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Opinions June 25, 2013

June 25, 2013
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Indiana Supreme Court
Loren Hamilton Fry v. State of Indiana
09S00-1205-CR-361
Criminal. Affirms denial of bail for Fry, who is charged with murder. Holds that when a defendant charged with murder or treason seeks bail, the burden is on the state, if it seeks to deny bail, to show by a preponderance of the evidence that the proof is evident or the presumption strong. Chief Justice Dickson concurs to which Justice Rush joins; Rush concurs; Justice Massa concurs in result and dissents with separate opinion; and Justice Rucker dissents with separate opinion in which Massa concurs.

Erving Sanders v. State of Indiana
49S02-1304-CR-242
Criminal. Affirms denial of motion to suppress evidence obtained following a traffic stop. Proof of compliance with the Window Tint Statute relieves the defendant of any liability for a window tint violation, but it does not serve to vitiate the legality of the traffic stop. The evidence was obtained as a result of a fully justified and legal search.

Barbara A. Johnson and William T. Johnson, Both Individually and as Trustees of the Barbara A. Johnson Living Trust Dated 12-17-1996 v. Joseph Wysocki and M. Carmen Wysocki
45S04-1211-CT-634
Civil tort. Reverses summary judgment in favor of the Wysockis and remands to the trial court for proceedings, holding the trial court erred in determining that defects in a home “should have been obvious to sellers,” a legal standard lower than “actual knowledge.” The court also held that Indiana Disclosure Statutes abrogate the common law principle of caveat emptor for the real estate transactions to which they apply. Justice Robert Rucker concurred with the holdings but would affirm the summary judgment and damages of $13,805.95 for the Wysockis because the record was sufficient to support the outcome.  

Indiana Court of Appeals
Elnesto Ray Valle v. State of Indiana
27A02-1209-CR-772
Criminal. Affirms conviction of Class C felony inmate fraud. The evidence shows that Valle obtained a future interest in the bail money as well as his release from prison, both of which constitute property under Indiana Code 35-31.5-2-253(a). Affirms 16-year aggregate sentence.

George Cole v. State of Indiana
29A02-1301-CR-4
Criminal. Affirms denial of petition for permission to file a belated notice of appeal following Cole’s 1963 murder conviction and life sentence. The trial court did not abuse its discretion by concluding he was not diligent in pursuing permission to file a belated notice of appeal.

Daniel J. Hollen v. State of Indiana
62A04-1211-MI-636
Miscellaneous. Affirms denial of “petition to remove registration act, sexual violent predator status, and global positioning satellite” filed by Hollen. Concludes the Sex Offender Registration Act is non-punitive and is not ex post facto when applied to Hollen.

Timmy T. Zieman v. State of Indiana
45A03-1301-PC-1
Post conviction. Reverses denial of petition for post-conviction relief as the court clearly erred in finding trial counsel did not provide ineffective assistance. Remands with instructions for the court to reduce Zieman’s Class C felony conviction of resisting law enforcement resulting in serious bodily injury to a Class D felony conviction and sentence him to 18 months on that count, for an aggregate sentence of 33 ½ years.

Gerry Scheub, and the Lake County Drainage Board v. Van Kalker Family Limited Partnership, Lake County Trust Company as Trustee of Trust No. 5240 and Singleton Stone, LLC
37A03-1210-PL-453
Civil plenary. Affirms declaratory judgment in favor of the appellees-plaintiffs Van Kalker Family Limited Partnership, Lake County Trust Co as Trustee of Trust No. 5240 and Singleton Stone. The trial court properly denied Scheub’s and the drainage board’s motion to dismiss for lack of subject matter jurisdiction because the trial court acquired subject matter jurisdiction because the exhaustion of administrative remedies was excused.

Cornelious Elliott v. State of Indiana (NFP)
48A02-1212-CR-1006
Criminal. Affirms finding Elliott violated the terms of his probation.

Ryan Byfield v. State of Indiana (NFP)
29A02-1210-CR-780
Criminal. Affirms convictions of three counts of Class B felony criminal deviate conduct, finding Byfield is a habitual offender and 50-year aggregate sentence. Remands for limited purpose of correcting an error in the abstract of judgment.

Shawn Anthony Craft v. State of Indiana (NFP)
45A03-1211-CR-458
Criminal. Affirms conviction of Class B felony burglary.

Daniel M. Sulkoske v. Statewide Credit Association (NFP)
32A01-1212-SC-573
Small claim. Affirms judgment in favor of Statewide Credit Association.

The Indiana Tax Court posted no opinions by IL deadline. The 7th Circuit Court of Appeals posted no Indiana decisions by IL deadline.

 

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  1. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  2. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  3. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  4. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  5. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

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