Merit-selection panel formed to select new federal magistrate
Anyone interested in being a federal magistrate for the southern part of Indiana has until Wednesday to apply for that position.
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Court addresses fine line between traffic stop, arrest
The Indiana Court of Appeals has reversed a man’s drunk driving and marijuana possession convictions based on police
officer conduct, finding that the officer shouldn’t have held a gun and handcuffed him during what could have been a
legitimate traffic stop.
Retired judge overturned based on bias shown on bench
The Indiana Supreme Court has ordered a new trial for a convicted child molester because of the conduct from the longtime
trial judge, who resigned from the bench in September amid a judicial misconduct investigation.
Court reform plan starts with enhanced education proposal
As part of a larger court reform plan, the governing board of the Judicial Conference of Indiana wants more required education
for judges at the state appellate and trial levels.
Opinions July 9, 2010 ILD
Today’s Opinions
7th Circuit Court of Appeals
Freddie L. Byers Jr. v. James Basinger, Superintendent of the Wabash Valley Correctional Facility
09-1833
U.S. District Court, Northern District of Indiana, South Bend Division. Judge Allen Sharp
Civil. Affirms District Court's denial of Byers' habeas petition. After a jury found Byers guilty of murder, attempted murder and robbery, the Indiana Supreme Court affirmed on direct appeal. The Indiana Court of Appeals denied his petition for post-conviction relief, and the Indiana Supreme Court denied transfer. The District Court later denied Byers’ habeas petition, in which Byers argued that his trial counsel performed deficiently. The 7th Circuit granted Byers a certificate of appealability on the question whether he had been denied effective assistance of counsel. The 7th Circuit affirmed the district court’s denial because, even if Byers successfully exhausted his claim, it lacks merit.
The Indiana Supreme Court posted no opinions before IL deadline.
Indiana Court of Appeals
Allen A. Halferty v. State of Indiana
20A03-0910-CR-475
Criminal. Affirms Halferty’s conviction of maintaining a common nuisance by dealing methamphetamine. Reverses his conviction of Class A felony dealing in methamphetamine and remands with instructions to enter a conviction for Class B felony dealing in methamphetamine due to evidence regarding the amount of the drug. Also instructs trial court to revise Halferty’s sentence to reflect the change from Class A felony to Class B felony.
Charles Taylor v. State of Indiana
71A04-1001-PC-6
Post-conviction. Affirms post-conviction court’s denial of Taylor’s petition for post-conviction relief. After he initiated a direct appeal of his three convictions of Class B felony unlawful possession of a firearm by a serious violent felon, the Court of Appeals had granted Taylor a Davis/Hatton petition, which involves a termination or suspension of a direct appeal already initiated, upon appellate counsel’s motion for remand or stay, to allow a post-conviction relief petition to be pursued in the trial court. Court of Appeals concludes Taylor’s trial counsel did not provide ineffective assistance by failing to object to the admission of the weapons and that his convictions do not violate Indiana’s prohibition against double jeopardy.
Ben Gill v. State of Indiana (NFP)
49A05-0912-CR-734
Criminal. Affirms convictions of and sentences for intimidation and battery following a guilty plea without a written plea agreement.
Mark A. Shepard v. State of Indiana (NFP)
49A02-0912-CR-1244
Criminal. Affirms conviction of battery.
Robert Townsend v. State of Indiana (NFP)
49A02-0911-CR-1120
Criminal. Affirms classification as a Sexually Violent Predator.
Donald J. Zellers v. Sharon Zellers (NFP)
43A03-0909-CV-433
Civil. Affirms trial court’s distribution of marital property following divorce.
Kirby D. Oliver v. State of Indiana (NFP)
45A03-1002-CR-53
Criminal. Affirms trial court’s denial of Oliver’s motion requesting placement in community corrections following a guilty plea to murder.
The Indiana Tax Court posted no opinions before IL deadline.
Opinions July 9, 2010
7th Circuit Court of Appeals
Freddie
L. Byers Jr. v. James Basinger, Superintendent of the Wabash Valley Correctional Facility
09-1833
U.S. District Court, Northern District of Indiana, South Bend Division. Judge Allen Sharp
Civil. Affirms District Court's denial of Byers' habeas petition. After a jury found Byers guilty of murder, attempted
murder and robbery, the Indiana Supreme Court affirmed on direct appeal. The Indiana Court of Appeals denied his petition
for post-conviction relief, and the Indiana Supreme Court denied transfer. The District Court later denied Byers’ habeas
petition, in which Byers argued that his trial counsel performed deficiently. The 7th Circuit granted Byers a certificate
of appealability on the question whether he had been denied effective assistance of counsel. The 7th Circuit affirmed the
district court’s denial because, even if Byers successfully exhausted his claim, it lacks merit.
9 remain in running for Indiana Supreme Court
Nearly three-quarters of the 34 attorneys who’d applied for an Indiana Supreme Court opening won’t get a second interview.
