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Opinions Sept. 12, 2013

September 12, 2013
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Indiana Supreme Court
Clark County Board of Aviation Commissioners, Board of Commissioners of Clark County, Indiana v. Dennis Dreyer and Margo Dreyer, as Co-Personal Reps. of the Estate of Margaret A. Dreyer
10S01-1308-PL-529
Civil plenary. Grants transfer to dispel confusion arising from “inartful language” in previous opinion.

Andrew McWhorter v. State of Indiana
33S01-1301-PC-7
Post conviction. Reverses the denial of McWhorter’s post-conviction relief petition, vacates conviction for voluntary manslaughter and remands for retrial. Rules the state can retry on same voluntary manslaughter without violating double-jeopardy restrictions. Although the phrase “knowingly killed” is in the definitions of murder and voluntary manslaughter, McWhorter can be acquitted of murder while still being found guilty of voluntary manslaughter because “knowingly” is not the only single issue a rational jury would have considered.

Indiana Court of Appeals
John Luttrell v. Melinda Luttrell
49A02-1301-DR-85
Domestic relation. Affirms division of marital estate and award of spousal maintenance to Melinda Luttrell. Remands to the trial court for consideration of the parents’ liability for their children’s student loans in which one or both parents were co-signers.

Brian Russell v. State of Indiana
46A03-1212-CR-544
Criminal. Affirms conviction of Class C misdemeanor operating a vehicle while intoxicated, rejecting Brian’s Russell’s argument that his Fourth Amendment protection against unreasonable search and seizure was violated. In a concurring opinion, Judge Mark Bailey held that because Rusell had waived the Fourth Amendment argument as the majority believed, he therefore would not have undertaken an analysis of the Fourth Amendment claim as the majority did.

Gina Albright v. Review Board of the Indiana Dept. of Workforce Development and the Starke County Sheriff's Dept.
93A02-1301-EX-81
Agency action. Affirms denial of unemployment benefits, holding that the Department of Workforce Development’s determination that Albright was ineligible for benefits because she was fired for just cause was not contrary to law. The court also found dispatchers are an appropriately distinct class upon which to assess the uniform enforcement of an unexcused, unreported absence policy.

Flora Birdsong v. Illinois Central School Bus (NFP)
93A02-1304-EX-319
Civil. Affirms denial of worker’s compensation benefits to Birdsong.

Jeffrey Griebel v. Lehsa Griebel (NFP)
53A04-1304-DR-191
Domestic relation. Dismisses Jeffrey Griebel’s appeal of child support order.

Willie Ambros Norman v. State of Indiana (NFP)
71A03-1301-CR-13
Criminal. Affirms conviction of Class D attempt to acquire possession of a legend drug by fraud, deceit, misrepresentation, or subterfuge.
 
Adolfo Lopez v. State of Indiana (NFP)
15A05-1302-CR-51
Criminal. Affirms denial of Lopez’s motion for recusal/change of judge.

Thelma Lindsey v. State of Indiana (NFP)
02A03-1211-CR-486
Criminal. Affirms two-year sentence for operating while intoxicated, as a Class D felony.

In the Matter of the Involuntary Termination of the Parent-Child Relationship of K.M.(Minor Child) and C.M.(Mother) and R.M.(Father) v. Indiana Department of Child Services (NFP)
81A01-1302-JT-58
Juvenile. Affirms involuntary termination of C.M’s and R.M.’s parental rights to their 4-year-old child, K.M.

In Re the Termination of the Parent-Child Rel. of H.W. (Minor Child) and D.F. (Father) v. The Indiana Dept. of Child Services (NFP)
82A05-1301-JT-45
Juvenile. Affirms involuntary termination of D.F.’s parental rights to his child, H.W.

Phillip J. Troyer v. Tracy L. Troyer (NFP)
02A03-1302-DR-55
Domestic relation. Affirms order finding Phillip Troyer in contempt for failing to pay his share of K.T.’s uninsured medical expenses under the divorce decree. In her dissent, Judge Elaine Brown argues that Phillip’s action shows he was not being willfully disobedient. He told his ex-wife he would be delaying payment while he filed a claim against the insurer, to which she consented, and his assertion that he owed less than his ex-wife calculated was confirmed by the court.

In Re the Termination of the Parent-Child Rel. of El.S. and Et.S. (Minor Children) and M.S. (Mother) v. The Indiana Dept. of Child Services (NFP)
90A05-1211-JT-614
Juvenile. Affirms termination of M.S.’s parental rights to her children, El.S and Et.S.

Darren L. Bunch v. State of Indiana (NFP)
73A01-1301-CR-15
Criminal. Affirms conviction of rape as a Class B felony.

Jeff Pierrard v. Wright Implement 1, LLC (NFP)
62A01-1305-CT-238
Civil tort. Affirms summary judgment in favor of Wright Implement 1, LLC, regarding its claim against Pierrard for conversion of a tractor and other equipment.

Oscar Diaz-Flores v. State of Indiana (NFP)
49A02-1302-CR-184
Criminal. Affirms conviction of Class A felony burglary. Also affirms one count of Class C felony criminal confinement and vacates the other count. Finds Flores’ criminal confinement of his ex-girlfriend constitutes a single transaction and can only support one criminal confinement conviction.  

Stephen R. Harvey, Jr. v. State of Indiana (NFP)
02A03-1302-CR-44
Criminal. Affirms denial of Harvey’s motion for concurrent sentencing.

Gregory Voltaire v. State of Indiana (NFP)
02A03-1303-CR-104
Criminal. Affirms conviction for Class D felony sexual battery. Reverses and remands with instruction one-year sentence for Class B misdemeanor battery. Finds Voltaire’s one-year sentence suspended to probation for the misdemeanor violates Indiana Code which limits the term of imprisonment for Class B misdemeanor to no more than 180 days.

Thomas I. Goode v. Hendricks County Planning and Building Commission (NFP)
32A01-1302-PL-67
Civil plenary. Dismisses Goode’s appeal of the trial court’s July 2011 order and October 2012 order that he comply with the general business district zoning requirements. Finds Goode forfeited his right to appeal because he did not file notice within 30 days of the orders.

Christopher D. Davies v. State of Indiana (NFP)
34A02-1301-CR-18
Criminal. Affirms three-year sentence executed for theft, a Class D felony.

Indiana Tax Court issued no opinions by IL deadline. The 7th Circuit Court of Appeals issued no Indiana opinions by IL deadline.
 

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  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. 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

  3. 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!

  4. 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.

  5. 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.

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