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Opinions Feb. 14, 2017

February 14, 2017

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Monday:
Willie Long v. United States of America
15-2668
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Robert L. Miller, Jr.
Civil. Affirms the district court’s decision to deny Willie Long collateral relief following his conviction of being a felon in possession of a firearm after Long argued that he had been given ineffective assistance of counsel despite a provision in his plea agreement waiving his right to a collateral attack. Finds that because Long failed to allege any facts that, if proven true, would entitle him to relief, he is not entitled to an evidentiary hearing.

Tuesday's opinions
Indiana Court of Appeals
School City of Hammond District v. Chad Rueth
45A03-1603-CT-450
Civil tort. Reverses judgment pursuant to a jury verdict in favor of Chad Rueth on his claims of defamation and blacklisting, finding there is insufficient evidence to support a verdict in his favor, and the trial court abused its discretion by denying the School City of Hammond District’s motion to correct error.

In the Matter of the Termination of the Parent-Child Relationship of A.F., D.F., & M.F., Minor Children, T.F., Father v. Indiana Department of Child Services
49A04-1605-JT-1030
Juvenile termination. Affirms the involuntary termination of T.F.’s parental rights to his daughters, A.F., D.F. and M.F. Finds the Marion Superior Court did not abuse its discretion in admitting certain evidence.

Citizens Action Coalition of Indiana, Inc., et al. v. Southern Indiana Gas and Electricity Company, et al.
93A02-1607-EX-1637
Agency decision. Affirms the Indiana Utility Regulatory Commission’s decision on remand to issue a certificate of public convenience and necessity for two projects proposed by Vectren Energy Delivery of Indiana Inc. to modify its coal-powered generating stations to bring them into compliance with EPA standards. Finds the intervenors failed to establish that the IURC abused its broad discretion in reaching its findings. Also finds that the IURC did not abuse its discretion by denying the intervenors’ petition to reopen the record because there was ample evidence in the record from which the IURC could evaluate the statutory factors on remand.

Flat Rock Wind, LLC v. Rush County Area Board of Zoning Appeals, et al.
70A01-1606-PL-1382
Civil plenary. Affirms the trial court’s decision affirming the Rush County Area Board of Zoning Appeals’ grant of Flat Rock Wind LLC’s amended application to construct a commercial Wind Energy Conversion System, subject to the requirement to locate each industrial turbine at least 2,300 feet from a non-participating owner’s property line. Finds the Rush Superior Court properly permitted the remonstrators to intervene pursuant to Trial Rule 24(A)(2). Also finds that the BZA did not exceed its power in interpreting the WECS special exception in the zoning ordinance.

State of Indiana v. Sameer Girish Thakar
29A02-1606-CR-1265
Criminal. Affirms the Hamilton Superior Court’s dismissal of its charging information against Sameer Girish Thakar for one count of Class D felony dissemination of matter harmful to minors. Finds the trial court properly relied on the holding in Salter v. State, 906 N.E.2d 212 (Ind. Ct. App. 2009) in dismissing the charging information against Thakar.

Keri Brewer v. State of Indiana (mem. dec.)
49A04-1604-CR-785
Criminal. Affirms Keri Brewer’s conviction for felony murder. Finds that fundamental error did not occur as a result of Aleem Thomas’ testimony regarding Brewer and Mark Tyson previously purchasing marijuana from Patrick Martin or as a result of Thomas, Detective Greg Hagan or Sgt. Mark Hess testifying on Martin’s cellphone number.

Tommy J. Rubalcada v. State of Indiana (mem. dec.)
82A01-1605-PC-1180
Post conviction. Affirms the denial of Tommy Rubalcada’s petition for post-conviction relief. Finds Rubalcada did not receive ineffective assistance of trial counsel.

