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Opinions August 12, 2013 ILD

Indiana Court of Appeals
Billy Savoy v. State of Indiana (NFP)
49A02-1301-CR-14
Criminal. Reverses and remands to the trial court with instructions to vacate Savoy’s conviction for theft, a Class D felony, leaving as is his conviction and sentence for criminal mischief, a Class D felony. Rules Savoy has shown that there is a reasonable possibility that the trial court used the same evidentiary facts to establish the essential elements of theft and criminal mischief thus violating Indiana’s Double Jeopardy Clause.

Martin Mendoza v. State of Indiana (NFP)
49A04-1302-CR-68
Criminal. Reverses and remands the denial of Mendoza’s motion for return of his $658 taken at the time of his arrest. Rules there is no finding based on admissible evidence that Mendoza could not lawfully posses the property under the State forfeiture statutes or that Mendoza failed to file his motion properly. Consequently, the trial court was without authority to deny his motion for return of property.


Tammy Coleman v. Darryl Davis (NFP)
49A02-1210-PO-793
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2013/august/08121303pdm.pdf
Order of Protection. Affirms trial court’s decision to enter a protective order against Coleman and in favor of Davis. Concludes the evidence was sufficient to permit the trial court, acting as the trier of fact, to reasonably conclude that Coleman was a “family or household member” who threatened physical harm to Davis or placed Davis in fear of physical harm, thereby committing “domestic or family violence” under the Civil Protection Order Act. In his dissent, John Baker argued the evidence presented in court failed to establish a sufficient threat under the CPOA.

The Indiana Supreme Court issued no opinions before IL deadline.

Opinions August 12, 2013

7th Circuit Court of Appeals
Thomas H. Hurlow v. United States of America
12-1374
Criminal. Reverses the district court’s denial of Hurlow’s 2255 petition and remands for further proceedings. Rules Hurlow’s allegation – he would not have entered into the plea agreement had his counsel informed him of his potentially meritorious Fourth Amendment claim – was sufficient to overcome the wavier in his plea agreement not to contest his conviction or sentence under 28 U.S.C. 2255.

Ineffective counsel claim sufficient to overcome waiver in plea agreement

Despite a man’s plea agreement in which he waived his right to challenge his conviction under 28 U.S.C. 2255, the 7th Circuit Court of Appeals ruled he can seek to have his conviction overturned because the 2255 waiver does not bar his claim that his trial counsel was ineffective.

Conour, government agree to sale of assets

Convicted former attorney William Conour’s possessions in his foreclosed Carmel home, including original artwork and a collection of premium wine and champagne, could be sold with proceeds directed toward a court fund established for victim restitution according to a joint motion  filed in federal court.

Opinions Aug. 9, 2013 ILD

Indiana Court of Appeals
Tranell Nash v. State of Indiana (NFP)
49A02-1210-PC-874
Post conviction. Affirms denial of Nash’s post-conviction relief petition for his conviction for Class A felony attempted robbery.

In the Matter of S.K., A Child in Need of Services; and A.R. v. The Indiana Dept. of Child Services (NFP)
84A05-1301-JC-7
Juvenile. Affirms trial court’s determination that S.K. is a child in need of services.
 
Andrew Wright, Jr. v. State of Indiana (NFP)
71A03-1212-CR-522
Criminal. Affirms conviction for murder.

Nephrology Specialists, P.C., Shahabul Arfeen, M.D., Sanjeev Rastogi, M.D., Maher Ajam, M.D. and Raied Abdullah, M.D. v. Asim Chughtai, M.D., Rafael Fletes, M.D., Kupusamy Umapathy, M.D., et al. (NFP)
45A03-1212-CT-535
Civil tort. Affirms, in this rehearing, its opinion that non-compete provisions continue in certain employment contracts of the departing physicians. Clarifies that the court’s reference to an attorney’s testimony does not indicate the document was inherently unclear.

