Opinions

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Friday:
USA v. Edward Bishop
18-2019
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Robert L. Miller Jr.
Criminal. Affirms Edward Bishop’s conviction of discharging a firearm during a drug transaction. Finds the warrant authorizing the search of his cellphone did not violate the Fourth Amendment’s requirement that every warrant “particularly describ[e] the place to be searched, and the persons or things to be seized.”

The following 7th Circuit Court of Appeals opinions were posted after IL deadline on Thursday:
Lorenzo D. Roundtree v. Jeffrey E. Krueger, United States Penitentiary, Terre Haute
14-3696
Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. Chief Judge Jane E. Magnus-Stinson.
Civil. Affirms the district court’s rejection of Lorenzo Roundtree’s attack on his life sentence for selling heroin that led to a user’s death. Finds that the 7th Circuit has recognized that Burrage v. United States cannot be used to litigate under 28 United States Code section 2241 if 18 U.S.C. 2255 could have been or was used to raise the issue, so because Roundtree unsuccessfully challenged his sentence under section 2255 in the 8th Circuit Court of Appeals, relief under section 2241 is not available in the 7th Circuit.

Indiana Court of Appeals 
Collins Asset Group, LLC v. Alkhemer Alialy
18A-CC-1160
Civil collection. Affirms the Hamilton Superior Court’s dismissal Collins Asset Group, LLC’s complaint against Alkhemer Alialy. Finds that the trial court did not err in granting Alialy’s motion to dismiss. Also finds the trial court correctly concluded that CAG’s action was barred by the six-year statute of limitations pursuant to Indiana Code section 34-11-2-9.

Indiana Supreme Court
Kevin Andrew Schuler v. State of Indiana
31S00-1703-LW-134
Life without parole. Affirms the Harrison Superior Court’s conviction of Kevin Shuler for murder. Finds Shuler’s Miranda rights were not violated, there was sufficient evidence to support his 65-year sentence, and Shuler’s sentence is appropriate. Remands for a new, more specific sentencing statement consistent with Harrison v. State.

Indiana Supreme Court
Lori Barcroft v. State of Indiana
18S-CR-135
Criminal. Affirms Lori Barcroft’s conviction of guilty but mentally ill in the murder of Jaman Iseminger. Finds that evidence of Barcroft’s demeanor, taken together with the flaws in the expert opinion testimony and the absence of a well-documented history of mental illness, was sufficient to support an inference of sanity. Also finds that a factfinder may discredit expert testimony and rely instead on other probative evidence from which to infer a defendant’s sanity. Justice Christopher Goff dissents with separate opinion, which Justice Geoffrey Slaughter joins.

7th Circuit Court of Appeals
United States of America v. Robert D. Taylor
18-1545
Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. Judge Tanya Walton Pratt.
Criminal. Affirms Robert Taylor’s sentence of 135 months in prison for his conviction of one count of possession of child pornography. Finds the government did not breach Taylor’s plea agreement and fulfilled its obligation to advocate for a within-guidelines sentence. Also finds Taylor’s stipulations in the agreement waived his right to appeal two sentencing enhancements. Finally, finds the district court did not err in sentencing Taylor.

Indiana Court of Appeals 
James E. Jarman v. State of Indiana
18A-CR-1034
Criminal. Reverses James E. Jarman’s convictions for methamphetamine, dealing in a synthetic drug or synthetic drug lookalike substance and possession of paraphernalia. Finds although Jarman signed a waiver consent to searches without a warrant or probable cause, he did not “unambiguously authorize” suspicionless searches of his person. 

Indiana Court of Appeals
Brian Harold Connor v. State of Indiana
18A-CR-442
Criminal. Reverses Brian Connor’s conviction of Class C misdemeanor operating a motor vehicle with an alcohol concentration equivalent to at least 0.08 grams of alcohol but less than 0.15 grams of alcohol per 210 liters of the person’s breath. Finds the Marion Superior Court abused its discretion in admitting Connor’s chemical breath test into evidence when an Indianapolis Metropolitan Police Department captain administered the test using a procedure not approved by the Department of Toxicology.

Indiana Court of Appeals
Anonymous Physician, Anonymous Medical Practice, Anonymous Hospital v. Michelle Kendra, as Personal Representative of the Estate of John Kendra, Deceased
18A-CT-323
Civil Tort. Reverses the Lake Superior Court’s denial of summary judgment in favor of Anonymous Physician, Anonymous Medical Practice and Anonymous Hospital. Finds Michelle Kendra’s knowledge of her father’s heart problems and suffering after he was implanted with a pacemaker was enough to trigger a duty to investigate the possibility of medical malpractice.

Indiana Court of Appeals
Trey A. Smith v. State of Indiana
18A-CR-1023
Criminal. Affirms Trey Smith’s conviction of Level 6 felony theft. Finds the hearsay testimony offered by a Columbus police officer was a harmless error because the conviction was supported by independent evidence of guilt. Reverses sua sponte Smith’s conviction of Class B misdemeanor criminal mischief. Holds the conviction violates the rule against double jeopardy. Remands to the Bartholomew Superior Court with instructions to vacate the criminal mischief conviction.

