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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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