Opinions Nov. 30, 2020

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Wednesday.
Dennis Troyer v. National Futures Association
20-1422
Appeal from the U.S. District Court for the Northern District of Indiana, Fort Wayne Division. Magistrate Judge Susan L. Collins.
Civil. Affirms summary judgment in favor of National Futures Association and denial of Dennis Troyer’s motion for summary judgment. Finds that NFA Bylaw 301 is not applicable in this case.

Indiana Court of Appeals
Camron Douglas Perkins v. State of Indiana
20A-CR-695
Criminal. Affirms Carmon Perkins’ murder and Level 1 felony attempted murder convictions, finding the Henry Circuit Court did not abuse its discretion in admitting evidence in violation of his Fifth Amendment rights and that the evidence was sufficient to support his attempted murder conviction.

Brianna Michelle Wilson v. State of Indiana
19A-CR-1987
Criminal. Affirms Brianna Wilson’s murder conviction in Marion Superior Court. Finds the court did not abuse its discretion when, at the sentencing hearing on Wilson’s plea agreement for voluntary manslaughter, rejected the agreement after Wilson testified that she shot the victim in self-defense while he was attacking her. Also rejects Wilson’s argument that the court abused its discretion by declining to instruct the jury on voluntary manslaughter as a lesser-included offense.

Damonta Lamont Jarrett v. State of Indiana
20A-CR-59
Criminal. Affirms Damonta Jarrett’s murder conviction and his conviction of Level 5 felony robbery and his executed aggregate sentence of 65 years in prison. Finds no double jeopardy violation, no abuse of trial court discretion and no sentencing error. Judge Leanna Weissmann concurs in a separate opinion to “address a practical dilemma facing appellate courts, lawyers, and litigants in the wake of Wadle v. State, 151 N.E.3d 227, 235 (Ind. 2020): … how do we proceed in cases where the appellant’s brief was filed before Wadle and, thus, the defendant did not have the benefit of Wadle’s acknowledgement of possible alternative (sentencing) relief in the absence of double jeopardy violations?”

Roxanna Prater v. Dianne Wineland and Steven Wineland
20A-GU-895
Guardianship. Reverses the Noble Superior Court order denying mother Roxanna Prater’s petition denying her petition for visitation with her daughter, who is under a guardianship with her paternal grandparents. Finds the trial court erred in denying the petition without a hearing and remands for the court to grant mother a hearing to consider the visitation petition.

Chad P. Hobbs v. State of Indiana
19A-CR-909
Criminal. Reverses Chad Hobbs’ Class A felony and Level 1 felony child molesting convictions and vacates the sentences for those counts, finding the Madison Circuit Court abused its discretion by allowing the state to amend the charging information, adding more serious charges 14 days before trial. Affirms the trial court in all other respects, adjusting Hobbs’ sentence from an aggregate 70 years in prison to an aggregate 44 years in prison.

Betty Miller, Individually and as Personal Representative of the Estate of John Allen Miller v. Laxeshkumar Patel, M.D., et al.
20A-CT-1088
Civil Tort. Affirms the Marion Superior Court ruling denying the Miller plaintiffs’ motion to amend a complaint to add a claim against Community Health Network, Inc., d/b/a Community Howard Regional Health Hospital and Community Howard Behavioral Health, and Community Howard Regional Health, Inc. (“Community Howard”) under 42 U.S.C. § 1395dd, the federal Emergency Medical Treatment and Active Labor Act, (“EMTALA”). Finds the trial court did not err in denying the motion. Judge Elizabeth Tavitas dissents and would remand to the trial court to determine whether the EMTALA claim in the amended complaint “arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.”

In the Matter of the Commitment of M.K. v. Department of Veterans Affairs, Richard L. Roudebush VA Medical Center
20A-MH-1054
Mental health. Affirms the Marion Superior Court’s commitment order for M.K., ruling that its order is supported by clear and convincing evidence that he is gravely disabled.

