Opinions

Indiana Court of Appeals
Shane L. Keller v. State of Indiana
88A04-1404-CR-168
Criminal. Affirms in part, reverses in part and remands the 50-year aggregate sentence for convictions of two counts of Class B felony burglary, one count of Class C felony burglary, three counts of Class D felony theft, two counts of Class D felony receiving stolen property, and enhancement for habitual offender. Remands with instructions to vacate two receiving stolen property convictions and the sentences for them because they violate the prohibition against double jeopardy with respect to the theft convictions.

Indiana Court of Appeals
Kirk R. Jocham v. Melba Sutliff
29A02-1406-DR-424
Domestic relation. Reverses order granting Sutliff grandparent visitation. The court ruled that Sutliff, the maternal grandmother, had no standing to petition for visitation when she did because her former son-in-law had remarried and the couple had adopted the grandchild after the death of Sutliff’s daughter, the grandchild’s mother.

7th Circuit Court of Appeals
Richard Wagoner v. Bruce Lemon, commissioner of the Indiana Department of Corrections, and Indiana Department of Corrections
13-3839
U.S. District Court, Northern District of Indiana, South Bend Division, Magistrate Judge Christopher A. Nuechterlein.
Civil. Affirms summary judgment in favor of the commissioner and DOC on Wagoner’s claims of violations of Section 1983 and Title II of the ADA and the Rehabilitation Act. Wagoner did not show that he was denied access to any service or program because of his disability. Stresses it is better practice to hold a Pavey hearing separate from and before considering a motion for summary judgment.

Indiana Court of Appeals
Loren H. Fry v. State of Indiana
09A05-1404-CR-178
Criminal. Affirms felony murder conviction. Concludes the state properly corroborated the hearsay evidence it submitted in support of its request for a search warrant for Fry’s home, circumstantial evidence supports his conviction, there was no prosecutorial misconduct or an error by the court in denying his jury instruction on mere presence.

Indiana Court of Appeals
Nick Hunckler v. Air Sorce-1, Inc., Timothy Miller and Kelly A. Brannen
84A01-1405-CT-217
Civil tort. Reverses summary judgment in favor of the defendants on Hunckler’s personal injury claim. There are material issues of fact that exist and therefore preclude any grant of summary judgment that determined Miller was not liable by virtue of his position as an officer of the corporation as that would be erroneous. Remands for further proceedings. Judge Robb concurs in result with opinion.

Indiana Tax Court
Brandenburg Industrial Service Co., an Illinois Corp. v. Ind. Dept. of State Revenue
49T10-1206-TA-37
Tax. Denies Brandenburg’s request that the Department of State Revenue must disclose its potential non-expert witnesses, but orders the department to produce the two pages of handwritten notes that Brandenburg seeks.  Finds the department has adequately answered the interrogatory and will not compel it to identify any additional potential non-expert witnesses, but the handwritten notes are relevant.

7th Circuit Court of Appeals
United States of America v. Anthony Bailey
13-3229
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Criminal. Finds Bailey’s motion asking for a reduced sentence is best understood as a petition for relief under 28 U.S.C. Section 2255 for a sentence that was imposed contrary to the law. Based on Dorsey v. United States, Bailey should have been subject to a mandatory minimum sentence of only 10 years, instead of 20, after he pleaded guilty in 2011 to distributing crack cocaine. Remands for a new sentencing hearing.

Indiana Court of Appeals
State of Ind., Consolidated City of Indianapolis/Marion Co., et al. v. El Rodeo #11, LLC
49A05-1406-MI-257
Miscellaneous. Vacates order that Marion County return El Rodeo’s seized funds that are being held in the Tippecanoe County Prosecutor’s Office. The trial court should have granted Marion County’s motion to dismiss its forfeiture complaint against El Rodeo because Tippecanoe County already had the funds. Remands for further proceedings.

The following 7th Circuit Court of Appeals opinions were posted after IL deadline Tuesday
United States of America v. Jeffrey P. Taylor
12-2916
U.S. District Court, Northern District of Indiana, Hammond Division. Judge Rudy Lozano.
Criminal. Affirms conviction. Finds double jeopardy does not bar his retrial on the charges of attempting to transfer obscene material to a minor using means of interstate commerce after his conviction of attempting to use facilities of interstate commerce to engage in criminal sexual activity with a minor was overturned because the charges require proof of different elements. And because the judgment does not incorporate the SORNA ruling and the government has not filed a cross-appeal contesting that, there is nothing for the 7th Circuit to review on this issue. Affirms in all other respects.

