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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. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  2. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  3. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

  4. I am one of Steele's victims and was taken for $6,000. I want my money back due to him doing nothing for me. I filed for divorce after a 16 year marriage and lost everything. My kids, my home, cars, money, pension. Every attorney I have talked to is not willing to help me. What can I do? I was told i can file a civil suit but you have to have all of Steelers info that I don't have. Of someone can please help me or tell me what info I need would be great.

  5. It would appear that news breaking on Drudge from the Hoosier state (link below) ties back to this Hoosier story from the beginning of the recent police disrespect period .... MCBA president Cassandra Bentley McNair issued the statement on behalf of the association Dec. 1. The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer Darren Wilson for shooting Michael Brown. “The MCBA does not believe this was a just outcome to this process, and is disheartened that the system we as lawyers are intended to uphold failed the African-American community in such a way,” the association stated. “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” http://www.thestarpress.com/story/news/local/2016/07/18/hate-cops-sign-prompts-controversy/87242664/

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