Opinions

Indiana Court of Appeals 
RCM Phoenix Partners, LLC v. 2007 East Meadows, LP
18A-PL-1355
Civil Plenary. Affirms the Marion Superior Court’s denial of RCM Phoenix Partners’ slander of title claim against 2007 East Meadows, LP. Phoenix sued for slander of title to the apartment property it was trying to sell after Meadows filed a lis pendens notice. Finds that although Meadows did not raise the argument of privilege at the trial court, it was not barred from making that argument on appeal because it was seeking to affirm the trial court’s judgment. Also finds Meadows’ properly filed lis pendens notice was “absolutely privileged’ and Meadows cannot be held liable for slander of title.  

Indiana Court of Appeals
State of Indiana v. Michael Dwayne Bouye
18A-CR-1730
Criminal. Reverses the Marion Superior Court’s grant of Michael Bouye’s motion to suppress, finding there was reasonable suspicion for the police officer to pull over the car he was driving. Notes that despite the trial court’s statements, the officer had no obligation to conduct further license plate checks. Remands for further proceedings.

Indiana Supreme Court
J.W. v. State of Indiana
19S-JV-12
Juvenile. Grants transfer and dismisses without prejudice. Holds juveniles cannot immediately challenge on direct appeal any errors concerning their agreed delinquency adjudication. Finds that because juveniles are not eligible for post-conviction relief, they must assert any claims of error concerning their agreed judgment in a request for post-judgment relief filed with a juvenile court before pursuing their constitutional right to appeal. Also finds that juveniles who seek relief in post-judgment proceedings have a statutory right to counsel under Indiana Code article 31-32. Remands for proceedings.

Indiana Court of Appeals 
In the Matter of J.S. and M.S. (Minor Children), Children in Need of Services, and P.W. (Mother) and J.W. (Stepfather) v. Indiana Department of Child Services (mem. dec.)
18A-JC-1791
Juvenile CHINS. Affirms the adjudication of P.W. and J.W.’s two sons, J.S. and M.S., as children in need of services. Finds there is sufficient evidence to support the CHINS determination. Also finds of P.W. and J.W were not denied due process concerning J.S.’s placement.

Indiana Court of Appeals 
In the Matter of J.K., Child in Need of Services and C.K. (Mother) v. The Indiana Department of Child Services (mem. dec.)
18A-JC-1698
Juvenile CHINS. Reverses and remands the Randolph Circuit Court’s adjudication of J.K. as a child in need of services. Finds the trial court erred when it denied mother C.K.’s motion to dismiss the CHINS petition because too many days passed between the filing of the petition and the court’s hearing. Remands for the trial court to dismiss the CHINS petition without prejudice. 

Indiana Court of Appeals
Kenneth Aikman v. State of Indiana (mem. dec.)
18A-CR-1653
Criminal. Affirms the revocation of Kenneth Aikman’s probation and his placement in the Department of Correction to serve his six-year sentence. Finds the Marion Superior Court acted within its discretion.

7th Circuit Court of Appeals
Derrick Neely-Bey-Tarik-El v. Daniel Conley, et. al.
17-2980
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge William T. Lawrence.
Civil plenary. Affirms in part, reverses in part and remands Derrick Neely-Bey-Tarik-El’s prison religious freedom suit against officials at the Indiana Department of Correction and the Pendleton Correctional Industrial Facility. Affirms summary judgment for defendants on the grounds of qualified immunity on Neely-Bey’s claims for damages under the Free Exercise Clause and the Establishment Clause. Remands for consideration of his complaint for injunctive relief under the Establishment Clause and under the Religious Land Use and Institutionalized Persons Act, if the issues presented are not now moot.

Indiana Supreme Court 
In the Matter of Kirmille D. Lewis
18S-DI-102
Disciplinary action. Disbars Indianapolis attorney Kirmille Lewis. Finds Lewis committed attorney misconduct by, among other things, converting client funds, neglecting clients’ cases and engaging in a pattern of dishonesty. 

7th Circuit Court of Appeals
Shannon McHenry v. Nancy Berryhill
18-1691
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Magistrate Judge Matthew P. Brookman.
Civil. Vacates an administrative law judge’s dismissal of Shannon McHenry’s application for disability insurance benefits, finding the ALJ failed to acquire a medical expert to review a consequential MRI report. Remands for proceedings.

Indiana Court of Appeals 
Andrew W McWhorter v. State of Indiana 
33A01-1710-CR-2415
Criminal. Affirms Andrew McWhorter’s conviction for Class A felony voluntary manslaughter. Finds the Henry Circuit Court did not abuse its discretion in admitting video testimony from a deceased eye-witness. Also finds McWhorter’s due process rights were not violated during his prior trial, nor was he subjected to double jeopardy. Judge L. Mark. Bailey dissents with a separate opinion.