Indiana Court of Appeals
Christopher Tiplick v. State of Indiana
Criminal. On interlocutory appeal, reverses denial of Tiplick’s motion to dismiss 11 of the 18 counts in an indictment against him alleging Class C felony charges of dealing in a lookalike substance and Class D felony possession of or dealing in a synthetic drug commonly referred to as spice. A divided panel held the statutes governing synthetic drug charges are unconstitutionally vague based on the definition of “synthetic drug” in I.C. § 35-31.5-2-321(9). Writing Judge Melissa May and concurring Judge James Kirsch held the trial court erred in failing to dismiss charges based on possession of a substance specified as a synthetic drug by a pharmacy board emergency rule but not specifically by statute. Dissenting Judge L. Mark Bailey would affirm the trial court, writing that laws and regulations were not so complex or overly broad as to preclude a person of ordinary intelligence from having notice of the criminal nature of the sale of XLR11 on the basis of vagueness. 

Indiana Court of Appeals
Curt Pearman d/b/a Greenwood Professional Park v. T. Ryan Jackson and Kristin M. Jackson
41A04-1408-CC-381
Civil collection. Affirms granting of partial summary judgment in favor of the Jacksons. Finds the Jacksons did not breach the terms of their lease agreement when they moved from their office five months after their initial three-year lease expired. Ruled the “clear and unambiguous terms of the lease agreement” allowed the Jacksons to continue to occupy the space on a monthly basis without having to sign another three-year lease.

7th Circuit Court of Appeals
Visteon Corp. v. National Union Fire Insurance Company of Pittsburgh, Pa.
14-2725
Chief Judge Richard Young, U.S. District Court for the Southern District of Indiana, Indianapolis Division.
Affirms judgment in favor of National Union on its denial of coverage for toxic chemical pollution at a Connersville Visteon auto parts factory that also contaminated neighboring properties. The District Court properly applied Michigan law, holding that Visteon was not entitled to coverage and dismissed the case. 

Indiana Supreme Court
Jason Young v. Hood's Gardens, Inc.
29S02-1405-PL-314
Civil plenary.  Reverses summary judgment in favor of Hood’s Gardens that it had no secondary liability to pay workers’ compensation benefits to Jason Young, who was severely injured while removing a tree from Hood’s Gardens’ property. The "value" that triggers secondary liability under Indiana Code 22-3-2-14(b) may include the value of other property transferred in connection with the performance of services and the designated evidence shows that the contract Hood’s Gardens entered into with the tree removal company may have been more than $1,000 once the value of firewood is considered.

Indiana Court of Appeals
Sandra Elaine Lappin v. Anthony Alex Timmerman (NFP)
86A03-1407-PL-229
Civil plenary. Reverses summary judgment in favor of Timmerman on his motion to dismiss Lappin’s complaint that he not be allowed to participate in an HVAC business in violation of the parties’ covenant not to compete. Remands for further proceedings.

Indiana Court of Appeals
Jeri Good v. Indiana Teachers Retirement Fund
25A03-1408-MI-278
Miscellaneous. Affirms determination that Good was entitled to only six months of retroactive benefits from the Indiana Public Retirement System instead of a full year as Good sought. Indiana law limits an INPRS member to six months of retroactive retirement benefits. Rejects Good’s claims that she is entitled to additional retroactive benefits based on the theories of equitable estoppel, unjust enrichment and breach of fiduciary duty.

The state and federal courts are closed Monday in observance of Martin Luther King Jr. Day.

Indiana Supreme Court
Jeffrey A. Cleary v. State of Indiana
45S03-1404-CR-295
Criminal. Affirms multiple convictions and a 14-year sentence in a fatal drunken-driving crash imposed when Cleary was retried after a first jury deadlocked on greater criminal charges and convicted Cleary on misdemeanor and infraction counts. Justices found no statutory or constitutional double-jeopardy violations.
 

Indiana Court of Appeals
David Paul Brown v. State of Indiana
32A01-1405-CR-194
Criminal. Affirms conviction of Class D felony theft. Finds trial counsel was not ineffective for failing to object to a portion of Brown’s videotaped interview with a detective as hearsay and for not tendering a jury instruction on criminal conversion as a lesser-included offense.

7th Circuit Court of Appeals
United States of America v. Dwan Rashid Taylor
14-1981
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane E. Magnus-Stinson.
Criminal. Affirms denial of motion to suppress drugs and guns found by police in Taylor’s storage locker pursuant to a search warrant. The police learned of the storage location using a GPS unit that it attached to Taylor’s car without a warrant in 2011, a year before the Supreme Court of the United States held that attaching a GPS device to a car for purposes of gathering information was a search under the Fourth Amendment. Because the officers used the GPS monitor in objectively reasonable reliance on binding appellate precedent in effect at that time, the suppression motion was properly denied.

Indiana Court of Appeals
Thrasher Buschmann & Voelkel, P.C. v. Adpoint, Inc., Joel Hall, and Mary Hall
49A02-1406-CC-430
Collections. Affirms trial court denial of Thrasher Buschmann & Voelkel’s motion for summary judgment and reverses the grant of Adpoint’s motion for summary judgment and order that the amount of legal fees owed by Adpoint to the law firm was $11,085.50. The court erred in granting summary judgment to Adpoint based on res judicata and collateral estoppel. Remands to the trial court to determine the amount Adpoint owes TBV for its representation in underlying litigation.