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Opinions Nov. 20, 2012

November 20, 2012
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7th Circuit Court of Appeals
United States of America v. Lincoln Plowman
11-3781
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Larry J. McKinney.
Criminal. Affirms Plowman’s convictions of federal funds bribery and attempted extortion under color of official right. The District Court did not err when it precluded him from arguing entrapment to the jury.

Shane A. Holloway v. Delaware County Sheriff, in his official capacity, et al.
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2012/november/ND0NZ09G.pdf
12-2592
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane E. Magnus-Stinson.
Civil. Affirms summary judgment for the defendants on Holloway’s lawsuit alleging the sheriff violated his rights by detaining him without charges for nine days and that the jail physician and two of his attending nurses violated his constitutional rights by acting with deliberate indifference as to his serious medical condition. Based on the evidence, no reasonable jury could have concluded the doctor acted with deliberate indifference, the nurses could not prescribe medicine on their own, and Holloway can’t demonstrate that the sheriff’s actions violated due process or that the sheriff acted pursuant to an unconstitutional policy or custom.

Indiana Court of Appeals
Dennis Vermillion v. State of Indiana
13A01-1201-CR-17
Criminal. Affirmed in part, reversed in part and remanded for resentencing. The COA ruled Vermillion’s convictions do not violate double jeopardy and while the admission of prior-misconduct evidence was an error, it did not constitute a fundamental error. Also, the court concluded the trial court acted within its discretion in ordering Vermillion to serve consecutive sentences. However, it did find Vermillion’s total sentence exceeds the cap permitted by the Indiana Code section 35-50-1-2(c).

Cynthia L. Seleme v. JP Morgan Chase Bank, National Association, as successor by merger to Chase Home Finance
02A03-1205-MF-234
Mortgage foreclosure. Affirms trial court denial of relief from judgment on a residential mortgage, finding that the plaintiff did not demonstrate a meritorious defense as required under Trial Rule 60(B)(1), (3), or (7).

Richard Troy Dunno v. Ronalee Rasmussen
02A03-1207-PO-310
Protective order. Reverses trial court’s judgment ordering Dunno to pay Rasmussen’s attorney fees when she contested a protective order that Dunno had been granted against her on the allegation that she hit him with a vodka bottle, resulting in 18 stitches. The COA held that the trial court abused its discretion in awarding attorney fees to Rasmussen when she presented evidence at a hearing Dunno didn’t attend saying that she wasn’t the aggressor. The court held that awarding of fees was an abuse of discretion because the trial court cited no statutory authority under which the award could be made.

In the Matter of the Commitment of L.W. v. Wishard Health Services, Midtown Community Mental Health Center (NFP)
49A05-1202-MH-70
Mental Health. Affirms trial court’s order to involuntarily commit L.W. to Midtown Community Mental Health Center.

A.M. v. State of Indiana (NFP)
67A01-1205-JV-211
Juvenile Delinquency. Reverses trial court’s order adjudicating A.M. as a delinquent child.

Daniel R. Fuquay, Sr. v. State of Indiana (NFP)
82A01-1110-PC-519
Post-Conviction Relief Petition. Affirms denial of petition for post-conviction relief.

Paulette Petkovich, et al. v. Prime Contractors Co., Inc. (NFP)
64A03-1203-MF-102
Mortgage Foreclosure. Affirms in part, reserves in part, and remands. The COA affirms the award of attorney’s fees to Prime Contractors; but reverses and remands the trial court’s judgment in setting the priority of the various liens on the home.

Jose Gonzalez v. State of Indiana (NFP)
48A02-1203-CR-182
Criminal. Affirms the trial court’s decision to sentence Gonzalez to 40 years.

Damian Ray Ramirez v. State of Indiana (NFP)
71A04-1205-CR-274
Criminal. Affirms conviction for battery with a deadly weapon, a Class C felony.

In the Matter of the Term. of the Parent-Child Rel. of B.T., C.K. and D.K.; D.K. v. Indiana Dept. of Child Services (NFP)
49A05-1202-JT-89
Juvenile Termination of Parental Rights. Affirms mother’s involuntary termination of her parental rights to her minor children, B.T., C.K. and D.K.

Gerald E. Smith v. Ronda K. (Smith) Busch (NFP)
67A01-1205-DR-241
Domestic Relation. Reverses the granting of the motion to correct error and remands this matter to the trial court with instructions to reinstate its order granting the Trial Rule 41(E) dismissal.

Carmel Lofts LLC and Keystone Construction Corp. v. Elbrecht Investments, LLC (NFP)
29A05-1205-PL-266
Civil Plenary. Affirms trial court’s granting of summary judgment for Elbrecht on its mechanic’s lien claim against Carmel Lofts for the full amount of its retainage.

Edward Graveline v. Melina (Graveline) Peyovich (NFP)
45A04-1201-DR-28
Domestic Relation. Affirms trial court’s denial of Graveline’s motion for relief from judgment and declines to award appellate attorney fees in this matter.

In the Matter of the Term. of the Parent-Child Rel. of J.R. and L.R.; and J.E. v. Indiana Dept. of Child Services (NFP)
09A05-1203-JT-152
Juvenile Termination of Parental Rights. Affirms the involuntary termination of father’s rights to his children, J.R. and L.R.

Dequincy Lopez v. State of Indiana (NFP)
49A04-1204-PC-184
Post-Conviction Relief Petition. Affirms denial of Lopez’s request for post-conviction relief.

Ivan Calderon v. State of Indiana (NFP)
49A04-1202-CR-88
Criminal. Affirms conviction of disarming a law enforcement officer as a Class C felony, pointing a firearm as a Class D felony, resisting law enforcement as a Class D felony, possession of marijuana as a Class A misdemeanor, and carrying a handgun without a license as a Class A misdemeanor. Finds trial court did not commit a fundamental error when it admitted the evidence seized from Calderon.  

John R. Northern v. State of Indiana (NFP)
56A03-1202-CR-62
Criminal. Affirms conviction of dealing in methamphetamine as a Class A felony and conspiracy to deal in methamphetamine as a Class A felony.

Dannie Engram v. State of Indiana (NFP)
49A02-1204-PC-309
Post-Conviction Relief Petition. Affirms denial of Engram’s petition for post-conviction relief.

Washaun Jones v. State of Indiana (NFP)
49A02-1204-CR-342
Criminal. Reverse and remands with instructions to vacate trial court’s order regarding the denial of Jones’s credit time for bad behavior and to correct the abstract of judgment so it reflects that Jones was convicted of dealing in cocaine as a Class B felony.

Todd Baker and Susan Baker v. Marathon Pipe Line, LLC (NFP)
87A01-1204-PL-156
Civil Plenary. Affirms denial of Bakers’ motion to correct error on the issue of whether their amended counterclaim for malicious prosecution was properly dismissed and of their motion to file a second amended counterclaim on the malicious prosecution and attorney fees issues.  
 

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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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