Indiana Court Decisions — Jan. 17-31, 2018

7th Circuit Court of Appeals

Jan. 23

Criminal — Possession of ammunition as a felon

United States of America v. Ruben Mancillas

17-1254

The Indiana Southern District Court must resentence an Indianapolis defendant convicted of possessing ammunition as a felon after the 7th Circuit Court of Appeals determined the district court did not adequately inquire into whether he wanted to proceed pro se.

In Unites States of America v. Ruben Mancillas, 17-1254, Ruben Mancillas and his girlfriend were engaged in a heated argument that involved gunfire in August 2015 when his neighbor called police. When officers arrived, they discovered ammunition on Mancillas and in his home, though no gun was ever recovered.

Mancillas was indicted on two counts of being a felon in possession of ammunition, and he was appointed a federal defender. However, Mancillas later filed a pro se “Motion for Withdraw of Counsel,” and his counsel was replaced without the district court’s intervention.

A jury convicted Mancillas, and one day before his sentencing, the court received a letter asking for a continuance because Mancillas and his attorney were not prepared. He also told the court he contested the presentence investigation report’s application of a four-level enhancement to his federal base offense level in connection with the Indiana felony offense of criminal recklessness.

Mancillas’ counsel also objected to the enhancement, but Mancillas told the court in-person his counsel was ineffective and requested to proceed pro se. Judge William T. Lawrence of Indiana’s Southern District Court denied both of Mancillas’ motions, noting that he was on his third lawyer and that it would take too long to get a fourth lawyer up to speed.

Mancillas was then sentenced to 100 months, but the 7th Circuit Court of Appeals vacated that sentence.

Judge William Bauer, writing for the appellate panel, first said that Mancillas’ multiple requests to proceed pro se should have triggered a colloquy under Faretta v. California, 422 U.S. 806, 819 (1975). Such colloquies are meant to ensure litigants understand the difficulties they will face while proceeding pro se, Bauer said.

“Even at sentencing, where the complexities of trial and the difficult strategic choices are past, a court must respect the wishes of a defendant who unequivocally wishes to exercise his or her right to proceed pro se,” the judge wrote. “This means undertaking a meaningful inquiry into a request for self-representation; summarily denying the request without any inquiry is error.”

Thus, the case was remanded for resentencing and an inquiry into whether Mancillas still wishes to represent himself.
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Jan. 24

Criminal — Malicious Prosecution

William Hurt, Deadra Hurt and Andrea Hurt v. Matthew Wise, et al.

17-1771, -1777

A federal complaint alleging coercion, constitutional violations and falsification of evidence by Evansville and Kentucky police officers investigating a murder will continue after the 7th Circuit Court of Appeals determined qualified immunity was not appropriate for certain claims against the officers.

In June 2012, Marcus Golike’s body was found on the banks of the Ohio River, and an autopsy determined he had died from strangulation. Evansville police detectives began questioning Golike’s foster nephew, William, who was with Golike the night before he died.

A subsequent conversation with Golike’s brother revealed he had been diagnosed with paranoid schizophrenia and had threatened to commit suicide by jumping from a bridge over the Ohio River. But Kentucky and Evansville police officers requested that William come in for a police interview, during which he gave a consistent account of what had happened the night before Golike’s death — that the two had played chess, and Golike then left.

The officers accused William of being a liar, so he “confessed” that he and his sisters, Deadra and Andrea, were responsible for Golike’s death by punching and choking him to death, dumping his body in the river and using his debit card after the murder.

Deadra also “confessed” after undergoing a similar interrogation, and all three, including Andrea, were arrested based on those confessions. But according to a Jan. 24 7th Circuit Court of Appeals opinion, the confessions were replete with evidence that could have been proven inaccurate, and the siblings seemed to be guessing at answers to the officers’ questions until the officers seemed satisfied. Similarly, a summary report omitted a critical detail — a clerk at the store where the teens claimed to have used the debit card said she did not recall the teens coming into the store that night.

