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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
48S05-0911-CR-506
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

09-1833
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
57A03-1002-CR-84
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
20A03-0910-CR-475
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
71A04-1001-PC-6
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)
49A05-0912-CR-734
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)
49A02-0912-CR-1244
Criminal. Affirms conviction of battery.
 
Robert Townsend v. State of Indiana (NFP)
49A02-0911-CR-1120
Criminal. Affirms classification as a Sexually Violent Predator.

Donald J. Zellers v. Sharon Zellers (NFP)
43A03-0909-CV-433
Civil. Affirms trial court’s distribution of marital property following divorce.
 
Kirby D. Oliver v. State of Indiana (NFP)
45A03-1002-CR-53
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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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