author: DARDEN, Senior Judge.

text:
    David BLEEKE, Appellant-Plaintiff, v. STATE of Indiana, Edwin G. Buss, in his Capacity as Commissioner of the Indiana Department of Corrections; Gregory Server, as Chairman of the Indiana Parole Board; Randall P. Gentry, as Vice Chairman of the Indiana Parole Board; Thor R. Miller, as a Member of the Indiana Parole Board; Valerie J. Parker, as a Member of the Indiana Parole Board; William R. Harris, as a Member of the Indiana Parole Board; Mia Kelsaw, as a Parole Supervisor for the Indiana Parole Board, Fort Wayne District 2; Damita Vanlandingham, as a Parole Supervisor for the Indiana Parole Board, Fort Wayne District 2; Susan Feasby, as a Parole Supervisor for the Indiana Parole Board, Fort Wayne District 2, Appellees-Defendants.
    No. 02A05-1201-PL-25.
    Court of Appeals of Indiana.
    Jan. 23, 2013.

      Daniel McNamara, Patrick L. Proctor, Eilbacher Fletcher, LLP, Fort Wayne, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, David A. Arthur, Stephanie L. Rothenberg, Deputies Attorney General, Indianapolis, IN, Attorneys for Appellees.
   OPINION

DARDEN, Senior Judge.

STATEMENT OF THE CASE

David Bleeke (“Bleeke”) appeals the trial court’s grant of partial summary judgment in favor of the defendants in response to Bleeke’s complaint for declaratory and injunctive relief filed against the State of Indiana; Edwin G. Buss (in his capacity as former Commissioner of the Indiana Department of Correction); Gregory Server (as chairman of the Indiana Parole Board); Randall P. Gentry (as vice chairman of the Indiana Parole Board); Thor R. Miller, Valerie J. Parker, and William R. Harris (as members of the Indiana Parole Board); and Mia Kelsaw, Damita Vanlandingham, and Susan Feasby (as parole supervisors for the Indiana Parole Board’s Fort Wayne District). When possible, we shall refer to the defendants collectively as “the Parole Board.”

We reverse and remand.

ISSUES

The following issues are dispositive:

I. Whether Bleeke waived any right to appeal the imposition of additional parole conditions when he signed a document permitting him to move to Ohio;
II. Whether the trial court erred in determining as a matter of law that provisions of Indiana Code Section ll-13-S-4(g) were not overbroad;
III. Whether the trial court erred in determining that the designated evidence supported the imposition of certain additional parole conditions prohibiting Bleeke’s association with children;
IV. Whether the trial court erred in determining as a matter of law that certain other additional parole conditions were neither overbroad nor vague; and
V. Whether the trial court erred in determining as a matter of law that the Indiana Sex Offender Management and Monitoring Program (“SOMM”), as applied to Bleeke, violates his right to due process.

FACTS AND PROCEDURAL HISTORY

On January 31, 2005, a jury found Bleeke guilty of residential entry, attempted criminal deviate conduct, and sexual battery for the 2002 entry into an adult female’s apartment and the touching of her pubic area in an attempt to digitally penetrate her vagina. The trial court merged the attempted criminal deviate conduct and sexual battery counts and sentenced Bleeke to concurrent sentences of ten years on the attempted criminal deviate conduct conviction and one and one-half years on the residential entry conviction. Bleeke appealed his attempted criminal deviate conduct conviction, and this court affirmed. See Bleeke v. State, No. 02A03-0504-CR-196, 834 N.E.2d 235 (Ind.Ct.App. August 29, 2005), trans. denied.

Bleeke was incarcerated in the Indiana Department of Correction (“D.O.C.”) from January 6, 2005, until March 19, 2008, when he was released to an Allen County community transition program. On April 24, 2009, after completing the community transition program, Bleeke was released to mandatory parole, which ends in 2015.

The Parole Board imposed a statutorily-required parole condition pursuant to Indiana Code section 11 — 13—3—4(g)(2)(D), which states that the Parole Board shall “prohibit a parolee who is a sex offender from owning, operating, managing, being employed by, or volunteering at any attraction designed to be primarily enjoyed by children less than sixteen (16) years of age.”

Indiana Code section ll-13-3-4(b) allows the Parole Board “to adopt, under IC 4-22-2, additional conditions” that “must be reasonably related to the parolee’s successful reintegration into the community and not unduly restrictive of a fundamental right.” Under this subsection, the Parole Board imposed additional parole conditions listed on standardized State Form 49108 that limited Bleeke’s association with minors, including his own children and step-children. State Form 49108 provides in part:

4. You shall not touch, photograph (still or moving), correspond with (via letter or e-mail), and/or engage in “small talk” or unnecessary conversation with any child, including your own, either directly or via third party, or attempt to do any of the preceding without written approval in advance by your parole agent, in consultation with your treatment provider. You must never be in any vehicle or any residence with any child, including your own, even if other adult(s) is/are present, without written approval in advance by your parole agent in consultation with your treatment provider. You must report any inadvertent contact with children to your parole agent within twenty-four (24) hours of contacts]
5. You must not reside, visit or be within one thousand (1,000) feet of public parks with playgrounds, pools, rides, and/or nature trails, schools, day care centers, public swimming pools, public beaches, theaters, or any other place where children can reasonably be expected to congregate.
17. You shall not stay overnight with any adult and/or establish an intimate and/or sexual relationship with any adult without prior approval by your parole agent and treatment clinician. You must also report whether the person you are having a relationship with has children under the age of eighteen (18) and/or if children under the age of eighteen (18) reside in the person’s home.
19. You shall not possess any items on your person, in your vehicle, in your place of residence, or as part of your personal effects which attract children or that may be used to coerce children to engage in inappropriate or illegal sexual activities. You will not attempt to persuade, whether by words or actions or both, a child to enter a vehicle, structure, or enclosed area, or to otherwise relocate.

Appellant’s App. pp. 22-23 (emphasis added).

Bleeke was permitted to visit and play with his son, K.B., while he was a prisoner in D.O.C.; however, after he was released to parole, his parole agents interpreted his parole conditions to prohibit him from being physically present with his son, speaking to him by phone or contacting him through a third person, or corresponding with him. Parole agents also interpreted the parole conditions to prohibit Bleeke from possessing photographs or videotapes of his son. Parole agents further interpreted the parole conditions to prohibit Bleeke from even being present at the birth of his second son, Z.B., born on July 7, 2009. They also prohibited Bleeke from having contact with Z.B.