Andrea was eventually released, the charges against Deadra were dropped, and William was not found guilty of any of the charges against him. The siblings then filed a federal complaint alleging constitutional and state-law violations by the state medical examiner and Kentucky and Evansville police officers. The Indiana Southern District Court granted authorities summary judgment on all but four of those claims: the siblings’ Fourth Amendment claims against the officers who questioned them; their failure to intervene claims against the Evansville and Kentucky State police departments; Deadra and Williams’ malicious prosecution claims against EPD; and Deadra and William’s due process claims against the interrogating officers.

Seventh Circuit Chief Judge Diane Wood, taking the facts of the case in the light most favorable to the Hurts, agreed with the district court that there were material factual disputes precluding immunity on the false arrest claims and undermining even arguable probable cause to arrest them. Similarly, because a trier of fact could reasonably determine the Evansville police defendants were aware of Fourth Amendment violations against the siblings, the denial of summary judgment on the failure to intervene claim was also proper, the chief judge wrote in William Hurt, Deadra Hurt and Andrea Hurt v. Matthew Wise, et al., 17-1771, -1777.

The appellate court then upheld denial of summary judgment on William’s malicious prosecution claims against EPD, finding the falsified police reports could have prolonged his prosecution. With respect to Deadra’s claim, however, the court found that William Arbaugh and Jason Pagett — two officers involved in the investigation — were entitled to qualified immunity because they allegedly falsified a report after her charges were dismissed.

Finally, the 7th Circuit determined William and Deadra did not suffer from a substantive due process deprivation through their interrogations, but the court did uphold the denial of summary judgment on their involuntary confessions claims. Specifically, the court found the officers had forced Deadra into an involuntary confession by telling her she would spend time in jail and would “hang” if she did not tell the truth. William received similar statements, and a trier of fact could find those statements to be threats, Wood wrote.

“Perhaps, as the officers argue in their briefs, a trier of fact might come to the opposite conclusion and think that they were pushing, but doing nothing that crossed a constitutional line,” Wood wrote. “It is not for us to resolve that question. It must await further proceedings.”
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Jan. 30

Civil Tort — Malicious Prosecution

Kristine Bunch v. United States of America

16-3775

A malicious prosecution case brought by a woman wrongly convicted of murdering her son will continue in district court after the 7th Circuit Court of Appeals overturned the grant of summary judgment to the United States government.

After a fire destroyed her home and claimed the life of her 3-year-old son in June 1995, investigators with the Indiana Fire Marshal’s office decided Kristine Bunch had intentionally set the blaze. But when samples from Bunch’s home were sent to William Kinard, a federal forensic chemist with the Bureau of Alcohol, Tobacco and Firearms, he determined no accelerants were present in the living room and boy’s bedroom, where the fire began.

According to Bunch, the investigators told Kinard they were not happy with the results of his report, so he agreed to fabricate findings and report that accelerants were found in the two central locations. Bunch was subsequently convicted of felony murder and sentenced to 60 years.

But when Kinard’s true findings came to light during post-conviction relief proceedings in 2006, the Indiana Court of Appeals reversed her conviction. In addition to the discovery of the fabricated findings, the court found independent evidence to justify post-conviction relief.

Bunch then sued the United States as Kinard’s employer under the Federal Tort Claims Act, alleging malicious prosecution and intentional infliction of emotional distress. The Indiana Southern District Court, however, found the intentional-tort exception to the general waiver of immunity in the FTCA applied and, thus, granted summary judgment to the government.

But the 7th Circuit Court of Appeals reversed the grant of summary judgment in Kristine Bunch v. United States of America, 16-3775. Chief Judge Diane Wood, writing for the unanimous appellate panel, said the record in the case was lacking “a complete set of relevant ATF regulations and directives.” Thus, as in Keller v. United States, 771 F.3d 1021 (7th Cir. 2014), the court could not conclude the intentional-tort exception applied to Kinard.  

Further, the ATF’s proffered regulations failed to show Kinard qualified as an investigative or law enforcement officer, a classification that would defeat the intentional-tort exception, Wood wrote. Those regulations allowed ATF officers to “perform any function related to the administration or enforcement” of the bureau’s functions.

“Bunch put forward evidence that Kinard’s job … included the identification of relevant evidence for colleagues during crime-scene investigations,” Wood wrote. “Undoubtedly there are many employees of ATF for whom the same cannot be said. But forensic chemists, according to the summary-judgment record before us, do play at least this active a role.”

