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Opinions Nov. 5, 2013

November 5, 2013
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Indiana Supreme Court
Jason Wilson v. Kelly (Wilson) Myers
71S03-1305-DR-399
Domestic relation. Reverses modification of custody. Finds an abuse of discretion in the way this modification was carried out and ordered as it never mentioned whether the modification was in the best interest of the children or noted any substantial change in any of the factors enumerated in I.C. 31-17-2-8. Orders an evidentiary hearing and inquiry into in-camera interviews. Since the two children have already been pulled from their Indiana school system and are attending school in Michigan, this status quo should continue until further order of the court as to minimize further disruption to the kids.

Indiana Court of Appeals
Heather Herren v. Jerry Dishman
18A04-1304-SC-162
Small claims. Affirms an order of replevin returning custody of a dog to Jerry Dishman, after Heather Herren obtained an out-of-state protective order granting her custody and control of any animal owned, possessed, kept or held as a pet by either party. The small claims court erred in refusing to accord full faith and credit to the North Carolina protective order, but because Herren neither owned nor possessed the dog at the time the protective order was issued, she was not entitled to custody.

Andrew Wann v. State of Indiana
32A01-1303-CR-123
Criminal. Affirms order requiring Andrew Wann to serve 90 days of a suspended 365-day sentence for conviction of Class A misdemeanor possession of marijuana after a probationary urinalysis tested positive. The panel rejected Wann’s arguments that the urinalysis report was admitted in violation of his due process rights and that the court imposed a sentence that contravened statutory authority because time served or credited in jail or on probation exceeded 365 days.

Ritchie Hodges v. State of Indiana
06A01-1210-CR-466
Criminal. Reverses trial court order dismissing a claim for post-conviction relief from the revocation of a conditional release to placement in community corrections. The court held that a claim of ineffective assistance of counsel at a hearing to revoke placement is a claim that conditional release was unlawfully revoked, and therefore subject to a claim under Post-Conviction Rule 1(1)(a)(5).

State of Indiana v. William Gilbert
49A05-1303-CR-140
Criminal. Reverses suppression of evidence in a drunken-driving case in which a motorist was taken to a roll-call station where a breath test was administered. Police had probable cause to seize Gilbert after he allegedly ran a stop sign and police smelled alcohol and observed him stumble as he exited his vehicle. His rights under the Fourth Amendment therefore were not violated, the panel ruled.

In the Matter of the Termination of the Parent-Child Relationship of: S.L. & D.L. (Minor Children) and K.M., (Mother) & D.L.,(Father) v, The Indiana Department of Child Services
85A02-1304-JT-308
Termination of parental rights. Affirms trial court termination order for mother and father, concluding there is clear and convincing evidence to support the trial court’s findings and the court’s ultimate determination that there is a reasonable probability that the conditions that resulted in the children’s removal or the reasons for placement outside the home will not be remedied.

D.B., et al., v. Review Board of the Indiana Department of Workforce Development, Department of Workforce Development, and Anderson Transit System, Inc.
93A02-1301-EX-71
Civil. Affirms review board’s denial of school bus drivers’ application for unemployment compensation. Rules the board did not interpret the vacation provisions of Indiana Code Section 22-4-3-5, enacted in 2011 and 2012, too broadly. Presumes since the Legislature has held that mandatory vacation or shutdown period does not entitle employees to unemployment compensation, General Assembly did not  intend to change the common law beyond what its enactments and fair implications allow.  

Anthony E. Boyd v. WHTIV, Inc. and Walter Tarr, IV
49A05-1303-PL-107
Civil plenary. Reverses both the trial court’s denial of Boyd’s motion to correct error and its grant of summary judgment in favor of WHTIV and Tarr. Holds even though Boyd took 33 days to respond to WHTIV’s and Tarr’s motion for summary judgment, Trial Rule 6(E) allows for the extra time because the motion was delivered by mail. Also, since Boyd was denied additional time to complete discovery, the grant of summary judgment was premature.  

Dawn Willsey v. State of Indiana (NFP)
24A01-1302-CR-117
Criminal. Affirms 16-year aggregate sentence following guilty plea to two counts of burglary, Class B felonies.

James W. Avery v. Cynthia L. (Avery) Howe (NFP)
18A05-1301-DR-28
Domestic relation. Affirms trial court’s dissolution decree awarding 60 percent of the marital estate to James Avery and 40 percent  to Cynthia (Avery) Howe.

A.C. James, Jr., v. State of Indiana (NFP)
02A03-1304-CR-108
Criminal. Affirms conviction of murder and criminal recklessness, a Class D felony.

Brandon Titus v. State of Indiana (NFP)
79A02-1305-CR-460
Criminal. Reverses denial of Titus’s petition for modification of convictions and remands to the trial court for further action consistent with this opinion. Holds the trial court’s discretion was limited to determining if Titus had complied with the terms of the plea agreement. Therefore, the court abused its discretion when it considered whether Titus would or could pursue a career in law enforcement.  

Eric Powell v. State of Indiana (NFP)
49A02-1303-CR-226
Criminal. Affirms conviction of Class A misdemeanor possession of marijuana. Finds police officer’s request for Powell’s identification and search for outstanding arrest warrants were reasonable under Article 1, Section 11 of the Indiana Constitution.

The Indiana Tax Court did not submit any opinions by IL deadline. The 7th Circuit Court of Appeals did not submit any Indiana opinions by IL deadline.
 

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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