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Opinions Oct. 25, 2011

October 25, 2011
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7th Circuit Court of Appeals
United States of America v. Marlyn J. Barnes and Melvin B. Taylor
11-1261, 11-1602
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springmann.
Criminal. Affirms the resentencing of Barnes to 292 months and Taylor to 188 months for conspiring to possess with intent to distribute more than 5 kilograms of cocaine. The District Court’s analysis evinces the perception of fair sentencing and reasonableness.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Dejuan Hill v. State of Indiana
48A02-1103-CR-179
Criminal. Reverses conviction of Class B felony unlawful possession of a firearm by a serious violent felon. The evidence doesn’t support a determination that the police officer held a reasonable belief that Hill was armed and dangerous at the time of the pat-down search, and the trial court abused its discretion in admitting a gun found in the police car into evidence.

Dewand A. Hardin v. State of Indiana
49A02-1101-CR-37
Criminal. Affirms convictions of Class A felony robbery resulting in serious bodily injury, Class B felony aggravated battery, Class B felony carjacking, and Class A misdemeanor resisting law enforcement. Hardin was not denied the right to a fair trial by jury because one of the jurors had slept through some of his trial as he waived his right to appeal this issue by not objecting to the court’s proposed remedy.

Donald K. Haire and Julie A. Haire v. Andrew Parker
24A01-1102-CT-24
Civil tort. Reverses summary judgment to Parker in the Haires’ suit alleging negligence following an ATV accident. Issues of fact remain as to whether Parker’s actions constituted a breach of duty and whether he was a rider in terms of the release and waiver of liability.

T.R. v. Review Board of the Indiana Dept. of Workforce Development
93A02-1005-EX-640
Agency appeal. Grants rehearing to clarify reasoning that T.R.’s missed opportunity to participate in a telephonic hearing could have been anticipated and prevented, so she wasn’t denied due process. Reaffirms opinion in all respects.

Timothy W. Plank, Individually and as Personal Representative of the Estate of Debra L. Plank, Deceased v. Community Hospitals of Indiana, Inc. and State of Indiana
49A04-1004-CT-254
Civil tort. Reverses denial of Plank’s request for an evidentiary hearing on the issue of whether the statutory cap under the Indiana Medical Malpractice Act is unconstitutional. Based on previous caselaw, Plank is entitled to an evidentiary hearing. Affirms instruction to the jury on the hospital’s liability for the negligence of independent contractors. The consent form was ambiguous as to whether Debra Plank actually received noticed that her radiologist was an independent contractor. Remands for further proceedings. Judge Baker dissents regarding whether Plank waived his constitutional arguments.

Victor Jeffrey and Lynell Jeffrey v. The Methodist Hospitals, Paul Okolocha, M.D., Okolocha Medical Corp., and Okolocha Medical, Pain and Weight
45A03-1012-CT-636
Civil tort. Affirms partial summary judgment for Dr. Paul Okolocha and reverses judgment for the hospital on the Jeffreys’ malpractice actions. The trial court erred in its finding that the hospital had
no duty to provide the sonogram report to the Jeffreys since the sonogram report was “not within the description of the documents requested.” There are also issues of fact as to whether the Jeffreys’ reliance on the statements by the nurse and social worker was justified. Remands for further proceedings.

Skyline Roofing & Sheet Metal Co. Inc. v. Ziolkowski Construction, Inc. and United Union of Roofers, Waterproofers and Allied Workers Local #26
71A03-1105-PL-202
Civil plenary. Reverses dismissal with prejudice of Skyline Roofing & Sheet Metal Co.’s amended complaint alleging violations of the Indiana Antitrust Act. The amended complaint is sufficient to survive a motion to dismiss and the trial court erred by dismissing the complaint because Skyline did not join Midland as a necessary party. Remands for further proceedings.

Robert S. Troxell v. State of Indiana
18A04-1102-CR-98
Criminal. Reverses denial of petition for alternative misdemeanor sentencing. The state entered into a plea agreement that did not permit Troxell to petition for a reduction until after three years had passed. It may not now claim Troxell is time barred from petitioning for a reduction in conviction because he did not do so within three years.

Theothus Carter v. State of Indiana
30A05-1012-CR-804
Criminal. Vacates conviction of Class A felony burglary because of double jeopardy violations and orders the trial court to reduce it to a Class B felony and resentence Carter accordingly. Affirms convictions of Class A felony attempted murder and attempted robbery. Although the prosecutor’s comments were inappropriate and amounted to misconduct, it is not fundamental error.

Walter Lyles v. State of Indiana
49A02-1104-CR-291
Criminal. Reverses conviction of Class A misdemeanor criminal trespass. The state failed to prove an essential element of the charge – that Lyles did not have a contractual interest in the property.

