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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. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

  2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

  3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

  4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

  5. This year, Notre Dame actually enrolled an equal amount of male and female students.

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