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Opinions April 8, 2013

April 8, 2013
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The following Indiana Tax Court opinion was issued Friday after IL deadline.
Washington Township Assessor, Allen County Assessor, and Allen County Property Tax Assessment Board of Appeals v. Verizon Data Services, Inc. (NFP)
49T10-1102-TA-13
Tax. Denies Verizon’s motion to dismiss the assessors’ appeal of an Indiana Board of Tax Review final determination of summary judgment in favor of Verizon’s 2005 personal property tax assessment appeal.
 

Monday's opinions

Indiana Court of Appeals
Lorenzo Reid and Larry Blake, a/k/a Larry Reid v. State of Indiana
89A01-1208-PC-377
Post-conviction relief. Affirms denial of post-conviction relief from a 55-year sentence for Reid and a 44-year sentence for Blake, who were convicted in the 1990 murder and attempted robbery of a Richmond liquor store owner. The court ruled that the two were not denied due process when they were denied during post-conviction relief potentially exculpatory DNA evidence that was presented at trial and later lost or destroyed, and that they were not denied due process due to lack of effective assistance of counsel or by the state’s failure to disclose that a witness had a possible prior robbery conviction.  

Halden Martin v. State of Indiana
73A01-1207-CR-300
Criminal. Reverses and remands a conviction of Class A misdemeanor operating a vehicle while intoxicated. A toxicology department witness’s repeated failure to appear for scheduled depositions was a delay attributable to the state, the court ruled, finding that the delay caused a trial 476 days after Martin’s arrest, in violation of Criminal Rule 4(C).

Detona Sargent and One 1996 Buick, VIN 1G4AG55M3T6449095 v. State of Indiana, the Consolidated City of Indianapolis/Marion County, and the Indianapolis Metropolitan Police Department
49A02-1209-MI-708
Miscellaneous.  Affirms the trial court’s grant of summary judgment for the defendants, holding that a sufficient nexus was demonstrated between the underlying crime and the seized vehicle, and that neither Indiana’s bankruptcy exemptions nor Article I, Section 22 of the Indiana Constitution required the trial court to exempt Sargent’s 1996 Buick from forfeiture.

Darryl Shepherd v. State of Indiana
49A05-1111-CR-600
Criminal. Reaffirms on rehearing a prior ruling that affirmed a conviction for unlawful possession of a firearm by a serious violent felon, holding that Shepherd raises a defense for the first time on appeal. The argument was therefore waived, and even if it hadn’t been, the SVF conviction was based on a 1993 conviction of dealing cocaine, and a habitual offender enhancement was applied to different 1991 and 2008 convictions.

Adolfo Lopez v. State of Indiana
15A01-1212-CR-550
Criminal. Reverses and remands as excessive the trial court setting bond at $3 million surety plus $250,000 cash for restaurateur Adolfo Lopez on Class C felony charges of corrupt business influence, conspiracy to commit corrupt business influence, and four counts of forgery, and four counts of Class D felony perjury. Orders the trial court to set a reasonable bond based on relevant statutory factors.  

Kevin Perry v. Unemployment Insurance Review Board of the Indiana Dept. of Workforce Development and Indiana Dept. of Workforce Development UI Claims Adjudication Center
93A02-1208-EX-649
Civil. Affirms the decision by the Review Board of the Indiana Department of Workforce Development removing Perry from the Trade Adjustment Assistance training program. The Court of Appeals found Perry deviated from his approved education plan when he took online courses without prior approval.

Gary Hammerstone, Susan Hammerstone, Palmor Products, Inc., Northhampton Farm Bureau Cooperative Association, and Canns-Bilco Distributors, Inc. v. Indiana Insurance Company
06A04-1211-PL-595
Civil plenary. Reverses trial court’s order granting summary judgment to Indiana Insurance Co., and remands for further proceedings. The court found that language in the umbrella policy defining “products-completed operations hazard” as “bodily injury” and “property damage” and contrary language in the endorsement stating the insurance does not apply do “bodily injury” or “property damage” rendered the umbrella policy as “inherently ambiguous.”

Term. of the Parent-Child Rel. of S.B.: U.D. and L.B. v. Indiana Dept. of Child Services (NFP)
15A05-1209-JT-457
Juvenile. Affirms termination of parental rights.

Chad Lindstrom v. State of Indiana (NFP)
49A02-1209-CR-739
Criminal. Affirms conviction of Class A misdemeanor battery.

Jason Neal v. State of Indiana (NFP)
49A04-1209-CR-449
Criminal. Affirms conviction of Class A misdemeanor operating a vehicle with a blood alcohol content of at least 0.15 percent.

Franklin Allen v. State of Indiana (NFP)
34A02-1209-CR-782
Criminal. Affirms sentence for Class B felony possession of cocaine within 1,000 feet of a school property.

Terrell Van Causey v. State of Indiana (NFP)
02A03-1210-CR-425
Criminal. Affirms convictions of two counts of Class B felony dealing in cocaine or a narcotic drug; one count of Class D felony maintaining a common nuisance; and one Class A misdemeanor count of possession of marijuana, hash oil or hashish.

In the Matter of C.C., Child in Need of Services; C.C. (Father) v. Indiana Dept. of Child Services (NFP)
49A04-1208-JC-440
Juvenile. Affirms adjudication of C.C. as a child in need of services.

Theodore Fuentes v. State of Indiana (NFP)
71A03-1207-CR-328
Criminal. Affirms conviction of Class D felony residential entry.

Tariq Qureshi and Mehnaz Qureshi v. Richard E. Coulter, Cox/Hammond Realty Group, and Darrell Cox (NFP)
32A01-1211-SC-497
Small claims. Affirms trial court ruling in favor of defendants in a lawsuit involving a failed real estate deal.

Evia Jane Lee v. State of Indiana (NFP)
85A02-1211-CR-935
Criminal. Affirms trial court revocation of probation.

Samantha Richey v. State of Indiana (NFP)
49A02-1208-CR-743
Criminal. Affirms Class A misdemeanor conviction of criminal recklessness.

Patrick Wiese v. State of Indiana (NFP)
49A02-1207-CR-595
Criminal. Affirms on interlocutory appeal the trial court’s denial of a motion to suppress evidence obtained from Wiese’s apartment when police responded to a report of a disturbance.

John C. Kincade, Jr. v. State of Indiana (NFP)
12A02-1207-CR-583
Criminal. Affirms trial court sentence of seven years in prison, with three years executed and the remaining suspended to probation, for convictions of sexual misconduct with a minor and child solicitation.  

Indiana Supreme Court and Indiana Tax Court issued no opinions Monday by IL deadline. 7th Circuit Court of Appeals issued no Indiana opinions Monday by IL deadline.


 

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  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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