Opinions Aug. 31, 2017

The following Indiana Supreme Court opinion was posted after IL deadline Wednesday:
Michael R. Pilkington v. Karen A. Pilkington
18S02-1708-PL-554
Civil plenary. Grants transfer, adopts and incorporates by reference the Indiana Court of Appeals decision to reverse the dismissal of Michael Pilkington’s complaint with prejudice. Finds the Delaware Circuit Court has subject matter jurisdiction to determine what interest in a trust created by Michael Pilkington’s deceased father he sold to his stepmother, Karen Pilkington, in Chapter 7 bankruptcy proceedings. Remands for further proceedings.

Thursday opinions
7th Circuit Court of Appeals
Otis B. Grant v. The Trustees of Indiana University, et al.
16-1958
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Civil. Affirms the grant of summary judgment in favor of Indiana University, its trustees and several of its employees on Otis Grant’s claims arising out of his termination. Finds Grant has failed to produce admissible evidence demonstrating there exists any disputed issue of fact as to his claims of race discrimination, retaliation, due process violations, defamation and breach of contract.

Indiana Supreme Court
In the Matter of: John Downey Pierce
61S00-1703-DI-153
Disciplinary. Disbars John Downey Pierce for committing attorney misconduct by, among other things, mismanaging his trust account, converting client funds, disobeying a court order and failing to cooperate with the disciplinary process. Justices Mark Massa and Geoffrey Slaughter concur in the findings, dissent from the sanctions and would impose a three-year suspension without automatic reinstatement.

Indiana Court of Appeals
Christopher K. Kesling, DDS, MS, Adam Kesling and Emily Kesling, et al. v. Andrew C. Kesling, individually and as Trustee of the Andrew C. Kesling Trust, et al.
46A03-1701-MI-64
Miscellaneous. Affirms the LaPorte Superior Court’s entry of summary judgment in favor of TP Orthodontics Inc., Andrew C. Kesling and the Andrew C. Kesling Trust dated March 20, 2001. Finds the trial court did not abuse its discretion. Judge Michael Barnes dissents with separate opinion.

Jordan Stafford v. State of Indiana
49A05-1609-CR-2012
Criminal. Reverses in part Jordan Stafford’s convictions on two counts of Class C felony reckless operation in a highway work zone causing death and vacates one of Stafford’s convictions. Finds the case of Kelly v. State, 59 N.E.2d 25, 26 (Ind. 1989), requires vacating of one of the Class C felony convictions. Remands for resentencing on the remaining Class C felony conviction.  

In Re: the Termination of the Parent-Child Relationship of W.M.L. and A.J.L., R.R. (Guardian ad Litem) v. E.L. (Mother), O.H. (Father), et al.
02A03-1703-JT-479
Juvenile termination of parental rights. Affirms the denial of the Department of Child Services’ petition to terminate the relationship between parents E.L. and O.H. and their children, W.L. and A.H. Finds the Allen Superior Court did not err in denying DCS’ petition to terminate.

Brandis McCollum (formerly Brandis Adams) v. Indiana Family and Social Services Administration
08A04-1703-GU-614
Guardianship. Affirms and reverses in part the Carroll Circuit Court’s finding that Brandis McCollum was in civil contempt of court for failing to pay her child support as ordered and its sanction of 150 weeks’ incarceration. Finds there was sufficient evidence McCollum willfully disobeyed the trial court’s order. Also finds the trial court’s sanction was improperly punitive. Remands with instructions for the trial court to impose a contempt sanction consistent with the Indiana Court of Appeals’ opinion.

Adrian Durden v. State of Indiana
49A02-1701-CR-188
Criminal. Reverses Adrian Durden’s conviction for murder. Finds Durden has established that reversal is warranted after a juror was removed after the jury had begun its deliberations. Remands for a new trial.

Douglas Kirby v. State of Indiana
34A02-1609-CR-2060
Criminal. Reverses the post-conviction court’s judgment that the Unlawful Entry Statute applies to Douglas Kirby, but leaves his conviction for Class D felony child solicitation in place. Finds that as applied to Kirby, the statute is unconstitutional as it constitutes a retroactive punishment in violation of the Ex Post Facto Clause.

Samuel L. Hobbs, Jr. v. Keith Butts
33A01-1704-MI-734
Miscellaneous. Affirms the summary disposition of Samuel L. Hobbs Jr.’s petition for a writ of habeas corpus. Finds the record does not demonstrate Hobbs’ sentence for criminal deviate conduct was discharged, suspended or “turned over” to a new commitment by the parole board. Also finds Hobbs has not shown he is being illegally restrained. Finally, finds the Henry Circuit Court did not err when it denied Hobbs’ habeas petition.  

Marion Longfellow v. State of Indiana (mem. dec.)
34A02-1704-CR-817
Criminal. Reverses Marion Longfellow’s sentence to an executed term of 10 years in the Indiana Department of Correction for his conviction of child molesting as a Level 4 felony. Finds the 10-year sentence is inappropriate. Remands with instructions to the Howard Superior Court to order Longfellow to serve the advisory sentence of six years executed with the DOC.

