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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. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  2. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  3. Indiana up holds this behavior. the state police know they got it made.

  4. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

  5. Agreed on 4th Amendment call - that was just bad policing that resulted in dismissal for repeat offender. What kind of parent names their boy "Kriston"?

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