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Opinions June 28, 2013

June 28, 2013
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Indiana Supreme Court
Brad W. Passwater v. State of Indiana
48S05-1210-PC-583
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
71S03-1306-CR-455
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
49S00-1207-MF-420
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.
49A02-1206-PL-512
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
49A02-1211-PL-908
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)
49A02-1209-CR-714
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)
54A01-1301-PL-11
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)
49A2-1208-CR-657
Criminal. Affirms Brown’s convictions and sentences for two counts of Class A felony child molesting.

Christopher Gross v. State of Indiana (NFP)
75A04-1210-CR-647
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)
90A02-1212-CR-1018
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)
44A04-1211-CC-589
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)
27A05-1209-CR-481
Criminal. Affirms convictions of five counts of child molesting, each as a Class C felony.
 
David Gibbs v. State of Indiana (NFP)
49A05-1208-CR-406
Criminal. Affirms conviction of arson as a Class B felony.
 
Tony Wombels v. State of Indiana (NFP)
49A05-1212-CR-652
Criminal. Affirms conviction of carjacking, a Class B felony.

Santos Vasquez v. State of Indiana (NFP)
49A04-1301-CR-1
Criminal. Affirms conviction of burglary as a class B felony.  

Layne M. Jefferson v. State of Indiana (NFP)
48A02-1211-CR-952
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)
49A02-1212-CR-972
Criminal. Affirms conviction of public intoxication, a Class B misdemeanor.

Gersh Zavodnik v. Michela Rinaldi, et al. (NFP)
49A05-1211-CT-595
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)
15A04-1210-GU-518
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)
48A02-1210-CR-823
Criminal. Affirms the trial court’s order granting a mistrial and dismissing the charges against Perkins.

Heather Renae Ingle v. State of Indiana (NFP)
29A02-1211-CR-901
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)
65A01-1211-JT-535
Juvenile. Affirms termination of father’s parental rights.

Marquis Wilcox v. State of Indiana (NFP)
49A04-1209-CR-456
Criminal. Affirms Wilcox’s convictions on four counts of Class A felony child molesting.   

Terrance L. Walton v. State of Indiana (NFP)
02A05-1210-CR-518
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)
49A04-1210-CR-521
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
49T10-1210-TA-61
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. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. 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)

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