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Opinions April 17, 2012

April 17, 2012
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7th Circuit Court of Appeals
United States of America v. Kimani Lanier Fleming
11-1404
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
71T10-1008-TA-43
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
49A04-1107-CR-356
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
29A02-1108-DR-789
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.
43A05-1108-PL-433
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)
49A02-1109-CR-879
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)
49A05-1106-CR-316
Criminal. Affirms conviction of Class B misdemeanor disorderly conduct.

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

27A02-1108-CR-767
Criminal. Affirms conviction of Class D felony battery on McCain-Ficklin’s minor stepson.

Charles Frederick Miller v. State of Indiana (NFP)

41A01-1106-CR-250
Criminal. Affirms conviction of Class D felony auto theft.

John Brooke v. State of Indiana (NFP)
75A05-1106-CR-297
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)
93A02-1107-EX-672
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)
29A05-1110-DR-533
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)
57A03-1109-CR-554
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)
02A03-1108-MI-340
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. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  2. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

  3. So this firebrand GOP Gov was set free by a "unanimous Supreme Court" , a court which is divided, even bitterly, on every culture war issue. WHAT A RESOUNDING SLAP in the Virginia Court's face! How bad must it have been. And all the journalists, lap dogs of the status quo they are, can do is howl that others cannot be railroaded like McDonald now??? Cannot reflect upon the ruining of Winston and Julia's life and love? (Oh I forget, the fiction at this Ministry of Truth is that courts can never err, and when they do, and do greatly, as here, why then it must be ignored, since it does not compute.)

  4. My daughter is a addict and my grandson was taken by DCS and while in hospital for overdose my daughter was told to sign papers from DCS giving up her parental rights of my grandson to the biological father's mom and step-dad. These people are not the best to care for him and I was never called or even given the chance to take him, but my daughter had given me guardianship but we never went to court to finalize the papers. Please I have lost my daughter and I dont want to lose my grandson as well. I hope and look forward to speaking with you God Bless and Thank You for all of your help

  5. To Bob- Goooooood, I'm glad you feel that way! He's alive and happy and thriving and out and I'm his woman and we live in West Palm Beach Florida, where his parents have a sprawling estate on an exclusive golf course......scum bag

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