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Opinions Dec. 1, 2011

7th Circuit Court of Appeals
Bridgett Stevens v. Housing Authority of South Bend, Indiana, et al. and State of Indiana
10-2724
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Rudy Lozano.
Civil. Affirms summary judgment for defendants on Stevens’ federal claims alleging violations of the Fair Housing Act and the 14th Amendment and the decline by the court to exercise jurisdiction over the remaining state law claims, dismissing them without prejudice. Injunctive relief is no longer available to Stevens because she voluntarily left her public housing apartment after receiving two additional notices indicating that she must leave due to violating housing policy. The first notice was therefore lawfully issued, and Stevens has no claim for emotional distress caused by a wholly lawful action.

Court seeks comment on changes to civil local rules

The U.S. District Court, Southern District of Indiana, is seeking comment on proposed amendments to dozens of its local rules. If adopted, the amendments will become effective Jan. 1, 2012.

Opinions Nov. 30, 2011 ILD

7th Circuit Court of Appeals had posted no opinions from Indiana courts at IL deadline.

Indiana Court of Appeals
Matthew A. Knight v. State of Indiana (NFP)
87A01-1103-CR-167
Criminal. Affirms convictions of Class D felony operating a vehicle as a habitual traffic violator and Class C infraction no license plate light.

Ronnie Sanchez v. State of Indiana (NFP)
10A01-1101-CR-26
Criminal. Affirms denial of motion to suppress.

Jonathan Yocum v. X.Y., By Next Friend, M.Y. (NFP)
49A02-1103-PO-351
Protection order. Reverses protective order against father filed by mother on behalf of their son.

Adolph Brateman, Adrienne Brateman, and Michael Brateman v. Hanning & Bean Enterprises, Inc. (NFP)
02A03-1103-PL-162
Civil plenary. Affirms entry of declaratory judgment and a preliminary injunction in favor of lessee Hanning & Bean Enterprises.

John Barrientes v. State of Indiana (NFP)
82A04-1106-CR-302
Criminal. Affirms sentence following guilty plea to seven charges related to a drunk driving motor vehicle accident that caused the death of one person and seriously injured another.

John A. Ashby v. State of Indiana (NFP)
87A04-1103-CR-113
Criminal. Affirms denial of motion to suppress evidence.

Ladell Alexander v. State of Indiana (NFP)
71A04-1101-CR-155
Criminal. Dismisses appeal of denial of motion for reduction of sentence.

Cortino Allen v. State of Indiana (NFP)
49A04-1103-CR-88
Criminal. Affirms order that Allen undergo a mental health evaluation and comply with any recommended treatment as a part of his probation.

Frank Poole, Jr. v. State of Indiana (NFP)
45A03-1101-CR-12
Criminal. Affirms sentence following guilty plea to dealing in cocaine as a Class B felony.

Andrew Wagoner v. State of Indiana (NFP)
49A05-1105-CR-254
Criminal. Affirms conviction of Class B misdemeanor battery.

L.G. v. State of Indiana (NFP)
49A02-1102-JV-181
Juvenile. Affirms adjudication as a delinquent for committing what would be burglary if committed by an adult.

Brian Eby v. Jennifer Eby (NFP)
29A02-1104-DR-318
Domestic relation. Reverses in part second amended decree of dissolution following remand from a previous appeal because the court abused its discretion in crediting Jennifer Eby for the entire amount of expenses paid during the pendency of the dissolution proceedings. Remands with instructions.

Larry W. Pflug, Rebecca K. Pflug, Michael G. Pflug, Kristi A. Pflug, Gene A. Pflug, and Gloria J. Pflug v. State of Indiana (NFP)
26A04-1104-PL-217
Civil plenary. Affirms grant of the state’s motion to strike the exceptions to the assessed value of the property as untimely.

Timothy Tingle v. State of Indiana (NFP)
49A02-1104-CR-308
Criminal. Affirms sentence following guilty plea to three counts of Class A felony dealing in cocaine, and one count each of Class D felony resisting law enforcement and Class A misdemeanor resisting law enforcement.

Indiana Tax Court had posted no opinions at IL deadline.
 

