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Opinions Sept. 13, 2013

September 13, 2013
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Indiana Court of Appeals
Jerry A. Smith v. State of Indiana
15A05-1208-CR-411
Criminal. Affirms Dearborn Superior Court’s denial of Smith’s motion to dismiss three charges and reverses the court’s denial of the motion to dismiss 15 state charges. Rules most of the charges brought against Smith for an alleged Ponzi scheme violated double jeopardy because they were for the same conduct included in his guilty plea to a federal indictment. However, the charges related to Smith’s failing to register with the Indiana Secretary of State as a broker-dealer can stand since they were not related to the federal charges. Judge Nancy Vaidik dissents, arguing the remaining charges also violate double jeopardy because both the federal and state charges rely, partially, on Smith’s failure to register.

Jerry A. Smith v. State of Indiana
24A01-1210-CR-469
Criminal. Affirms Franklin Circuit Court’s order dismissing 24 state charges and denying Smith’s motion to dismiss five other charges. Reserves denial of motion to dismiss remaining state court charges and remands for further proceedings. Finds most of the charges brought against Smith for an alleged Ponzi scheme were for the same conduct included in his guilty plea to a federal indictment and therefore violate double-jeopardy prohibitions. However, the charges related to Smith’s failing to register with the Indiana secretary of state as a broker-dealer can stand because they were not related to the federal charges. Judge Nancy Vaidik dissents, arguing the remaining charges also violate double jeopardy since both the federal and state charges rely, partially, on Smith’s failure to register.

Von Tobel Corporation, Individually, and d/b/a Von Tobel Lumber & Hardware; and Von Tobel Lumber & Home Center, Inc. v. Chi-Tec Construction & Remodeling, Inc.; John F. Ziola, Jr.; Et Al.
46A03-1301-MI-18
Miscellaneous/mechanic’s lien. Reverses grant of summary judgment in favor of the Margret Lynn West trust, one of the defendant parties, and orders summary judgment entered for Von Tobel. The panel reversed a trial court ruling that the lien was invalid because a pre-lien notice named “Von Tobel Lumber & Home Center Inc.” and the lien notice named “Von Tobel Corporation” as claimants. The difference was minimal, not misleading and didn’t prejudice the trust or other parties, the panel held.

In the Matter of the Termination of the Parent-Child Relationship of Jo. B. & Ju. B.(Minor Children) and T. B.(Mother) v. The Indiana Department of Child Services (NFP)
49A05-1303-JT-92
Juvenile. Affirms termination of T.B.’s parental rights to her children, Ju.B. and Jo.B.

Lamar Miller v. State of Indiana (NFP)
49A05-1302-CR-46
Criminal. Affirms conviction of Class A misdemeanor invasion of privacy.

Charles Grieco v. State of Indiana (NFP)
49A04-1301-CR-32
Criminal. Affirms conviction for operating a vehicle while intoxicated, as a Class C misdemeanor.

Indiana Supreme Court and 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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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