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Opinions May 17, 2012

May 17, 2012
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7th Circuit Court of Appeals posted no Indiana opinions at IL deadline.

Indiana Supreme Court and Indiana Tax Court posted no opinions at IL deadline.

Indiana Court of Appeals

Heriberto Suarez v. State of Indiana
02A05-1106-PC-325
Post conviction. Affirms denial of petition for post-conviction relief. The court did not err in denying his claim that he received ineffective assistance of trial counsel.

Timothy Hammerlund v. State of Indiana
33A05-1110-CR-562
Criminal. Affirms revocation of probation. The record fails to establish that Hammerlund’s wavier of counsel was anything other than knowing, intelligent and voluntary.

City of Gary and Gary Sanitation District v. Indiana Department of Environmental Management and City of Hobart
49A02-1106-MI-553
Miscellaneous. Affirms court order affirming order of the Office of Environmental Adjudication, which upheld IDEM’s decision to issue a permit to Hobart to operate a new wastewater treatment plant. IDEM’s decision was neither arbitrary nor capricious and the decision was in accordance with the law and supported by substantial evidence.

Brian Otte v. State of Indiana
84A01-1108-CR-356
Criminal. Affirms convictions of Class D felony residential entry; three counts of Class B misdemeanor battery; Class A misdemeanor criminal mischief; Class A misdemeanor operating a vehicle while intoxicated; Class B misdemeanor failure to stop after an accident resulting in damage to unattended vehicle; and the finding that Otte is a habitual offender. There was no error in the trial court’s Criminal Rule 4(D) continuance or its admission of testimony by a domestic violence expert. Judge Vaidik concurs in result in a separate opinion.

Duane Lee v. State of Indiana
49A04-1105-CR-225
Criminal. Affirms Lee’s convictions of burglary as a Class B felony, rape as a Class A felony, six counts of criminal deviate conduct as Class A felonies, robbery as a Class B felony, resisting law enforcement as a Class A misdemeanor, criminal confinement as a Class B felony, intimidation as a Class C felony, and pointing a firearm as a Class D felony. The police acted improperly in swabbing Lee’s penis and the trial court erred in allowing results of that DNA test into evidence. Other evidence presented renders the error harmless.

Dewayne Jones v. State of Indiana
49A02-1109-CR-855
Criminal. Affirms conviction of Class D felony invasion of privacy. Finds Marion County is the proper venue for the case.

Dewayne Jones v. State of Indiana
49A02-1109-CR-853
Criminal. Affirms conviction of Class D felony invasion of privacy. Finds Marion County is the proper venue for the case.

Kenneth A. Lainhart v. State of Indiana (NFP)
24A01-1105-CR-241
Criminal. Affirms convictions of and sentence for Class B felonies dealing in methamphetamine by manufacturing and conspiracy to deal in methamphetamine by manufacturing, Class C felony possession of a handgun with obliterated identification marks, and Class D felonies maintaining a common nuisance and dumping of a controlled substance waste.

A.B. v. State of Indiana (NFP)
20A03-1112-JV-540
Juvenile. Affirms finding that A.B. is a delinquent child for committing what would be Class A misdemeanor battery if committed by an adult.

Alply Architectural Building Systems LLC, Alply, Inc., and John Peters v. Corrlines LLC and David J. Smith (NFP)
29A02-1111-CC-1032
Civil collection. Affirms denial of Alply’s motion to dismiss the breach of contract suit.

J.H. v. State of Indiana (NFP)
57A03-1201-JV-25
Juvenile. Affirms placement at the Indiana Boys’ School.

Wendell E. Mardis v. State of Indiana (NFP)
84A04-1109-CR-481
Criminal. Affirms conviction of Class A felony voluntary manslaughter.

Anthony Cross v. State of Indiana (NFP)
20A03-1109-CR-442
Criminal. Affirms conviction of Class B felony robbery while armed with a deadly weapon.

Brian Riley v. State of Indiana (NFP)
65A01-1111-CR-552
Criminal. Affirms sentence for Class C felony battery resulting in serious bodily injury.

Jermaine M. Lockett v. State of Indiana (NFP)
02A03-1107-CR-376
Criminal. Affirms convictions of and sentence for Class A felony dealing in cocaine and Class A misdemeanor possession of marijuana.

Trevon T. Marshall v. State of Indiana (NFP)
02A04-1110-CR-522
Criminal. Affirms sentence following guilty plea to Class C felony carrying a handgun without a license.

Kenneth Keehn v. State of Indiana (NFP)
46A05-1106-CR-332
Criminal. Affirms conviction of Class A felony dealing in a schedule I controlled substance.

David C. Wilson v. State of Indiana (NFP)
49A04-1110-CR-516
Criminal. Affirms sentence for Class A felony burglary and Class B felonies possession of a firearm by a serious violent felon and conspiracy to commit burglary.

Mark Alderman v. State of Indiana (NFP)
08A02-1110-CR-916
Criminal. Affirms conviction of Class A misdemeanor cruelty to an animal.

Robin Wood v. State of Indiana (NFP)
49A02-1109-CR-799
Criminal. Affirms order that Wood pay a $200 drug interdiction fee following her guilty plea to Class A misdemeanor possession of marijuana.

Roderick Ramone Wiggins v. State of Indiana (NFP)
45A05-1106-CR-291
Criminal. Affirms convictions of three counts of murder and sentence imposed.

Dean E. Overholser v. State of Indiana (NFP)
71A04-1108-CR-436
Criminal. Affirms conviction of Class D felony possession of marijuana by cultivation.

Marvin L. Boatright v. State of Indiana (NFP)
49A02-1108-CR-729
Criminal. Affirms conviction of Class C felony forgery.

John F. Fyock v. State of Indiana (NFP)
02A03-1109-CR-421
Criminal. Affirms convictions of and sentences for four counts of Class B felony dealing in a schedule I, II or III controlled substance.

Michael Lee Massing v. State of Indiana (NFP)
20A04-1110-CR-602
Criminal. Affirms denial of petition to file a belated notice of appeal.

Brian Andert v. State of Indiana (NFP)
71A05-1109-CR-509
Criminal. Affirms convictions of three counts of Class B felony sexual misconduct with a minor.

Daniel W. Beatty v. State of Indiana (NFP)
39A05-1107-CR-339
Criminal. Affirms convictions of dealing in methamphetamine, a Class A felony; conspiracy to deal methamphetamine, a Class A felony; possession of methamphetamine, a Class B felony; possession of precursors, a Class D felony; and his adjudication as a habitual substance offender.

 

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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