“Perhaps this account can be controverted at trial,” the chief judge continued. “For now, however, Bunch did enough to defeat summary judgment in favor of the United States, given that the burden of proof rested with the government.”

Indiana Supreme Court

Jan. 19

Adoption — Judge Recusal

L.G. v. S.L., et al.

18S-AD-32

Though an attorney who served as a reference for his application to the Indiana Supreme Court served as counsel for an adoption case in his court, a Hamilton County judge was not required to recuse himself because of that relationship, the Indiana Supreme Court has ruled.

In L.G. v. S.L., et al., 18S-AD-32, S.L. and W.L. filed a petition for adoption of Infant Male R in November 2015. Meanwhile, L.G. filed a paternity action that was consolidated with the adoption proceeding, and a discovery dispute between the adoptive parents and L.G. ensued.

Among the issues that arose during the proceedings was L.G.’s motion for recusal of Hamilton Superior Judge Steven R. Nation who had applied to become an Indiana Supreme Court justice. The adoptive parents’ attorney, Charles Rice, was listed as one of Nation’s professional references on his application and wrote a letter of recommendation for Nation during the pendency of the instant case.

L.G. argued Nation and Rice’s relationship warranted recusal, but Nation denied the motion and eventually entered a decree of adoption. The putative father then appealed, and the Indiana Court of Appeals sua sponte determined Nation should recuse himself on remand. The appellate court also reversed the dismissal of L.G.’s motion to contest the adoption.

While the Indiana Supreme Court affirmed the Court of Appeals’ ruling as to the actual adoption proceedings, it granted transfer Jan. 19 to address its disagreement with the lower court’s ruling on the issue of recusal.

Justice Steven David, writing for the unanimous court, drew on the case of Indiana Gas Co. v. Indiana Fin. Auth., 992 N.E.2d 678 (Ind. 2013), a case in which the movant called for Justice Mark Massa’s recusal due to his personal relationship with a project manager for one of the parties. Massa declined, writing it would be “disabling to this Court if we were required to recuse every time a ‘friend’ came before us as a lawyer for a party or worked as an employee of, or consultant to, a party.”

“Similarly, although Rice said kind things about Judge Nation in a recommendation letter and served as a reference for him, this alone is not enough to require recusal,” David wrote. “If it were, then Judge Nation (and any trial judge who submitted an application for an appellate judge position) would have to recuse himself in each case where one of the attorneys listed on his application and/or who wrote letters for him appeared.”

“This would be disabling to courts, particularly in small Indiana counties where only a handful of attorneys practice in front of the trial court judge,” he continued.

David went on to write that reference letters, by nature, are flattering, and there was nothing extra in Rice’s letter that suggested a special relationship between him and Nation. Further, Nation, as the fact-finder, was vested with discretion to assess the credibility of witnesses, and there was “nothing unusual or inappropriate about the trial court finding that (L.G.) was not a credible witness.”

“Judge Nation’s order made no findings about the merits of Father’s motion to contest the adoption or Father’s ability to be a suitable parent,” David wrote. “Accordingly, we see no need for Judge Nation to recuse himself on remand.”

The high court summarily affirmed the Court of Appeals’ decision in all other respects and remanded the case for further proceedings. Justice Geoffrey Slaughter did not participate.

Indiana Court of Appeals

Jan. 18

Domestic Relation — Income Calculation, Contempt, Fees

Dayne J. Marshall v. Angela M. Marshall 

85A02-1706-DR-1503 

A child support dispute between two Wabash County parents will return to the trial court on remand after the Indiana Court of Appeals found errors in the lower court’s computation of both parties’ incomes.

In Dayne J. Marshall v. Angela M. Marshall, 85A02-1706-DR-1503, Dayne and Angela Marshall divorced in June 2009 and entered a dissolution decree giving both parents joint legal custody of their child, but giving Dayne physical custody. No child support was due at that time.

About one year later, the Wabash Superior Court modified the child support order at the father’s request and ordered Angela to pay $52 per week. Then in April 2016, the mother moved to modify child support again, alleging a change in her circumstances that would warrant a reduction in her payments.

