ILNews

Opinions Oct. 5. 2010

October 5, 2010
Keywords
Back to TopE-mailPrintBookmark and Share

Indiana Supreme Court
Wayne D. Kubsch v. State of Indiana
71S00-0708-PD-335
Post-conviction. Affirms judgment of the post-conviction court. Kubsch appeals, raising several issues for review, nine of which are waived because they were known and available at the time of Kubsch’s direct appeal and another three issues are barred because of the doctrine of res judicata. Regarding claims the prosecutor failed to disclose exculpatory evidence, rules information was not material and he failed to establish the nine requirements for obtaining a new trial due to newly discovered evidence so his Brady v. Maryland, 373 U.S. 83 (1963), claim fails. Also rules Kubsch failed to demonstrate that counsel rendered ineffective assistance.

Term. of Parent-Child Rel. of I.A.; J.H. v. IDCS
62S01-1003-JV-148
Juvenile. Reverses involuntary termination of parental rights of father, J.H., because the evidence did not prove there is a “reasonable probability” that the reasons for I.A.’s placement outside father’s home will not be remedied or that continuation of the parent-child relationship poses a threat to the child’s well-being. Justice Boehm dissents.

In the Matter of Paternity of P.S.; B.S. v. L.S. & G.D.
02S03-1010-JV-518
Juvenile. Rules the trial court did not abuse its discretion in denying father’s motion for relief from judgment.

Indiana Department of State Revenue v. Belterra Resort Indiana, LLC
49S10-1010-TA-519
Tax. Rules a contribution by a parent corporation to the capital of its subsidiary is not automatically excluded from Indiana use tax. At issue was whether the transfer of the riverboat from the parent company to its subsidiary corporation was a retail transaction under Indiana Code section 6-2.5-3-2(a).

Indiana Court of Appeals
Nevin Brooks v. State of Indiana
49A04-0911-CR-651
Criminal. Affirms conviction of and 55-year sentence for felony murder. Notes the trial court considered Brooks’ age in fashioning the sentence imposed and also considered Brooks’ criminal history. Rules that given the nature of the offense and the character of the offender, the sentence imposed by the trial court is not inappropriate.

State of Indiana v. Amanda Renzulli

32A04-1003-CR-194
Criminal. Affirms trial court’s suppression of evidence obtained after a traffic stop of Renzulli. Judge Bradford dissents, believing police officers had reasonable suspicion.

Tyra L. Brooks v. Larry D. Brooks (NFP)
10A05-0909-CV-546
Civil. Affirms trial court’s dissolution decree.

David Ramos v. Robert W. James and David Hoover (NFP)
34A05-1005-CT-301
Civil tort. Affirms trial court’s grant of summary judgment in favor of David Hoover.

Term. of Parent-Child Rel. of B.D.; G.D. v. IDCS (NFP)
02A03-1004-JT-224
Juvenile Termination. Affirms involuntary termination of parental rights.

Mardi Clemens v. Daniel Clemens (NFP)
02A03-1003-DR-118
Domestic Relation. Concludes the trial court committed error by ordering the wife to pay damages to the husband equal to the amount of the death benefits of the first life insurance policy surrendered by her. Remands for the trial court to adjust its order so that the wife pays to husband the amount that wife received when she liquidated the policy plus any interest that has accrued.

Debra L. Walker v. David M. Pullen (NFP)
64A05-1002-CT-127
Civil tort. Affirms trial court’s grant of Pullen’s motion to correct error after a jury verdict.

William Moore v. State of Indiana (NFP)
49A04-1002-CR-58
Criminal. Affirms convictions of Class B felony burglary and Class D felony theft.

David Likens v. State of Indiana (NFP)
49A02-1003-CR-360
Criminal. Affirms conviction of and 10-year sentence for Class B felony battery.

Kristopher G. Runkle v. State of Indiana (NFP)
05A02-1004-CR-479
Criminal. Affirms conviction of and 4-year sentence for Class D felony residential entry and Class A misdemeanor battery resulting in bodily injury.

Angel L. Highbaugh v. State of Indiana (NFP)
20A03-0911-CR-547
Criminal. Affirms conviction of Class D felony domestic battery.

Robert Lavaugh Ackles v. State of Indiana (NFP)
48A02-1002-CR-118
Criminal. Affirms 36-month sentence – 24 months executed, 12 months suspended – after guilty plea to Class D felony operating a vehicle with an alcohol concentration equivalent of at least 0.15, and failure to yield right-of-way to emergency vehicle and operating a vehicle without financial responsibility, both as a Class A infraction.

Thomas L. White v. State of Indiana (NFP)
20A05-1001-CR-38
Criminal. Affirms conviction of Class D felony operating a vehicle while intoxicated but remands for the trial court to issue a new sentencing order and abstract of judgment regarding his second conviction of OWI to reflect that this conviction is merged with Count I.

Roderick L. Ensley v. State of Indiana (NFP)
02A03-0907-CR-348
Criminal. Affirms in part, reverses in part, and vacates. Rules the trial court did not abuse its discretion in admitting the evidence discovered during the search. Also concludes the evidence was insufficient to support Ensley’s conviction of Class D felony possession of cocaine so reverses that conviction and directs the trial court to vacate the conviction and the attendant sentence.

The Indiana Tax Court had posted no opinions at IL deadline.
 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  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.

ADVERTISEMENT