Kenneth M. Jordan v. State of Indiana (mem. dec.)
44A03-1603-CR-503
Criminal. Affirms Kenneth Jordan’s convictions for dealing in methamphetamine of as a Level 4 felony, possession of meth as a Level 5 felony, possession of precursors as a Level 6 felony, maintaining a common nuisance as a Level 6 felony and possession of paraphernalia as a Class A misdemeanor. Finds that the LaGrange Superior Court did not abuse its discretion in admitting some of the state’s exhibits. Also finds that pursuant to his probation order, Jordan consented to a search and therefore his rights under Article 1, Section 11 of the Indiana Constitution were not violated and that Miranda warnings prior to Jordan’s voluntary statements to the officers were not required. Finally, finds that there was sufficient evidence to convict him of the charged offenses and that his convictions of dealing in meth, possession of meth and possession of precursors did not violate double jeopardy principles.

Daniel Fuquay v. Teresa Higginson, et al. (mem. dec.)
82A05-1607-JP-1621
Juvenile paternity. Affirms the Vanderburgh Superior Court’s denial of Daniel Fuquay’s request to retroactively modify his child support obligation. Finds the trial court did not abuse its discretion.

Dax C. Rutherford v. State of Indiana (mem. dec.)
34A04-1608-CR-2050
Criminal. Affirms the revocation of Dax Rutherford’s probation and the Howard Superior Court’s order that he serve the balance of his previously suspended eight-year sentence. Finds the trial court did not err in calculating the balance of his sentence.

Cassie L. Carnahan v. Jason M. Carnahan (mem. dec.)
17A03-1606-DR-1537
Domestic relation. Affirms in part the DeKalb Superior Court’s division of marital property following to dissolution of Cassie L. Carnahan’s marriage to Jason M. Carnahan. Finds the court did not abuse its discretion in its valuation of the property but did abuse its discretion by awarding the entirety of the disputed marital estate to Jason Carnahan. Remands for the trial court to effectuate a division that is just and reasonable.

J.G. v. Review Board of the Indiana Department of Workforce Development, et al. (mem. dec.)
93A02-1607-EX-1579
Agency decision. Affirms the Review Board of the Indiana Department of Workforce Development’s decision that J.G. was discharged for just cause and, therefore, should be denied unemployment compensation benefits. Finds substantial evidence to establish that J.G. was discharged for just cause.

Billy E. Oliver v. State of Indiana (mem. dec.)
20A03-1606-CR-1519
Criminal. Affirms Billy E. Oliver’s conviction of Class A misdemeanor domestic battery and sentence to 180 days in jail. Finds the Elkhart Circuit Court acted within its discretion in excluding certain evidence proffered from trial. Also finds that Oliver failed to prove that his sentence is inappropriate in light of the nature of his offense and his character.

A.W. v. State of Indiana (mem. dec.)
20A03-1606-JV-1333
Juvenile. Affirms the Elkhart Circuit Court’s order adjudicating A.W. as a delinquent for committing what would be child molesting as a Class B felony if committed by an adult. Finds there is sufficient evidence to support the juvenile court’s adjudication. Also finds that the Romeo and Juliet defense is inapplicable to A.W.’s case.

Coventry Court Townhomes v. Brittany D. Bigger (mem. dec.)
02A04-1607-SC-1640
Small claims. Affirms the Allen Superior Court’s judgment in favor of Brittany Bigger, an ex-tenant of Coventry Court Townhomes. Finds the trial court’s findings sufficiently establish that Bigger surrendered Coventry’s premises and that Coventry accepted that surrender before Jennifer Ledsome breached the lease. Also finds that even if the findings did not support that particular legal theory, Coventry’s failure to provide the Indiana Court of Appeals with an evidentiary record to review precludes the appellate court’s reversal of the judgment in Bigger’s favor.

Albert Webb v. State of Indiana (mem. dec.)
20A05-1604-CR-1001
Criminal. Affirms Albert Webb’s conviction for two counts of robbery, five counts of confinement and one count of conspiracy to commit robbery, all Class B felonies. Finds the evidence is sufficient to support Webb’s convictions and that the trial court did not erroneously instruct the jury. Also finds that Webb’s double jeopardy claim fails. Finally, finds that Webb’s sentence is not inappropriate in light of the nature of the offense or his character.

 

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