Opinions

Opinions May 7, 2013

May 7, 2013
7th Circuit Court of Appeals
Jose J. Loera, Jr. v. United States of America
11-3223
Criminal. Affirms drug conviction and 240-month prison sentence, holding that Loera failed to prove his attorney provided ineffective legal counsel. Loera claimed that a prior grant of a motion to suppress his statements to police before consulting an attorney should have been binding on future proceedings. The court held it was doubtful that a subsequent refusal to suppress on different grounds, if it was error, was harmful.

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Opinions May 6, 2013

May 6, 2013
Indiana Court of Appeals
Love Jeet Kaur v. State of Indiana
29A05-1208-CR-424
Criminal. Affirms trial court denial of motion to dismiss charges of Class D felony dealing in a synthetic cannabinoid, Class D felony possession of a synthetic cannabinoid, and Class D felony maintaining a common nuisance. The panel ruled that Indiana’s synthetic drug law, I.C. § 35-31.5-2-321, was not vague as applied to Kaur and did not represent an unconstitutional delegation of legislative power to the Board of Pharmacy.
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Opinions May 3, 2013

May 3, 2013
Indiana Court of Appeals
Kevin Brodley v. State of Indiana (NFP)
49A02-1209-CR-725
Criminal. Affirms conviction of Class C felony burglary, Class D felony theft, Class A misdemeanor criminal mischief and adjudication as a habitual offender.
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Opinions May 2, 2013

May 2, 2013
Indiana Supreme Court
Gerald P. VanPatten v. State of Indiana
02S03-1205-CR-251
Criminal. Vacates two convictions of child molesting, one as a Class A felony and one as a Class C felony, because a nurse’s testimony about statements made by the alleged six-year-old victim, who later recanted, should not have been admitted as substantive evidence. Affirms trial court was within its discretion to deny VanPatten’s attorneys’ motions to withdraw. Justice Massa concurs in result with a separate opinion in which Justice Rush joins. Remands for a new trial on the two counts.
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Opinions April 30, 2013

April 30, 2013
Indiana Court of Appeals
Countrywide Home Loans, Inc. v. Robert Holland

45A04-1202-PL-53
Civil plenary. Reverses summary judgment on Holland’s quiet title action and remands with instructions to enter summary judgment in Countrywide’s favor. Affirms dismissal of Holland’s common-law lien claim and remands with instructions to vacate the award of nominal damages. Holland is not entitled to summary judgment on the merits of his quiet title claim.
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Opinions April 29, 2013

April 29, 2013
Indiana Court of Appeals
Swami, Inc., et al. v. Franklin Drywall II, LLC (NFP)
10A01-1208-MF-398
Mortgage foreclosure. Affirms determination that Franklin Drywall was entitled to recover $48,681.60 and award of attorney fees to the company in dispute over delays in completing drywall work. Reverses finding that a certain mortgage debt should not be considered to be a lien against the property in question. Remands for further proceedings.
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Opinions April 26, 2013

April 26, 2013
7th Circuit Court of Appeals
Big Ridge Inc., Jerad Bickett, et al. v. Federal Mine Safety and Health Review Commission, et al.
12-2316, 12-2460
Review of order. Denies petitions for review filed by mine operators and a group of mine employees regarding regulations that allow for Federal Mine Safety and Health Administration inspectors to review employee medical and personnel records during inspections to verify the mines have not been under-reporting miners’ injuries and illnesses.
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Opinions April 25, 2012

April 25, 2013
7th Circuit Court of Appeals
Emilio Martino v. Western & Southern Financial Group
12-1855
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springmann.
Civil. Affirms summary judgment for Western & Southern Financial Group on Martino’s lawsuit for religious discrimination and defamation. Martino’s evidence neither calls into doubt W&S’s explanation for his discharge – that he did not provide documents verifying his eligibility for employment in the U.S. – nor establishes a prima facie case of defamation.
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Opinions April 24, 2013

