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Opinions July 18, 2013

July 18, 2013
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Indiana Supreme Court
In Re the Guardianship of A.J.A. and L.M.A., Minor Children; J.C. v. J.B. and S.B.
48S02-1305-GU-398
Guardianship. Holds the trial court correctly vacated its original order granting grandparent visitation. The Grandparent Visitation Statute does not provide a means by which the paternal grandmother in this case may seek visitation when her son has murdered the mother of her two grandchildren.

Indiana Court of Appeals
James Denning v. State of Indiana
49A05-1208-CR-394
Criminal. Affirms conviction of Class A felony attempted robbery and finding Denning is a habitual offender. COA rules it has jurisdiction over the appeal because Denning is appealing a final order, as he was not subject to a pending restitution order. His victim’s testimony was not incredibly dubious and the trial court was not obliged to enter a conviction of a lesser-included offense.

Frederick Herron v. State of Indiana
34A02-1203-CR-224
Criminal. Affirms convictions of two counts of Class A felony dealing in cocaine, one count of Class B felony dealing in cocaine and the finding that Herron is a habitual offender. Because the police officers had probable cause to believe Herron was delivering cocaine, his arrest on being removed from the car was permissible. The trial court therefore did not abuse its discretion in admitting evidence seized from that point forward.

Auditor of Owen County and Treasurer of Owen County v. Asset Recovery, Inc.
60A01-1212-MI-592
Miscellaneous. Reverses order granting Asset Recovery’s verified petition and claim for surplus after tax sale. Asset Recovery is limited in the amount it can receive from the surplus under I.C. 6-1.1-24-7.5(b)(1).

Christopher Halterman v. Adams County Board of Commissioners, Adams County Sheriff, Charles Padgett, Adams County Sheriff's Dept. and Adams County Jail
01A04-1211-CT-558
Civil tort. Affirms summary judgment for sheriff Charles Padgett on Halterman’s lawsuit alleging negligence in the treatment of his abscess. The trial court did not abuse its discretion when it denied Halterman’s motion to strike the affidavit of Dr. House, and Padgett was entitled to summary judgment because Halterman could not show any action or lack thereof by Padgett caused Halterman’s injury.

Marco Puente v. Stark Leasing Company, Inc. (NFP)
49A02-1211-PL-940
Civil plenary. Affirms judgment entered against Puente but reverses award of attorney fees to Stark Leasing Co. Remands for the trial court to hold a hearing on the issue of attorney fees incurred through the trial in this case, not exceeding the $1,800 originally awarded.

Troy Thurman v. State of Indiana (NFP)
22A04-1208-CR-438
Criminal. Reverses trial court refusal to award credit for time served and good time credit. Remands with instructions to modify the time remaining on Thurman’s sentence.

Clint Bradley a/k/a Sam Jones v. State of Indiana (NFP)
18A02-1209-CR-760
Criminal. Affirms denial of Bradley’s motion to withdraw his guilty pleas to counts of Class B felony dealing in cocaine and unlawful possession of a firearm by a serious violent felon.

Jeremiah Walls v. State of Indiana (NFP)
55A01-1212-CR-581
Criminal. Affirms trial court’s determination that the state did not violate the 14th Amendment by striking a prospective juror and affirms the trial court’s refusal to give Walls’ tendered jury instruction.

Todd D. Kelly v. State of Indiana (NFP)
41A01-1212-CR-565
Criminal. Affirms conviction of Class A misdemeanor intimidation.

Bruce Johnson-El v. State of Indiana (NFP)
09A02-1302-CR-177
Criminal. Dismisses appeal of denial of petition for additional credit time.

Kasiim Weaver v. State of Indiana (NFP)
45A05-1211-CR-564
Criminal. Affirms 34-year sentence for Class A felony voluntary manslaughter.

John D. Rogers v. State of Indiana (NFP)
10A04-1211-CR-592
Criminal. Affirms denial of motion for specific performance of a plea agreement.

In the Matter of the Paternity of: L.M.D. (Minor Child) D.H. v. A.D. (NFP)
01A02-1301-JP-31
Juvenile. Reverses denial of father’s petition to change the last name of his daughter to match his own. Remands with instructions to grant the petition.

James F. Noel v. State of Indiana (NFP)
49A02-1212-CR-1005
Criminal. Affirms conviction of Class A felony attempted murder.

The Indiana Tax Court posted no decisions by IL deadline. The 7th Circuit Court of Appeals posted no Indiana decisions 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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