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Opinions Aug. 15, 2013

August 15, 2013
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7th Circuit Court of Appeals
United States of America v. James Simon
11-1837
Criminal. Affirms jury conviction from the U.S. District Court, Northern District of Indiana, on charges of filing false income tax returns, failing to file reports of foreign bank accounts, mail fraud and financial aid fraud. There was a legal basis for his convictions, and the District Court did not err in limiting defense evidence regarding some of the charges or in rulings on jury instruction.

Indiana Court of Appeals
Adrian Jackson v. State of Indiana
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2013/august/08151302jgb.pdf
49A04-1211-CR-553
Criminal. Affirms the judgment of the trial court in determining that Jackson’s waiver to his right to counsel was knowing, voluntary and intelligent. Finds Jackson failed to establish his claim that his appointed attorney was burdened by a conflict sufficient to trigger the trial court’s Sixth Amendment duty of inquiry. Also concludes the trial court properly inquired into Jackson’s request to proceed pro se and provided him with sufficient advisements related to his decision to forfeit that right.

Danny Stephens v. State of Indiana
49A04-1301-CR-18
Criminal. Reverses conviction for Class B misdemeanor public intoxication. Finds that although Stephens was drunk in public, he did not meet the conditions amended into the state statute to support a conviction. He was not endangering himself or another person; nor was he breaching the peace or harassing, annoying or alarming another. Stephens made a prima facie showing that the state failed to prove beyond a reasonable doubt that the evidence supported his conviction for public intoxication.

Kenneth McBride v. State of Indiana
49A05-1211-CR-547
Criminal. Affirms 30-year sentence and conviction of two counts of Class B felony criminal confinement, three counts of Class B felony robbery and two counts of Class C felony battery. The court found no reversible error on McBride’s arguments that he did not make a knowing, voluntary and intelligent waiver of his right to counsel when he was allowed to represent himself, or that evidence from a “show-up” identification procedure was obtained improperly. His sentence is not inappropriate.

Natasha F. Hortenberry v. Thomas Palmer
10A04-1301-CT-17
Civil tort. Reverses trial court denial of a motion to set aside a motion treating as timely filed a complaint accompanied by a check for filing fees that was $2 too little, after a check for the remainder came after the statute of limitations ran out. Trial Rule 3 and Indiana Supreme Court precedent clearly indicate payment of the filing fee is required at the commencement of the action, the panel held.

State of Indiana v. Robert Owens
49A02-1210-CR-817
Criminal. Divided panel affirms in part and reverses in part charges arising from an illegal police stop of a pedestrian. Reverses suppression of evidence resulting from Owens’ flight from and subsequent battery of police officers, but affirms the trial court’s suppression of evidence of marijuana and cocaine found on Owens. Dissenting Judge Patricia Riley would affirm the trial court’s suppression of all the evidence.

Charles Kietzman v. Amanda S. Kietzman
39A01-1301-DR-14
Divorce. Affirms trial court order in a dissolution proceeding granting sole custody to a mother planning to move to China, finding that the court did not abuse its discretion, considered statutory factors, distance, time away from father, and the need to preserve the child’s relationship with father through return trips home.

Roger Jay Piatek, M.D., and The Piatek Institute v. Shairon Beale
49A04-1209-CT-463
Civil tort/medical malpractice. Reaffirms on rehearing in all respects the Court of Appeals ruling of May 13 affirming a jury verdict against Piatek. Piatek argued that the jury should have received contributory negligence instructions as it pertained to the patient, Beale. On rehearing, the panel condemned “Piatek’s egregious mischaracterization of the record in Petition for Rehearing.”

Jessica Wilkinson v. State of Indiana (NFP)
33A04-1210-CR-504
Criminal. Affirms convictions of Class A felony dealing in a Schedule III controlled substance within 1,000 feet of a public park, Class B felony dealing in a Schedule III controlled substance, and Class D felony maintaining a common nuisance.

William R. Marks, Jr., v. State of Indiana (NFP)
91A02-1210-CR-881
Criminal. Affirms conviction of Class A felony child molesting.

Mark A. Atherton v. State of Indiana (NFP)
55A01-1211-CR-537
Criminal. Affirms 40-year sentence for Class B burglary and being a habitual offender.

