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Opinions Feb. 17, 2014

February 17, 2014
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The following 7th Circuit Court of Appeals opinions were posted after IL deadline Friday:
United States of America v. Steven J. Perry
13-2182
U.S. District court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Criminal. Vacates Perry’s five-year sentence and the additional conditions of supervision imposed by the court in its written judgment. Remands with instructions to sentence Perry to no more than two years imprisonment for his latest violation of supervised release and to determine Perry’s conditions of supervision. The District Court erred in imposing the mandatory five-year term because the version of 18 U.S.C. Section 3583(k) in effect at the time of his initial offense authorized a maximum sentence of only two years.

United States of America v. Tyler Sanders
13-1301
U.S. District court, Southern District of Indiana, Indianapolis Division, Judge Larry J. McKinney.
Criminal. Affirms 120-month sentence following guilty plea to possessing more than 50 grams of cocaine base with intent to distribute. The exclusionary rule does not apply at sentencing. The District judge did not err in following 18 U.S.C. Section 3661 and considering the evidence found during the search of Sander’s home.

Monday’s opinions
Indiana Court of Appeals

Rakiea McCaskill v. State of Indiana
49A02-1306-CR-480
Criminal. Reverses conviction of Class A misdemeanor intimidation. The state did not provide sufficient evidence to prove beyond a reasonable doubt that McCaskill committed Class A misdemeanor intimidation as charged. The state did produce sufficient evidence that McCaskill committed Class B misdemeanor harassment. Remands to the trial court with instructions to vacate McCaskill’s judgment of conviction for intimidation and to enter a judgment of conviction for McCaskill for Class B misdemeanor harassment.

Northern Indiana Public Service Company v. Edward A. Sloan, Dashawn L. Cole
45A03-1307-SC-254
Small claim. Affirms orders reinstating the driving privileges of Edward Sloan and Dashwan Cole. NIPSCO has not established that the trial court erred as a matter of law when it permitted Sloan and Cole to make installment payments of $50 per month even if the plan would not result in the payment of the judgment in full during the 7-year suspension period. NIPSCO has not made a prima facie showing that equity requires the continued suspension of their driving privileges. NIPSCO waived its argument regarding the trial court’s contacting the BMV by failing to object to that procedure during the hearing.

David Buchanan v. Carol Buchanan (NFP) 
60A01-1304-DR-189
Domestic relation. Affirms property division and valuation of certain property in decree of dissolution.

Aaron M. Fellows v. State of Indiana (NFP)
82A01-1305-CR-244
Criminal. Affirms convictions of Class A felony burglary resulting in bodily injury and Class B felony attempted robbery resulting in bodily injury.

Jose G. Alejandro v. State of Indiana (NFP)
20A03-1306-CR-224
Criminal. Affirms conviction and sentence for attempted murder.

Dominique Brisker v. State of Indiana (NFP)
48A04-1307-CR-337
Criminal. Affirms revocation of probation.

William Mosher v. Haesuk Yi Mosher (NFP)
43A05-1305-GU-286
Guardianship. Affirms dismissal of William Mosher’s petition for guardianship of his incapacitated adult daughter for lack of jurisdiction.

$2,500.00 In Lawful United States Currency, 2002 Chevrolet Avalanche, and 1970 Chevrolet El Camino (Demarco D. Hawkins) v. State of Indiana, et al. (NFP)
82A01-1307-MI-326
Miscellaneous. Reverses order granting forfeiture of the Avalanche and El Camino that were seized when Hawkins was arrested for suspicion of dealing in marijuana.

Sonia Long v. City of Logansport, Building Commissioner (NFP)
09A04-1305-PL-249
Civil plenary. Affirms summary judgment in favor of the city of Logansport requiring Long to comply with a previous order issued by the city to raze a building she owns.

Jason Tye Myers v. Charles R. Deets III, Deets & Kennedy, and Great American Insurance Group (NFP)
79A02-1306-CT-521
Civil tort. Affirms grant of Charles Deets III’s motion to dismiss and grant of Great American Insurance Group’s motion for summary judgment on Myers complaints against them.

Christopher Smith v. State of Indiana (NFP)
49A04-1306-CR-301
Criminal. Affirms convictions of Class B felony burglary, Class B misdemeanor criminal mischief and determination Smith is a habitual offender.

Lori Harrold v. L & D Mailmasters (NFP)
93A02-1306-EX-564
Agency action. Affirms order of the Worker’s Compensation Board denying Harrold’s application for adjustment of her workers’ compensation claim.

James Christian Warner v. State of Indiana (NFP)
03A01-1305-CR-212
Criminal. Affirms conviction of Class C felony attempted inmate fraud.

Barnard Lockett v. State of Indiana (NFP)
49A02-1307-CR-653
Criminal. Affirms revocation of community corrections placement.

Michael R. Jent v. State of Indiana (NFP)
02A05-1304-PC-217
Post conviction. Affirms denial of petition for post-conviction relief.

Travis Smith v. State of Indiana (NFP)
49A05-1307-CR-316
Criminal. Affirms Smith’s convictions of Class B felony failure to stop after an accident resulting in serious bodily injury while intoxicated and Class B misdemeanor failure to stop after an accident resulting in damage to property other than a vehicle, vacates his habitual offender enhancement and remands the case for further proceedings.

The Indiana Supreme Court and Tax Court posted no opinions by IL deadline. The 7th Circuit Court of Appeals is closed Monday in observance of Presidents Day.

 

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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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