Sometime prior to the filing in state court of the complaint for declaratory and injunctive relief that led to this appeal, Bleeke had filed a lawsuit in federal district court challenging some of the same parole conditions that he is challenging in this appeal. Due to procedural issues, the federal district court dismissed most of Bleeke’s claims without prejudice; however, it did grant Bleeke’s motion for preliminary injunction regarding those conditions that prohibited Bleeke’s association with his own children and step-children. See Bleeke v. Server, 2010 WL 299148 at *13 (N.D.Ind. January 19, 2010). The federal court held that Bleeke “established that [the Parole Board] had a constitutional obligation to provide some procedural safeguard allowing for an individualized determination as to [Bleeke’s] risk to his own children before imposing [Bleeke’s] parole conditions.” Id.

On May 10, 2010, the Parole Board held a special hearing pursuant to the federal court’s order. In the hearing, Bleeke presented evidence from his SOMM supervisor, Mary Rose, and the supervisor of his parole agents, Mia Kelsaw, that he posed no risk to children. The Parole Board heard testimony by the SOMM program director, Adam Deming, that the actuarial statistics upon which the program relies for recidivism rates do not measure the likelihood of a sex offender acting out against children. Deming also testified that psychological evaluations do exist which would allow the Parole Board to assess the level of risk that an individual parolee will recommit an offense using dynamic risk factors particular to that individual instead of actuarial statistics. However, Deming testified that no such evaluation of Bleeke had been made and that Deming would rely heavily upon Rose’s evaluation. Even though the Parole Board received no individualized evidence that Bleeke had or would abuse a child, the Board upheld all of the parole conditions formerly imposed upon him, including the conditions that prevented him from associating with his own children or other children.

On May 19, 2010, Bleeke filed in Allen Superior Court the aforementioned complaint for declaratory and injunctive relief. Bleeke amended the motion and complaint on June 14, 2010. In the amended motion and complaint, Bleeke claimed that the Indiana Declaratory Judgment Act, Indiana Code section 34-14-1-1 et seq., “entitles [him] to obtain a declaration of [his] rights and status under the challenged statutes, State Conditions, and conduct of the State.” Appellant’s App. p. 37. Bleeke further claimed that he was entitled to injunctive relief that prevented the Parole Board from enforcing parole conditions that prevented his association with children.

Among other things, Bleeke alleged that (1) Indiana Code section 35-42-4-11 and Indiana Code section ll-13-3-4(g)(2)(D) denied him procedural due process and were overbroad in their application to him; (2) the Parole Board imposed additional parole conditions that do not accomplish the twin goals of Indiana Code section 11-13 — 3—4(b), which requires that additional parole conditions imposed must be reasonably related to the parolee’s successful reintegration into the community and not unduly restrictive of a fundamental right; (3) the Parole Board imposed other additional parole conditions that are overbroad and/or vague; and (4) D.O.C.’s SOMM Program violated his Fifth Amendment right against compulsion by compelling him to admit guilt in order to complete the assigned program. Appellant’s App. pp. 29-46. Bleeke subsequently filed a motion for summary judgment pertaining to each of the issues raised in his complaint.

During the time that the case was pending, Bleeke requested that his parole be transferred to Ohio, where his wife and family were residing. Permission was granted and Bleeke moved to Ohio at some point after the Indiana trial court had entered a preliminary injunction prohibiting the Parole Board from enforcing any parole conditions that blocked Bleeke from associating with his own children and stepchildren but before the Indiana trial court entered its final injunction and summary judgment order.

On December 19, 2011, the trial court ultimately found that “[i]t was only after a lawsuit filed in federal court and the filing of this case” that the Parole Board “permitted any regular contact between [Bleeke] and his family prior to the issuance of a preliminary injunction by this Court in this case.” Appellant’s App. p. 24. The trial court noted that the Parole Board did not contest the extension of a preliminary injunction permitting Bleeke to associate with his own children and step-children, and it converted the preliminary injunction to a permanent injunction and enjoined the Parole Board from enforcing conditions 4, 5, 17, and 19 of Indiana State Form 49108 with respect to Bleeke’s own children and step-children. The trial court granted summary judgment in favor of the Parole Board and against Bleeke on all other issues raised in Bleeke’s motion for summary judgment.

Bleeke now appeals the portions of trial court’s order that denied his summary judgment motion and granted summary judgment in favor of the Parole Board. He asks that this court instruct the trial court to enter a permanent injunction against the Parole Board.

DISCUSSION AND DECISION

I. WAIVER

Before addressing Bleeke’s contentions, we first address the Parole Board’s cross-appeal argument that Bleeke waived any right to appeal the conditions of his parole when he signed Ohio’s “Conditions of Supervision” document that stated, “I agree to fully participate in, and successfully complete, the following indicated Sanctions/Special Conditions: 1) SEE ATTACHED INDIANA PAROLE CONDITIONS OF SUPERVISION.” Appellees’ App. pp. 1-2. The Parole Board cites Hams v. State, 836 N.E.2d 267, 272-73 (Ind.Ct.App.2005), trans. denied, for the proposition that “a parole agreement is a contract between the prisoner and the State and may be subject to certain conditions imposed at the time of the granting of parole.... Accordingly, where conditions have been imposed, the parolee is bound by such conditions.” The Parole Board argues that a parole agreement is like a plea agreement, in that a defendant who signs the agreement waives objections to the contents therein.

In the present case, our review of the designated document evinces no signature and no attached list of conditions. From the document, we cannot ascertain exactly what Bleeke is supposedly waiving. Further, we again observe that the transfer to Ohio occurred after the trial court entered its preliminary injunction but before it ruled on Bleeke’s summary judgment motion. It was not until sixteen months after the transfer, a period of time where Bleeke’s attorneys engaged in discovery and filed a lengthy summary judgment motion, that the Parole Board first made its waiver argument. These facts do not demonstrate that the Parole Board considered the designated document to be a waiver of Bleeke’s rights, for if it had it would surely have informed Bleeke’s attorneys before they engaged in time consuming and expensive discovery-related activities. Finally, we conclude that the designated agreement is not similar to a plea agreement, wherein the State is required to advise the defendant of specific rights so that the defendant will know what he is waiving under the agreement.

The agreement is, however, similar to an order imposing probation terms. See Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (equating probation to parole). A signature to such an agreement “does not serve as a waiver to challenge any terms pn appeal....” See Piercefield, 877 N.E.2d at 1218. Thus, although a parolee may be subject to conditions found in a parole agreement, such conditions may be challenged. In short, Bleeke has not waived his right to appeal.

