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Opinions April 5, 2017

April 5, 2017

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Tuesday:
Kimberly Hively v. Ivy Tech Community College

15-1720
Appeal from U.S. District Court for the Northern District of Indiana, South Bend Division. Judge Rudy Lozano.
Civil. En banc ruling reverses previous affirmation of the dismissal of Kimberly Hively's lawsuit alleging sex discrimination under Title VII of the Civil Rights Act of 1964 based on sexual orientation. Majority decision holds only that a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes. Remands to lower court for further proceedings. Judges Posner, Flaum, and Ripple concur in separate opinions. Judges Sykes, Bauer and Kanne dissent with separate opinion.

Wednesday's opinions

Indiana Court of Appeals
Citizens Action Coalition of Indiana, Inc., Indiana Association for Community and Economic Development, Indiana Coalition for Human Services, et al. v. Indianapolis Power & Light Company, et al.
93A02-1604-EX-804
Agency. Affirms the Indiana Utility Regulatory Commission’s approval of Indianapolis Power & Light Co.’s petition for approval of an increase to its base rates for provision of electricity, which had been in effect since 1995. Finds the joint intervenors have not shown that the commission decision approving a rate design that includes declining block rate is unsupported by requisite findings. Also joint intervenors have not shown that the rate approval order is non-binding due to a lack of more extensive factual findings on matters introduced by joint intervenors, which were not directly material to components of the approved rate design.

Joshua Conn v. State of Indiana (mem. dec.)
49A05-1606-CR-1268
Criminal. Affirms Joshua Conn’s conviction for attempted murder as a Level 1 felony. Sufficient evidence supports Conn’s conviction and Conn has demonstrated no abuse of discretion in the admission of evidence.

Luke Paul Eckrich v. State of Indiana (mem. dec.)
84A01-1610-CR-2343
Criminal. Affirms Luke Paul Eckrich’s conviction of possession of child pornography as a Level 6 felony and the finding that he is a repeat sexual offender. The evidence was sufficient to support Eckrich’s conviction, but the sentencing order inaccurately characterized the repeat sexual offender enhancement as a separate consecutive sentence. Remands for the correction of the sentencing order.

In re the Marriage of: Tina Marie Perry v. William N. Perry, III (mem. dec.)
41A04-1606-DR-1461
Domestic relation. Reverses the revocation of William N. Perry III’s obligation to pay incapacity maintenance to Tina Marie Perry. The evidence presented to the Johnson Superior Court did not meet the “daunting” standard requiring “that the very existence of the award has become unreasonable – not only in the present, but under any reasonably foreseeable future circumstances as well.” Remands with instructions that the capacity maintenance order remains in place.

S.H. v. Marion County Department of Child Services, et al. (mem. dec.)
49A02-1610-JC-2403
Juvenile CHINS. Affirms the denial of S.H.’s relief from judgment pursuant to Indiana Trial Rule 60(B)(6). Finds service was properly made pursuant to T.R. 4.1(A)(1). The trial court obtained personal jurisdiction over S.H. once D.H. signed the green card on S.H.’s behalf at a Dixon Street address. Finds the Marion Superior Court did not err in denying S.H.’s motion for relief from judgment.

David C. Franks v. State of Indiana (mem. dec.)
34A02-1607-CR-1671
Criminal. Remands the revocation of David C. Franks’ suspended sentences in three cause numbers with instructions to amend the revocation order to reflect that Franks is entitled to 12 days of credit time in FB-39 and 57 days of credit time in FB-54. The sentences in those cause numbers were completely suspended to probation and, thus, the Department of Correction could not have applied the credit time previously.

Paris LaPriest Powell v. State of Indiana (mem. dec.)
48A04-1603-CR-691
Criminal. Affirms Paris LaPriest Powell’s conviction of battery as a Class A misdemeanor and conversion as a Class A misdemeanor and his sentence to one year, with six months suspended and the balance to be served on work release. The Madison Circuit Court did not abuse its discretion in instructing the jury and Powell has not shown that a Brady violation occurred. Finds the trial court did not prevent him from presenting evidence on his behalf at sentencing, and Powell’s claim that his sentence is inappropriate is moot.

Debra K. Ford, Personal Representative of the Estate of Darlene M. Welsh v. Indiana Heart Hospital (mem. dec.)
49A04-1606-CT-1334
Civil tort. Reverses summary judgment in favor of the Indiana Heart Hospital. Because Amanda Dillow’s affidavit sufficiently stated that the hospital breached the standard of care in Welsh’s case, it created a genuine issue of material fact as to duty and breach. Remands for further proceedings. Judge John Baker dissents with separate opinion.

In re the Termination of the Parent-Child Relationship of T.H. (Minor Child), and J.H. (Father) v. The Indiana Department of Child Services (mem. dec.)
10A01-1608-JT-1947
Juvenile termination of parental rights. Affirms the termination of J.H.’s parental rights to T.H. Clear and convincing evidence supports the Clark Circuit Court’s order terminating J.H.’s parental rights.

George A. Foote v. State of Indiana (mem. dec.)
28A01-1607-PC-1726
Post-conviction. Affirms the Indiana Court of Appeals’ December 2016 decision in George A. Foote’s case. Grants rehearing for the limited purpose of addressing his claim that he received ineffective assistance of appellate counsel because his attorney denied him access to a direct appeal. Because the court already determined Foote suffered no prejudice in light of the fact that he would not have prevailed on the sentencing issue on direct appeal, he is not entitled to relief on rehearing.

Joseph Miller v. State of Indiana (mem. dec.)
64A04-1609-PC-2121
Post-conviction. Affirms the denial of Joseph Miller’s petition for post-conviction relief. Based on the charging information, the evidence presented at trial and the instructions given, Miller was adequately informed of the nature of the charge against him and was given a sufficient opportunity to prepare a defense. Therefore, had appellate counsel raised this issue on appeal, it is unlikely that this court would have concluded that fundamental error occurred and that the result of the appeal would have been different.
 

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