Johnny Ray Jenkins v. State of Indiana
48A04-1102-CR-64
Criminal. Affirms order revoking probation and imposition of a 12-year sentence. The evidence is sufficient to support the finding Jenkins violated the terms of his probation by failing to pay court costs and probation fees. Judge Riley dissents.

David Lee Fist v. Carri Mullis (NFP)
47A05-1010-DR-674
Domestic relation. Affirms reduction of father’s weekly child support obligation.

Jonathan Jones v. State of Indiana (NFP)
49A02-1102-CR-60
Criminal. Affirms convictions of Class C felony forgery and one count of Class D felony theft. Reverses another Class D felony theft conviction because of double jeopardy violations.

Santos Vasquez v. State of Indiana (NFP)

49A05-1103-CR-98
Criminal. Affirms conviction of Class D felony residential entry.

Tracy L. Henningsen v. Tracy H. Henningsen (NFP)
16A01-1012-DR-640
Domestic relation. Affirms in part and reverses in part the trial court’s modification and citation order.

Isabelle Almodovar v. State of Indiana (NFP)
64A03-1012-CR-633
Criminal. Affirms denial of motion to suppress evidence.

Dorothy Chandler v. Chris Hair, individually, d/b/a C&C Construction and d/b/a Right Touch Services or another venture or partnership, and Jeff Norris (NFP)
49A02-1102-PL-119
Civil plenary. Affirms order entering judgment on the evidence in favor of defendant Hair and the jury verdict in favor of Norris on Chandler’s negligence and breach of contract claims.

Larry Gross, Jr. and Charles Johnson v. Erica Stephenson (NFP)
49A02-1101-PL-127
Civil plenary. Dismisses Gross and Johnson’s appeal of the denial of their summary judgment motion in a breach of contract and conversion suit.

Henry Porter v. State of Indiana (NFP)
82A04-1104-CR-168
Criminal. Affirms conviction of Class A misdemeanor resisting law enforcement.

Timmy Nguyen and Timmy Nguyen d/b/a Indianapolis Vite Bao v. Hang T. and Thom T. Nguyen (NFP)
29A02-1012-SC-1370
Small claim. Affirms in part and reverses in part the small claims court judgment in favor of Hang Nguyen in a dispute about money withdrawn from the Indianapolis Viet Bao business checking account. Remands with instructions to enter judgment against Timmy and in favor of Hang for $1,792.04 plus court costs and to amend written judgment accordingly. Judge Baker concurs and dissents with opinion.

Milton Elliot v. State of Indiana (NFP)
49A02-1103-CR-156
Criminal. Affirms conviction of and sentence for Class B felony dealing in methamphetamine. Remands for additional findings.

Michael Englehardt v. State of Indiana (NFP)
82A01-1103-CR-107
Criminal. Affirms convictions of Class A misdemeanors invasion of privacy and criminal trespass and two counts of Class B misdemeanor criminal mischief.

Lonnie Garner, Jr. v. Edwin Buss, Indiana Parole Board and D. Carneygee, Superintendent (NFP)
48A04-1103-MI-174
Miscellaneous. Affirms in part and reverses in part the order granting a motion to dismiss Garner’s petition for writ of habeas corpus. Remands claims challenging the parole revocation proceedings with instructions for the court to exercise its jurisdiction to consider those claims on the merits rather than dismiss.

Aaron D. Kelley, Jr. v. State of Indiana (NFP)
45A03-1007-PC-398
Post conviction. Dismisses appeal of the denial of Kelley’s motion for educational credit time.

Roy L. Garrard v. State of Indiana (NFP)
49A02-1103-CR-244
Criminal. Affirms status as a habitual offender.

Chris Davis v. State of Indiana (NFP)
49A02-1102-CR-141
Criminal. Affirms conviction of Class C felony carrying a handgun without a license.

Terry Taylor v. State of Indiana (NFP)
79A02-1102-CR-162
Criminal. Affirms convictions of and sentence for Class A felony dealing in cocaine and two counts of Class A misdemeanor resisting law enforcement.

D.C. v. J.J. (NFP)
29A02-1009-JP-1111
Juvenile. Affirms in part and reverses in part order modifying the paternity decree. Remands for trial court to order father to submit his 2010 tax return and pay stubs or other evidence of his 2011 income to date, as well as recalculate his arrearage in light of a credit for paying health insurance premiums retroactive to May 1, 2009.

Karen Neiswinger v. Nathaniel Lee and Robert Delaney (NFP)
89A01-1012-CT-667
Civil tort. Affirms order apportioning attorney fees between Neiswinger, Lee and Delaney for work done on behalf of plaintiffs Sherrie and Kevin Allen.

Indiana Tax Court had posted no opinions at IL deadline.

 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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