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One set of interviews remain before the Indiana Judicial Nominating Commission goes into a closed-door meeting to deliberate
which three names should be sent to the governor to decide who will be the state’s next Supreme Court justice.
7th Circuit Court of Appeals
United
States of America v. Anthony L. Vaughn
09-3789
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge Larry J. McKinney.
Criminal. Affirms 180-month sentence after pleading guilty to committing aggravated assault on a federal officer. The District
Court reasonably explained why the sentence that was outside the guidelines range was appropriate.
Indiana Supreme Court had posted no opinions at IL deadline.
Indiana Court of Appeals
William
Foster v. State of Indiana (NFP)
49A04-0908-CR-435
Criminal. Affirms convictions of Class A felony neglect of a dependent and Class C felony reckless homicide.
In
the matter of the marriage of : L.S. v. J.H. (NFP)
41A04-0910-CV-605
Civil. Reverses trial court order that ordered father is not required to enroll C.H. in gymnastics during his extended summer
parenting time in Indiana or contribute to the expenses associated with gymnastics. Remands with further instructions. Affirms
decree of modification in all other respects.
Christopher
W. Hovis v. State of Indiana (NFP)
92A03-0910-CR-487
Criminal. Dismisses belated appeal of convictions of and sentence for Class C felony assisting a criminal and a habitual
offender enhancement.
Geronimo
Montalvo v. State of Indiana (NFP)
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=07301001lmb.pdf
12A05-0910-CR-597
Criminal. Affirms sentence following guilty plea to Class A felony dealing in cocaine.
Indiana Tax Court had posted no opinions at IL deadline.
7th Circuit Court of Appeals
United
States of America v. Anthony L. Vaughn
09-3789
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge Larry J. McKinney.
Criminal. Affirms 180-month sentence after pleading guilty to committing aggravated assault on a federal officer. The District
Court reasonably explained why the sentence that was outside the guidelines range was appropriate.
A man wrongfully convicted of attempted murder can go forward with his intentional infliction of emotional distress claim
against the City of Elkhart and several police officers, the 7th Circuit Court of Appeals ruled today.
The Indiana Court of Appeals agreed with a defendant that his due process rights were denied when his participation in a drug
court program was ended without giving him notice of a hearing, or allowing him to present evidence and cross-examine witnesses.
The District 8 Pro Bono Committee has a new chair – Marion Superior Judge David A Shaheed.
The Indiana Judicial Nominating Commission has picked Boone Circuit Judge Steven David, Marion Superior Judge Robyn Moberly,
and Bingham McHale attorney Karl Mulvaney as finalists for the next Indiana Supreme Court justice.
7th Circuit Court of Appeals
Louis
and Karen Metro Family LLC, et al. v. Lawrenceburg Conservancy District, et al.
09-2418, -2482
U.S. District Court, Southern District of Indiana, New Albany Division, Magistrate Judge William G. Hussman.
Civil. Affirms the City of Lawrenceburg and the Lawrenceburg Conservancy District breached their contract with the Metros
to convey land to the Metros based on the option contract their company held. Vacates decision to reform the contract to change
the date by which the option could be exercised from 18 months after completion of the project to 18 months after the date
of the District Court opinion. Remands for further proceedings to calculate damages and to assess costs against the district
and city.
United
States of America v. David Diaz-Gaudarama
09-4048
U.S. District Court, Southern District of Indiana, New Albany Division, Judge David F. Hamilton.
Criminal. Affirms District Court denial to credit Diaz-Gaudarama with the two-point reduction for acceptance of responsibility.
The District Court properly relied on the last-minute nature of Diaz-Gaudarama’s guilty plea and his own statements
during his plea colloquy don’t reflect remorse. He had even faked psychological illness in an attempt to evade punishment.
Indiana Supreme Court had posted no opinions at IL deadline.
Indiana Court of Appeals
Eric
C. Danner v. State of Indiana
71A03-1001-CR-13
Criminal. Affirms convictions of dealing in cocaine, possession with intent to deliver over three grams as a Class A felony
and possession of marijuana as a Class A misdemeanor. The decision of the corporal to impound Danner’s car, which was
later approved by her supervisor, was valid under paragraph K of the written police department policy and the evidence was
properly admitted. The corporal’s observation of the marijuana was a proper plain view observation providing the officer
with probable cause, and the search of the car doesn’t violate state or federal constitutional rights.
