismiss for lack of jurisdiction. The defendants’ airsoft gun is a written instrument within the meaning of the statute and therefore reverses the trial court’s dismissal of the counterfeiting charges. The trial court did not abuse its discretion in denying the defendants’ motions to dismiss the theft and corrupt business influence charges.
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Opinions Sept. 12, 2012

September 12, 2012
Indiana Court of Appeals
Dezmon Gaines v. State of Indiana
34A05-1201-CR-21
Criminal. Affirms denial of motion to suppress evidence. Indiana Code 9-19-19-4 is not void for vagueness and the officer’s search of Gaines was reasonable. Judge Crone concurs in result.
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Opinions Sept. 11, 2012

September 11, 2012
Indiana Court of Appeals
Phillip A. Collins v. HSBC Bank USA, National Association, as Trustee for Home Equity Loan Trust Series Act 2004-HE3
45A03-1111-MF-600
Mortgage foreclosure. Affirms summary judgment in favor of HSBC, holding that Collins is estopped from asserting claims previously lost and litigated.
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Opinions Sept. 7, 2012

September 7, 2012
7th Circuit Court of Appeals
Robert S. Filus v. Michael J. Astrue, Commissioner of Social Security
No. 12-1164
U.S. District Court, Northern District of Indiana, Fort Wayne Division. Magistrate Judge Roger B. Cosbey.
Civil/Social Security. Affirms denial of disability benefits, holding that substantial evidence supports the decision of the administrative law judge. 
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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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