Dayne Marshall filed an affidavit a few months later alleging his ex-wife was in contempt for refusing to pay him $52 a week, resulting in arrears totaling nearly $4,200. Both parties also requested attorney fees.

In its June 2017 order, the trial court ordered Dayne Marshall to begin paying $58 per week in child support effective April 2016, while terminating his ex-wife’s monetary obligation at the same time. The court went on to find Angela was voluntarily underemployed and was in contempt for failure to pay child support prior to the termination of her obligation. Her income was imputed at $450.79, while her ex-husband’s was set at $1,608.40 per week, an amount that did not include the “large amounts of overtime” he worked.

Finally, the court denied the mother’s request for attorney fees, and the father appealed. The Indiana Court of Appeals affirmed and reversed in part, with Judge Elaine Brown first writing that the trial court failed to consider Angela’s potential income were she not voluntarily undermployed.

While the record contains facts to support the trial court’s finding that the mother was voluntarily underemployed, the appellate court declined to make a finding determining the extent of her underemployment. Instead, the court remanded the case for the trial court to consider her potential income.

The appellate court went on to find the lower court erred by excluding Dayne’s overtime from the calculation of his income. Thus, the case was also remanded on that issue, with instructions to include his overtime and any other additional income “only to the extent the trial court determines the income is dependable based upon the evidence… .”

In a footnote, Brown also pointed to inconsistencies in the reported amount of Angela’s arrearage. The court remanded for clarification on that issue, as well.

Finally, the court upheld the contempt finding against Angela and the denial of her motion for attorney fees, finding she failed to pay her weekly child support obligation and did not provide a reason for that failure. Similarly, her failure to pay her child support obligation supports the denial of her request for attorney fees, Brown said.
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Jan. 24

Criminal — Child Molesting/Evidence

David Wright v. State of Indiana

05A02-1610-CR-2397

A Blackford County man who admitted to molesting two children living in his apartment will have his convictions reversed after the Indiana Court of Appeals determined his incriminating statements were inadmissible under the fruits of the poisonous tree doctrine.

In David Wright v. State of Indiana, 05A02-1610-CR-2397, David Wright shared an apartment with a married couple and their children. The apartment was part of an older home that had been divided into separate apartments. Wright and the family had the address of 220 E. Water St., while the property owner and their two children lived at 220½ E. Water St.

In January 2016, FBI special agent Jeffrey Robertson arrived at the home with a warrant to search the computers at 220 1/2 E. Water St., but he was not aware the home was divided into apartments. Rather than seeking a warrant for Wright’s specific address, Robertson proceeded to enter his unit and told all the residents he wanted to scan their electronics. However, he did not advise the residents that they did not have to give their consent, nor did he use the written consent forms in his vehicle.

Instead, the special agent told Wright and the other residents he could either remove them from their home while he sought a second warrant for their home and computers, or he could take their electronics and return them as quickly as possible. The residents chose the latter option, and a scanning system indicated at least one child pornography image was present on Wright’s computer.

Robertson then returned to the apartment three days later and spoke to Wright about what was found on his computer while sitting in his car.  During the conversation, Wright admitted to having “some kind of contact” with two of the children he shared an apartment with, so Robertson called the Hartford City Police and took Wright into custody.

Wright then admitted in a subsequent police interview that he had performed numerous sexual acts with two children 10 and younger. He was charged with four counts of Level 1 felony child molestation, and he asked the trial court to exclude all evidence obtained from the search of the apartment and computers, as well as his statements to Robertson and local law enforcement.

The Blackford Circuit Court granted the former request but denied the latter, determining Wright’s statements to police were obtained independently of the warrant search. The trial court then found him guilty, but the Indiana Court of Appeals reversed his convictions Jan. 24.

Senior Judge Carr Darden wrote for the unanimous appellate panel that Wright’s incriminating statements were directly derived from the search of the apartment that the trial court had earlier suppressed as unconstitutional. Thus, the statements were considered fruit of the poisonous tree.

The appellate court reversed Wright’s convictions and remanded the case for further proceedings, determining it was not necessary to address the issue of whether his sentence was inappropriate.
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Jan. 25

Criminal — Neglect of a Dependent

Billy J. Burden v. State of Indiana

66A03-1706-CR-1298

The Indiana Court of Appeals has reversed a man’s felony neglect conviction after finding there was insufficient evidence to prove the man knew he was placing a dependent in danger by leaving the scene of a car accident.

