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Opinions Sept. 3, 2013

September 3, 2013
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7th Circuit Court of Appeals
USA v. Farshad Ghiassi
12-3596
Criminal. Affirms 70-month sentence for Ghiassi’s guilty plea to being a felon in possession of a firearm, in violation of 18 U.S. Code 922(g)(1). Finds the District Court was uniquely and well-situated to assess the credibility of Ghiassi’s co-defendant and her statements that she purchased eight firearms on his behalf. Also rejects Ghiassi’s alternative argument that the District Court deprived him of due process. Rules Ghiassi knew the court was going to rely on his co-defendant’s statements and he had opportunity to challenge those statements.

Indiana Court of Appeals
Peru City Police Department and City of Peru v. Gregory Martin
52A02-1304-PL-350
Civil plenary. Reverses a trial court ruling that overturned a city board’s firing of a police officer for use of excessive force against a 64-year-old nursing home patient hit with five Taser deployments in one minute. The panel held that the trial court erroneously substituted its judgment for that of the city board, impermissibly reweighed evidence, disregarded evidence favorable to the board’s decision, credited the testimony of witnesses that the trial court did not personally hear, and misstated evidence regarding the scope of the officer’s training.

Peter F. Amaya v. D. Craig Brater, M.D., In his Capacity as Dean and Director of Indiana University School of Medicine; The Board of Trustees of Indiana University; et al.
49A04-1212-PL-620
Civil plenary. Affirms trial court grant of summary judgment in favor of Indiana University School of Medicine and related co-defendants for the dismissal of third-year medical student Peter Amaya on allegations of cheating on an exam. The panel held that Amaya was not denied due process and that it could not conclude that the decision to dismiss Amaya was not based on substantial evidence or was arbitrary or capricious.

Marion Turner v. State of Indiana
49A05-1302-CR-59
Criminal. Affirms conviction for dealing in cocaine as a Class A felony. Finds no reversible error in the trial court’s exclusion of a confidential informant’s offer to pay more money for cocaine. The jury could “reasonably interpret” from Turner’s testimony saying “the intensity was basically up the ante,” that the purchase price was being increased. Also rules the evidence is sufficient to prove Turner’s predisposition to deal cocaine. Turner’s interaction with an undercover detective indicated he was familiar with drug jargon and was soliciting a future transaction.  

TP Orthodontics, Inc., Christopher K. Kesling, DDS, MS, Adam Kesling, and Emily Kesling, Individually and derivatively on behalf of TP Orthodontics, Inc. v. Andrew C. Kesling, et al.
46A03-1207-MI-324
Miscellaneous. Affirms trial court’s order compelling TP Orthodontics to file a copy of the special litigation committee’s entire report under seal and to produce a copy for the siblings and their counsel. Rules the heavily redacted report gives a partial picture at best. It does not provide any information on what the committee may have failed to do or may have done incorrectly. Consequently, the derivative plaintiffs must have access to the complete unredacted report in order to determine if the committee was disinterested or conducted its investigation in good faith.

Kem Duerson v. State of Indiana (NFP)
82A01-1301-CR-23
Criminal. Affirms conviction of Class A felony dealing in cocaine and adjudication as a habitual offender.

Yulanda C. Petty v. John T. Petty (NFP)
71A03-1301-DR-11
Domestic relation. Affirms in part, reverses in part and remands a trial court order in favor of John Petty. Remands for a hearing to determine the balance in a trust account and a corresponding recalculation of Yulanda Petty’s share of support for a daughter’s college expenses.

Ruben Mancillas, Jr. v. State of Indiana (NFP)
55A04-1208-CR-444
Criminal. Affirms aggregate sentence of seven-and-a-half years for conviction of Class D felony resisting law enforcement with a motor vehicle, misdemeanor counts of failure to stop at an accident resulting in damage to a vehicle and operating a vehicle while intoxicated enhanced by a habitual offender finding.

Dwight McPherson v. State of Indiana (NFP)
48A05-1302-CR-64
Criminal. Remands to the trial court for proceedings, finding error in imposing a $200 public defender fee and in leaving a determination of restitution for the probation department.

Guy Ivester v. State of Indiana (NFP)
33A04-1209-PC-491
Post conviction. Affirms denial of post-conviction relief from 18-year executed sentence for conviction of Class A felony dealing in a Schedule II controlled substance.

In the Matter of the Termination of the Parent-Child Relationship of E.M., L.M., & G.M., and S.M. (Mother) v. The Indiana Department of Child Services (NFP)
29A02-1301-JT-89
Juvenile. Affirms termination of parental rights.

Robert J. Winings v. State of Indiana (NFP)
20A03-1301-PC-26
Post conviction. Affirms denial of post-conviction relief from 40-year executed sentence for convictions of Class A felony dealing methamphetamine within 1,000 feet of a school and Class B felony dealing methamphetamine.

Robert Small v. State of Indiana (NFP)
48A04-1301-CR-38
Criminal. Affirms revocation of probation.

The Indiana Supreme Court and Tax Court issued no opinions prior to IL deadline.

 

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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