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Opinions July 29, 2016

July 29, 2016
KEYWORDS Opinions / neglect

The following 7th Circuit Court of Appeals decisions were posted after IL deadline Thursday:
United States of America v. David A. Resnick
14-3791
Appeal from U.S. District Court, Northern District of Indiana, Hammond Division. Judge James T. Moody.
Criminal. On a petition for rehearing en banc, majority denies rehearing. Four judges dissent with opinion, writing that Resnick deserves a new trial. His refusal to take a polygraph test was admitted at trial, and he did not object, and the original panel 2-1 found that evidence did not violate Resnick’s Fifth Amendment rights.

Kimberly Hively v. Ivy Tech Community College, South Bend
15-1720
Appeal from U.S. District Court, Northern District of Indiana, South Bend Division. Judge Rudy Lozano.
Civil. Affirms ruling granting Ivy Tech’s motion to dismiss Hively’s claim for sex discrimination based on sexual orientation under Title VII of the Civil Rights Act of 1964. Finds she failed to state a claim under title IVV for sex discrimination; her claim is solely for sexual orientation discrimination which is beyond the scope of the statute.

Friday’s opinions
Indiana Court of Appeals
William H. Ellis, Sr. v. State of Indiana
02A03-1602-CR-376
Criminal. Reverses denial of petition for credit time not previously awarded by the Department of Correction. The court denied Ellis’ petition without considering whether he had exhausted his administrative remedies. Remands for the post-conviction court to determine this, and if so, to address his petition on the merits.

Chawknee P. Caruthers v. State of Indiana
46A04-1512-PC-2194
Post conviction. Reverses dismissal of Caruthers’ post-conviction relief petition and remands for further proceedings. Pursuant to Indiana Tr. R. 41(E), the trial court was required to hold a hearing before dismissing his petition.

In re the Paternity of P.B., M.L.B. v. D.L.B.
03A05-1601-JP-46
Juvenile. Reverses denial of father’s petition to enforce the previous parenting time and reunification orders and petition to hold mother in contempt for her failure to cooperate with reunification and parenting time. The trial court abused its discretion when it concluded that Mother was not in contempt for failing to abide by the trial court’s previous parenting time and reunification orders. On remand, the trial court should determine the appropriate sanction.

State of Indiana v. Dejon Pitchford
49A04-1512-CR-2173
Criminal. Affirms order granting motion filed by Pitchford to suppress evidence discovered as a result of a warrantless strip search of him in jail. The holding in Edwards v. State, 759 N.E.2d 626 (Ind. 2001), requires that a warrantless strip search of a misdemeanor arrestee  be justified by reasonable suspicion, based on the totality of the circumstances, that the arrestee is concealing weapons or contraband. No such suspicion was reported in Pitchford’s case.

Jamel Owens v. State of Indiana
49A02-1601-CR-41
Criminal. Reverses convictions of Level 6 felony criminal recklessness and Level 6 felony battery in the presence of a child. The state concedes these convictions violate the prohibition against double jeopardy. Because the Level 6 felony criminal recklessness conviction has the less severe penal consequences, remands for the trial court to vacate this conviction.

Champlain Capital Partners, L.P. v. Elway Company, LLP, Dale K. Elrod, Jeffrey L. Elrod, and Mary Ann Waymire
55A04-1510-CC-1630
Civil collection. Affirms in part, reverses in part and remands. Affirms ruling the plaintiffs did not breach the bonding collateral agreement with Champlain when they did not unilaterally make $3.5 million available as collateral for Safeco’s underwriting of future bonds, or replace Champlain’s funds in the substitute line of credit. The trial court erred as a matter of law in several aspects of its construction of various provisions of the Agreement, namely, reimbursement of Safeco draw-downs from the substitute LOC and the sharing of risk as to both payment and performance bonds. The trial court did not err when it found that the Elrod Plaintiffs did not breach the Agreement’s implied covenant of good faith and fair dealing.

Anthony A. May v. State of Indiana
35A04-1603-CR-673
Criminal. Reverses finding that May violated his probation and remands with instructions to return him to probation from jail. When May was released from prison, he was placed on parole, so it was reasonable for him not to report to probation. Individuals are either on parole or probation and cannot be placed on both at the same time.

Lance M. McGee v. State of Indiana (mem. dec.)
18A04-1512-CR-2270
Criminal. Affirms sentence following guilty plea to Class B felony dealing in cocaine.

Chester Irons v. State of Indiana (mem. dec.)
09A02-1512-CR-2111
Criminal. Affirms revocation of probation and order that Irons serve five years of his previously suspended sentence following the probation violation.

Andrius Brooks v. State of Indiana (mem. dec.)
48A05-1512-CR-2174
Criminal. Affirms revocation of probation and order Brooks serve the entirety of his previously suspended sentence.

Daniel Snell v. State of Indiana (mem. dec.)
49A04-1511-PC-1891
Post conviction. Affirms denial of petition for post-conviction relief.

Deandre Moore v. State of Indiana (mem. dec.)
82A04-1511-CR-1922
Criminal. Affirms convictions of Level 3 felony armed robbery, Level 3 felony criminal confinement while armed with a deadly weapon, Level 3 felony attempted armed robbery, Level 5 felony attempted battery by means of a deadly weapon, and Level 6 felony pointing a firearm at another person.

In the Matter of the Term. of the Parent-Child Relationship of: J.W.P. and S.P. (Minor Children), and J.W. (Father) v. The Ind. Dept. of Child Services (mem. dec.)
45A04-1602-JT-365
Juvenile. Affirms involuntary termination of parental rights.

Brady D. McBride v. State of Indiana (mem. dec.)
89A04-1511-CR-2058
Criminal. Affirms 26-year sentence imposed for Level 3 felony aggravated battery and Level 4 felony unlawful possession of a firearm by a serious violent felon.

Pierre Malone v. State of Indiana (mem. dec.)
34A05-1512-CR-2327
Criminal. Affirms sentence following guilty plea to Level 5 felony dealing in a narcotic drug.

David Harris v. State of Indiana (mem. dec.)
09A02-1512-CR-2374
Criminal. Affirms conviction of Level 5 felony operating a motor vehicle after driving privileges were forfeited for life.

In the Term. of the Parent-Child Relationship of: A.H. (Child), and, M.L. (Father) v. The Ind. Dept. of Child Services (mem. dec.)
28A01-1601-JT-209
Juvenile. Affirms termination of father’s parental rights.

Thomas D. Seal v. Christine Seal (mem. dec.)
33A01-1512-DR-2368
Domestic relation. Affirms trial court’s interpretation that husband’s early retirement benefits are subject to the distribution formula.

Frank M. Hancock v. State of Indiana (mem. dec.)
39A05-1511-CR-1973
Criminal. Affirms convictions of Level 6 felony possession of a narcotic drug and Class A misdemeanor possession of a synthetic drug.
 

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