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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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  2. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  3. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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