Appeals panel affirms sole custody for mother moving to China
A father lost his appeal Thursday of a trial court ruling granting sole custody to the mother of the divorced couple’s child, who will move with her to China for three years.
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No new trial for defendant who discovered pitfalls of proceeding pro se
A defendant’s request for a do-over after representing himself at trial and being found guilty was denied by the Indiana Court of Appeals with the admonishment “proceeding pro se is riddled with pitfalls.”
Malpractice defense accused of ‘egregious mischaracterization’ of record
Defense attorneys who asked for a rehearing from the Indiana Court of Appeals panel that earlier affirmed a trial court medical malpractice jury verdict failed to sway judges who took the opportunity to call out their “egregious mischaracterization” of the record.
Northern District judge tosses challenge to Indiana immigration law
A federal judge has dismissed a lawsuit challenging portions of Indiana’s immigration law passed in 2011.
Massa stays in Rockport power plant case over calls for recusal
Indiana Supreme Court Justice Mark Massa on Wednesday denied a formal motion arguing that he should recuse himself from a pending case concerning the controversial Rockport power plant. The project is backed by a longtime friend of Massa and former aide to Gov. Mitch Daniels, whose administration championed the project.
Opinions Aug. 14, 2013 ILD
Indiana Court of Appeals
In Re the Matter of I.E.: J.E. v. W.L. and R.L. and N.V. (NFP)
72A01-1212-JP-567
Juvenile paternity. Affirms granting of father’s motion for change of custody and declining to award mother visitation with child. Reverses trial court’s order granting visitation rights to the guardians.
Eric D. Smith v. J. David Donahue, Dan McBride, Linda Vannatta, Pam Bane, and Nell Hayes (NFP)
49A02-1201-PL-121
Civil plenary. Affirms trial court’s denial of Smith’s request for a new trial.
Term. of the Parent-Child Rel. of: M.B. (Minor Child), and B.B. (Mother) v. The Indiana Dept. of Child Services (NFP)
49A05-1212-JT-649
Juvenile. Affirms termination of B.B.’s (mother) parental rights to her daughter, M.B.
James Ticen v. Vicki Ticen (NFP)
06A01-1212-DR-564
Domestic relation. Affirms trial court’s division of assets in the dissolution of James Ticen’s marriage to Vicki Ticen. Concludes the trial court acted within its discretion when it divided the parties’ marital assets and when it ordered James to pay Vicki an equalization payment over time.
Phillip Rogers v. State of Indiana (NFP)
49A02-1212-CR-987
Criminal. Affirms convictions of three counts of Class D felony theft.
Billy J. Lemond v. State of Indiana (NFP)
63A01-1302-PC-83
Post conviction. Affirms denial of Lemond’s petition for post-conviction relief.
Jonathon McDonald v. State of Indiana (NFP)
32A01-1210-CR-483
Criminal. Affirms convictions of three counts of child molesting, Class A felonies, and two counts of vicarious sexual gratification, Class B felonies.
Dwayne E. Gray v. Chase Home Finance, LLC. (NFP)
49A02-1206-MF-576
Mortgage foreclosure. Affirms trial court’s denial of Gray’s motion for summary judgment and striking of his second amended complaint.
Joseph A. Taylor v. Sgt. Rinehart (NFP)
48A02-1304-PL-380
Civil plenary. Affirms trial court’s denial of Taylor’s motion for relief from judgment.
Henry McMullen v. State of Indiana (NFP)
27A02-1209-CR-778
Criminal. Affirms conviction of murder.
Michael Burnett v. State of Indiana (NFP)
71A05-1304-CR-161
Criminal. Affirms Burnett’s sentence of an aggregate executed term of 28 years following his guilty plea.
William Gajdik v. State of Indiana (NFP)
15A05-1210-CR-539
Criminal. Affirms conviction and aggregate sentence of 148 years for attempted murder, burglary and robbery.
Arthur Dale Miller v. State of Indiana (NFP)
38A04-1301-CR-8
Criminal. Dismisses Miller’s appeal for lack of jurisdiction.
