author: DICKSON, Chief Justice. RUCKER, Justice,

text:
    Walter LYLES, Appellant, v. STATE of Indiana, Appellee.
    No. 49S02-1201-CR-49.
    Supreme Court of Indiana.
    June 29, 2012.

      Darren D. Bedwell, Ruth A. Johnson, Marion County Public Defender, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   On Transfer from the Indiana Court of Appeals, No. 49A02-1104-CR-291

DICKSON, Chief Justice.

The defendant, Walter Lyles, has appealed his conviction for misdemeanor Criminal Trespass, contending that there was insufficient evidence to support any inference that he lacked a contractual interest in the property upon which he is accused of trespassing. We hold that there was sufficient evidence to support his conviction.

The underlying facts of the case are not in dispute. On December 3, 2010, the defendant visited a bank branch located at 2600 West Michigan Street in Indianapolis, Indiana. The defendant, an account holder of the bank, was seeking to obtain a “print-out” of his account for free from one of the bank’s tellers. Tr. at 17. Per its policy, the bank refused to give the defendant a free “print-out” and instead offered to give the defendant a “statement” for a $6 fee. Tr. at 6. A manager explained the bank’s policy to the defendant, but the defendant persisted in his request and became “irate and disrespectful.” Tr. at 8. The manager then asked the defendant to leave the bank and called the police when the defendant refused. The police officer who responded to the bank’s call arrested the defendant after first asking the defendant to leave multiple times.

The State charged the defendant with Criminal Trespass as a class A misdemeanor under Indiana Code Section 35-43-2-2. The case was tried before a commissioner, who found the defendant guilty of misdemeanor Criminal Trespass. The defendant then initiated this appeal of his conviction, claiming insufficient evidence. The Court of Appeals reversed the trial court, vacating the conviction. Lyles v. State, 956 N.E .2d 180 (Ind.Ct.App.2011). We granted transfer and now affirm the defendant’s conviction for Criminal Trespass.

On appeal, the defendant’s only contention is that there was insufficient evidence to convict him of Criminal Trespass as charged because he contends that there was no evidence from which the trier of fact could infer that he lacked a contractual interest in the real property of the bank.

An accused person’s right to Due Process of Law obliges the State to prove every element of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560, 571 (1979); Adkins v. State, 887 N.E .2d 934, 936-37 (Ind.2008). When reviewing a claim of insufficient evidence, an appellate court neither reweighs the evidence nor judges the credibility of the witnesses as this is the exclusive province of the jury. Fleck v. State, 508 N.E.2d 539, 540 (Ind.1987); Deal v. State, 140 Ind. 354, 356-61, 39 N.E. 930, 930-32 (1895) (establishing standard of review for claims of insufficient evidence). We consider only the evidence most favorable to the State together with all reasonable and logical inferences which may be drawn therefrom. Fleck, 508 N.E.2d at 540; Lee v. State, 156 Ind. 541, 545-46, 60 N.E. 299, 301 (1901) (requiring all reasonable inferences to be construed in favor of verdict). “If a reasonable finder of fact could determine from the evidence that the defendant was guilty beyond a reasonable doubt, then we will uphold the verdict.” Justice v. State, 530 N.E.2d 295, 296 (Ind.1988) (emphasis added).

The Criminal Trespass statute criminalizes several categories of conduct relating to one person’s interference with another’s property. See generally Ind. Code § 35-43-2-2. In this case, the State charged the defendant with Criminal Trespass for violating Section 35-43-2-2(a)(2), which makes it a crime for a person who, “not having a contractual interest in the property, knowingly or intentionally refuses to leave the real property of another person after having been asked to leave by the other person or that person’s agent.” Thus, the State must prove that the defendant (1) knowingly or intentionally (2) refused to leave (3) the real property (4) of another person (5) after having been asked to leave (6) by the person or the person’s agent (7) when such defendant lacked a contractual interest in the real property. See id. § 35-43-2-2(a)(2).

In proving the lack of a contractual interest, the State need not “disprove every conceivable contractual interest” that a defendant might have obtained in the real property at issue. Fleck, 508 N.E.2d at 541. Were the State required to negate every conceivable contractual interest, it would face a potentially impossible burden to identify and refute every possible contractual interest a defendant might have in the property. This is more than due process requires. See Jackson, 443 U.S. at 316, 99 S.Ct. at 2787, 61 L.Ed.2d at 571 (requiring only that the State prove each material element of the offense “beyond a reasonable doubt”). Thus, as Fleck recognizes, some contractual interests need not be disproven because they do not create any reasonable doubt that a defendant lacks a contractual interest in the property. For this reason, the State satisfies its burden when it disproves those contractual interests that are reasonably apparent from the context and circumstances under which the trespass is alleged to have occurred.

At trial, there was evidence that the defendant was neither an owner nor an employee of the bank as well as evidence that the bank manager had authority to ask customers to leave the bank premises. This evidence, taken together, refuted each of the most reasonably apparent sources from which a person in the defendant’s circumstances might have derived a contractual interest in the bank’s real property: as an owner, as an employee, and as an account holder. Thus, we hold that there was sufficient evidence from which a reasonable jury could infer that the defendant did not have a contractual interest in the bank’s real property.

Conclusion

We hold that there was sufficient evidence to support the defendant’s conviction for Criminal Trespass and affirm the trial court.

SULLIVAN, DAVID, and MASSA, JJ., concur.

RUCKER, J., dissenting with separate opinion.

RUCKER, Justice,

Dissenting.

I respectfully dissent. I agree with the majority that “[t]he term ‘contractual interest in the property is not defined by the criminal trespass statute or elsewhere in the Indiana Code.” Op. at 143 n. 2. However, our Court of Appeals has declared that the term “ ‘contractual interest,’ as it is used in the criminal trespass statute, refers to the right to be present on another’s property, arising out of an agreement between at least two parties that creates an obligation to do or not to do a particular thing.” Taylor v. State, 836 N.E.2d 1024, 1026 (Ind.Ct.App.2005) (citing A.E.B. v. State, 756 N.E.2d 536, 540 (Ind.Ct.App.2001)), trans. denied. This appears to me a perfectly reasonable definition. And indeed it is a point the State not only did not contest in its Brief before the Court of Appeals but also the State conceded: “Defendant unquestionably had a contractual right to be inside the CHASE branch as he was an accountholder.” Br. of Appellee at 4. The State switched gears in its Petition to Transfer declaring instead that Taylor, along with a line of cases consistent with Taylor, was wrongly decided. See Pet. to Trans, at 5-8 (citing Pogue v. State, 937 N.E.2d 1253 (Ind.Ct.App.2010); A.E.B., 756 N.E.2d 536; Woods v. State, 703 N.E.2d 1115 (Ind.Ct.App.1998); Olsen v. State, 663 N.E.2d 1194 (Ind.Ct.App.1996)). Now, according to the State, “[hjaving an active account at a bank does not give a person a contractual interest in the real property of the bank for purposes of the criminal trespass statute.” Pet. to Trans, at 3. However, having already conceded the point, the State should not now be heard to complain.

