Opinions Nov. 2, 2018

Indiana Supreme Court
In the Matter of Larry W. Rogers
64S00-1704-DI-251
Attorney discipline. Suspends Larry Rogers for 90 days, with the manner of his reinstatement conditional upon full restitution being made to a client who paid an unearned retainer of $8,000. Finds Rogers committed attorney misconduct by neglecting an appeal and then failing to refund the unearned fee.

Brenda Sue Gittings and Marc Richmond Gittings v. William H. Deal
18S-TR-231
Trust. Affirms in part and reverses in part. Holds first that Brenda and Marc Gittings’ assertions are subject to statutes of limitations to the extent those assertions seek affirmative relief — but not to the extent they diminish or defeat William Deal’s request for declaratory relief. Second, fraudulent concealment did not toll the limitation periods on the Gittingses’ claims seeking affirmative relief. And third, William is not entitled to court approval of property transfers held in trust, as the transfers were improper. Remands to Spencer Circuit Court for proceedings.

Indiana Court of Appeals
Brian Dunlap and Lauren Dunlap v. Shirlena Lange
18A-PL-1212
Civil plenary. Reverses the Marion Superior Court’s exclusion of a purchase agreement between Shirlena Lange and Brian and Laura Dunlap as evidence in the Dunlaps’ breach of contract claim against Lange. Finds the purchase agreement was deemed admitted into evidence by virtue of its attachment to the Dunlaps’ complaint. Remands for further proceedings.

David Sanders v. State of Indiana (mem. dec.)
18A-CR-684
Criminal. Affirms David Sanders’ convictions of two counts of Class A felony child molesting, two counts of Class C felony child molesting, and one count each of Class D felony child solicitation and child seduction. Finds there was no Brady violation because Brady was not implicated. Also finds the Marion Superior Court did not err in admitting Detective Justin Hickman’s testimony because it was not improper vouching. Finally, finds there was sufficient evidence to support Sanders’ convictions.

LeRon E. Easley-El v. State of Indiana (mem. dec.)
18A-CR-691
Criminal. Affirms the denial of LeRon E. Easley-El’s motion to modify his aggregate 90-year sentence for his convictions of attempted murder, rape, criminal deviate conduct, criminal confinement, robbery and two counts of burglary. Finds the Marion Superior Court did not abuse its discretion in denying Easley-El’s petition.

Melvin Ryan Bruce v. State of Indiana (mem. dec.)
18A-CR-1430
Criminal. Affirms Melvin R. Bruce’s conviction of voluntary manslaughter as a Level 2 felony and his 15-year executed sentence. Finds the Lake Superior Court did not abuse its discretion in sentencing. Also finds Bruce’s sentence is not inappropriate.

Eugene C. Tschopp v. State of Indiana (mem. dec.)
18A-CR-287
Criminal. Affirms Eugene C. Tschopp’s convictions of two counts of child molesting as Level 1 felonies, two counts of child molesting as Level 4 felonies, one count of incest as a Level 4 felony and criminal confinement as a Level 5 felony. Finds Tschopp has failed to show the outcome of his trial would probably have been any different if his trial counsel had not allegedly performed deficiently in cross-examinations and closing argument. Also finds the state presented sufficient evidence to support Tschopp’s conviction for criminal confinement as a Class 5 felony.

D’Andre Lee Goodwin, Jr. v. State of Indiana (mem. dec.)
18A-CR-1335
Criminal. Affirms D’Andre Goodwin, Jr.’s conviction of Level 1 felony rape. Finds the state produced sufficient evidence to sustain Goodwin’s conviction.

Richard D. Wakefield v. MSI East Greyhound Carmel Grocery, LLP, and Marsh Supermarkets, LLC (mem. dec.)
18A-CT-1238
Civil tort. Affirms the grant of relief from default judgment to MSI East Greyhound Carmel Grocery, LLP on Richard Wakefield’s claim against MSI after he alleged he was injured on its land. Finds the Hamilton Superior Court did not abuse its discretion.

John D. Nellist v. State of Indiana (mem. dec.)
20A05-1711-PC-2593
Post-conviction. Affirms the denial of John D. Nellist’s petition for post-conviction relief. Finds Nellist has not shown that he was denied the effective assistance of trial counsel. Also finds Nellist has not demonstrated an abuse of the post-conviction court in evidentiary proceedings. Finally, finds the post-conviction court did not clearly err in denying Nellist’s petition.

Paul D. Stucker v. State of Indiana (mem. dec.)
18A-CR-1483
Criminal. Affirms the denial of Paul D. Stucker’s motion to correct erroneous sentence after he was sentenced to 45 years for murdering a fellow inmate while in prison. Finds that because the time Stucker served in the 1980s was credited toward a robbery sentence, he is not entitled to a second credit for that time in the murder case.

Anthony Tyrell Wilburn v. State of Indiana (mem. dec.)
18A-CR-894
Criminal. Reverses Anthony Tyrell Wilburn’s convictions of attempted armed robbery as a Level 3 felony and three counts of theft, two as Level 6 felonies and one as a Class A misdemeanor. Finds the Hendricks Superior Court abused its discretion in the admission of evidence, and the error was not harmless. Also finds retrial would not offend double jeopardy principles. Remands for a new trial.

Michael James Tollar v. Saige Marie Swank (mem. dec.)
18A-DR-849
Domestic relation. Affirms the order for Michael James Tollar to pay his share of his son’s post-secondary education expenses. Finds the Elkhart Superior Court did not err when it found the son had not repudiated Tollar.

In the Matter of: J.S., Ma.S., and My.S., Children in Need of Services: T.S. (Mother) v. The Indiana Department of Child Services (mem. dec.)
18A-JC-1244
Juvenile CHINS. Affirms the denial of T.S.’s request for a continuance of a fact-finding hearing on allegation that her children, J.S., Ma.S. and My.S., were children in need of services. Finds the denial of T.S.’s request for a continuance did not deprive her of due process.