II. PROPRIETY OF INDIANA CODE SECTIONS 35-42-4-11 AND 11-13-3-4(g)(2)(D)

A. Indiana Code section 35-12-1-11

Indiana Code section 35-12-1-11 states that a person found to be “a sexually violent predator under IC 35-38-1-7.5” automatically is an “offender against children.” Indiana Code section 35-38-1-7.5 provides that a “sexually violent predator” includes a person who, like Bleeke, has been convicted of criminal deviate conduct pursuant to Indiana Code section 35-12-4-2. The statute further provides that an “offender against children” may not “knowingly or intentionally” reside within one thousand feet of schools, youth program centers, or a public park.” I.C. § 35 — 12-4-ll(c). Bleeke contends that Indiana Code section 35-42 — 1-11, in classifying him as an “offender against children” and restricting his residence without notice or a hearing, violates his right to procedural due process.

Our examination of the history of Indiana Code section 35-42-4-11 discloses that it does not apply to offenders who committed offenses before June 30, 2006. Accordingly, the statute, including its classification and its residence restriction provision, does not apply to Bleeke, who committed sexual deviate conduct in 2002.

B. Indiana Code section ll-13-3-l(g)(2)(D)

As we note above, Indiana Code section ll-13-3-4(g)(2)(D) provides that the Parole Board shall “prohibit a parolee who is a sex offender from owning, operating, managing, being employed by, or volunteering at any attraction designed to be primarily enjoyed by children less than sixteen (16) years of age.” Bleeke contends that this provision deprives him of his right to procedural due process by preventing him from any association with minors “even though all of the evidence before the Parole Board indicates [he] does not pose a risk to minors.” Appellant’s Br. p. 43. In addition, Bleeke contends that the provision is overbroad.

Bleeke is appealing from the trial court’s denial of his motion for summary judgment and grant of summary judgment for the Parole Board. Summary judgment is appropriate if there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. City of Terre Haute v. Pairsh, 883 N.E.2d 1203, 1206 (Ind.Ct.App.2008), trans. denied. When reviewing an entry of summary judgment, we stand in the shoes of the trial court. Koppin v. Strode, 761 N.E.2d 455, 460 (Ind.Ct.App.2002), trans. denied. The moving party bears the burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Boston v. GYN, Ltd., 785 N.E.2d 1187, 1190 (Ind.Ct. App.2003), trans. denied. We review only the designated evidentiary material in the record, construing that evidence liberally in favor of the nonmoving party so as not to deny that party its day in court. Myers v. Irving Materials, 780 N.E.2d 1226, 1228 (Ind.Ct.App.2003).

Questions of statutory construction are particularly amenable to resolution by summary judgment, as they are pure questions of law. Koppin, 761 N.E.2d at 460. We review questions of law de novo and owe no deference to the trial court’s legal conclusions. Id.

Procedural due process under the Fourteenth Amendment of the United States Constitution is implicated where an individual is deprived of life, liberty, or property without due process of law. The Supreme Court has adopted a two-step analysis to examine whether an individual’s procedural due process rights have been violated. The first question “asks whether there exists a liberty ... interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (citations omitted).

Federal courts have recognized that prisoners or parolees have a liberty interest under the Due Process Clause in freedom from the stigmatization that occurs through classification and attendant conditions imposed upon a person who was not convicted of an offense within the classification. See Vitek v. Jones, 445 U.S. 480, 492-93, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (holding that a prisoner is entitled to procedural due process prior to being transferred to a mental hospital); Meza v. Livingston, 607 F.3d 392, 395 (5th Cir. 2010) (holding that a parolee who has not been convicted of a sex offense is entitled to procedural due process prior to imposition of sex offender conditions); Coleman v. Dretke, 395 F.3d 216, 222 (5th Cir.2004) (holding that a parolee who has not been convicted of a sex offense may not be burdened with sex offender registration and therapy without due process); Kirby v. Siegelman, 195 F.3d 1285, 1292 (11th Cir.1999) (holding that classification as a sex offender implicates a liberty interest under the due process clause); Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir.1997) (holding that a prisoner must be afforded procedural due process before suffering the “stigmatizing consequences” of being labeled a sex offender). Under the four latter cases, the courts held that the prisoner/parolee who had not been convicted of a sex offense had a liberty interest in not being branded a sex offender. See Kirby, 195 F.3d at 1291.

Here, Indiana Code section 11 — 13— 3-4(g)(2)(D), in effect, classifies Bleeke as a child molester or an offender against children by imposing a condition that severely limits his association with children. Of course, the State has the responsibility of protecting the life, liberty, and safety of the public, and we presume that the condition is designed to provide such protection by preventing parolees from grooming and preying upon minors. However, perhaps the only combination of classification and conditions more stigmatizing than a “sex offender” label (which is correctly applied to Bleeke based on his conviction) is the combination of classification and related parole conditions placed on a child molester or offender against children (which is not based upon a conviction). Under the above-cited cases, the classification of Bleeke through the imposition of Indiana Code section 11 — 13—3—4(g)(2)(D) implicates a liberty interest, and the State must provide procedural due process protections.

Our identification of a liberty interest does not, of course, complete the due process analysis. We must now determine what type of process is required and whether Bleeke received that process. In Meza, the court determined that minimum process includes the following:

(1) written notice that [offender against children] conditions may be imposed as a condition of his mandatory supervision,
(2) disclosure of the evidence being presented against [Bleeke] to enable him to marshal the facts asserted against him and prepare a defense, (3) a hearing at which [Bleeke] is permitted to be heard in person, present documentary evidence, and call witnesses, (4) an impartial decision maker, and (5) a written statement by the factfinder as to the evidence relied on and the reasons it attached [offender against children] conditions to his mandatory supervision.

607 F.3d at 409 (citing Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)).

In the case before us, Bleeke, through his persistence, has been afforded the aforementioned process in the trial court. In support of his motion for summary judgment, he designated the following evidence:

• An admission by State witness Dr. Adam Deming that the actuarial statistics used by SOMM do not indicate whether a sex offender is likely to act out against a child. Appellant’s App., recording of Parole Board hearing.
• An averment by Mary Rose, Bleeke’s counselor for the SOMM program, that “[s]ince the beginning of his treatment, Mr. Bleeke has given no reason to believe he is at risk to molest a child.” Appellant’s App. p. 318.
• An averment by Rose that Bleeke was twice given polygraph examinations, and the polygraph report acknowledges that there were no “significant responses to the relevant questions asked on the examination.” Id.
• An averment by Rose that “Mr. Bleeke has not said or done anything that leads me to believe that he poses a risk to children, including his own children.” Id.
• An averment by Mia Kelsaw, the supervisor of Bleeke’s parole officers and member of his “containment team,” that she had no evidence that Bleeke poses a risk to his children “or to anyone.” Appellant’s App., recording of Parole Board hearing.