In any event, the majority does not overrule existing Court of Appeals precedent in this area of the law. Nor does the majority cite or attempt to distinguish the authority on which the Court of Appeals precedent is based. The evidence here is undisputed that on December 3, 2010, Lyles owned an account with CHASE bank with a positive balance. Based on existing precedent Lyles thus had a contractual interest in the CHASE premises. Further, contrary to the State’s initial position, there was no evidence that Lyles’ contractual interest had been terminated at the time of his arrest. As the Court of Appeals points out, “while there may have been sufficient evidence to support a conviction for disorderly conduct, the State did not file any such charge. The State has failed to prove an essential element of criminal trespass, namely that Lyles did not have a contractual interest in the property, and the evidence is insufficient to support Lyles’ conviction.” Lyles v. State, 956 N.E.2d 180, 182 (Ind.Ct.App.2011). I agree and would therefore reverse the judgment of the trial court.

      . The word "property" as used in the term "contractual interest in the property” refers to the real property from which the defendant refused to leave, as indicated by the use of the article "the" before the word "property.” See Ind.Code § 35-43-2-2(a)(2).

      . The term "contractual interest in the property” is not defined by the Criminal Trespass statute or elsewhere in the Indiana Code. When interpreting a statute, we presume that the legislature intends the common and ordinary meaning of the words it uses. Spaulding v. Int'l Bakers Servs., Inc., 550 N.E.2d 307, 309 (Ind.1990); Foremost Life Ins. Co. v. Dep't of Ins., 274 Ind. 181, 186, 409 N.E.2d 1092, 1096 (Ind.1980). The word "interest” is used as a noun in Section 35-43-2-2 and is modified by the adjective "contractual.” See Ind. Code § 35-43-2-2(a)(2). An "interest” is a "right, title, or legal share in something.” Webster’s Third New International Dictionary 1178 (1976). Something is "contractual” if it is "of, relating to, or implying a contract,” and a contract is "an agreement between two or more persons or parties to do or not to do something.” Id. at 494-95. Therefore, a "contractual interest in the property” is a right, title, or legal share of real property arising out of a binding agreement between two or more parties.

      . Although the State disputed the issue at oral argument, the lack of a contractual interest in the real property at issue is a material element of the offense that the State must prove beyond a reasonable doubt as part of its pri-ma facie case. See Goodpaster v. State, 273 Ind. 170, 175, 402 N.E.2d 1239, 1242 (1980) (holding that the lack of a contractual interest is a material element of criminal trespass under Indiana Code Section 35-43-2-2(a)(5), which reads "not having a contractual interest in the property, knowingly or intentionally enters the dwelling of another person without the person’s consent”); accord Fleck, 508 N.E.2d at 540. This conclusion is evident from the fact that, in determining whether a statutory exception is a material element or an affirmative defense, we assess the location of the exception relative to the location of the definition of the principal offense. If the exception is closely connected with the clause creating the offense, the exception is a material element of that offense and must be proven by the State. Russell v. State, 50 Ind. 174, 174 (1875). If, however, the exception is contained in a subsequent clause or statute, the exception is an affirmative defense that must be raised by the defendant. Id. Here, the contractual interest exception is part of the clause creating the offense and thus is properly considered a material element of Criminal Trespass under Section 35-43-2-2(a)(2).


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of John L. STEWART, Respondent.
    No. 49S00-1204-DI-219.
    Supreme Court of Indiana.
    July 5, 2012.
   PUBLISHED ORDER OF INTERIM SUSPENSION UPON NOTICE OF GUILTY FINDING

The Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 28(1 l.l)(a), files a “Notice of Guilty Finding and Request for Suspension,” asking that Respondent be suspended from the practice of law in this State, pending further order of this Court or final resolution of any resulting disciplinary action, due to Respondent being found guilty of a crime punishable as a felony. Respondent filed a response admitting the material allegations of the Commission’s Notice of Guilty Finding.

The Court, being duly advised, now finds that Respondent has been found guilty of the following offense under Indiana law: Operating a vehicle while intoxicated with a prior conviction, a class D felony.

IT IS THEREFORE ORDERED that Respondent is suspended pendente lite from the practice of law in this State, effective fifteen (15) days from the date of this order. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 28(26). The interim suspension shall continue until further order of this Court or final resolution of any resulting disciplinary action, provided no other suspension is in effect.

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur, except SULLIVAN and RUCKER, JJ., who would deny the request for interim suspension and set a deadline to advance the case.


text:
    In the Matter of Beau J. WHITE, Respondent.
    No. 27S00-1109-DI-582.
    Supreme Court of Indiana.
    July 9, 2012.
   PUBLISHED ORDER GRANTING PETITION TO RECONSIDER DISCIPLINE

The Commission filed a “Verified Complaint for Disciplinary Action” against Respondent on September 28, 2011. Respondent was served by certified mail and did not appear or respond. Accordingly, the hearing officer took the facts alleged in the complaint as true. See Admis. Disc. R. 23(14)(c). Respondent did not file a petition for review or a brief on sanctions. On March 13, 2012, the Court issued an order suspending Respondent for not less than 60 days, without automatic reinstatement, beginning April 20, 2012.

On April 12, 2012, Respondent filed a “Petition for the Court to Reconsider Discipline Sanctions for Undisputed Attorney Misconduct” in which he acknowledges his misconduct but asks the Court to allow automatic reinstatement at the conclusion of his 60-day suspension. Briefly, he asserts:

• When he received the Commission’s demand for a response to the client’s grievance, he was undergoing intensive inpatient therapy for substance abuse issues he had self-reported to the Indiana Judges and Lawyers Assistance Program (“JLAP”).
• After receiving an extension of time from the Commission, Respondent provided a response to the grievance in which he admitted his misconduct and outlined the steps he had taken to address his substance abuse issues.
• After the Commission filed its verified complaint against him, Respondent informed the Commission that he would not be contesting the allegations of misconduct. He complied with a subpoena duces tecum after the complaint was filed.
• Respondent did not intend to disregard this disciplinary matter. He incorrectly believed that the Court would be aware of his cooperation with the Commission, including his admission of wrongdoing, and his steps in dealing with his substance abuse issues, and that the Court would consider these factors in addressing what discipline was appropriate.

On May 21, 2012, the Commission filed a response objecting to reconsideration of the discipline, citing particularly the fact that Respondent had still not refunded a $400 fee he owes to a client. Respondent filed no reply to the Commission’s objection.

Upon review of the parties’ submissions, the Court concludes that Respondent has demonstrated sufficient grounds for modification of the discipline imposed in this case. However, given Respondent’s admitted history of substance abuse, we conclude that Respondent’s suspension should be followed by a period of probation with monitoring by JLAP.

The Court therefore revises its March 13, 2012, order, and imposes the following discipline: For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 180 days, beginning April 20, 2012, with at least 60 days actively served and the remainder stayed subject to completion of at least 24 months of probation on the following terms:

(1) Respondent shall enter into a monitoring agreement with JLAP within 30 days of the date of this order, on terms acceptable to JLAP. The beginning date of Respondent’s 24-month probation shall be the date the monitoring agreement takes effect. Respondent shall file with the Court a notice of his compliance with this provision within ten days of the effective date of the monitoring agreement.
(2) Respondent shall refund the $400 fee owing to his client within 30 days of the date of this order and shall provide the Commission with proof of such payment within ten days of the payment.
(3) Respondent shall comply strictly with all terms of his probation and shall have no violations of the JLAP monitoring agreement, the law, or the Rules of Professional Conduct during his probation.
(4) If Respondent violates his probation, the balance of the stayed suspension shall be actively served, and Respondent thereafter automatically reinstated.
(5) Notwithstanding the expiration of the minimum term of probation set forth above, Respondent’s probation shall remain in effect until it is terminated pursuant to a petition to terminate probation filed under Admission and Discipline Rule 23(17.1).

