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Opinions Dec. 21, 2016

December 21, 2016
KEYWORDS Opinions

7th Circuit Court of Appeals
United States of America v. Bruce Jones
15-1792
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Criminal. Affirms Bruce Jones’ convictions of three counts of possessing firearms and ammunition and one count of health care fraud. Finds that because Jones never objected to the restraint on his life insurance policies, the district court had no reason to probe those matters in an evidentiary hearing. Also finds that the judge did not abuse her discretion in denying Jones’ request for appointment of new counsel and that the judge apprised Jones of his constitutional right to testify, which he waived. Finally, finds that the judge did not miscalculate the sentencing guideline range for his firearms offenses by taking into account his 1985 felony conviction for a controlled substance offense.

Indiana Court of Appeals
Shelby's Landing-II, Inc., Richard Deckard, Jr., Marilyn Deckard, and Deckard Realty & Development Co. v. PNC Multifamily Capital Institutional Fund XXVI Limited Partnership, et al.
73A01-1509-CC-1403
Civil collection. Affirms the Shelby Superior Court’s judgment in favor of PNC Multifamily Capital Institutional Fund XXVI Limited Partnership, Columbia Housing SLP Corporation and Shelby’s Landing II-L.P. Finds that regardless of the trial court’s misappropriation and theft findings and conclusions, there were adequate uncontested findings and conclusions to support the trial court’s judgment. Also finds that the trial court awarded the plaintiffs a reasonable amount for their attorney fees.

In re the Termination of the Parent-Child Relationship of: O.G., II (Minor Child) and K.T. (Mother) & O.G. (Father) v. The Indiana Department of Child Services
49A02-1605-JT-1072
Juvenile termination of parental rights. Reverses the Marion Superior Court’s order terminating O.G. and K.T.’s parent-child relationship with O.G. II. Finds that the juvenile court erroneously admitted certain hearsay evidence and that the evidence does not support the order terminating the parent-child relationship with either parent. Remands for further proceedings.

Michael D. Cundiff v. State of Indiana
15A05-1508-MI-1214
Miscellaneous. Affirms in part the denial of Michael D. Cundiff’s petition for relief from his lifetime sex offender registration requirement. Finds that Cundiff is required to register but that residence restrictions enacted after his conviction do not apply to him. Also finds that the Dearborn Superior Court did not err in denying Cundiff’s request to vacate the appointment of the special judge. Remands with instructions.

Will Thomas v. State of Indiana
27A02-1602-CR-374
Criminal. Reverses Will Thomas’ conviction of dealing in a narcotic drug as a Class A felony. Finds that police violated Thomas’ constitutional rights when they detained and transported him. Also finds that the Grant Superior Court erred when it did not exclude evidence obtained as a result of the detention.

In the Term. of the Parent-Child Relationship of: A.C. (Minor Child) and M.K. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)
82A01-1607-JT-1683
Juvenile termination of parental rights. Affirms the termination of M.K.’s parental rights to A.C. Finds that the Department of Child Services established by clear and convincing evidence the requisite elements to support to termination of parental rights.

Brandon Cunningham v. State of Indiana (mem. dec.)
49A02-1604-CR-892
Criminal. Affirms Brandon Cunningham’s conviction of disorderly conduct as a Class B misdemeanor. Finds that it was reasonable for the Marion Superior Court to infer that Cunningham’s conduct would, if unchecked, likely have to lead to serious injury.

In the Matter of the Involuntary Term. of the Parent-Child Relationship of: H.B., E.B., and D.B. (Minor Children); A.B. (Father) v. The Ind. Dept. of Child Services (mem. dec.)
56A04-1605-JT-1054
Juvenile termination of parental rights. Affirms the involuntary termination of A.B.’s parental relationship with his minor children, H.B., E.B. and D.B. Finds that based on the record, the Newton Circuit Court’s termination of A.B.’s parental rights to the children was not clearly erroneous.