The Parole Board responded by citing a study describing “cross-over” offenders. The study has not been made a part of the record on appeal, but its purported contents were examined and found wanting by the court in Bleeke’s federal action. The court stated:

Turning to ... whether a rational connection exists between the regulation and the governmental interest advanced as to its justification ... the state in this case attempted to prove this through expert testimony. [The Parole Board’s] expert, psychotherapist Adam [Deming], testified as to the statistical tendencies of adult sex offenders. He focused his testimony on a study showing that 50% to 70% of repeat sex offenders could be considered “crossover” offenders, reaching across category types including age and gender. According to [Deming], perhaps counter-intuitively, adult sex offenders are more likely to be “crossover” offenders than pedophiles and other sexual abusers of children. In other words, just because [Bleeke] was convicted of a sexual offense against an adult does not mean that concerns over recidivism should not include his targeting of children in the future. While this testimony shows that [Bleeke’s] parole condition has some basis in rationality, the connection is far from overwhelming. For one thing, the findings cited by [Deming] were based on a study of only 500 individuals. More significantly, even assuming the study was completely reliable, it still leaves a sizeable number of adult sex offenders who would never look to children as targets of repeat misconduct....

Bleeke v. Server, 2010 WL 299148 at *7 (emphasis added).

An overbreadth challenge asserts that the statute is not drawn in sufficiently narrow terms and foreseeably prohibits legitimate conduct. Van Sant v. State, 523 N.E.2d 229, 238 (Ind.Ct.App.1988). Stated differently, an overbreadth challenge evaluates a statute based “not upon the [party’s] conduct, but rather upon legitimate conduct which might foreseeably be prohibited by a statute which is not drawn in sufficiently narrow terms.” Andrews v. State, 505 N.E.2d 815, 822-23 (Ind.Ct.App. 1987).

Here, the Parole Board’s witnesses provided evidence that Bleeke is not among those sex offenders who “cross-over” and become a danger to children. Indiana Code section ll-13-3-4(g)(2)(D), which limits legitimate conduct in the form of both foreseeable employment and association, is overbroad as applied to Bleeke.

III. VALIDITY OF THE ADDITIONAL PAROLE CONDITIONS UNDER INDIANA CODE SECTION H_13_3-4(b)

Bleeke contends that the trial court erred in not finding that the Parole Board failed to comply with Indiana Code section ll-13-3-4(b), which provides, in pertinent part, that additional probation conditions “must be reasonably related to the parolee’s successful reintegration into the community and not unduly restrictive of a fundamental right.” Bleeke also contends that the Parole Board’s automatic imposition of Additional Parole Conditions 4, 5, 17, and 19 of Form 49108, without individualized analysis of whether such conditions are reasonably related to his successful reintegration into the community, violates the clear wording of the statute. Bleeke argues that the Parole Board’s failure to make such a determination “renders the act of imposing those additional conditions on [Bleeke] an act outside of its statutory authority and thus ultra vires.” Appellant’s Br. p. 30 (citing Planned Parenthood of Ind. v. Carter, 854 N.E.2d 853, 864 (Ind.Ct.App.2006) (holding that “any act of an agency in excess of its power is ultra vires and void”); Vehslage v. Rose Acre Farms, Inc., 474 N.E.2d 1029, 1033 (Ind. Ct.App.1985) (holding that “Administrative boards, agencies, and officers have no common law or inherent powers, but only such authority as is conferred upon them by statutory enactment”)).

The Parole Board replies that the additional conditions “are solely for the State to minimize risks to children. Sexual predators prey upon those to whom they have access.” Appellees’ Br. p. 25. The Parole Board cites Carswell v. State, 721 N.E.2d 1255, 1259 (Ind.Ct.App.1999), which involves restrictions on a child molester, not a sex offender. The Parole Board also cites other cases, all involving child molesters. These cases are not relevant to the issue of whether the Parole Board complied with the requirement of Indiana Code section 11 — 13—3—4(b) that the Parole Board’s additional conditions be reasonably related to Bleeke’s successful reintegration into the community and that they not unduly restrict his constitutional rights. Indeed, the Parole Board’s response illustrates its apparent position that it need not conduct an individualized assessment under Indiana Code section 11-13-3-4(b).

There is no designated evidence that supports the imposition of the additional conditions. The sum total of the Parole Board’s argument is that all sex offenders, no matter what offense they committed, no matter what circumstances surrounded commission of the offense, and no matter whether they are a danger to children, must be treated as child molesters and be controlled by parole conditions that are designed to govern child molesters. Accordingly, as Bleeke is being reintegrated into the community through parole, he cannot attend his children’s activities, family reunions, church services, athletic events, or any other functions where he might associate with minors. As noted in our discussion of Issue 2, all of the designated evidence demonstrates that Bleeke presents no threat to minors. It is clear that the Parole Board failed to make a determination under Indiana Code section ll-13-2-4(b) that the additional conditions imposed on Bleeke are “reasonably related to the parolee’s successful reintegration into the community.” Thus, the Parole Board exceeded its statutory powers, and its acts are void. The trial court should have granted summary judgment for Bleeke on this issue.

IV. VALIDITY OF OTHER ADDITIONAL PAROLE CONDITIONS

Bleeke contends that other certain additional parole conditions are impermis-sibly overbroad or vague. In Collins v. State, 911 N.E.2d 700, 713 (Ind.Ct.App. 2009), trans. denied, we held that “[a] probationer has a due process right to conditions of supervised release that are sufficiently clear to inform him of what conduct will result in his being returned to prison.” We see no reason that a parolee should be deprived of such a right. See Harris, 836 N.E.2d at 277 (holding that “a parolee ... has a due process right to ‘conditions of supervised release that are sufficiently clear to inform him of what conduct will result in his being returned to prison’”) (quoting Smith v. State, 779 N.E.2d 111, 118 (Ind.Ct.App.2002), trans. denied).

A. Additional Parole Condition 8

This condition provides in pertinent part that Bleeke “shall not visit ... businesses which sell sexual devices or aids” and that he “shall not possess personal contact materials (for example, magazines or papers) that contain information about persons who are desiring to have personal relationships of any kind with others.... ” Appellant’s App. p. 254. In Collins, we examined a probation condition with nearly identical language and concluded that the condition “places an unfairly broad prohibition on Collins’s ability to visit businesses which sell ‘sexual devices or aids,’ which could extend to drug stores, and possessing materials which might contain information about persons seeking ‘personal relationships of any kind,’ which could extend to local newspapers advertising roommate services.” 911 N.E.2d at 714.