Melody Barrows v. Crossroads Bank (mem. dec.)
20A-MF-978
Mortgage foreclosure. Affirms the entry of a decree of foreclosure and judgment in favor of Crossroads Bank. Finds Melody Barrows has not shown that Crossroads failed to comply with the terms of the loan documents. Also finds that the evidence does not show that a mistake was made as to the amount owed.

Jeffery C. Moore v. State of Indiana (mem. dec.)
20A-CR-1339
Criminal. Affirms the second bond order against Jeffery Moore. Finds that Moore was not denied a prompt initial hearing. Also finds that the Dearborn Superior Court did not set an excessive bond and complied with Indiana Criminal Rule 26.

Maurice McClung, Jr. v. State of Indiana (mem. dec.)
20A-PC-413
Post-conviction. Affirms the denial of Maurice McClung Jr.’s petition for post-conviction relief. Finds that McClung has not demonstrated that reversal is warranted based on ineffective assistance of trial or appellate counsel or that any alleged errors combined to constitute ineffective assistance.

Colby R. McKnelly v. State of Indiana (mem. dec.)
19A-PC-2597
Post-conviction. Affirms the denial of Colby McKnelly’s petition for post-conviction relief. Finds McKnelly waived his right to challenge the post-conviction court’s exclusion of new evidence and the post-conviction court did not err in finding McKnelly’s trial counsel was not ineffective.

Precision Gun Range LLC, and Baron Creek LLC v. Jerry Wise, Kathy Wise, David Drake, and Brozia Drake, Owen County, Indiana Board of Zoning Appeals (mem. dec.)
20A-PL-231
Civil plenary. Affirms the Owen Circuit Court’s Jan. 3, 2020, order that granted a request for stay and preliminary injunction. Finds Jerry and Kathy Wise and David and Brozia Drake do not lack standing. Also finds that Precision Gun Range LLC and Baron Creek LLC has not demonstrated that the Owen County Board of Zoning Appeals’ June 18, 2019, decision did not constitute a zoning decision or that the Wises and Drakes did not timely file their complaint. Finally, finds that the trial court did not abuse its discretion in entering the preliminary injunction.

Melvin Sanders v. State of Indiana (mem. dec.)
20A-PC-942|
Post-conviction. Affirms the denial of Melvin Sanders’ petition for post-conviction relief. Finds the post-conviction court did not err in concluding that Sanders was competent at the time he pleaded guilty to murder or in determining his trial counsel was not ineffective.

Charles Ahnert v. State of Indiana (mem. dec.)
20A-CR-1329
Criminal. Affirms Charles M. Ahnert Jr.’s sentence to serve 180 days of his previously suspended sentence in the Vigo County Jail following the revocation of his probation. Finds the Vigo Superior Court’s order is supported by the record and well within the trial court’s discretion.

In the Termination of the Parent-Child Relationship of: J.S. and J.N.B. (Minor Children), and J.B.S. (Mother) v. The Indiana Department of Child Services (mem. dec.)
20A-JT-1022
Juvenile termination of parental rights. Affirms the termination of mother J.B.S.’s parental rights to J.N.B. and J.S. Finds J.B.S. was not denied fundamental due process throughout the termination proceedings. Also finds the juvenile court did not err in terminating J.B.S.’s parental rights.

Justin Jones v. State of Indiana (mem. dec.)
20A-CR-512
Criminal. Affirms the denial of Justin Jones’ motions to suppress evidence obtained following a warrantless search of a cellphone and a subsequent search of that same cellphone pursuant to a search warrant. Finds Jones has not met his burden on appeal to demonstrate that the Marion Superior Court committed a reversible error when it denied his motions to suppress.

