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Opinions June 14, 2011

June 14, 2011
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Indiana Supreme Court
Alva Curtis v. State of Indiana
49S02-1010-CR-620
Criminal. Reverses denial of Curtis’ motion to dismiss. The trial court should have granted Curtis’ motion to dismiss and discharge because the days that counted toward the Rule 4(C) period exceeded 365. Curtis is not entitled to dismissal on fundamental-fairness grounds because he has not been involuntarily committed and there hasn’t been an appropriate finding that he will never be restored to competency. Remands with instructions to dismiss the charging information.

Douglas Denzell v. State of Indiana
49S02-1106-CR-340
Criminal. Affirms denial of Denzell’s motion to dismiss. Denzell does not have a viable fundamental-fairness argument.

Indiana Court of Appeals
Elmos Jewell v. City of Indianapolis
49A02-1010-OV-1228
Local ordinance violation. Affirms finding Jewell violated Section 531-728 of the Revised Code of the Consolidated City and Marion County concerning animal care and other animal matters. The failure to mention this section in the agreed judgment in a previous violation case did not indicate that the city waived enforcement of that provision.  

T.L. v. J.L.
54A01-1008-DR-386
Domestic relation. Affirms grant of father J.L.’s motion to prevent mother T.L. from relocating to Tennessee with their minor sons. Mother has shown good faith and legitimate reasons for proposing the relocation, but the trial court didn’t err in concluding that the relocation wasn’t in the children’s best interests.

State of Indiana v. Robert Rhodes
49A05-1012-CR-818
Criminal. Affirms grant of Rhodes' motion to suppress after he was charged with operating while intoxicated. The state failed to show that compliance with the statute regarding turn signaling was possible under the circumstances and Rhodes was not properly stopped for a traffic violation. The trial court did not err by determining that the officer lacked reasonable suspicion to stop Rhodes.

Richard D. Williams v. State of Indiana (NFP)

87A05-1101-CR-42
Criminal. Affirms sentence following guilty plea to Class C felony forgery, Class D felony fraud, and Class D felony receiving stolen property.

B.B. v. State of Indiana (NFP)
71A05-1012-JV-791
Juvenile. Affirms modification of order awarding wardship of B.B. to the Indiana Department of Correction.

Karen Vanderbosch v. Thomas Vanderbosch (NFP)
02A03-1007-DR-357
Domestic relation. Reverses order finding that Thomas Vanderbosch overpaid child support, giving him a credit for that overpayment; and finding that one of his children repudiated his relationship with Thomas and thereby eliminated Thomas’ obligation to contribute to post-secondary educational expenses. Remands for further proceedings.

James D. Bailey, Jr. v. State of Indiana (NFP)
45A05-1006-CR-337
Criminal. Affirms conviction of felony murder in perpetration of a robbery.

Purnell L. Moore v. State of Indiana (NFP)
54A01-1011-CR-593
Criminal. Affirms order directing Moore serve the remaining four years of his suspended sentence following the revocation of his probation.

Elizabeth Noll v. State of Indiana (NFP)
29A04-1010-CR-651
Criminal. Affirms conviction of intimidation as a Class A misdemeanor.

James D. Douglas v. State of Indiana (NFP)
73A01-1010-CR-586
Criminal. Affirms revocation of probation and order that Douglas serve one year of his remaining sentence in prison.

David Marsee v. State of Indiana (NFP)
17A03-1010-CR-520
Criminal. Affirms conviction of dealing in methamphetamine as a Class A felony.

Mark Rector Bryan v. Tammy A. Bryan (NFP)

82A01-1008-DR-416
Domestic relation. Affirms calculation of child support obligation of Mark Bryan.

Superior Mortgage Funding, LLC, Jeremie Sheneman, Michael Sheneman and Andrew Beam v. Gladys Zoleko and Paul Davies (NFP)
71A05-1007-PL-432
Civil plenary. Affirms denial of Michael and Jeremie Sheneman’s motion to set aside judgment enforcing their settlement agreement with Gladys Zoleko and Paul Davies. Affirms denial of Michael’s motion to disqualify the plaintiffs’ counsel.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  2. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: http://media.star-telegram.com/Munchausenmoms/ Here are the two research papers: http://www.sciencedirect.com/science/article/pii/0145213487900810 http://www.sciencedirect.com/science/article/pii/S0145213403000309 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

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  4. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  5. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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