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
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.
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.
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
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
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)
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)

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)
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)
Criminal. Affirms sentence for four counts of Class C felony forgery.

Rondell Walker v. State of Indiana (NFP)
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)
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)
Criminal. Affirms conviction of Class D felony escape and adjudication as a habitual offender.

Elwin Hart v. State of Indiana (NFP)

Criminal. Affirms convictions of murder.

Aaron Lee v. State of Indiana (NFP)
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)
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)
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. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.