B. Additional Probation Condition 15

This condition states, “You shall refrain from ‘cruising activity,’ frequenting areas where potential victims can be encountered.” Appellant’s App. p. 255. In Collins, the State conceded and we held that the exact language was impermissibly vague because it provided “no predictable standard for identifying forbidden places.” 911 N.E.2d at 713.

C. Additional Probation Condition 17

This condition provides in relevant part that Bleeke “shall not ... establish an intimate and/or sexual relationship with any adult without prior approval by your parole agent and treatment clinician.” Appellant’s App. p. 255. Bleeke compares this additional condition to the probation condition considered in Collins, wherein the probationer was required to notify his probation officer if he established a “dating, intimate, and/or sexual relationship.” 911 N.E.2d at 713. We noted that the term “dating relationship” was not sufficiently clear to inform the defendant of the prohibited or regulated conduct. Id. (citing McVey, 863 N.E.2d at 448-^49). As the McVey court observed, “dating” could be interpreted as requiring the probationer to report “the most mundane activities as going out for coffee with a friend,” which would impose an unreasonable burden upon the defendant, or it could be interpreted as limited to “intimate occasions and sexual contact,” thereby rendering the “dating” language superfluous. Id. Because of the lack of clarity with respect to the term “dating,” we concluded that the term was impermissibly vague. See Collins, 911 N.E.2d at 713; McVey, 863 N.E.2d at 449.

Bleeke argues that the term “intimate” is even more ambiguous than the term “dating” because it can refer to a relationship involving either physical or emotional closeness. He further argues that the condition is not clear as to when Bleeke is “establishing” an intimate relationship or what relationships are deemed “intimate.” Appellant’s Reply Br. p. 30.

The word “intimate,” when used as an adjective, means “marked by close acquaintance, association, or familiarity” or “very personal.” The American Heritage Dictionary 727 (4th ed. 2002). When used as a noun, the word describes “a close friend or confidant.” Id.

We conclude that the term “intimate,” as used in the condition, is vague. An intimate relationship is one where Bleeke would spend a significant amount of time with the other person and would during that time confide in that person as a close acquaintance. “Significant,” “confide,” and “close,” may be capable of being measured, but there is no indication of how such measurement would occur and how Bleeke would know that he has crossed the line from a “casual” to an “intimate” relationship.

D.Additional Probation Condition 19

This condition provides as follows:

You shall not possess any items on your person, in your vehicle, in your place of residence, or as part of your personal effects which attract children or that may be used to coerce children to engage in inappropriate or illegal sexual activities. You will not attempt to persuade, whether by words or actions or both, a child to enter a vehicle, structure, or enclosed area, or to otherwise relocate.

Appellant’s App. p. 255. In Collins, we evaluated an almost identical probation condition and found it wanting. 911 N.E.2d at 714. We noted that prohibited items under this condition could “range from kites and balloons to chocolate bars, and prohibited conduct could include such potentially innocuous activities as standing on one’s head or juggling....” Id. See also Harris, 8B6 N.E.2d at 277 (holding that the condition does not “provide standards that would give a parolee of ordinary intelligence an opportunity to know what is prohibited”).

Based upon the forgoing, we hold as a matter of law that Additional Parole Condition 8 is overbroad and Additional Parole Conditions 15,17, and 19 are vague.

V. CONSTITUTIONALITY OF THE SOMM PROGRAM

Bleeke contends that the SOMM Program is unconstitutional because it forces him to confess guilt, disclose all other sexual behaviors, give written consent to disclosure of the confession and/or disclosure, and submit to a polygraph on these subjects. His refusal to admit to an act that he denied in trial testimony has resulted in his expulsion from one provider’s program and puts him at risk of revocation of parole.

The Fifth Amendment, applicable to the states through the Fourteenth Amendment, provides that no person “shall be compelled in any criminal case to be witness against himself.” In order for the privilege to apply, two distinct elements must be present: compulsion and incrimination. Hiibel v. Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177, 189, 124 S.Ct. 2451,159 L.Ed.2d 292 (2004).

The compulsion element of the privilege against self-incrimination is present when the state attaches sufficiently adverse consequences to a refusal to surrender the privilege. Lefkowitz v. Cunningham, 431 U.S. 801, 805, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977). The incrimination element refers to the fact that a surrender of the privilege “might be dangerous because injurious disclosure could result.” Hoffman v. United States, 341 U.S. 479, 486-87, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). Although the danger of incrimination must be real and appreciable, and not simply imaginary and unsubstantial, the inquiry into whether a statement is incriminating should not consider the actual likelihood of prosecution. Resnover v. Pearson, 965 F.2d 1453, 1462 (7th Cir.1992) (holding that “We cannot agree that a witness’ constitutional privilege against self-incrimination depends upon a judge’s prediction of the likelihood of prosecution”). “[I]t is only where there is but a fanciful possibility of prosecution that a claim of Fifth Amendment privilege is not well taken.” In re Folding Carton Antitrust Litig., 609 F.2d 867, 871 (7th Cir.1979).

Bleeke cites Gilfillen v. State, 582 N.E.2d 821 (Ind.1991), in support of his argument. In Gilfillen, the defendant refused to admit guilt during a required probationary treatment program after he served a prison term for child molesting. Because of his refusal, his probation was revoked, and this Court affirmed. Our Supreme Court stated:

Gilfillen regularly attended the ordered counseling sessions. Also, he did not plead guilty and, therefore, has not admitted to having any child molesting problem. In fact, he continues to protest his innocence. Under these circumstances, requiring Gilfillen to admit he has a problem with child molesting or face revocation of probation is tantamount to requiring that he admit that he is guilty of the crimes charged. Clearly, this is unacceptable.
We recognize that probation is a matter of grace, and whether probation is granted is within the trial court’s discretion. Reasonable conditions on probation may be imposed on a defendant, but thought control is not one of them. Thus, in a circumstance such as this, where the defendant has not pled guilty but was instead convicted while denying guilt, the trial court may not insist on an admission of guilt as a condition of probation or use a continued denial of guilt as the basis for revocation.

Id. at 824 (internal citations omitted). In State v. Moore, 909 N.E.2d 1053, 1056 n. 1 (Ind.Ct.App.2010), trans. denied, the court noted that although Gilfillen does not specifically refer to it, the case “was grounded on the Fifth Amendment.”

