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Tuesday, July 19, 2011

Ind. Decisions - Court of Appeals issues 5 today (and 16 NFP)

For publication opinions today (5):

In Mark McCann v. The City of Anderson, Indiana, and the Hon. Donald R. Phillippe, an 8-page opinion, Judge May writes:

In order to determine if McCann was due the allotted salary, we must decide if he was an employee of the City Court and APD contemporaneously.

To determine whether there is an employer-employee relationship, we consider: “(1) right to discharge; (2) mode of payment; (3) supplying tools or equipment; (4) belief of the parties in the existence of an employer-employee relationship; (5) control over the means used in the results reached; (6) length of employment; and, (7) establishment of the work boundaries.” GKN Co. v. Magness, 744 N.E.2d 397, 402 (Ind. 2001). The most important factor is the right of the employer to exercise control over the employee. Id. at 403. On review of a summary judgment, we analyze these factors based on the facts most favorable to McCann, the non-moving party. See Dugan, 929 N.E.2d at 185 (reviewing court must analyze the trial court’s basis for judgment based on the facts most favorable to the non-movant). * * *

Thus, over all, four of the seven factors, including the most important, “Control over the Means Used,” indicate McCann was not an employee of the City Court. Because the City Court was not McCann’s employer, he cannot be due any “unpaid wages” from the City Court. Therefore, he cannot assert a claim against the City Court under the Indiana Wage Statute. See Ind. Code § 22-2-9-2 (instructing what should happen “[w]henever any employer separates any employee from the pay-roll”). Accordingly, we affirm.

In Douglas Cottingham v. State of Indiana , a 7-page opinion in a case where the Court notes the State did not file an appellee's brief, Judge May writes:
Cottingham was sentenced in 2009, and began serving his home detention at that time, which was before the effective date of the 2010 amendment to Ind. Code § 35-38-2.6-6. The trial court revoked his probation after the 2010 amendment became effective. Under the doctrine of amelioration, an offender who is sentenced after the effective date of a statute that provides for a more lenient sentence is entitled to be sentenced pursuant to the new statute, instead of the statute in effect at the time of the commission or conviction of the crime. Renfroe v. State, 743 N.E.2d 299, 300-01 (Ind. Ct. App. 2001). In Renfroe, we applied this doctrine to post-sentence education credit:
Although the doctrine of amelioration does not strictly apply in Renfroe’s case, which involves a post-sentence education credit as opposed to a substantive sentencing provision, the principle remains the same: Renfroe should not be subject to an ex post facto amendment to the statute that would effectively deprive him of credit time.
Id. at 301. Based on our holding in Renfroe, we apply the doctrine of amelioration to the issue of good time credit for Cottingham while he was on home detention. * * *

The trial court did not abuse its discretion when it ordered Cottingham to serve the remainder of his sentence because Cottingham violated his probation. However, we remand because Cottingham is entitled, pursuant to Ind. Code § 35-50-6-3, to good time credit for his time on home detention. Affirmed in part, remanded in part.

In Michael Sharp v. State of Indiana , a 12-page opinion, Judge Vaidik writes:
Michael Sharp was convicted of Class A felony child molesting and Class C felony child molesting. The trial court sentenced him to an aggregate term of forty years, found him to be a credit restricted felon, and assigned him to Class IV (one day of credit time for every six days served). Sharp now appeals arguing that his convictions violate Indiana double jeopardy principles. He also argues that the trial court abused its discretion in sentencing him and that his sentence is inappropriate in light of his credit restricted felon status. We find no double jeopardy violation and no abuse of discretion in sentencing. Finally, we conclude that a defendant’s credit restricted felon status cannot be taken into consideration on Indiana Appellate Rule 7(B) review. We therefore affirm.
In Shane A. Schmidt v. State of Indiana , a 9-page opinion, Judge May writes:
Shane Schmidt challenges his conviction of and sentence for Class C felony criminal confinement. Because there was sufficient evidence to support the conviction and he has not demonstrated his sentence is inappropriate, we affirm.
In Paternity of T.M.; B.M. v. S.K., a 7-page opinion, Judge Bradford writes:
Appellant-Respondent B.M. (“Father”) appeals following the trial court's denial of his motion to set aside paternity affidavit and for DNA testing regarding the paternity of his child, T.M. We affirm. * * *

For the first fourteen years of T.M.'s life, Father held himself out to be T.M.'s father, paid child support, provided health insurance at times, and exercised primary physical custody and parenting time for substantial periods of time.

