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Opinions Nov. 29, 2011

November 29, 2011
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7th Circuit Court of Appeals had posted no Indiana opinions at IL deadline.

Indiana Supreme Court
David Hopper v. State of Indiana
13S01-1007-PC-399
Post conviction. Grants rehearing to address the role and necessity of advising someone of the risks of dealing with prosecutors without a lawyer. The post-conviction court was right that Hopper’s waiver of counsel was voluntary and intelligent. Finds Hopper’s contention that advisement language should be mandatory in all stages of all cases with all defendants is misplaced. Justice Rucker dissents with separate opinion, in which Justice Sullivan concurs.

Indiana Court of Appeals
Justin Woodhouse v. State of Indiana (NFP)
12A02-1012-CR-1322
Criminal. Affirms convictions of Class B felony dealing in methamphetamine, Class D felony possession of a chemical reagent or precursor with intent to manufacture a controlled substance, Class D felony maintaining a common nuisance, Class A misdemeanor resisting law enforcement, Class B misdemeanor disorderly conduct, and four counts of Class C misdemeanor purchasing more than three grams of a precursor. Remands to clarify its earlier order to properly indicate the merger of counts I and II.

McCoy Tile v. Meyer Glass & Mirror, and Robert Fryer (NFP)
46A03-1102-SC-102
Small claims. Affirms judgment in favor of Fryer with respect to his claim that McCoy Tile improperly installed tile in Fryer’s shower.

Rodney Johnson v. State of Indiana (NFP)
71A03-1103-PC-97
Post conviction. Affirms denial of petition for post-conviction relief.

Matthew Totten v. Review Board of the Indiana Workforce Development and Great Lakes Granite (NFP)
93A02-1102-EX-209
Agency appeal. Affirms denial of employment benefits.

Nationwide Ins. Co., and Edward and Anne Mickel v. Paul Parmer, II, Rick Ramsey and Heather Sida
41A01-1008-CT-377
Civil tort. Affirms orders granting Parmer’s and Sida’s motions for leave to amend their affirmative defenses and the order denying the Mickels’ and Nationwide Insurance Co.’s motion to reconsider. The Mickels and Nationwide did not timely request certification of the Jan. 4 order and therefore waived their claims regarding the order on appeal. Sida properly objected to the trial court’s dismissal and preserved her right to add nonparty defendants.

Max Riley v. State of Indiana (NFP)
49A05-1105-CR-233
Criminal. Affirms conviction of Class D felony attempted theft.

Natalie A. Miller, Individually and as Administratrix of the Estate of Alexis J. Ritch, Daniel J. Ritch, et al. v. L. Barrett Bernard, M.D., the Bethany Circle of King's Daughters Hospital & Health, et al.
39A05-1009-PL-546
Civil plenary. Reverses in part summary judgment for defendants Morton Grove Pharmaceuticals and CVS Pharmacy. The trial court erred in excluding the testimony of Dr. Loeb; defendants were entitled to the statutory rebuttable presumption of no defect in the manufacture of Promethazine Syrup Plain, but whether the plaintiffs have rebutted this presumption remains a question of fact; and whether MGP’s production and CVS’s distribution of PSP caused Alexis Ritch’s death is also a question of fact. Concludes that the trial court did not err in denying the defendants’ motion to exclude other expert testimonies in favor of the plaintiffs. Affirms in part the allowance of the opinions of doctors Kenneth Kulig and George Nichols. Remands for further proceedings.

Darnell Daniels v. State of Indiana
20A03-1104-CR-165
Criminal. Affirms convictions of Class B felony robbery and Class C felony intimidation. The state only needed to present evidence from which the jury could infer that the victim was in fact put in fear. It’s not necessary for the victim to testify that he or she was actually put in fear. The variance in the charging information and the proof at trial is not fatal and there was sufficient evidence that Daniels “used” the gun while intimidating his victim.

Jose Rodriguez v. State of Indiana (NFP)
49A05-1006-CR-410
Criminal. Grants rehearing for the limited purpose of clarifying that the failure to instruct issue is waived. Affirms original opinion in all respects.

State of Indiana v. Jaime Bonilla
49A02-1102-PC-144
Post conviction. Reverses grant of petition for post-conviction relief. Bonilla did not allege special circumstances or objective facts demonstrating his decision to plead guilty was driven by his counsel’s erroneous advice.

Steve Barnett v. State of Indiana (NFP)
87A01-1008-CR-397
Criminal. Affirms revocation of probation.

In Re: The Marriage of Steve Metzger and Peggy Metzger (NFP)
43A03-1101-DR-18
Domestic relation. Affirms order that father pay child support and a portion of expenses incurred for the post-secondary education of two of his children.

Sean Holtsclaw v. State of Indiana (NFP)
71A04-1103-CR-118
Criminal. Affirms conviction of Class B felony burglary.

Martize Sevion v. State of Indiana (NFP)
18A05-1102-CR-125
Criminal. Affirms denial of Sevion’s motion to correct erroneous sentence. Dismisses Sevion’s claims with respect to the merits of his conviction due to his untimely appeal.

Erica Ball v. State of Indiana (NFP)
49A05-1103-CR-132
Criminal. Affirms conviction of Class B misdemeanor disorderly conduct.

Joseph Simmons v. State of Indiana (NFP)
40A01-1104-PC-186
Post conviction. Affirms denial of petition for post-conviction relief.

K.S. v. State of Indiana (NFP)
71A03-1105-JV-252
Juvenile. Affirms disposition order following adjudication as a delinquent for committing what would be theft if committed by an adult.

John V. Loudermilk, Continental American Ins. Co., Geneva P. Loudermilk, et al. v. Jet Credit Union n/k/a Credit Union 1 (NFP)
49A02-1006-PL-665
Civil plenary. Affirms grant of partial summary judgment in favor of Jet Credit regarding co-defendants’ counterclaim for common law conversion.

A.W.S. v. C.S.-R. (NFP)
29A04-1102-DR-142
Domestic relation. Affirms denial of father’s petition to remove restrictions on parenting time.

Kevin Scaife v. State of Indiana (NFP)
49A02-1102-CR-172
Criminal. Affirms conviction of Class D felony theft.

D.L., b/n/f G.L. v. Pioneer School Corporation, Pioneer Board of School Trustees and Larry John
09A02-1103-MI-271
Miscellaneous. Affirms denial of D.L.’s request to overturn his expulsion from Pioneer High School. The trial court’s decision was not contrary to law.

Indiana Tax Court had posted no opinions at IL deadline.

The Indiana Supreme Court denied transfer to one case for the week ending Nov. 23.
 

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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