The Parole Board does not refer to either Gilfillen or Moore in its brief. Instead, it cites to a series of federal cases that appear to hold a narrower view of the Fifth Amendment than that held by Indiana courts. Most, if not all, of the cases cited by the Parole Board involve 42 U.S.C. section 1983 actions, and are based on the holding in Chavez v. Martinez, 538 U.S. 760, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003), that a party may not sue for money damages under the federal statute for violation of the Fifth Amendment unless the compelled statement has been used against him in a criminal case. Accordingly, the narrow view expressed in these cases arguably does not apply to non-section 1983 actions. Certainly, the cases cited by the Parole Board do not address our Supreme Court’s Gilfillen holding.

The upshot in this case is that the potential for revocation of parole forces Bleeke to give up his Fifth Amendment privilege or possibly return to prison. And although the five-year statute of limitation for perjury has expired, Bleeke is still subject to the possible use by law enforcement of any other incriminating statements. The SOMM program’s requirements violate the Fifth Amendment.

CONCLUSION

The trial court erred in granting summary judgment in favor of the Parole Board. Further, it erred in denying Bleeke’s motion for summary judgment. We reverse and remand with instructions that the trial court: (1) vacate its order granting summary judgment for the Parole Board and denying Bleeke’s motion for summary judgment; (2) enter an order granting Bleeke’s motion for summary judgment; (3) enter an order enjoining the Parole Board from enforcing any conditions premised on the fiction that Bleeke is a danger to minors; (4) enter an order enjoining the Parole Board from enforcing additional parole conditions 8, 15, 17, and 19 against Bleeke; and (5) enter an order enjoining the Parole Board from requiring Bleeke to incriminate himself as part of the SOMM program.

Reversed and remanded.

FRIEDLANDER, J., and BROWN, J., concur.

      . In its "Response in Opposition to Motion for Summary Judgment,” the Parole Board questioned whether Bleeke should have named his family as plaintiffs and anyone other than the Parole Board as a defendant. It did not, however, ask the trial court to rule on the matter. Accordingly, the trial court did not rule on the matter, and we have nothing to review.

      . The trial court noted that the Parole Board agreed that "inadvertent contact” with children must be construed in accordance with Collins v. State, 911 N.E.2d 700 (Ind.Ct.App. 2009), trans. denied, Piercefield v. State, 877 N.E.2d 1213 (Ind.Ct.App.2007), trans. denied, and McVey v. State, 863 N.E.2d 434 (Ind.Ct. App.2007), trans. denied. In these cases, which construe the similar term "incidental contact,” the courts held that such contact does not "mean anything other than touching, photographing (still or moving), corresponding with (via letter or e-mail), and/or engaging in ‘small talk’ or unnecessary conversation with any child....” Appellant's App. p. 25.

      . A trial court "may grant summary judgment for any other party upon the issues raised by the motion although no motion for summary judgment is filed by such party.” Indiana Trial Rule 56(B).

      . As noted in our statement of the facts above, Bleeke’s wife, children, and step-children reside in Ohio. In order to be near them, Bleeke was required to accede to Ohio-imposed requirements.

      . Indiana Code section 11 — 13—3—4(g)(2)(B) provides that the Parole Board shall impose a required parole condition that "prohibit[s] a parolee who is a sex offender from residing within one thousand (1,000) feet of school property (as defined in IC 35-31.5-2-285) for the period of parole, unless the sex offender obtains written approval from the parole board.” For a reason not evident in the record, the Parole Board did not impose this condition, but instead imposed the more restrictive Additional Parole Condition No. 5. We address the propriety of Additional Parole Condition No. 5 in our discussion of Issue 3.

      . To be sure, the Parole Board has an interest in protecting the public since parolees have unsupervised contact with the community. See Felce v. Fiedler, 974 F.2d 1484, 1495 (7th Cir.1992). This interest is offset by the statutory requirement that the Parole Board reintegrate parolees into society. Furthermore, as the court found in Bleeke’s federal case, while freedom of association is among the constitutional rights least compatible with incarceration, “the same cannot be said of parole.” Bleeke v. Server, 2010 WL 299148, at * 9 (N.D.Ind.2010). "A parolee's ‘condition is very different from that of confinement in a prison,’ precisely because of his interest in pursuing the 'enduring attachments of normal life.' ” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)).

      . Given our decisions on Issues III and IV, we need not address Bleeke’s argument that the additional parole conditions should have been promulgated pursuant to Indiana Code section 4-22-2.

      . The Parole Board argues that there are now "denier” groups where Bleeke can receive treatment without making self-incriminating statements. From statements made at oral argument and by Dr. Deming at the hearing before the parole board, it is not clear whether these groups will provide a safe haven from self-incrimination, or whether they are a stopgap measure designed to treat deniers while D.O.C. and the Parole Board determine whether to revoke parole. The Parole Board also maintains that lack of funding has stopped its reporting of compelled statements to law enforcement officials. It is not clear whether this lack of funding will continue and whether reporting will again occur.


source: Caselaw Access Project

author: ROBB, Chief Judge.

license: Public Domain

text:
    Danny BOLING, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 20A04-1205-CR-237.
    Court of Appeals of Indiana.
    Jan. 24, 2013.

      Elizabeth A. Beilin, Cohen Law Office, Elkhart, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issues

Following a jury trial, Danny Boling was convicted of attempted child molesting, a Class A felony, and child molesting, a Class C felony. The trial court ordered an aggregate sentence of forty-five years and found him to be a credit restricted felon. Boling appeals, raising three issues for our review: 1) whether the State presented sufficient evidence to support his conviction of attempted child molesting; 2) whether the trial court properly determined him to be a credit restricted felon; and 8) whether his sentence is inappropriate in light of the nature of his offense and his character. Concluding the evidence is sufficient to support Boling’s conviction for attempted child molesting and his sentence is not inappropriate, but that the trial court erred in determining him to be a credit restricted felon, we affirm in part and reverse and remand in part.

Facts and Procedural History

Boling lived with his wife, Linda, and their two children, son D.B. and daughter K.B., in Elkhart County, Indiana. Boling worked the night shift at Meijer, arriving home in the morning and sleeping during the day. Typically, Linda would take the children to school in the morning, and after school, Marlin and Amanda Fast, neighbors of the Bolings, would pick the children up and keep them at their house until Linda picked them up in the evening at the end of her work day. On January 25, 2010, however, five-year-old K.B. became ill while at school. The school contacted the Boling home, and Boling called Marlin Fast and asked him to pick K.B. up and bring her home. When K.B. arrived home, Boling removed her clothing, except for her underwear, and put her in his bed. He also removed his clothing but for his long underwear, and laid down in the bed with her. K.B. testified that Boling touched her “front private” with his hand, both over her underwear and beneath her underwear directly on her skin. State’s Exhibit 2. KB. testified that Boling also pulled down his underwear, took her hand, and made her touch his “private,” which felt “sticky.” Id.

