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Opinions July 18, 2011

July 18, 2011
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Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
David Delagrange v. State of Indiana
49A02-1010-CR-1086
Criminal. Affirms partial denial of motion to dismiss. The state has alleged that Delagrange knowingly or intentionally attempted to create an image of sexual conduct, which is a sufficient statement of Delagrange’s mental state to survive a motion to dismiss. Remands for further proceedings. Judge Baker dissents.

Nathan D. Hawkins v. State of Indiana

79A02-1101-CR-100
Criminal. Affirms denial of Hawkins' sentence modification. The 365-day period during which the trial court has sole discretion to grant a modification began when Hawkins was originally sentenced, not when he was re-sentenced after appeal. Because his motion was filed outside of the one-year period and the prosecutor didn’t consent to a modification, the modification is properly denied. Chief Judge Robb dissents with separate opinion.

Donald Troutner v. State of Indiana
91A04-1012-CR-796
Criminal. Reverses conviction of Class A misdemeanor battery and concurrent sentence because the state presented the same evidence to also support Troutner’s conviction of Class B felony robbery. The trial court erred when it limited the testimony of Troutner’s niece, but it was a harmless error, so the robbery conviction is affirmed.

BP Products North America, et al. v. Indiana Office of Utility Consumer Counselor, et al.

93A02-0905-EX-490
Agency action. On rehearing, reverses the Indiana Utility Regulatory Commission’s decision that BP Products was not a public utility with respect to the furnishing by it of natural gas it purchased from the Northern Indiana Public Service Co. to Marsulex. The COA declared this issue to be moot as a result of the resolution of other issues on appeal, which was an incorrect conclusion. Remands for further proceedings and affirms original decision in all other matters.  

Donald Glorioso v. Carla Glorioso (NFP)
64A03-1012-DR-620
Domestic relation. Affirms finding Donald Glorioso in contempt of court in a dissolution matter.

Gregory D. Harris v. State of Indiana (NFP)
49A04-1012-CR-787
Criminal. Affirms revocation of placement on home detention.

Vincent B. Hunter, Jr. v. State of Indiana (NFP)
71A04-1012-CR-788
Criminal. Affirms convictions of Class B felony burglary and Class D felony animal cruelty.

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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