Indiana Court of Appeals
Roderick Vandrell Lewis v. State of Indiana,
18A-PC-767
Post-conviction. Affirms denial of post-conviction relief petition. While agreeing with Roderick Lewis that his attorney’s performance at sentencing was deficient, concludes Lewis’s 130-year sentence for his conviction of felony murder would not have been different if counsel had offered the mitigating circumstances raised at the post-conviction hearing. Finds the post-conviction court correctly determined that Lewis was required to establish prejudice under Strickland v. Washington, 466 U.S. 688, 694 (1984) rather than U.S. v. Cronic, 466 U.S. 648 (1984). Also holds appellate counsel was not ineffective.

Indiana Court of Appeals 
City of Gary, Indiana and Gary/Chicago International Airport Authority v. Auto-Owners Insurance Company
18A-CT-68
Civil tort. Affirms the Lake Superior Court’s grant of summary judgment in favor of Auto-Owners Insurance Company, a liability insurer for one of the defendants in a lawsuit seeking payment for cleaning up contaminated property. Finds the city’s complaint focused solely on the operation of Western Scrap and did not allege facts that might fall under the Auto-Owners policies that covered Recycle West. Also rules Auto-Owners designated sufficient evidence to make a prima facie showing that negated the airport’s separate contamination lawsuit. 

Indiana Court of Appeals
Douglas L. Leistner v. State of Indiana (mem. dec.)
18A-CR-491
Criminal. Affirms Douglas Leistner’s 40-year sentence for conviction of two counts of Level 1 felony child molesting and Class A misdemeanor public voyeurism. Finds the trial court erred when it refused to find Leistner to be a sexually violent predator. Remands to the Dubois Circuit Court to correct this error and enter a finding that Leistner is a sexually violent predator.

7th Circuit Court of Appeals
The Medical Protective Company of Fort Wayne, Indiana v. American International Specialty Lines Insurance Company, now known as AIG Specialty Insurance Company
18-1737
Appeal from the U.S. District Court for the Northern District of Indiana, Fort Wayne Division
Judge James T. Moody
Civil. Affirms Medical Protective Co. should have known that it was facing a potential claim. Reverses and remands grant of summary judgment in favor of AISLIC. Finds there is a genuine dispute of material fact as to whether MedPro should have settled with the Bramlett family for $200,000.

7th Circuit Court of Appeals
Gloria Terry v. Gary Community School Corporation
18-1270
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Magistrate Judge John E. Martin.
Civil. Affirms the district court’s grant of summary judgment in favor of Gary Community School Corporation against Gloria Terry’s claims of sex discrimination. Finds Terry did not provide evidence showing the district had a pretextual, discriminatory purpose for its actions in giving the principal position to a male candidate instead of her. Finds she was not discriminated against based on her sex, nor was she paid less in violation of Title VII and the Equal Pay Act.

Indiana Court of Appeals 
Alberto Baiza Rodriguez v. State of Indiana
20A03-1704-CR-724
Criminal. Reaffirms the original holding that the Elkhart Superior Court erred in finding Alberto Baiza Rodriguez had waived his right to seek modification of his sentence imposed pursuant to a fixed plea agreement. Finds the 2018 amendments to Indiana Code section 35-38-1-17 and 35-35-1-2 were not intended to apply retroactively, and even if they were, such an application would unconstitutionally impar Rodriguez’s contractual rights under his plea agreement with the state. Remands for further proceedings. Senior Judge Robert Rucker dissents with separate opinion. 

Indiana Court of Appeals 
Matthew Edward Greer v. State of Indiana
18A-CR-404
Criminal. Affirms Matthew Greer’s conviction for Level 1 felony child molesting; Level 3 felony vicarious sexual conduct; Level 4 felony incest; Level 6 felony performing sexual conduct in the presence of a minor; and Class A misdemeanor resisting law enforcement. Finds the prosecutor did not commit misconduct during D.G.’s deposition, and Greer failed to establish fundamental error.

Indiana Court of Appeals 
Kelly Sickafoose v. Mary Beery, Auditor of Adams County
18A-MI-1549
Miscellaneous. Affirms the denial of Kelly Sickafoose’s motion for rule to show cause why the Adams County auditor should not be held in contempt. Finds the Adams Superior Court did not err in the denial and that Sickafoose’s filings were frivolous. Also finds an award of appellate attorney’s fees is warranted. Remands to the trial court for a determination of the amount of appellate fees that should be awarded to the auditor. Judge Mark Bailey dissents with separate opinion. 

Indiana Court of Appeals 
Riley M. Randall v. State of Indiana
18A-CR-1574
Criminal. Affirms Riley Randall’s conviction for Level 3 felony robbery while armed with a deadly weapon. Finds the DeKalb Superior Court did not abuse its discretion in denying Randall’s proposed jury instruction on the duress defense because that defense was not available to Riley. 

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.”