GN v. State

833 N.E.2d 1071, 2005 WL 2155521
CourtIndiana Court of Appeals
DecidedSeptember 8, 2005
Docket49A05-0412-JV-683
StatusPublished
Cited by1 cases

This text of 833 N.E.2d 1071 (GN v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
GN v. State, 833 N.E.2d 1071, 2005 WL 2155521 (Ind. Ct. App. 2005).

Opinion

833 N.E.2d 1071 (2005)

G.N., Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.

No. 49A05-0412-JV-683.

Court of Appeals of Indiana.

September 8, 2005.

*1073 Katherine A. Cornelius, Public Defender, Indianapolis, for Appellant.

Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

SHARPNACK, Judge.

G.N. appeals an adjudication finding him to be delinquent for truancy. G.N. raises two issues, which we revise and restate as:

I. Whether the trial court abused its discretion by denying G.N.'s request for a continuance; and
II. Whether the evidence is sufficient to sustain G.N.'s adjudication.

We affirm.

The facts most favorable to the adjudication follow. During the school year of 2003-2004, G.N., a thirteen-year-old, attended John Marshall Middle School. G.N. had fifteen unexcused absences from September 2003 through December 2003. G.N.'s stepfather, Shawn Savage, claimed that eleven of the absences were due to doctor appointments for either G.N.'s broken hand or for his eczema, two absences were due to an in-school suspension as a result of a late bus, and two absences were due to an in-school suspension as a result of G.N. violating the school dress code. G.N.'s stepfather claimed that he provided the school with written medical excuses for the days G.N. had doctor appointments.

On January 13, 2004, the State filed a petition alleging that G.N. was a delinquent child for violating Ind.Code § 20-8.1-3-17 (2004), the compulsory school attendance law. The State alleged that:

On or about the 18th day of December, 2003, [G.N.] did knowingly violate the Indiana Compulsory Attendance Law: that is: failed to attend John Marshall Middle, on the following dates: 9-4-03, 9-22-03, 9-29-03, 10-17-03, 10-20-03, 10-21-03, 10-27-03, 10-28-03, 10-31-03, 11-6-03, 11-7-03, 11-13-03, 11-14-03, 11-17-03, & 12-15-03.

Appellant's Appendix at 12.

On June 24, 2004, G.N. failed to appear at the initial hearing, and the juvenile court reset the hearing for August 12, 2004. On August 12, 2004, G.N. failed to appear for the initial hearing, and the juvenile court reset the hearing for August 31, 2004. On August 31, 2004, the juvenile court held the initial hearing with G.N. and G.N.'s stepfather present, approved the filing of the petition, and continued the hearing to October 1, 2004. On October 1, 2004, the juvenile court appointed a public defender to represent G.N. and while G.N., G.N.'s stepfather, and a public defender were present, set the denial hearing for November 3, 2004.[1]

At the denial hearing, the public defender moved for a continuance so that medical records could be obtained, which the juvenile court denied. The juvenile court adjudicated G.N. to be a delinquent for violating the compulsory school attendance law. The juvenile court placed G.N. on probation with forty hours of community service and required G.N. to attend all classes and use a sign-in/sign out sheet.

*1074 I.

The first issue is whether the trial court abused its discretion by denying G.N.'s request for a continuance. Ind. Code § 35-36-7-1 (2004) sets forth the procedure for a continuance due to the absence of evidence and provides:

(a) A motion by a defendant to postpone a trial because of the absence of evidence may be made only on affidavit showing:
(1) that the evidence is material;
(2) that due diligence has been used to obtain the evidence; and
(3) the location of the evidence.
* * * * *
(d) A defendant must file an affidavit for a continuance not later than five (5) days before the date set for trial. If a defendant fails to file an affidavit by this time, then he must establish, to the satisfaction of the court, that he is not at fault for failing to file the affidavit at an earlier date.

The following exchange occurred at the beginning of the denial hearing:

PUBLIC DEFENDER: Your Honor, defense would move for a continuance for the record. Mr. Savage and his wife, parents to my client, have been diligent in trying to obtain medical records that would dispute the charges. Father has presented me with information that is certainly suggestive of exoneration but not conclusive, and so we would ask for a continuance to allow defense counsel to subpoena the physicians involved and acquire the medical records through that process.
THE COURT: State.
THE STATE: For the record Your Honor, [S]tate is ready for trial today.
THE COURT: It looks like the petition was actually filed way back in January. The dates in question pertain to well over a year ago.
PUBLIC DEFENDER: Yes Your Honor.
THE COURT: At least in some cases. Given the ____ of the motion, I'm going to deny the motion for continuance.

Transcript at 1-2. Thus, G.N.'s oral motion for a continuance was not made by affidavit and fell outside the parameters for continuances under Ind.Code § 35-36-7-1.

Rulings on nonstatutory motions for continuance lie within the discretion of the trial court and will be reversed only for an abuse of that discretion and resultant prejudice. Maxey v. State, 730 N.E.2d 158, 160 (Ind.2000). An abuse of discretion occurs only where the decision is clearly against the logic and effect of the facts and circumstances. Palmer v. State, 704 N.E.2d 124, 127 (Ind.1999). Continuances for additional time to prepare for trial are generally disfavored, and courts should grant such motions only where good cause is shown and such a continuance is in the interest of justice. Id.

On appeal, G.N. argues that had the juvenile court granted a continuance, he could have submitted information from three or four different medical facilities verifying that he missed school because of his medical appointments. The State argues that G.N. has failed to show good cause because he failed to demonstrate any attempts were made to obtain the records prior to the date of the denial hearing. We agree.

G.N. relies on Vance v. State, 640 N.E.2d 51 (Ind.1994). In Vance, the defendant killed his mother on August 9, 1991. Id. at 54. The trial court appointed a public defender on Saturday, August 10, 1991. Id. On August 12, the State filed a Petition Alleging Delinquency that charged the defendant with murder and *1075 requested that the defendant be waived to adult court. Id. Defense counsel objected to proceeding with the waiver hearing and requested a continuance in order to prepare, which the trial court denied. Id.

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Related

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839 N.E.2d 1282 (Indiana Court of Appeals, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
833 N.E.2d 1071, 2005 WL 2155521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gn-v-state-indctapp-2005.