Opinions April 30, 2021

7th Circuit Court of Appeals

USA v. David Gibson and Jerry Harris
20-1236 & 20-2234
Appeals from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Jon E. DeGuilio.

Criminal. Affirms the Northern District Court’s denial of Jerry Harris and David Gibson’s motion to suppress evidence collected from cellphone tracking that revealed a heroin drug-trafficking scheme, as well as their respective sentences for conviction of conspiring to distribute one kilogram or more of heroin.


Indiana Court of Appeals

Jeffrey Allen Smith v. State of Indiana
Criminal. Affirms Jeffrey Allen Smith’s conviction of Level 6 felony domestic battery resulting in moderate bodily injury. Finds the state’s evidence was sufficient to support Smith’s conviction.

Lake County Board of Commissioners and Lake County Council v. State of Indiana, Office of the Attorney General, of the State of Indiana, Lake County Probation Department, Jan Parsons, in her official capacity as Director and Chief Probation Officer of felony Probation Department of the Superior Courts of Lake County, Criminal Division, et al.
Miscellaneous. Affirms the grant of summary judgment to the state of Indiana, the Office of Attorney General, the Lake County Probation Department and Jan Parsons, director of the felony probation department of the Lake County Superior Courts, Criminal Division, entered after the Marion Superior Court concluded as a matter of law that the county is responsible for the costs of Lake County probation officers’ legal representation in defending against a federal lawsuit. Finds that under Indiana Code subsection 11-13-1-1(c), Lake County is responsible for paying the costs of its probation officers’ legal defense that are incurred in the performance of the officers’ duties.

Dan L. Broering v. State of Indiana
Criminal. Affirms the denial of Dan L. Broering’s motion to reduce bond on the basis that the Ripley Circuit Court did not hold an initial hearing within 48 hours of his arrest. Finds the trial court should have denied the state’s request for a 72-hour extension and set an initial hearing, but Broering has not asserted that he was prejudiced by any delay. Chief Judge Cale Bradford concurs in result with separate opinion.

James G. Owens v. State of Indiana
Criminal. Affirms the denial of James G. Owens’ Criminal Rule 4(A) motion for release from jail. Finds the trial court properly denied Owens’ motion where less than six months was attributable to the Criminal Rule 4(A) period.

Ronald M. Marshall v. State of Indiana (mem. dec.)
Criminal. Affirms Ronald Marshall’s sentence to three years executed in the Indiana Department of Correction for his conviction of Level 5 felony child solicitation. Finds that pursuant to his plea agreement, Marshall waived his right to appeal his sentence.

Jeremy L. Rodgers v. State of Indiana (mem. dec.)
Criminal. Affirms Jeremy L. Rodgers’ sentence to an aggregate of eight 16 for his conviction of two counts of possession of a controlled substance as a Class A misdemeanor and possession of a narcotic drug as a Level 4 felony, enhanced by his status as a habitual offender. Finds Rodgers has not sustained his burden of establishing that his sentence is inappropriate in light of the nature of the offenses and his character.

In the Matter of the Supervised Estate of Jerome Wilderness, Jr. (Deceased), Marisa Wilderness and Jerome Wilderness, Sr. v. The Estate of Jerome Wilderness, Jr. and Syd Wilderness as Personal Representative of the Estate (mem. dec.)
Estate, supervised. Affirms the denial of Jerome Wilderness Sr.’s motion to intervene and Marisa Wilderness’ motion to join in Jerome Sr.’s motion to correct error. Finds the Lake Circuit Court did not err.

D.G., et al. v. Indiana Department of Child Services (mem. dec.)
Juvenile termination of parental rights. Affirms the termination of mother D.G. and father J.J.’s parental rights to their children, Je.J. and Ja.J. Finds the Delaware Circuit Court’s determinations that there existed a reasonable probability that the conditions resulting in removal will not be remedied and that termination was in children’s best interests were not clearly erroneous.

N.W. v. D.G. (mem. dec.)
Protective order. Reverses the entry of a protective order against N.W. sought by D.G. Finds N.W. has demonstrated prima facie error and the protective-order hearing was inadequate under the Civil Protective Order Act. Remands for a new hearing.

Jeffrey Leonard v. State of Indiana (mem. dec.)
Post conviction. Affirms the denial of Jeffrey Leonard’s petition for post-conviction relief. Finds Leonard’s argument that the Hamilton Superior Court abused its discretion in finding officers had probable cause to stop and subsequently arrest him was available to be raised on direct appeal but is not available as a freestanding claim of error in a post-conviction proceeding. Also finds Leonard’s trial counsel was not ineffective for failing to file a motion to suppress, so Leonard cannot claim prejudice in entering into a guilty plea.

In re the Termination of the Parent-Child Relationship of R.M. (Minor Child) and A.M. (Mother), A.M. (Mother) v. Indiana Department of Child Services (mem. dec.)
Juvenile termination of parental rights. Affirms the termination of mother A.M.’s parental rights to R.M. Finds the Huntington Superior Court did not abuse its discretion in denying A.M.’s motion to continue. Also finds the trial court did not err when it concluded there is a reasonable probability that the conditions leading to R.M.’s removal will not be remedied. Finally finds the totality of the evidence supports the trial court’s determination that termination of A.M.’s parental rights is in R.M.’s best interests, and there is sufficient evidence supporting the trial court’s conclusion that a satisfactory plan exists for the care and treatment of R.M.

In re the Guardianship of: R.P. (Minor Child), A.W. and M.W. v. J.G. and M.G. (mem. dec.)
Guardianship. Affirms the denial of A.W. and M.W.’s petition for guardianship of R.P. and the grant of the petition for guardianship filed by C.G. and J.G. Finds the Decatur Circuit Court did not abuse its discretion.

Andrew W. Albert v. State of Indiana (mem. dec.)
Criminal. Affirms Andrew W. Albert’s conviction of resisting law enforcement as a Class A misdemeanor. Finds the state presented sufficient evidence.

In the Matter of O.B. (Child in need of Services); J.B. (Mother) v. Indiana Department of Child Services (mem. dec.)
Juvenile CHINS. Affirms the order determining mother J.B.’s daughter O.B. is a child in need of services. Finds the trial court’s judgment is not clearly erroneous.

Bruce E. Foster v. State of Indiana (mem. dec.)
Post conviction. Affirms the denial of Bruce E. Foster’s petition for post conviction relief. Finds Foster’s trial counsel was not ineffective for failing to challenge the sufficiency of the state’s evidence of the habitual offender allegation, nor was his trial counsel ineffective for failing to request the removal of a juror for cause.

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