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Opinions Jan. 27, 2014

January 27, 2014
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7th Circuit Court of Appeals
The following opinion was issued after IL deadline Friday.

Annex Books Inc, et al. v. City of Indianapolis
13-1500.
Civil. Reverses District Court order upholding a city of Indianapolis ordinance limiting the hours of adult bookstores to 10 a.m. to midnight, Monday-Saturday. Remands to the District Court with instructions to enter injunction against enforcement of the closure ordinance. Finds that in light of prior Supreme Court jurisprudence, the city cannot restrict the distribution of material that might be objectionable but is not obscene. The city’s argument that the closure ordinance had reduced instances of armed robberies near the bookstore locations was “weak as a statistical matter,” the court ruled.

Indiana Court of Appeals
Frank Jacobs v. State of Indiana
49A04-1304-CR-183
Criminal. Affirmed in part, reversed in part and remanded. Orders trial court to vacate a conviction of Class C felony criminal confinement as double jeopardy to a conviction in the same case of Class B felony criminal deviate conduct.

Quanardel Wells v. State of Indiana
49A02-1306-CR-550
Criminal. Affirms conviction of two counts of Class A felony criminal deviate conduct, one count of Class A felony rape, two counts of Class B felony criminal deviate conduct, one count of Class B felony criminal confinement, one count of Class C felony criminal confinement, and one count of Class D felony strangulation. Wells’ appeal of a denial of his motion to sever the charges from different incidents was a request to reweigh a decision affirming denial the Court of Appeals made on interlocutory appeal, the court ruled. His 100-year sentence was not inappropriate based on Wells’ character and the nature of the offenses.  

Thomas D. Dillman v. State of Indiana
53A04-1306-CR-289
Criminal. Reverses denial of motion to release a cash bond and remands to the trial court for refund of a $250 cash bond. Because Dillman’s bond was posted under I.C. 35-33-8-3.2(a)(1) in 2003, the court was not authorized at that time to retain cash bonds for any purpose. A statutory change in 2006 allowed courts to retain cash bonds for purposes including paying for publicly paid costs of representation, fines, costs, fees or restitution upon conviction.

In Re The Paternity of C.J.A.: G.C. (Mother) v. T.A. (Father)
79A02-1302-JP-137
Juvenile paternity. Reverses portion of trial court’s order that automatically grants father primary custody of minor child if mother failed to move back to Indiana. Finds that order making custody modification automatic violates the state’s child custody modification statute, Indiana Code section 31-14-13-6. Judge Elaine Brown dissents, arguing because the trial court’s order was not a final judgment, the COA did not have jurisdiction over this appeal.

Ruben Rosales v. State of Indiana
48A02-1303-CR-229
Criminal. Affirms conviction for attempted murder, a Class A felony. Rules the trial court’s failure to correctly instruct the jury about accomplice liability was not a fundamental error and the evidence is more than sufficient that Rosales was the principal in an attack that led to the attempted murder charge. Judge Terry Crone dissents arguing the error is fundamental because it is not clear whether the jury convicted Rosales as the principal or as the accomplice.  

Brandon McManomy v. State of Indiana (NFP)
65A01-1302-CR-62
Criminal. Affirms conviction of Class A felony attempted murder.

David D. Darr v. State of Indiana (NFP)
89A04-1307-CR-324
Criminal. Affirms conviction of Class D felony dealing in a sawed-off shotgun.

Daniel Lee Pierce v. State of Indiana (NFP)
78A05-1305-CR-211
Criminal. Reverses conviction on one count of Class A felony child molesting, four counts of Class C felony child molesting, and two counts of Class D felony child molesting, and remands for a new trial. Judge John Baker dissents and would not grant a new trial.

Ventriss R. Hulitt v. State of Indiana (NFP)
45A03-1302-CR-30
Criminal. Affirms conviction of Class A felony child molestation.

In Re: The Marriage of Terri L. Potter and Brent D. Potter: Terri L. Potter v. Brent D. Potter (NFP)
11A01-1304-DR-229
Domestic relation. Affirms denial of mother T.P.’s motion to correct error regarding property division and child support entered in a dissolution of marriage action.

Adam Sullender v. State of Indiana (NFP)
20A05-1308-CR-390
Criminal. Affirms denial of motion to correct erroneous sentence on a conviction of Class C felony battery resulting in serious bodily injury.

Lauren Hurse v. State of Indiana (NFP)
49A02-1307-CR-563
Criminal. Affirms conviction of Class B misdemeanor disorderly conduct.

Nita Trott-Fluty v. State of Indiana (NFP)
82A05-1306-CR-290
Criminal. Affirms conviction of Class D felony and Class A misdemeanor charges of resisting law enforcement and Class B misdemeanor disorderly conduct.

Larry Bobbitt v. State of Indiana (NFP)
71A03-1306-CR-221
Criminal. Affirms conviction of Class B felony burglary, Class D felony possession of marijuana, and the 20-year prison sentence.

Melba Deloris Polk-King v. Lawrence Delorosa King (NFP)
49A05-1305-DR-248
Domestic relation. Affirms in part, reverses in part, and remands for recalculation of child support obligations. Judge John Baker concurs in part and dissents in part and would remand to the trial court for written findings on why it deviated from the child support guidelines.

Clayton Morgan v. State of Indiana (NFP)
48A02-1306-CR-498
Criminal. Affirms revocation of probation.

Nancy Kriel v. Richard Kriel (NFP)
49A04-1304-DR-195
Domestic relation. Affirms trial court denial of Nancy Kriel’s request for an award of incapacity maintenance.

Jeffery Deaton v. State of Indiana (NFP)
79A02-1306-CR-519
Criminal. Affirms conviction and 13-year sentence for Class B felony possession of methamphetamine enhanced by his status as a habitual substance offender.

Laurence F. Myers, Jr. v. State of Indiana (NFP)
45A03-1306-CR-232
Criminal. Affirms 36-month sentence for conviction of Class D felony operating a vehicle as a habitual traffic violator.

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

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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