Wilby Stumph v. State of Indiana (NFP)
82A01-1301-CR-32
Criminal. Affirms Stumph’s 17-year sentence for dealing in methamphetamine as a Class B felony and his adjudication as an habitual substance offender.
Lamar Allen Colley v. State of Indiana (NFP)
71A04-1302-CR-75
Criminal. Affirms conviction for battery as a Class A misdemeanor.
Daljit Gill v. Baldish Gill (NFP)
32A01-1209-DR-436
Domestic relation. Affirms order by trial court which ultimately resulted in the setting aside of the property distribution portion of the marriage dissolution decree and an order for the sale of the marital residence.
In the Matter of the Termination of the Parent-Child Relationship of J.B. (Minor Child), and T.S. (Mother) v. The Indiana Department of Child Services (NFP)
79A02-1211-JT-891
Juvenile. Affirms termination of parental rights of T.S. (mother) with regard to J.B. (child).
Nichole Temple v. AM General (NFP)
93A02-1302-EX-164
Civil. Affirms the judgment of the Full Worker’s Compensation Board denying Temple’s request for benefits because she failed to satisfy her burden of proof with regard to the causation of her condition.
Willie Drew v. State of Indiana (NFP)
02A03-1212-CR-523
Criminal. Affirms convictions for battery as a Class C felony and domestic battery as a Class D felony.
Willis James Simmons v. State of Indiana (NFP)
71A04-1301-CR-31
Criminal. Affirms three-year sentence for Simmons’ conviction of domestic battery in the presence of his children, a Class D felony, Indiana Code Section 35-42-2-1.3.
Jami C. Sipich v. State of Indiana (NFP)
45A03-1212-CR-524
Criminal. Affirms 37-year sentence for attempted robbery as a Class A felony.
Jodi Sears v. Rachel Rust-Johnisee (NFP)
33A01-1301-PO-31
Protection order. Affirms trial court’s order for protection issued under Indiana Code 34-26-5.
Darod A. Wheeler v. State of Indiana (NFP)
03A01-1212-CR-545
Criminal. Remands with instructions to calculate the credit time Wheeler should receive and an amendment of the abstract of the judgment to reflect the credit. Concludes that Wheeler is entitled to credit for time served and good time credit for the days he was placed on home detention.
Jesse Doyle, Jr., v. State of Indiana (NFP)
15A05-1301-CR-39
Criminal. Affirms in part and reverses in part. Upholds conviction for Class A felony attempted child molesting but vacates the two merged Class A felony child molesting while armed with a deadly weapon convictions.
Randall W. Ogle v. State of Indiana (NFP)
25A03-1301-CR-7
Criminal. Affirms Ogle’s aggregate executed sentence of 10 years for one court of reckless homicide, a Class C felony; one count of possession of a destructive device, a Class C felony; and one court of possession of marijuana in excess of 30 grams, a Class D felony.
The Indiana Supreme Court and Tax Court issued no opinions prior to IL deadline. The 7th Circuit Court of Appeals issued no Indiana decision prior to IL deadline.
Opinions Aug. 14, 2013
Indiana Court of Appeals
Richard Dillon v. State of Indiana
27A05-1210-CR-542
Criminal. Reverses on interlocutory appeal denial of a motion to dismiss a Class D felony charge of operating a vehicle while intoxicated. A divided court ruled that the state’s errant dismissal of an earlier OWI conviction upon which the felony enhancement relied could not be overcome by the state filing a nunc pro tunc motion to correct the mistake after the defendant was charged with drunken driving a second time within five years. Judges Nancy Vaidik and Ezra Friedlander formed the majority from which Judge John Baker dissented, arguing that the court lacked the authority to dismiss a charge upon which conviction was entered, and that defendants should not benefit from scriveners’ errors.
Community-caretaking duties permits warrantless search
A warrantless search that led to discovery of marijuana and a handgun did not violate the Fourth Amendment because the police found the items as part of their “community-caretaking” duties.
Charge dismissed in error negates felony DUI enhancement
The state’s errant dismissal of a misdemeanor drunken-driving charge in 2009 may not be corrected in order to enhance to a felony a defendant’s second such charge within five years, a divided panel of the Indiana Court of Appeals ruled.
