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The Commission on Courts meeting Wednesday contained some familiar elements: Indiana Supreme Court Justice Frank Sullivan testified regarding Odyssey and two trial judges have once again asked for an additional judicial officer.
Longtime prosecutor David N. Powell from Greene County is the newest leader of the Indiana Prosecuting Attorneys Council.
The Indiana Court of Appeals has reversed the finding that a man charged with murder is no longer indigent and that his difficult behavior caused him to waive or forfeit his right to appointed counsel. The appellate court concluded that the judge considered the defendant’s conduct, not his ability to pay, when finding him no longer indigent.
In a dispute over whether an insurer was required to pay pre-notice costs for environmental cleanup, the Indiana Court of Appeals was divided over whether the Indiana Supreme Court ruling Dreaded v. St. Paul Guardian Insurance was distinguishable from the instant case.
7th Circuit Court of Appeals
Arboleda Ortiz v. Thomas Webster, Doctor
10-2012
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge Larry McKinney.
Civil. Vacates summary judgment for Dr. Webster and remands with instructions that the case proceed to trial. This is the second time the case has come on appeal and the first time, the 7th Circuit reversed summary judgment for the doctor on the ground that Ortiz had established fact disputes on the seriousness of his eye condition and the constitutionally of Webster’s delayed response. The record had changed very little on remand yet the District Court granted summary judgment for the doctor.
Indiana Supreme Court had posted no opinions at IL deadline.
Indiana Court of Appeals
Jesus A. Villagrana v. State of Indiana
08A05-1101-CR-21
Criminal. Reverses conviction of Class D felony neglect of a dependent. Villagrana was negligent, but the child neglect statute requires intent beyond negligence.
Kerwin Masten and Heather Masten v. AMCO Insurance Company
49A02-1009-CT-998
Civil tort. Reverses summary judgment for AMCO Insurance Co. The trial court erred in concluding as a matter of law that no underinsured motorist coverage is available to the Mastens. Remands for further proceedings.
S.G. v. State of Indiana
49A05-1011-JV-736
Juvenile. Affirms in part and reverses in part S.G.’s adjudication as a delinquent child for committing what would be Class D felony receiving stolen property if committed by an adult. The facts of this case do not satisfy the requirements of a custodial interrogation and S.G.’s statements did not violate Article I, Section 14 of the Indiana Constitution. The trial court abused its discretion in imposing a restitution order in an amount allegedly greater than the victim’s actual loss. Orders a new restitution hearing held if the state desires.
Carrie Chapman v. Irrevocable Trust of Stephen Chapman
02A03-1012-TR-624
Trust. Affirms trial court’s decision with regard to its exercise of jurisdiction over the trust proceedings. Carrie has not established that the trial court could not or should not have exercised jurisdiction over the trust as the subject matter of the trust reformation and the Chapmans’ divorce proceedings is not the same or substantially the same. The trial court erred when it determined the trustees weren’t required to establish that the dissolution was unforeseeable. Because the trustees failed to prove that the dissolution at the time of distribution was unforeseen or not anticipated as required, reverses modification of trust that delayed distribution to Stephen until after the dissolution is final or any appeal therefrom.
Dalmas Maurice Otieno Anyango, et al. v. Rolls Royce Corp., et al.
49A04-1011-CT-679
Civil tort. Affirms grant of Rolls Royce and other appellees’ motion to dismiss on the grounds of forum non conveniens the Anyanagos’ complaint for strict liability and wrongful death. Even if the trial court had not granted the motion to dismiss, the law of British Columbia would apply in Indiana, and the trial court did not err in granting the motion to dismiss based on forum non conveniens.
Matthew Erin Koch v. State of Indiana
82A01-1004-CR-154
Criminal. Affirms kidnapping, robbery, and battery convictions because evidence of probative value was presented at trial from which a jury could find Koch kidnapped Le in Indiana and that the robbery and battery offenses were integrally related. Vacates Koch’s convictions of two counts of Class B felonies because of double jeopardy. Reverses 45-year aggregate sentence and remands with instructions to impose an aggregate sentence of 30 years. Judge Riley dissents regarding the sentence revision.