The remainder of the Court’s March 13, 2012, order shall remain in effect.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


author: RUCKER, Justice.

text:
    STATE of Indiana, Appellant (Respondent below), v. Steven Ray HOLLIN, Appellee (Petitioner below).
    No. 69S05-1201-PC-6.
    Supreme Court of Indiana.
    July 12, 2012.

      Gregory F. Zoeller, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.
    Stephen T. Owens, State Public Defender, J. Michael Sauer, Deputy Public Defender, Indianapolis, IN, Attorneys for Ap-pellee.
   RUCKER, Justice.

Steven Ray Hollin filed a petition for post-conviction relief alleging prosecutorial misconduct and ineffective assistance of trial counsel. The post-conviction court granted relief and the State of Indiana appealed. The Court of Appeals reversed. We granted transfer.

Facts and Procedural History

A recitation of the essential facts in this case was set forth in our opinion on direct appeal as follows:

Eighteen-year-old Steven R. Hollin was released from jail on November 1, 2005. Less than a week later, he and Nathan Vogel (“Vogel”) devised a plan to burglarize homes in a rural portion of Ripley County, Indiana. They planned to knock upon doors to locate unoccupied homes, from which they would steal money. On the morning of November 8, 2005, the two men ventured out by foot along a road in Ripley County. The first residence they approached was occupied. A woman answered the door, and to avoid suspicion Hollin and Vogel asked for directions to Greensburg, Indiana. They then left and continued their search for an unoccupied house. The next home they reached appeared to be empty. To be certain, Hollin and Vogel knocked upon both the front and back doors before entering the garage and proceeding into the kitchen. While Hollin remained in the kitchen, Vogel entered a bedroom. Vogel took a camera bag containing approximately six hundred dollars. The two then left the home, walking back toward town. At this point, the woman who had provided directions to Greensburg noticed them and called police to report this suspicious activity.
Batesville Police Department Lieutenant Jeff Thielking responded to the call and recognized Hollin. He became suspicious about the possibility of criminal activity because, although it was approximately sixty-six degrees outside, Vogel wore a heavy winter coat and appeared to be hiding something inside of it. Vo-gel asserted that their car had broken down along the road, but Lieutenant Thielking had not seen any disabled vehicles in the vicinity. Lieutenant Thielking also knew of several recent burglaries in the area. Noting the name of A1 Wuestefeld on the camera bag Vogel was carrying, Lieutenant Thielk-ing arrested both men. A telephone call to the Wuestefeld residence confirmed that it had been burgled. Hollin and Vogel subsequently confessed.

Hollin v. State, 877 N.E.2d 462, 468-64 (Ind.2007).

On November 10, 2005, the State initially charged both Hollín and Vogel with burglary as a Class B felony and theft as a Class D felony. Hollín was also charged as a habitual offender. On July 11, 2006, the State amended Hollin’s theft charge to conspiracy to commit burglary as a Class B felony. A jury trial began August 8, 2006. The jury convicted Hollín of conspiracy to commit burglary and adjudged him a habitual offender. After conducting a sentencing hearing, Judge Carl H. Taul found one aggravating factor — Hollin’s criminal history — and one mitigating factor — his young age. The trial judge then sentenced Hollín to the maximum term of twenty years for the conspiracy conviction, enhanced by twenty years for the habitual offender adjudication, for a total term of forty years.

On direct appeal Hollín raised two issues, one of which was whether the trial court properly sentenced him. In an unpublished memorandum decision, the Court of Appeals rejected Hollin’s arguments and affirmed the judgment of the trial court. Hollín v. State, No. 69A01-0609-CR-401, 2007 WL 925745 (Ind.Ct. App. Mar. 29, 2007). We granted transfer and affirmed Hollin’s convictions, but finding his forty-year sentence inappropriate we revised his sentence to ten years for conspiracy to commit burglary enhanced by an additional ten years as a habitual offender, for a total executed term of twenty years. See Hollín, 877 N.E.2d at 465-66.

Hollín filed a pro se petition for post-conviction relief on February 25, 2008. Amended by counsel on August 16, 2010, the petition alleged prosecutorial misconduct and a number of claims alleging ineffective assistance of trial counsel. Judge Carl H. Taul, the same trial judge that presided over Hollin’s jury trial, presided over the post-conviction proceedings. The trial judge granted Hollin’s petition, reversed his conviction, and ordered a new trial. The State appealed. In an unpublished memorandum decision, the Court of Appeals reversed the judgment of the post-conviction court. State v. Hollín, No. 69A05-1101-PC-l 13, 2011 WL 3795020 (Ind.Ct.App. Aug. 24, 2011). Having previously granted transfer we affirm the judgment of the post-conviction court. Additional facts are set forth below.

Standard of Review for Post-Conviction Proceedings

Post-conviction proceedings do not provide criminal defendants with a “super-appeal.” State v. Holmes, 728 N.E.2d 164, 168 (Ind.2000). Rather, they provide a narrow remedy to raise issues that were not known at the time of the original trial or were unavailable on direct appeal. Id. “The petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence.” Ind. Post-Conviction Rule 1(5). When the State appeals a judgment granting post-conviction relief, we review using the standard in Indiana Trial Rule 52(A):

On appeal of claims tried by the court without a jury or with an advisory jury, at law or in equity, the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses.

State v. Cooper, 935 N.E.2d 146, 149 (Ind.2010). The clearly erroneous standard of review is a review for sufficiency of the evidence, and we neither reweigh that evidence nor determine the credibility of witnesses. Instead, we consider only the probative evidence and reasonable inferences supporting the trial court’s judgment. State v. Dye, 784 N.E.2d 469, 471 (Ind.2003). Further, the post-conviction court in this case entered findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). Although we do not defer to the postconviction court’s legal conclusions, “a post conviction court’s findings and judgment will be reversed only upon a showing of clear error — that which leaves us with a definite and firm conviction that a mistake has been made.” Ritchie v. State, 875 N.E.2d 706, 714 (Ind.2007) (quoting Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000), cert. denied, 534 U.S. 830, 122 S.Ct. 73, 151 L.Ed.2d 38 (2001) (table)).

Standard of Review for Ineffective Assistance of Counsel

To establish a post-conviction claim alleging a violation of the Sixth Amendment right to effective assistance of counsel, a defendant must establish the two components set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show that counsel’s performance was deficient, that is, falling below an objective standard of reasonableness and denying defendant the right to counsel guaranteed by the Sixth Amendment. Timberlake v. State, 753 N.E.2d 591, 603 (Ind.2001). Second, the defendant must show that the deficient performance prejudiced the defense by establishing a reasonable probability that but for counsel’s unprofessional errors the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. We afford counsel considerable discretion in choosing strategy and tactics, and “[i]solated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.” Id.

Discussion

The evidence before the post-conviction court reveals the following. After being arrested Hollin was transported to the Batesville Police Department by Officer Stanley Holt, who read Hollin his Miranda rights and asked Hollin questions about the alleged burglary. Hollin stated he didn’t have any knowledge about a house being broken into and denied any involvement. Vogel and Hollin both gave tape recorded statements. Vogel told Officer Holt that he entered the Wuestefeld house intending to use the telephone, but then went into the master bedroom and emptied a big jar of change into a camera bag he found. PC-Tr. at 43. He did not implicate Hollin in a plan to burglarize the home. Hollin told Officer Holt that Vogel needed to find a telephone and suggested they go to the Wuestefeld residence, but no one answered the door. Noting the door was unlocked, Vogel entered the residence and Hollin followed him inside. When Vogel left the room, Hollin said he waited in the kitchen for approximately two minutes until Vogel returned with a pack. Then they left the residence. PC-Ex. at 233-34. Notably, Hollin neither declared that he entered the residence intending to take property therefrom nor that he knew Vogel intended to do so.