Elgin A. Fidell v. State of Indiana (mem. dec.)
49A05-1606-CR-1402
Criminal. Affirms Elgin Andrew Fidell’s conviction of Level 5 felony battery. Finds that there is sufficient evidence to support his conviction.

In Re the Guardianship of A.I.K., a Minor: Donal W. Kruchten (mem. dec.)
14A05-1604-GU-961
Guardianship. Affirms the Daviess Circuit Court decision not to take judicial notice of an uncertified, incomplete record from Jackson County, Mississippi, and to terminate the guardianship of A.I.K. and award the mother, Victoria Knox, custody. Finds that the trial court did not abuse its discretion in denying the request to take judicial notice of the uncertified foreign custody determination or in terminating the guardianship while awarding custody to Knox.

In the Matter of D.K., Child in Need of Services, N.B. (Mother) v. Indiana Department of Child Services (mem. dec.)
49A05-1607-JC-1641
Juvenile. Affirms the Marion Superior Court’s determination that N.B.’s son is a child in need of services because his physical or mental condition is seriously impaired or endangered as a result of N.B.’s failure to provide him with necessary shelter. Finds that the evidence is sufficient to support the CHINS determination.

Keith Cobbs v. State of Indiana (mem. dec.)
49A02-1606-CR-1446
Criminal. Affirms Keith Cobbs’ conviction for criminal recklessness as a Level 6 felony. Finds that the evidence was sufficient to rebut Cobbs’ self-defense claim.

Gerald Spaulding, Sr. v. State of Indiana (mem. dec.)
49A05-1605-CR-1039
Criminal. Affirms Gerald Spaulding Sr.’s conviction for Class A misdemeanor operating a vehicle while intoxicated. Finds that the evidence is sufficient to support his conviction.

Giavonda Chandler v. State of Indiana (mem. dec.)
02A04-1606-CR-1460
Criminal. Affirms Giavonda Chandler’s convictions of Class A misdemeanor carrying a handgun without a license and Class B misdemeanor marijuana possession. Finds that Chandler waived her argument with regard to course-of-the-investigation testimony and that evidence was not seized from her in violation of her constitutional rights.

Timothy Newman v. State of Indiana (mem. dec.)
12A02-1601-PC-83
Post conviction. Affirms the denial of Timothy Newman’s petition for post-conviction relief. Finds that the Clinton Circuit Court did not err when it concluded that Newman was foreclosed from litigating his post-conviction claim of ineffective assistance of trial counsel.

William D. Funderburgh, III v. State of Indiana (mem. dec.)
27A05-1604-CR-867
Criminal. Affirms William D. Funderburgh III’s sentence to 50 years served in the Department of Correction following his guilty plea to Class A felony child molesting. Finds that the Grant Superior Court did not abuse its discretion when sentencing Funderburgh and that he has failed to show that his sentence is inappropriate.

Robert Neale v. State of Indiana (mem. dec.)
33A05-1605-PL-1211
Civil plenary. Affirms the dismissal of Robert Neale’s case against the state of Indiana and the Indiana Department of Correction alleging they had violated his Fifth Amendment right against self-incrimination by taking away credit time, privileges and visitation in response to his refusal to admit his guilt as part of Indiana’s Sex Offender Management and Monitoring program. Finds that the Court of Appeals is bound by the Indiana Supreme Court’s holding in Bleeke v. Lemmon, 6 N.E. 3d 907 (Ind. 2014).

Christopher Clark v. State of Indiana (mem. dec.)
33A04-1605-CR-974
Criminal. Affirms Christopher Clark’s sentence of seven years in prison followed by one year of probation for causing the death of his son and the serious bodily injury of his daughter while operating a vehicle with marijuana in his system. Finds that there is nothing in the record suggesting that the Henry Circuit Court would choose a different sentence on remand, even in light of additional mitigators. Also finds that in light of Clark’s failure to properly care for his children and the tragic consequences of that failure, requiring him to serve his near-minimum sentence is not inappropriate.

