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Opinions April 12, 2017

April 12, 2017
KEYWORDS Opinions

The following Indiana Tax Court opinion was posted after IL deadline Tuesday:
Mary K. Fisher v. Carroll County Assessor
49T10-1601-TA-1
Tax. Affirms the Indiana Board of Tax Review’s determination that established the assessed value of Mary K. Fisher’s real property for the 2012 and 2014 tax years. Finds there is no basis for reversing the board’s conclusion.

Wednesday's opinions
Indiana Court of Appeals
C.H. v. A.R.
29A05-1607-PO-1625
Order of protection. Affirms the Hamilton Circuit Court order dismissing C.H.’s protective order petition and its ex parte protective order that she sought against A.R. for the protection of A.R.’s son, H.L.. Affirms grant of A.R.’s petition for attorney fees. Finds the trial court did not err.

State of Indiana v. Amber E. McHenry
35A04-1609-CR-2080
Criminal. Affirms the grant of Amber McHenry’s motion to dismiss her Level 2 felony charge of burglary while armed with a deadly weapon. Finds Indiana Code 35-43-2-1(3)(A) does not fairly encompass within its language McHenry’s taking of the handgun from the burglary of Andrew Stoffel’s residence.

Tipton County Board of Commissioners, et al. v. Gayle Prather, et al.
80A02-1611-MI-2533
Miscellaneous. Affirms the denial of the Tipton County Board of Commissioners and City of Tipton’s motion for the Prathers to post a bond in a judicial review action brought by the couple. Finds the Indiana Public Law Statute is inapplicable. Remands.

Christopher Macy v. State of Indiana (mem. dec.)
49A05-1601-PC-100
Post-conviction. Affirms the denial of Christopher Macy’s petition for post-conviction relief. Finds Macy did not receive the ineffective assistance of counsel and the post-conviction court did not err.

Marcus Hardy v. State of Indiana (mem. dec.)
41A01-1605-CR-1012
Criminal. Affirms Marcus Hardy’s sentence to an aggregate of 65 years for felony murder and armed robbery as a Level 3 felony. Finds the Johnson Circuit Court did not abuse its discretion in sentencing Hardy.

Gerald Lynn West v. State of Indiana (mem. dec.)
84A04-1611-CR-2535
Criminal. Affirms Gerald Lynn West’s aggregate 30-year sentence for dealing in methamphetamine, a Level 2 felony, maintaining a common nuisance, a Level 6 felony, battery, a Level 5 felony and possession of marijuana, a Class A misdemeanor. Finds West’s sentence is not inappropriate.

Gerald Doll v. Robert Guy, et al. (mem. dec.)
91A02-1611-PL-2748
Civil plenary. Affirms the dismissal of Gerald Lee Doll’s small claims complaint. Finds his complaint was not properly served, so the White Circuit Court correctly determined that it did not have jurisdiction over White County Prosecutor Robert Guy.

Bruce W. Shaw v. Sheri E. Shaw (mem. dec.)
29A04-1607-DR-1556
Domestic relation. Affirms the Hamilton Superior Court’s order that Bruce Shaw pay $12,000 of Sherie Shaw’s attorney fees. Reverses the trial court’s decision to include Bruce Shaw’s early withdrawal from his retirement account in its supplement child support calculation and its order that Bruce Shaw pay Sherie Shaw 8 percent of the withdrawal. Remands with instructions to remove Bruce Shaw’s retirement account withdrawal from its supplemental child support calculation.

Melanie Marie Thinnes v. State of Indiana (mem. dec.)
27A02-1606-CR-1305
Criminal. Affirms Melanie Thinnes’ convictions of Class B felony causing death when operating a motor vehicle with a schedule I or II controlled substance in the blood, Class C felony criminal recklessness resulting in serious bodily injury, Class D felony causing bodily injury while operating a motor vehicle while intoxicated with a schedule I or II controlled substance, two counts of Class D felony possession of a controlled substance and Class A misdemeanor possession of marijuana, and her sentence to eight years in the Department of Correction. Finds that a witness’ testimony did not place Thinnes in a position of grave peril, and Thinnes’ sentence was not against the logic and effect of the facts and circumstances before the Grant Superior Court.

Jermaine Davis v. State of Indiana (mem. dec.)
45A03-1606-CR-1636
Criminal. Affirms Jermaine Davis’ conviction for Class A felony attempted murder. The Lake Superior Court did not abuse its discretion by denying Davis’ motion for a continuance as a result of a delay in the state producing discovery or by denying his motion for a continuance to secure new counsel.

