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Opinions Nov. 10, 2011

November 10, 2011
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The following Indiana Tax Court opinion was posted after IL deadline Wednesday:
Maurice O. Fuller and Craig L. Fuller v. Cass County Assessor (NFP)
49T10-1011-TA-68
Tax. Affirms the final determination of the Indiana Board of Tax Review that Maurice Fuller did not establish that he was entitled to the homestead credit, the homestead standard deduction or the mortgage deduction for the 2007-pay-2008 period. Denies Fuller’s claim for fees and costs.

Thursday’s opinions
7th Circuit Court of Appeals

United States of America v. Dale Russell
10-2259
U.S. District Court, Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker.
Criminal. Affirms Dale Russell’s convictions of producing sexually explicit photographs of his minor daughters, which later crossed international boundaries, and his 38-year prison sentence. Russell argued that the District Court erred in allowing one of his daughters to testify that he had touched her inappropriately one to two years before he took the photographs charged in this case; in excluding from evidence a number of photography books from his collection containing photographs of nude families and children, as well as the proffered testimony of an expert concerning the practice of nudism; and instructing the jury that evidence of a defendant’s flight from prosecution could be considered as evidence of his consciousness of guilt. Judge Gottschall concurs in a separate opinion.

Krysten A. Overly v. KeyBank National Association, et al.
10-2705
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Affirms summary judgment for KeyBank on Overly’s suit for gender discrimination and retaliation. There are no disputed issues of genuine fact to Overly’s claims.

Gregory L. Payne v. Richard Brown, superintendent, Wabash Valley Correctional Facility
10-1869
U.S. District Court, Southern District of Indiana, Terre Haute Division, Chief Judge Richard L. Young.
Civil. Affirms 50-year sentence following guilty plea to four felony charges related to raping a teen. Concludes the state court’s decision in Payne’s case regarding the appropriateness of his sentence was contrary to clearly established federal law as determined by the Supreme Court of the United States, but Payne knew that his time in prison could be 50 years or more with consecutive sentences.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals

Anthony H. Dye v. State of Indiana
20A04-1011-CR-728
Criminal. Affirms 30-year sentence, which was enhanced after a finding that Dye is a habitual offender, following Dye’s guilty plea to Class B felony unlawful possession of a firearm by a serious violent felon. The trial court did not err in denying Dye’s motion to dismiss the habitual offender charge. Although the two convictions arose out of the same res gestae, it did not constitute an impermissible double enhancement. Affirms in all other respects. Judge Melissa May dissents.

Jai Cook v. Atlanta, Indiana Town Council
29A02-1105-MI-410
Miscellaneous. Reverses denial of Cook’s petition for judicial review and writ of mandamus. Concludes that Indiana Code 36-8-3-4(m) does not permit a town to terminate the employment of a town marshal in contravention of the express language of I.C. 36-5-7-3 related to the termination or suspension of town marshals specifically. Remands for further proceedings.

In the Matter of Commitment of M.E. v. V.A. Medical Center
49A04-1102-MH-63
Mental health. Affirms order of regular commitment entered by the trial court. M.E. has not established that the trial court committed fundamental error. Judge Bailey concurs in result.

Tommy Britt v. State of Indiana (NFP)
13A01-1012-CR-682
Criminal. Affirms conviction of Class B felony arson.

David J. Johnson v. Kira Johnson Bower (NFP)
54A04-1102-DR-108
Domestic relation. Reverses denial of David Johnson’s motion to modify custody.

In Re the Marriage of: Leigh Sewell v. Lois Sewell (NFP)
53A05-1103-DR-272
Domestic relation. Affirms order that Leigh Sewell receive $140,000 from the TIAA-CREF retirement account of Lois Sewell and no amount of the remainder of the funds in the account.

Wayne Neal Cavanaugh v. State of Indiana (NFP)
05A05-1105-CR-236
Criminal. Affirms finding Cavanaugh violated the terms of his probation and the sentence imposed following the revocation of probation.

