Opinions April 19, 2017

April 19, 2017
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Indiana Court of Appeals
Matthew L. Johnson v. State of Indiana
Criminal. Reverses the Hendricks Superior Court order overruling Matthew L. Johnson’s objections to the habitual offender enhancement charges. Finds that “convictions from which the offender was released more than 10 years before the current offense do not count for habitual offender purposes under Section 8(d).” Remands for review.

Wendy Burnett v. State of Indiana
Criminal. Reverses Wendy Burnett’s conviction of Class A misdemeanor operating a vehicle while intoxicated endangering a person. Vacates the judgment of the trial court as to the fees owed by Burnett. Remands for further proceedings and with instructions to vacate Burnett’s Class A misdemeanor conviction and to enter judgment for Class C misdemeanor operation a vehicle while intoxicated and for further proceedings on the issue of fees. Finds there is insufficient evidence to support Burnett’s Class A misdemeanor conviction. Also finds because the Marion Superior Court did not impose any probation fees or costs on Burnett, it was erroneous to accept the imposition of these fees without a petition from the probation department and a showing that Burnett’s financial situation has changed since the sentencing hearing.  

Constantinos P. Angelopoulos v. Theodore P. Angelopoulos, Neptunia Inc., Transmar Corp., Didiac Establishment, Beta Steel Corp., and Top Gun Investment Corp. II
Civil plenary. Affirms the Porter Superior Court’s order denying Constantinos P. Angelopoulos’ motion to modify a protective order. Finds the trial court did not abuse its discretion when it found Theodore P. Angelopoulos had met his burden of establishing, by clear and convincing evidence, that the portions of his deposition previously designated as confidential, but submitted in court, should be part of the public record. Also finds the trial court did not abuse its discretion when it denied Constantino Angelopoulos’ motion to modify the protective order to permit him to use, in Greek litigation, the discovery materials designate as confidential discovery in the Indiana action.

Citizens Action Coalition of Indiana, Inc. v. Northern Indiana Public Service Company; NIPSCO Industrial Group; and United States Steel Corporation
Agency. Affirms the Indiana Utility Regulatory Commission’s approval of a settlement agreement between Northern Indiana Public Service Company, NIPSCO Industrial Group and United States Steel Corp. Finds there is substantial evidence to support the IURC’s order and that the IURC did not err.

Philip R. Davis v. State of Indiana
Infraction. Affirms the judgment against Philip Davis for the civil infraction of speeding. Finds the Allen Superior Court did not commit reversible error.

Aaron Smith v. State of Indiana (mem. dec.)
Criminal. Affirms Aaron Smith’s conviction of felony murder. Finds the warrant executed during Smith’s hospitalization was supported by probable cause. Also finds the admission of two text messages from an alleged co-conspirator to Smith was harmless error.

Jeffrey Lambert v. Jill Fox (mem. dec.)
Domestic relation. Affirms a ruling by the Hendricks Superior Court which ordered Jeffrey Lambert and his ex-wife, Jill Fox, to split two-thirds of their children’s college expenses. Finds Lambert has waived his claims relating to the issues presented on appeal by failing to provide the Indiana Court of Appeals with a cogent argument or citations to authority sufficient to review his claims.

In the Matter of A.A. (Minor Child) Child in Need of Services, C.A. v. Indiana Department of Child Services (mem. dec.)
Juvenile CHINS. Reverses the adjudication of A.A. as a child in need of services. Finds C.A.’s due process rights were violated when the Miami Circuit Court allowed her counsel to withdraw, without notice, and conducted a fact-finding hearing in her absence.

Tony David Mitchell v. State of Indiana (mem. dec.)
Criminal. Affirms Tony Mitchell’s convictions of Class B felony attempted aggravated battery and Class B felony aggravated battery and his sentence to an aggregate of 10 years. Finds there was sufficient evidence to support Mitchell’s convictions and that his sentence is not inappropriate.

Alicia Patrice Cleveland v. State of Indiana (mem. dec.)
Criminal. Affirms Alicia Cleveland’s convictions of criminal mischief as a Class B misdemeanor and pointing a firearm as a Class A misdemeanor. Finds the testimony introduced against Cleveland at trial was not incredibly dubious.

Bryan Tate v. State of Indiana (mem. dec.)
Criminal. Affirms Bryan Tate’s sentence to an aggregate of 14 years for Level 5 felony robbery. Finds the Hendricks Superior Court did not err in sentencing him.

Michael Francis and Carmen Jay Francis v. EMC Mortgage, LLC, successor by merger to EMC Mortgage Corporation (mem. dec.)
Mortgage foreclosure. Affirms the Marion Superior Court’s grant of summary judgment to EMC Mortgage LLC, order of the sale of Michael and Carmen Jay Francis’ property and denial of the Francises’ counterclaims. Finds the Francises’ appellate claims lack merit.

Debra L. Myer v. Michael A. Myer (mem. dec.)
Domestic relation. Affirms the St. Joseph Circuit Court’s division of marital property in the dissolution of Debra L. Myer’s marriage to Michael A. Myer. Finds the trial court did not abuse its discretion.

Darion Cook v. State of Indiana (mem. dec.)
Criminal. Affirms the revocation of Darian Cook’s probation and his placement in community corrections. Finds the Marion Superior Court did not abuse its discretion in admitting evidence.

Rohrman Automotive Group v. Paul Pratico and Joy DenHouter (mem. dec.)
Small claims. Affirms the judgment in favor of Paul Pratico and Joy DenHouter in the amount of $6,000. Finds the evidence before the small claims court supports its award of treble damages and attorney fees under the Crime Victims Relief Act. Also finds Pratico and DenHouter are not entitled to an additional amount under the CVRA, Indiana Appellate Rules 66(E) or 67 or Indiana Code 34-52-1-1 for appellate attorney fees.

Carlos D. Staten v. State of Indiana (mem. dec.)
Criminal. Affirms Carlos D. Staten’s conviction of Level 5 felony battery and the finding that he is a habitual offender. Finds the state presented sufficient evidence to sustain his conviction and to rebut his claim of self-defense.

Madison County Board of Commissioners and Madison County Highway Department v. American Federation of State County and Municipal Employees Local 3609 (mem. dec.)
Civil plenary. Affirms the Henry Circuit Court’s award of attorney fees. Finds the award of trial attorney fees is authorized by the statute under which American Federation of State County and Municipal Employees Local 3609 proceeded. Awards the union attorney fees for defending the present appeal and remands to the trial court for a calculation of appellate attorney fees.

David Garden v. State of Indiana (mem. dec.)
Criminal. Affirms six of David Garden’s convictions for Class C felony forgery. Finds the evidence is sufficient to sustain the challenged convictions.


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  1. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

  2. The Department of Education still has over $100 million of ITT Education Services money in the form of $100+ million Letters of Credit. That money was supposed to be used by The DOE to help students. The DOE did nothing to help students. The DOE essentially stole the money from ITT Tech and still has the money. The trustee should be going after the DOE to get the money back for people who are owed that money, including shareholders.

  3. Do you know who the sponsor of the last-minute amendment was?

  4. Law firms of over 50 don't deliver good value, thats what this survey really tells you. Anybody that has seen what they bill for compared to what they deliver knows that already, however.

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