April 24, 2013
Indiana Court of Appeals
Joshua McCaine Pillow v. State of Indiana
71A04-1206-CR-325
Criminal. Affirms conviction of Class C felony operating a motor vehicle after driving privileges had been forfeited for life. There was sufficient evidence Pillow operated a motor vehicle and his driving privileges had been forfeited for life, which is all the state is obliged to prove under I.C. 9-30-10-17.
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Opinions April 23, 2013

April 23, 2013
Indiana Court of Appeals
Kenyatta Erkins and Ugbe Ojile v. State of Indiana
58A01-1205-CR-215
Criminal. Affirms convictions of Class A felony conspiracy to commit robbery resulting in serious bodily injury. Rejected all the issues Erkins and Ojile raised on appeal. Found the trial court did not err in permitting the amendment to the charging information; the evidence was sufficient to show the pair intended and agreed to commit robbery that would result in serious bodily injury; the trial court did not abuse its discretion in admitting evidence gathered after Erkins and Ojile left the casino; any error in admitted interpretations of the pair’s phone conversation was harmless; and the prosecutor did not commit misconduct nor cause a fundamental error.
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Opinions April 22, 2013

April 22, 2013
Indiana Court of Appeals
Douglas A. Guilmette v. State of Indiana
71A04-1205-CR-250
Criminal. Affirms conviction for murder. The court found although the trial court did err by admitting DNA from a bloody shoe into evidence, the error was harmless because other substantial and independent evidence supported the conviction. It also ruled the trial court did not abuse its discretion by instructing the jury on accomplice liability, and it ruled the evidence was ample to sustain the murder conviction. 
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Opinions April 19, 2013

April 19, 2013
Indiana Court of Appeals
Razien McCullough v. State of Indiana
49A02-1210-CR-789
Criminal. Affirms two murder convictions and a 115-year aggregate sentence, holding that the state presented sufficient evidence to disprove McCullough’s claim of self-defense and that the sentence was not inappropriate given the nature of the crimes and McCullough’s character.
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Opinions April 18, 2013

April 18, 2013
7th Circuit Court of Appeals
United States of America v. Johnnie C. Collins
12-3317
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springmann.
Criminal. Affirms denial of motion to suppress evidence in drug case in which Collins entered a conditional plea of guilty to possession of crack with intent to distribute and possession of powder cocaine with intent to distribute.

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Opinions April 17, 2013

April 17, 2013
Indiana Court of Appeals
Earlie B. Berry, Jr. v. State of Indiana (NFP)
02A03-1210-CR-455
Criminal. Affirms conviction of Class C felony burglary.
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Opinions April 16, 2013

April 16, 2013
7th Circuit Court of Appeals
Renee S. Majors v. General Electric Co.
12-2893
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Larry J. McKinney.
Civil. Affirms grant of summary judgment on Majors’ claims that GE violated the Americans with Disabilities Act when it denied her positions and that GE retaliated against her for filing EEOC charges of discrimination.
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Opinions April 15, 2013

April 15, 2013
Indiana Court of Appeals
Jose Guzman v. State of Indiana
54A01-1209-CR-409
Criminal. Affirms eight-year sentence following guilty plea to Class C felony reckless homicide and the order Guzman pay restitution to the accident victims. The trial court acted within its discretion in ordering the restitution and in sentencing Guzman, and his sentence is not inappropriate.
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Opinions April 12, 2013

April 12, 2013
Indiana Court of Appeals
David R. Mertz v. City of Greenwood, Indiana
41A01-1206-MI-286
Miscellaneous. Affirms order denying Mertz’s petition to reverse the disciplinary action taken against him by the Greenwood Police Merit Commission following an evidentiary hearing. Mertz has not met his burden to show that the trial court determination, upholding the commission’s interpretation of the relevant ordinances, is arbitrary and capricious, an abuse of discretion, or otherwise contrary to law.
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Opinions April 11, 2013

