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Opinions April 17, 2014

April 17, 2014
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The following Indiana Supreme Court opinion was posted after IL deadline Wednesday:
Ronnie Jamel Rice v. State of Indiana
45S00-1206-CR-343
Criminal. Affirms trial court’s revised sentencing order of life in prison without parole. Rice argued the trial court erred in considering non-statutory aggravating circumstances to support the order and his sentence should be revised. The revised order comports with Supreme Court precedent and does not represent an abuse of the trial court’s discretion.

Thursday’s opinions
Indiana Tax Court

Larry G. Jones and Sharon F. Jones v. Jefferson County Assessor
39T10-1308-TA-68
Tax. Denies the assessor’s motion to dismiss. Instructs the Joneses to file no later than April 28 a request for the Indiana Board of Tax Review to prepare a certified copy of its administrative record in the case. In accordance with Indiana Tax Court Rule 3(E), the Joneses shall then file the record with the clerk of the Tax Court within 30 days after they have received notification from the board that the record has been prepared. Once the court receives the board’s record, it will schedule another telephonic case management conference to discuss the need for additional briefing and oral argument.

Indiana Court of Appeals
Jason Taylor v. State of Indiana
45A03-1310-CR-406
Criminal. Reverses denial of petition for expungement. Determines that the word “shall” in Section 35-38-9-2(d) is mandatory language requiring expungement. And such an interpretation does not render Section 35-38-9-9(d) meaningless because that section applies to other parts of the statute where the trial court does have discretion to deny a petition for expungement.

Geoffrey A. Gilbert v. Melinda J. Gilbert
57A03-1308-DR-312
Domestic relation. Affirms order approving mother’s relocation request. The trial court did not abuse its discretion in granting mother’s request to relocate because she had a good faith and legitimate purpose for relocating, and the move was not contrary to the children’s best interests. Additionally, mother is not entitled to appellate attorney fees because father’s appeal is not frivolous or in bad faith. Judge Robb dissents.

Charrise Belton v. State of Indiana
49A04-1310-CR-487
Criminal. Reveres conviction of Class A misdemeanor driving while suspended. The state presented insufficient evidence to negate Belton’s necessity defense.

Teresa Fry n/k/a Teresa Dolan v. Michael Fry
64A03-1307-DR-262
Domestic relation. Affirms grant of Michael Fry’s emergency petition for modification of custody, alleging that Teresa Dolan suffers from a degenerative illness that renders her unable to adequately care for the children. Finds the trial court had jurisdiction to determine the custody of K.D. and it committed no legal error.

Geico General Insurance Company v. Laura B. Coyne, Cheryl A. O'Mailia, and James O'Mailia
20A04-1307-CT-325
Civil tort. Reverses award of attorney fees to the O’Mailias, which was based upon GEICO litigating in bad faith. GEICO’s counsel’s statements show the decisions not to disclose certain information was strategic in nature and believed to be within the bounds of the law. Denies the couple’s request for appellate attorney fees. Judge Barnes concurs in a separate opinion.

Joshua Cornett v. State of Indiana (NFP)
49A02-1308-CR-730
Criminal. Affirms conviction of Class A misdemeanor resisting law enforcement.

In Re: the Marriage of: Gordon Somerville v. Effie K. Somerville (NFP)
49A02-1308-DR-735
Domestic relation. Vacates trial court’s judgment in part because husband established a prima facie error with regard to the trial court’s valuations of marital property and remands with instructions.

K.P. v. State of Indiana (NFP)
87A04-1307-JV-384
Juvenile. Affirms adjudication that K.P. committed two acts that would be child molesting if committed by an adult.

Michelle D. Gauvin v. State of Indiana (NFP)
79A02-1306-PC-542
Post conviction. Affirms denial of petition for post-conviction relief.

Thomas Curtis Edmond v. State of Indiana (NFP)
45A03-1303-PC-90
Post conviction. Affirms denial of petition for post-conviction relief.

Gwendolyn F. Jones v. State of Indiana (NFP)
48A02-1308-CR-678
Criminal. Affirms convictions of Class B felony robbery and Class C felony battery and remands with instructions to enter judgment upon Jones’ felony intimidation conviction as a misdemeanor and resentence her.

Patrick R. Taylor v. Jason Evans, Curtis Evans, and Chrystal Evans (NFP)
49A02-1303-CT-195
Civil tort. Affirms dismissal of Taylor’s personal injury action for failure to comply with a discovery order.

Daniel Torres v. State of Indiana (NFP)
48A05-1305-CR-267
Criminal. Affirms conviction of Class C felony sexual misconduct with a minor.

Barbara Wiggles v. Sandlian Management Corporation d/b/a U-Stor Self-Storage (NFP)
49A02-1306-CT-511
Civil tort. Affirms decision to grant U-Stor’s motion to strike Wiggles’ affidavit and its decision to grant U-Stor’s motion for judgment on the pleadings.

Ben L. Macon v. State of Indiana (NFP)
02A03-1309-CR-364
Criminal. Affirms denial of Macon’s motion to sever and hold two separate trials.

The Indiana Supreme Court posted no decisions Thursday prior to IL deadline. The 7th Circuit Court of Appeals posted no Indiana decisions prior to IL deadline.

 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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