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Opinions Dec. 29, 2010

7th Circuit Court of Appeals
USA v. James K. Taylor
U.S. District Court for the Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
10-2947
Criminal. Affirms sentenced for 64 months’ imprisonment following a guilty plea to possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The sentence was based in part on the District Court’s conclusion that his prior Indiana conviction for Class C felony battery qualified as a “crime of violence” under § 4B1.2(a) of the federal sentencing guidelines, enhancing his recommended base offense level. Taylor argued his battery conviction was not a crime of violence for the purposes of the federal sentencing guidelines.

COA: Trust not bound by ISTA employment arbitration clause

The Indiana Court of Appeals has ruled that two former leaders in the Indiana State Teachers Association who served as trustees for a legally separate insurance trust can’t force the trust’s governing board to adhere to arbitration clauses outlined in their ISTA employment contracts.

Panel criticizes late discovery introduction

While recognizing that the state’s practice of allowing late introduction of evidence basically rewards attorneys who don’t prepare for trial, the Indiana Court of Appeals looked beyond that practice in a recent decison to how the rules still protect a person’s right to a fair trial.

Justices accept one criminal case

The Indiana Supreme Court has taken an Elkhart County appeal challenging three felony child molesting convictions and an 80-year aggregate sentence.

Opinions Dec. 28, 2010 ILD

The following opinions were posted after IL deadline Monday:

Indiana Tax Court
Lake County Assessor, North Township Assessor, et al. v. Amoco Sulfur Recovery Corp., and BP Products North America, Inc. (NFP)
49T10-1010-TA-55
Tax. Denies Amoco and BP’s motion to dismiss.

Today’s opinions

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Cynthia Ann Painter v. Lee Andrew Granderson (NFP)
65A04-1003-DR-203
Civil. Affirms trial court’s order that awarded custody of the parties’ minor daughter, R.K., to appellee-respondent father.

Natasha R. Lafave v. State of Indiana (NFP)
16A01-1006-CR-271
Criminal. Reverses and remands conviction of illegal possession of alcoholic beverages for consumption, a Class C misdemeanor.

Carla Tabor v. State of Indiana (NFP)
49A05-1006-CR-358
Criminal. Affirms conviction of obtaining a controlled substance by fraud or deceit, a Class D felony; reverses and remands conviction of possession of a controlled substance, a Class D felony.

Richard Huffman v. State of Indiana (NFP)
49A02-1008-CR-1057
Criminal. Affirms denial of petition for post-conviction relief related to an educational credit against the release date.

Termination of Parent-Child Relationship of A.P., et al.; K.G. and T.G. v. Indiana Dept. of Child Services (NFP)
23A04-1004-JT-334
Juvenile. Affirms trial court’s judgment terminating K.G. and T.G’s parental rights to their children.

Indiana Tax Court had posted no opinions at IL deadline.
 

Opinions Dec. 28, 2010

Indiana Court of Appeals
Richard Childress Jr. v. State of Indiana
45A03-0911-CR-520
Criminal. Affirms convictions of robbery and criminal confinement, both Class B felonies. On appeal, appellant-defendant raised the sole issue of whether the trial court erred in admitting evidence the state did not disclose until the second day of trial. Court of Appeals concluded the state’s late disclosure did not impair his right to a fair trial.

Justice wants attorney suspended longer

The Indiana Supreme Court couldn’t agree on the appropriate sanction for an attorney who engaged in an improper ex parte communication with a judge, leaving one judge to argue for at least a 90-day suspension.

Opinions Dec. 27, 2010 ILD

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Victor T. Jones v. State of Indiana
32A04-1004-CR-309
Criminal. Affirms conviction of resisting law enforcement as a Class D felony. The state’s naming of Officer Stewart in the charging information, which was not the correct name, was surplusage that was not required for a conviction, and therefore the evidence was sufficient to convict Jones of resisting law enforcement. Jones was subjected to double jeopardy when he was convicted of enhanced versions of both resisting law enforcement and criminal recklessness. Remands to reduce his criminal recklessness conviction to a Class B misdemeanor and re-sentence him accordingly. Reverses the jury, public defender, and docket fees and remands for further proceedings.

