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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. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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