Opinions July 8, 2010 ILD
Indiana Supreme Court had posted no opinions at IL deadline.
Indiana Court of Appeals
Russell
W. Maddex v. State of Indiana (NFP)
39A01-0910-CR-496
Criminal. Affirms convictions of and sentence for Class C felony burglary, Class D felony attempted theft, and habitual offender
finding.
Dorian
Lee v. State of Indiana (NFP)
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=07081005jsk.pdf
27A04-1001-CR-41
Criminal. Affirms conviction of Class A misdemeanor invasion of privacy.
Indiana Tax Court had posted no opinions at IL deadline.
Opinions July 8, 2010
Indiana Court of Appeals
Marcus
Lewis v. State of Indiana
49A02-0909-CR-920
Criminal. Reverses conviction of Class A misdemeanor domestic battery. Lewis received ineffective assistance of trial counsel
because counsel failed to timely file a written request for a jury trial. Remands for a new trial.
Man gets new trial because of ineffective counsel
Based on ineffective assistance of counsel, the Indiana Court of Appeals today reversed on direct appeal a man’s domestic
battery conviction and remanded the case for a new trial.
Day 2 of interviews for justice spot
By the end of the day, the seven-member Indiana Judicial Nominating Commission will decide who to bring back for a second
round of interviews for the state’s next Supreme Court justice.
Opinions July 7, 2010 ILD
Indiana Supreme Court had posted no opinions at IL deadline.
Indiana Court of Appeals
In the Matter of: A.C. v. State of Indiana
49A04-0912-JV-682
Juvenile. Reverses adjudication for committing what would be Class A misdemeanor resisting law enforcement if committed by
an adult. A.C.’s simple failure to stand, without more, amounts to passive inaction and seems analogous to the failure
to present one’s arms for handcuffing, which the Indiana Supreme Court has said does not constitute forcible resistance.
Leroy
Jones v. State of Indiana
27A02-1002-CR-168
Criminal. Reverses convictions of two counts of dealing in cocaine, one as a Class A felony and one as a Class B felony.
The evidence was not sufficient to prove Greentree was a family housing complex on the day in question and the jury could
not have so found. Because the trial court erroneously instructed the jury as to the meaning of “family housing complex,”
Jones’s dealing conviction under Count 1 was enhanced via a statute that, after the acts were committed, changed the
elements of the crime with which he was charged. Remands for the Class A felony to be entered as a Class B felony and to re-sentence
him consistent with the opinion.
Michael
A. Balasquide v. State of Indiana (NFP)
49A02-0912-CR-1238
Criminal. Affirms convictions of Class A felony child molesting and Class B felony incest.
Theodore
N. Hannibal v. State of Indiana (NFP)
34A02-1002-CR-130
Criminal. Affirms determination Hannibal is a habitual substance offender. Remands for an amendment to the sentencing order.
Tyshekia
Burris v. State of Indiana (NFP)
49A02-0911-CR-1133
Criminal. Reverses conviction of Class D felony criminal recklessness.
Sally
G. Leonard v. United Farm Family Mutual, et al. (NFP)
71A03-0909-CV-444
Civil. Affirms summary judgment for United Farm Family Mutual on Leonard’s complaint for damages and declaratory relief
based on a car accident.
Marco
Hernandez-Lopez v. State of Indiana (NFP)
49A02-0912-CR-1178
Criminal. Affirms sentence for Class A misdemeanor conversion.
Jonathan
Graves v. State of Indiana (NFP)
49A02-0912-CR-1284
Criminal. Affirms order revoking probation and ordering Graves serve two years of a previously suspended sentence.
Involuntary
Commitment of R.C. (NFP)
49A02-0912-CV-1229
Civil. Affirms sufficiency of evidence to support order involuntarily committing R.C. to Community Hospital North Mental
Health Center.
Christopher
J. Geideman v. State of Indiana (NFP)
71A05-1002-CR-63
Criminal. Affirms convictions of and sentence for two counts of Class A misdemeanor battery and one count of Class D felony
residential entry.
Kevin
D. Risner v. State of Indiana (NFP)
75A03-0907-CR-300
Criminal. Affirms convictions of Class D felonies operating a vehicle as a habitual traffic violator, and operating a vehicle
while intoxicated with a previous conviction, and the finding Risner is a habitual substance offender.
Kurt
O. Elder v. State of Indiana (NFP)
28A04-1002-CR-67
Criminal. Affirms order revoking six years of probation and requiring Elder to remain on probation through the date that
he was previously scheduled to be released.
T.H.,
II et al., Alleged to be C.H.I.N.S.; T.H. & S.H. v. Monroe County Department of Child Services (NFP)
53A01-0911-JV-548
Juvenile. Affirms finding children are CHINS and order that they be removed from the home.
Matthew
Baugh v. State of Indiana (NFP)
18A02-0911-CR-1155
Criminal. Affirms revocation of probation and imposition of the two-year sentence that had originally been suspended.
