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Opinions April 9, 2013

April 9, 2013
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7th Circuit Court of Appeals
Nancie Cloe v. City of Indianapolis
12-1713
Civil/discrimination. Affirms District Court grant of summary judgment to Indianapolis on Nancy Cloe’s argument that the city failed to reasonably accommodate her injury, but reversed and remanded the District Court’s summary judgment against Cloe’s claims that she was discriminated against and faced retaliation for requesting a work accommodation be made because of her disability.

United States of America v. Tristan Davis

12-3552
Criminal. Affirmed the 18-month sentence for Tristan Davis on two counts of lying to gun dealers. However, the court pointed to confusion over how much discretion a prosecutor has in deciding to file a motion for a sentence reduction under U.S.S.G. 3E1.1(b). In this case, the prosecutor only filed a motion for a two-level reduction because Davis would not waive his right to appeal. Although the 7th Circuit acknowledged its decision in United States v. Deberry holds that section 3E1.1(b) confers an entitlement on the prosecutor, it also noted the courts of appeals have been split with some reaching a conclusion different from Deberry. Consequently, the 7th Circuit called upon the U.S. Supreme Court or the U.S. Sentencing Commission to resolve the conflict.

The following 7th Circuit opinion was released Monday after IL deadline.
NES Rentals Holdings, Inc., et al., v. Steine Cold Storage, Inc.
12-1401
Civil. Affirms District Court grant of summary judgment in favor of Steine Cold Storage, holding that the indemnification clause in an equipment-rental agreement does not expressly state, in clear and unequivocal terms as Indiana law requires, that Steine agreed to indemnify NES for NES’s own negligence.

Indiana Court of Appeals
Virgil D. Cornelious v. State of Indiana
49A04-1206-CR-335
Criminal. Affirms conviction of Class B felony aggravated battery and habitual offender determination resulting in a sentence of 30 years in prison, finding that the victim of a stabbing suffered serious permanent disfigurement and that applying the habitual offender statute was not an abuse of discretion.

Danielle Helms v. Max H. Rudicel, M.D., Open Door/BMH Health Clinic (a division of Cardinal Health Systems), Cardinal Health Systems, d/b/a Ball Memorial Hospital, et al.
18A04-1202-CT-70
Civil tort. Affirms in part, reverses in part and remands to the trial court. The federal decision is not res judicata as to BMH’s potential liability as the doctor and clinic’s apparent principal and there is a fact question as to such apparent agency; summary judgment for BMH was error. The trial court correctly found BMH might be vicariously liable for any act of Dr. Max Rudicel or a nurse practitioner at BMH.

Adam Morris v. State of Indiana
14A05-1209-CR-495
Criminal. Affirms the one-year, fully executed sentence of Adam Morris but reverses the trial court’s order that Morris pay $14,972.45 restitution. The Court of Appeals found his sentence to be appropriate, given his character and his offense, and it held although the terms of probation were included in the plea agreement, the lower court was not required to grant probation. However the COA ruled the trial court could not order Morris to pay restitution since the plea agreement made no mention of restitution.

Jorge L. Gonzalez v. State of Indiana (NFP)
20A05-1206-CR-335
Criminal. Affirms three convictions of Class A felony dealing in cocaine and 50-year sentence.

Jeffrey L. Jones v. State of Indiana (NFP)
87A05-1210-CR-546
Criminal. Affirms conviction of Class B misdemeanor battery.

Antonio L. Freeling v. State of Indiana (NFP)

02A05-1210-CR-556
Criminal. Affirms conviction of Class C felony robbery.

In Re: The Paternity of J.M., Jo.M. v. M.J. (NFP)
55A01-1210-JP-477
Juvenile paternity. Remands trial court order that father Jo.M. pay educational support for his daughter, ordering clarification of the order and father’s obligations to pay toward educational support and child support arrearage.

Darnell Chivers v. State of Indiana (NFP)

24A01-1205-PC-206
Post conviction. Affirms denial of relief from his 20-year sentence for convictions of Class B felony counts of armed robbery and two counts of Class B felony criminal confinement.

Stanley Short v. State of Indiana (NFP)
69A01-1204-CR-154
Criminal. Affirms conviction of Class C felony escape.

Darnell Tinker v. State of Indiana (NFP)
02A03-1112-CR-587
Criminal. Reaffirms on rehearing conviction for unlawful possession of a firearm by a serious violent felon and his sentence as a habitual offender.

Tori R. Driver v. Todd W.A. Driver (NFP)
20A04-1208-DR-437
Domestic relations. Reverses and remands modification of child support, instructing the trial court  to include father’s bonuses as part of weekly gross income for calculation purposes.

William Gordon v. Toyota Motor Manufacturing of Indiana (NFP)
93A02-1211-EX-910
Executive administration/workers compensation. Vacates the board’s decision adopting and affirming the decision of the single hearing member and remands to the board with instructions to issue findings of fact and conclusions which comport with the Indiana Administrative Orders and Procedures Act such that the court can conduct, if necessary, appellate review of the board’s determination.

Termaine T. Fields v. State of Indiana (NFP)

02A03-1206-CR-278
Criminal. Affirms conviction of Class D felony residential entry, Class A misdemeanor domestic battery and determination as a habitual offender.

In Re The Marriage of Laura R. Chickadaunce and Mark A. Chickadaunce; Laura R. Chickadaunce v. Mark A. Chickadaunce (NFP)
77A01-1206-DR-287
Divorce. Affirms dissolution of marriage order.

John T. Haub, Jr. v. State of Indiana (NFP)
88A01-1206-CR-297
Criminal. Affirms in part, reverses in part and remands convictions of two Class C felony counts of burglary, three Class C felony counts of auto theft, a Class C felony count of receiving stolen auto parts, a Class A misdemeanor count of driving while suspended and an adjudication as a habitual offender. Remanded with instructions to vacate the second burglary conviction and to correct the sentencing order to provide that the habitual offender enhancement applies to a particular offense.

Justin M. Lewis v. State of Indiana (NFP)
12A04-1210-CR-556
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2013/april/04091302tac.pdf
Criminal. Affirms convictions of Class D felony counts of criminal confinement and domestic battery; Class A misdemeanor counts of possession of marijuana and possession of paraphernalia; a Class B misdemeanor count of criminal mischief and adjudication as an habitual offender.

Dennis Fahlsing v. Shannon Fahlsing and Angela Taylor (NFP)
57A05-1211-CC-584
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2013/april/04091302par.pdf
Collections. Affirms denial of summary judgment in favor of defendants and order staying the action and compelling arbitration.

Robert Hamilton v. Jerry Ablitar (NFP)

07A04-1209-SC-496
Small claims. Affirms judgment in favor of Ablitar.

Enri Franklin v. State of Indiana (NFP)
49A05-1209-CR-464
Criminal. Affirms conviction of Class B misdemeanor public intoxication. 

Martize Sevion v. State of Indiana (NFP)
18A04-1207-CR-384
Criminal. Affirms in part and reverses in part convictions on two counts of Class B felony criminal confinement, two counts of Class C felony intimidation and one count of Class D felony pointing a firearm, and adjudication as a habitual offender. The pointing a firearm conviction must be reversed as double-jeopardy.

Indiana Supreme Court and Indiana Tax Court issued no opinions Tuesday by IL deadline.
 

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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