K.B. told her mother what had happened and a report was ultimately made to Children’s Protective Services. K.B. was interviewed by an employee of the Child Advocacy Center, and gave a videotaped statement describing the above events. The State charged Boling with attempted child molesting, a Class A felony, and child molesting, a Class C felony. A jury found Boling guilty as charged. The trial court sentenced Boling to forty-five years for the Class A felony attempted child molesting conviction, to be served concurrently with a six-year sentence for the Class C child molesting conviction. The trial court also found that Boling was a credit restricted felon pursuant to Indiana Code section 35-81.5-2-72(1). Boling now appeals.

Discussion and Decision

I. Sufficiency of the Evidence

A. Standard of Review

When reviewing the sufficiency of the evidence supporting a conviction, we do not reweigh the evidence or assess witness credibility for ourselves. Boggs v. State, 928 N.E.2d 855, 864 (Ind.Ct.App.2010), trans. denied. We consider only the probative evidence and reasonable inferences supporting the verdict. Id. It is not necessary that the evidence overcome every reasonable hypothesis of innocence; the evidence is sufficient if an inference may reasonably be drawn from it to support the verdict. Id. We will affirm the conviction unless no reasonable finder of fact could find the elements of a crime proven beyond a reasonable doubt. Id.

B. Attempted Child Molesting

Boling contends that the State presented insufficient evidence to support his conviction of attempted child molesting. The State charged Boling with the following:

... on or about January, 2010, at the County of Elkhart, State of Indiana, one DANNY BOLING, a person at least twenty-one (21) years of age, did knowingly engage in conduct that constituted a substantial step toward the crime of child molesting in that the said DANNY BOLING attempted to cause one K.B., a child under fourteen (14) years of age, to submit to an act involving deviate sexual conduct; all of which is contrary to the form of I.C. § 35^42-4-3(a)(l) & § 35-41-5-1....

Appellant’s Appendix at 148. The statute under which Boling was charged provides that a “person who, with a child under fourteen (14) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits child molesting [which is] a Class A felony if ... it is committed by a person at least twenty-one (21) years of age_” Ind.Code § 35-42-4-3(a)(l). “Deviate sexual conduct” means “an act involving ... the penetration of the sex organ ... of a person by an object.” Ind.Code § 35-31.5-2-94(2). A finger is an object within the meaning of this definition. Gasper v. State, 833 N.E.2d 1036, 1044 (Ind.Ct.App.2005), trans. denied. An “attempt” is made when a person, “acting with the culpability required for commission of the crime, ... engages in conduct that constitutes a substantial step toward commission of the crime.” Ind.Code § 35-41-5-l(a). The culpability requirement of the child molesting statute is knowingly or intentionally, see Louallen v. State, 778 N.E.2d 794, 798 (Ind.2002), although the State charged Boling only with “knowing” conduct. A person engages in conduct “knowingly” if, when he engages in the conduct, he is aware of a high probability that he is doing so. Ind.Code § 35-41-2-2(b). Thus, the State must have proved that Boling knowingly attempted to commit child molesting and engaged in an overt act constituting a substantial step toward the commission of the crime. Noble v. State, 725 N.E.2d 842, 845 (Ind. 2000).

Boling contends the State failed to present evidence from which the jury could conclude that he knowingly took a substantial step toward penetrating K.B.’s sex organ with his finger. Mens rea can be established by circumstantial evidence and inferred from the defendant’s conduct and the natural and usual sequence to which such conduct reasonably points. C.L.Y. v. State, 816 N.E.2d 894, 905 (Ind. Ct.App.2004), trans. denied. K.B. testified that Boling touched her “front private” first over her underwear and then under her underwear, directly on her skin. The natural and usual sequence to which such conduct reasonably points is that Boling had taken a substantial step toward inserting his finger or fingers into KJB.’s vagina. A reasonable jury could find based upon this testimony that Boling had attempted to commit deviate sexual conduct. See Watkins v. State, 571 N.E.2d 1262, 1265 (Ind. Ct.App.1991) (holding evidence was sufficient to support conviction of attempted child molesting based upon victim’s testimony that defendant laid on top of the victim while the child was nude and face down and placed his penis around and against the child’s anal area), affd in relevant part by 575 N.E.2d 624, 625 (Ind. 1991). We hold the evidence is sufficient to support Boling’s conviction of attempted child molesting.

II. Credit-Restricted Felon Determination

A. Standard of Review

The interpretation of a statute is a legal question that we review de novo. Cline v. State, 971 N.E.2d 1240, 1242 (Ind.Ct.App.2012).

The goal of statutory construction is to determine and implement legislative intent. We read all sections of an act and strive to give effect to all provisions. We will not read into a statute that which is not the manifest intent of the legislature. For this reason, it is as important to recognize what a statute says, but also what a statute does not say.

Id. (quotations and citations omitted). “We assume the legislature intended for the statutory language to be applied in a logical manner consistent with the statute’s underlying policy and goals.” Bei Bei Shuai v. State, 966 N.E.2d 619, 628 (Ind.Ct.App.2012), trans. denied. Penal statutes are strictly construed against the State and any ambiguities therein are resolved in favor of the accused, and they may not be enlarged by construction or implication beyond the fair meaning of the language. Id. However, penal statutes should not be read so narrowly as to exclude instances fairly covered. Id.

B. Credit Restricted Felon for Attempt

Indiana Code section 35-31.5-2-72 states:

“Credit restricted felon” means a person who has been convicted of at least one
(1)of the following offenses:
(1) Child molesting involving sexual intercourse or deviate sexual conduct (IC 35-42-4-3(a)), if:
(A) the offense is committed by a person at least twenty-one (21) years of age; and
(B) the victim is less than twelve (12) years of age.
(2) Child molesting (IC 35-42-4-3) resulting in serious bodily injury or death.
(3) Murder (IC 35 — 42-1-1) if:
(A) the person killed the victim while committing or attempting to commit child molesting (Ind.Code 35-42-4-B);
(B) the victim was the victim of a sex crime under IC 35-42-4 for which the person was convicted; or
(C) the victim of the murder was listed by the state or known by the person to be a witness against the person in a prosecution for a sex crime under IC 35-42-4 and the person committed the murder with the intent to prevent the victim from testifying.

