Opinions

Indiana Court of Appeals
Steven P. Smith v. State of Indiana
20A-CR-1014
Criminal. Affirms Steven P. Smith’s conviction of Level 6 felony operating while intoxicated and the finding that he was a habitual vehicular substance offender. Finds the Elkhart Superior Court did not abuse its discretion when it held the jury trial in Smith’s absence because Smith knowingly and voluntarily waived his right to be present. Also finds the trial court did not commit fundamental error when it informed prospective jurors that the court has personally advised Smith of the trial date a few weeks prior.

Indiana Court of Appeals

Bobby L. Peck v. State of Indiana (mem. dec.)

20A-CR-1583

Criminal. Affirms Bobby Peck’s aggregate four-year sentence after he pleaded guilty to two counts of Level 6 felony identity deception and his admission to being a habitual offender. Finds the sentence imposed in Warren Circuit Court is not inappropriate.

The following opinions were posted after IL deadline on Friday:
7^th Circuit Court of Appeals
Hector Zelaya Diaz v. Jeffrey A. Rosen
20-1304
Petition for Review of a Decision of the Board of Immigration Appeals.
Agency. Finds the Board of Immigration Appeals did not exercise its discretion according to law in Hector Zelaya Diaz’s case. Grants the petition for review and remands for a proper exercise of discretion under the Board of Immigration Appeals’ precedent in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U, 27 I&N Dec. 17 (BIA 2017).

Indiana Court of Appeals
Patrick W. Scholl v. State of Indiana (mem. dec.)
20A-CR-1282
Criminal. Affirms the Elkhart Superior Court’s nunc pro tunc order correcting a clerical error in Patrick Scholl’s sentencing order after he pleaded guilty to Level 5 felony habitual traffic violator and Class A misdemeanor resisting law enforcement. Finds the trial court did not err.

Indiana Court of Appeals
Daveon L. Hendricks v. State of Indiana
20A-CR-690
Criminal. Affirms and reverses in part Daveon L. Hendricks’ convictions of felony murder and Level 2 felony conspiracy to commit robbery resulting in serious bodily injury. Finds that although a witness’s statement admitted at trial violated Indiana Evidence Rule 804(b)(3), the statement did not violate Hendricks’ rights. Also finds that the admission of recorded jail phone calls was not an error or a violation of Hendricks’ rights, and Hendricks has waived his challenge to witness identifications of him. Finally, finds sufficient evidence supports Hendricks’ convictions, but his criminal acts were a single transaction not subject to multiple punishments. Remands to the Delaware Circuit Court with instructions to vacate Hendricks’ conviction of conspiracy to commit robbery.

The following Indiana Tax Court opinion was posted after IL deadline Tuesday:
Elkhart County Assessor v. E R Carpenter Company, Inc.
20T-TA-3
Tax. Reverses the final determination of the Indiana Board of Tax Review establishing the values of E.R. Carpenter Co. Inc.’s real property for the 2012, 2015, 2016 and 2017 tax years. Finds the board’s excess office space adjustments were unsupported by substantial evidence and are arbitrary and capricious. Also finds the board must deal with evidence related to Parcel 3 in a meaningful way. Remands for the board to weigh the competing evidence regarding the value of Parcel 3, adjust the assessor’s 2012 and 2016 cost approach valuations accordingly, then apply the predetermined formula to the newly adjusted 2016 cost approach valuation for purposes of the 2015 and 2017 tax years.

The following 7^th Circuit Court of Appeals opinion was posted after IL deadline Monday:
Dustin John Higgs v. T.J. Watson, Warden
20-2129
Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. Chief Judge Jane Magnus-Stinson.
Civil. Affirms the dismissal of Dustin Higgs’ petition for habeas relief. Finds that Higgs’ challenge to his firearms convictions under United States v. Davis is not cognizable under 28 U.S.C. § 2241.

The following 7^th Circuit Court of Appeals opinion was posted after IL deadline Wednesday:
Brian Hope, et al. v. Commissioner of Indiana Department of Correction, et al.
19-2523
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Richard L. Young.
Civil. Affirms the district court’s finding that the requirement that six men who relocated or returned to Indiana after 2006 register under the Sex Offender Registration Act is unconstitutional. Finds the registration requirement violates the men’s right to travel. Judge Amy St. Eve dissents with separate opinion.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Tuesday:
Hortansia D. Lothridge v. Andrew M. Saul, Commissioner of Social Security
20-1269
Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. Senior Judge Joseph S. Van Bokkelen.
Civil. Vacates the district court’s order upholding the denial of disability benefits to Hortansia Lothridge. Finds the administrative law judge’s finding that Lothridge was not disabled was inconsistent with the finding that she had moderate limitations in concentration, persistence and pace. Remands for further proceedings.

7^th Circuit Court of Appeals
Cheryl Kellogg v. Ball State University, d/b/a Indiana Academy for Science, Mathematics and Humanities
20-1406
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Magistrate Judge Tim Baker.
Civil. Reverses the Indiana Southern District Court’s award of summary judgment to the Indiana Academy for Science, Mathematics and Humanities on Cheryl Kellogg’s claims under Title VII and the Equal Pay Act. Finds the district court’s finding that the academy proffered what the court believed were undisputed gender-neutral explanations for Kellogg’s pay was incorrect. Also finds David Williams’ statement contradicts the academy’s explanations for Kellogg’s pay and puts them in dispute. Finally, finds Kellogg can rely on Williams’ statement even though he uttered it outside the limitations window. Remands for further proceedings.

