Opinions July 9, 2010

July 9, 2010
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The following opinion was issued after Thursday’s IL deadline.

Indiana Supreme Court
Steven W. Everling v. State of Indiana
Criminal. Reverses and remands for a new trial following jury’s finding of Everling to be guilty of three counts of child molesting and two counts of sexual misconduct with a minor. While Everling raised several issues for a reversal, the Supreme Court addressed only whether the judge’s conduct during the trial deprived Everling of a fair trial. Concludes the court’s overall conduct evidenced partiality.

Today’s Opinions
7th Circuit Court of Appeals
Freddie L. Byers Jr. v. James Basinger, Superintendent of the Wabash Valley Correctional Facility

U.S. District Court, Northern District of Indiana, South Bend Division. Judge Allen Sharp
Civil. Affirms District Court's denial of Byers' habeas petition. After a jury found Byers guilty of murder, attempted murder and robbery, the Indiana Supreme Court affirmed on direct appeal. The Indiana Court of Appeals denied his petition for post-conviction relief, and the Indiana Supreme Court denied transfer. The District Court later denied Byers’ habeas petition, in which Byers argued that his trial counsel performed deficiently. The 7th Circuit granted Byers a certificate of appealability on the question whether he had been denied effective assistance of counsel. The 7th Circuit affirmed the district court’s denial because, even if Byers successfully exhausted his claim, it lacks merit.

Today's opinions
The Indiana Supreme Court posted no opinions before IL deadline.

Indiana Court of Appeals
Daniel C. Reinhart v. State of Indiana
Criminal. Reverses Reinhart’s convictions of Class D felony operating a vehicle while intoxicated and Class A misdemeanor possession of marijuana. The sole issue presented for review was whether trial court abused its discretion when it admitted evidence obtained following a traffic stop of Reinhart’s vehicle. Reinhart asserted police violated his Fourth Amendment right to be free from unreasonable search and seizure.
Allen A. Halferty v. State of Indiana
Criminal. Affirms Halferty’s conviction of maintaining a common nuisance by dealing methamphetamine. Reverses his conviction of Class A felony dealing in methamphetamine and remands with instructions to enter a conviction for Class B felony dealing in methamphetamine due to evidence regarding the amount of the drug. Also instructs trial court to revise Halferty’s sentence to reflect the change from Class A felony to Class B felony.
Charles Taylor v. State of Indiana
Post-conviction. Affirms post-conviction court’s denial of Taylor’s petition for post-conviction relief. After he initiated a direct appeal of his three convictions of Class B felony unlawful possession of a firearm by a serious violent felon, the Court of Appeals had granted Taylor a Davis/Hatton petition, which involves a termination or suspension of a direct appeal already initiated, upon appellate counsel’s motion for remand or stay, to allow a post-conviction relief petition to be pursued in the trial court. Court of Appeals concludes Taylor’s trial counsel did not provide ineffective assistance by failing to object to the admission of the weapons and that his convictions do not violate Indiana’s prohibition against double jeopardy.
Ben Gill v. State of Indiana (NFP)
Criminal. Affirms convictions of and sentences for intimidation and battery following a guilty plea without a written plea agreement.

Mark A. Shepard v. State of Indiana (NFP)
Criminal. Affirms conviction of battery.
Robert Townsend v. State of Indiana (NFP)
Criminal. Affirms classification as a Sexually Violent Predator.

Donald J. Zellers v. Sharon Zellers (NFP)
Civil. Affirms trial court’s distribution of marital property following divorce.
Kirby D. Oliver v. State of Indiana (NFP)
Criminal. Affirms trial court’s denial of Oliver’s motion requesting placement in community corrections following a guilty plea to murder.

The Indiana Tax Court posted no opinions before IL deadline.


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  1. What Mr. Bir is paying is actually Undifferentiated Family Support, which is a mixture of child support and spousal maintenance. If the courts had labeled accurately labeled the transfer payment, I think that Mr. Bir would have fewer objections to paying it because both Spousal Maintenance and Undifferentiated Family Support are tax deductions for the paying party and taxable to the receiving party. I brought this issue up with my family court judge when my voluntarily unemployed ex-wife was using the 'child support' transfer payment to support both herself and out children. Said family court judge stated that I did not know what I was talking about because I did not have a Juris Doctorate, despite my having a printout with dictionary definitions of the legal terms that I was using for documentation.

  2. Lori, you must really love wedding cake stories like this one ... happy enuf ending for you?

  3. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  4. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  5. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?