Elizabeth
Bernel v. Jeffrey A. Bernel
46A03-0911-CV-511
Civil. Affirms denial of injunctive relief for Elizabeth. Reverses conclusion that the settlement agreement didn’t
require Jeffrey to refinance or otherwise satisfy the outstanding balance on the JP Morgan Bank line of credit as necessary
to remove the lien of debt from that account. Remands for the dissolution court to enter a money judgment in the amount of
$950,000 for Elizabeth and against Jeffrey and to determine a reasonable amount of attorney fees. Holds Elizabeth shall be
awarded prejudgment interest.
State
of Indiana v. Carla F. Wells (NFP)
71A03-0911-CR-545
Criminal. Affirms trial court order granting Wells’ motion to suppress.
Eastern
Livestock, Inc. and Thomas P. Gibson v. Bill Day (NFP)
88A01-0909-CV-436
Civil. Affirms findings regarding “missing cattle” and the damages award to Day, charges made by Eastern and/or
Gibson in Day’s account, and overpayments that Eastern and Gibson allegedly made to Day. Also affirms conclusion that
Day’s pasture contracts with Gibson were not unconscionable and the refusal to award prejudgment interest to Day.
Donna
Demko v. Jeffrey P. Demko (NFP)
64A03-0811-CV-550
Civil. Grants petition for rehearing and reaffirms original opinion on child support, custody and other matters.
Jeffrey
B. Flora v. State of Indiana (NFP)
43A03-1002-CR-93
Criminal. Affirms denial of motion to remove sexually violent predator status.
Scott
S. Nowatzke v. Lorine L. Nowatzke (NFP)
46A05-0910-CV-611
Civil. Affirms division of property pursuant to the dissolution of the marriage.
Debra
L. Collins v. State of Indiana (NFP)
49A04-0912-CR-742
Criminal. Affirms conviction of Class D felony possession of a controlled substance.
Harvey
L. Lancaster v. State of Indiana (NFP)
49A02-1001-CR-10
Criminal. Affirms convictions of Class B misdemeanors disorderly conduct and public intoxication.
Mickel
J. Mills v. State of Indiana (NFP)
49A05-0910-CR-616
Criminal. Affirms sentence following guilty plea to Class D felony criminal trespass and Class A misdemeanor criminal trespass.
Robert
F. Dougan v. State of Indiana (NFP)
18A02-0912-CR-1268
Criminal. Affirms convictions of and sentence for Class D felony residential entry and three counts of Class D felony intimidation.
Ryan
E. Whitley v. State of Indiana (NFP)
49A05-1001-CR-34
Criminal. Affirms conviction of Class D felony public indecency.
Raymond
Johnson v. State of Indiana (NFP)
48A02-0912-CR-1285
Criminal. Affirms revocation of probation.
Joe
L. Knuckles v. State of Indiana (NFP)
20A05-1002-CR-57
Criminal. Affirms conviction of Class B felony dealing in methamphetamine.
Adam
N. Bock v. State of Indiana (NFP)
17A03-1003-CR-134
Criminal. Affirms conviction of operating a vehicle while intoxicated with an alcohol concentration equivalent to 0.08 or
more as a Class C misdemeanor.
Indiana Tax Court had posted no opinions at IL deadline.
7th Circuit Court of Appeals
Louis
and Karen Metro Family LLC, et al. v. Lawrenceburg Conservancy District, et al.
09-2418, -2482
U.S. District Court, Southern District of Indiana, New Albany Division, Magistrate Judge William G. Hussman.
Civil. Affirms the City of Lawrenceburg and the Lawrenceburg Conservancy District breached their contract with the Metros
to convey land to the Metros based on the option contract their company held. Vacates decision to reform the contract to change
the date by which the option could be exercised from 18 months after completion of the project to 18 months after the date
of the District Court opinion. Remands for further proceedings to calculate damages and to assess costs against the district
and city.
The Indiana Court of Appeals declined Thursday to change how it reviews cases dealing with involuntary commitment.
Interviews for the newest justice are Friday. Indiana Lawyer will be covering the semi-finalist interviews with
updates throughout the day.
Lobbyists who work in Indianapolis and Marion County will now have to register their information in a public database beginning
next year. Effective Jan. 1, 2010, a new ordinance requires all lobbyists engaging in executive or legislative branch lobbying
activity with an agency of the City of Indianapolis or Marion County to register with the Department of Code Enforcement.
Indiana Supreme Court had posted no opinions at IL deadline.