Man still drunk despite change in public intoxication statute, COA rules
A 2012 change in Indiana’s public intoxication statute adding a required charging element of at least harassing, annoying or alarming another person doesn’t negate a conviction for a man who the Indiana Court of Appeals ruled did at least that much.
Interim criminal law study committee to examine sentencing questions
The process to correct and clarify House Enrolled Act 1006, the massive piece of legislation overhauling the state’s criminal code, will begin Aug. 15 at the first meeting of the Indiana General Assembly’s Criminal Law and Sentencing Policy Study Committee.
Environmental groups ask Massa to recuse from Rockport case
Justice Mark Massa should recuse himself from hearing an Indiana Supreme Court appeal of a ruling that hindered a proposed multi-billion-dollar coal gasification plant in Rockport, several environmental and consumer groups argue in a brief filed in the case.
State commission studying services for children sets first meeting
A commission created last year by the Legislature to better coordinate services for children will hold its first meeting Aug. 21.
Opinions August 13, 2013 ILD
Indiana Court of Appeals
Cory A. Myers v. State of Indiana (NFP)
35A05-1302-CR-90
Criminal. Affirms conviction for domestic battery, as a Class D felony.
Jeremiah Kelley v. State of Indiana (NFP)
34A02-1303-CR-281
Criminal. Affirms 21-year sentence imposed following Kelley’s guilty plea to class B felony unlawful possession of a firearm by a serious violent felon.
John Latta v. State of Indiana (NFP)
12A04-1212-CR-618
Criminal. Affirms conviction of one count burglary as a class B felony and five counts of theft as a class D felony. Finds the prosecutor’s questions about the victim’s husband becoming a judge were inappropriate but does not rise to the level of fundamental error.
In Re The Adoption of S.H., L.H., and J.H., Benjamin Hankins v. G.Nick Peterson, Andrea Peterson (NFP)
18A02-1212-AD-1020
Adoption. Affirms trial court’s determination that Hankins’s consent is not required in the adoption proceedings of his three children, S.H., L.H. and J.H. Rules the determination that Hankins’s consent is unnecessary if supported by clear and convincing evidence, and the adoption by the children’s maternal grandparents is in their best interest.
John Dumitru v. State of Indiana (NFP)
75A05-1210-PC-501f
Post conviction relief petition. Affirms post-conviction court’s denial of relief following Dumitru’s conviction for murder, a felony, attempted murder, a Class A felony, two counts of neglect of a dependent, as Class D felonies, and resisting law enforcement, as a Class A misdemeanor.
Lebronze Myles v. State of Indiana (NFP)
49A02-1301-CR-25
Criminal. Affirms Myles’ convictions as an accomplice to both Class B felony burglary and Class C felony robbery.
In the Matter of the Termination of the Parent-Child Relationship of L.P., D.P., & C.H., (Minor Children), and J.P. (Mother) v. The Indiana Department of Child Services (NFP)
87A05-1212-JT-622
Juvenile termination of parental rghts. Affirms termination of J.P.’s (mother) parental rights.
Terry Chandler v. State of Indiana (NFP)
49A02-1302-CR-166
Criminal. Affirms conviction for Class A misdemeanor possession of cocaine.
Michael S. Parker v. State of Indiana (NFP)
91A02-1210-CR-830
Criminal. Affirms conviction and 15-year sentence, with 11 years executed, for Class B felony manufacturing methamphetamine.
Eric D. Smith v. Superintendent, Et Al. (NFP)
46A04-1303-MI-164
Miscellaneous. Dismisses Smith’s appeals of the dismissal of eight complaints he filed in the LaPorte Superior Court. Finds his notices of appeal were untimely filed.
Jesus Cruz v. State of Indiana (NFP)
38A02-1212-CR-969pdf
Criminal. Affirms conviction and 46-year sentence for two counts of Class A felony child molesting and three counts of Class C felony child molesting.