Brian
L. Riker v. State of Indiana (NFP)
14A01-0909-CR-451
Criminal. Affirms convictions of two counts of Class B felony sexual misconduct with a minor, Class B felony attempted sexual
misconduct with a minor, Class D felony sexual battery, and six counts of Class A misdemeanor contributing to the delinquency
of a minor.
Harry
Green, Jr. v. State of Indiana (NFP)
02A04-1003-CR-178
Criminal. Affirms sentence following guilty plea to Class D felony intimidation, Class C misdemeanor public nudity, Class
C misdemeanor operating while intoxicated, and Class C misdemeanor operation of a motor vehicle by an unlicensed driver.
Robin
Ann Parks v. Michael and Kathryn Grube (NFP)
83A05-0911-CV-652
Civil. Affirms order granting custody of Parks’ children to the Grubes.
Denise
L. Black v. State of Indiana (NFP)
45A03-0912-CR-572
Criminal. Vacates eight-year executed sentence imposed following guilty plea to Class C felony reckless homicide and remands
for imposition of a six-year executed sentence.
Indiana Tax Court had posted no opinions at IL deadline.
Opinions July 7, 2010
Indiana Court of Appeals
In the Matter of: A.C. v. State of Indiana
49A04-0912-JV-682
Juvenile. Reverses adjudication for committing what would be Class A misdemeanor resisting law enforcement if committed by
an adult. A.C.’s simple failure to stand, without more, amounts to passive inaction and seems analogous to the failure
to present one’s arms for handcuffing, which the Indiana Supreme Court has said does not constitute forcible resistance.
COA: Teen didn’t resist law enforcement
A teen who refused to stand up or pull up his pants when ordered by a police officer did not resist law enforcement, the Indiana
Court of Appeals ruled today.
Use of wrong statute requires reversal of dealing conviction
The Indiana Court of Appeals reversed a Class A felony conviction of dealing in cocaine because the trial court instructed
the jury on an incorrect version of the statute that allows for enhancing dealing convictions.
Commission selects semi-finalists for justice vacancy
The Indiana Judicial Nominating Commission has chosen nine semi-finalists for the upcoming vacancy on the Indiana Supreme
Court.
Interviews for next justice under way today
One by one, attorneys are appearing before the seven-member Indiana Judicial Nominating Commission to explain why they should
be the next Indiana Supreme Court justice.
Canine sniff case gets second look, same ruling
On a rehearing petition from the state, the Indiana Court of Appeals reaffirmed today its holding in reversing a conviction
based on a traffic stop involving a canine sniff.
Opinions July 6, 2010 ILD
Indiana Supreme Court posted no opinions before IL deadline.
Indiana Court of Appeals
Terry
Huddleston v. State of Indiana (NFP)
15A04-0912-CR-705
Criminal. Affirms conviction of and sentence for possession of a controlled substance with intent to deliver following guilty
plea.
Sylvario
Wilson v. State of Indiana (NFP)
79A05-1003-CR-158
Criminal. Affirms trial court’s denial of motion to withdraw a guilty plea. Remands for clarification of sentence or
a new sentencing determination.
L.M.,
et al., Alleged to be Children in Need of Services; N.D. v. Marion County Dept. of Child Services and Child Advocates Inc.
(NFP)
49A04-0911-JV-644
Juvenile. Reverses juvenile court’s adjudication of children, Le.M., L.M. Jr., and J.D., as children in need of services.
Roger
L. Storey v. State of Indiana (NFP)
57A05-1001-CR-40
Criminal. Affirms six-year executed sentence following a guilty plea to Class C felony nonsupport of a dependent child.
Bryan
Claywell v. State of Indiana (NFP)
49A02-0912-CR-1214
Criminal. Reverses conviction following bench trial for Class A felony child molesting.
Vidal Clayton v. State of Indiana (NFP)
21A01-1001-CR-9
Criminal. Affirms trial court’s order that the sentence imposed following guilty plea to Class A felony conspiracy
to commit murder be served consecutively to a sentence imposed following an unrelated conviction.
Frank
Byers v. State of Indiana (NFP)
49A02-0910-CR-966
Criminal. Affirms convictions of Class A felony burglary, Class B felony robbery, and Class C felony criminal confinement.
Benjamin
L. Underwood v. State of Indiana (NFP)
20A05-0912-CR-707
Criminal. Affirms convictions of and sentences for murder and conspiracy to commit aggravated battery.
H
& L Motors, LLC v. Millennium Auto Group Inc. (NFP)
43A03-1002-PL-105
Civil. Affirms trial court’s order dismissing H&L Motors’ complaint against Millennium Auto Group Inc.
Indiana Tax Court posted no opinions before IL deadline.
Court affirms felony nonsupport of a dependent conviction
A man claiming he proved he was unable to pay child support because of his numerous incarcerations did not convince the Indiana
Court of Appeals. In its ruling today, the court relied on Becker v. Becker to affirm the man’s conviction
of Class C felony nonsupport of a dependent child.