Opinions April 17, 2012

April 17, 2012
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7th Circuit Court of Appeals
United States of America v. Kimani Lanier Fleming
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Criminal. Affirms Fleming’s revised sentence of 480 months imprisonment for convictions of several serious drug and firearm charges. There was no clear error in the District Court’s decision to include routine drug purchases as relevant conduct when it computed his revised sentencing guideline range. Denies Fleming’s implicit request for an expanded certificate of appealability.  

Indiana Tax Court
Utilimaster Corporation v. Indiana Dept. of State Revenue
Tax. Rules Utilimaster’s attorneys are not necessary witnesses pursuant to Professional Conduct Rule 3.7, as information they could testify about can be obtained from Utilimaster employees. The Department of State Revenue has invoked Professional Conduct Rule 3.7 in an attempt to conceal its failure to timely pursue discovery as well as to remove Utilimaster’s attorneys from the case, calling their professionalism into question. The court will not countenance the rule’s abuse as a procedural weapon by invading Utilimaster’s right to counsel of its choice.

Indiana Court of Appeals
Charles Westmoreland v. State of Indiana
Criminal. Reverses denial of motion to suppress marijuana, finding the trial court erred in denying the motion because the officers did not reasonably believe Westmoreland was armed and dangerous. Remands with instructions for the trial court to dismiss the possession of marijuana charge.

Barbara (Rosario) Bessolo v. William I. Rosario
Domestic relation. Affirms finding that Bessolo failed to dismiss the protective order against Rosario as required by the dissolution decree, that she was in contempt, and the award of compensatory damages and attorney fees to Rosario. Reverses the 10-day suspended sentence imposed on Bessolo for future violations of any of the court’s orders. Because Bessolo was aware that she was required to dismiss the protective order but failed to do so and later relied upon it in her dealing with police, the trial court did not err in finding her in contempt.

Trust No. 6011, Lake County Trust Company, Trustee, Simon Beemsterboer, and Victoria J. Beemsterboer v. Heil's Haven Condominiums Homeowners Assn.
Civil plenary. Reverses the portion of paragraph 1 of the judgment that permanently enjoins the Beemsterboers from obstructing the homeowners association’s use of the walkway easement and placing a fence that blocks access to that area, paragraph 2 of the judgment ordering the couple to remove the staircase and repair the sidewalk, and paragraph 3 of the judgment prohibiting the couple from interfering with the reconstructed sidewalk. Affirms paragraph 4 in which the couple was permanently enjoined “from in any fashion interfering with the (association’s) deck.”

Gerald Mayberry v. State of Indiana (NFP)
Criminal. Affirms conviction of Class A misdemeanor interference with reporting a crime and Class B misdemeanor battery.

Jamie E. Green v. State of Indiana (NFP)
Criminal. Affirms conviction of Class B misdemeanor disorderly conduct.

Robbie S. McCain-Ficklin v. State of Indiana (NFP)

Criminal. Affirms conviction of Class D felony battery on McCain-Ficklin’s minor stepson.

Charles Frederick Miller v. State of Indiana (NFP)

Criminal. Affirms conviction of Class D felony auto theft.

John Brooke v. State of Indiana (NFP)
Criminal. Affirms conviction of Class B felony conspiracy to commit armed robbery and 22-year sentence.

The Law Office of Deborah Agard v. Unemployment Insurance Appeals of the Indiana Department of Workforce Development (NFP)
Agency appeal. Affirms finding that the law office owed unemployment insurance tax contributions for an individual the office paid to perform cleaning services at its office and at Kids’ Voice, a nonprofit center where Deborah Agard, the sole proprietor of the law office, serves on the board of directors.

Sterling B. Nelson v. Michelle L. Nelson (NFP)
Domestic relation. Affirms post-dissolution order, in which the trial court imputed $415 in gross weekly income to father during his 12-week period of unemployment and refused to deviate from the Child Support Guidelines.

Manuel Martinez v. State of Indiana (NFP)
Criminal. Affirms restitution order following guilty plea to battery.

Michael M. and Lana S. Ashley, et al. v. Jeffrey and Holly Spaw, et al. (NFP)
Miscellaneous. Affirms trial court’s affirmation of the Indiana Natural Resources Commission’s decision to rule in favor of several back-lot owners in the Long Lake Park subdivision regarding riparian rights.

Indiana Supreme Court had posted no opinions at IL deadline.


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  1. Lori, you must really love wedding cake stories like this one ... happy enuf ending for you?

  2. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  3. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  4. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  5. I hope you dont mind but to answer my question. What amendment does this case pretain to?