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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 don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  2. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  3. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  4. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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