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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. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  5. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

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