Opinions Aug. 23, 2016

August 23, 2016
KEYWORDS Opinions / neglect

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Monday.
Jimmie Darrell Poe, Sr. v. Leann LaRiva, Warden
Appeal from the U.S. District Court for the Southern District of Indiana, Terre Haute Division. Judge William T. Lawrence
Criminal. Affirms denial of petition for a writ of habeas corpus. Rules Poe filed a 2241 petition challenging his conviction and 30-year sentence when he should have petitioned under section 2255. Finds he did not demonstrate that there is a problem with the 2255 petition which prevents him from using it to seek relief. Also denies his request to construe his 2241 petition as a request for leave to file a successive 2255 petition.  

Tuesday’s opinions
Indiana Supreme Court

Kristy Burnell v. State of Indiana
Criminal. Affirms trial court decision to not terminate license suspension. Holds a refusal to submit to a chemical test occurs when the conduct of the motorist is such that a reasonable person in the officer’s position would be justified in believing the motorist was capable of refusal and manifested an unwillingness to submit to the test. Burnell has the burden of demonstrating the evidence shows her license suspension by the BMV should be overturned, and she did not carry this burden.

Indiana Court of Appeals
Tyrone Grayson v. State of Indiana
Miscellaneous. Reverses revocation of parole that was granted on a sentence which had been served. The Department of Correction fixed records and submitted them to show Grayson was on parole for a different sentence when a new offense was committed. Grayson was entitled to an opportunity to be heard on the allegation that he violated parole for the corrected sentence, which the trial court did not provide. Remands with instructions to grant post-conviction relief on the parole revocation of his 20-year sentence for attempted robbery.

Jay Lynn v. State of Indiana
Criminal. Affirms conviction of Class B misdemeanor counts of battery and disorderly conduct, finding that pattern jury instructions on the nature of the charges were not fundamental error even though they contained a recitation of the affirmation language from the charging information. While the inclusion of the language did not invade the province of the jury and the pattern jury instructions do not clearly require redaction, the panel strongly advises affirmation language be redacted from jury instructions.

Kyleigh Nolan v. Clarksville Police Department and Town of Clarksville, Indiana
Civil tort. Affirms summary judgment in favor of the town of Clarksville on the issue that Nolan did not give notice of her lawsuit within 180 days of being injured as required by the Indiana Tort Claims Act. However, finds there is a genuine issue of material fact as to whether the town should be estopped from asserting Nolan’s non-compliance as a defense. Remands with ruling that Nolan is entitled to present her estoppel claim to the jury at trial.  

In re the Paternity of A.D.: Abram M. Dwyer v. Lindsy L. (Redden) Eickhoff (mem. dec.)
Juvenile. Affirms grant of sole legal custody to mother, order for father to obtain court permission before filing further custody modification or contempt petitions. Reverses order that father pay $10,000 of mother’s attorney fees and remands with instructions to revise the award to exclude any fees before the court’s order in September 2014.

Jose Menendez v. CACH, LLC (mem. dec.)
Civil collections. Reverses grant of summary judgment in favor of CACH LLC and remands for further proceedings.

Michael Hale v. Dr. Lolit Joseph, Nurse Lesa Wolfe, and Nurse Teresa Lennings (mem. dec.)
Civil tort. Affirms grant of summary judgment in favor of the medical professionals.

William McCormick v. State of Indiana (mem. dec.)
Criminal. Affirms conviction of Class B felony dealing in a schedule II controlled substance.  

K.S. v. D.S. (mem. dec.)
Adoption. Affirms order granting adoption petition and remands for determination of adoptive mother D.S.’s appellate attorney fees.

Brian K. Bell v. State of Indiana (mem. dec.)
Criminal. Affirms conviction and sentence for Level 5 felony dealing in a narcotic drug.