Opinions Aug. 7, 2015

August 7, 2015

7th Circuit Court of Appeals
The following opinion was posted after IL deadline Thursday
United States of America v. Jeffrey P. Taylor
Appeal from the U.S. District Court, Northern District of Indiana, Hammond Division
Judge Rudy Lozano
Criminal. Vacates sentence for Taylor convicted in 2007 of attempted transferring obscene materials to minors and remands to the District Court to remove a special condition of probation barring Taylor from viewing otherwise legal adult pornography. Taylor must make all Internet-accessible devices available for inspection without reasonable suspicion. A ban on contact with minors is overly broad. Judge David Hamilton concurred in part but dissented on lifting the pornography ban, finding no abuse of discretion. Judge Frank Easterbrook concurred separately to cite jurisdictional conflicts.

Indiana Tax Court
The following opinion was posted after IL deadline Thursday
Hamilton Southeastern Utilities, Inc. v. Indiana Department of State Revenue
Tax. Grants summary judgment in favor of Hamilton Southeastern Utilities on two of three issues. Assessment of utility receipts tax for development charges and connection fees did not apply under I.C. 6-2.3-3-10 governing installation, repair or maintenance or I.C. 6-2.3-3-11 governing delivery of utility services. A genuine issue of fact exists as to whether the tax may be imposed under I.C. 6-2.3-3-2 governing taxation for failure to separate nontaxable items on billing

Indiana Court of Appeals

Newland McElfresh v. State of Indiana
Criminal. Reverses convictions of Class D felony attempted obstruction of justice and Class A misdemeanor invasion of privacy. Remands with instructions to enter judgment for the lesser-included offense of attempted invasion of privacy, as a Class A misdemeanor.

Willie D. Williams v. State of Indiana
Post conviction. Affirms denial of petition for post-conviction relief. Discounts Williams’ claim that his guilty plea was not knowing, voluntary and intelligent because he had not been advised that he was ineligible for the habitual substance offender enhancement. Finds the facts do not support Williams’ claim that his decision to plead was driven by defense counsel’s alleged erroneous advice.

Keron D. Rodgers v. State of Indiana
Criminal. Reverses order that Rogers participate in a Victim-Offender Reconciliation Program and remands for a restitution hearing. The plain language of I.C. 35-40-6-4(9) adopted in 1999 allows victim-offender reconciliation “if the accused person or the offender agrees,” and Rodgers did not agree to participate. The trial court erred by ordering Rogers to participate in VORP instead of conducting a hearing about restitution because the order that he participate in VORP was not permissible under the statute.

Timothy H. Bryant v. State of Indiana
Criminal. Affirms convictions of two counts of Class D felony aiding, inducing, or causing receiving stolen property and Class C felony corrupt business influence. Rules prosecutor’s comments did not improperly shift the burden to the defendant but rather was permissible impeachment of a witness. Finds defense’s argument that the state failed to establish Wells County as the proper venue is misguided.

James Dewbrew v. State of Indiana (mem. dec.)

Criminal. Affirms conviction of unlawful possession of a firearm by a serious violent felon, a Class B felony.

E.C. Brown v. State of Indiana (mem. dec.)
Criminal. Affirms convictions of pointing a firearm, a Class A misdemeanor, and battery, a Class B misdemeanor.

Anthony D. Dunn v. State of Indiana (mem. dec.)
Criminal. Affirms 50-year aggregate sentence imposed by the Howard Circuit Court after Dunn pleaded guilty to Class A felony attempted robbery.

Jeffrey Burns v. State of Indiana (mem. dec.)
Criminal. Affirms 21-year sentence for aggravated battery, a Class B felony.

In Re the Involuntary Commitment of R.R. v. Indiana University Health Bloomington Hospital (mem. dec.)

Mental health. Affirms involuntary commitment of R.R. and injections of medications.

Danny A. Lucas v. Morgan County Memorial Hospital, Dr. Claire L. Scheele, M.D., and Dr. Murat Polar, M.D. (mem. dec.)
Civil tort. Reverses summary judgment in favor of Morgan County Memorial Hospital, Claire Scheele M.D. and Murat Polar M.D. Finds the confusion over whether the antibiotic was given in a timely fashion is a question of material fact which makes summary judgment inappropriate.

Mahouton Dassi v. State of Indiana (mem. dec.)

Criminal. Affirms conviction of battery resulting in bodily injury, a Class A misdemeanor.

Delvante Jones v. State of Indiana (mem. dec.)
Criminal. Affirms conviction of murder. Finds Jones’ request to proceed pro se was not made until the second day of the trial after the state had presented most of its evidence. Concludes the request was untimely and properly denied by the Marion Superior Court.  

Jeffery J. Hunt v. State of Indiana (mem. dec.)

Criminal. Reverses 120-year sentence imposed by the Elkhart Circuit Court after guilty plea to robbery while armed with a deadly weapon causing seriously bodily injury, a Class A felony; burglary, a Class A felony; conspiracy to commit burglary, a Class B felony; and criminal confinement, a Class B felony. Remands with instruction that the sentence for the two Class A felony convictions be reduced from 50 years to 30 years each; and his two Class B felony convictions remand unchanged at 20 years each for an aggregate sentence of 100 years.

Lamar Allen Colley v. State of Indiana (mem. dec.)

Criminal. Affirms convictions of strangulation and criminal confinement, both Class D felonies.

In re the Paternity of William D. Anderson, III; Gierly Perrigo Ingco v. William D. Anderson, Jr. (mem. dec.)

Juvenile paternity. Affirms denial of Ingco’s motion for relief from paternity decree.

Dena Alfayyad v. U.S. Bank National Association as Trustee for RESC2007K3 (mem. dec.)
Mortgage foreclosure. Reverses the dismissal under Trial Rule 41(E). Finds Hamilton Superior Court lacked jurisdiction because Alfayyad had an appeal pending in the Indiana appellate courts.  

A.R. v. Review Board of the Indiana Department of Workforce Development and Housing Authority of the City of Kokomo (mem. dec.)

Civil. Affirms the denial of Riley’s claim for unemployment compensation benefits on the basis she had teen terminated from her job for just cause.

Fabian Cruz v. State of Indiana (mem. dec.)

Criminal. Affirms conviction of battery with a deadly weapon, as a Level 5 felony.