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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. Oh, the name calling was not name calling, it was merely social commentary making this point, which is on the minds of many, as an aside to the article's focus: https://answers.yahoo.com/question/index?qid=20100111082327AAmlmMa Or, if you prefer a local angle, I give you exhibit A in that analysis of viva la difference: http://fox59.com/2015/03/16/moed-appears-on-house-floor-says-hes-not-resigning/

  2. Too many attorneys take their position as a license to intimidate and threaten non attorneys in person and by mail. Did find it ironic that a reader moved to comment twice on this article could not complete a paragraph without resorting to insulting name calling (rethuglican) as a substitute for reasoned discussion. Some people will never get the point this action should have made.

  3. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  4. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  5. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

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