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Opinions Feb. 26, 2013

February 26, 2013
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Indiana Court of Appeals
Paul M. Brock v. State of Indiana
79A04-1208-CR-433
Criminal. Affirms trial court sentence of 12 years on convictions of Class C felony auto theft; Class D felony intimidation; Class A misdemeanors resisting law enforcement, striking a law enforcement animal, and operating a vehicle while intoxicated; and a habitual offender enhancement. The court held that the sentence was not impermissible double enhancement, was not inappropriate, and that the court did not abuse its discretion when it considered Brock’s prior behavior while incarcerated.

Curves for Women Angola An Indiana Partnership, Dan Cole, and Lori Cole v. Flying Cat, LLC
76A04-1206-PL-312
Civil plenary. Affirms trial court ruling in favor of the Flying Cat, holding that after a divorce, the ex-husband could be bound to a partnership agreement he signed to establish the business, and thus was liable for unpaid rent.

Dennis Ray Smith v. State of Indiana

82A01-1204-CR-175
Criminal. Affirms in part, reverses in part, and remands with instructions for the trial court to vacate two convictions for Class A felony child molesting by sexual deviate conduct. It also found the lower court did not err in admitting Smith’s recorded statement to police into evidence but ruled the defendant did make an objection to its admission during a bench conference.  

Pedro Alvarez v. State of Indiana
09A02-1203-CR-241
Criminal. Reverses and remands a sentence of 40 years in prison on conviction of two counts of Class B felony dealing in cocaine, holding that consecutive sentences imposed for two separate police-sponsored drug buys were inappropriate.

Paul Sparks v. State of Indiana

49A02-1207-CR-593
Criminal. Reverses revocation of probation, holding that the trial court did not provide an evidentiary hearing that comported with Sparks’ due process and remands to the trial court for a new probation revocation hearing.

Joseph K. Strong v. State of Indiana (NFP)
49A02-1207-CR-535
Criminal. Affirms conviction of Class B felony burglary and Class D felony theft.

Edgar Duncan v. State of Indiana (NFP)

29A04-1209-CR-450
Criminal. Affirms Class C misdemeanor conviction of operating a vehicle while intoxicated.

In Re: The Paternity of J.P.; J.H. v. P.P. (NFP)

43A03-1206-JP-300
Juvenile. Remands custody petition for reconsideration of evidence relating to a counselor’s assessment and knowledge of alleged threats made by father and to resolve father’s contempt petitions against mother.

Jose Morales v. State of Indiana (NFP)

49A02-1207-CR-607
Criminal. Affirms conviction and sentence of 50 years in prison on two counts of Class A felony child molesting.

Jerry L. Moore v. State of Indiana (NFP)

90A05-1207-CR-370
Criminal. Affirms 15-year executed sentence for conviction of Class B felony dealing in a schedule III controlled substance.

Term. of the Parent-Child Rel. of: B.H., (Minor Child) and K.H.L. (Mother) v. Indiana Dept. of Child Services (NFP)
36A01-1209-JT-416
Juvenile. Affirms termination of parental rights.

Stanley Short v. State of Indiana (NFP)

69A01-1206-CR-268
Criminal. Affirms aggregate sentence of 75 years in prison for convictions of Class A felony rape and criminal deviate conduct; and Class B felony, Class C felony and Class A misdemeanor charges of battery.

In Re: The Matter of A.R., et al., Alleged Children in Need of Services: T.M. v. The Indiana Department of Child Services (NFP)

52A02-1205-JC-388
Juvenile custody. On rehearing, affirms original opinion affirming the trial court finding that mother neglected to ensure the children received proper care.

Indiana Supreme Court and Indiana Tax Court posted no opinions Tuesday by IL deadline. 7th Circuit Court of Appeals issued no opinions Tuesday by IL deadline.
 

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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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