Moore Custom Trailers v. Bryan J. Lynch (mem. dec.)
20A05-1611-SC-2520
Small claims. Affirms the judgment in favor of Bryan J. Lynch in the amount of $6,000. Finds the small claims court’s determination that the agreement between Lynch and Moore Custom Trailers included a provision that Lynch would receive 20 percent of the billed labor costs is not clearly erroneous.

Mark A. Williams v. State of Indiana (mem. dec.)
45A03-1702-CR-346
Criminal. Affirms Mark A. Williams’ sentence to consecutive terms of 55 years, fully executed in the Indiana Department of Correction, for his convictions of two counts of felony murder committed while perpetrating a robbery. Finds the Lake Superior Court did not abuse its sentencing discretion by imposing the maximum sentence permitted under Williams’ plea agreement. Also finds Williams’ sentence is not inappropriate in light of the nature of the offense and his character.

Robert Paul Harris, III v. Melanie Harris (mem. dec.)
32A01-1702-DR-302
Domestic relation. Reverses the denial of Robert Paul Harris III’s request for modification of a child support order. Finds the Hendricks Superior Court’s denial of his petition is clearly erroneous. Remands for a recalculation of child support. Judge Terry Crone concurs in result with separate opinion.

Jay Lavender v. State of Indiana (mem. dec.)
45A03-1701-CR-105
Criminal. Affirms Jay Gary Lavender’s conviction for Class B misdemeanor reckless operation of a tractor-trailer. Finds the Lake Superior Court did not abuse its discretion by refusing Lavender’s proposed jury instruction. Also finds there was sufficient evidence to sustain Lavender’s conviction.

Clarence Butler v. State of Indiana (mem. dec.)
53A01-1703-CR-468
Criminal. Affirms the denial of Clarence Butler’s motion to withdraw guilty pleas. Finds the Monroe Circuit Court did not err in denying Butler’s motion to withdraw.

In the Termination of the Parent-Child Relationship of: J.B. (Minor Child) and S.B. (Father) v. The Indiana Department of Child Services (mem. dec.)
49A04-1705-JT-1027
Juvenile termination of parental rights. Affirms the termination of S.B.’s parental rights to J.B. Finds that assuming it was error to admit challenged evidence during S.B.’s evidentiary hearing, such error was harmless. Also finds S.B. does not challenge the sufficiency of the evidence to support the juvenile court’s determination that DCS proved each of the required factors set forth in Indiana Code 31-35-2-4(b).

J.N. v. State of Indiana (mem. dec.)
43A04-1703-JV-613
Juvenile. Affirms J.N.’s adjudication for committing an act that would constitute Level 3 felony child molesting if committed by an adult. Finds the trial court did not abuse its discretion in determining that J.N. and his mother were afforded an opportunity for meaningful consultation. Also finds the totality of the circumstances supports the trial court’s determination that the juvenile wavier was knowingly and voluntarily made.

Ricky W. Outlaw v. State of Indiana (mem. dec.)
02A05-1703-CR-545
Criminal. Affirms Ricky Outlaw’s conviction of Class A misdemeanor battery. Finds there is sufficient evidence to support his conviction.

In the Termination of the Parent-Child Relationship of: K.M.W. & K.W. (Minor Children), and M.W. (Mother) & D.W. (Father) v. The Indiana Department of Child Services (mem. dec.)
59A04-1703-JT-590
Juvenile termination of parental rights. Affirms the termination of M.W. and D.W.’s parental rights. Finds the Indiana Department of Child Services established by clear and convincing evidence the requisite elements to support the termination.

Scott Ian McClendon v. State of Indiana (mem. dec.)
79A04-1703-CR-459
Criminal. Vacates Scott Ian McClendon’s convictions for Level 6 felony conspiracy to commit theft and Level 6 felony conspiracy to commit forgery and his sentence to an aggregate of four years. Finds McClendon’s sentence on the forgery count exceeded the cap contained in the original written plea agreement. Also finds the parties and the Tippecanoe Superior Court intended to amend the plea agreement’s sentence caps, but the parties did not effectively amend the written plea agreement. Remands for further proceedings.

Jonathen R. Lovelace v. State of Indiana (mem. dec.)
43A03-1703-CR-596
Criminal. Affirms Jonathen R. Lovelace’s conviction of Level 4 felony child molesting. Finds that because Lovelace did not make a contemporaneous objection to the admission of a video-recorded interview of a child witness, he has waived this issue on appeal.

Melissa Burklow v. Dearborn County and Dearborn County Sheriff (mem. dec.)
15A05-1611-PL-2519
Civil plenary. Affirms the grant of summary judgment in favor of Dearborn County on Melissa Burklow’s claim alleging violations of Title II of the Americans with Disabilities Act and in favor of the Dearborn County Sheriff with respect to Burklow’s claim for defamation. Finds the alleged defamatory statements were made in good faith by officers acting in the course of their duties by documenting their interactions with Burklow, and such statements fall within the qualified privilege doctrine. Also finds Burklow cannot establish the publication element of a defamation claim.