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Opinions May 10, 2017

May 10, 2017

The following Indiana Supreme Court opinion was posted after IL deadline Tuesday:
Thomas Pinner v. State of Indiana
49S02-1611-CR-610
Criminal. Reverses the Marion Superior Court’s denial of Thomas Pinner’s motion to suppress evidence. Finds the evidence was obtained in violation of the Fourth Amendment and, thus, the trial court erred in denying the motion to suppress. Remands for further proceedings.

Wednesday's opinions
Indiana Court of Appeals
Shelly M. Phipps v. State of Indiana
28A05-1609-CR-2097
Criminal. Reverses Shelly M. Phipps’ conviction of Level 6 felony invasion of privacy. Finds the state failed to prove that Phipps contacted K.G. by sending an email. Remands for further proceedings. Judge Rudolph Pyle dissents with separate opinion.

Cheng Song v. Thomas Iatarola and Theresa Iatarola
64A03-1609-PL-2094
Civil plenary. Reverses and affirms in part the Porter Superior Court’s denial of Cheng Song’s petition for attorney fees and prejudgment interest and Thomas and Theresa Iatarola’s motion for summary judgment and motion to correct errors. Finds the trial court did not err in denying the Iatarolas’ motions, but did err in denying Song’s motions. Remands with instructions to consider Song’s motions for attorney fees and prejudgment interest.

Ricky L. Sands v. State of Indiana (mem. dec.)
90A02-1610-CR-2309
Criminal. Affirms Ricky L. Sand’s sentence to an aggregate of 50 years for two counts of child molesting as Class A felonies, two counts of child molesting as Class C felonies, dissemination of matter harmful to minors as a Class D felony and two counts of contributing to the delinquency of a minor as Class A misdemeanors. Finds his sentence is not inappropriate.

Bradley A. Bible v. State of Indiana (mem. dec.)
20A03-1608-CR-1897
Criminal. Affirms Bradly A. Bible’s conviction for operating a vehicle while intoxicated as a Level 6 felony. Finds Bible waived his right to challenge an amendment to the charging information by failing to object to the trial court’s pretrial grant of the amended charging information and by failing to move for a continuance. Also finds the verdict form Bible challenges did not mandate a conviction or warrant reversal. Finally, finds he has not demonstrated prejudice or ineffective assistance of counsel.

First Financial Bank, N.A. v. Craig W. Johnson (mem. dec.)
49A02-1605-MF-1097
Mortgage foreclosure. Affirms summary judgment for Craig W. Johnson. Finds the Marion Superior Court did not err in determining that First Financial Bank, N.A. was required to make a demand for payment to Johnson in order to trigger his obligations under the Guaranty and that it failed to do so, or in finding that Johnson had not waived his right to demand for payment. Also finds First Financial’s lawsuit cannot serve as a demand because demand for payment is a condition that must be met prior to filing suit. Finally, finds the trial court did not err by entering summary judgment for Johnson instead of denying First Financial’s motion or dismissing the case without prejudice.

Harold E. Kerkhove v. State of Indiana (mem. dec.)
79A02-1607-CR-1695
Criminal. Affirms Harold Kerkhove’s convictions for domestic battery and invasion of privacy as Class A misdemeanors and two counts of invasion of privacy as Level 6 felonies and his sentence to an aggregate of 545 days executed. Finds Kerkhove may not challenge his convictions and the factual basis supporting his guilty pleas on direct appeal. Also finds the Tippecanoe Superior Court did not abuse its discretion in its sentencing decision and his sentence is not inappropriate in light of the nature of the offenses and his character. Remands to the trial court for amendment of the sentencing order.

Robert Holland v. Lake County Treasurer, et al. (mem. dec.)
45A03-1605-MI-1109
Miscellaneous. Affirms the Lake Circuit Court’s order granting a verified petition for a tax deed filed by Lori Born. Finds Robert Holland was not deprived of due process based on the fact that he received adequate notice of the tax sale, of his right to redemption of the property and of Born’s petition for a tax deed. Also finds Holland failed to avail himself of the remedies provided for challenging a property tax assessment and that the trial court did not have subject-matter jurisdiction to address such a claim.

Jermaine A. Broussard v. State of Indiana (mem. dec.)
79A04-1611-CR-2636
Criminal. Affirms Jermaine A. Broussard’s sentence to an aggregate of 20 years, with 18 years executed and two years suspended to supervised probation, following an open guilty plea to unlawful possession of a firearm by a serious violent felon as a Level 4 felony, operating while intoxicated with a prior conviction as a Level 6 felony and being a habitual offender. Finds the Tippecanoe Superior Court properly explained and supported the imposition of consecutive sentences. Also finds Broussard’s sentence is not inappropriate in light of the nature of the offense and his character.

Demetrius Tate v. State of Indiana (mem. dec.)
79A02-1612-CR-2909
Criminal. Affirms Demetrius Tate’s sentence to four years, with three years executed and one year of supervised probation, following an open guilty plea to operating a motor vehicle while privileges are forfeited for life as a Level 5 felony. Finds the Tippecanoe Superior Court did not abuse its discretion when it sentenced Tate and that his sentence is not inappropriate.
 

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