James R. Sapp v. Flagstar Bank, FSB
49A02-1101-PL-4
Civil plenary. Affirms in part and reverses in part the denial of Sapp’s motion to correct error, which challenged a summary judgment order upon the claims of Flagstar Bank against Sapp for breach of contract, theft, and unjust enrichment. A genuine issue of material fact remains as to whether or not the bank’s loss of the check and two-month acquiescence was a failure to exercise ordinary care regarding the breach of contract claim. Sapp is entitled to summary judgment on the theft claim because Flagstar didn’t show that Sapp’s control was without authorization such that he could have been found to have criminally stolen the funds. He is also entitled to summary judgment on the unjust enrichment claim. Reverses award of attorney fees for Flagstar. Remands for trial only on the contract claim.
Larry D. Smith v. State of Indiana (NFP)
57A03-1102-CR-89
Criminal. Affirms sentence following guilty plea to Class C felony aiding in burglary.
Anthony W. Taylor v. Mark Sevier (NFP)
52A02-1010-MI-1252
Miscellaneous. Affirms dismissal of Taylor’s petition for writ of habeas corpus.
Troy T. Hardesty v. State of Indiana (NFP)
71A04-1012-CR-819
Criminal. Affirms conviction of Class C felony burglary.
D.R., Alleged to be CHINS; E.D. v. IDCS and Child Advocates (NFP)
49A02-1012-JC-1416
Juvenile. Affirms determination that D.R. was a child in need of services.
Terrell B. Wofford v. State of Indiana (NFP)
45A03-1011-CR-572
Criminal. Affirms conviction of and sentence for Class A felony battery.
Sanchez M. Ellis v. State of Indiana (NFP)
02A03-1012-CR-673
Criminal. Affirms convictions of Class C felony battery, Class D felony battery, and Class D felony resisting law enforcement.
James J. Duchene v. State of Indiana (NFP)
84A01-1012-CR-679
Criminal. Affirms order revoking probation and imposition of 18 months of previously suspended sentence.
Peter Johnson v. Keith Sove (NFP)
06A01-1102-SC-73
Small claims. Affirms denial of Johnson’s motion to correct error following the denial of his motion to set aside a default judgment in favor of Sove.
William Sebastian, Jr.v. State of Indiana (NFP)
14A01-1012-CR-655
Criminal. Affirms denial of jail credit time.
State of Indiana v. Steven Hollin (NFP)
69A05-1101-PC-113
Post conviction. Reverses grant of Hollin’s petition for post-conviction review. Remands with instructions to deny the petition for post-conviction relief.
Brian E. Crist, Jr. v. State of Indiana (NFP)
27A02-1011-CR-1285
Criminal. Affirms conviction of Class C felony battery.
Thomas E. Curtis v. State of Indiana (NFP)
18A05-1101-CR-48
Criminal. Reverses conviction of felony murder and remands with instructions.
Indiana Tax Court had posted no opinions at IL deadline.
7th Circuit Court of Appeals
Arboleda Ortiz v. Thomas Webster, Doctor
10-2012
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge Larry McKinney.
Civil. Vacates summary judgment for Dr. Webster and remands with instructions that the case proceed to trial. This is the second time the case has come on appeal and the first time, the 7th Circuit reversed summary judgment for the doctor on the grounds that Ortiz had established fact disputes on the seriousness of his eye condition and the constitutionally of Webster’s delayed response. The record had changed very little on remand yet the District Court granted summary judgment for the doctor. Judge Kanne dissents.
A three-judge panel for the 7th Circuit Court of Appeals has determined a landmark decision from the Supreme Court of the United States last year isn't retroactive. That rule required criminal defense attorneys to advise clients about the immigration impact of signing a guilty plea, and this means past cases wouldn’t benefit from that holding even if those individuals had been deprived of that Sixth Amendment right.
A class-action lawsuit filed by an Indianapolis law firm is the largest legal action to arise so far from the collapse of a concert stage at the Indiana State Fair.
