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Opinions Feb. 23, 2012

February 23, 2012
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7th Circuit Court of Appeals had posted no opinions at IL deadline.

Indiana Supreme Court and Indiana Tax Court had posted no opinions at IL deadline.

Indiana Court of Appeals

Eriberto Quiroz v. State of Indiana
49A02-1107-CR-577
Criminal. Reverses Quiroz’s conviction of Class C felony child molesting because that conviction along with a Class A felony child molesting conviction constitutes double jeopardy as the same evidence supports both convictions. Remands for the trial court to vacate the Class C felony conviction. The trial court did not commit fundamental error in including in the jury instructions a copy of the charging information that included the counts against Quiroz that had previously been dismissed.

Bernard Short v. State of Indiana
49A02-1105-CR-403
Criminal. Affirms conviction of Class A misdemeanor operating a vehicle while intoxicated. The trial court did not abuse its discretion by admitting the results of the certified chemical breath test nor did it err by rejecting Short’s proposed jury instruction.

Keith Woodson v. State of Indiana
49A02-1108-PC-768
Post conviction. Affirms denial of petition for post-conviction relief. The post-conviction court was not clearly erroneous in finding that attorney Harper’s cross-examination of Owens and Johnson was not ineffective and that Harper was not ineffective for not attempting to procure the services of an eyewitness identification expert for Woodson’s second trial.

In the Matter of the Guardianship of John S. Zakrowski; Marsha L. Cummins v. Thomas L. Zakrowski (NFP)
71A03-1105-GU-259
Guardianship. Affirms denial of Cummins’ application for permission to participate in the guardianship proceedings.

S.D. v. B.D. (NFP)
41A01-1104-DR-170
Domestic relation. Affirms granting primary physical custody to mother. Reverses finding of contempt for father’s failure to pay for day care.

Sandra Rivas v. State of Indiana (NFP)
49A02-1106-CR-544
Criminal. Affirms conviction of Class D felony theft.

Jeffrey Roser v. Jennifer Roser (NFP)
38A02-1106-DR-502
Domestic relation. Affirms decision to lower father’s obligation to the minimum support obligation and remands for the trial court to revise the obligation to $18.

Daniel O'Reilly v. Ruth Doherty (NFP)
29A04-1108-DR-399
Domestic relation. Affirms order husband pay $30,000 of wife’s attorney fees.

Charles Smith v. State of Indiana (NFP)
58A01-1104-CR-191
Criminal. Affirms 20-year sentence for Class B felony dealing in a schedule II controlled substance.

Kenneth Willis Gibbs-El v. Arthur Hegewald (NFP)
49A02-1107-CT-747
Civil tort. Affirms dismissal of Gibbs-El’s complaint against a former employee of the Indiana Department of Correction.

Hawkins Auto Stores, Inc. v. Brent F. Hehr (NFP)
89A01-1110-SC-461
Small claim. Affirms order that Hawkins Auto Stores pay Hehr $3,395 for repayment of funds paid by Hehr for services he never received.

Joseph Apongule v. State of Indiana (NFP)
29A04-1109-CR-543
Criminal. Affirms conviction of Class C misdemeanor operating a vehicle while intoxicated.
 

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  1. 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

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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