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Opinions May 31, 2012

May 31, 2012
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7th Circuit Court of Appeals
United States of America v. Aaron M. Davis, Bobby Suggs, et al.
11-1313, 11-1323, et al.
U.S. District Court, Northern District of Indiana, Hammond Division, Judge James T. Moody.
Criminal. In consolidated appeal, affirms denial of the six defendants’ motion to reduce their sentences pursuant to 18 U.S.C. Section 3582(c)(2) based on the retroactive crack cocaine amendments to the United States Sentencing Guidelines. The District Court did not have the power to adjudicate Suggs’ motion and lacked subject-matter jurisdiction. There is sufficient evidence for the District Court to conclude the other defendants were responsible for at least 4.5 kilograms of crack cocaine, which would prevent their sentences from being reduced.

Indiana Supreme Court
Mickey Cundiff v. State of Indiana
31S05-1108-CR-512
Criminal. Affirms denial of Cundiff’s motion for a speedy trial. Criminal Rule 4(B) is available only to a defendant when the defendant is held on the pending charges for which he or she requests a speedy trial.
 
Indiana Court of Appeals
Fred N. Martinez v. Susan K. Deeter
32A01-1108-DR-359
Domestic relation. Affirms denial of Deeter’s request for attorney fees. Holds trial court erred by making conflicting findings regarding Martinez’s 2007 child support and by including survivor benefits received by the children in the calculation of Deeter’s weekly gross income. Remands for court to recalculate father’s 2007 child support obligation and further proceedings.

Larry Gene Gore v. State of Indiana (NFP)
76A03-1110-CR-491
Criminal. Affirms sentence for Class D felony sexual battery.

Anthony Stansbury v. State of Indiana (NFP)
15A05-1111-CR-585
Criminal. Affirms convictions of Class B felonies attempted robbery and aggravated battery and finding Stansbury is a habitual offender and remands for correction of sentencing order.

Wells Fargo Bank v. Castalia Homes, LLC; Jan N. Kelsey (NFP)
06A04-1112-MF-680
Mortgage foreclosure. Reverses summary judgment in favor of Castalia Homes on the issue of priority.

Noblesville Schools Corporation v. Review Board of the Indiana Department of Workforce Development and Ryan Shelton (NFP)
93A02-1110-EX-923
Agency appeal. Affirms decision by review board that Noblesville Schools Corp. did not show good cause for failing to attend a hearing review regarding Shelton’s award of benefits.

In Re the Paternity of N.B.; K.B. v. A.B. (NFP)
45A03-1111-JP-495
Juvenile. Affirms order modifying custody of N.B. to father.

In Re the Marriage of: Alexander Nikolayev v. Natalia Nikolayev (NFP)
49A05-1108-DR-393
Domestic relation. Reverses decision to make Alexander Nikolayev’s new child support obligation effective July 21, 2010. Affirms in all other respects and remands for further proceedings.

Jeffrey Riggs and Mark Ashmann v. Mark S. Weinberger, M.D., Mark Weinberger, M.D., P.C., Merrillville Center for Advanced Surgery, LLC, and Nose and Sinus Center, LLC (NFP)
45A03-1109-CT-394
Civil tort. Affirms grant of a motion for Trial Rule 35 psychological examination filed by Weinberger. Remands for further proceedings.

Susan Grund v. State of Indiana (NFP)
52A02-1108-PC-791
Post conviction. Affirms denial of petition for post-conviction relief.

In the Matter of V.C., Child Alleged to be in Need of Services: V.S. v. Indiana Dept. of Child Services (NFP)
79A02-1201-JC-43
Juvenile. Dismisses sua sponte the appeal for lack of subject matter jurisdiction.

Dusty E. Rhodes v. State of Indiana (NFP)
11A01-1109-CR-487
Criminal. Affirms conviction of Class B felony dealing in methamphetamine.

Richard C. Gallops and Patricia A. Gallops v. David Hubbard, Personal Representative of the Estate of Thelma M. Hubbard, Deceased (NFP)
02A05-1107-CT-337
Civil tort. Denies the estate’s renewed motion to dismiss and affirms the Gallopses’ designated materials were inadmissible under the Dead Man’s Statute and that the estate was entitled to partial summary judgment as a matter of law.

Indiana Tax Court posted no opinions at 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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