Eddie Spalding v. State of Indiana
49A04-1210-CR-534
Criminal. Affirms denial of Spalding’s motion to dismiss and discharge. Finds although nearly 400 days had passed since Spalding’s arrest, his right to a speedy trial had not been violated. Since Spalding was held during most of that time in federal custody, Indiana did not have exclusive control and therefore Indiana Criminal Rule 4(C) does not apply. The time Spalding spent in foreign jurisdictions does not count in Indiana.  

 

Opinions Aug. 9, 2013

7th Circuit Court of Appeals
Paul Hester v. Indiana State Department of Health
12-3207
Civil. Affirms District Court ruling granting summary judgment in favor of the Department of Health. The panel held that there was evidence that Hester was fired for cause, and that Hester failed to produce evidence showing age, race or gender discrimination supporting his claim that his firing violated the Age Discrimination in Employment Act, 29 U.S.C. § 621, or Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-2000e17.

Indiana law firms named among best for women

Three law firms based in Indiana or with offices in the state are among the 50 Best Law Firms for Women in the annual list compiled by Working Mother and consulting firm Flex-Time Lawyers LLC.

Opinions Aug. 8, 2013 ILD

Indiana Court of Appeals
Jeffrey G. Tourney v. State of Indiana (NFP)
02A03-1211-CR-503
Criminal. Affirms three-year executed sentence for conviction of two counts of class D felony criminal mischief, and found counts of Class A misdemeanor cruelty to an animal.

Mickey L. Whitlock v. State of Indiana (NFP)
79A02-1210-CR-850
Criminal. Affirms denial of modification of a 36-year executed sentence on a conviction of Class A felony burglarly resulting in bodily injury.

Reginald D. Baker v. State of Indiana (NFP)
02A05-1301-CR-32
Criminal. Affirms three-year aggregate sentence for conviction of Class D felony counts of domestic battery and strangulation.

Timothy R. Thacker v. State of Indiana (NFP)
20A03-1212-CR-558
Criminal. Affirms in part, reverses in part and remands, ordering the court to vacate one of two convictions and sentences for Class D felony theft and receiving stolen property, holding the that the convictions violate the principles of double jeopardy.

Anthony J. Gipson v. State of Indiana (NFP)
46A04-1304-CR-154
Criminal. Reverses and remands denial of a petition for credit time not previously awarded by the Department of Correction for educational credits and orders further proceedings.

Tamera Richards v. State of Indiana (NFP)
79A02-1301-CR-38
Criminal. Affirms 25-year sentence for conviction of Class B felony causing death while operating a motor vehicle with a schedule I or II controlled substance in the body, which was enhanced for being a habitual substance offender.

Jeffrey Alan Davis v. State of Indiana (NFP)
83A01-1301-CR-44
Criminal. Affirms on interlocutory appeal denial of motion to suppress evidence in a search of his residence that led to charges of manufacturing and dealing methamphetamine.

Kenneth Frye v. State of Indiana (NFP)
89A05-1211-CR-577
Criminal. Affirms 55-year sentence for conviction of murder.

Zachariah Brownie v. State of Indiana (NFP)
49A04-1301-CR-3
Criminal. Affirms revocation of probation on a conviction of Class D felony criminal confinement.

Indiana Tax Court issued no opinions by IL deadline. 7th Circuit Court of Appeals issued no Indiana opinions by IL deadline.

Opinions Aug. 8, 2013

Indiana Supreme Court
Mary Alice Manley, and Gary Manley v. Ryan J. Sherer, M.D., and Sherer Family Medicine, P.C.
59S01-1205-PL-249
Civil plenary/medical malpractice. Reverses grant of summary judgment in favor of defendants and remands for further proceedings, finding issues of material facts exist as to when plaintiffs knew of alleged malpractice or learned of the facts that should lead to the discovery of malpractice and resulting injury. Summary judgment should have been denied as to the defendants’ claim of absence of an element of causation necessary to establish liability.