April 11, 2013
Indiana Supreme Court
Utility Center, Inc. d/b/a Aqua Indiana, Inc. v. City of Fort Wayne, Indiana
90S04-1208-PL-450
Civil plenary. Reverses the judgment of the trial court granting the city’s motion to strike a jury request by Aqua Indiana and remands this cause for further proceedings. Concludes that “rehear the matter of the assessment de novo” within the meaning of Indiana Code 32-24-2-11(a) contemplates a new hearing with trial and judgment as in all other civil actions. And where a party so requests, a trial by jury.
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Opinions April 10, 2013

April 10, 2013
7th Circuit Court of Appeals
Kevin B. McCarthy, et al., and Langsenkamp Family Apostolate, et al. v. Patricia Ann Fuller, et al.
12-2157, 12-2257, 12-2262
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. The District Court’s denial of McCarthy’s motion that the court take judicial notice of the Holy See’s rulings on Fuller’s status in the Roman Catholic Church is reversed, with a reminder to the district court that federal courts are not empowered to decide (or to allow juries to decide) religious questions. The other two appeals are dismissed.
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Opinions April 9, 2013

April 9, 2013
7th Circuit Court of Appeals
Nancie Cloe v. City of Indianapolis
12-1713
Civil/discrimination. Affirms District Court grant of summary judgment to Indianapolis on Nancy Cloe’s argument that the city failed to reasonably accommodate her injury, but reversed and remanded the District Court’s summary judgment against Cloe’s claims that she was discriminated against and faced retaliation for requesting a work accommodation be made because of her disability.

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Opinions April 8, 2013

April 8, 2013
Halden Martin v. State of Indiana
73A01-1207-CR-300
Criminal. Reverses and remands a conviction of Class A misdemeanor operating a vehicle while intoxicated. A toxicology department witness’s repeated failure to appear for scheduled depositions was a delay attributable to the state, the court ruled, finding that the delay caused a trial 476 days after Martin’s arrest, in violation of Criminal Rule 4(C).
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Opinions April 5, 2013

April 5, 2013
Indiana Supreme Court
Daniel Ray Wilkes v. State of Indiana
10S00-1004-PD-185
Post Conviction. Affirms denial of post-conviction relief from a sentence of life without parole for conviction of three murders, concluding that Wilkes did not meet his burden of proof on arguments that he was deprived of his rights to an impartial jury and effective assistance of counsel.
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Opinions April 4, 2013

April 4, 2013
7th Circuit Court of Appeals
Betty M. Jordan and Theodore R. Jordan v. Kelly D. Binns and U.S. Xpress Inc.
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Affirms jury verdict in favor of Binns and his employer U.S. Xpress on the Jordans’ lawsuit filed after Betty Jordan lost both of her legs while riding a motorcycle and being hit by the tractor-trailer driven by Binns. Rejects claims on appeal that improperly admitted hearsay evidence warrants a new trial. The court found that some hearsay evidence regarding Betty Jordan’s statement that she was at fault in a motorcycle accident was improperly admitted, but it was cumulative, and other evidence presented at trial strongly favored the defendants’ position.
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Opinions April 3, 2013

April 3, 2013
Indiana Court of Appeals
Albert Lee Baker v. State of Indiana (NFP)
53A01-1210-CR-490
Criminal. Affirms sentence following guilty plea to Class B felony dealing in a narcotic drug.
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Opinions April 2, 2013

April 2, 2013
7th Circuit Court of Appeals
Koransky, Bouwer & Poracky P.C. v. The Bar Plan Mutual Insurance Co.
12-1579
U.S. District Court, Northern District of Indiana, Judge William C. Lee.
Civil. Affirms summary judgment for The Bar Plan and the denial of Koransky Bower & Poracky’s motion for summary judgment on whether The Bar Plan had to represent the law firm or indemnify it on a client’s malpractice claim. The law firm’s knowledge of the email exchange with the seller’s counsel in February and the Alabama declaratory judgment action filed March 14 constituted knowledge of “any circumstance, act or omission that might reasonably be expected to be the basis of” a malpractice claim by the firm’s client. The firm did not notify The Bar Plan in a timely manner.
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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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