In February 2009, when T.M. was finishing his eighth-grade year, T.M. began living with Father and Father's wife, V.D. According to V.D., T.M. did not share traits with Father, so V.D. purchased a DNA kit in September 2009. The kit, purchased from Walgreens,required that Father and T.M. take mouth swabs and mail them to Identigene in Salt Lake City, Utah, for testing. According to Father, he and T.M. submitted the required swabs to Identigene. Mother did not give her permission for T.M. to participate in this test. On December 1, 2009, Identigene issued its results by email informing Father that he was not T.M.'s biological father. * * *

Father challenges the trial court's denial of his petition to set aside his paternity affidavit and for DNA testing. There is no dispute that Father executed a paternity affidavit in 1995 claiming to be T.M.'s biological father. Once a man has executed a paternity affidavit in accordance with Indiana Code section 16-37-2-2.1, he is the child's legal father unless the affidavit is rescinded pursuant to the same statute. See Ind. Code § 31-14-7-3 (2009); see also J.M. v. M.A., No. 20S04-1012-CV-676, 2011 WL 2506465 , __ N.E.2d __, (Ind. June 23, 2011) (discussing rescission of paternity affidavits). Father filed his petition to rescind his paternity affidavit approximately fourteen years after he executed it. Indiana Code section 16-37-2-2.1(i) (2009) provides as follows for rescission of paternity affidavits more than sixty days after they are executed:

A paternity affidavit that is properly executed under this section may not be rescinded more than sixty (60) days after the paternity affidavit is executed unless a court:
(1) has determined that fraud, duress, or material mistake of fact existed in the execution of the paternity affidavit; and
(2) at the request of a man described in subsection (h), has ordered a genetic test, and the test indicates that the man is excluded as the father of the child.
These provisions reflect the legislature's intent to provide assistance to a man who signed a paternity affidavit due to fraud, duress, or material mistake of fact. In re Paternity of M.M., 889 N.E.2d 846, 847 (Ind. Ct. App. 2008). * * *

Here, Father's challenge is largely premised upon his assumption that the DNA results from Identigene were admissible and reliable. But the trial court concluded that they were not. The admissibility of evidence is a matter within the trial court's discretion, and will be reversed only upon a showing of abuse of discretion. Herrera v. State, 710 N.E.2d 931, 938 (Ind. Ct. App. 1999). The single DNA test came from a mail-in kit, the test specifically stated that it was not to be used for legal purposes, and there was no information from the purported laboratory where the tests were conducted, or the persons conducting those tests, establishing a foundation to support the reliability of their results. While Father cites multiple facts in his brief in support of the admissibility and reliability of such tests, he points to no place in the record where these facts were introduced before the trial court. We find no abuse of discretion in the trial court's refusal to admit the test results.

NFP civil opinions today (8):

Term. of Parent-Child Rel. of J.C., et al.; M.C. v. IDCS (NFP)

Term. of Parent-Child Rel. of A.O. and C.O.; T.T. v. IDCS (NFP)

Term. of Parent-Child Rel. of B.M.; D.M. v. IDCS (NFP)

Paternity of A.A.; C.A., et al. v. J.B. (NFP)

Paternity of A.G.; J.B. v. H.G. (NFP)

John L. Katzioris v. Martin Service, Inc., et al. (NFP)

Aaron Isby v. D. Gilstrap, et al. (NFP)

Robert L. Clark, Jr., et al. v. Robert L. Clark, Sr. (NFP)

NFP criminal opinions today (8):

Billy Raines v. State of Indiana (NFP)

Richard Brooks v. State of Indiana (NFP)

Charles Farrell, III v. State of Indiana (NFP)

Victor Rybolt v. State of Indiana (NFP)

Randy Swisher v. State of Indiana (NFP)

Daurrel Figgs v. State of Indiana (NFP)

Eugene Lamar Robinson v. State of Indiana (NFP)

Alex Russell v. State of Indiana (NFP)

Posted by Marcia Oddi on July 19, 2011 12:18 PM
Posted to Ind. App.Ct. Decisions