Ian F. Creamer v. State of Indiana (mem. dec.)
20A-CR-1192
Criminal. Remands the order sentencing Ian F. Creamer to an aggregate of 18 years, with instructions that the trial court attach Creamer’s habitual offender enhancement to his sentence for possession of methamphetamine as a Level 3 felony. Finds it is well-settled that a habitual offender finding does not constitute a separate crime nor result in a separate sentence but rather results in a sentence enhancement imposed upon the conviction of a subsequent felony.

Francis Perrelle v. Laura Perrelle (mem. dec.)
20A-DC-162
Domestic relations with children. Affirms and reverses in part the divorce decree between Francis Perrelle and Laura Perrelle. Finds Francis has not established that the Hendricks Superior Court erred in determining his income for purposes of calculating child support, or in ordering retroactive support or allowing Laura to claim their child as a dependent for 2018. Also finds Francis has failed to establish that the trial court abused its discretion by using the date-of-filing balance of the Opie Taylor’s account, and his argument regarding the sale of Opie Taylors LLC is moot. Finally, finds the trial court did not abuse its discretion by finding Francis’ gambling dissipated the marital estate or by ordering an uneven division of the marital estate. Reverses the part of the decree regarding the post-judgment interest rate and remands with instructions to amend the decree accordingly.

Jonathan L. Hummel v. State of Indiana (mem. dec.)
20A-CR-775
Criminal. Affirms the denial of Jonathan Hummel’s pro se motion to correct error. Finds the Starke Circuit Court did not abuse its discretion by denying Hummel’s motion.

Shane D. Mendoza v. State of Indiana (mem. dec.)
20A-CR-859
Criminal. Affirms the denial of Shane Mendoza’s motion to dismiss and motion to suppress evidence. Finds the Warren County Court did not err in declining to apply the doctrine of defensive collateral estoppel because the Warren County prosecutor lacked a full and fair opportunity to litigate suppression issues before the Fountain County Court. Also finds the Fountain County Court’s order suppressing evidence seized from the vehicle is not binding upon the Warren County Court.

Eric Benson Skeens v. State of Indiana (mem. dec.)
20A-PC-686
Post-conviction. Affirms the denial of Eric Skeens’ petition for post-conviction relief. Finds the post-conviction court did not err by finding that trial and appellate counsel were not ineffective.

State of Indiana v. Shannon Christine Covey (mem. dec.)
20A-CR-950
Criminal. Reverses the grant of Shannon Christine Covey’s motion to suppress evidence obtained during a traffic stop. Finds Article I, Section 11 of the Indiana Constitution provided no basis to grant Covey’s motion to suppress. Also finds that under a Fourth Amendment analysis, the Jackson Circuit Court’s granting of Covey’s motion to suppress was contrary to law. Also finds that there is no basis as a matter of law to conclude that Trooper Stephen Stoneking entrapped Covey into committing a traffic infraction. Remands for further proceedings.

Michael M. Harvey v. State of Indiana (mem. dec.)
20A-CR-548
Criminal. Affirms Michael Harvey’s convictions of two counts of child molesting as Level 1 felonies and one count of incest of Level 4 felony, and his sentence to an aggregate of 90 years. Finds the Elkhart Superior Court did not abuse its discretion by admitting evidence of Harvey’s prior battery conviction. Also finds Harvey’s sentence was not inappropriate in light of the nature of the offenses and the offender’s character.

Viking, Inc. v. NBD International, Inc., and Selective Insurance Company of America (mem. dec.)
20A-PL-671
Civil plenary. Affirms and reverses in part the grant of summary judgment to Selective Insurance Company of America and NBD International Inc. in a complaint brought by Viking Inc. Finds the Whitley Superior Court erred when it granted summary judgment in favor of Selective on Viking’s claims of breach of the insurance contract, negligent, negligent claim handling, and the duty of good faith and fair dealing, and in favor of NBD on the claims of breach of contract and negligence. Also finds the trial court properly granted summary judgment to Selective on Viking’s claims of negligent hiring and respondeat superior. Remands for further proceedings.