On November 10, 2005, the State initially charged both Hollin and Vogel with burglary as a Class B felony and theft as a Class D felony. Hollin was also charged as a habitual offender. On July 11, 2006, the State amended Hollin’s theft charge to conspiracy to commit burglary as a Class B felony. Thereafter Vogel entered an agreement with the State in which he pleaded guilty to theft as a Class D felony and the burglary charge was dismissed. On February 21, 2006, the trial court sentenced Vogel under the terms of the plea agreement to 545 days imprisonment, with all time not already served suspended to probation. If Vogel successfully completed his probation, then his felony theft conviction would be reduced to a Class A misdemeanor.

At the time he was charged in this cause, Vogel had a pending theft charge in neighboring Decatur County. On March 1, 2006, Vogel pleaded guilty to the theft charge and was sentenced to eighteen months’ imprisonment, with all but sixty days suspended to probation. On May 16, 2006, Vogel was charged with battery as a Class C felony in Decatur County. On May 25, 2006, petitions to revoke Vogel’s suspended sentences were filed in both Ripley and Decatur Counties.

Shortly after the State amended Hollin’s theft charge to conspiracy to commit burglary Officer Holt and Ripley County Chief Deputy Prosecutor Ryan King met with Vogel in the Ripley County Jail. Vo-gel had originally contended that Hollín was unaware of Vogel’s theft until after they had left the burglarized home. In jail, however, for the first time Vogel declared he and Hollín had agreed in advance to look for houses to break into and burglarize. Officer Holt and Deputy Prosecutor King met again with Vogel on August 2, 2006. At the time of these meetings, Deputy Prosecutor King knew there was a petition in Ripley County to revoke Vogel’s probation, and that the reason for the petition was the pending Class C felony battery charge in Decatur County. On August 8, the first day of trial, the trial court granted the State’s motion to dismiss the charge of Burglary against Hollín, leaving only the charge of conspiracy to commit burglary.

During opening statement Hollin’s trial counsel declared if Vogel testified that “this was some kind of a plan, this will be the first time he’s come up with that story,” suggesting that counsel was unaware of Vogel’s jailhouse statement to Holt and King. Tr. at 74. Vogel proceeded to testify that he and Hollín had agreed the night before the burglary to find a home to burglarize. Vogel acknowledged that he had been convicted of theft in Decatur County after he and Hollín had been arrested in the present case. However, trial counsel did not inquire into Vogel’s pending Class C felony battery charge or the pending petitions to revoke Vogel’s probation in both Ripley and Decatur counties.

The statement Hollín gave to Officer Holt on the day of his arrest was played to the jury. Hollin’s trial testimony was consistent with his statement. He testified that he thought Vogel knew the residents of the home, and that Vogel did not respond when he asked Vogel what was going on. According to Hollín, he only realized the full extent of what had happened when Vogel showed him the items he had taken from the house. Hollín specifically denied having any plan to break into the house with Vogel.

At his hearing for post-conviction relief Hollín made a number of claims alleging ineffective assistance of counsel, one of which we find particularly compelling, namely, counsel failed to present evidence that would have impeached Vogel’s credibility. Specifically, Hollín alleges that trial counsel should have elicited the details of Vogel’s plea agreement and sentencing during cross-examination. The post-conviction court found that trial counsel knew, or should have known by reasonable diligence, that Vogel was originally charged with burglary and theft felonies that, but for a plea agreement that eliminated jail time, would have subjected Vogel to a maximum sentence of twenty-three years. Additionally, Vogel’s plea agreement provided that his felony was to be reduced to a misdemeanor upon successful completion of probation. However, trial counsel did not employ this information to impeach Vogel. Instead, the jury was only aware that Vogel had pled guilty and was in jail. “Thus,” the post-conviction court noted, “the jury likely presumed that Vogel pled guilty to the same charge for which Hollín was being tried, Conspiracy to Commit Burglary, a class B felony, and was serving a lengthy sentence for that offense.” Appellant’s App. at 128. “The jury had no idea that Vogel, the only person who took any property from the Wuestefeld residence, avoided a potential 23-year sentence by pleading guilty and was given probation.” Appellant’s App. at 128.

Trial counsel testified that he did not question Vogel about his plea agreement because he didn’t want to “make the trial about somebody else rather than about [my] own client.” PC-Tr. at 68. Further, he didn’t want to take the “risk of giving the prosecutor even more opportunities to talk about Mr. Hollin’s past record even, even by comparing him in some way with Mr. Vogel.” PC-Tr. at 68. Trial counsel elaborated that hé did not want to “open the door” to Hollin’s criminal history by asking questions about Vogel’s criminal history. PC-Tr. at 69. The post-conviction court was not persuaded that this was sound reasoning. See Roche v. State, 690 N.E.2d 1115, 1126 (Ind.1997) (noting that a matter of trial strategy “cannot form the basis for establishing ineffective assistance of trial counsel unless there was no sound basis for not pursuing the strategy” (emphasis added)). Instead, the court found that the case against Hollín was “essentially a credibility contest” that relied upon one question: Was there an agreement? Appellant’s App. at 137. “Thus, any evidence bearing on the respective credibility of Vogel and Hollín was critical to the outcome of this jury trial.” Appellant’s App. at 137. We agree with this assessment. More importantly, the State has not demonstrated that the post-conviction court’s finding in this regard is clearly erroneous.

In addition to concluding Hollín was entitled to a new trial because of the ineffective assistance of trial counsel, the post-conviction court also concluded Hollín was entitled to a new trial because of prosecu-torial misconduct. In particular the trial court found that the jury did not know: there was a pending petition to revoke Vogel’s Ripley County probation; Vogel’s Decatur County theft conviction was also a Class C felony that would be reduced to a misdemeanor if he completed probation successfully; there was a pending petition to revoke Vogel’s Decatur County probation; there was a pending charge against Vogel in Decatur County for battery with a deadly weapon, a Class C felony; and that Vogel did not implicate Hollin in the burglary until after he was charged with battery with a deadly weapon and two petitions to revoke his probation were filed. According to the post-conviction court “the State never disclosed this information” in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Appellant’s App. at 131.

Under Brady, the State has an affirmative duty to disclose material evidence favorable to the defendant. “To prevail on a Brady claim, a defendant must establish: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that the evidence was material to an issue at trial.” Minnick v. State, 698 N.E.2d 745, 755 (Ind.1998) (citing Brady, 373 U.S. at 87, 83 S.Ct. 1194). Evidence is material when there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Id.

Under the first prong of the Brandy analysis, the post-conviction court found that trial counsel was not aware of Vogel’s pending criminal matters or Vogel’s pretrial statement and change of story. See Appellant’s App. at 121 (citing Tr. at 74 (“Nobody can control what [Vogel is going to] say today, but if he tries to say today that this was some kind of a plan, this will be the first time he’s come up with that story.”)). Under the second prong, we agree with the postconviction court that the undisclosed evidence “was favorable to Hollin because it was impeaching — it showed a motivating factor for Vogel to cooperate with the State that would have affected the jury’s assessment of his credibility.” Appellant’s App. at 132. Further, Vogel’s testimony provided the only evidence that he and Hollin agreed to commit the charged offense. Appellant’s App. at 139. Of particular note, Vogel did not implicate Hollin in an agreement to burglarize homes until after Vogel was charged with a new felony and proceedings to revoke his probation had begun — approximately eight months after the crime took place. Under the third prong, given the importance of credibility in this case as discussed above, we conclude there was sufficient evidence for the post-conviction court’s conclusion that there was a reasonable probability that had this information been disclosed to the defense, the result of the trial would have been different.

