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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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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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