The Matter of D.R. v. State of Indiana (NFP)
49A02-1003-JV-436
Juvenile. Reverses and vacates D.R.’s finding for attempted carjacking as a Class B felony if committed by an adult and remands with instructions to amend the dispositional order to reflect a true finding for attempted robbery only, a Class B felony if committed by an adult.

Joshua Beal v. State of Indiana (NFP)
49A02-1003-CR-347
Criminal. Affirms conviction of Class A misdemeanor battery and the order Beal pay restitution to his victim.

S.J. v. State of Indiana (NFP)
83A05-1005-JV-328
Juvenile. Affirms adjudication that S.J. committed what would be Class B misdemeanor battery if committed by an adult.

Miguel Alvarado v. State of Indiana (NFP)
12A02-1001-CR-159
Criminal. Affirms denial of motion to withdraw guilty pleas to criminal confinement and battery.

Michael J. Skoczylas v. Peggy C. Skoczylas (NFP)
71A03-1005-DR-317
Domestic relation. Affirms trial court’s adoption of the values of the parties United States Postal Service pensions. Reverses decision that Michael be responsible for their son’s student loans and Peggy be responsible for their daughter’s loans. Remands with instructions.

Martel Johnson v. State of Indiana (NFP)
71A03-1003-CR-169
Criminal. Affirms conviction of felony murder.

Kenneth E. Lovelace v. State of Indiana (NFP)
49A05-1003-CR-183
Criminal. Affirms convictions of guilty but mentally ill and sentence for Class B felony burglary and Class D felony attempted theft.

Term. of Parent-Child Rel. of J.B., et al.; A.M. and D.B. v. IDCS (NFP)
07A04-1005-JT-322
Juvenile. Affirms involuntary termination of parental rights.

McIntyre Brothers, Inc. v. Kim D. Henderson, Melinda J. Henderson, Sydneyco, LLC, et al. (NFP)
47A01-1004-PL-172
Civil plenary. Affirms partial summary judgment to the effect that apportion of the Fifth Third mortgage lien, specifically that attributable to the Stone City mortgage payoff, is superior to McIntyre’s mechanic’s lien. Reverses order of foreclosure which decreed that McIntyre had no mechanic’s lien. Remands for further proceedings.

Denon Dabney v. State of Indiana (NFP)
49A02-1004-CR-474
Criminal. Affirms conviction of Class B felony possession of a firearm by a serious violent felon.

Virgil L. Smith v. State of Indiana (NFP)
43A03-1004-CR-245
Criminal. Affirms sentence following guilty plea to Class B felony robbery.

William Newhouse v. State of Indiana (NFP)
49A04-1001-CR-34
Criminal. Affirms sentence following guilty plea to two counts of Class B felony burglary, Class B felony attempted burglary, Class D felony stalking, three counts of Class D felony voyeurism, Class D felony attempted residential entry, Class A misdemeanor public indecency, and Class C misdemeanor public nudity.

Steve Uribe v. State of Indiana (NFP)
49A02-1003-CR-346
Criminal. Affirms 180-day executed portion of Uribe’s 365 day sentence for Class A misdemeanor criminal recklessness.

Kenneth McCreary v. State of Indiana (NFP)
49A02-1002-CR-179
Criminal. Affirms conviction of and sentence for Class B felony dealing in cocaine.

James F. Griffith v. State of Indiana (NFP)
35A02-1006-PC-705
Post conviction. Affirms denial of petition for post-conviction relief.

Indiana Tax Court had posted no opinions at IL deadline.
 

Opinions Dec. 27, 2010

Indiana Court of Appeals
Paternity of M.F., et al.; J.F. v. W.M.
21A04-1002-JP-84
Juvenile. Affirms denial of mother’s petition to establish paternity with respect to M.F. Mother failed to prove that insemination incurred in such a way as to render the donor agreement unenforceable and void as against public policy. Reverses finding that a valid, enforceable contract existed that would prohibit an action to establish paternity of C.F., the second child born. Remands to grant mother’s petition to establish paternity with respect to C.F. Judge Crone dissents in part.

