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Opinions Sept. 1, 2011

September 1, 2011
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The following opinion was posted after IL deadline Wednesday:
Indiana Tax Court

Lyle Lacey v. Indiana Department of State Revenue
49T10-1102-TA-7
Tax. Dismisses Lacey’s petition regarding his 2008 adjusted gross income tax liability. The issues in this action are substantially the same as those decided in Lacey v. Ind. Dep’t of State Revenue (Lacey II), 948 N.E.2d 878 (Ind. Tax. Ct. 2011).

7th Circuit Court of Appeals had posted no opinions from Indiana courts at IL deadline.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Mark E. Croy v. State of Indiana
48A02-1012-CR-1383
Criminal. Affirms convictions of Class D felony domestic battery and sentence imposed for that conviction and for Class D felony criminal confinement. The evidence is sufficient to show that Croy and Betty Cox had a spousal relationship at the time Croy attacked his ex-girlfriend. The sentence is appropriate.

In Re: The Marriage of J.D.S. and A.L.S.; M.S. v. A.L.S.
63A01-1102-DR-64
Domestic relation. Affirms dismissal of grandmother M.S.’s petition to modify grandparental visitation. Because M.S. did not file her petition for visitation until after her son’s parental rights were terminated, she no longer has standing as the parent of the children’s parent, and there were no existing visitation rights upon which to bootstrap continued visitation in the wake of the adoption.

Richard M. Clokey v. Penny M. Bosley Clokey
84A01-1009-DR-450
Domestic relation. Affirms trial court’s award of spousal support to Penny Clokey. The trial court was within its discretion to determine that Richard Clokey had transferred and commingled funds from the marital pot to the trust only he had access to and that he had dissipated funds when the court determined the appropriate distribution of the marital pot.

James Casey v. State of Indiana (NFP)
49A05-1101-CR-40
Criminal. Affirms conviction of Class A misdemeanor dealing in marijuana and reverses conviction of Class A misdemeanor possession of marijuana. Remands with instructions.

First Savings Bank, F.S.B. v. Baird Realty Appraisal Consultants, Inc., Richard R. Baird, and Glen Sperzel (NFP)
22A05-1008-CT-479
Civil tort. Affirms dismissal of the bank’s complaint because it was filed outside the two-year statute of limitations for negligence claims.

Sylvester Buckingham, Jr. v. State of Indiana (NFP)
71A03-1102-CR-107
Criminal. Affirms conviction of Class D felony possession of paraphernalia.

Michael L. Edwards v. State of Indiana (NFP)
59A05-1011-PC-769
Post conviction. Affirms denial of petition for post-conviction relief.

In Re: The Marriage of A.T.S. and B.K.T. (NFP)
20A05-1008-DR-564
Domestic relation. Affirms grant of motion to correct error regarding the amount of child support arrearage payable by father and denial of mother’s petition to transfer the case from Indiana to North Carolina. Remands with instructions to conduct a hearing upon mother’s allegation that father is in contempt of court for failure to pay a property settlement judgment.

Rikkia Weatherford v. State of Indiana (NFP)
54A04-1102-CR-65
Criminal. Affirms revocation of probation.

Daniel Wilkins v. State of Indiana (NFP)
02A03-1103-PL-119
Civil plenary. Affirms denial of motion for the return of property that was subject to a forfeiture action by the state.

Anthony Arnold v. State of Indiana (NFP)
31A01-1012-CR-689
Criminal. Affirms convictions of and sentence for Class B felony dealing in methamphetamine, Class D felony maintaining a common nuisance, Class D felony neglect of a dependent, and Class A misdemeanor possession of paraphernalia. Affirms sentence following guilty plea to Class D felony possession of methamphetamine, Class D felony maintaining a common nuisance, and Class A misdemeanor possession of paraphernalia.

McKenna T. Groves v. State of Indiana (NFP)
82A01-1102-CR-115
Criminal. Affirms conviction of Class A misdemeanor conversion.

Oswaldo Santos v. Allen County Sheriff (NFP)
02A05-1010-CT-654
Civil tort. Affirms summary judgment resulting in the dismissal of Santos’ claim against the sheriff.

Thomas Smith v. State of Indiana (NFP)
38A04-1008-CR-478
Criminal. Grants rehearing, vacates portion of earlier decision affirming Smith’s one-year sentence for contempt, and remands to the trial court to re-sentence him to a term not to exceed six months. Affirms original decision in all other respects.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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