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Opinions Feb. 22, 2011

February 22, 2011
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7th Circuit Court of Appeals
United States of America v. Roger D. Slone
09-4089
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Rudy Lozano.
Criminal. Affirms conviction of conspiracy to distribute marijuana and sentence of 120 months in prison. The search incident to his arrest was reasonable and the vehicle evidence was properly admitted against him.

United States of America v. James Guyton

09-3866
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Rudy Lozano.
Criminal. Affirms denial of Guyton’s motion for a sentence reduction. He was sentenced for a crack-cocaine offense before the U.S. Supreme Court held that the sentencing guidelines were advisory, and his applicable guideline range was established on the basis of his career-offender status before he received a substantial assistance departure. Thus, Amendment 706, which left the career-offender guideline unchanged, did not affect his applicable guideline range and he didn’t qualify for a sentence reduction under 18 U.S.C. Section 3582(c)(2).


Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Allstate Insurance Company v. Gary R. Love
32A01-1005-CT-239
Civil tort. Affirms the trial court properly denied Allstate’s request to set aside default judgment entered in favor of Love. Love’s counsel did not commit misconduct when he failed to notify Dietrick before seeking default judgment against Allstate because he didn’t know Dietrick represented Allstate on this claim. The trial court’s award of $255,000 to Love was interlocutory and therefore Allstate may still appear and be heard as to the amount of damages resulting from the judgment. Remands for a hearing on the damages award.

Craig Dennis v. Board of Public Safety of Fort Wayne, Indiana
02A03-1007-PL-379
Civil plenary. Reverses order of dismissal of Fort Wayne police officer Dennis’ complaint for judicial review after the Board of Public Safety denied his request for back pay. His indefinite unpaid leave pending the outcome of the criminal charge was a suspension of greater than five days, thus subject to judicial review. The board’s decision became final when it denied Dennis’ request for back pay, such that his complaint for judicial review was timely filed. Remands for further proceedings.

James C. Taylor v. State of Indiana
02A03-1003-CR-194
Criminal. Affirms convictions of and sentence for Class A felony burglary; Class B felony criminal deviate conduct; Class B felony attempted rape; jury verdict he is guilty but mentally ill of a second charge of criminal deviate conduct and of Class D felony sexual battery; and jury determination that he is a habitual offender. The trial court did not abuse its discretion in refusing to give the tendered instruction on residential entry. The state established a foundation for the admission of a letter Taylor wrote to an Allen County judge pursuant to Indiana Rule of Evidence 901 and the court did not abuse its discretion by admitting it.

Keith Hoglund v. State of Indiana
90A02-1005-CR-591
Criminal. Affirms conviction of and sentence for Class A felony child molesting. The trial court did not abuse its discretion in admitting testimony that indirectly vouched for A.H.’s credibility and he was properly sentenced. Judge Darden concurs in result.

State of Indiana v. Andy J. Velasquez, II
53A05-1003-CR-194
Criminal. Affirms there was no abuse of discretion in the giving of a preliminary instruction pursuant to Evidence Rules 105 and 404(b). The trial court erred in excluding the testimony of witnesses under Evidence Rules 802 and 704(b). Double jeopardy principles bar a second trial as Velasquez was acquitted of Class A felony child molesting and Class C felony child molesting.

Paul J. Kocielko v. State of Indiana
20A03-1002-CR-218
Criminal. Grants rehearing and affirms the decision of the trial court in all respects, except the 30-year habitual offender enhancement imposed upon the Class C felony conviction of sexual misconduct with a minor. Instructs the trial court to vacate this enhancement because Kocielko’s Class B felony sentence was so enhanced.

Jamie Escobedo v. State of Indiana (NFP)
71A04-1004-CR-300
Criminal. Affirms conviction of Class A misdemeanor criminal trespass.

Robert D. Neal, Jr. v. State of Indiana (NFP)
60A05-1009-CR-596
Criminal. Affirms sentence following guilty plea to Class D felony receiving stolen property and Class A misdemeanor resisting law enforcement.

Naugle Gibson v. State of Indiana (NFP)
49A05-1007-CR-404
Criminal. Affirms conviction of Class A misdemeanor domestic battery.

Term. of Parent-Child Rel. of L.S.; A.S. v. IDCS (NFP)
02A03-1007-JT-385
Juvenile. Affirms termination of parent-child relationship.

Gregory Preyer v. State of Indiana (NFP)

49A05-1007-CR-397
Criminal. Affirms conviction of Class A misdemeanor criminal trespass.

Larry Burdette (deceased) v. Perlman-Rocque Company (NFP)
93A02-1007-EX-770
Civil. Affirms denial of application for adjustment of claim.

Elizabeth S. Mathias v. State of Indiana (NFP)
35A02-1009-CR-1079
Criminal. Affirms revocation of probation.

Leo Machine & Tool, Inc., et al. v. Gary M. Gerardot (NFP)

02A03-1006-PL-365
Civil plenary. Affirms summary judgment that Geradot had no notice of a defect in the electrical wiring of the premises he owned, and thus did not owe Leo Machine and other appellants a duty to maintain and repair the premises’ electrical system. Affirms denial of the appellants’ motions for sanctions for spoliation of evidence against Geradot.

Anthony McCoy v. State of Indiana (NFP)
49A02-1007-CR-746
Criminal. Affirms convictions of Class B felony robbery, Class A misdemeanor criminal recklessness and Class A misdemeanor intimidation.

In the Matter of T.R., Alleged to be CHINS; S.S. & R.R. v. IDCS (NFP)
52A05-1008-JC-544
Juvenile. Affirms determination T.R. is a child in need of services. Remands with instructions for the court to issue an amended dispositional order which includes written reasons and findings for the disposition based upon the evidence presented at the fact-finding and dispositional hearings in accordance with Indiana Code Section 31-34-19-10.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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