James E. Sizemore v. State of Indiana (NFP)
31A05-1212-CR-626
Criminal. Affirms conviction for Class A felony dealing in methamphetamine, Class C felony possession of methamphetamine and Class D felony possession of a controlled substance.
Thomas E. Stevens v. State of Indiana (NFP)
45A05-1301-CR-6
Criminal. Affirms five-year sentence for Class C felony battery resulting in serious bodily injury.
Karen J. Marshall v. Casa M. Marshall, Center Bank, Treasurer of Porter County, State of Indiana (NFP)
64A03-1212-MF-517
Mortgage foreclosure. Affirms summary judgment in favor of the defendants. Finds the mortgage and loan documents do not constitute a valid and enforceable contract.
Sheldon C. McAuley v. State of Indiana (NFP)
02A03-1302-PC-50
Post conviction relief petition. Affirms denial of petition for post-conviction relief following conviction for Class C felony burglary, Class D felony residential entry and Class A misdemeanor interference with the reporting of a crime.
LTC Investments Inc., v. EGR Indiana Properties, LLC. (NFP)
18A02-1301-PL-15
Civil plenary. Affirms trial court’s grant of EGR’s summary judgment motion.
James E. Chalfant v. Lana Lods (NFP)
79A02-1212-CT-986
Civil tort. Reverses and remands trial court’s grant of summary judgment in favor of Lana Lods. Concludes Chalfant did provide evidence in this case to rebut the prima facie evidence of probable cause and to identify a dispute of material fact.
Javier Maldonado v. State of Indiana (NFP)
45A04-1212-CR-654
Criminal. Affirms conviction for child molesting, a Class A felony, and 50-year sentence.
Kelvin Lee Heyen v. State of Indiana (NFP)
84A01-1207-PC-345
Post conviction relief petition. Affirms denial of post-conviction relief petition following conviction and 21-year sentence for dealing in methamphetamine, a Class B felony, and a habitual offender charge.
In The Matter of the Termination of the Parent-Child Relationship of: M.A. (minor child): Mi.A. and C.A. v. The Indiana Department of Child Services (NFP)
73A01-1209-JT-411
Juvenile termination of parental rights. Affirms juvenile court’s decision to terminate the parental rights of C.A. (mother) and Mi.A. (father) to their minor child, M.A.
No opinions were submitted by IL deadline by the Indiana Supreme Court, Indiana Tax Court and the 7th Circuit Court of Appeals.
Opinions August 13, 2013
Opinions Aug. 13, 2013
Indiana Court of Appeals
Rollett Family Farms, LLC. v. Area Plan Commission of Evansville-Vanderburgh County, Vanderburgh County Board of Commissioners, and Vanderburgh County Recorder
82A01-1301-PL-43
Civil plenary. Affirms trial court judgment denying claims that “lots of record” for boundaries of river camps could be established based on the testimony of longtime residents. The lack of official documentation defeats the plain meaning of the words “of record,” requiring some sort of official documentation in the public record, the panel ruled.
Sidebars: Local burger joint leaves litigator underwhelmed
Sidebars reviews and rates eateries lawyers may enjoy visiting when working at courthouses throughout Indiana. Fred offers this week’s review of Punch Burger.
Pending petition for child support becomes applicable after Legislature amends statute
A trial court will have to reconsider its ruling in a child support dispute in light of a state law that was changed while an appeal of the case was pending.
Observation and training provided ‘reasonable suspicion’ to conduct traffic stop
A man’s voluntary confession that he was a habitual traffic violator is admissible even though he had not broken any laws when the sheriff’s deputy pulled him over.
Man may be retried on sex charge, but state may not amend
A man acquitted on a rape charge but whose charge of sexual misconduct with a minor ended in a hung jury and mistrial may be retried, but not on a count the state sought to amend, the Court of Appeals ruled Tuesday.
Denial of recorded Vanderburgh ‘river camps’ lots affirmed
“River camps” along the Ohio River that date back to the 1930s may not be divided as lots of record based on the testimony of longtime residents, the Indiana Court of Appeals ruled Tuesday, affirming a judgment of the Vanderburgh Circuit Court.