In Billy J. Burden v. State of Indiana, 66A03-1706-CR-1298, Billy Burden and his girlfriend, Christina, were in a car with Christina’s children, including K.E., who is possibly Burden’s daughter. Christina sat in the back seat holding a car seat in her lap, with K.E. buckled into the car seat.

Burden’s sister, Tiffany, was driving and began to accelerate to more than 100 miles per hour. She lost control of the vehicle, which ran off the road and rolled over multiple times before landing on the roof. Both of Christina’s children, as well as Tiffany’s child, were ejected from the car, with K.E. landing still in her car seat.

Burden freed himself from the vehicle and checked to see if everyone was OK. He then found another motorist to take him to get help, even though a passing motorist, Dewain Davis, had told Burden that he had called 911. However, deputies later learned that Burden never called anyone for help after he left the scene.

Meanwhile, K.E. was airlifted from the accident to a trauma center. Burden was eventually charged and convicted of Level 6 felony neglect of a dependent because of his decision to leave the scene, which the state alleged placed K.E. in a situation that endangered her life or health.

But the Indiana Court of Appeals reversed that conviction Jan. 25. Judge James Kirsch wrote that Burden repeatedly inquired into K.E.’s whereabouts and well-being immediately after the accident. Additionally, Christina testified that she did not allow anyone else to care for K.E., which limited Burden’s ability to help the child at the scene of the accident, Kirsch said.

“Moreover, K.E. and the other occupants of the car, with the exception of B.E., appeared uninjured and, in fact, did ‘not have any serious injuries,’” Kirsch wrote. “Finding no evidence to support the element that Burden had a subjective awareness of a high probability that, by leaving the scene, he had placed K.E. in a situation that endangered her life or health, we reverse Burden’s conviction for Level 6 felony neglect of a dependent.”

Further, in a footnote, Kirsch wrote the state’s assertion that Burden left the scene because of a pending warrant was “irrelevant where that evidence is insufficient for a jury to find beyond a reasonable doubt that Burden was subjectively aware of a high probability that by leaving the scene, he had placed … K.E. in a situation that created an actual and appreciable danger to her.”

Post-Conviction — Ineffective Assistance of Counsel

29A02-1706-PC-1203

Angelo Bobadilla v. State of Indiana

An immigrant who was deported after a misdemeanor guilty plea cost him his protection under the federal Deferred Action on Childhood Arrivals policy failed to show he was entitled to relief because his lawyer failed to inform him of his risk of deportation, the majority of an Indiana appellate panel found.

But dissenting Indiana Court of Appeals Chief Judge Nancy Vaidik found the majority’s conclusion was at odds with the evidence as well as “everyday experience.” She noted the underlying crime that led to the “Dreamer’s” deportation was “essentially shoplifting from Wal-Mart.”

Angelo Bobadilla was born in Mexico in 1996, was brought to the U.S. as a child, and has lived here for the last 10 years under the DACA program. He pleaded guilty to misdemeanor theft and possession of marijuana counts in March 2016 and was sentenced to one year suspended to probation. He was detained by Immigration and Customs Enforcement in May 2017 and subsequently deported, according to the record. The opinion notes that even though Bobadilla served no jail time, federal immigration law considers the misdemeanor an “aggravated felony” and a “crime of violence” because he was sentenced to one year or more.

Bobadilla had sought post-conviction relief from his conviction for ineffective and inadequate assistance of counsel. He unsuccessfully argued last year in Hamilton Superior Court that his counsel had not advised him that he could be deported because of his plea. It included an advisement that read, “If you are not a U.S. citizen, a criminal conviction may have immigration consequences, including deportation. You should discuss this possibility with your attorney because if you do plead guilty, it will result in a criminal conviction.”

Bobadilla argued his attorney, Hamilton County public defender Karl Hadley, incorrectly marked “NA” next to the advisement. Hadley later acknowledged before the post-conviction court that he had not been aware of Bobadilla’s immigration status when he marked that this advisement did not apply to his client. The PCR court noted that Bobadilla admitted he never told his counsel his immigration status.

