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Opinions March 13, 2012

March 13, 2012
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The following Indiana Supreme Court opinion was posted after IL deadline yesterday:

In the Matter of: Carl J. Brizzi
49S00-0910-DI-425
Disciplinary. Supreme Court issued a public reprimand for former Marion County Prosecutor Carl Brizzi, finding that he violated Indiana Professional Conduct Rules 3.6(a) and 3.8(f) by making public statements as a prosecutor that had a substantial likelihood of materially prejudicing an adjudicative proceeding and a substantial likelihood of heightening public condemnation of the criminal defendants. Court rules that “actual prejudice” is not required and court defines “public record” as government documents, such as probable cause affidavits.

Today’s opinions:

Indiana Supreme Court and Indiana Tax Court had filed no opinions by IL deadline.

7th Circuit Court of Appeals

Shannon McComas v. Edward Brickley
United States District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
11-2138
Civil. Reverses District Court’s denial of Brickley’s motion for summary judgment. McComas filed suit against Brickley for false arrest after the charges against McComas were dropped.
But Brickley claimed that he had probable cause to arrest McComas and qualified immunity in his role as a police officer. The 7th Circuit agreed and held the District Court erred in its determination of qualified immunity. It remanded with instructions consistent with its opinion.

Julie A. Smith v. Lafayette Bank & Trust Company
United States District Court, Northern District of Indiana, Hammond Division, Judge Jon E. DeGuilio.
10-3556
Civil. Affirms grant of summary judgment against Smith in her claim that Lafayette Bank & Trust retaliated against her for filing an age discrimination complaint under the Age Discrimination in Employment Act, holding that Smith was unable to show that the bank administrators who terminated her were ever aware that she filed a charge of discrimination, and that she filed that charge five months after she was terminated.

Indiana Court of Appeals
The Guardianship of Harold G. Gardner, Scott A. Gardner, Guardian v. Carl Prochno
50A03-1108-PL-385
Civil plenary. Affirms grant of summary judgment in favor of Prochno, holding that per Indiana Code 32-31-1, the Gardners did not provide in a timely manner a notice to terminate tenancy of farm land.

Kenneth Akers v. State of Indiana
49A05-1106-CR-313
Criminal. Affirms convictions of and sentences for battery, resisting law enforcement and possession of paraphernalia, all Class A misdemeanors. Akers raised one question for review: Whether Indiana Code 35-50-1-2 violates the Equal Protection Clause of the United States Constitution or Article 1, Section 23 of the Indiana Constitution because the statute limits the imposition of consecutive sentences when someone is convicted of at least one felony, but no such statute exists limiting the imposition of consecutive sentences for those convicted of only misdemeanors. But the COA held that Akers’ offenses were separate and distinct, and therefore IC 35-50-1-2 does not apply.

Alfred Taylor v. State of Indiana (NFP)
15A04-1109-CR-500
Criminal. Affirms court’s revocation of probation and order that Taylor serve 1,825 days of his previously suspended sentence.

Ralph Winfrey v. NLMP, Inc. and Witham Health Services (NFP)

06A01-1103-PL-132
Civil plenary. Reverses grant of summary judgment in favor of NLMP and Witham Health Services, holding that the court erred in determining Winfrey’s claims were based on speculation. Remands for further proceedings.

Matthew G. Fearnow v. State of Indiana (NFP)
20A03-1107-CR-341
Criminal. Vacates Fearnow’s conviction of Class B misdemeanor harassment and remands for new trial, holding that the trial court did not adequately advise him of the risks of proceeding pro se. Affirms trial court’s grant of the state’s second motion to amend charging information, holding the location where harassing phone messages were received did not affect Fearnow’s rights.

Matthew Jordan v. State of Indiana (NFP)
35A04-1108-CR-484
Criminal. Affirms sentence for four counts of Class C felony forgery.

Rondell Walker v. State of Indiana (NFP)
34A02-1101-CR-612
Criminal. Affirms Walker’s termination from the Howard County Drug Court program and the sentence imposed on his underlying conviction of Class B felony possession of cocaine.

Douglas R. Denmure, Personal Rep. of the Estate of Eugene D. Trester, Deceased v. Michael S. Gridley, Personal Rep. of the Estate of Alice F. Grindley, Deceased (NFP)
49A02-1109-ES-905
Estate supervised. Reverses trial court’s order approving the personal representative’s accounting, supplemental accounting, petition for order approving distribution, and closing the estate, holding Denmure has established prima facie error. Remands for further proceedings, including a consideration of Denmure’s request for additional attorney fees pursuant to the terms of the mediated settlement agreement.

Joshua Love v. State of Indiana (NFP)
49A02-1107-CR-629
Criminal. Affirms conviction of Class D felony escape and adjudication as a habitual offender.

Elwin Hart v. State of Indiana (NFP)

49A02-1107-CR-583
Criminal. Affirms convictions of murder.

Aaron Lee v. State of Indiana (NFP)
49A02-1108-CR-784
Criminal. Reverses Lee’s convictions of Class B felony criminal confinement and Class C felony intimidation, holding  the court’s instructions did not adequately instruct the jury on the presumption of innocence. Remands for new trial.

T.W. v. State of Indiana (NFP)
49A02-1108-JV-832
Juvenile. Affirms adjudication as a delinquent child for committing two counts of battery that would be Class A misdemeanors if committed by an adult.

Michael Jones v. State of Indiana (NFP)
30A01-1108-CR-378
Criminal. Affirms 18-year sentence with three years suspended for Class B felony neglect of a dependent, holding that in light of Jones’ previous conviction of neglect, the sentence was not inappropriate.
 

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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