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Supreme Court grants 3 transfers

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The Indiana Supreme Court granted three transfers Wednesday, including a case of first impression on sentence enhancements.

Joshua G. Nicoson v. State of Indiana, No. 32S04-1003-CR-150, is a case of first impression that divided the Indiana Court of Appeals about whether Joshua Nicoson's sentence enhancement based on his use of a deadly weapon violated double-jeopardy principals. The majority affirmed his 5-year sentence enhancement for the use of a firearm following Nicoson's convictions of criminal confinement with a deadly weapon and pointing a firearm.

The majority concluded it was apparent that Nicoson's convictions for confinement and the enhancement for that offense relied on separate facts. His criminal confinement conviction was elevated to a Class B felony because he was armed with a deadly weapon, and there's no requirement that the state has to prove a defendant actually used the weapon during the commission of the offense. The enhancement provision refers to actual use.

Judge Carr Darden dissented because Nicoson was charged and convicted of confining the victims while armed with a deadly weapon and of using a firearm while committing the confinement. If the deadly weapon is a firearm, how could a person thereby armed not also commit the offense of confinement using a firearm, questioned Judge Darden.

In Richard Patrick Wilson and Billy Don Wilson v. Gene Isaacs, Sheriff of Cass County, and Brad Craven, No. 09S05-1003-CV-149, the Court of Appeals held the use of excessive force is not conduct immunized under Section 3(8) of the Indiana Tort Claims Act. It reversed summary judgment in favor of Cass County Sheriff Gene Isaacs in the Wilson brothers' suit alleging injuries as a result of excessive force. The appellate court noted there has been some confusion whether the ITCA law enforcement immunity provision applies to claims for injuries resulting from the use of excessive force during detention or arrest.

There are questions about whether Kemezy v. Peters, 622 N.E.2d 1296 (Ind. 1993), still remains good law. In Kemezy, the Supreme Court found law enforcement officers owe a private duty to refrain from excessive force when making arrests and the use of excessive force isn't immunized by Section 3(8). The judges followed the U.S. District Court for the Southern District of Indiana's reasoning on Kemezy to conclude the use of excessive force is not conduct immunized under section 3(8) of the ITCA.

In In the matter of the involuntary termination of the parent-child relationship of I.A.; J.H. v. Indiana Department of Child Services, No. 62S01-1003-JV-148, the Court of Appeals unanimously affirmed the involuntary termination of father J.H.'s parental rights in the not-for-publication decision. The father argued the Department of Child Services didn't prove by clear and convincing evidence that the conditions that resulted in I.A.'s removal wouldn't be remedied and that his relationship with his son threatened I.A.'s well-being. He argued it was I.A.'s mother's behavior and acts of negligence and not his that led to I.A.'s initial removal from his mother's home.

The Court of Appeals found sufficient evidence, such as J.H. hadn't bonded with his child and he lacked proper parenting skills after months of training.

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  1. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  2. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

  3. Lets talk about this without forgetting that Lawyers, too, have FREEDOM OF SPEECH AND ASSOCIATION

  4. Baer filed with the U.S. Court of Appeals Seventh Circuit on April 30 2015. When will this be decided? How many more appeals does this guy have? Unbelievable this is dragging on like this.

  5. They ruled there is no absolute right to keep a license, whether it be for a lifetime or a short period of time. So with that being said, this state taught me at the age of 15 how to obtain that license. I am actually doing something that I was taught to do, I'm not breaking the law breaking the rules and according to the Interstate Compact the National Interstate Compact...driving while suspended is a minor offense. So, do with that what you will..Indiana sucks when it comes to the driving laws, they really and truly need to reevaluate their priorities and honestly put the good of the community first... I mean, what's more important the pedophile drug dealer or wasting time and money to keep us off the streets?

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