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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. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

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