Opinions

Indiana Supreme Court
In the Matter of: Karl N. Truman
10S00-1401-DI-55
Attorney discipline. Issues a public reprimand for violation of Indiana Professional Conduct Rule 5.6(a) by making an employment agreement that restricted the rights of a former associate to practice after termination of the employment relationship. The court also accepted the parties’ stipulation that Truman violated Rule 1.4(b), failure to explain a matter to the extent reasonably necessary to permit client to make informed decisions regarding representation.

Indiana Court of Appeals
John M. Weidman v. State of Indiana
03A01-1306-CR-255
Criminal. Affirms 14-year sentence following guilty pleas in two separate causes. Weidman specifically agreed in his plea agreement that he was not entitled to credit for the time he was on electronic monitoring as a condition of his release on bond. Accordingly, he may not now claim that he was entitled to credit for the time he was on electronic monitoring.

Indiana Court of Appeals
Marvin Garner v. State of Indiana
49A02-1310-CR-834
Criminal. Affirms aggregate 60-year sentence for four counts of Class A felony child molesting. His offenses were committed against multiple victims and against the same victims repeatedly, and his victims were young and he abused this position of trust.

Indiana Court of Appeals
Donnetta Newell v. State of Indiana
49A02-1309-CR-744
Criminal. Affirms Class A misdemeanor intimidation conviction. The trial court did not abuse its discretion in admitting evidence of the incident that led to Newell’s eviction and there is sufficient evidence for the finder of fact to conclude that Newell knew her statement to a security guard would be transmitted to the subject of her threat.

Indiana Court of Appeals
Matthew P. Wilhoite v. State of Indiana
34A04-1303-CR-138
Criminal. Affirms conviction of Class B felony “conspiracy to commit attempted armed robbery.” Wilhoite argued his conviction is invalid because a person may not be convicted of “conspiring to attempt” any crime. Although the state referenced a non-existent crime when it listed “conspiracy to commit attempted robbery” on the charging information as the crime committed, Wilhoite has not demonstrated fundamental error.

Indiana Court of Appeals
Shelly Bailey v. Lance Bailey
25A04-1309-DR-452
Domestic relation. Reverses trial court’s modification of physical custody of the two children. Finds the Parallel Parenting Time Order did not enable the court to modify the children’s custody to joint custody especially since neither parent petitioned for a change in custody. Judge John Baker dissented, writing that, as instructed by the Parallel Parenting Time Order, the trial court was trying to act in the best interest of the children and to prevent any further destructive behavior by the parents.

Indiana Court of Appeals
Old Utica School Preservation, Inc., Kenneth Morrison, Scott Sandefur, and Pamela Sandefur v. Utica Township, John Durbin, Utica Township Trustee, Jacobs Well, Inc., Kevin Williar, John Posey, et al.
10A05-1308-PL-388
Civil plenary. Reverses trial court grant of summary judgment in favor of Utica Township defendants and remands for proceedings on their claims. Old Utica School Preservation plaintiffs are entitled under the public standing doctrine to proceed with their claim that the township violated language in a quitclaim deed requiring the former school to be operated by the township solely for park and recreation purposes. Plaintiffs sued when the township leased the building for purposes including temporary housing or a halfway house for criminal offenders.

Indiana Court of Appeals
Jason Taylor v. State of Indiana
45A03-1310-CR-406
Criminal. Reverses denial of petition for expungement. Determines that the word “shall” in Section 35-38-9-2(d) is mandatory language requiring expungement. And such an interpretation does not render Section 35-38-9-9(d) meaningless because that section applies to other parts of the statute where the trial court does have discretion to deny a petition for expungement.

Indiana Supreme Court
David Bleeke v. Bruce Lemmon, in his capacity as Commissioner of the Indiana Department of Correction; Thor R. Miller, as Chairman of the Indiana Parole Board; et al.
02S05-1305-PL-364
Civil plenary. Reverses the trial court’s grant of summary judgment in favor of the parole board with respect to Bleeke’s additional parole conditions 4, 5, 17, 19 and 20, and remands with instructions that it enter an order enjoining the parole board from enforcing those conditions. Affirms the trial court’s grant of summary judgment to the parole board with respect to Bleeke’s claims about the constitutionality of the Sex Offender Management and Monitoring Program.

7th Circuit Court of Appeals
United States of America v. Marcus Henderson
13-2483
Criminal. Affirms denial of motion to suppress and conviction of being a drug user in possession of firearms in violation of 18 U.S.C. Section 922(g)(3). The record is replete with specific and articulable facts which the SWAT officers reasonably relied upon to conclude that the officers or others faced a dangerous situation without a protective sweep of his house.

