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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 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...

  2. 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

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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