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Opinions July 31, 2013

July 31, 2013
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The following 7th Circuit and Indiana Supreme Court opinions were released Tuesday after IL deadline:
7th Circuit Court of Appeals

United States of America v. Michael L. Brock
11-3473
Criminal. Vacates mandatory minimum 15-year sentence for violation of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), for conviction of possession of machineguns. Remands to the U.S. District Court for the Southern District of Indiana for resentencing. The 7th Circuit held that a 7th Circuit decision earlier this year, United States v. Miller, concluded that possession of a sawed-off shotgun was not a violent felony under ACCA and applied the ruling to Brock’s case, holding that he did not qualify for an enhanced sentence the act imposes for violent felonies.  

Indiana Supreme Court
Ann L. Miller and Richard A. Miller v. Glenn L. Dobbs, D.O. and Partners in Health
15S05-1302-CT-91
Civil Tort. Reverses trial court’s grant of summary judgment in favor of the defendants’ and remand for further proceedings. Concludes even though the Millers’ attorney sent a check for filing and processing fees after he had filed the complaint, the document was still timely filed. Finds nothing in the Indiana Code that requires fees be submitted before the complaint is considered filed.

Today’s Opinions
7th Circuit Court of Appeals
Sikiru Adeyeye v. Heartland Sweeteners, LLC
12-3820
Civil/Religious discrimination. Reverses summary judgment in favor of Heartland and remands to the District Court for proceedings, holding that a material issue of fact exists as to whether Sikiru Adeyeye’s rights under Title VII were violated when he was fired after taking time off work to attend his father’s burial rights in Nigeria.  

United States of America v. Terry L. Sabo
12-2700
Criminal. Affirms denial of motion to suppress evidence that resulted in his plea of guilty to charges of possession with the intent to distribute a controlled substance, possession of a firearm in the furtherance of a drug trafficking crime, and being a convicted felon in possession of a firearm. The court held that Sabo’s action of stepping aside in his trailer after authorities asked if they could come inside implied consent for a search.


Bernard Hawkins v. United States of America
11-1245
Criminal. Denies petition for rehearing en banc of a petition for resentencing, holding in a 5-4 opinion that a recent 5-4 U.S. Supreme Court ruling in Peugh v. United States, 133 S.Ct. 2707 (2013), did not apply. Peugh held that the ex post facto clause prevents courts from sentencing a defendant based on guidelines promulgated after the commission of a crime if the newer guidelines would result in a sentencing range higher than those in place when a crime was committed. Dissenting judges held that Peugh applies to Hawkins’ case because his sentencing error was a miscarriage of justice that can be petitioned for relief in federal post-conviction proceedings.  


Indiana Court of Appeals
Michael E. Lyons, Ind; Denita L. Lyons, Ind.; Michael E. Lyons and Denita L. Lyons, as Co-personal Rep. of the Estate of Megan Renee Lyons, Deceased v. Richmond Community School Corp.Et Al.
89A04-1204-PL-159
Civil plenary. Clarifies and remands to the trial court for a jury determination on whether, in the exercise of ordinary diligence, Appellants/Plaintiffs Michael and Denita Lyons could have learned of the school corporation’s alleged ‘tortious acts’ prior to July 15, 2009, which was 180 days before the Lyonses filed notice of their claim regarding their daughter’s death.

Bruce Ryan v. State of Indiana

49A02-1211-CR-932
Criminal. Reverses Ryan’s two convictions for Class C felony sexual misconduct with a minor and remands for a new trial. Finds the cumulative effect of the prosecutor’s statements during closing arguments deprived Ryan of a fair trial.  

Don H. Dumont, M.D., v Penny Davis and Nicole Anderson, as Co-Administratrixes of the Estate of Charmitta Jordan, Deceased
45A05-1207-CT-384
Civil tort. Reverses trial court’s order granting Davis and Anderson a new trial in the wrongful death action against Dumont. Finds that the dispute over the testimony given by two expert witnesses is not sufficient grounds to grant a new trial.  

Seth A. Miller v. State of Indiana

63A01-1210-CR-475
Criminal. Affirms in part and reverses in part the judgment of the trial court. Finds the evidence fails to establish the necessary element of an enterprise within the meaning of the statute. Overturns the conviction for corrupt business influence and vacates the sentence of eight years.   

In the Matter of the Involuntary Term. of the Parent-Child Rel. of M.N., Minor Child and his Father, M.D.N. v. Indiana Department of Chiild Services (NFP)
79A02-1301-JT-21
Juvenile. Affirms the juvenile court’s order terminating father’s parental rights to his son, M.N.  

Abdul G. Buridi v. RL BB Financial, LLC (NFP)

10A01-1212-MF-580
Mortgage foreclosure. Affirms denial of Buridi’s motion asking that the summary judgment be set aside because of newly discovered evidence.

Daniel R. Clemans v. State of Indiana (NFP)
29A02-1302-CR-289
Criminal. Affirms conviction of operating a motor vehicle while driving privileges are suspended due to being a habitual traffic violator, a Class D felony.

James W. Baker, Jr. v. State of Indiana (NFP)

03A01-1302-CR-49
Criminal. Affirms sentence for two courts of burglary as Class C felonies. Finds trial court did not abuse its discretion in sentencing Baker to eight years on each of the two counts, all executed, to be served concurrently with each other but consecutively with Baker’s sentences in two other separate cases.

Joshua A. Yenna v. State of Indiana (NFP)
02A03-1211-CR-499
Criminal. Affirms conviction for Class D felony battery.

 In the Matter of the Paternity of C.B., A.B. v. R.B. (NFP)
54A01-1211-JP-495
Juvenile Paternity. Affirms in part and reverses in part the judgment of the trial court. Concludes the trial court’s decisions regarding the calculation of child support were well-supported by its findings and by the evidence. However, finds the trial court erred by granting R.B.’s request to change C.B.’s name because he did not include this request in his written petition to establish paternity.

The Indiana Supreme Court and Tax Court released no opinions prior to IL deadline.
 

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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