David Dunlap v. State of Indiana (NFP)
49A02-1104-CR-333
Criminal. Affirms sentence following guilty plea to seven counts of Class B felony robbery.

Miriam M. Rutherford v. State of Indiana (NFP)
34A05-1106-CR-293
Criminal. Affirms conviction of Class B misdemeanor disorderly conduct.

Willie Myles, Jr. v. State of Indiana (NFP)
52A02-1011-CR-1315
Criminal. Affirms sentence following guilty plea to Class B felony dealing in cocaine.

Term. of Parent-Child Rel. of C.T. and J.D.; D.T. v. Indiana Dept. of Child Services (NFP)
56A03-1103-JT-111
Juvenile. Reverses involuntary termination of parental rights and remands with instructions that the trial court enter additional findings to support its judgment.

Johnny Ray Foster v. State of Indiana (NFP)
81A01-1103-CR-157
Criminal. Affirms convictions of Class B felony burglary, Class C felony burglary, Class D felony theft and Class D felony criminal gang activity, but reverses sentence and remands with instructions to correct the sentencing order.

In the Matter of the Term. of the Parent-Child Rel. of V.H.; V.H. v. The Indiana Dept. of Child Svcs. (NFP)

57A03-1103-JT-141
Juvenile. Affirms involuntary termination of parental rights.

Vassil Marinov and Venetka Marinov v. Wake Robin Estates II Homeowner's Association, Inc. (NFP)
79A02-1104-SC-299
Small claim. Affirms judgment against the Marinovs for homeowner’s association dues and attorney fees.

State of Indiana and the Metropolitan Drug Task Force v. Joseph Ferguson (NFP)
49A05-1106-MI-271
Miscellaneous. Affirms decision by the trial court to exclude the state’s witnesses and exhibits.

Dale D. Wing, Jr. v. State of Indiana (NFP)
20A04-1103-CR-164
Criminal. Reverses denial of petition for jail credit time.

In the Matter of the Term. of the Parent-Child Rel. of S.S. and D.S.; Do.S. v. Indiana Dept. of Child Svcs. (NFP)

03A05-1102-JT-101
Juvenile. Affirms involuntary termination of parental rights.

N.B. v. State of Indiana (NFP)
49A02-1101-JV-121
Juvenile. Affirms determination N.B. is a delinquent child for committing what would be Class A felony arson if committed by an adult.

Joseph Fairrow v. State of Indiana (NFP)
49A05-1012-CR-765
Criminal. Grants rehearing to clarify that a tape recording of the incident involving Fairrow was considered in rendering the appellate court’s decision.

Joseph A. Geesy v. April L. Geesy (NFP)
68A05-1106-RS-330
Reciprocal support. Reverses finding that Joseph Geesy was in contempt for failing to pay child support.

Derek J. Jones v. State of Indiana (NFP)
20A03-1103-CR-95
Criminal. Affirms convictions of various child molesting and other related charges. Vacates trial court’s 40-year sentence for Class C felony child molesting and remands for the trial court to enter a six-year sentence on that count to run consecutively to the sentences for the convictions related to the other victims, for an aggregate sentence of 69 years.

William C. Davis v. State of Indiana (NFP)
65A01-1004-PC-208
Post conviction. Affirms denial of petition for post-conviction relief and remands for specific findings as to the remaining issues as to which no specific findings were made.

Dwight A. Sanaker v. Delaware Advancement Corp. d/b/a Horizon Convention Center (NFP)
18A05-1104-CT-154
Civil tort. Reverses summary judgment for Horizon Convention Center in a negligence case. Remands for further proceedings.

Michael Henderson v. State of Indiana (NFP)
49A02-1102-CR-108
Criminal. Affirms conviction of Class B misdemeanor disorderly conduct and reverses conviction of Class B misdemeanor public intoxication.

Craig S. Alvey v. Forest River Inc. (NFP)
20A03-1105-PL-216
Civil plenary. Affirms partial grant of summary judgment for Forest River in an employment contract dispute.

Indiana Tax Court had 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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