Court rules on artificial insemination issues

A divided Indiana Court of Appeals found that a man who donated sperm can be found to be the father of only one of the two children conceived by artificial insemination.

Justices sharply split on insanity defense case

Faults in the state’s mental health system can’t be used to justify an insanity defense being rejected in favor of a different sentence that will keep a person locked up, an Indiana Supreme Court majority ruled.

Opinions Dec. 23, 2010, ILD

Today’s opinions

7th Circuit
USA v. Kevin Dortch
09-3260
U.S. District Court for the Northern District of Indiana, Hammond Division, Judge Rudy Lozano
Criminal. Affirms statutory maximum of 240 months imprisonment for Dortch, who pled guilty and only appealed his sentence. After robbing a bank that was located inside a drugstore in Munster, he led police on two high-speed chases through the nearby residential neighborhoods. At issue was whether enough evidence was presented regarding an officer’s hospital visit following the car chase to show “serious bodily injury.” However, the 7th Circuit found that any error was harmless in this case and that there was nothing unreliable about the officer’s testimony about his hospital stay, even though the 7th Circuit did write the government could have provided more information.

The Indiana Supreme Court, Court of Appeals, and Tax Court are closed Dec. 23 and 24.

Opinions Dec. 23, 2010

7th Circuit Court of Appeals
USA v. Kevin Dortch
09-3260
U.S. District Court for the Northern District of Indiana, Hammond Division, Judge Rudy Lozano
Criminal. Affirms statutory maximum of 240 months imprisonment for Dortch, who pled guilty and only appealed his sentence. After robbing a bank that was located inside a drugstore in Munster, he led police on two high-speed chases through the nearby residential neighborhoods. At issue was whether enough evidence was presented regarding an officer’s hospital visit following the car chase to show “serious bodily injury.”

Governor names new Tax Court judge

Gov. Mitch Daniels has chosen attorney Martha Wentworth as the state’s second-ever judge on the Indiana Tax Court.

Justices order refunds in estate planning UPL case

The Indiana Supreme Court is shaking its proverbial finger at a company it found had engaged in the unauthorized practice of law, making it clear that the court’s orders must be followed or non-compliant litigants will be sanctioned.

Opinions Dec. 22, 2010 ILD

Indiana Supreme Court
Andres Sanchez v. State of Indiana
20S04-1012-CR-692
Criminal. Revises Sanchez’s consecutive enhanced sentences of 80 years for three counts of Class A felony child molesting to be served concurrently. Generally, multiple victims justify the imposition of enhanced and consecutive sentences. But although the aggravating circumstances are sufficient to warrant imposing enhanced sentences, the record supports imposing consecutive sentences. Revises sentence to 30 years on two of the counts and to the enhanced term of 40 years on the remaining count and orders they be served concurrently. Justice Rucker dissents.

Indiana Court of Appeals
Oscar I. Belmares-Bautista v. State of Indiana
57A04-1003-CR-223
Criminal. Affirms convictions of possession of a counterfeit government-issued identification, a Class A misdemeanor; and operating a vehicle without ever having received a valid license, a Class C misdemeanor. The only issue is whether Belmares-Bautista knowingly, voluntarily, and intelligently waived his right to counsel. The counterfeit identification was what appeared to be a driver’s license from the state of Aguascalientes, Mexico, which an officer identified as a forgery.

Robert Neises Construction Corp. v. Grand Innovations Inc., et al.
45A03-1004-PL-238
Civil. Affirms trial court’s grant of summary judgment in favor of appellee-defendant Kentland Bank in this foreclosure action. Neises presented the following issues: whether the trial court erred when it concluded that Kentland’s expenditures to protect the subject real estate from damage pending the foreclosure should take priority over Neises’ and others’ mechanic’s liens; and whether the trial court erred when it did not assign Neises’ mechanic’s lien a higher priority than Kentland’s mortgage lien in the distribution of the proceeds from the sheriff’s sale.

