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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. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

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