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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. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

  2. Thank you for this post . I just bought a LG External DVD It came with Cyber pwr 2 go . It would not play on Lenovo Idea pad w/8.1 . Your recommended free VLC worked great .

  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

  5. I have no doubt that the ADA and related laws provide that many disabilities must be addressed. The question, however, is "by whom?" Many people get dealt bad cards by life. Some are deaf. Some are blind. Some are crippled. Why is it the business of the state to "collectivize" these problems and to force those who are NOT so afflicted to pay for those who are? The fact that this litigant was a mere spectator and not a party is chilling. What happens when somebody who speaks only East Bazurkistanish wants a translator so that he can "understand" the proceedings in a case in which he has NO interest? Do I and all other taxpayers have to cough up? It would seem so. ADA should be amended to provide a simple rule: "Your handicap, YOUR problem". This would apply particularly to handicapped parking spaces, where it seems that if the "handicap" is an ingrown toenail, the government comes rushing in to assist the poor downtrodden victim. I would grant wounded vets (IED victims come to mind in particular) a pass on this.. but others? Nope.

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