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Opinions Dec. 30, 2010

December 30, 2010
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The following opinions were posted after IL deadline Wednesday.

Indiana Tax Court

AOL, LLC v. Indiana Dept. of State Revenue (NFP)
49T10-0903-TA-7
Tax. Reverses Indiana Department of State Revenue’s final determinations, which denied AOL’s two claims for refund. Orders the department to refund to AOL the use taxes it paid during the tax periods at issue.

United Parcel Service Inc. v. Indiana Dept. of State Revenue (NFP)
49T10-0704-TA-24
Tax. Grants UPS’ motion for summary judgment and denies the Indiana Department of State Revenue’s motion for summary judgment. Reverses the department’s denial of UPS’ claim for refund of corporate income tax for 2000 and its assessment of additional corporate income tax against UPS for 2001.

Today’s opinions

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Richmond State Hospital, et al. v. Paula Brattain, Francis Ernst, et al.
49A02-0908-CV-718
Civil. Denies the state’s petition and grants the employees’ petition to clarify the Court of Appeals’ instructions on remand for determining the merit employees’ damages. Concludes merit employees are entitled to back pay for the period beginning either 10 days before the filing of the July 29, 1993, complaint, or 10 days before the filing of their individual administrative grievances, whichever comes first, until the date that the state abolished the split class system. The trial court must determine whether the state terminated the split class system on Sept. 12 or Sept. 19, 1993.
 
Kathy Inman v. State Farm Mutual Automobile Insurance Co.
41A01-1005-CT-223
Civil. Reverses trial court’s denial of Inman’s motion for prejudgment interest pursuant to Indiana Code Section 34-51-4-5 in her action against State Farm Mutual Automobile Insurance Company. Remands with instructions that the trial court’s order be amended to require payment of prejudgment interest consistent with this opinion.

Christopher Jewell v. State of Indiana
32A04-1003-CR-187
Criminal. Affirms convictions and aggregate 40-year term for six counts of sexual misconduct and child molesting. Jewell argued recorded statements admitted as evidence in this case were procured and admitted in violation of his federal and state constitutional rights to counsel. Court of Appeals concludes that Jewell’s statements were not obtained unconstitutionally because although Jewell had been charged and had hired counsel in an unrelated case, he had not been charged with the present crimes when the subject phone calls took place.

Paternity of R.M.; K.B. v. S.M.
45A04-1001-JP-14
Juvenile. Reverses and remands trial court’s order granting the motion filed by S.M. (mother) to dismiss K.B.'s (putative father) petition to establish paternity of S.M.’s child, R.M., based on the doctrine of laches. S.M. married R.M.’s presumptive father when S.M. was pregnant with R.M., who was born in 1996. The presumptive father died in 2006, and a home DNA test that year showed a 99.99 percent chance that K.B. is R.M.’s biological father.

Roscoe C. Fry II v. State of Indiana
30A01-1005-CR-244
Criminal. Reverses trial court’s denial of Fry’s motion to correct erroneous sentence. Remands with instructions to determine whether Fry has completed his sentence and probation and, if not, to clarify or modify his sentence as necessary so that the combined term of the executed portion of Fry’s sentence, including any time served prior to the date of the sentencing order, and his probation do not exceed one year.

K.A. v. State of Indiana
49A02-1004-JV-527
Juvenile. Reverses juvenile court’s modification of dispositional orders after K.A. allegedly violated his probation. K.A. contended the juvenile court violated his due process rights by modifying his disposition after a hearing at which the state presented no evidence of the alleged probation violation. Court of Appeals concludes that because the modification was predicated on the alleged probation violation, principles of fundamental fairness required the state to present evidence of the allegation.

Dwayne Rhoiney v. State of Indiana
49A05-1007-PC-482
Post-conviction. Reverses post-conviction court’s denial of petition for post-conviction relief and remands for resentencing.

Hezekiah Colbert v. State of Indiana (NFP)
32A04-1004-CR-259
Criminal. Affirms convictions of Class A felony attempted murder, Class A felony burglary, and finding that Colbert is a habitual offender.
 
Donnie R. Pierce v. State of Indiana (NFP)
49A05-1006-CR-347
Criminal. Concludes the state presented sufficient evidence to convict Pierce of the charged offense, and that the mistake in the Abstract of Judgment should be corrected to enter the conviction of criminal mischief as a Class B misdemeanor.
 
Jeffrey Adams v. State of Indiana (NFP)
28A04-1006-CR-405
Criminal. Affirms convictions of aiding in reckless homicide, criminal recklessness with a deadly weapon, and reckless driving.
 
Termination of Parent-Child Relationship of S.H., et al.; A.M. v. Indiana Dept. of Child Services, et al. (NFP)
49A02-1005-JT-623
Juvenile. Affirms involuntary termination of parental rights.
 
Troy H. Worthington Sr. v. State of Indiana (NFP)
45A03-1004-CR-223
Criminal. Affirms sentence following a plea of guilty to criminal recklessness, a Class D felony.
 
Johnny N. Standberry v. State of Indiana (NFP)
29A02-1003-CR-508
Criminal. Affirms convictions of theft, a Class D felony; and resisting law enforcement, a Class A misdemeanor.
 
Bernard Markey v. State of Indiana (NFP)
49A02-1003-PC-371
Post-conviction. Affirms denial of petition for post-conviction relief.
 
Paternity of C.B.; D.B. v. A.C. (NFP)
29A05-1004-JP-321
Juvenile. Affirms trial court’s order awarding A.C. (father) sole physical and legal custody of the parties’ minor child, C.B.
 
In the Matter of Z.T.; S.W. v. Marion Co. Dept. of Child Services, et al. (NFP)
49A04-1004-JC-252
Juvenile. Affirms trial court’s adjudication of Z.T. as a child in need of services.
 
Dione J. Osuna v. State of Indiana (NFP)
45A03-1005-CR-252
Criminal. Affirms conviction of possession of a handgun with an obliterated serial number, a Class C felony.
 
Kenneth Hopper v. State of Indiana (NFP)
82A01-1006-CR-299
Criminal. Affirms sentence following judgment of conviction of guilty but mentally ill.
 
Chester L. Triplett v. State of Indiana (NFP)
45A03-1001-CR-33
Criminal. Affirms sentence following a plea of guilty to dealing in cocaine, a Class B felony.
 
Opie W. Glass v. State of Indiana (NFP)
30A01-1005-CR-247
Criminal. Affirms conviction of Class C felony burglary and two counts of Class C felony theft.

C.S. v. Review Board of the Indiana Dept. of Workforce Development, et al. (NFP)
93A02-1005-EX-537
Civil. Affirms the determination of the Indiana Department of Workforce Development, which denied unemployment benefits to C.S.
 
Billy R. Case v. State of Indiana (NFP)
40A01-1004-CR-230
Criminal. Affirms sentence for Class B felony sexual misconduct with a minor and trial court’s restitution order.
 
Charles Hartsell Jr. v. State of Indiana (NFP)
20A04-1005-PC-359
Post-conviction. Affirms denial of petition for post-conviction relief.
 
Wesley Crabtree v. State of Indiana (NFP)
49A02-1006-CR-646
Criminal. Affirms trial court’s order revoking probation and imposing the execution of Crabtree’s previously suspended sentence.
 
Kenny Hawkins Jr. v. State of Indiana (NFP)
84A01-1005-CR-268
Criminal. Affirms conviction of and sentence for dealing in cocaine, a Class B felony.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

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