Applying our standard of review to the State’s appeal in this case, we conclude that the post-conviction court’s judgment is not clearly erroneous and the State has not shown the existence of clear error— that which leaves us with a definite and firm conviction that a mistake has been made. We therefore affirm the post-conviction court’s grant of Hollin’s petition for post-conviction relief.

Conclusion

The judgment of the post-conviction court is affirmed. We remand this cause for a new trial.

DICKSON, C.J., and SULLIVAN, DAVID and MASSA, JJ., concur.

      . "Tr.” refers to the trial transcript. "PC-Tr.” refers to the transcript of the post-conviction proceedings. "PC-Ex.” refers to the exhibits entered into the post-conviction proceedings.

      . Although the record shows that both Hollin and Vogel gave statements to an Officer of the Batesville Police Department that could reasonably be interpreted as implicating themselves in a burglary, it is incorrect to say that either man actually "confessed” to the offense. This inaccurate characterization of the record was raised for the first time at the hearing on Hollin's petition for post-conviction relief. As will become apparent later in this opinion it has some bearing on the outcome of this appeal.


author: BROWN, Judge. BAKER, Judge,

text:
    Kenneth E. RUSSELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 28A01-1112-CR-559.
    Court of Appeals of Indiana.
    May 21, 2012.
    Ordered Published June 28, 2012.

      Cara Schaefer Wieneke, Wieneke Law Office, LLC, Plainfield, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Kenneth E. Russell appeals his sentence for two counts of battery as class B felonies. Russell raises one issue which we revise and restate as whether his sentence is inappropriate in light of the nature of the offense and the character of the offender. On cross-appeal, the State asserts that the trial court abused its discretion by allowing Russell to file a belated notice of appeal. We affirm.

The relevant facts follow. Russell, who was born on November 6, 1984, was married to Constance Russell. The couple had two children, a son born in 2008, and another son, C.W.R., born on October 6, 2010. On October 23, 2010, Russell was in charge of C.W.R. and grabbed him around the ribcage, squeezed him, and shook him in an attempt to stop his crying. C.W.R. suffered fractured ribs as a result of Russell’s actions.

On November 7, 2010, Constance went to the grocery store for approximately an hour, and C.W.R. began crying while in Russell’s care. Russell became frustrated and angry, grabbed C.W.R. “pretty hard around the rib cage,” picked him up, and shook him to try and stop him from crying. Transcript at 11. C.W.R. stopped breathing, and Russell made efforts to perform CPR. Russell reported that Constance walked through the door just as C.W.R. became limp, and that Constance called 911. An ambulance arrived and took C.W.R. to the hospital. An assessment of C.W.R. indicated that he suffered bruises at his chest wall and rib cage, multiple rib fractures, extensive retinal hemorrhages, and severe brain injury.

In November 2010, the State charged Russell with three counts of battery as class B felonies. On March 17, 2011, the court scheduled a jury trial for May 9, 2011. On April 27, 2011, a negotiated plea agreement was filed in which Russell agreed to plead guilty to Counts I and III as charged, and the State agreed to dismiss the second count and not make a sentencing recommendation. Sentencing was left to the discretion of the trial court. The court cancelled the scheduled jury trial, accepted the plea agreement, and Russell pled guilty pursuant to the terms of the plea agreement.

On July 1, 2011, the court held a sentencing hearing and found the following aggravating factors: (1) “[sjpecific to Count 1, the harm, injury, loss, or damage suffered by the victim was significant and greater than the elements necessary to prove the commission of the offense;” (2) the age of the victim; (3) Russell was in a “position of having care, custody, or control of the victim;” (4) the injury was the result of shaken baby syndrome; (5) Russell had sought help from family and health care providers before when he experienced mental health issues, knew his actions at the time of the first offense were inappropriate, and had the opportunity to seek help or obtain assistance with his stress in order to prevent future episodes. Appellant’s Appendix at 15. The court found Russell’s lack of criminal history, guilty plea and acceptance of responsibility, display of genuine remorse and sorrow, and history of mental health issues as miti-gators. The court also found as mitigators the fact that the crimes were the result of circumstances that were unlikely to recur and that Russell’s history and character indicate that he is unlikely to commit another crime. The court found that the aggravating factors substantially outweighed the mitigating factors.

The court sentenced Russell to fifteen years with three years suspended on Count I and twelve years with two years suspended on Count III. The court ordered the sentences to be served consecutive with each other for an aggregate executed sentence of twenty-two years. The court informed Russell that the right to appeal may be forfeited if a notice of appeal was not filed within thirty days. Russell indicated that he intended to pursue an appeal of the sentence. The following exchange then occurred:

BY THE COURT: Okay. I’ll have Mr. Riester assist you and make sure a notice of appeal is timely filed so you do not lose any rights to appeal and the Court will appoint the State Public Defender’s Office who will assign an attorney to represent you through the appellate process. Okay? Do you understand that?

RUSSELL: Yes.

Transcript at 62. The sentencing order dated July 1, 2011, states:

[Russell] advises the Court that he does desire to appeal the sentences imposed in this case. The Court hereby orders the State Public Defender appointed to represent [Russell] in his appeal, and attorney James Riester’s appointment shall remain in effect in order to assist [Russell] until such time that appellate counsel enters their Appearance.

Appellant’s Appendix at 35(j).

On July 5, 2011, the court issued an order appointing counsel for appeal which stated:

[Russell] has notified the Court on this date that a Notice of Appeal will be filed and is requesting Court Appointed Counsel for Appeal Purposes. The Court, being duly advised in the premises, now appoints the Indiana State Public Defender’s Office, One North Capitol, Suite 800, Indianapolis, IN 46204-2026, to represent [Russell] for purposes of appealing his sentence. The Indiana State Public Defender is hereby notified accordingly and requested to appear.

Id. at 35(g).

On October 3, 2011, a member of the Greene County Circuit Court staff contacted Sharon Ford, the Senior Supervising Secretary at the State Public Defender’s Office to check the status of a sentencing appeal for Russell. Ford informed the individual that she had never received any information about a direct appeal appointment and a search for Russell’s case in their internal office database returned no results. Later that day, the Greene County Circuit Court faxed a copy of the order appointing the State Public Defender to handle the appeal, and Ford contacted a contract attorney on October 5, 2011. On October 6, 2011, Ford prepared the necessary paperwork to show that the State Public Defender had accepted the appellate appointment and had appointed a contract attorney to handle Russell’s case. On October 7, 2011, the Public Defender filed an Acceptance of Appointment and Formal Notice of Appointment of Outside Counsel. Russell’s mother contacted the Greene County Clerk’s Office or the court staff to inquire about the status of Russell’s appeal on October 4, 7, and 11, 2011.

On November 9, 2011, Russell filed a petition for permission to file a belated notice of appeal and attached a copy of the case chronological summary, the order appointing counsel for appeal dated July 5, 2011, the sentencing order, an affidavit of Ford, and an affidavit of Russell’s mother. The court granted Russell’s petition the following day and found that Russell was “without fault in failing to file a timely notice of appeal and was diligent in seeking permission to file a belated notice of appeal under Indiana Post-Conviction Rule 2.” Id. at 36.

