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Opinions March 21, 2013

March 21, 2013
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Indiana Supreme Court
Anthony D. Dye v. State of Indiana
20S04-1201-CR-5
Criminal. On rehearing, reaffirms that a person convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the person was a “serious violent felon.” The state is not permitted to support Dye’s habitual offender finding with a conviction that arose out of the same res gestae that was the source of the conviction used to prove Dye was a serious violent felon. Affirms original opinion in all other respects. Justice Massa concurs in part and dissents in part with separate opinion.

Todd J. Crider v. State of Indiana
91S05-1206-CR-306
Criminal. Reverses in part the sentencing order that Crider’s habitual offender enhancement in a White County case be served consecutively to the habitual offender enhancement in a case from Tippecanoe County. Concludes that the waiver of the right to appeal contained in the plea agreement is unenforceable where the sentence imposed is contrary to law and the defendant did not bargain for the sentence.

Indiana Court of Appeals
Clark County Board of Aviation Commissioners v. Dennis Dreyer and Margo Dreyer as Co-Personal Representatives of the Estate of Margaret A. Dreyer
10A01-1206-PL-288
Civil plenary. Affirms denial of the Board of Aviation Commissioners’ Trial Rule 60(B) motion for partial relief from an $865,000 judgment in favor of Margaret Dreyer after the board instituted eminent domain proceedings. Because legal error may not be collaterally attacked, and the commissioners did not object to Dreyer’s July 2009 objections and did not raise the issue in the first appeal, the trial court did not err by denying their Trial Rule 60(B) motion.

Town of Cedar Lake v. Gina Alessia, Candi Reiling, Andrew Balkema, Individually and as Members of the Town of Cedar Lake Park Board
45A03-1207-PL-316
Civil plenary. Reverses summary judgment for the park board members on their claims of illegal termination, declaratory judgment on the validity of the ordinance and injunctive relief. Also reverses the reinstatement order regarding the park board members. The trial court erred when it used Dillon’s Rule to determine the scope of the town’s legal authority to dissolve the park board and Parks Department. The proper legal inquiry is based on Indiana’s Home Rule Act. Affirms the order that the law firm Austgen Kuiper & Associates P.C. may not continue to represent the park board and its members in any matters based on a current conflict of interest.

C.B. v. B.W.
49A02-1206-JP-539
Juvenile. Affirms order granting the father’s request to change the surname of C.D.B. in initial paternity proceedings over the mother’s objections. The trial court’s decision is not clearly against the logic and effect of the facts and circumstances before the court or contrary to law. The mother has not shown reversible error.

Marquis Shipp v. State of Indiana (NFP)
49A02-1204-PC-322
Post conviction. Affirms denial of petition for post-conviction relief.

Arturo Fuentes v. State of Indiana (NFP)
79A02-1208-CR-698
Criminal. Affirms sentence for Class A felony dealing in cocaine and Class C felony possession of cocaine.

Christina J. Epps v. State of Indiana (NFP)
05A02-1207-CR-673
Criminal. Affirms convictions and sentence for two counts of Class A misdemeanor battery and one count of Class B misdemeanor battery.

The Indiana Tax Court posted no decisions by IL deadline. The 7th Circuit Court of Appeals posted no Indiana decisions by IL deadline.

 

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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