Indiana Court of Appeals
Adoption
of H.L.W. Jr.; H.L.W. Sr. and IDCS v. L.M.D. and D.P.D.
71A03-0911-CV-516
Civil. Reverses grant of an adoption petition filed by L.M.D. and D.P.D. regarding H.L.W. Jr. The consent statutes of Indiana
Code Chapter 31-19-9 enabled the trial court to consider the adoption proceeding despite the pending CHINS action. DCS met
its burden of demonstrating by clear and convincing evidence that its withholding of consent to the adoption was in the child’s
best interests.
Nelson
Rios v. State of Indiana
49A02-0912-CR-1273
Criminal. Reverses order that Rios serve consecutive sentences for convictions of two counts of dealing in a lookalike substance
as Class C felonies. The imposition of consecutive sentences based on incidents that were virtually identical and very close
in time contravenes rulings in Beno and Gregory. Remands for a new sentencing determination.
Putnam
County Sheriff v. Pamela Rice
60A01-0911-CV-551
Civil. Affirms order denying the sheriff’s motion to dismiss filed in the civil action brought by Price for damages
resulting from a car accident. The sheriff, through its agent Deputy Wallace, owed a common law duty of ordinary and reasonable
care to warn the traveling public of the known hazardous condition on the icy road.
Paul
Komyatti, Jr. v. State of Indiana
52A04-1002-MI-74
Miscellaneous. Affirms denial of petition for post-conviction relief that challenged the revocation of Komyatti’s parole.
There are no genuine questions of fact with respect to Komyatti’s PCR petition and the state was entitled to judgment
as a matter of law.
James
Townsend v. State of Indiana (NFP)
49A04-0912-CR-703
Criminal. Affirms conviction of and sentence for murder.
Gerardo
Bensez v. State of Indiana (NFP)
03A01-0912-CR-611
Criminal. Dismisses appeal of conviction following guilty plea to Class B felony dealing in cocaine.
Marlinda
Nunley v. State of Indiana (NFP)
48A02-0912-CR-1177
Criminal. Affirms finding Nunley violated the terms of her probation and that she serve two years of her previously suspended
sentence in the Department of Correction.
Thomas
Eugene Ferrell v. State of Indiana (NFP)
46A03-0910-CR-471
Criminal. Affirms conviction of and sentence for Class B felony dealing in cocaine.
In
The Guardianship of John Joseph Bortka, II (NFP)
88A01-0907-CV-343
Civil. Affirms order that John Jerald Bortka, former guardian of John Joseph Bortka and his estate, reimburse the guardianship
estate in the amount of $12,034 and award of attorney fees to Paula Bortka Wells. Remands with instructions to calculate the
amount of appellate costs Paula is entitled to from John Jerald Bortka.
Jeremy
Culp v. State of Indiana (NFP)
49A02-1001-CR-11
Criminal. Affirms conviction of Class D felony theft.
Bruce
Hatfield, et al. v. Area Plan Commission of Evansville (NFP)
82A01-0910-CV-502
Civil. Reverses trial court’s decision limiting Hatfield and others’ damages for an alleged taking.
Term.
of Parent-Child Rel. of T.H.C.; T.C. & C.P. v. I.D.C.S. (NFP)
71A04-1001-JT-104
Juvenile. Affirms termination of parental rights.
Indiana Tax Court had posted no opinions at IL deadline.
7th Circuit Court of Appeals
United
States of America v. Jamarkus Gorman
09-3010
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Criminal. Affirms conviction of perjury after testifying falsely before a grand jury. There is ample evidence to support
the finding Gorman perjured himself with regard to the possession of a Bentley. The evidence was properly admitted, albeit
as direct evidence rather than inextricable intertwinement evidence, and its probative value was not substantially outweighed
by any risk of unfair prejudice.
The 7th Circuit Court of Appeals upheld a defendant’s perjury conviction and in doing so, concluded that resorting to
inextricable intertwinement is unavailable when determining a theory of admissibility.
The Indiana Supreme Court will answer a certified question in litigation involving the state’s Products Liability Act.
The justices accepted the certified question from U.S. District Court, Southern District of Indiana Judge Larry J. McKinney
Tuesday afternoon.
Indiana’s Judges and Lawyers Assistance Program is partnering with the American Bar Association Commission on Lawyer
Assistance Programs to host this year’s national conference in October in Indianapolis.
