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Opinions May 20, 2013

May 20, 2013
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The following opinions were posted after IL deadline Friday:
Indiana Tax Court
Board of Commissioners of the County of Jasper, Indiana v. Micah G. Vincent, Commissioner, Indiana Department of Local Government Finance
49T10-1011-TA-59
Tax. Reverses and remands the DLGF’s denial of a request to establish a cumulative building fund and levy for a county hospital, holding that the decision was arbitrary and capricious. The court rejected DLGF’s argument that the statute’s language that a fund and levy may be established “for not more than 12 years” did not preclude re-establishment of a fund that expired.

Indiana Supreme Court
In the Matter of: Arthur J. Usher, IV
49S00-1105-DI-298
Discipline. In a per curiam decision, justices suspend Usher for three years for violating several Indiana Professional Conduct Rules stemming from an incident where he had his paralegal email more than 50 attorneys a video clip purporting to depict a former summer intern nude in a film.

Monday’s opinions
7th Circuit Court of Appeals
United States of America v. John W. Bloch, III
12-2784
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Criminal. Affirms in part, reverses in part and remands. The court affirmed a conviction of firearm possession by a felon, but found error in convictions of two counts under 18 U.S.C. Section 922 because the possession of two firearms arose from the same incident. Ordered the District Court for the Northern District of Indiana to merge the convictions and resentence Bloch on a single count.

United States of America v. Jamel H. Brown
12-3413
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Criminal. Affirms 400-month sentence on a conviction of unlawful possession of a firearm, holding that the sentence in the District Court for the Southern District of Indiana was rendered after an acceptable consideration of disputed matter in the presentence report.

Indiana Court of Appeals
David F. Wood v. State of Indiana
49A02-1207-CR-615
Criminal. Reverses convictions and aggregate 11-year sentence for Class B felony possession of a firearm by a serious violent felon and five counts of Class D felony possession of child pornography. The court vacated the SVF conviction, finding error because a plea was accepted after a jury returned a verdict form marked “No” regarding whether Wood knowingly or intentionally possessed a firearm. The court also found that five, consecutive one-year sentences for Class D felony convictions violates a cap of four years in I.C. 35-50-1-2. Remands for resentencing.

Roger Jay Piatek, M.D., and The Piatek Institute v. Shairon Beale
49A04-1209-CT-463
Civil tort. Affirms trial court’s denial of Piatek’s motion for mistrial. Found that a reference by Beale’s counsel during the trial to Piatek pleading the Fifth Amendment was generic and did not subject the doctor to greater prejudice. Also, the court held the trial court’s admonition to the jury was sufficient to cure any prejudice from the reference to pleading the Fifth.  

Jeffery S. Williams v. State of Indiana (NFP)
59A05-1209-CR-487
Criminal. Affirms in part and reverses in part Williams’ 15-year sentence for pleading guilty to one count of possession of methamphetamine as a Class B felony. Remands for the trial court to decide whether to grant Williams credit for his pre-trial release on bond. Rules Williams failed to show the trial court abused its discretion when it did not enter a written sentencing statement with an explanation for the sentence imposed. Expresses no opinion on Williams’ claim the trial court abused its discretion by failing to recognize mitigating factors. Finds that Williams failed to meet his burden of establishing that his sentence was inappropriate.

Gina West v. Midland Credit Management, Inc. (NFP)
03A01-1208-CC-395
Civil collection. Reverses the denial of motion to set aside a default judgment. Rules West had shown prima facie error in the denial of her motion as her motion did not have to be brought within a year and she proved service was improper.  

Kevin E. Scheumann and Tina Reynolds v. Danny Clark, Jason L. Little, Recovery One LLC, Renovo Services LLC, Renaissance Recovery Solutions LLC, Citifinancial Auto Credit Inc., et al. (NFP)
02A03-1210-CT-448
Civil tort. Affirms trial court entering final judgment in favor of Renovo Services LLC on its summary judgment ruling. Found the trial court did not err in finding that Renovo was not liable for any of the plaintiffs’ claims or any wrongdoing of the independent contractors under a theory of respondeat superior.  

Creditmax, Inc. v. Steve D. Jones (NFP)
03A05-1211-CC-598
Civil collection. Affirms trial court’s order that entered a limited garnishment of Jones’ wages in the amount of $20 per week in favor of Creditmax.

George Johnson v. State of Indiana (NFP)
49A02-1207-CR-616
Criminal. Affirms Johnson’s 20-year sentence imposed following his convictions of Class B felony criminal confinement and Class A misdemeanor battery. Ruled in light of Johnson’s character and offense, the sentence is not inappropriate.

The Indiana Supreme Court and Tax Court posted no decisions by IL deadline.

 

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  1. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  2. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

  3. This outbreak illustrates the absurdity of the extreme positions taken by today's liberalism, specifically individualism and the modern cult of endless personal "freedom." Ebola reminds us that at some point the person's own "freedom" to do this and that comes into contact with the needs of the common good and "freedom" must be curtailed. This is not rocket science, except, today there is nonstop propaganda elevating individual preferences over the common good, so some pundits have a hard time fathoming the obvious necessity of quarantine in some situations....or even NATIONAL BORDERS...propagandists have also amazingly used this as another chance to accuse Western nations of "racism" which is preposterous and offensive. So one the one hand the idolatry of individualism has to stop and on the other hand facts people don't like that intersect with race-- remain facts nonetheless. People who respond to facts over propaganda do better in the long run. We call it Truth. Sometimes it seems hard to find.

  4. It would be hard not to feel the Kramers' anguish. But Catholic Charities, by definition, performed due diligence and held to the statutory standard of care. No good can come from punishing them for doing their duty. Should Indiana wish to change its laws regarding adoption agreements and or putative fathers, the place for that is the legislature and can only apply to future cases. We do not apply new laws to past actions, as the Kramers seem intent on doing, to no helpful end.

  5. I am saddened to hear about the loss of Zeff Weiss. He was an outstanding member of the Indianapolis legal community. My thoughts are with his family.

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