Opinions Nov. 30, 2011

Indiana Supreme Court
Christopher Jewell v. State of Indiana
32S04-1104-CR-200
Criminal. Affirms denial of Jewell’s motion to suppress recorded phone conversations between him and his former stepdaughter and finds his sentence is appropriate for six counts relating to child molesting, sexual misconduct with a minor, and child seduction. Holds that under the broader protections of Article 1, Section 13 of the Indiana Constitution, the right to counsel is violated only where the different offense is inextricably intertwined with the charge on which counsel is already representing the defendant.

Technical issues interrupt COA webcasts

The Indiana Court of Appeals will not have any webcast videos, and potentially no audio, for at least several days, the court announced Wednesday.

Judges find ex post facto claim waived

The man who raised a constitutional challenge to the propriety of his conviction of failing to register as a sex offender waived his ex post facto claim when he entered into a plea agreement, the Indiana Court of Appeals held Wednesday.

Changes to federal courts effective Thursday

Several changes are coming to the United States Bankruptcy Court for the Southern District of Indiana and the U.S. District Court in the Northern District of Indiana Thursday.

Application process open for federal defense panel

The United States District Court for the Southern District of Indiana is accepting applications from attorneys interested in serving on the court’s Criminal Justice Act panel for the Indianapolis and Terre Haute divisions.

Majority reverses Hopper advisement created last year

A divided Indiana Supreme Court has reversed its 2010 decision to require pro se defendants be informed about the dangers of pleading guilty without an attorney. Two of the justices who originally voted to create the “Hopper advisement” found themselves in the minority on the high court’s decision on rehearing.

Opinions Nov. 29, 2011 ILD

7th Circuit Court of Appeals had posted no Indiana opinions at IL deadline.

Indiana Court of Appeals
Nationwide Ins. Co., and Edward and Anne Mickel v. Paul Parmer, II, Rick Ramsey and Heather Sida
41A01-1008-CT-377
Civil tort. Affirms orders granting Parmer’s and Sida’s motions for leave to amend their affirmative defenses and the order denying the Mickels’ and Nationwide Insurance Co.’s motion to reconsider. The Mickels and Nationwide did not timely request certification of the Jan. 4 order and therefore waived their claims regarding the order on appeal. Sida properly objected to the trial court’s dismissal and preserved her right to add nonparty defendants.

Natalie A. Miller, Individually and as Administratrix of the Estate of Alexis J. Ritch, Daniel J. Ritch, et al. v. L. Barrett Bernard, M.D., the Bethany Circle of King's Daughters Hospital & Health, et al.
39A05-1009-PL-546
Civil plenary. Reverses in part summary judgment for defendants Morton Grove Pharmaceuticals and CVS Pharmacy. The trial court erred in excluding the testimony of Dr. Loeb; defendants were entitled to the statutory rebuttable presumption of no defect in the manufacture of Promethazine Syrup Plain, but whether the plaintiffs have rebutted this presumption remains a question of fact; and whether MGP’s production and CVS’s distribution of PSP caused Alexis Ritch’s death is also a question of fact. Concludes that the trial court did not err in denying the defendants’ motion to exclude other expert testimonies in favor of the plaintiffs. Affirms in part the allowance of the opinions of doctors Kenneth Kulig and George Nichols. Remands for further proceedings.

Darnell Daniels v. State of Indiana
20A03-1104-CR-165
Criminal. Affirms convictions of Class B felony robbery and Class C felony intimidation. The state only needed to present evidence from which the jury could infer that the victim was in fact put in fear. It’s not necessary for the victim to testify that he or she was actually put in fear. The variance in the charging information and the proof at trial is not fatal and there was sufficient evidence that Daniels “used” the gun while intimidating his victim.

State of Indiana v. Jaime Bonilla
49A02-1102-PC-144
Post conviction. Reverses grant of petition for post-conviction relief. Bonilla did not allege special circumstances or objective facts demonstrating his decision to plead guilty was driven by his counsel’s erroneous advice.

D.L., b/n/f G.L. v. Pioneer School Corporation, Pioneer Board of School Trustees and Larry John
09A02-1103-MI-271
Miscellaneous. Affirms denial of D.L.’s request to overturn his expulsion from Pioneer High School. The trial court’s decision was not contrary to law.

Justin Woodhouse v. State of Indiana (NFP)
12A02-1012-CR-1322
Criminal. Affirms convictions of Class B felony dealing in methamphetamine, Class D felony possession of a chemical reagent or precursor with intent to manufacture a controlled substance, Class D felony maintaining a common nuisance, Class A misdemeanor resisting law enforcement, Class B misdemeanor disorderly conduct, and four counts of Class C misdemeanor purchasing more than three grams of a precursor. Remands to clarify its earlier order to properly indicate the merger of counts I and II.

