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Opinions July 27, 201

July 27, 2012
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7th Circuit Court of Appeals
Leonard Lapsley, et al. v. Xtek Inc.
11-3313
U.S. District Court, Northern District of Indiana, Hammond Division. Judge Joseph S. Van Bokkelen.
Civil. Affirms denial of Xtek’s Daubert motion that sought to bar Dr. Gary Hutter from offering his expert opinions, which were essential to Lapsley’s case that a design defect in Xtek’s equipment was the cause of his accident. In this case, the District Court’s stated analysis of the proposed testimony was brief, but it was also directly to the point and was sufficient to trigger deferential review on appeal. The District Court did not misapply Daubert.

The Indiana Supreme Court posted the following decisions Thursday after IL deadline
Indiana Dept. of Revenue v. Miller Brewing Co.

49S10-1203-TA-136
Tax appeal. Reverses Tax Court ruling that Miller owes no tax on certain sales to Indiana consumers, holding that the Tax Court clearly erred in determining that an example of the application of an administrative rule had the force of law.

Douglas Cottingham v. State of Indiana
06S01-1112-CR-703
Criminal. Finds the statutory amendment to Indiana Code 35-38-2.6-6 regarding good time credit for home detention retroactively does not apply to Cottingham. By using “is placed” in the statute, the Legislature intended for the amendment to apply only to people who are placed on home detention on or after the amendment’s effective date.

Robert Smith v. State of Indiana
49S02-1109-CR-529
Criminal. Affirms revocation of probation and placement in a community-corrections program and order Smith serve time in the Department of Correction. Rejects Smith’s argument that his due process right to confrontation in revocation hearings requires confrontation as defined in Crawford. Affirms finding that the state’s Exhibit 1 was substantially trustworthy, so his due process right to confrontation was not violated by its admission.

Indiana Court of Appeals
John Cherry v. State of Indiana
55A01-1112-CR-585
Criminal. Affirms trial court convictions and sentences for Class B felony aiding, inducing or causing dealing in heroin and Class D felony unlawful possession of a syringe, finding the trial court did not abuse its discretion.

Dale Brenon v. The 1st Advantage Corp, d/b/a Omega Insurance Services
93A02-1202-EX-108
Executive administrative/workers’ compensation. Reverses and remands to the Worker’s Compensation Board of Indiana dismissal of Brenon’s application for adjustment of claim. The court held that the decision is not sustainable under the doctrine of collateral estoppel, Wisconsin laws or Supreme Court precedent, and that the board’s decision gave no effect to the reservation of rights clauses contained in settlement agreements.

Phillip L. White v. State of Indiana
18A05-1201-PC-1
Criminal/post-conviction relief. Affirms trial court’s denial of post-conviction relief, holding that White cannot demonstrate that his appellate counsel’s performance was deficient.

Kathleen K. Peterink v. State of Indiana
57A03-1112-CR-586
Criminal. Reverses and remands, finding that the trial court’s sentence exceeded the statutory maximum for a Class A misdemeanor.

Andre Graham v. State of Indiana
10A01-1108-CR-440
Criminal. Affirms convictions of Class A felony dealing in cocaine, Class A felony possession of cocaine, Class B felony dealing in a schedule III controlled substance, and Class D felony possession of a controlled substance, holding that Graham’s constitutional rights were not violated during the traffic stop that resulted in his arrest.

Ronald Davis v. State of Indiana
49A05-1109-CR-459
Criminal. Affirms 245-year aggregate sentence resulting from a guilty plea to four counts of murder, one count of Class B felony conspiracy to commit robbery and one count of Class B felony unlawful possession of a firearm, ruling that the sentence was not inappropriate in light of Davis’s character and the nature of the crime.   

Damon Tyree Johnson v. State of Indiana (NFP)
29A02-1111-CR-1020
Criminal. Affirms conviction of Class B felony robbery.

The Carl Kaetzel Trust U/T/D December 10, 1977, The Roberta Kaetzel Trust U/T/D December 10, 1977 and Carl Kaetzel, Roberta Kaetzel, et al v. Jon Marc Kaetzel and Beverly Kaetzel (NFP)
74A01-1201-PL-36
Civil plenary/rescission of deed and constructive fraud. Affirms trial court determination that the plaintiffs were not entitled to the remedy of rescission and that judgment was properly entered for Jon and Beverly Kaetzel.

In Re the Term. of the Parent-Child Rel. of S.S.; D.S. v. Department of Child Services (NFP)
02A03-1112-JT-592
Juvenile/termination of parental rights. Affirms termination of parental rights.

Joshua A. Willey-Rumback v. State of Indiana (NFP)
48A05-1111-CR-638
Criminal. Affirms conviction of Class B felony robbery and revocation of probation.

Chad A. Jeffries v. State of Indiana (NFP)
73A04-1110-PC-574
Criminal. Affirms conviction of dealing in methamphetamine.

Craig Watts v. Betty (Watts) Lankford (NFP)
42A01-1111-DR-523
Domestic relations/child support. Affirms trial court order for father to pay child support arrearage and mother’s attorney fees.

Anthony Ramirez v. State of Indiana (NFP)
41A04-1109-CR-475
Criminal. Affirms conviction of battery with a deadly weapon and residential entry.
 
Michael S. Dornbusch v. State of Indiana (NFP)
87A01-1112-CR-604
Criminal. Affirms convictions of four counts of Class B felony burglary and a count of Class D felony attempted residential entry.
 
Tarrance Battle v. State of Indiana (NFP)
49A02-1110-CR-946
Criminal. Affirms sentence for Class A felony possession of cocaine.
 
The Indiana Tax Court posted no opinions prior to IL deadline
 
 

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  1. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

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