The majority of the Court of Appeals panel Thursday affirmed the trial court’s denial of Bobadilla’s PCR petition. Writing for the majority joined by Judge Terry Crone, Judge Paul Mathias wrote that Bobadilla had not shown ineffective assistance of counsel while observing in a footnote, “the State concedes that counsel’s performance here may have been deficient.”

Nevertheless, Mathias wrote, “Bobadilla has failed to show that … he was prejudiced by trial counsel’s failure to advise him of the risk of deportation. We initially note that Bobadilla never asserted that he would have proceeded to trial had he known the potential consequences of his plea. When asked if he would have reacted differently had the statement pertaining to immigration consequences not been marked NA by trial counsel on the advisement form, Bobadilla merely stated, ‘Yes, I would. I would take a different approach to that.’ … However, the approach Bobadilla would have taken is unclear, and his general statement is insufficient to establish prejudice based on improper advice from trial counsel.

“Moreover, the State’s case against Bobadilla was strong, and he received a substantial benefit by choosing to plea. At his plea hearing, Bobadilla agreed with the State’s factual basis for his theft and possession of marijuana convictions. And the State dropped two additional misdemeanor counts because Bobadilla accepted a plea agreement. Thus, Bobadilla admitted to the facts forming the basis of the crimes for which he was convicted, he received the benefit of avoiding two more convictions on his record, and he received an entirely suspended sentence from the court,” the panel found.

But Vaidik wrote that Bobadilla had proven “his trial counsel’s performance fell below an objective standard of reasonableness.

“Second, I am fully convinced that Bobadilla has demonstrated a reasonable probability that he would have rejected the plea had he known that he would be deported. … When Bobadilla pled guilty, he was 19 years old, was legally in the United States as a ‘Dreamer’ … and had lived here for at least 10 years. … After Bobadilla pled guilty and was sentenced to probation, he spoke to an immigration attorney, who informed him that his DACA status was at risk and that he was subject to deportation.

“… Bobadilla claimed that had he been properly advised of the risk of deportation, he would have … rejected it,” Vaidik wrote.

She also rejected the majority’s view of the supposed benefits Bobadilla derived from accepting the plea. She wrote the majority’s suggestion that Bobadilla would have accepted the plea even if he’d known of the risk of deportation was “at odds not only with Bobadilla’s post-conviction petition and testimony but also with everyday experience.

“Most people in his situation would see removal to a country they have not lived in since they were children to be a serious enough punishment to justify the rejection of an arguably ‘favorable’ misdemeanor plea and taking their chances at trial.” She wrote that the “reasonable probability” that Bobadilla would have rejected the plea required reversing the trial court.
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Jan. 30

Post-Conviction — Ineffective Assistance of Counsel

Major Wilson v. State of Indiana

45A03-1707-PC-1466

A pro se defendant sentenced to 100 years of incarceration can take his case back to the trial court after the Indiana Court of Appeals found his appellate counsel prejudiced him by not raising the issue of whether his waiver of counsel was knowing, intelligent and voluntary.

In Major Wilson v. State of Indiana, 45A03-1707-PC-1466, Major Wilson was appointed a public defender to represent him on 10 charges for various crimes but filed a motion to dismiss his public defender when his friends retained private counsel for him. When the trial court denied that motion, he moved to proceed pro se.

The judge repeatedly told Wilson he did not have the right to represent himself and did not acquiesce until the public defender cited to the 2004 case of Stroud v. State of Indiana. The public defender agreed to serve as standby counsel, and Wilson was convicted of Class A felony criminal deviate conduct and Class B felony burglary while armed with a deadly weapon and sentenced him to 100 years.

The Indiana Court of Appeals affirmed Wilson’s convictions on direct appeal in 2015, prompting his petition for post-conviction relief. During an ensuing evidentiary hearing, Wilson’s appellate counsel testified she did not request transcripts from the hearings in which the waiver of his right to counsel as discussed but should have done so.

The Lake Superior court denied the PCR petition, finding “no constitutional requirement for appellate counsel to look beyond the trial record for issues on appeal… .” The court also noted neither Wilson nor his standby counsel had informed his appellate counsel that there may have been a question as to his waiver of the right to counsel.