7th Circuit Court of Appeals
Prime
Eagle Group Ltd., as assignee of the claims of Nakornthai Strip Mill Public Co. Ltd. v. Steel Dynamics Inc.
09-1663
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge James T. Moody.
Civil. Affirms judgment for Steel Dynamics in Prime Eagle’s suit that Steel Dynamics must pay damages in tort for withdrawing
from a steel mill venture in Asia. Nakornthai’s injury began no later than July 1999 and the company had knowledge of
the injury then, so its suit is beyond the statute of limitations.
Indiana Supreme Court had posted no opinions at IL deadline.
Indiana Court of Appeals
David
A. Calvert v. State of Indiana
40A05-0911-CR-659
Criminal. Reverses conviction of Class B felony attempted robbery with a deadly weapon because the state failed to prove
a substantial step. Calvert’s conviction of possession of a sawed-off shotgun as a Class D felony violates double jeopardy.
Affirms convictions of Class B felony possession of a firearm as a serious violent felon. Affirms sentence and remands with
instructions. Judge Kirsch dissents in part.
E.W.
Revocable Trust
29A02-0910-CV-1004
Civil. Affirms order that the trustee pay the beneficiaries’ attorney fees, the reduction of the requested trustee
fees, and the reduction of the amount of trustee’s attorney fees to be borne by the trust. The trustee breached duties
owed to the objecting beneficiaries. Reverses order that the trustee bear the remaining portion of his attorney fees personally.
Cornelius
Tyrone Lacey, Sr. v. State of Indiana
02A05-0910-CR-562
Criminal. Reverses denial of motion to suppress evidence obtained during the execution of a search warrant. There was probable
cause for the issuance of the search warrant but the unilateral decision to dispense with the knock-and-announce rule was
unreasonable under the Indiana Constitution. Judge Barnes concurs in result.
Damion
Wilkins v. State of Indiana
02A03-0910-CR-451
Criminal. Reverses denial of motion to suppress evidence obtained during the execution of a search warrant. There was probable
cause for the issuance of the search warrant but the unilateral decision to dispense with the knock-and-announce rule was
unreasonable under the Indiana Constitution. Judge Barnes concurs in result.
Bradford
Drake v. State of Indiana (NFP)
55A01-0912-CR-577
Criminal. Affirms sentence for two convictions of attempted murder as Class A felonies.
Term.
of Parent-Child Rel. of M.D.; M.C. v. I.D.C.S. (NFP)
34A02-1001-JT-156
Juvenile. Affirms termination of parental rights.
Dionte-Daymone
Jones v. State of Indiana (NFP)
45A05-1001-CR-4
Criminal. Affirms sentence following guilty plea to Class D felony auto theft.
Daniel
Brownlee v. State of Indiana (NFP)
49A02-0912-CR-1259
Criminal. Affirms conviction of Class C felony burglary and Class D felony attempted theft.
James
Eiteljorg, et al. v. Ralph E. Lean (NFP)
49A05-0912-CV-679
Civil. Reverses denial of Eiteljorg and Bharti’s motion for summary judgment in an action brought by Lean seeking contribution
from them for violations of the Indiana Securities Law. Remands with instructions.
Daniel
J. Emery v. State of Indiana (NFP)
52A04-0910-PC-583
Post conviction. Affirms denial of petition for post-conviction relief.
Associated
Builders & Contractors Indiana Chapter, Inc., et al. v. Lori A. Torres (NFP)
49A02-0910-CV-995
Civil. Grants rehearing but affirms original opinion in all respects regarding the dismissal of the builders’ complaint
for lack of standing.
Robert
Emerson v. State of Indiana (NFP)
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=07271002ebb.pdf
71A03-1001-CR-26
Criminal. Affirms conviction of Class C felony battery.
Indiana Tax Court had posted no opinions at IL deadline.
7th Circuit Court of Appeals
Marion
County Coroner’s Office v. Equal Employment Opportunity Commission and John Linehan
09-3595
Petition for review of an order of the EEOC. Upholds the EEOC determination that Coroner Ackles’ stated reason for
taking action against Linehan was pretextual and that the EEOC had jurisdiction over Linehan’s retaliation claim.
The Indiana Court of Appeals held today that a mother who suffers a stillbirth due to medical malpractice qualifies as an
injured patient and satisfies the actual victim requirement under the Medical Malpractice Act, regardless of whether the malpractice
resulted in injuries to the mother, fetus, or both.