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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. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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