7th Circuit Court of Appeals had posted no opinions from Indiana courts at IL deadline.
Indiana Supreme Court had posted no opinions at IL deadline.
Indiana Court of Appeals
Dhavares Bureau v. State of Indiana (NFP)
46A03-1004-CR-201
Criminal. Affirms two convictions of Class A felony dealing in cocaine within 1,000 feet of a youth program center and the determination Bureau is a habitual offender.
Indiana Tax Court had posted no opinions at IL deadline.
Indiana Court of Appeals
Brian Roberts v. State of Indiana
24A04-1011-PC-726
Post conviction. Affirms denial of Roberts’ petition for post-conviction relief. Roberts’ plea was entered knowingly, intelligently, and voluntarily and Roberts can’t establish prejudice due to his trial counsel’s deficient performance.
The Indiana Court of Appeals has upheld the decision to deny a man’s request for post-conviction relief, finding that although his attorney’s performance was deficient for not investigating whether a previous conviction attributed to the defendant was really his, the man couldn’t show he was prejudiced.
The subcommittee formed to address the issue of illegal police entry following an Indiana Supreme Court ruling will hear public testimony and discuss draft language at its Wednesday meeting.
At its first meeting Wednesday, the Commission on Courts will hear updates on Judicial Technology and Automation Committee projects as well as requests for new judges.
In a blow to the Indiana attorney general’s office, the state’s tax judge has shot down a legal theory that used jeopardy tax assessments to go after a purported puppy mill in Harrison County.
The Indiana Supreme Court has taken five cases on transfer, including one that presents two issues of first impression on prejudgment interest.
7th Circuit Court of Appeals had posted no opinions from Indiana courts at IL deadline.
Indiana Supreme Court had posted no opinions at IL deadline.
Indiana Court of Appeals
Smith Barney, et al. v. StoneMor Operating LLC, et al.
41A04-1103-MF-96
Mortgage foreclosure. Affirms denial of Barney’s motion to compel arbitration. As a matter of law, Independence Trust was not a “successor in interest” to either of the prior trustees and therefore isn’t bound by the arbitration clause in the account agreements. Consequently, there is no basis for compelling StoneMor to arbitrate its claims.
Marc Van Rowland v. State of Indiana (NFP)
79A02-1010-CR-1161
Criminal. Affirms convictions of Class C felony attempted burglary, Class A misdemeanor resisting law enforcement, and an attendant adjudication of being a habitual offender.
Garry Coleman v. Department of Local Government Finance (NFP)
49A02-1101-MI-40
Miscellaneous. Affirms dismissal of wrongful termination complaint.
A.B. v. State of Indiana (NFP)
49A02-1101-JV-142
Juvenile. Affirms adjudication as a delinquent child for committing what would be Class C felony child molesting if committed by an adult.
Indiana Tax Court had posted no opinions at IL deadline.
The Indiana Supreme Court accepted five cases on transfer and denied 37 for the week ending Aug. 19, 2011.
Indiana Court of Appeals
Smith Barney, et al. v. StoneMor Operating LLC, et al.
41A04-1103-MF-96
Mortgage foreclosure. Affirms denial of Barney’s motion to compel arbitration. As a matter of law, Independence Trust was not a “successor in interest” to either of the prior trustees and therefore isn’t bound by the arbitration clause in the account agreements. Consequently, there is no basis for compelling StoneMor to arbitrate its claims.
A panel of Indiana Court of Appeals judges split on the issue of whether a defendant agreed to allow a five-member jury to decide her case after one juror fell ill, with the dissenting judge believing the defendant – not her counsel – must consent to the five-person jury.
The Indiana Court of Appeals concluded that a victim’s statements detailing her physical attack and identifying her attacker were admissible in court and were nontestimonial, so the defendant’s confrontation rights weren’t violated. However, the judges reversed the man’s convictions because the trial court shouldn’t have admitted prior misconduct evidence involving the defendant and the victim.
A tougher state law for human and child trafficking was a key topic on this week’s legislative interim study committees agendas. With the Super Bowl less than six months away, the Indiana attorney general’s office is pushing for prompt action.