Tracey L. Beswick and Ruthie Beswick v. Edward E. Bell, M.D., and Floyd Memorial Hospital & Health Services
22A01-1005-CT-260
Civil. Affirms trial court’s order granting summary judgment in favor of Floyd Memorial Hospital and Health Services in the medical malpractice action that Tracey L. Beswick and his wife Ruthie Beswick brought against Edward E. Bell, M.D. and Floyd Memorial. Beswicks raised the issue of whether the trial court erred by striking the affidavit of Michael Roback, M.D., submitted by the Beswicks in opposition to Floyd Memorial’s motion for summary judgment.

Glendal Rhoton v. State of Indiana
49A02-1004-CR-446
Criminal. Affirms convictions of murder and burglary as a Class C felony, and the sentences imposed following a jury trial. Rhoton presented three issues for review: whether trial court abused its discretion when it instructed the jury on burglary; whether the evidence was sufficient to support Rhoton’s conviction of murder; whether Rhoton’s sentence was inappropriate in light of the nature of the offenses and his character.

Mark R. Eiler v. State of Indiana
73A04-1005-CR-369
Criminal. Reverses and remands Eiler’s sentence for dealing cocaine as a Class A felony. Eiler raised the issues of whether the trial court abused its discretion in sentencing Eiler, and whether Eiler’s sentence was inappropriate in light of the nature of the offense and the character of the offender.

Francisco Contreras v. State of Indiana (NFP)
49A02-1004-CR-426
Criminal. Affirms convictions of three counts of Class A felony child molesting and two counts of Class C felony child molesting.

Ryan T. Renfroe v. State of Indiana (NFP)
40A01-1002-CR-96
Criminal. Affirms Renfroe’s aggregate executed sentence of 124 years after he pled guilty to two counts of murder and one count of Class C felony escape.

Clarence E. Lampkins v. State of Indiana (NFP)
29A05-1005-CR-373
Criminal. Reverses and remands conviction of possession of a firearm by a serious violent felon as a Class B felony.

Allen Marshall v. Kris Marshall (NFP)
85A03-1005-DR-289
Civil. Reverses and remands trial court’s order that emancipated father’s daughter.

Thomas M. Blair v. State of Indiana (NFP)
45A04-1005-CR-295
Criminal. Affirms conviction, following a jury trial, of burglary as a Class B felony.

James A. Nelson v. Michael Collins (NFP)
26A01-1007-PL-329
Civil. Remands with instructions for the trial court to dismiss Nelson’s complaint without prejudice.

In the Matter of T.O., et al.; J.O. v. Indiana Dept. of Child Services (NFP)
85A04-1006-JC-407
Juvenile. Affirms juvenile court’s order determining that T.O., S.O., B.O., R.O., Z.O., E.O., and G.O. were children in need of services.

Larrell Alexander v. State of Indiana (NFP)
34A04-1003-CR-250
Criminal. Affirms convictions of and sentence for dealing in cocaine, a Class B felony, and resisting law enforcement, a Class A misdemeanor.

Termination of Parent-Child Relationship of G.B., et al.; G.B. & B.B. v. Indiana Dept. of Child Services (NFP)
42A05-1005-JT-318
Juvenile. Reverses and remands with instructions trial court’s order terminating mother’s parental rights over her minor children G.B., K.B., and E.B.

Jerry Bunton v. State of Indiana (NFP)
49A02-1006-CR-600
Criminal. Affirms conviction of theft, a Class D felony, following a jury trial.

Eric Guess v. State of Indiana (NFP)
49A05-1004-PC-281
Post conviction. Affirms denial of petition for post-conviction relief.

Jeffrey D. Boggs v. State of Indiana (NFP)
40A01-1004-CR-163
Criminal. Affirms conviction of escape as a Class C felony, and eight-year executed sentence.

Mark Richmond v. State of Indiana (NFP)
45A03-0607-CR-293
Criminal. Affirms 93-year aggregate sentence imposed following convictions of rape, a Class B felony; criminal deviate conduct, a Class B felony; burglary, a Class B felony; and confinement, a Class D felony, as well as the finding that he is a habitual offender.

D.R. v. Review Board of the Indiana Dept. of Workforce Development (NFP)
93A02-1005-EX-522
Civil. Affirms a decision by the Review Board of the Indiana Department of Workforce Development that denied D.R.’s unemployment benefits.

Indiana Tax Court had posted no opinions at IL deadline.