David Newson v. State of Indiana (NFP)
49A04-1302-CR-81
Criminal. Affirms denial of motion to correct erroneous aggregate sentence of 73 years for murder and Class C felony carrying a handgun without a license.

Willie G. Maffett v. State of Indiana (NFP)
82A01-1212-CR-585
Criminal. Affirms conviction of Class D felony theft.

William D. Cornett v. State of Indiana (NFP)
82A01-1302-PC-59
Post conviction. Affirms denial of petition for post-conviction relief.

Antwon Davis v. State of Indiana (NFP)
71A03-1304-CR-130
Criminal. Affirms conviction of Class D felony child molesting.

Chad Matthew Hagan v. State of Indiana (NFP)
76A05-1302-CR-63
Criminal. Affirms combined consecutive sentences from a jury conviction of Class D felony possession of methamphetamine and, in a separate case, from a guilty plea to a Class A misdemeanor invasion of privacy charge.

Auto-Owners Insurance Company v. C & J Real Estate, Inc. (NFP)
49A04-1209-PL-477
Civil plenary. Affirms on interlocutory appeal an order compelling Auto-Owners to produce certain documents containing third-party claims and reserve funds.

In Re the Paternity of C.H.: S.L. v. K.H. (NFP)
64A04-1304-JP-198
Juvenile paternity. Reverses dismissal of putative father’s paternity action and remands for further proceedings.

In Re the Matter of I.E.: J.E. v. W.L. and R.L. and N.V. (NFP)
72A01-1212-JP-567
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2013/august/08141307ehf.pdf
Juvenile. Affirms in part and reverses in part, affirming grant of father’s motion for change of custody, reverses order granting visitation to guardians, and affirms denial of visitation for mother, finding no such request was made.

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

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  1. I enrolled America's 1st tax-free Health Savings Account (HSA) so you can trust me. I bet 1/3 of my clients were lawyers because they love tax-free deposits, growth and withdrawals or total tax freedom. Most of the time (always) these clients are uninformed about insurance law. Employer-based health insurance is simple if you read the policy. It says, Employers (lawyers) and employees who are working 30-hours-per-week are ELIGIBLE for insurance. Then I show the lawyer the TERMINATION clause which states: When you are no longer ELIGIBLE! Then I ask a closing question (sales term) to the lawyer which is, "If you have a stroke or cancer and become too sick to work can you keep your health insurance?" If the lawyer had dependent children they needed a "Dependent Conversion Privilege" in case their child got sick or hurt which the lawyers never had. Lawyers are pretty easy sales. Save premium, eliminate taxes and build wealth!

  2. Ok, so cheap laughs made about the Christian Right. hardiharhar ... All kidding aside, it is Mohammad's followers who you should be seeking divine protection from. Allahu Akbar But progressives are in denial about that, even as Europe crumbles.

  3. Father's rights? What about a mothers rights? A child's rights? Taking a child from the custody of the mother for political reasons! A miscarriage of justice! What about the welfare of the child? Has anyone considered parent alienation, the father can't erase the mother from the child's life. This child loves the mother and the home in Wisconsin, friends, school and family. It is apparent the father hates his ex-wife more than he loves his child! I hope there will be a Guardian Ad Litem, who will spend time with and get to know the child, BEFORE being brainwashed by the father. This is not just a child! A little person with rights and real needs, a stable home and a parent that cares enough to let this child at least finish the school year, where she is happy and comfortable! Where is the justice?

  4. "The commission will review applications and interview qualified candidates in March and April." Riiiiiight. Would that be the same vaulted process that brought us this result done by "qualified candidates"? http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774 Perhaps a lottery system more like the draft would be better? And let us not limit it to Indiana attorneys so as to give the untainted a fighting chance?

  5. Steal a little, and they put you in jail. Steal a lot, and they make you king. Bob Dylan ala Samuel Johnson. I had a very similar experience trying to hold due process trampling bureaucrats responsible under the law. Consider this quote and commentary:"'When the president does it, that means it is not illegal,' [Richard] Nixon told his interviewer. Those words were largely seen by the American public -- which continued to hold the ex-president in low esteem -- as a symbol of his unbowed arrogance. Most citizens still wanted to believe that no American citizen, not even the president, is above the law." BWHaahaaahaaa!!!! http://www.philly.com/philly/blogs/attytood/When-the-president-does-it-that-means-it-is-not-illegal.html

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