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Opinions July 24, 2012

July 24, 2012
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7th Circuit Court of Appeals
Jeffrey D. Kirkland v. United States of America
11-2507
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Jon E. DeGuilio.
Civil. Reverses District Court’s conclusion that an enhancement of Kirkland’s sentence under the Armed Criminal Career Act was still appropriate based on his remaining three convictions for violent felonies. Court may only consider Shepard-approved sources in determining whether prior offenses occurred on separate occasions under 18 U.S.C. Section 924(e)(1). Based on the record, the appellate court can’t conclude that Kirkland’s robbery and burglary offenses – which were on the same day – occurred on separate occasions. Remands for resentencing.

Indiana Supreme Court and Tax Court posted no opinions at IL deadline.

Indiana Court of Appeals

Kelvin T. Brown v. Indianapolis Housing Agency
49A05-1111-CT-648
Civil tort. Affirms summary judgment for IHA on Brown’s lawsuit for malicious prosecution and intentional infliction of emotional distress. The IHA had a qualified privilege to report Brown’s suspected criminal conduct. The evidence does not show that the privilege was abused, and the privilege bars his claims.

Keith Crawford v. State of Indiana (NFP)
49A04-1112-CR-648
Criminal. Affirms sentence for Class A felony dealing in cocaine.

Evonne Carrillo v. Review Board of the Ind. Dept. of Workforce Development and Skozen & Skozen, LLP (NFP)
93A02-1108-EX-794
Agency appeal. Affirms the review board’s decision that Carrillo was discharged from her job for just cause was reasonable.

Latine Davidson v. State of Indiana (NFP)
10A04-1112-PC-695
Post conviction. Affirms denial of petition for post-conviction relief.

Roy L. Streicher v. State of Indiana (NFP)
69A05-1111-CR-603
Criminal. Remands with instructions to vacate the Class C misdemeanor operating a vehicle while intoxicated conviction, and affirms sentence for Class D felony operating a vehicle while intoxicated with a previous operating while intoxicated conviction within the last five years and Class A misdemeanor domestic battery with injury.

Asa G. Wisler v. State of Indiana (NFP)
27A05-1109-CR-492
Criminal. Affirms conviction of Class C misdemeanor operating a vehicle with an ACE of 0.08 or more.

Alan Weir v. State of Indiana (NFP)
49A04-1201-CR-22
Criminal. Affirms trial court order Weir serve the balance of his home detention sentence and his previously suspended 2-year sentence in the Department of Correction.

Larry Edward Ruble, Jr., Individually and as Administrator of the Estate of Natasha Ruble, Deceased v. Lori Thompson, M.D. (NFP)
53A05-1109-CT-488
Civil tort. Affirms judgment on a defense verdict in a medical malpractice action.

Jordan Guess v. State of Indiana (NFP)
84A01-1112-CR-620
Criminal. Affirms denial of motion for jail time credit.

John W. Breedlove v. State of Indiana (NFP)
09A02-1111-CR-1116
Criminal. Affirms sentence for Class B felony dealing in methamphetamine.

Justin Holman v. State of Indiana (NFP)
49A02-1112-CR-1138
Criminal. Affirms convictions of two counts of Class B felony robbery and one count of Class A misdemeanor carrying a handgun without a license.

Jeffrey Scott Brooks v. State of Indiana (NFP)
48A02-1111-CR-1095
Criminal. Affirms admittance of hearsay testimony at an evidentiary hearing on a probation violation.

Timothy L. Gabbard v. State of Indiana (NFP)
34A02-1112-CR-1174
Criminal. Affirms sentence imposed following guilty plea to receiving stolen property and admitting to violating probation for the third time.

Chanda Banner v. Charles Kincaid (NFP)
82A05-1202-DR-93
Domestic relation. Affirms determination of Kincaid’s child support arrearage.

Dwayne Gaines v. State of Indiana (NFP)
49A02-1201-CR-12
Criminal. Reverses conviction of Class C misdemeanor indecent exposure and remands with instructions to vacate. Affirms conviction of Class D felony criminal confinement.
 

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  1. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  5. 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

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