C&R Remodeling, LLC v. City of Hammond, Common Council of the City of Hammond, City of Hammond Department of Planning and Development, and City of Hammond Facade Rebate Committee (mem. dec.)
45A03-1604-PL-862
Civil plenary. Finds Lake Superior Court correctly found that summary judgment should have been entered in favor of the city of Hammond, Common Council of the City of Hammond, City of Hammond Department of Planning and Development, and City of Hammond Façade Rebate Committee on C&R’s breach of contract, unjust enrichment and response to discovery claims. Also finds that the trial court improperly granted summary judgment in favor of the appellees on C&R’s promissory estoppel claim. Remands for further proceedings. Judge Terry Crone concurs in part and dissents in part in separate opinion.

Darren A. Mallett v. State of Indiana (mem. dec.)
71A03-1606-CR-1314
Criminal. Affirms Darren A. Mallet’s convictions for Level 6 felony operating as a habitual traffic violator and Level 6 felony operating while intoxicated with a prior OWI conviction. Finds that the evidence is sufficient to support his convictions.

In the Matter of E.J.-H. & A.J.-H. (Minor Children), Children in Need of Services, and G.J. (Mother) v. The Indiana Department of Child Services (mem. dec.)
02A03-1607-JC-1633
Juvenile. Reverses the adjudication of E.J-H. and A.J-H. as children in needs of services. Finds that the evidence is insufficient to support the CHINS determination.

Joseph Honeycutt v. State of Indiana (mem. dec.)
38A02-1608-CR-1809
Criminal. Affirms the denial of Joseph Honeycutt’s petition seeking permission to file a belated appeal. Finds that the Jay Circuit Court acted within its discretion in denying Honeycutt’s petition.

Hezekiah Joel Colbert v. State of Indiana (mem. dec.)
32A01-1601-PC-220
Post conviction. Affirms the post-conviction court’s denial of Hezekiah Joel Colbert’s petition for post-conviction relief. Finds that Colbert has failed to meet his burden of showing that the post-conviction court erred by denying relief on his allegations of ineffective assistance of trial and appellate counsel.

Eric Johnson v. State of Indiana (mem. dec.)
49A02-1602-CR-385
Criminal. Affirms Eric Johnson’s convictions of murder, Class B felony robbery, two counts of Class B felony criminal confinement and Class A misdemeanor carrying a handgun without a license. Finds that the evidence is sufficient to support Johnson’s convictions.

Carl Strobel v. State of Indiana (mem. dec.)
65A04-1603-CR-582
Criminal. Affirms Carl Strobel’s sentence to consecutive terms of 2 ½ years and one year in the Indiana Department of Correction for Level 6 felony residential entry and Class A misdemeanor attempted theft. Finds that the Posey Circuit Court did not abuse its discretion when it ordered Strobel to serve the residential entry sentence consecutive to the attempted theft sentence.

Delmar P. Kuchaes v. Public Storage, Inc. (mem. dec.)
49A02-1603-PL-546
Civil plenary. Affirms the Marion Superior Court’s order granting summary judgment in favor of Public Storage Inc. and denying Delmar P. Kuchaes’ motion for partial summary judgment. Finds Public Storage properly complied with the requirements of Indiana Code 26-3-8-12 and the trial court properly granted summary judgment to public storage. Also finds the requirements set forth in I.C. 26-3-8-14 had no bearing on this case and Kuchaes’ arguments concerning that section have no merit. Finally, finds that Kuchaes waived any argument that the sale was not performed in a commercially reasonable manner or that Public Storage did not act in good faith and that Public Storage was not obligated to comply with its internal checklist.

In the Term. of the Parent-Child Relationship of: B.A. and B.S. (Minor Children); C.S. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)
10A01-1604-JT-803
Juvenile termination of parental rights. Affirms the termination of C.S.’s parent-child relationship with her sons, B.A. and B.S. Finds that there is sufficient evidence to support the Clark Circuit Court’s determination to terminate the parent-child relationship.
 

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