I.

We first address the State’s argument that the trial court abused its discretion by granting Russell’s motion for a belated appeal because, if it has merit, it would be dispositive of Russell’s claims. Generally, the decision whether to grant permission to file a belated notice of appeal or belated motion to correct error is within the sound discretion of the trial court. Moshenek v. State, 868 N.E.2d 419, 422 (Ind.2007), reh’g denied. However, if the trial court does not hold a hearing before granting or denying a petition to file a belated notice of appeal, the appellate court owes no deference to the trial court’s decision, and the review of the granting of the petition is de novo. Baysinger v. State, 835 N.E.2d 223, 224 (Ind.Ct.App.2005). Here, Russell filed his petition for permission to file a belated notice of appeal on November 9, 2011, and the court granted the petition the following day. The State indicates that no hearing was held on the petition, Russell does not dispute this fact, and our review of the record does not reveal that a hearing was held. Therefore, we will review the trial court’s grant of the petition de novo. See id.

Ind. Post-Conviction Rule 2 permits a defendant to seek permission to file a belated notice of appeal and provides:

(a) Required Showings. An eligible defendant[] convicted after a trial or plea of guilty may petition the trial court for permission to file a belated notice of appeal of the conviction or sentence if;
(1) the defendant failed to file a timely notice of appeal;
(2) the failure to file a timely notice of appeal was not due to the fault of the defendant; and
(3) the defendant has been diligent in requesting permission to file a belated notice of appeal under this rule.

Thus, Russell was required to show that his failure to file a timely notice of appeal was not his fault and that he had been diligent in requesting permission to file a belated notice of appeal.

“The defendant bears the burden of proving by a preponderance of the evidence that he was without fault in the delay of filing and was diligent in pursuing permission to file a belated motion to appeal.” Moshenek, 868 N.E.2d at 422-423. There are no set standards of fault or diligence, and each case turns on its own facts. Id. at 423. The Indiana Supreme Court has held that several factors are relevant to the defendant’s diligence and lack of fault in the delay of filing. Id. “These include ‘the defendant’s level of awareness of his procedural remedy, age, education, familiarity with the legal system, whether the defendant was informed of his appellate rights, and whether he committed an act or omission which contributed to the delay.’ ” Id. (citing Tredway v. State, 579 N.E.2d 88, 90 (Ind.Ct.App.1991), trans. denied). The Court also set forth factors specifically related to diligence. Id. at 424. “Among them are the overall passage of time; the extent to which the defendant was aware of relevant facts; and the degree to which delays are attributable to other parties....” Id.

The State argues that Russell was not diligent and that “[o]nly after being prompted by the court did a member of [Russell’s] family attempt to initiate an appeal.” Appellee’s Brief at 7. The State points out that “even after the public defender’s office became aware of the appeal, it did not file an appearance for an additional thirty-five days.” Id. The State also argues that Russell and his trial counsel did not contact the public defender’s office after receiving notice that the court had appointed the public defender’s office on July 5, 2011.

Russell argues that he is without fault, “did everything necessary to ensure that his right to an appeal would be preserved,” and that he was diligent in seeking permission to pursue a belated direct appeal. Appellant’s Reply Brief at 5. Russell asserts that “only two months passed between the date the notice of appeal was due to be filed (August 1, 2011) and the date Russell’s mother first contacted the trial court to inquire about the status of her son’s appeal (October 4, 2011).” Id. at 5. Russell points out that the State Public Defender’s office took only a few days to secure contract appellate counsel and forward the necessary paperwork once the office learned that it had been appointed to perfect the appeal. Russell also contends that his appellate counsel could not simply file a petition with no supporting documentation.

The record reveals that Russell had no criminal history prior to the current offenses, that he indicated at the sentencing hearing that he intended to pursue an appeal, and that the court informed Russell: “I’ll have Mr. Riester assist you and make sure a notice of appeal is timely filed so you do not lose any rights to appeal and the Court will appoint the State Public Defender’s Office who will assign an attorney to represent you through the appellate process.” Transcript at 62. The sentencing order dated July 1, 2011, and the July 5, 2011 order both indicated that the State Public Defender was appointed to represent Russell. According to the affidavit of Ford, the Senior Supervising Secretary at the State Public Defender’s Office, she did not have Russell’s case in their internal office database and never received any information about the appointment until October 3, 2011, when a member of the Greene County Circuit Court staff contacted her to check the status of Russell’s appeal. Ford contacted a contract attorney and the Public Defender filed an Acceptance of Appointment and Formal Notice of Appointment of Outside Counsel on October 7, 2011. The record also reveals that Russell’s mother contacted the Greene County Clerk’s Office or the court staff to inquire about the status of Russell’s appeal on October 4, 7, and 11, 2011. While there was a thirty-three day delay between the filing of the appearance of appellate counsel and the filing of the petition for permission to file a belated notice of appeal, we observe that the petition contained multiple exhibits including two affidavits. Under the circumstances, we cannot say that the court erred in granting Russell’s permission to file a belated notice of appeal.

II.

The next issue is whether Russell’s sentence is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, [we find] that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Under this rule, the burden is on the defendant to persuade the appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006).

Moreover, “sentencing is principally a discretionary function in which the trial court’s judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.2008). Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented. See id. at 1224. The principal role of appellate review is to attempt to “leaven the outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the end of the day turns on “our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other facts that come to light in a given case.” Id. at 1224.

Russell argues that while the nature of the injuries was devastating, “it is also without dispute that [he] did not intend to harm [C.W.R.].” Appellant’s Brief at 4. Russell argues that he was unaware of the devastating consequences his actions would have on C.W.R. because C.W.R. was under a doctor’s care after he was born and the doctor never noticed any injuries until C.W.R. was taken to the hospital. Russell asserts that he immediately began resuscitating C.W.R. and sought medical attention as soon as he realized that C.W.R. was seriously injured. Russell also argues that he is at a low risk for reoffending, the circumstances are unlikely to recur, the crimes were committed as a result of extreme stress, that he has no criminal history, was very remorseful, and accepted responsibility. Russell also argues that he suffers from serious mental and emotional problems and attempted suicide one month prior to the first offense.

The State argues that Russell “lashed out at the child who was utterly defenseless” and that “[a] parent who is capable of visiting the level of devastation on his own defenseless child that [Russell] has can make no claim to sterling character regardless of his lack of prior interactions with the law.” Appellee’s Brief at 9. The State also argues that C.W.R., who had otherwise been a healthy baby prior to the batteries, will never be able to walk, talk, or see as a result of his brain injuries.

Our review of the nature of the offense reveals that on October 23, 2010, Russell was in charge of his own seventeen-day-old son C.W.R., grabbed C.W.R. around the ribcage, squeezed him, and shook him. On November 7, 2010, while Russell was responsible for taking care of then one-month-old C.W.R. because his wife went to the grocery store for approximately an hour, Russell became frustrated and angry, grabbed C.W.R. “pretty hard around the rib cage,” picked him up, and shook him. Transcript at 11. C.W.R. suffered bruises at his chest wall and rib cage, multiple rib fractures of different ages, extensive retinal hemorrhages, and severe brain injury as a result of the two incidents. C.WJEt.’s “current medical prognosis is guarded given his severe brain injury and new onset seizures as a result of his injuries.” State’s Exhibit 2 at 8. C.W.R. has “begun to have electrolyte derange-ments as a result of his severe brain injury” and “will most certainly have long-term significant neurological impairment as a result of his severe injuries.” Id. At the time of the presentence investigation report, C.W.R. was blind and the report indicated that further assessment would be needed to determine if the condition is permanent.