Indiana Court of Appeals
In Re the Matter of R.L., D.L., and L.L., Children in Need of Services, and A.L. (Mother) v. Indiana Department of Child Services (mem. dec.)
20A-JC-1259
Juvenile CHINS. Affirms the adjudication of mother A.L.’s children as children in need of services. Finds the evidence supports the Marion Superior Court’s determination by a preponderance of the evidence that mother and father R.L. are “unlikely to participate in the necessary care and treatment without the coercive intervention of the Court.”

Indiana Court of Appeals
Tax Analysts, et al. v. Indiana Economic Development Corporation
20A-PL-1141
Civil plenary. Affirms the Marion Superior Court order denying Tax Analysts’ request under the Access to Public Records Act for records of the city of Indianapolis’ response to requests for proposals related to the relocation of Amazon’s future second headquarters. Finds the trial court did not err in ruling that the records sought were exempt from disclosure because they were created during negotiations and did not include terms of a final offer of public financial resources.

The following 7^th Circuit Court of Appeals opinion was posted after IL deadline on Tuesday:

USA v. Eduardo Ramirez
20-1006
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Damon R. Leichty.
Criminal. Affirms Eduardo Ramirez’s 72-month prison sentence for pleading guilty to possessing a firearm as a felon. Finds that the U.S. District Court for the Northern District of Indiana appropriately handled his “aging out” argument as no data supported it. Finds that the district court reasonably justified its above-guidelines sentence and that it is substantively reasonable.

The following 7^th Circuit Court of Appeals opinion was posted after IL deadline Monday.
USA v. Hector S. Castro-Aguirre
19-1074
Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Criminal. Affirms the various drug and conspiracy convictions and sentences of Hector Saul Castro-Aguirre, John Ramirez-Prado, and Rafael Rojas-Reyes. However, vacates Jose Manuel Carrillo-Tremillo’s conviction and sentence for conspiracy to launder money upon finding no evidence that would permit a rational trier of fact to connect Carrillo-Tremillo to a conspiracy to launder money. Remands his case for resentencing.

Indiana Court of Appeals
Paula Henderson v. New Wineskin Ministries Corporation
20A-CT-1317
Civil tort. Affirms the Marion Superior Court’s grant of summary judgment to New Wineskin Ministries Corporation on Paula Henderson’s negligence complaint after she slipped and fell in the church parking lot. Finds “premises” as used in Indiana Code Section 34-31-7-2 includes parking lots and the undisputed evidence shows the danger that caused Henderson’s injury was not hidden. Thus, the trial court did not err in granting summary judgment to New Wineskin.

The following Supreme Court opinion was posted after IL deadline on Tuesday.
Brian J. Allen v. State of Indiana
20S-XP-506
Expungement. Reverses the Dearborn Superior Court’s order denying Brian Allen’s petition for expungement and remands with instructions for the court to reconsider its decision consistent with the Supreme Court’s opinion. Finds Allen was eligible for an expungement and that the trial court didn’t indicate why it denied Allen’s petition for expungement. 

Indiana Court of Appeals
Michael Wisdom v. State of Indiana
20A-CR-931
Criminal. Affirms Michael Wisdom’s 16-year sentence for his conviction of Level 4 possession of a schedule II narcotic drug and a gang-related sentencing enhancement. Finds Wisdom was not twice prosecuted for the same offense in violation of the Indiana Constitution. Also finds the Vanderburgh Circuit Court did not abuse its discretion by admitting into evidence posts from Facebook and Instagram.

Indiana Court of Appeals
Julianne Solomon, Personal Representative of The Estate of Paul J. Martin v. Lia Lindsey  
20A-PL-822
Civil plenary. Affirms the Marion Superior Court’s grant of summary judgment to Lia Lindsey concerning the rightful owner of the proceeds from an investment account held by Paul Martin and Lindsey as joint tenants with rights of survivorship. Finds the proceeds belong to Lindsey as the surviving joint account owner as a matter of law.

7^th Circuit Court of Appeals
United States of America v. Tanisha A. Banks
19-3245
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Judge Theresa L. Springmann.
Criminal. Vacates the judgment against Tanisha Banks after presuming that the risk of juror coercion was clear and obvious and that it prejudiced Banks and seriously affected the fairness of the proceedings. Finds the totality of the circumstances created a clear and obvious risk of juror coercion. Remands for a new trial.

Indiana Court of Appeals
State of Indiana v. Emmanuel Torres, et al.
20A-CR-943
Criminal. Reverses the grant of Ramon Sanchez’s and Emmanuel Torres’ motions to suppress evidence in Clinton Superior Court obtained after their vehicles were stopped for failing to use their turn signals for at least 200 feet before turning at a stop sign. Finds that Sanchez’s and Torres’ failure to signal a turn until they reached a stop sign was enough for Frankfort officer Kaleb Thompson to establish a reasonable belief that Indiana Code § 9-21-8-25 had been violated. Remands for further proceedings. Judge Paul Mathias concurs with separate opinion.