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Opinions March 20, 2012

March 20, 2012
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7th Circuit Court of Appeals
Estate of Nicholas D. Rice, deceased, by Rick D. Rice and Diane J. Waldrop, co-personal representatives v. Correctional Medical Services, et al.
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2012/march/GK0PUU3D.pdf
09-2804, 10-2389
U.S. District Court, Northern District of Indiana, South Bend Division, Judges Robert L. Miller Jr. and Rudy Lozano.
Civil. In No. 09-2804, affirms in part and reverse in part the District Court’s entry of summary judgment in favor of the defendants. A material dispute of fact precludes summary judgment on one of the estate’s Section 1983 claims. In No. 10-2389, reverses the District Court’s decision to dismiss the state claims on the basis of collateral estoppel. Remands both cases for further proceedings consistent with this opinion.

Indiana Supreme Court
Rebecca D. Kays v. State of Indiana
42S05-1107-CR-441
Criminal. Remands to determine Kays’ ability to pay restitution and a determination of her manner of payment. Finds nothing in 42 U.S.C. Section 407(a) to prohibit a trial court from considering a defendant’s Social Security income when determining the “amount the person can or will be able to pay” in restitution pursuant to Indiana Code 35-38-2-2.3(a)(5).

Henry L. Howard, et al. v. United States
94S00-1106-CQ-333
Certified question. Under Indiana law, railbanking and interim trail use pursuant to 16 U.S.C. Section 1274(d) are not uses within the scope of the easements, and railbanking with interim trail use does not constitute a permissible shifting public use.

Harold J. Klinker v. First Merchants Bank, N.A.
01S04-1107-PL-438
Civil plenary. Reverses judgment on fraud and treble-damages claims because there are genuine issues of material fact as to whether Klinker acted with the requisite criminal intent. Remands for further proceedings.

Hannah Lakes v. Grange Mutual Casualty Company
89S05-1109-CT-531
Civil tort. Holds that the tortfeasor’s vehicle was underinsured under Indiana Code 27-7-5-4(b) because the amount actually paid to Hannah Lakes was less than the per-person limit of liability of the under-insurance endorsement. Remands for further proceedings.

Jerrell D. White v. State of Indiana
15S01-1109-CR-545
Criminal. Holds, under the circumstances of this case, that the defendant did not preserve the issue of whether the trial court properly allowed the habitual offender filing. Also holds that the authenticated and certified evidence was sufficient to uphold the jury’s determination that the defendant had two unrelated adult felony convictions. Justice Sullivan dissents, believing the Court of Appeals opinion to be correct.

Indiana Court of Appeals
Auto-Owners Insurance Company v. Cathy Benko and Gerald Ewing, as Executors of the Estate of Laverna Ewing, Deceased
75A04-1108-CT-440
Civil tort. Affirms denial of Auto-Owners’ motion to strike and summary judgment for Benko and Ewing in their underinsured motorist claim. Concludes that the plain language of the provision would lead an ordinary policyholder to believe that they were required to bring a bodily injury claim against the alleged tortfeasor within the applicable statute of limitations, which occurred in this case. Additionally, if the insurance company intended a different interpretation, it should have stated so in plain English so that their policyholders understand what is necessary to protect their interests and collect their benefits under the policy.

Luke Keys Carson v. State of Indiana
29A04-1106-CR-278
Criminal. Affirms convictions as guilty but mentally ill of two counts of battery by means of a deadly weapon, burglary, and resisting law enforcement. The evidence of Carson’s demeanor during and after the crime supports the determination that he was able to appreciate the wrongfulness of actions at the time of the crimes and therefore was guilty but mentally ill. There is also sufficient evidence to support the burglary conviction.

Curtis A. Bethea v. State of Indiana
18A05-1107-PC-416
Post conviction. Affirms denial of post-conviction relief. Based on Farmer v. State, 772 N.E.2d 1025 (Ind. Ct. App. 2002), and Roney v. State, 872 N.E.2d 192 (Ind. Ct. App. 2007), appellate counsel could have challenged the trial court’s use of one of the victim’s injuries as an aggravating factor because that was an element of the burglary charge that was dismissed pursuant to Bethea’s plea agreement. Concludes that Farmer and Roney misapplied the precedents on which they relied, and declines to follow those cases. Bethea’s remaining arguments concern minor mischaracterizations in the trial court’s findings which are not significant enough in light of the valid findings to warrant a downward revision. Judge May concurs in result; Judge Brown dissents.

Mitchell Preston v. State of Indiana (NFP)
48A04-1108-CR-403
Criminal. Affirms order Preston serve seven years of previously suspended sentence in the Department of Correction.

Jonathan R. Stephens v. State of Indiana (NFP)
85A05-1108-CR-446
Criminal. Affirms sentence following guilty plea to Class D felony theft.

Kevin Ferguson v. State of Indiana (NFP)
53A01-1107-CR-292
Criminal. Affirms conviction following guilty plea to Class B felony dealing in methamphetamine after trial court denied request to withdraw plea.  

James N. Hamilton v. State of Indiana (NFP)
89A04-1103-CR-134
Criminal. Affirms two convictions of Class D felony receiving stolen property.  

B.M. v. M.M. and M.R.M., b/n/f M.M. (NFP)
12A02-1107-JP-722
Juvenile. Affirms order awarding custody to father. Father is not entitled to appellate attorney fees.

Clarence A. Martin, Jr. v. State of Indiana (NFP)
82A01-1008-PC-497
Post conviction. Dismisses appeal of denial of petition for post-conviction relief.

Thomas Eaton, et al. v. City of Gary, et al. (NFP)
45A04-1106-MI-312
Miscellaneous. Affirms order denying Eaton and other appellants’ motion to correct error.

Rochelle M. Gibler v. Discover Bank (NFP)
71A05-1109-CC-500
Civil collection. Affirms summary judgment in favor of Discover Bank upon its breach of contract claim.

R.S. v. Review Board of the Indiana Dept. of Workforce Development and M.B. (NFP)
93A02-1107-EX-656
Agency appeal. Affirms denial of unemployment benefits.

Malinda Diaz v. State of Indiana (NFP)
49A02-1109-CR-821
Criminal. Affirms conviction of Class A misdemeanor domestic battery.

Earl R. England and Mary L. England v. Rob E. Hurford and Jennifer M. Hurford (NFP)
50A04-1106-PL-297
Civil. Affirms order granting a preliminary injunction to the Hurfords.

William Singleton v. State of Indiana (NFP)
75A05-1106-CR-346
Criminal. Affirms conviction of Class A felony attempted voluntary manslaughter and remands with instructions to vacate the Class B felony aggravated battery conviction and sentence.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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