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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. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

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