Indiana Court of Appeals
Timothy W. Allen v. State of Indiana (mem. dec.)
18A-CR-2952
Criminal. Dismisses Timothy Allen’s appeal of his status as a habitual offender. Finds Allen cannot seek to challenge his habitual offender enhancement on direct appeal as a result of his guilty plea to conviction of Level 5 felonies dealing in methamphetamine and possession of methamphetamine.
The following 7th Circuit Court of Appeals opinions were posted after IL deadline Thursday.
USA v. Vahan Kelerchian
18-1320
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Senior Judge Joseph S. Van Bokkelen.
Criminal. Affirms firearms dealer Vahan Kelerchian’s conviction of four counts each of conspiracy and making false writings and one count of money laundering for his role in criminal conspiracies with Lake County law enforcement officers to fool manufacturers into thinking they were selling machine guns and laser sights to local police forces when they were instead going into private hands. Finds no error in instructing the jury, no prosecutorial conduct or other errors or abuses among the issues Kelerchian raised on appeal.
7th Circuit Court of Appeals
Whole Woman’s Health Alliance, et al. v. Curtis T. Hill, Jr., et al.
19-2051
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Senior Judge Sarah Evans Barker.
Civil. Affirms the Indiana Southern District Court’s issuance of a preliminary injunction on behalf of Whole Woman’s Health Alliance, as modified in accordance with the 7th Circuit Court of Appeals’ opinion. Finds the Alliance has shown a likelihood of success on the merits of its undue burden challenge. Also finds no clear error in the district court’s conclusion that Indiana did not give Alliance’s licensing application “a fair shake.”
The following 7th Circuit Court of Appeals opinion was posted after IL deadline Tuesday.
USA v. Curtis L. Johnson
18-2350
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. District Judge Michael J. Reagan.
Criminal. Dismisses Curtis Johnson’s appeal of his 21-month sentence for conviction of wire fraud and upholds the appeal waiver in his guilty plea agreement. Finds no fundamental error and that Johnson’s circumstances do not present a due process exception to the rule that most written appeal waivers are effective. Concludes Johnson does not fall outside of the limits to an appeal waiver.
Indiana Court of Appeals
Clifton E. Sharp v. State of Indiana, and Brianna Finney
19A-CR-467
Criminal. Affirms and reverses in part the Clark Circuit Court’s ruling that the Estate of Clifton Sharp had standing to make a claim for bond money posted for Sharp by Brianna Finney, but summary judgment should be entered in favor of Finney. Finds the trial court properly concluded the estate had standing, but improperly entered judgment beyond that issue because there are factual matters to be developed. Remands for proceedings.
7th Circuit Court of Appeals
Christopher Regan and Northwest Indiana Creative Investors Association, Inc. v. City of Hammond, Indiana
18-3051
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Judge James T. Moody.
Civil. Affirms the entry of summary judgment against Christopher Regan and Northwest Indiana Creative Investors Association Inc. Finds the city of Hammond’s licensing ordinance does not discriminate based on the domicile of a homeowner in name or effect and has the support of a rational basis, so it poses no problem under the dormant commerce clause.
Indiana Court of Appeals
Willie J. Bailey v. State of Indiana
18A-CR-2317
Criminal. Affirms Willie Bailey’s convictions of Level 2 felony counts of dealing in cocaine and dealing in narcotic drug; Level 6 felony counts of possession of a narcotic drug and felony escape for knowingly violating a home detention order; Class B misdemeanor possession of marijuana; and the Marion Superior Court’s habitual offender sentencing enhancement. Finds Bailey’s rights were not violated in searches of his vehicle at a gas station or two addresses associated with him; that the warrant authorizing those searches was supported by probable cause; that the evidence connecting Bailey with drugs found at those homes was sufficient to support his conviction; and that prosecutors’ closing arguments were not fundamental error.
Indiana Court of Appeals
John Laboa v. State of Indiana
18A-CR-00951
Criminal. Finds the Floyd Superior Court erred in the procedure it used to dispose of John Laboa’s petition for post-conviction relief. Finds the trial court’s judgment was not decided as provided by the post-conviction rules. Remands with instructions to either order the cause to be submitted by affidavit, allowing Laboa time to gather and submit affidavits he feels are relevant to his allegations, or hold an evidentiary hearing.
The following 7th Circuit Court of Appeals opinions were posted after IL Deadline Tuesday.
Dustin Higgs v. United States Park Police
18-2826, 18-2937
Appeals from the United States District Court for the Southern District of Indiana, Terre Haute Division. Chief Judge Jane Magnus-Stinson.
Civil. Finds the Southern District Court erred in finding that the public interest prevailed over the privacy interests of the individuals involved in evidence for Dustin Higgs’ murder of three women and should have refused disclosure of those documents pursuant to Freedom of Information Act Exemptions 6 and 7(C). Affirms that certain documents were properly withheld under FOIA Exemption 7(D).
The following 7th Circuit Court of Appeals opinion was posted after IL deadline Monday.
USA v. Lindani Mzembe, et al.
16-4258, 17-1060, 17-1412, 17-2268 & 17-2269
Appeals from the United States District Court for the Northern District of Indiana, South Bend Division. Senior Judge Robert L. Miller Jr.
Criminal. Affirms Ivan Brazier’s 444-month sentence for conviction of kidnapping and making a ransom demand. Reverses and vacates Lindani Mzembe and Derek Fields’ 18 U.S.C. § 924(c) convictions and sentences for discharging a firearm in furtherance of a crime of violence, remanding their cases for resentencing based on later decisions issued by the U.S. Supreme Court and 7th Circuit Court of Appeals.
