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Opinions Aug. 26, 2014

August 26, 2014
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7th Circuit Court of Appeals
Roy Smith v. Richard Brown
12-3731
U.S. District Court, Northern District of Indiana, South Bend Division.
Judge James T. Moody
Criminal. Affirms the denial of Smith’s habeas petition. Finds although Smith’s counsel appeared to be particularly deficient, Smith failed to demonstrate how his lawyer’s substandard effort prejudiced his case since there was overwhelming evidence against him.

Indiana Court of Appeals
Lamont Carpenter v. State of Indiana
02A05-1309-CR-467
Criminal. Affirms convictions of five counts of Class A felony dealing in cocaine, Class B felony unlawful possession of a handgun by a serious violent felon, Class C felony possession of a handgun with altered identifying marks, and Class D felony possession of marijuana. Finds that as the jury was not aware Carpenter was a serious violent felon, he was not prejudiced by the partial  bifurcation of his trial. The trial court did not abuse its discretion in admitting mail with his name and address taken during a search of his home because it was not hearsay, and Carpenter was not subjected to double jeopardy when he was convicted of possession of a firearm by an SVF and possession of a handgun with altered identifying marks.

In re the Marriage of: Wade R. Meisberger v. Margaret Bishop f/k/a Margaret Meisberger
39A01-1402-DR-76
Domestic relation. Remands trial court order on all pending issues denying Wade Meisberger’s motion to modify parenting time and motion to correct error, instructing the trial court to make necessary findings in order to restrict father’s parenting time such that parenting time for father, now incarcerated, might endanger his son’s physical health or significantly impair his emotional development.

Daryl Schweitzer and Lynn Schweitzer v. American Family Mutual Insurance Company and Jennifer Gholson Insurance Agency
45A03-1307-CT-248
Civil tort. Affirms entry of summary judgment in favor of defendants, finding the Schweitzers were not entitled to additional payments under their homeowner’s insurance policy after a fire destroyed their home and insurance provided total payments of $326,040 for the dwelling.

Jeffrey Crider v. Christina Crider
53A05-1307-DR-358, 53A04-1401-DR-26
Domestic relation. Reverses decision to automatically vest “ownership and control” in stocks and membership interests of Jeff Crider upon his failure to pay a $4.7 million equalization judgment within 180 days. Affirms order he pay Christina Crider that equalization judgment, plus interest accruing after 90 days and to pay any attorney fees she incurs in collecting the judgment. Finds the trial court’s decision to modify his child support obligation after an appeal had been initiated in this case is void and the child support obligation remains at $308 per week. Remands for further proceedings. Affirms in all other respects.

Steven Anderson v. State of Indiana
49A02-1309-CR-788
Criminal. Affirms conviction of Class D felony escape for violation of home detention, holding that the court did not err by admitting evidence of events preceding Anderson’s arrest, including evidence from the company that monitored his ankle bracelet showing he was not in his home after he was required to be.   

Ann Withers v. State of Indiana
48A02-1403-CR-130
Criminal. Affirms termination of placement in drug court program and order reinstating an executed 5-year, 6-month prison sentence for convictions of Class B felony dealing in methamphetamine, Class D felony possession of two or more chemical reagents or precursors, and Class D felony neglect of a dependent. The trial court was authorized to take judicial notice of electronically signed attendance reports showing Withers had missed multiple mental health appointments, and it did not abuse its discretion in terminating her participation in drug court.  

State of Indiana v. Brandon Scott Schulze
73A01-1311-CR-471
Criminal. Reverses the trial court’s order reinstating Schulze’s driving privileges. Schulze, who was barred from driving after he refused to take a chemical test for alcohol intoxication, argued the suspension of his license was invalid because the arresting officer was not certified to administer the chemical test. The COA finds Schulze’s argument fails because state statute does not require the arresting officer to be trained to perform a chemical test and, if Schulze had agreed to submit to the test, the officer could have found a qualified person to give the test.   

Louise Frontz, Guardian of the Person and Estate of Brian O'Neal Frontz, and Brian Frontz v. Middletown Enterprises, Inc., d/b/a Sinclair Glass
05A04-1307-PL-364
Civil plenary. Affirms summary judgment for Middletown Enterprises. Finds although Frontz was a temporary worker assigned to Middletown, the company was his joint employer along with the temp agency. Therefore, Frontz cannot file a lawsuit against Middletown seeking remedy for his severe injuries but can only file a workers’ compensation claim against the company.

Lawrence Mulry v. State of Indiana (NFP)
49A02-1312-CR-1035
Criminal. Affirms conviction of Class A misdemeanor resisting law enforcement.

Jose B. Rodriguez v. State of Indiana (NFP)
20A05-1309-CR-491
Criminal. Affirms convictions of four counts of Class A felony child molesting. Finds although the trial court did abuse its discretion in admitting evidence of extra-jurisdictional prior bad acts, the error was harmless.

In re the Marriage of: Robin D. (Hanson) Blankenship and James E. Hanson, James E. Hanson v. Robin D. (Hanson) Blankenship (NFP)
41A05-1310-DR-511
Domestic relation. Affirms denial of James Hanson’s petition to modify child support and granting of Robin Blankenship’s verified petition for rule to show cause, holding Hanson in contempt based on his child support arrearage. Judge James Kirsch dissents. He argues the trial court did abuse its discretion in denying the modification and recommends the court reverse the order and remand with instructions to enter a new child support order.

Leroy Shoaff v. Denisa Dekker (NFP)
45A05-1401-CT-43
Civil tort. Affirms judgment for $386,000 against Shoaff for his fault in a 2007 motor vehicle accident that injured Dekker’s knee.

Fernando Miranda v. State of Indiana (NFP)
49A04-1401-CR-10
Criminal. Affirms convictions for Class A misdemeanor resisting law enforcement and Class B misdemeanor public intoxication.

Orange County v. Review Board of the Indiana Department of Workforce Development and Daniel Harris (NFP)
93A02-1403-EX-144
Civil. Affirms the Review Board of the Department of Workforce Development’s determination that Orange County did not file a timely appeal to the decision that Harris was eligible for unemployment benefits.

Destiny Skeen v. Review Board of the Indiana Department of Workforce Development and Hub Restaurant LLP (NFP)
93A02-1401-EX-57
Civil. Reverses decision by the Indiana Department of Workforce Development that Skeen was discharged for just cause. Concludes the Review Board decision was not supported by substantial evidence.
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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