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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. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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