Indiana Court of Appeals
Ball State University v. Jennifer Irons, In re the Marriage of: Jennifer Irons, Wife, and Scott Irons, Husband
45A03-1307-DR-296
Domestic relation. Dismisses Ball State’s appeal of the order to release the college transcript of Jennifer Irons’ child. This appeal was not properly brought under Appellate Rule 14(A)(3). Denies Jennifer Irons’ request for appellate attorney fees. Judge Brown concurs in part and dissents in part.

Indiana Court of Appeals
Randall Langford v. State of Indiana (NFP)
30A01-1309-CR-431
Criminal. Affirms conviction of Class A misdemeanor operating a motor vehicle while intoxicated.

Indiana Court of Appeals
HRC Hotels, LLC v. Metropolitan Board of Zoning Appeals Division II of Marion County, Indiana, Jeffrey R. Baumgarth and The Myers Y. Cooper Company
49A04-1307-PL-313
Civil plenary. Reverses dismissal of HRC Hotels’ amended petition for judicial review, which substituted I-465 LLC as the real party in interest instead of HRC Hotels. The standing requirements under I.C. 36-7-4-1603 are procedural rather than jurisdictional, so HRC Hotels’ alleged lack of standing when the petition was filed does not deprive the trial court of subject-matter jurisdiction. It should substitute I-465 LLC as a real party in interest and hear the merits of the petition for judicial review. Remands for further proceedings.

Indiana Court of Appeals
In re the Order for the Payment of Attorney Fees and Reimbursement of Expenses, State of Indiana v. Jeffrey Cook
48A02-1307-MI-615
Miscellaneous. Affirms order the state should pay Pendleton Correctional Facility inmate Jeffrey Cook’s appellate counsel $5,232.35 in attorney fees and expenses. I.C. 33-37-2-4, which recognizes the financial burden placed on counties containing state correctional facilities, and shifts the burden to the state to pay both trial and appellate costs.

Indiana Court of Appeals
Michael A. Ney v. Susan A. Ney (Beery) (NFP)
49A02-1309-DR-836
Domestic relation. Affirms denial of Michael Ney’s motion to decrease his child support obligation.

7th Circuit Court of Appeals
United States of America v. Stephanie L. Donelli
13-2548
Criminal. Affirms 60-month sentence for convictions of wire fraud and tax evasion. Donelli’s claim that the trial court erred by failing to consider her mental illness, bipolar II disorder, as a principal argument in mitigation was rejected because she failed to present the diagnosis as a principal argument in mitigation, and because she waived the argument by failing to object to her sentence apart from the fact that it was above the guidleline range.

7th Circuit Court of Appeals
The following opinion was issued after IL deadline Thursday.
United States of America v. Lori Hargis
12-2153
Criminal. Affirms 60-month sentence for Lori Hargis’ conviction of conspiracy to use fire to commit wire fraud for her role in recruiting a man to set fire to her home to collect insurance proceeds. Circuit judges rejected Hargis’ argument that the District Court erred when it adjusted her sentence from the guideline range of 15 to 21 months in prison, finding that the judge adequately explained his rationale for imposing sentence.

Indiana Court of Appeals
Jeffrey M. Miller and Cynthia S. Miller v. Federal Express Corporation and 500 Festival, Inc.
49A02-1307-PL-619
Civil plenary. Affirms summary judgment in favor of Federal Express and 500 Festival. The panel held that the entities were immune from the Millers’ claims of defamation and intentional infliction of emotional distress due to online comments critical to his leadership of Junior Achievement of Central Indiana. The entities are immune to the claims under the Communications Decency Act, which recognizes them as providers, not publishers, of Internet content.

Indiana Court of Appeals
David S. Healey v. State of Indiana (NFP)
33A01-1308-MI-368
Miscellaneous. Affirms the trial court’s order directing law enforcement and the Indiana Department of Correction to ensure that Healey’s information was no longer published on the Sex and Violent Offender Registry. Healey had appealed the order, arguing the trial court should have stated the 1995 amendment to the Sex and Violent Offender Registration Act was ex post facto punishment as applied to him and the trial court should have specifically noted any extraneous statements that it had made.

Indiana Supreme Court
Bryant E. Wilson v. State of Indiana
27S02-1309-CR-584
Criminal. Reverses trial court denial of motion to correct erroneous sentence and remands for resentencing. Holds that the Indiana Code does not authorize a sentence to be imposed in part as consecutive and in part as concurrent, and orders Wilson resentenced on a rape conviction for an aggregate term not to exceed 50 years in prison.