Opinions

Indiana Court of Appeals
Michael
Akens v. State of Indiana
49A05-0912-CR-687
Criminal. Affirms sentence imposed following guilty plea to child molesting. The trial court’s statement that Akens
could appeal his sentence wasn’t made until after the court had accepted the plea agreement and entered Akens’
sentence. The agreement included his express waiver of his right to appeal his sentence.

The Indiana Supreme Court, Court of Appeals, and Tax Court had posted no opinions at IL deadline.

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.

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.

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.

Indiana Court of Appeals
Derrick
Bush v. State of Indiana
49A02-0907-CR-682
Criminal. After considering state’s claims of waiver as presented in its petition for rehearing, reaffirms original
opinion reversing Bush’s conviction of carrying a handgun without a license. Court of Appeals originally reversed conviction
after it held a canine sniff and resulting warrantless search of Bush’s automobile violated the Fourth Amendment because
the state did not meet its burden of showing the traffic stop was not unreasonably prolonged or there was independent reasonable
suspicion to justify the canine sniff.

Indiana Court of Appeals
Clifton
Mauricio v. State of Indiana (NFP)
02A03-1002-PC-130
Post conviction. Affirms denial of petition for post-conviction relief.

Indiana Court of Appeals
Luiz
Alves v. Old National Bank f/k/a St. Joseph Capital Bank
71A03-0909-CV-416
Civil. Affirms denial of Alves’ Ind. Trial Rule 60(B) motion. Because he filed his motion more than one year after
the trial court granted summary judgment for Old National Bank and his earlier appeal of that judgment doesn’t toll
the 1-year limit applicable to motions brought pursuant to subsections (1)-(4), his motion is untimely. In addition, the evidence
on appeal doesn’t show the bank owed a duty to Alves or that the bank breached a duty by conspiring with his former
business partner to remove him from their company.

Indiana Supreme Court
League of Women Voters, et al. v. Todd Rokita
49S02-1001-CV-50
Civil. Affirms trial court dismissal of challenge to state’s voter identification law. The case presents only facial
constitutional challenges. It is within the power of the legislature to require voters to present photo ID at the polls. Justice
Boehm dissents.

Indiana Supreme Court
Andre
Peoples v. State of Indiana
79S02-0912-CR-549
Criminal. Affirms finding Peoples is a habitual offender. People’s instant dealing offense is to be counted in calculating
the total number of unrelated felony convictions an individual has for drug dealing. While a single felony drug conviction
is not enough to qualify a person for habitual offender status, a second such conviction is, be it a prior conviction or the
instant offense.

Indiana Supreme Court
Richard
Patrick Wilson and Billy Don Wilson v. Gene Isaacs, Sheriff of Cass County, and Brad Craven
09S05-1003-CV-149
Civil. Reverses grant of summary judgment as to the plaintiffs’ liability claims against the sheriff for the conduct
of Deputy Brad Craven. Affirms summary judgment for claims against Craven personally. Holds that a law enforcement officer's
use of force in excess of the reasonable force authorized by statute is not shielded from liability under the "enforcement
of a law" immunity provided in Indiana Code § 34-13-3-3(8) and that genuine issues of fact exist, precluding summary
judgment. Chief Justice Shepard dissents without opinion.

7th Circuit Court of Appeals

Lincoln National Life Insurance Co. v. Peter S. Bezich, individually and on behalf of a class of others similarly situated
10-8013
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Joseph Van Bokkelen
Civil. Remands to state court. Concludes Bezich’s claim “relates to the rights, duties, … and obligations relating to or created by or pursuant to … [a] security,” as defined in the 1933 Act, therefore the District Court has no jurisdiction.

Indiana Court of Appeals
Douglas
Covey v. State of Indiana
30A01-0906-CR-311
Criminal. Affirms convictions of dealing in methamphetamine as a Class A felony, possession of methamphetamine as a Class
B felony, possession of methamphetamine as a Class B felony, possession of marijuana as a Class A misdemeanor, and possession
of paraphernalia a Class A misdemeanor. The state presented sufficient evidence to prove that Crosby lived in an “apartment
complex” and thus Covey delivered the methamphetamine and possessed the methamphetamine in or within 1,000 feet of a
“family housing complex.” Because Covey never placed the mitigating factors of Indiana Code Section 35-48-4-16(b)
at issue, the trial court did not commit fundamental error by not instructing the jury on those mitigating factors.

Indiana Supreme Court
Indiana
Patient's Compensation Fund v. Gary Patrick
49S02-0909-CV-402
Civil. Reverses finding that the Adult Wrongful Death Statute applied to Patrick’s claim as personal representative
of his son’s estate and award to Patrick for his emotional distress claim. Because damages for emotional distress aren’t
available under the Adult Wrongful Death Statute, a parent can’t bring a derivative claim seeking such damages under
the Medical Malpractice Act.

7th Circuit Court of Appeals
Medical
Assurance Co., Inc. v. Amy Hellman, et al.
08-2887
U. S. District Court, Northern District of Indiana, Hammond Division, Judge Allen Sharp.
Civil. Medical Assurance appealed the District Court’s stay on the company’s declaratory judgment action. The
company asked the court to declare that Dr. Mark Weinberger breached his contract obligations when he disappeared while on
vacation and hasn’t been participating in his defense in more than 350 medical malpractice claims.

Indiana Court of Appeals
Philip
Cleer v. State of Indiana
49A02-0912-CR-1193
Criminal. Affirms conviction of Class C misdemeanor operating a vehicle with a blood alcohol content between 0.08 and 0.15.
Cleer didn’t establish that the operation of a sobriety checkpoint violates the separation of powers provision of the
Indiana Constitution.

Indiana Supreme Court
Christine
Dugan v. Mittal Steel, USA, Inc., et al.
45S05-1002-CV-121
Civil. Affirms summary judgment for Mittal Steel USA and Jay Komorowski. Of the two alleged occasions of defamation per se
at issue, the one asserted in paragraph 7 of Dugan’s complaint does not constitute defamation per se. Although the statement
alleged in paragraph 6 of the complaint qualifies as defamation per se, there is no genuine issue of fact undermining the
defendants' claim of qualified privilege.

Indiana Court of Appeals
Russel
Howard v. American Family Mutual Insurance Co.
87A01-0910-CV-512
Civil. Reverses grant of American Family’s motion to substitute the underinsured driver as the sole defendant at trial
in Howard’s suit following an accident. Indiana law does not allow the underinsured driver’s substitution as a
nominal defendant in these circumstances.

Indiana Court of Appeals
M.T.
v. State of Indiana
49A04-0908-JV-484
Juvenile. Reverses modification of probation and commitment to the Department of Correction. The state presented no evidence
of the probation violations it alleged and the state violated M.T.’s due process rights.

Indiana Court of Appeals
Jeffrey D. Boggs v. State of Indiana

40A01-0907-CR-346
Criminal. Affirms convictions of and 40-year sentence for Class B felony attempted dealing in methamphetamine, two counts
of Class C felony possession of a precursor while in possession of a firearm, Class D felony possession of methamphetamine,
Class A misdemeanor possession of marijuana, and finding that Boggs is a habitual offender. The police officer had a legitimate
reason for being on Boggs’ property and didn’t move anything to observe the gas tank inside of Boggs’ car.
The state presented sufficient evidence to prove the identity of the substances found and to support the habitual offender
finding. Remands for the trial court to correct the sentencing order.