But the Indiana Court of Appeals reversed the denial of Wilson’s PCR petition, finding he did receive ineffective assistance of appellate counsel. Judge John Baker first chastised the trial court’s “egregious lack of knowledge” on the right to proceed pro se and the procedures for waiving the right to counsel and advised the judge to review relevant caselaw “without delay.”

Turning to the merits of the appeal, Baker then wrote a record on appeal constitutes “all proceedings before the trial court,” including pre-trial transcripts, so neither Wilson nor his standby counsel were required to inform his appellate counsel of possible issues with his counsel waiver. The trial court also failed to ensure Wilson’s waiver was knowing, voluntary and intelligent by not asking any questions to ensure those requirements were met.

Further, an unknowing waiver argument on appeal would have been stronger than the insufficient evidence argument Wilson’s appellate counsel raised, Baker said. Thus, Wilson was prejudiced by his appellate counsel’s ineffective representation, and the presence of standby counsel did not waive the trial court’s duty to ensure his waiver of counsel met the necessary requirements.

“Here, the transcript is clear on its face: the trial court did not advise Wilson of the risks of self-representation, let alone ask even one question to ascertain whether his waiver of his right to counsel was knowing, voluntary, and intelligent,” Baker wrote. “Had appellate counsel raised this issue on appeal, it is highly likely that this Court would have reversed the judgment against Wilson and remanded for a new trial.”

The case was remanded for further proceedings.
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Jan. 31

Juvenile — Paternity

In Re: The Paternity of I.I.P.: Kailei L. Poteet v. Justin Rodgers and Nathan T. Poteet

63A01-1706-JP-1265

A Pike County paternity case involving a child’s legal and biological fathers will continue in trial court after the Indiana Court of Appeals determined the legal father was not entitled to judgment as a matter of law on the biological father’s paternity action.

Kailei Poteet had an intimate relationship with two men around the same time, including Nathan Poteet, whom she eventually married in 2014. Before the marriage, Kailei gave birth in November 2012, and the child’s biological father was Justin Rodgers, the man she began a relationship with after originally ending her relationship with Nathan.

Nathan, however, formed a bond with the child and executed an affidavit to establish his paternity of the child in January 2015. Kailei also signed the affidavit, and when divorce proceedings began less than a year later, Nathan was granted parenting time during the pendency of the divorce.

Kailei eventually rekindled her relationship with Rodgers and petitioned to identify him as the child’s biological father. A subsequent DNA test established a 99.99 percent probability that Rodgers was the child’s biological parent, but Nathan moved to dismiss the paternity action, alleging the petition failed to state a claim for relief, was barred and was contrary to the child’s best interests.

The Pike Circuit Court granted the motion to dismiss, finding Kailei was estopped from bringing the action because she had signed the affidavit naming Nathan as her child’s legal father. The court further noted Rodgers had not filed a petition to establish paternity.

But a divided panel of the Indiana Court of Appeals reversed that decision, with Judge Patricia Riley writing for the majority that Nathan was not entitled to judgment as a matter of law. Noting the “irregular” paternity proceedings created “instability and confusion” in the child’s life, the majority nevertheless determined there was a material question as to whether Rodgers provided support for the child.

Riley pointed to testimony that Rodgers had been living with Kailei for eight months before the paternity hearing and providing financial support to the child during that time. If that were true, then he and the mother could file a petition to establish Rodgers’ paternity more than two years after the child’s birth pursuant to Indiana Code section 31-14-5-3.

The majority joined by Judge Elaine Brown remanded the case for further proceedings, but Judge John Baker dissented based on I.C. 16-37-2-2.1(1). That statute holds that when a paternity affidavit has been executed, it cannot be rescinded short of fraud, duress, mistake or test results excluding the man in question as the father.

None of those factors were present in this case, Baker said, so I.C. 31-14-5-3 should not apply.

“To say that judicial action can trump a valid paternity affidavit even if the parties have not complied with Indiana Code section 16-37-2-2.1 is to render that statute meaningless, which is a result that should be avoided,” he said.

The case is In Re: The Paternity of I.I.P.: Kailei L. Poteet v. Justin Rodgers and Nathan T. Poteet, 63A01-1706-JP-1265.•