McCoy Tile v. Meyer Glass & Mirror, and Robert Fryer (NFP)
46A03-1102-SC-102
Small claims. Affirms judgment in favor of Fryer with respect to his claim that McCoy Tile improperly installed tile in Fryer’s shower.

Rodney Johnson v. State of Indiana (NFP)
71A03-1103-PC-97
Post conviction. Affirms denial of petition for post-conviction relief.

Matthew Totten v. Review Board of the Indiana Workforce Development and Great Lakes Granite (NFP)
93A02-1102-EX-209
Agency appeal. Affirms denial of employment benefits.

Max Riley v. State of Indiana (NFP)
49A05-1105-CR-233
Criminal. Affirms conviction of Class D felony attempted theft.

Jose Rodriguez v. State of Indiana (NFP)
49A05-1006-CR-410
Criminal. Grants rehearing for the limited purpose of clarifying that the failure to instruct issue is waived. Affirms original opinion in all respects.

Steve Barnett v. State of Indiana (NFP)
87A01-1008-CR-397
Criminal. Affirms revocation of probation.

In Re: The Marriage of Steve Metzger and Peggy Metzger (NFP)
43A03-1101-DR-18
Domestic relation. Affirms order that father pay child support and a portion of expenses incurred for the post-secondary education of two of his children.

Sean Holtsclaw v. State of Indiana (NFP)
71A04-1103-CR-118
Criminal. Affirms conviction of Class B felony burglary.

Martize Sevion v. State of Indiana (NFP)
18A05-1102-CR-125
Criminal. Affirms denial of Sevion’s motion to correct erroneous sentence. Dismisses Sevion’s claims with respect to the merits of his conviction due to his untimely appeal.

Erica Ball v. State of Indiana (NFP)
49A05-1103-CR-132
Criminal. Affirms conviction of Class B misdemeanor disorderly conduct.

Joseph Simmons v. State of Indiana (NFP)
40A01-1104-PC-186
Post conviction. Affirms denial of petition for post-conviction relief.

K.S. v. State of Indiana (NFP)
71A03-1105-JV-252
Juvenile. Affirms disposition order following adjudication as a delinquent for committing what would be theft if committed by an adult.

John V. Loudermilk, Continental American Ins. Co., Geneva P. Loudermilk, et al. v. Jet Credit Union n/k/a Credit Union 1 (NFP)
49A02-1006-PL-665
Civil plenary. Affirms grant of partial summary judgment in favor of Jet Credit regarding co-defendants’ counterclaim for common law conversion.

A.W.S. v. C.S.-R. (NFP)
29A04-1102-DR-142
Domestic relation. Affirms denial of father’s petition to remove restrictions on parenting time.

Kevin Scaife v. State of Indiana (NFP)
49A02-1102-CR-172
Criminal. Affirms conviction of Class D felony theft.

Indiana Tax Court had posted no opinions at IL deadline.

The Indiana Supreme Court denied transfer to one case for the week ending Nov. 23.
 

Opinions Nov. 29, 2011

Indiana Supreme Court
David Hopper v. State of Indiana
13S01-1007-PC-399
Post conviction. Grants rehearing to address the role and necessity of advising someone of the risks of dealing with prosecutors without a lawyer. The post-conviction court was right that Hopper’s waiver of counsel was voluntary and intelligent. Finds Hopper’s contention that advisement language should be mandatory in all stages of all cases with all defendants is misplaced. Justice Rucker dissents with separate opinion, in which Justice Sullivan concurs.

Symposium to examine America Invents Act

The Intellectual Property Law and Innovation Symposium at Indiana University School of Law – Indianapolis on Dec. 2 will focus on recent changes to IP law created by the America Invents Act.

Marion County judge admonished for fundraising flyer

The Indiana Commission on Judicial Qualifications has admonished a Marion Superior judge for mailing a questionable re-election fundraising flyer that it says put the judiciary in a negative light and implied that justice is for sale.

COA addresses impact of guilty pleas on immigration status

The Indiana Court of Appeals affirmed the denial of a man’s petitions for post-conviction relief, finding his attorneys’ failure to advise him of adverse immigration consequences of pleading guilty did not prejudice his defense.

