Opinions June 28, 2013

June 28, 2013
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Indiana Supreme Court
Brad W. Passwater v. State of Indiana
Post conviction. Affirms post-conviction court denial of Passwater’s petition for relief. In the decision, the court reconsiders the instructions it approved in Georgopuls v. State, 735 N.E. 2d 1138, 1143 n.3 (Ind. 2000), for juries faced with the option of finding a defendant not responsible by reason of insanity or guilty but mentally ill. The court concluded the instruction provided by the Indiana Pattern Jury Instruction 11.20 is better and approved its use.

Valentin Escobedo v. State of Indiana
Criminal. Affirms aggregate term of 53 years for convictions of battery, a Class A felony and neglect of a dependent, a Class D felony. The court disapproves of giving consideration of a community’s outrage in the determination or review of a criminal sentence. However, the court does agree with the ultimate conclusion of the Court of Appeals that the sentence imposed by the trial court was appropriate.

In Re Mandate of Funds for Center Township of Marion County Small Claims Court Order for Mandate and Mandate of Funds
Mandate for funds. Affirms special judge’s decree approving renovations, additional staff and prohibiting relocation of the small claims court as had been sought by the Center Township trustee and board. Justices conclude the record is replete with evidence that moving the court from its present location poses a clear and present danger to access to justice for the litigants it serves, and that maintaining and upgrading the Court in its present location is reasonably necessary to preserve that access. Orders the township trustee to relinquish control over court functions, noting authority over its employees and its financial operations shall be vested solely in the court.

Indiana Court of Appeals
Indiana Horse Racing Commission v. Edmund W. Martin, Jr.
Civil plenary. Reverses trial court order setting aside and vacating an exclusion order issued by the Indiana Horse Racing Commission against Indiana Thoroughbred Owners and Breeders Association director Edmund Martin Jr., and remands for reinstatement of the order. The court held that the exclusion order was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and Indiana Code 4-31-6-1 and Rule 5.5-1-1(a) required him to be licensed as an active participant in the group’s activities at Indiana pari-mutuel horse racetracks.

Shannon Robinson and Bryan Robinson v. Erie Insurance Exchange
Civil plenary. Reverses summary judgment in favor of Erie Insurance Exchange, holding that a hit-and-run driver was uninsured as a matter of law. Holds that summary judgment instead should have been granted to plaintiffs who sued over denial of coverage in an accident in which their vehicle was totaled but there were no bodily injuries.

Calvin McKeller v. State of Indiana (NFP)
Criminal. Affirms conviction after jury trial of Class B felony robbery.

John P. Schaub v. The Estate of Edward G. Schaub and David Schaub, Personal Representative (NFP)
Civil plenary. Reverses damage award of $12,000. Finds the estate did not meet the burden of proof in proving the elements of a replevin claim. The estate failed to present evidence relative to the value of the recreational vehicle on the date that the possession by John Schaub became wrongful.

Larry G. Brown v. State of Indiana (NFP)
Criminal. Affirms Brown’s convictions and sentences for two counts of Class A felony child molesting.

Christopher Gross v. State of Indiana (NFP)
Criminal. Affirms Gross’ sentence of 30 months of incarceration following his conviction of Class D felony possession of a controlled substance.

Gregory D. Swagger v. State of Indiana (NFP)
Criminal. Affirms trial court was statutorily authorized to revoke Swagger’s probation and order him to serve the rest of his four-year sentence in the Department of Correction.

Robert J. Lambright, Shirley A. Lambright, and Dutch Land, Inc. a/k/a Dutchland, Inc. v. Dawn M. Gregory, as Guardian for Donna Lee (NFP)
Civil collection. Reverses the grant of summary judgment and remands for further proceedings. Holds the trial court erred by considering a letter from a certified public account that was not properly part of the designated evidence and that there is a genuine issue of material fact as to whether the lenders waived or partially waived enforcement of the penalty provisions.   

Brandon Shane Fitch v. State of Indiana (NFP)
Criminal. Affirms convictions of five counts of child molesting, each as a Class C felony.
David Gibbs v. State of Indiana (NFP)
Criminal. Affirms conviction of arson as a Class B felony.
Tony Wombels v. State of Indiana (NFP)
Criminal. Affirms conviction of carjacking, a Class B felony.

Santos Vasquez v. State of Indiana (NFP)
Criminal. Affirms conviction of burglary as a class B felony.  

Layne M. Jefferson v. State of Indiana (NFP)
Criminal. Affirms sentence following guilty plea to theft as a Class D felony. Concludes the sentence the trial court imposed – three years in the Indiana Department of Correction with one year executed and to be served at a work release facility, and two years suspended to supervised probation – is specifically tailored with Jefferson’s particular history and rehabilitative issue in mind.  

Daniel Drake v. State of Indiana (NFP)
Criminal. Affirms conviction of public intoxication, a Class B misdemeanor.

Gersh Zavodnik v. Michela Rinaldi, et al. (NFP)
Civil tort. Affirms trial court’s dismissal of Zavodnik’s case against Rinaldi pursuant to Indiana Trial Rule 41(E).

The Paternity of P.A.B.; K.B. v. J.L. (NFP)
Guardianship. Affirms trial court’s order terminating guardianship and granting motion for change of custody to the father. Finds the grandmother failed to prove by clear and convincing evidence that P.A.B.’s interests were substantially and significantly served by continued placement with her.

State of Indiana v. Harley Perkins (NFP)
Criminal. Affirms the trial court’s order granting a mistrial and dismissing the charges against Perkins.

Heather Renae Ingle v. State of Indiana (NFP)
Criminal. Affirms Ingle’s convictions of Class A misdemeanor operating while intoxicated endangering a person, Class A misdemeanor resisting law enforcement and Class B misdemeanor disorderly conduct.

Re: Termination of the Parent-Child Relationship of J.W,. and K.S. v. Indiana Department of Child Services (NFP)
Juvenile. Affirms termination of father’s parental rights.

Marquis Wilcox v. State of Indiana (NFP)
Criminal. Affirms Wilcox’s convictions on four counts of Class A felony child molesting.   

Terrance L. Walton v. State of Indiana (NFP)
Criminal. Affirms convictions of Class C felony carrying a handgun without a license and Class A misdemeanor operating while intoxicated endangering a person.

Jarrell Outlaw v. State of Indiana (NFP)
Criminal. Affirms convictions of Class A misdemeanor auto theft and Class A misdemeanor resisting law enforcement. Also affirms trial court’s order Outlaw pay $166 in court cost.

Indiana Tax Court
Geoffrey Odle, Personal Representative of the Estate of Floyd L. Odle, Deceased v. Indiana Dept. of State Revenue
Tax. Affirms probate court ruling affirming a denial of a tax refund, holding that beneficiaries of the estate – nephews, great-nieces and great-nephews of a childless couple – were properly classified as Class B and Class C transferees subject to taxation at a higher rate than Class A transferees.

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



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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.