Opinions March 20, 2017

March 20, 2017
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The following 7th Circuit Court of Appeals opinion was posted after IL deadline Friday:
USA v. Jeffrey Rothbard
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Richard L. Young.
Criminal. Affirms Jeffrey Rothbard’s sentence of 24 months in prison for one count of wire fraud, despite the fact that he is an older man suffering from serious health problems. Finds that the district court gave sound reasons for its chosen sentence. Also finds that the evidence in the record before the district court and supplemental information requested about the Bureau of Prisons’ ability to provide appropriate care shows that the nominal 24-month sentence will not “spell doom” for Rothbard. Judge Richard Posner dissents with separate opinion.

Indiana Court of Appeals
William Ryan v. State of Indiana (mem. dec.)
Criminal. Affirms William Ryan’s conviction for Class B misdemeanor public intoxication. Finds that the evidence is sufficient to sustain Ryan’s conviction.

James Michael Cox v. State of Indiana (mem. dec.)
Criminal. Affirms James Michael Cox’s convictions for Class A misdemeanor resisting law enforcement, Class A misdemeanor possession of paraphernalia and Class B misdemeanor possession of marijuana. Finds that Cox’s constitutional arguments are waived for failure to make a cogent argument and that waiver notwithstanding, he did not present the same arguments to the trial court, thus leaving the Indiana Court of Appeals unable to address them. Also finds that the state presented sufficient evidence to support Cox’s convictions.

Kenneth Leon Wilson, Jr. v. State of Indiana (mem. dec.)
Criminal. Affirms Kenneth Wilson’s sentence to two years in the Bartholomew County Jail for Level 6 felony strangulation. Finds that the Bartholomew Circuit Court did not abuse its discretion when it sentenced Wilson. Also finds that Wilson’s sentence is not inappropriate.

Brandon L. Jones v. State of Indiana (mem. dec.)
Criminal. Affirms Brandon Jones’ convictions for dealing in cocaine as a Level 2 felony, possession of a narcotic as a Level 6 felony, possession of a controlled substance as a Class A misdemeanor and carrying a handgun without a license as a Class A misdemeanor. Finds that the Allen Superior Court did not err when it admitted evidence found on Jones after an officer conducted a pat-down search.

CHINS: Child Advocates, Inc., Guardian Ad Litem v. DT, et al. (mem. dec.)
Juvenile CHINS. Dismisses Child Advocates, Inc.’s appeal of the transfer of a guardianship case from probate court to juvenile court and an order in a child in need of services case changing the child’s permanency plan from adoption to reunification. Finds that as to the guardianship case, the transfer order is not a final and appealable order and that, further, Child Advocates requested that the transfer take place, so any error was invited. Also finds that as to the CHINS case, the permanency plan is not a final and appealable order. Finally, finds that as to both cases, the CHINS case has been closed and the guardianship case has been voluntarily dismissed by Child Advocates, so the Indiana Court of Appeals can offer no effective relief to the parties and the case is, therefore, moot.

RW v. GB (mem. dec.)
Adoption. Affirms the Vanderburgh Superior Court’s order granting the petition filed by G.B. to adopt R.W.’s biological son, L.W. Finds that R.W. has waived his argument that the trial court erred in finding that his consent to the adoption was not required based on a reason not alleged in the adoption petition because he did not object at trial.

Termination: RW, et al. v. Indiana Department of Child Services (mem. dec.)
Juvenile termination of parental rights. Affirms the termination of R.W.’s parental rights to S.W. and the termination of E.R.W.’s parental rights to D.H. and S.W. Finds that the evidence is sufficient to support the termination of R.W. and E.R.W.’s parental rights.


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  1. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  2. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  3. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  4. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  5. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.