Our review of the character of the offender reveals that Russell has no criminal history and stated at the sentencing hearing: “I just wanted to say I’m sorry for everything that happened. I didn’t mean for anything to happen. I had been under a lot of stress. I’m still under a lot of stress and I would, if I could take it back, I would.” Transcript at 44. Russell pleaded guilty, and the State dismissed a charge of battery resulting in serious bodily injury as a class B felony.

Russell began smoking marijuana at the age of twelve and was smoking “a joint or so” a day in high school, and this habit continued until the time of his arrest. Presentence Investigation Report at 8. Russell also abused Xanax since 2009.

To the extent that Russell raises the issue of his mental health, we observe that Russell’s mother testified at the sentencing hearing that she took Russell to see a doctor after he told her: “I just feel like I’m going crazy,” and that he needed help. Transcript at 31. On February 16, 2010, Russell saw a doctor who identified a problem with anxiety depression and prescribed Paxil. Russell visited a doctor on May 24, 2010, and was “doing well with anxiety,” was “much better,” and had no complaints. Defendant’s Exhibit A. The record indicates that Russell’s anxiety depression improved and that the dose of Paxil would increase in three months.

Russell’s mother testified that Russell separated from his wife in September 2010, could not find a job, and there were three deaths in the family. She also testified that Russell attempted suicide in September 2010 by taking fourteen Xanax pills and ten sleeping pills.

The trial court identified Russell’s mental health issues and life stress as a mitigating circumstance but gave it minimal weight because Russell had the opportunity to seek help and prevent the second act and knew how to seek help because he had done so previously. The court also stated that Russell’s family members believed that he was functioning appropriately and had observed him on nearly a daily basis individually and with his children and there appeared to be no impact from a mental health condition.

Given the extreme consequences of Russell’s batteries upon C.W.R. and after due consideration and under the circumstances, we cannot say that the sentence imposed by the trial court is inappropriate in light of the nature of the offense and the character of the offender. See Laux v. State, 821 N.E.2d 816, 823 (Ind.2005) (“Although we agree that [the defendant’s] lack of criminal history, work ethic, educational achievement, and remorse have value; we cannot ignore the brutality of the crime that he committed. In light of all of the circumstances surrounding [the defendant’s] crime, we are not persuaded that the sentence is inappropriate.”); Ray v. State, 838 N.E.2d 480, 495 (Ind.Ct.App.2005) (observing that the defendant did not have a criminal history but holding that his thirty-year sentence for battery as a class A felony for shaking a baby was not inappropriate given the extreme consequences of the defendant’s battery upon the victim), trans. denied.

For the foregoing reasons, we affirm Russell’s sentence for two counts of battery as class B felonies.

Affirmed.

KIRSCH, J., concurs.

BAKER, J., concurs in part and dissents in part with separate opinion.

BAKER, Judge,

concurring in part and dissenting in part.

I agree with the majority’s determination that the trial court properly exercised its discretion in granting Russell’s motion for a belated appeal. However, I part ways with the decision to affirm the trial court’s imposition of consecutive sentences in this instance.

I am in no way suggesting that the seriousness of these offenses be depreciated, and I certainly acknowledge the severity of the injuries that C.W.R. sustained. However, the uncontroverted evidence shows that Russell has no prior criminal history, he decided to plead guilty to the offenses and showed genuine remorse and sorrow for his actions. Tr. p. 55. The record also demonstrates that Russell suffered from mental and emotional problems and sought mental health treatment several months prior to these incidents. Moreover, the trial court noted that Russell’s risk of reoffending is very low. Tr. p. 30, 34. For all of these reasons, I would direct the trial court to order the sentences to run concurrently with each other.

      . Ind. Code § 35-42-2-1 (Supp. 2009).

      . The chronological case summary (“CCS”) indicates that two of the counts were filed on November 7, 2010, and one of the counts was filed on October 15, 2010. The State indicates that the date of October 15, 2010 in the CCS appears to be an error.

      . "An 'eligible defendant’ for purposes of this Rule is a defendant who, but for the defendant’s failure to do so timely, would have the right to challenge on direct appeal a conviction or sentence after a trial or plea of guilty by filing a notice of appeal, filing a motion to correct error, or pursuing an appeal." Ind. Post-Conviction Rule 2.

      . The State cites Reid v. State, 883 N.E.2d 872 (Ind.Ct.App.2008), in support of its argument that we should reverse the trial court. In Reid, the defendant did not include any facts or evidence in support of his petition, the defendant did not respond to the State’s allegation on cross-appeal, and the court concluded that “[w]ithout evidence regarding his diligence and lack of fault, [the defendant] cannot have met his burden of proof.” 883 N.E.2d at 874. We find Reid distinguishable as Russell attached a number of items to his petition for permission to file a belated notice of appeal and responded to the State’s argument on appeal.

      . The record reveals that C.W.R. had a doctor’s visit on October 26, 2010, and was "[w]ell-appearing.” Defendant’s Exhibit B. C.W.R. had another doctor’s visit on November 3, 2010, and appeared healthy with no abdominal tenderness. The record also contains a medical report on C.W.R. which indicates that the timing of C.W.R.’s initial injuries may be difficult to determine.


author: MATHIAS, Judge.

text:
    In re the ESTATE OF Ruby Shuler Blankenbaker BOTKINS, Deceased. Mark Allen Shuler and David Lee Shuler, co-personal representatives, Appellants, v. Estate of George Botkins, by Larry Botkins, personal representative, Appellee.
    No. 22A05-1109-ES-481.
    Court of Appeals of Indiana.
    May 25, 2012.

      John A. Kraft, Jennifer Kraft Kuchle, Young, Lind, Endres & Kraft, New Albany, IN, Attorneys for Appellants.
    Joni L. Grayson, Jeffersonville, IN, Attorney for Appellee.
   OPINION

MATHIAS, Judge.

Mark and David Shuler (collectively, “the Shulers”), the co-personal representatives of the estate of Ruby Shuler Blank-enbaker Botkins (“Ruby”), appeal from the trial court’s denial of their motion to set aside a Family Settlement Agreement (“the Settlement Agreement”) relating to the administration of Ruby’s estate. Concluding that the order from which the Shu-lers appeal is neither a final judgment nor an appealable interlocutory order, we dismiss this appeal sua sponte.

Facts and Procedural History

This appeal involves a dispute over Ruby’s estate. Ruby died in 2008, and the estate was opened in 2009, when Ruby’s nephews, the Shulers, filed a petition to probate a copy of Ruby’s lost will dated May 27, 1992 (“the 1992 will”). George Botkins (“George”), Ruby’s surviving husband, objected. In September 2009, George and the Shulers entered into the Settlement Agreement, whereby the Shu-lers would act as co-personal representatives and administer the estate in a manner largely in keeping with the directives of the 1992 will. The trial court entered an order approving the Settlement Agreement on October 23, 2009, and thereafter granted the Shulers authority to proceed with disposition of the estate.

