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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. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  2. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  3. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

  4. I am one of Steele's victims and was taken for $6,000. I want my money back due to him doing nothing for me. I filed for divorce after a 16 year marriage and lost everything. My kids, my home, cars, money, pension. Every attorney I have talked to is not willing to help me. What can I do? I was told i can file a civil suit but you have to have all of Steelers info that I don't have. Of someone can please help me or tell me what info I need would be great.

  5. It would appear that news breaking on Drudge from the Hoosier state (link below) ties back to this Hoosier story from the beginning of the recent police disrespect period .... MCBA president Cassandra Bentley McNair issued the statement on behalf of the association Dec. 1. The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer Darren Wilson for shooting Michael Brown. “The MCBA does not believe this was a just outcome to this process, and is disheartened that the system we as lawyers are intended to uphold failed the African-American community in such a way,” the association stated. “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” http://www.thestarpress.com/story/news/local/2016/07/18/hate-cops-sign-prompts-controversy/87242664/

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