Opinions Nov. 28, 2011 ILD

7th Circuit Court of Appeals had posted no Indiana opinions at IL deadline.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Jennings Daugherty v. State of Indiana
89A05-1103-CR-131
Criminal. Affirms convictions of Class B felony possession of cocaine and Class D felony maintaining a common nuisance. Daugherty’s arguments on appeal are insufficient to demonstrate reversible error. Affirms the admission of the state’s evidence.

Eric Stickdorn and Lisa Stickdorn v. Elam B. Zook, Sarah F. Zook, Samuel L. Lantz and Mattie Z. Lantz
89A01-1012-CT-670
Civil tort. Affirms determination that the Stickdorns’ personal injury claims against the Lantzes and the negligence claims are barred by the two-year statute of limitations. By 2005, the Stickdorns’ complaint for personal injury had accrued and were ascertainable, but the complaint was not filed until November 2009. Reverses grant of summary judgment for the Lantzes’ with regards to the nuisance and trespass claims and remands for further proceedings. The designated evidence establishes that the Lantzes refused to stop or change their waste storage, disposal and management practices that harmed the Stickdorns through April 2005. The statute of limitations did not preclude the Stickdorns from complaining about the continued instances of nuisance and trespass.

Marsean Shines v. State of Indiana (NFP)
02A05-1105-CR-237
Criminal. Affirms sentence for Class D felony domestic battery, Class D felony criminal confinement, Class B misdemeanor false informing, and Shines’ habitual offender enhancement.

James C. Lewis v. State of Indiana (NFP)
48A02-1103-CR-178
Criminal. Affirms revocation of probation and imposition of the previously suspended portion of Lewis’ sentence.

Richard Edward Hughes v. State of Indiana (NFP)
10A01-1103-CR-165
Criminal. Reverses in part Hughes convictions of Class C felony battery with a deadly weapon and Class D felony criminal recklessness and orders the trial court to vacate the conviction of and sentence for criminal recklessness.

Aaron Spears v. State of Indiana (NFP)
29A05-1104-CR-204
Criminal. Affirms conviction of Class A felony neglect of a dependent resulting in death.

David Rippe v. Edward C. Levy Company (NFP)
45A03-1102-CT-30
Civil tort.  Affirms jury verdict in favor of Edward C. Levy Co. that found Levy not liable for the injuries Rippe sustained while an employee of an independent contractor at a Levy site.

Angela Townsell v. State of Indiana (NFP)
49A02-1104-CR-343
Criminal. Affirms convictions of Class A misdemeanors intimidation and battery.

In the Matter of the Term. of the Parent-Child Rel. of Z.S.; C.S. and L.S. v. Indiana Department of Child Services (NFP)
67A01-1104-JT-193
Juvenile. Affirms termination of father’s parental rights.

Term. of the Parent-Child Rel. of G.B. and J.N.; E.B. (mother) and A.N. (father) v. The Indiana Dept. of Child Services (NFP)
79A02-1104-JT-315
Juvenile. Affirms termination of parental rights.

Donald L. Pruitt v. State of Indiana (NFP)
55A01-1105-CR-218
Criminal. Affirms conviction of Class C felony operating a motor vehicle after forfeiture of license for life.

Daniel Walton v. State of Indiana (NFP)
57A03-1105-CR-198
Criminal. Affirms two convictions of Class A felony dealing in methamphetamine.

Brian K. Brantley v. State of Indiana (NFP)
18A02-1102-CR-158
Criminal. Affirms convictions of two counts of Class B felony criminal deviate conduct, Class C felony battery, two counts of Class D felony intimidations, and battery as a Class A misdemeanor and Class B misdemeanor.

Jasper Frazier v. State of Indiana (NFP)
49A02-1101-CR-126
Criminal. Affirms sentence following guilty plea to Class A felony attempted robbery, Class B felony conspiracy to commit robbery, and Class A misdemeanor carrying a handgun without a license.

Indiana Tax Court had posted no opinions at IL deadline.
 

Opinions Nov. 28, 2011

Indiana Court of Appeals
Jennings Daugherty v. State of Indiana
89A05-1103-CR-131
Criminal. Affirms convictions of Class B felony possession of cocaine and Class D felony maintaining a common nuisance. Daugherty’s arguments on appeal are insufficient to demonstrate reversible error. Affirms the admission of the state’s evidence.