Indiana Court of Appeals
Neurological Institute and Specialty Centers, P.C. v. Subhasree Misra, M.D. (mem. dec.)
18A-PL-3039
Civil plenary. Affirms the denial of Neurological Institute and Specialty Centers, P.C.’s motion for preliminary injunction to enforce a restrictive covenant preventing Dr. Subhasree Misra from practicing medicine independently or as an employee for an organization within five Indiana counties for two years after the expiration or termination of her employment agreement with NISC. Finds the Lake Circuit Court did not abuse its discretion in denying NISC’s motion for preliminary injunction.
The following 7th Circuit Court of Appeals opinions were posted after IL deadline Thursday.
Rita Boucher v. United States Department of Agriculture, et al.
16-1654
Appeal from the United States District Court for the Southern District of Indiana. Judge Tanya Walton Pratt.
Civil. Reverses the district court’s affirmance of the USDA’s final determination that the removal of nine trees in the 1990s by the late David Boucher converted several acres of wetlands into farmlands, rendering the Bouchers’ entire farm ineligible for certain USDA benefits. Finds the final determination was arbitrary and capricious. Remands to the district court to enter judgment and grant appropriate relief to Rita Boucher.
The following Indiana Supreme Court decisions were filed Wednesday but were not included in Wednesday’s Indiana Lawyer Daily.
Alberto Baiza Rodriguez v. State of Indiana
18S-CR-143
Criminal. Affirms the Elkhart Superior Court’s judgment that it was not authorized to modify Alberto Baiza Rodriguez’s sentence imposed under his fixed-term plea agreement. Finds the decades-old rule regarding sentence modification — that courts may modify a sentence only if the new sentence would not violate the terms of a valid plea agreement had the new sentence been originally imposed — remains undisturbed. Also finds the Legislature’s amendments to Indiana Code § 35-38-1-17 statute did not alter the settled law of Pannarale v. State, 638 N.E.2d 1247 (Ind. 1994), and its progeny.
The following 7th Circuit Court of Appeals opinion was posted after IL deadline Tuesday.
Eric Mapes v. State of Indiana
19-1384
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Chief Judge Jane Magnus-Stinson.
Civil. Affirms the Southern District Court’s refusal to recruit pro bono counsel for Eric Mapes. Finds the district judge did not abuse her discretion when she denied Mapes request for pro bono counsel, provided an opportunity to amend, and offered instructions on how best to do so without a lawyer.
Indiana Court of Appeals
In the Matter of: R.G. (Child) and M.M. (Mother) and M.G. (Father) v. Indiana Department of Child Services
19A-JC-598
Juvenile CHINS. Affirms the Bartholomew Circuit Court’s order adjudicating R.G. to be a child in need of services. Finds that although the trial court erred in permitting a witness for the Department of Child Services to testify telephonically at the fact-finding hearing, the error is harmless in light of other probative evidence. Also finds the trial court did not abuse its discretion in ordering parents to participate in services.
Indiana Court of Appeals
A S v. R E, et al.
19A-AD-00240
Adoption. Affirms the Morgan Superior Court’s decree of adoption filed by grandparents R.S.E. and R.K.E. to adopt their minor grandchild C.A.H. against father A.C.S.’s wishes. Finds the trial court did not err in finding that father’s consent to the adoption was irrevocably implied pursuant to Indiana Code section 31-19-10-1.2(g) because he failed to appear for the final hearing. Chief Judge Nancy Vaidik dissents with separate opinion.
Indiana Court of Appeals
Jim Brugh v. James L. Sailors, Cass County Commission, et al.
18A-PL-2730
Civil plenary. Affirms and reverses in part the Cass Superior Court’s determination that the City of Logansport had complied with an agreed judgment between the city, county and Jim Brugh concerning a Logansport war memorial. Finds the city did not comply with a section of the agreed judgment holding that it would execute a deed of dedication transferring the memorial jointly to itself and the county, expressly referring to its dedication and preservation as a war memorial pursuant to Indiana Code §§ 10-18-4-2(b)(3) and 10-18-4-12. Also finds Brugh wholly failed to prove the Cass County Council acted in contempt. Finally, finds the Cass County Council acted within its authority as the fiscal branch of county government and did not willfully disobey the agreed judgment. Remands for further proceedings regarding the enforcement of the deed provision of the agreed judgment.
The following 7th Circuit Court of Appeals opinion was posted after IL Deadline Wednesday.
Tara Crump v. Andrew M. Saul
18-3491
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Philip P. Simon.
Civil. Vacates the Northern District Court’s affirmation of an administrative law judge’s denial of disability benefits for Tara Crump. Finds the ALJ did not adequately account for Crump’s difficulties with concentration, persistence or pace in the workplace. Remands to the Social Security Administration.
The following 7th Circuit Court opinion was posted after IL deadline Tuesday.
USA v. Douglas Jackson
15-3693
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Robert L. Miller, Jr.
Criminal. Vacates Douglas Jackson’s and Antwon Jenkins’ conviction of using or carrying a firearm to commit a federal crime of violence and remands for resentencing. Finds §924(c)(3)(B) is unconstitutionally vague pursuant to the United States Supreme Court’s ruling in light of its decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018).
Indiana Court of Appeals
Randy Rogers v. State of Indiana
18A-CR-3023
Criminal. Affirms Randy Rogers’ conviction in Marion Superior Court of Class A misdemeanor invasion of privacy, finding that text messages sent for his phone to his victim were properly admitted as evidence in his bench trial.