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Opinions Nov. 12, 2010

November 12, 2010
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Indiana Supreme Court
In the Matter of William J. Rawls
49S00-0908-DI-355
Discipline. Disbars Rawls for violating Indiana Professional Conduct Rules 1.2(a), 1.3, 1.4(a), 1.16(d), 8.1(a), 8.1(b), 8.4(b), and 8.4(c). Rawls has demonstrated a pattern of neglect of his clients' cases, resulting in adverse dispositions, suspension of one client's driver's license, a missed opportunity to settle, and undue delay.

Indiana Court of Appeals
R.H. v. State of Indiana
71A03-1003-JV-206
Juvenile. Affirms awarding guardianship of R.H. to the Indiana Department of Correction. His placement is justified by the two instant adjudications, his behavior while in detention and on electronic monitoring, his pattern of inappropriate sexual conduct, and his family’s inability or refusal to address his inappropriate sexual conduct.

Michael McAllister, et al. v. Loretta A. Sanders, et al.
76A03-1006-MI-306
Miscellaneous. Affirms summary judgment in favor of intervenors Williamson and the Grays in which the court concluded there had been a common law dedication of the disputed parcel of land – an alley between the Williamson and Grays’ lots. The trial court did not err when it found that Loretta Sanders intended to make a common law dedication of the disputed alley and that the McAllisters and Zirkle had not acquired fee simple title by adverse possession.  

Brian McNeill v. State of Indiana
71A05-1003-CR-219
Criminal. Affirms conviction of Class B felony aggravated battery because there was sufficient evidence to support the conviction. McNeill was at the crime scene and participated in the crime by firing his gun.

Tracie Burton v. Donna Bridwell, et al.
47A01-1003-CT-185
Civil tort. Reverses jury’s determination that Burton, as a passenger in a car, was at 50 percent fault for an auto accident, but rules the error was harmless. Affirms the damage award because it was within the bounds of the evidence that was presented at trial.

Town of Avon v. West Central Conservancy District, et al.
32A05-1003-PL-149
Civil plenary. Affirms summary judgment in favor of the West Central Conservancy District and other appellees on their challenge of an ordinance enacted by Avon that purports to regulate the conservancy district and township’s ability to remove and sell groundwater that was located in a local park. The Home Rule Act makes it clear that Avon may not impose a duty on the appellees “except as expressly granted by statute.” Ind. Code Section 36-1-3-8(a)(3). Therefore, because an aquifer is not a watercourse, Avon has no authority to restrict what the appellees choose to do with the groundwater in the aquifers.

Jimmy Morris v. State of Indiana
49A04-1003-CR-165
Criminal. Affirms denial of motion to modify sentence placement. The 2001 modification of Ind. Code Section 35-38-1-17(b) did not give the trial court authority to modify Morris’ 1998 sentence.

Lucio Garcia v. State of Indiana
49A02-1005-PC-597
Post conviction. Affirms denial of petition for post-conviction relief. Garcia didn’t meet his burden to prove he received ineffective assistance of counsel.

Leo Machine & Tool Inc., et al. v. Poe Volunteer Fire Dept. Inc., et al.
02A03-1003-PL-143
Civil plenary. Affirms summary judgment ruling that Poe Volunteer Fire Department is immune from liability under the Indiana Tort Claims Act and denial of Leo Machine’s complaint for damages suffered as a result of a fire. The Poe Fire Department’s actions are entitled to immunity as these were undertaken after a conscious and informed risk/benefit analysis based upon the specific challenges and threats caused by this particular fire.

Joseph L. Haskett v. State of Indiana (NFP)
52A02-1004-CR-505
Criminal. Affirms sentence following guilty plea to Class B felony dealing in methamphetamine.

Randy L. Labresh v. State of Indiana (NFP)
45A05-1004-CR-229
Criminal. Affirms sentence following guilty plea to Class C felony operating a vehicle while intoxicated causing death.

John F. Minter v. State of Indiana (NFP)
49A05-0911-CR-666
Criminal. Affirms convictions of Class A felony dealing in cocaine, Class C felony possession of cocaine, and Class B felony unlawful possession of a firearm by a serious violent felon.

Samuel D. Clark, Jr. v. State of Indiana (NFP)
33A01-1004-CR-236
Criminal. Affirms revocation of home detention and suspended sentence.

Roman Warner v. Alan Finnan, et al. (NFP)
77A05-0905-CV-251
Civil. Affirms order denying Warner’s motion for extension of time to file his reply brief. Warner waived his claims for failure to develop the record on appeal.

Donielle S. Sims v. State of Indiana (NFP)
45A03-1003-CR-140
Criminal. Affirms conviction of and sentence for Class A felony attempted robbery.

W.T. v. State of Indiana (NFP)
49A02-1002-JV-120
Juvenile. Affirms trial court valuation of one of the items W.T. stole.

David Lee Wright v. State of Indiana (NFP)
19A01-1003-PC-161
Post conviction. Affirms denial of petition for post-conviction relief.

Paul Hagedorn v. Dennis Talboom (NFP)
71A03-1002-SC-48
Small claims. Affirms finding Talboom’s damages were $2,593 plus costs.

Walter A. Griffin v. State of Indiana (NFP)
49A05-1003-CR-199
Criminal. Affirms conviction of Class A misdemeanor criminal trespass.

Timothy Martin v. State of Indiana (NFP)
35A05-1005-CR-333
Criminal. Affirms denial of motion to withdraw plea of guilty but mentally ill to Class B felony burglary.

Simon Allen v. State of Indiana (NFP)
67A01-1005-CR-245
Criminal. Affirms convictions of Class C felony conspiracy to commit trafficking with an inmate and Class D felony possession of cocaine. Remands for clarification of the sentence imposed.

Charles E. Gould v. State of Indiana (NFP)
49A02-1004-CR-430
Criminal. Affirms conviction of Class A felony burglary.

D.M. v. State of Indiana (NFP)
49A02-1005-JV-551
Juvenile. Affirms finding D.M. delinquent for committing what would be Class B felony burglary and Class D felony theft if committed by an adult.

Christopher Upton v. State of Indiana (NFP)
49A04-1003-CR-135
Criminal. Affirms conviction of invasion of privacy but reverses the enhancement to a Class D felony and remands for entry of and sentencing for the conviction as a Class A misdemeanor.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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