Several months later, but while the estate remained open, the Shulers discovered another will executed by Ruby in January of 1987 (“the 1987 will”). The Shulers filed a petition to set aside the Settlement Agreement and admit the 1987 will to probate, and George again objected. After two hearings, the trial court entered an order denying the Shulers’ petition on April 12, 2011. At the Shulers’ request, the trial court certified its April 12 order for interlocutory appeal, but this court denied the Shulers’ motion to accept jurisdiction on July 26, 2011. Then, on August 22, 2011, the Shulers filed a motion asking the trial court to modify the April 12 order so as to make it a final, appealable order. On September 2, 2011, the trial court entered an order purporting to make the April 12 order final and appealable. This appeal ensued.

Discussion and Decision

This court has jurisdiction in all appeals from final judgments. Ind. Appellate Rule 5(A). A “final judgment” is one which “disposes of all claims as to all parties[.]” App. R. 2(H)(1). See also Bueter v. Brinkman, 776 N.E.2d 910, 912-13 (Ind. Ct.App.2002) (a final judgment is one that “disposes of all issues as to all parties, to the full' extent of the court to dispose of the same, and puts an end to the particular case” and “reserves no further question or direction for future determination.” (internal quotations and citations omitted)). Whether an order is a final judgment governs this court’s subject matter jurisdiction. Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind.2003). The lack of appellate subject matter jurisdiction may be raised at any time, and where the parties do not raise the issue, this court may consider it sua sponte. Id.

Here, the trial court’s September 2, 2011 order from which the Shulers appeal is not a final judgment within the meaning of Appellate Rule 2(H)(1). Because the estate remained open after its entry, the September 2, 2011 order did not put an end to the case. Indeed, this court has acknowledged that orders issued by a probate court are not final until the estate is closed. See Dawson v. Estate of Ott, 796 N.E.2d 1190, 1194 n. 2 (Ind.Ct.App.2003) (holding that a probate court order reducing the amount of the ex-wife’s lien against real estate owned by the decedent in light of life insurance proceeds received by the ex-wife was not a final judgment because the estate remained open thereafter). And by pursuing an interlocutory appeal of the trial court’s April 12, 2011 order denying their petition to set aside the Settlement Agreement, the Shulers implicitly acknowledged that the order was not a final judgment. The only change the September 2, 2011 order made to the April 12, 2011 order was to add a statement that the order was final and appealable. But simply labeling an order final and appealable does not make it so.

It appears that the trial court’s September 2, 2011 order was an attempt to make its order denying the Shulers’ petition to set aside the Settlement Agreement a final, appealable order by bringing it within the confines of Trial Rule 54(B). See Martin v. Amoco Oil Co., 696 N.E.2d 383, 385 (Ind.1998) (“A judgment or order as to less than all of the issues, claims, or parties in an action may become final only by meeting the requirements of T.R. 54(B).”). Trial Rule 54(B) provides, in relevant part, that:

A judgment as to one or more but fewer than all of the claims or parties is final when the court in writing expressly determines that there is no just reason for delay, and in writing expressly directs entry of judgment, and an appeal may be taken upon this or other issues resolved by the judgment; but in other cases a judgment, decision or order as to less than all the claims and parties is not final.

In Martin, our supreme court adopted a “bright line” rule requiring strict compliance with Trial Rule 54(B) before a trial court’s order disposing of less than all issues as to all parties will be deemed final and appealable as of right. 696 N.E.2d at 385. The court explained that this formalistic approach “removes uncertainties about when a party should appeal, thus minimizing the risk that an appeal will be dismissed as premature or that the right to appeal will be inadvertently lost.” Id. The court reasoned further that strict compliance with the rule “placets] the discretion of deciding when the facts indicate that a judgment should be deemed final in the hands of the individual best able to make such decisions— the trial judge.” Id. Thus, unless a trial court uses the “magic language” set forth in Trial Rule 54(B), an order disposing of fewer than all claims as to all parties remains interlocutory in nature. See Forman v. Penn, 938 N.E.2d 287, 289-90 (Ind. Ct.App.2010) (dismissing appeal), appeal reinstated and trial court judgment aff'd on reh’g, 945 N.E.2d 717 (Ind.Ct.App.2011), trans. denied.

Here, the trial court’s September 2, 2011 order did not comply with the dictates of Trial Rule 54(B). Specifically, the order simply modified the April 12, 2011 entry to include a statement that it is a final, ap-pealable order. Neither the April 12 order nor the September 2 order included an express determination that there was no just reason for delay. Accordingly, the September 2, 2011 order is not final and appealable under Trial Rule 54(B).

Because the trial court’s September 2, 2011 order was not a final judgment, the Shulers cannot appeal unless the order is an appealable interlocutory order. See Bacon v. Bacon, 877 N.E.2d 801, 804 (Ind.Ct.App.2007), trans. denied. “An interlocutory order is one made before a final hearing on the merits and requires something to be done or observed but does not determine the entire controversy.” Id. This court has “jurisdiction over appeals of interlocutory orders under Rule 14[.]” App. R. 5(B).

Under Appellate Rule 14(A), certain interlocutory orders may be appealed as a matter of right. Such appeals must be expressly authorized, and that authorization is to be strictly construed. Bacon, 877 N.E.2d at 804. None of the grounds for interlocutory appeals set forth in Appellate Rule 14(A) apply to the case before us. Therefore, the Shulers are not entitled to an interlocutory appeal as a matter of right. Additionally, under Appellate Rule 14(B), interlocutory orders may be appealed “if the trial court certifies its order and the Court of Appeals accepts jurisdiction over the appeal.” App. R. 14(B). Although the trial court certified its April 12, 2011 order for interlocutory appeal, this court declined to accept jurisdiction, and no such certification and acceptance took place with respect to the September 2, 2011 order. Thus, the trial court’s September 2, 2011 order is not appealable under Appellate Rule 14(B).

For all of these reasons, we conclude that the order from which the Shulers appeal is neither a final judgment nor an appealable interlocutory order. This court is therefore without subject matter jurisdiction to entertain the Shulers’ appeal.

Dismissed.

ROBB, C.J., and BAILEY, J., concur.

      . George died in January 2010, and his estate has been substituted as a party. For purposes of clarity, we will continue to refer to George's estate as "George.”

      . In re Guardianship of Phillips, 926 N.E.2d 1103 (Ind.Ct.App.2010) is distinguishable from the facts and circumstances before us. In Phillips, this court concluded that a trial court's order denying a guardian’s petition to revoke a trust that had been created for the benefit of the ward was a final judgment even though the guardianship remained open. Id. at 1106. In reaching this conclusion, the court reasoned that the trial court's order disposed of the issue of whether the trust would remain in effect. Id. Aside from that issue, the previously resolved issue of the appointment of the guardian, and the issue of attorney fees, no other issues were raised in the pleadings that were part of the record in that appeal. Id. Accordingly, the court concluded that it was immaterial that the guardianship remained open and that ownership of certain assets had not yet been ascertained. Id.

        Phillips involved a guardianship proceeding as opposed to an estate. Although the two types of proceedings are analogous in certain ways, they are distinct in that a guardianship may go on indefinitely, while an estate will be closed upon the distribution of the assets. Additionally, unlike the order denying the petition to revoke the trust in the Phillips case, the trial court's order denying the Shulers’ petition to set aside the Settlement Agreement does not address an issue that is separate and distinct from the remainder of the underlying proceedings. Rather, the order at issue here goes to the very heart of the underlying estate proceedings because it determines the manner in which the estate will be distributed— either under the terms of the Settlement Agreement or the 1987 will.

      . In Dawson, this court concluded that although the order was interlocutory, it was appealable as of right under Appellate Rule 14(A) because it was an order for the payment of money. 796 N.E.2d at 1194 n. 2.