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Opinions July 28, 2010

July 28, 2010
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7th Circuit Court of Appeals
United States of America v. Jamarkus Gorman
09-3010
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Criminal. Affirms conviction of perjury after testifying falsely before a grand jury. There is ample evidence to support the finding Gorman perjured himself with regard to the possession of a Bentley. The evidence was properly admitted, albeit as direct evidence rather than inextricable intertwinement evidence, and its probative value was not substantially outweighed by any risk of unfair prejudice.  

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Adoption of H.L.W. Jr.; H.L.W. Sr. and IDCS v. L.M.D. and D.P.D.
71A03-0911-CV-516
Civil. Reverses grant of an adoption petition filed by L.M.D. and D.P.D. regarding H.L.W. Jr. The consent statutes of Indiana Code Chapter 31-19-9 enabled the trial court to consider the adoption proceeding despite the pending CHINS action. DCS met its burden of demonstrating by clear and convincing evidence that its withholding of consent to the adoption was in the child’s best interests.

Nelson Rios v. State of Indiana
49A02-0912-CR-1273
Criminal. Reverses order that Rios serve consecutive sentences for convictions of two counts of dealing in a lookalike substance as Class C felonies. The imposition of consecutive sentences based on incidents that were virtually identical and very close in time contravenes rulings in Beno and Gregory. Remands for a new sentencing determination.

Putnam County Sheriff v. Pamela Rice
60A01-0911-CV-551
Civil. Affirms order denying the sheriff’s motion to dismiss filed in the civil action brought by Price for damages resulting from a car accident. The sheriff, through its agent Deputy Wallace, owed a common law duty of ordinary and reasonable care to warn the traveling public of the known hazardous condition on the icy road.

Paul Komyatti, Jr. v. State of Indiana
52A04-1002-MI-74
Miscellaneous. Affirms denial of petition for post-conviction relief that challenged the revocation of Komyatti’s parole. There are no genuine questions of fact with respect to Komyatti’s PCR petition and the state was entitled to judgment as a matter of law.

James Townsend v. State of Indiana (NFP)
49A04-0912-CR-703
Criminal. Affirms conviction of and sentence for murder.

Gerardo Bensez v. State of Indiana (NFP)
03A01-0912-CR-611
Criminal. Dismisses appeal of conviction following guilty plea to Class B felony dealing in cocaine.

Marlinda Nunley v. State of Indiana (NFP)
48A02-0912-CR-1177
Criminal. Affirms finding Nunley violated the terms of her probation and that she serve two years of her previously suspended sentence in the Department of Correction.

Thomas Eugene Ferrell v. State of Indiana (NFP)
46A03-0910-CR-471
Criminal. Affirms conviction of and sentence for Class B felony dealing in cocaine.

In The Guardianship of John Joseph Bortka, II (NFP)
88A01-0907-CV-343
Civil. Affirms order that John Jerald Bortka, former guardian of John Joseph Bortka and his estate, reimburse the guardianship estate in the amount of $12,034 and award of attorney fees to Paula Bortka Wells. Remands with instructions to calculate the amount of appellate costs Paula is entitled to from John Jerald Bortka.

Jeremy Culp v. State of Indiana (NFP)
49A02-1001-CR-11
Criminal. Affirms conviction of Class D felony theft.

Bruce Hatfield, et al. v. Area Plan Commission of Evansville (NFP)
82A01-0910-CV-502
Civil. Reverses trial court’s decision limiting Hatfield and others’ damages for an alleged taking.

Term. of Parent-Child Rel. of T.H.C.; T.C. & C.P. v. I.D.C.S. (NFP)
71A04-1001-JT-104
Juvenile. Affirms termination of parental rights.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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