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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. I can understand a 10 yr suspension for drinking and driving and not following the rules,but don't you think the people who compleate their sentences and are trying to be good people of their community,and are on the right path should be able to obtain a drivers license to do as they please.We as a state should encourage good behavior instead of saying well you did all your time but we can't give you a license come on.When is a persons time served than cause from where I'm standing,its still a punishment,when u can't have the freedom to go where ever you want to in car,truck ,motorcycle,maybe their should be better programs for people instead of just throwing them away like daily trash,then expecting them to change because they we in jail or prison for x amount of yrs.Everyone should look around because we all pay each others bills,and keep each other in business..better knowledge equals better community equals better people...just my 2 cents

  2. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

  3. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  4. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

  5. Hemp has very little THC which is needed to kill cancer cells! Growing cannabis plants for THC inside a hemp field will not work...where is the fear? From not really knowing about Cannabis and Hemp or just not listening to the people teaching you through testimonies and packets of info over the last few years! Wake up Hoosier law makers!

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