Opinions Nov. 2, 2023

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Wednesday:
United States of America v.  Anthony Pemberton
21-3224
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Chief Judge Tanya Walton Pratt.
Criminal. Affirms the district court’s judgment that Anthony Pemberton’s 2003 conviction for conspiracy to commit robbery under Indiana law was a “serious violent felony” under 18 U.S.C. § 3559(c)(2)(F), thereby subjecting him to a 15-year mandatory minimum sentence. Finds Pemberton raised his argument that Indiana’s crime of conspiracy is not a categorical match to the federal conspiracy counterpart of § 3559(c)(2)(F), and thus the state crime is not a “serious violent felony,” for the first time on appeal and therefore forfeited it. Also finds Pemberton has not demonstrated that the district court plainly erred when it determined his prior conviction was a serious violent felony.

Thursday opinions
Indiana Supreme Court
In the Matter of Theodore E. Rokita
23S-DI-258
Attorney discipline. Publicly reprimands Indiana Attorney General Todd Rokita for violating Indiana Professional Conduct Rules 3.6(a) and 4.4(a) by making an extrajudicial statement that had a substantial likelihood of materially prejudicing an adjudicative proceeding and had no substantial purpose other than to embarrass or burden Dr. Caitlin Bernard. The costs of the proceeding, $250, are assessed against Rokita. Chief Justice Loretta Rush and Justice Christopher Goff dissent without separate opinion, finding the discipline too lenient based on Rokita’s position and the scope and breadth of the admitted misconduct.

Court of Appeals of Indiana
Marques D. Hardiman v. State of Indiana
22A-CR-2993
Criminal. Affirms Marques Hardiman’s convictions in Hendricks Circuit Court of murder and attempted robbery, a Level 5 felony. Finds the trial court did not abuse its discretion by admitting evidence under Evidence Rule 404(b) of text messages between Hardiman and Christian Edmon concerning a robbery they planned in March 2021 because such evidence was admissible to show Hardiman’s intent to rob Emanuel Fonville and rebut Hardiman’s claim of self-defense. Also finds that although the trial court’s instruction regarding the availability of self-defense contained the disapproved “but for” language, the error in instructing the jury was harmless given the overwhelming evidence of Hardiman’s guilt.

Tom James Company, et al. v. Zurich American Insurance Company
23A-PL-106
Civil plenary. Affirms the Marion Superior Court order granting Zurich American Insurance Company’s motion to dismiss the lawsuit filed by Tom James Company and some of its subsidiaries for lack of personal jurisdiction. Finds Zurich did not waive its personal jurisdiction defense in the answer it filed after removal to federal court and before remand to state court. Also finds the matter was properly dismissed for lack of personal jurisdiction, as the claims do not arise out of or relate to Zurich’s minimum contacts with Indiana, and Zurich did not consent to personal jurisdiction by either complying with Indiana law or entering into the policy with Tom James.

James Earnest Ramsey v. State of Indiana
22A-CR-2877
Criminal. Affirms James Ramsey’s convictions in Hendricks Superior Court of Level 2 felony dealing in methamphetamine, Level 6 felony possession of methamphetamine and Class C misdemeanor possession of paraphernalia. Finds that because a dog sniff did not unreasonably prolong a police traffic stop, Ramsey’s Fourth Amendment rights were not implicated and the trial court did not abuse its discretion when it admitted the evidence found in Ramsey’s car. Also finds the search of Ramsey’s vehicle did not violate Article 1, Section 11 of the Indiana Constitution because a Danville police officer had high suspicion a crime had occurred, the dog sniff was minimally intrusive and the law enforcement need was high.

Mark A. Brown v. Jennifer M. Brown (mem. dec.)
23A-DC-792
Domestic relations with children. Affirms the portion of the Clinton Circuit Court’s order granting a motion by Jennifer Brown to relocate her three children — B.B., A.B. and M.B. — from Frankfort to Chicago. Finds the evidence supported the trial court’s findings, which supported its conclusion that the mother’s request to relocate the children was made in good faith and for a legitimate reason. Also finds the evidence supported the trial court’s findings that supported its conclusion that relocation was in the children’s best interests.