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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. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

  2. If justice is not found in a court room, it's time to clean house!!! Even judges are accountable to a higher Judge!!!

  3. The small claims system, based on my recent and current usage of it, is not exactly a shining example of justice prevailing. The system appears slow and clunky and people involved seem uninterested in actually serving justice within a reasonable time frame. Any improvement in accountability and performance would gain a vote from me. Speaking of voting, what do the people know about judges and justice from the bench perspective. I think they have a tendency to "vote" for judges based on party affiliation or name coolness factor (like Stoner, for example!). I don't know what to do in my current situation other than grin and bear it, but my case is an example of things working neither smoothly, effectively nor expeditiously. After this experience I'd pay more to have the higher courts hear the case -- if I had the money. Oh the conundrum.

  4. My dear Smith, I was beginning to fear, from your absense, that some Obrien of the Nanny State had you in Room 101. So glad to see you back and speaking truth to power, old chum.

  5. here is one from Reason magazine. these are not my words, but they are legitimate concerns. http://reason.com/blog/2010/03/03/fearmongering-at-the-splc quote: "The Southern Poverty Law Center, which would paint a box of Wheaties as an extremist threat if it thought that would help it raise funds, has issued a new "intelligence report" announcing that "an astonishing 363 new Patriot groups appeared in 2009, with the totals going from 149 groups (including 42 militias) to 512 (127 of them militias) -- a 244% jump." To illustrate how dangerous these groups are, the Center cites some recent arrests of right-wing figures for planning or carrying out violent attacks. But it doesn't demonstrate that any of the arrestees were a part of the Patriot milieu, and indeed it includes some cases involving racist skinheads, who are another movement entirely. As far as the SPLC is concerned, though, skinheads and Birchers and Glenn Beck fans are all tied together in one big ball of scary. The group delights in finding tenuous ties between the tendencies it tracks, then describing its discoveries in as ominous a tone as possible." --- I wonder if all the republicans that belong to the ISBA would like to know who and why this outfit was called upon to receive such accolades. I remember when they were off calling Trent Lott a bigot too. Preposterous that this man was brought to an overwhelmingly republican state to speak. This is a nakedly partisan institution and it was a seriously bad choice.

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