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Opinions April 1, 2014

April 1, 2014
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Indiana Supreme Court
Bryant E. Wilson v. State of Indiana
27S02-1309-CR-584
Criminal. Reverses trial court denial of motion to correct erroneous sentence and remands for resentencing. Holds that the Indiana Code does not authorize a sentence to be imposed in part as consecutive and in part as concurrent, and orders Wilson resentenced on a rape conviction for an aggregate term not to exceed 50 years in prison.

Indiana Tax Court
The following opinion was issued after IL deadline Monday.

Tannins of Indianapolis, LLC v. Indiana Department of State Revenue
49T10-1303-SC-45
Tax. Affirms final determination that Tannins’ purchases of tasting cards for the Indianapolis wine bar it operates, Tastings, are not exempt from use tax under Indiana Code § 6-2.5-5-8(b), the purchase for resale exemption.

Indiana Court of Appeals
Michael E. McClellan v. State of Indiana
39A04-1305-CR-248
Criminal. Remands to the trial court to hold a new hearing on McClellan’s motion to dismiss. Rules the state should have the opportunity to rebut the presumption of prejudice that its delay in filing charges impaired McClellan’s defense.   

Jeffery Spinks v. State of Indiana (NFP)
82A01-1307-CR-299
Criminal. Reverses conviction for Class B felony sexual misconduct with a minor as an erroneous conviction for which Spinks was not charged but otherwise affirms convictions of three counts of Class A felony child molesting and one count of Class C felony child molesting. The aggregate sentence of 45 years in prison is affirmed.

Scriptfleet, Inc., a Florida Corporation f/k/a Network Express, Inc. v. In Touch Pharmaceuticals, Inc., an Indiana Corporation as successor in interest to MHP Pharmacy, LLC (NFP)
64A05-1308-PL-393
Civil plenary. Reverses grant of summary judgment in favor of In Touch Pharmaceuticals and remands for proceedings to determine what, if any, contractual obligation InTouch owed to Scriptfleet.

Anthony Taylor v. Mark R. Sevier, Superintendent of Miami Correctional Facility (NFP)
52A04-1306-MI-309
Miscellaneous. Reverses grant of summary disposition in favor of Sevier because the Miami Circuit Court lacked jurisdiction to consider Taylor’s post-conviction relief petition. Remands with instructions to transfer the matter to Miami Superior Court.
 
The Indiana Tax Court issued no opinions prior to IL deadline Tuesday. The 7th Circuit Court of Appeals issued no Indiana opinions prior to IL deadline.
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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