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Opinions July 13, 2010

July 13, 2010
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Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals

Michael Akens v. State of Indiana
49A05-0912-CR-687
Criminal. Affirms sentence imposed following guilty plea to child molesting. The trial court’s statement that Akens could appeal his sentence wasn’t made until after the court had accepted the plea agreement and entered Akens’ sentence. The agreement included his express waiver of his right to appeal his sentence.

Deborah Edwards v. State of Indiana
49A02-0911-CR-1093
Criminal. Reverses conviction of Class D felony criminal recklessness. Evidence of a defendant’s absence from a crime scene is not an “alibi” defense. It is a rebuttal of the prosecution’s contention the defendant was present and thus capable of committing the crime. Remands for a new trial.

Randy Allen Long v. State of Indiana (NFP)
79A02-0909-CR-903
Criminal. Affirms convictions of Class D felony possession of marijuana and Class A misdemeanor possession of paraphernalia.

John C. Cole, Jr. v. Patrick V. Baker (NFP)
49A02-0910-CV-960
Civil. Reverses summary judgment for attorney Patrick Baker after he refused to return money Cole paid him as a retainer.

A.E. v. State of Indiana (NFP)
49A04-1001-JV-17
Juvenile. Affirms adjudication for committing what would be Class B and Class C felony child molesting if committed by an adult.

Ronald Wright v. State of Indiana (NFP)
46A03-0912-CR-594
Criminal. Affirms denial of motion to correct erroneous sentence.

Douglas K. Huffnagel v. Christopher F. Cline (NFP)
20A05-0911-CV-662
Civil. Affirms grant of Cline’s motion for a directed verdict in favor of Cline on Huffnagel’s claims for negligence and injuries following an automobile accident.

Timothy Charles Wakefield v. State of Indiana (NFP)
48A04-0911-CR-647
Criminal. Remands case for a sentencing statement that clearly explains its finding of aggravating and mitigating circumstances and its reasons for imposing consecutive sentences following guilty plea to Class D felonies criminal recklessness, maintaining a common nuisance, dealing in marijuana, and possession of a controlled substance.

William D. Baxter v. State of Indiana (NFP)
49A02-0908-PC-724
Post conviction. Reverses denial of petition for post-conviction relief.

Otis A. Tate, Jr. v. State of Indiana (NFP)
71A04-1003-CR-138
Criminal. Affirms conviction of Class C felony forgery.

William Kerr v. State of Indiana (NFP)
49A05-0911-CR-639
Criminal. Affirms conviction of operating a vehicle while intoxicated as a Class A misdemeanor.

D.C.B. Alleged to be C.H.I.N.S.; P.B. and Da.B. v. Marion County DCS and Child Advocates (NFP)
49A02-0912-JV-1204
Juvenile. Affirms finding D.C.B. is a child in need of services.

Term. of Parent-Child Rel. of K.I. and R.I.; K.K. and C.I. v. IDCS (NFP)
20A03-0912-JV-562
Juvenile. Affirms termination of parental rights.

Andy Zulu v. State of Indiana (NFP)
49A02-0911-CR-1113
Criminal. Affirms convictions of and sentences for Class B felonies rape, and criminal deviate conduct.

Donald Johnston, et al. v. Carl W. Johnston, et al. (NFP)
43A03-0912-CV-568
Civil. Affirms the trial court’s judgment and order for distribution of sale proceeds.

James Gilman v. State of Indiana (NFP)
48A05-0908-PC-462
Post conviction. Affirms denial of petition for post-conviction relief and remands with instructions to enter an amended sentencing order.

Kenneth McClung v. State of Indiana (NFP)
49A02-0912-CR-1275
Criminal. Affirms conviction of Class B felony aggravated battery.

V.B. v. Review Board of the Indiana Dept. of Workforce Development and Daimler Chrysler Co. LLC (NFP)
93A02-0911-EX-1140
Civil. Affirms dismissal of V.B.’s appeal of a determination that she was not eligible for benefits.

Lewis Vasquez v. State of Indiana (NFP)
27A02-1002-CR-135
Criminal. Reverses sentence following guilty plea to Class B felonies criminal confinement and burglary while armed with a deadly weapon. Remands for re-sentencing.

John B. Felder v. State of Indiana (NFP)
48A02-0902-CV-156
Civil. Affirms judgment in favor of the state and Department of Correction employees in Felder’s complaint regarding events that allegedly occurred while he was at Pendleton Correctional Facility.

Indiana Tax Court had posted no opinions at 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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