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. He TIL team,please zap this comment too since it was merely marking a scammer and not reflecting on the story. Thanks, happy Monday, keep up the fine work.

  2. You just need my social security number sent to your Gmail account to process then loan, right? Beware scammers indeed.

  3. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: Here are the two research papers: 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

  4. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  5. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.