Indiana Court of Appeals 
Oscar Flores v. State of Indiana
18A-CR-1632
Criminal. Reverses and remands with instructions for the Marion Superior Court to vacate one of Oscar Flores’ convictions for Level 4 felony child molesting. Finds that both convictions occurred during a single transaction, so one should be vacated under the continuous-crime doctrine.

Indiana Court of Appeals
In the Matter of the Termination of the Parent-Child Relationship of Z.S., Minor Child, and F.S., Mother v. Indiana Department of Child Services, and Child Advocates, Inc. (mem. dec.)
18A-JT-1203
Juvenile termination of parental rights. Affirms the involuntary termination of F.S.’s parental rights to Z.S. Finds the Marion Superior Court did not err.

Indiana Court of Appeals
J.S. v. State of Indiana
18A-JV-826
Juvenile. Affirms J.S.’s adjudication as a delinquent child for possession of a firearm and resisting law enforcement as Class A misdemeanors if committed by an adult. Finds there is sufficient evidence to support J.S.’s true finding for dangerous possession of a firearm.

Indiana Supreme Court 
In the Matter of Tia R. Brewer
18S-DI-299
Disciplinary. Suspends Marion attorney Tia Brewer from the practice of law for at least three years without automatic reinstatement. Finds Brewer committed attorney misconduct by neglecting clients’ cases, failing to appear at show cause hearings, failing to withdraw from cases when her abuse of cocaine rendered her unable to assist her clients, committing a crime that reflects adversely on her fitness as a lawyer and failing to cooperate with the disciplinary process. Justice Christopher Goff did not participate.

Indiana Court of Appeals
Jose Andrade v. City of Hammond and Hammond Board of Public Works and Safety
18A-MI-1199
Miscellaneous. Affirms the Lake Superior Court’s order affirming a decision made by the Hammond Board of Public Works and Safety that Jose Andrade restore a 1927 home he owns to a single-family dwelling. Finds the board did not exceed its statutory authority when it issued the order. Finds there is sufficient evidence to prove the home was intended as a single-family dwelling. Lastly, finds the city’s failure to comply with Andrade’s discovery request does not merit reversal.

7th Circuit Court 
Richard N. Bell v. Vacuforce, LLC, Appeals of: Paul B. Overhauser
18-1368, 18-1159
Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge William Lawrence. 
Civil. Affirms the Southern District Court’s imposition of sanctions on Paul Overhauser for filing a motion found to be frivolous and misleading. Finds the district court did not abuse its discretion in imposing sanctions for filing a motion for fees that was baseless and rested on “an infirm factual foundation.” Also rejects Overhauser’s notion that a party can “prevail” for purposes of a fee-shifting statute by paying a settlement and obtaining a dismissal with prejudice.  

Indiana Court of Appeals 
Yusuf Hotep-El v. State of Indiana
18A-CR-477
Criminal. Affirms the Marion Superior Court’s termination of Yusuf Hotep-El’s self-representation. Finds the trial court did not err when it terminated Hotep-El’s self-representation in order to determine his competency to stand trial. Also finds the trial court was correct in not reinstating Hotep-El’s pro se status based on the conclusion that he sought to use the courtroom for deliberate disruption of the proceedings.

Indiana Court of Appeals 
The State of Indiana, ex rel. Harmeyer v. The Kroger Co., Kroger Limited Partnership I, KRGP, Inc., Payless Super Markets, Inc., and Ralphs Grocery Company
18A-PL-806
Civil plenary. Affirms the Marion Superior Court’s dismissal of Michael Harmeyer’s complaint against several grocery stores that operate in Indiana alleging they violated Indiana’s False Claims and Whistleblower Protection Act. Finds the trial court did not err in finding Harmeyer’s complaint was not sufficient under Indiana Trial Rule 9(B). 

7th Circuit Court of Appeals
USA v. Joshua C. Bolin
18-2208
Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. Judge Richard Young.
Criminal. Affirms the U.S. District Court for the Southern District of Indiana’s imposition of a $5,000 additional special assessment to Joshua Bolin, in addition to the mandatory special assessment under 18 U.S.C. §§ 3013 and 3014. Finds Bolin waived his claim.

Indiana Court of Appeals
Indiana University Health Southern Indiana Physicians, Inc., et al. v. Charlene Noel
18A-CT-1299
Civil tort. Affirms the denial of Indiana University Health Southern Indiana Physicians, Inc., Sarah Whiteman, NP, and Dr. Carlito Sabandal’s motion to transfer venue in Charlene Noel’s medical malpractice complaint from Marion County to Lawrence County. Finds Indiana Code section 23-0.5-4-12 conflicts with Trial Rule 75(A)(4) as interpreted by the Indiana Supreme Court, making the statute a nullity.