Foncannon Tax & Financial Services, LLC v. Stephen C. Gubler, et al. (mem. dec.)
82A05-1606-CC-1263
Civil collection. Reverses the grant of summary judgment to Stephen C. Gubler P.C. and Stephen C. Gubler, in his individual capacity. Finds there is a question of material fact as to the existence of a mutual agreement for extending the term of the consulting period, which must be addressed by the trial court. Remands for further proceedings.

John P. Jones v. State of Indiana (mem. dec.)
51A04-1606-CR-1420
Criminal. Affirms John Paul Jones’ sentence to four years in prison with one year suspended to probation for Level 5 felony dealing in methamphetamine. Jones has failed to establish the Martin Circuit Court abused its discretion in sentencing him. Also finds Jones’ sentence is not inappropriate in light of the nature of the offense or his character.

C.C. v. State of Indiana (mem. dec.)
27A02-1611-JV-2960
Juvenile. Affirms C.C.’s adjudication as a juvenile delinquent for an act that, if committed by an adult, would constitute child molesting as a Level 3 felony. Finds there was sufficient evidence to sustain the Grant Superior Court’s finding of “true” as to a single count of child molesting. Also finds there was no fundamental error with S.B.’s competence to testify at trial.

Roy Defries, et al. v. Board of Commissioners of Posey County, et al. (mem. dec.)
65A05-1508-MI-1249
Miscellaneous. Affirms the Board of Commissioners of Posey County’s grant of Donald and Virginia Alsop, Janice Heinlin, and Alvin and Jennifer Blaylock’s petition to vacate South Road in Posey County and adopt an ordinance to that effect. Finds any error resulting from the board’s failure to hold a hearing within 30 days in accordance with Indiana Code 36-7-3-12(c) was harmless because it did not affect the substantial rights of the parties. Also finds the remonstrators, including Roy and Nancy DeFries, Indiana Mound Farm LLC, David Flanders and Johnathan Scott, have not established that the board’s decision to vacate South Road was arbitrary, capricious or an abuse of discretion.

Termination: J.R., et al. v. Indiana Department of Child Services (mem. dec.)
32A04-1611-JT-2489
Juvenile termination of parental rights. Affirms the termination of J.R. and T.H.’s parent-child relationship with their son, D.H. Finds there is sufficient evidence to support the termination of the parent-child relationship.

Destin Dean Jones v. State of Indiana (mem. dec.)
84A05-1609-CR-2065
Criminal. Affirms Destin Jones’ conviction of Level 3 felony conspiracy to commit armed robbery. Reverses Jones’ conviction of Level 3 felony attempted armed robbery. Finds there is sufficient evidence to sustain Jones’ conspiracy to commit armed robbery conviction, but not his attempted armed robbery conviction. Remands for resentencing.

Marilyn K. Viers v. State of Indiana (mem. dec.)
20A03-1609-CR-2106
Criminal. Affirms the revocation of Marilyn K. Viers’ probation and order for her to serve her previously suspended 12-month sentence for her conviction of Class D felony operating a vehicle while intoxicated with a prior conviction. Finds the Elkhart Superior Court did not abuse its discretion.

Mike Harmon v. State of Indiana (mem. dec.)
45A03-1605-PC-1048
Post-conviction. Affirms the denial of Mike Harmon Jr.’s petition for post-conviction relief. Finds the post-conviction court did not err when it rejected Harmon’s contention that the state had improperly withheld potentially exculpatory evidence from him during his trial or when it concluded that he did not receive ineffective assistance of trial counsel. Also finds Harmon’s bench trial did not violate his constitutional rights.

Damaris A. Smith v. State of Indiana (mem. dec.)
73A01-1605-CR-1112
Criminal. Affirms the denial of Damaris Anthony Smith’s petition to file a belated notice of appeal under Indiana Post-Conviction Rule 2(1). Finds the Shelby Superior Court did not abuse its broad discretion.

CHINS: D.C. v. Indiana Department of Child Services (mem. dec.)
02A03-1609-JC-2068
Juvenile CHINS. Affirms the denial of W.D.T.’s motion to set aside admission and findings and request for fact finding. Holds the juvenile court did not abuse its discretion.

Christopher Reid v. State of Indiana (mem. dec.)
16A01-1611-CR-2554
Criminal. Affirms Christopher Reid’s sentence 4 ½ years, with four years executed and six months suspended to probation, for operating a motor vehicle after being adjudicated as a habitual traffic violator and his admission to being a habitual offender. Finds Reid’s sentence is not inappropriate in light of the nature of the offense and his character.
 

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