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Opinions Jan. 31, 2017

January 31, 2017

7th Circuit Court of Appeals
Estate of William A. Miller, by its representatives Patrick T. Chassie and Linda Wilkerson v. Helen J. Marberry and Gary Rogers.

15-1497.
Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. Chief Judge Jane Magnus-Stinson.
Prisoner. Affirms the grant of summary judgment to Helen Marberry and Gary Rogers. Judge Richard Posner dissents with separate opinion.

John R. Casey v. Nancy A. Berryhill, Acting Commissioner of Social Security
15-2810
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Judge Rudy Lozano.
Civil. Reverses the judgment of the district court to adopt the magistrate’s recommendation and dismiss John R. Casey’s case. Remands to the agency for administrative proceedings. Finds that the action by the Appeals Council in first granting and then retroactively denying Casey’s good cause request was arbitrary, having the effect of an unfair bureaucratic bait-and-switch.

Indiana Court of Appeals
Russell F. Dumka v. Lori Erickson and Edward Jones
20A03-1605-PL-1178
Civil plenary. Affirms the Elkhart Circuit Court’s order denying garnishment of an individual retirement account inherited by Lori Erickson from her husband. Finds that the order complies with the evidence and the law.

Devonte Owens v. State of Indiana
49A02-1605-CR-1142
Criminal. Reverses Devonte Owens’ sentence to 365 days, with four days of credit for time served, 271 days suspended to be served on probation and 90 days to be served through Marion County Community Corrections Home Detention for carrying a handgun without a license as a Class A misdemeanor. Finds that Owens did not receive due process at his sentencing hearing. Remands for a new sentencing hearing.

Harrison County Sheriff's Department v. Leandra Ayers, Personal Representative of the Estate of Christine Britton, Deceased
22A01-1605-CT-1080
Civil tort. Reverses the Floyd Circuit Court’s denial of the Harrison County Sheriff’s Department’s motion to correct error in which the sheriff argued that it was entitled to judgment on the evidence. Finds that Sheriff’s Deputy John Britton was acting in a purely private capacity and had no connection to his employment as a sheriff’s deputy when he left his wife, Christine, alone in a room with his gun, which she used to take her life. Remands with instructions to grant the sheriff’s motion to correct error.

Kenneth Brittain v. State of Indiana
49A02-1511-CR-1784
Criminal. Affirms Kenneth Brittain’s convictions of murder and attempted murder as a Class A felony. Finds that the Marion Superior Court’s admission of Victoria Richie’s deposition testimony did not violate Brittain’s confrontation rights under the Indiana Constitution. Also finds that because Brittain’s objection to the admission of deposition testimony at trial was limited to safeguarding his right of confrontation and did not reference any deficiency under Indiana Trial Rules, he waived this issue on appeal. Finally, finds that the trial court did not err in denying Brittain’s motion for a mistrial regarding handwritten notes made by Richie during her interview with a detective and that any alleged error is harmless.

Chad T.B. Steiner v. State of Indiana (mem. dec.)
79A05-1606-CR-1544
Criminal. Affirms Chad T.B. Steiner’s aggregate four-year sentence imposed after his guilty plea to Level 5 felony child exploitation and Level 6 felony possession of child pornography. Finds that the Tippecanoe Superior Court did not abuse its discretion in sentencing Steiner.

In the Commitment of S.C. (mem. dec.)
49A04-1608-MH-1802
Mental health. Dismisses S.C.’s pro se appeal of her involuntary temporary commitment. Finds that S.C. waived her claim on appeal due to her lack of cogent argument and appellate rule violations.

Darrell Smith v. State of Indiana (mem. dec.)
49A02-1606-CR-1392
Criminal. Affirms Darrell Smith’s conviction for Level 5 felony criminal recklessness. Finds that the evidence is sufficient to support his conviction.

Timothy Smith v. State of Indiana (mem. dec.)
49A02-1605-CR-1156
Criminal. Affirms in part Timothy Smith’s convictions of numerous counts of felony child molesting and felony criminal confinement. Vacates one count of Level 1 felony child molesting because it was not supported by sufficient evidence. Finds that the Marion Superior Court did not abuse its discretion in excluding certain proffered evidence from trial. Also finds that Smith’s 84-year sentence is not inappropriate in light of the nature of his offenses and his character.

Benjamin Odneal v. Circle Medical Management (mem. dec.)
45A03-1609-CT-2037
Civil tort. Affirms the Lake Superior Court’s grant of summary judgment in favor of Circle Medical Management. Finds that summary judgment was appropriately granted.

William L. Scales v. Chester Levels (mem. dec.)
82A01-1512-CC-2323
Civil collection. Affirms the Vanderburgh Circuit Court’s order granting summary judgment in favor of Chester Levels. Finds that based on the designated evidence, none of William Scales’ injuries is so substantial as to constitute an unjust and unconscionable injury and that Scales cannot show that injustice can be avoided only by enforcement of Levels’ purported promise. Also finds that because the doctrines of part performance and promissory estoppel do not apply to remove Levels’ alleged promise from the Statute of Frauds, the writing requirement of the statute was not satisfied, and any verbal agreement between Levels and William Scales regarding the transfer of an interest in the property to Scales in unenforceable.

Matthew Wright v. State of Indiana (mem. dec.)
49A02-1606-CR-1377
Criminal. Affirms Matthew Wright’s convictions of battery and domestic battery, both as Level 6 felonies. Finds that there was sufficient evidence to rebut his claim of self-defense.

Calvin Cole v. State of Indiana (mem. dec.)
49A02-1603-CR-575
Criminal. Affirms Calvin Cole’s conviction of Class A misdemeanor operating a vehicle while intoxicated and in a manner that endangers a person. Finds that any error in the admission of the recording of the 911 call was harmless beyond a reasonable doubt and that the state’s evidence was sufficient to support Cole’s conviction.

Melissa Freeman; Melissa Freeman Realty, Inc.; and Realty Group-Freeman, LLC d/b/a Prudential Indiana Realty Group v. Property-Owners Insurance Company (mem. dec.)
73A05-1606-PL-1255
Civil plenary. Affirms the Shelby Circuit Court’s grant of summary judgment to Property-Owners Insurance Company. Finds that the trial court did not err in its grant of summary judgment.

Christopher M. Konkle v. State of Indiana (mem. dec.)
78A05-1606-CR-1442
Criminal. Affirms Christopher M. Konkle’s sentence to an aggregate of four years, with two years served on home detention, for three counts of sexual misconduct as Class C felonies and five counts of trafficking with an inmate, one as a Class C felony and four as Class A misdemeanors. Finds that Konkle has not met his burden of establishing that his sentence is inappropriate in light of the nature of the offenses and his character.

Jarrad L. Mastin v. State of Indiana (mem. dec.)
18A04-1605-PC-1038
Post conviction. Affirms the denial of Jarrad Mastin’s petition for post-conviction relief. Finds that the post-conviction court did not err in finding Mastin is not entitled to relief on his claims he received ineffective assistance of trial or appellate counsel, nor in denying his motion for post-conviction evidentiary hearing transcripts.

 

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