Opinions July 5, 2017

July 5, 2017

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Friday:
Monarch Beverage Co. Inc. v. David Cook, et al.
Appeal from U.S. District Court for the Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker.
Civil. Affirms that Indiana’s alcohol law prohibiting a beer wholesaler from obtaining a liquor-wholesaler permit does not violate the prohibited-interest law or the 14th Amendment. Indiana’s separation of beer and liquor wholesaling survives review for rationality. Judge Easterbrook concurs in result in a separate opinion.

The following Indiana Court of Appeals decisions were posted Monday.
Stephen J. Ullery v. State of Indiana (mem. dec.)
Criminal. Affirms Stephen Ullrey’s four-year sentence in the Department of Correction for Level 5 felonies possession of cocaine or a narcotic drug and possession of methamphetamine, Level 6 felony unlawful possession of a syringe, Class A misdemeanor operating with a suspended license, and Class C felony possession of marijuana. Finds his sentence is not inappropriate.

Shaun S. Nesbit v. State of Indiana (mem. dec.)
Criminal. Affirms revocation of Shaun Nesbit’s probation, finding the court did not abuse its discretion in ordering him to serve the remainder of his previously suspended sentence in the DOC.

Michael L. Zackmire v. State of Indiana (mem. dec.)
Criminal. Affirms Michael Zackmire’s 18-year aggregate sentence for two counts of Level 3 felony rape, finding the sentence is not inappropriate.

Adam Wakefield v. State of Indiana (mem. dec.)
Criminal. Affirms Adam Wakefield’s convictions of Level 5 felonies corrupt business influence and conspiracy to commit theft, and Level 6 felony theft. Finds certain evidence admitted at trial was at most a harmless error and not a fundamental error.

James Maloney v. State of Indiana (mem. dec.)
Criminal. Affirms revocation of James Maloney’s probation under three cause numbers, finding the trial court did not abuse its discretion in ordering him to serve the bulk of his previously suspended sentences in the DOC.

Wednesday’s opinions
Indiana Court of Appeals
401 Public Safety and Lifeline Data Centers, LLC v. David Ray and the Committee to Elect David Ray
Civil plenary. Affirms the Marion Superior Court’s order dismissing 401 Public Safety and Lifeline Data Centers LLC’s defamation complaint against David Ray and the Committee to Elect David Ray based on the Anti-SLAAP Statute. Finds the speech contained in a flyer constitutes a matter of public interest. Also finds Ray and the committee have established as a matter of law that they acted in good faith, without malice and with a reasonable basis in law and fact. Judge Paul Mathias concurs and dissent in part with separate opinion.

Mario Gonzaga v. State of Indiana (mem. dec.)
Criminal. Affirms Mario Gonzaga’s convictions of Class A misdemeanors operating a vehicle while intoxicated endangering a person and operating a vehicle with an alcohol content equivalent of 0.15 or more, and Class C misdemeanor operating a motor vehicle without ever receiving a license. Finds the Marion Superior Court did not abuse its discretion when it denied Gonzaga’s motion to suppress evidence obtained pursuant to a valid search warrant.

D.P. v. A.L. (mem. dec.)
Domestic relation. Remands for the Henry Circuit Court to determine and make one or more findings regarding endangerment of child Da.P.’s physical health or significant impairment of his emotional development, or to conduct other proceedings on the issue of A.L.’s motion to modify D.P.’s parenting time with Da.P. Finds the trial court only made findings related to Da.P.’s best interests.

Douglas Johnson v. State of Indiana (mem. dec.)
Post-conviction. Affirms the denial of Douglas Johnson’s petition for post-conviction relief. Finds the post-conviction court did not err in determining Johnson did not receive ineffective assistance of trial counsel.

Brandon L. Garner v. State of Indiana (mem. dec.)
Criminal. Reverses the Perry Circuit Court and vacates Brandon L. Garner’s conspiracy to maintain a common nuisance conviction and reduces his 16-year sentence to 14 years. Affirms the trial court in all other respects. Finds Garner’s two conspiracy convictions violated the actual evidence test in Richardson v. State, so his sentence should be reduced to 14 years. Also finds there was not a fatal variance between pleading and proof as to whether Garner possessed a firearm on the charged date. Finally, finds Garner has failed to establish his sentence is inappropriate in light of the nature of his offenses and his character.

Dale Bond v. Judylee W. Bond (mem. dec.)
Domestic relation. Affirms the denial of Dale Bond’s motion to correct error after he was found to be in contempt of court. Finds the Randolph Superior Court did not abuse its discretion in denying the motion.