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Opinions - May 25, 2010

May 25, 2010
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Indiana Supreme Court

Desmond Davidson v. State of Indiana
49S02-1001-CR-41
Criminal. Affirms trial court and agrees with Court of Appeals. Finds that upon the review of sentence appropriateness under Appellate Rule 7, appellate courts may consider all aspects of the penal consequences imposed by the trial judge in sentencing the defendant. Disapproves of the contrary views expressed in Eaton, 825 N.E.2d at 1290–91; Pagan, 809 N.E.2d at 926; and Cox, 792 N.E.2d at 904.

Indiana Family and Social Services Administration v. Alice V. Meyer, et al.
69S01-0905-CV-233
Civil. Unanimously holds the trial court has no authority to grant a motion for an extension of time to file the record if the motion is filed after the time for filing the record and any previous extensions have expired. Supreme Court is divided as to whether a case may go forward where a full record of proceedings has not been filed. The Court of Appeals decision therefore remains in place and the trial court‘s order remanding this case to FSSA is affirmed.

Indiana Court of Appeals

Susan Kozlowski v. Lake County Plan Commission, Dordija Dordieski, Lana Dordieski, Jon Bruskoski, and Liberty Bruskoski
45A03-0909-CV-430
Civil. Affirms denial of Kozlowski’s motion for summary judgment regarding her claims against the Dordieskis and the Bruskoskis and the Lake County Plan Commission. Grants the request of the Dordieskis and the Bruskoskis for appellate fees, and remands for a determination of reasonable appellate attorneys’ fees.

Cynthia VanTreese v. State of Indiana (NFP)
49A02-0912-PC-1271
Post-conviction. Affirms denial of VanTreese’s petition for post-conviction relief, which challenged her 1981 conviction of Class D felony possession of marijuana or hashish.

Termination of Parent-Child Relationship of H.J.F.; S.S.W. v. Indiana Dept. of Child Services (NFP)
71A03-1002-JT-68
Juvenile. Affirms probate court’s order involuntarily terminating S.S.W. (mother)’s parental rights to H.J.F.

Timothy Bitter v. State of Indiana (NFP)
24A01-0908-CR-382
Criminal. Reverses and remands Bitter’s conviction of and sentence for child molesting as a Class C felony.

Mitchell L. King v. State of Indiana (NFP)
45A03-0911-CR-505
Criminal. Affirms King’s conviction by jury of theft as a Class D felony.

Richard Saunders v. State of Indiana (NFP)
54A01-0911-CR-554
Criminal. Affirms Saunders’ conviction of dealing in a schedule II controlled substance, a Class A felony.

Juan Beasley v. State of Indiana (NFP)
49A02-0910-CR-1019
Criminal. Affirms Beasley’s conviction of two counts of robbery as Class B felonies.

Nelisa Glover v. State of Indiana (NFP)
49A05-0911-CR-620
Criminal. Affirms Glover’s conviction of Class A misdemeanor prostitution.

B.G. v. Review Board of the Indiana Dept. of Workforce Development and Celadon Trucking Services Inc. (NFP)
93A02-0910-EX-1030
Administrative. Affirms decision of the Unemployment Insurance Review Board to affirm the dismissal of B.G.’s appeal from the denial of unemployment benefits for failure to appear for a telephonic, evidentiary hearing.

David Smith v. First Farm Mutual Insurance Co. (NFP)
36A01-0912-CV-574
Civil. Reverses and remands trial court’s entry of summary judgment in favor of First Farm Mutual Insurance Company on Smith’s claim for breach of insurance contract.

Steven Scott v. State of Indiana (NFP)
49A02-0910-CR-1048
Criminal. Affirms Scott’s conviction of battery as a Class A misdemeanor.

Indiana Tax Court posted no opinions before IL deadline.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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