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Opinions March 17, 2017

March 17, 2017

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Thursday:
McKinley Kelly v. Richard Brown
17-1244
Criminal. Majority denies and dismisses McKinley Kelly’s motion for an order authorizing the district court to entertain a second or successive petition for collateral review of his petition for habeas corpus. Kelly sought review of his 110-year sentence for two convictions of murder imposed for crimes committed when he was 16. Majority holds sentencing court had considerable leeway in fashioning Kelly’s sentence and considered his age when deciding the appropriate term. Judge Richard Posner dissents, writing that Supreme Court rulings that life sentences imposed on juveniles are unconstitutional entitle Kelly to pursue his claim in the district court, which should conduct a hearing to determine if he is incorrigible.

Friday’s opinions
Indiana Supreme Court
Marvin Beville v. State of Indiana
84S01-1606-CR-347
Criminal. Reverses the Vigo Superior Court’s decision to withhold a video recording of a controlled drug buy between Marvin Beville and a confidential informant. Finds the state failed to make the threshold showing that the informer’s privilege applied to the case because it is unclear whether the video would reveal the informant’s identity. Even if the state had made the threshold showing, Beville carried his burden of proving an exception to the privilege because his review of the video was relevant and helpful to his defense.

Indiana Court of Appeals
Michael Miller v. State of Indiana
28A04-1603-CR-634
Criminal. Reverses Michael Miller’s conviction for attempted murder. Finds Miller’s speedy trial rights were not violated by the Greene Circuit Court’s granting of the state’s continuance motion. There was sufficient evidence as a matter of law to reject Miller’s insanity defense. Finds it is apparent the trial court as fact-finder applied the incorrect standard of a “knowing” mens rea rather than “specific intent to kill” in deciding to convict Miller of attempted murder. Remands for a new trial.

Sally Witherspoon v. Tawanna Brown (mem. dec.)
45A04-1608-SC-1816
Small claims. Dismisses Sally Witherspoon’s appeal of the Lake Superior Court’s order granting immediate possession of her property and residence to Tawanna Brown. Finds Witherspoon’s appeal is untimely.

Garit Tuggle v. State of Indiana (mem. dec.)
33A01-1608-CR-1884
Criminal. Affirms Garit Tuggle’s 12-year aggregate sentence for Level 3 felony aggravated battery and Level 6 felony criminal recklessness convictions. The Henry Circuit Court did not abuse its discretion in including one of the victim’s lost wages in its restitution order. Finds Tuggle has failed to carry his burden to show that his sentence is inappropriate.

Sanders Development Group, Inc. v. Willow Properties, LLC (mem. dec.)
06A04-1604-PL-941
Civil plenary. Reverses the Boone Circuit Court’s entry of summary judgment in favor of Willow Properties LLC. Finds it is within the fact-finder’s purview to determine whether Sanders Development Group Inc. completed its management of Willow Properties’ lot and whether Willow Properties breached the contract by refusing to pay the 7 percent management fee for each lot sold. Remands for further proceedings.

Don Niemeyer, Jon Niemeyer, Brent Hegerfeld, Stanley Hegerfeld, Hoagland Holdings, LLC, et al. v. The Board of Trustees of Allen County Regional Water & Sewer District (mem. dec.)
02A03-1608-MI-1914
Miscellaneous. Affirms the Allen Circuit Court’s order granting summary judgment in favor of the board of trustees of Allen County Regional Water & Sewer District following the appellants’ challenge to a sewer rate ordinance under Indiana Code 13-26-11-15. Finds the appellants failed to persuade the Indiana Court of Appeals that the board did not follow the required procedure in adoption the ordinance and that they had submitted evidence that the increased rates and charges were not just and equitable as defined in Section 9 of the ordinance.

In Re: The Matter of Joyce Hall Incapacitated Adult, Barbara Rich and Donald Rich v. Imogene Suzann Fischman (mem. dec.)
30A01-1605-GU-1155
Guardianship. Affirms the Hancock Circuit Court’s judgment for Imogene Suzann Fischman, guardian of Joyce Hall’s estate. The trial court’s order requiring the Riches to reimburse Hall’s estate is not clearly erroneous.

Miguel A. Garcia-Cheverez v. State of Indiana (mem. dec.)
49A02-1606-CR-1469
Criminal. Affirms Miguel Garcia-Cheverez’s conviction of three counts of Level 1 felony child molesting. Garcia-Cheverez failed to establish that the prosecutor engaged in misconduct that rises to the level of fundamental error.

Samuel Jacob Fies v. State of Indiana (mem. dec.)
45A05-1611-CR-2547
Criminal. Affirms Samuel Jacob Fies’ five-year aggregate sentence following his guilty plea to one count of Class C felony sexual misconduct with a minor and one count of Class A misdemeanor inappropriate communication with a child. Finds Fies has not met his burden of demonstrating that his sentence is inappropriate in light of the nature of the offenses and his character.
 

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