A credit restricted felon is initially assigned to credit time Class IV, Ind.Code § 85-50-6-4, earning one day of credit time for every six days the person is imprisoned for a crime or confined awaiting trial or sentencing, Ind.Code § 35-50-6-3(d). A credit restricted felon may not be assigned to credit time Class I or Class II. Ind.Code § 35-50-6^.

When sentencing Boling, the trial court found that he was a credit restricted felon with respect to the Class A felony conviction. Boling concedes that if he had been convicted of a completed act of child molesting pursuant to Indiana Code section 35-42-4-3(a), his offense would have fallen within the statutory definition of a credit restricted felon. However, he contends the trial court erred in so determining because his conviction was for attempt and the statute does not include attempt within its definition. The State responds that the “purpose of the credit restricted felon statute is fairly self-evident — to punish child molesters over twenty-one years of age who have sexual intercourse or commit deviate sexual acts with victims less than twelve years of age.” Brief of Appel-lee at 9. The State believes that purpose is not served by excluding convictions for attempts to commit those same acts, and to do so would lead to an absurd result, citing Haggenjos v. State, 441 N.E.2d 430 (Ind.1982).

In Haggenjos, our supreme court interpreted a statute which provided that a conviction for murder was not suspendable as also applying to attempted murder, even though attempted murder was not enumerated in the statute. Id. at 434. However, in State ex rel. Camden v. Gibson Circuit Court, 640 N.E.2d 696 (Ind. 1994), the court subsequently refused to construe a reference to the crime of robbery to include attempted robbery when interpreting a statute providing for exclusion of certain crimes from a juvenile court’s jurisdiction. Id. at 701. In doing so, the court stated that “we infer that the legislature is aware of the difference between completed offenses and attempts, and also that it explicitly includes attempts when it intends to.” Id. Haggenjos has not been explicitly overruled, but its application has been limited to the specific statute interpreted therein. See Strong v. State, 903 N.E.2d 164, 166 (Ind.Ct.App. 2009) (noting the Haggenjos rationale has not been extended to other statutes but remains the court’s interpretation of Indiana Code section 35-50-2-2), trans. denied.

Here, we note that section 35-31.5-2-72 includes the statutory citations for the crimes which qualify one for the status of credit restricted felon, but does not include the citation for the attempt statute. See Camden, 640 N.E.2d at 700 (noting that juvenile jurisdiction statute excludes crimes from the court’s jurisdiction by code section number but “[significantly” makes no mention of the attempt statute). We also note that in section (3) of the statute, the legislature specifically states that murder qualifies one as a credit restricted felon if it was committed while the defendant was “committing or attempting to commit child molesting.” Ind.Code § 35-31.5-2-72(3)(A) (emphasis added). Thus, within the same statute, the legislature has explicitly included attempted child molesting. If it had intended to do so with respect to section (1), the relevant section here, it also would have done so explicitly. We conclude that a person convicted of attempted child molesting is not a credit restricted felon pursuant to Indiana Code section 35-31.5-2-72(1), and the trial court therefore erred in finding Boling to be a credit restricted felon. We reverse that finding and remand to the trial court to correct Boling’s records to remove the credit restricted felon designation.

III. Inappropriate Sentence

A. Standard of Review

This court has authority to revise a sentence “if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B). In assessing the nature of the offense and character of the offender, we may look to any factors appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind.Ct.App.2007), trans. denied. The burden is on the defendant to persuade us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

B. Boling’s Sentence

Boling’s forty-five year sentence for his Class A felony conviction of attempted child molesting is above the advisory sentence of thirty years for a Class A felony, but below the statutory maximum of fifty years. Ind.Code § 35-50-2-4. Boling contends this sentence is inappropriate both in light of the nature of the offense and his character.

With respect to the nature of the offense, Boling highlights the contrast between his own version of events and K.B.’s testimony. Boling admitted removing K.B.’s clothing but for her underwear and lying down with her in his bed. However, he stated that he touched K.B. only over her underwear and at KB.’s initiation. He also stated that K.B. touched his penis on her own accord. As the jury clearly did not credit Boling’s version of events, neither do we. However, Boling posits that even accepting KB.’s testimony, the contact was minimal and the evidence suggests it was an isolated incident, not justifying a substantially enhanced sentence. Without minimizing the severity of any inappropriate touching of a child, it does appear the contact was minimal and there is no evidence Boling had touched K.B. inappropriately on other occasions. Nonetheless, K.B. was five years old and ill at the time of this incident, Boling is her father, and her testimony indicated that after the incident, Boling tried to place the blame on her or get her to blame her eight-year-old brother.

With respect to the character of the offender, Boling’s criminal history consists of a misdemeanor conviction of public intoxication in 1994 and a felony conviction of failure to pay child support for a child from another relationship in 2007. Boling was on probation for this conviction when he committed this offense. The significance of a criminal history in assessing a defendant’s character is based on the gravity, nature, and number of prior offenses in relation to the current offense. Rutherford v. State, 866 N.E.2d 867, 874 (Ind.Ct. App.2007). Boling’s prior offenses are not similar in gravity or nature to the instant offense, although the failure to pay child support conviction does speak, as this crime does, to Boling’s failure to appropriately care for his children. Although Bol-ing’s criminal history is not significantly aggravating, it is still a poor reflection on his character. More significant, however, is that Boling was K.B.’s father, in a position of trust which he violated not only by touching her inappropriately, but by trying to place the blame on her afterwards, and by threatening to spank her if she did not blame her brother. This failure to act as a father should is an extremely poor commentary on Boling’s character.

In sum, it is Boling’s burden to convince us that his sentence is inappropriate, and after considering the nature of his offense and in particular, his character, we cannot say the forty-five year sentence imposed by the trial court is inappropriate.

Conclusion

The evidence is sufficient to support Boling’s conviction of attempted child molesting as a Class A felony and his forty-five year sentence is not inappropriate. However, the trial court erred in determining him to be a credit restricted felon because Indiana Code section 35-31.5-2-72 does not include attempted child molesting as an offense for which one can be found a credit restricted felon. The conviction and sentence are affirmed, the credit restricted felon designation is reversed, and the case is remanded to the trial court to amend its records consistent with this opinion.

Affirmed in part; reversed and remanded in part.

MAY, J., and PYLE, J., concur.

      . State’s Exhibit 2 is a DVD of K.B.'s interview with a forensic interviewer that was introduced in lieu of K.B.’s live testimony pursuant to an order of the court finding K.B. to be a protected person incapable of making the required affirmation. See Appellant's Appendix at 58-60; Ind.Code § 35-37-4-6(e)(2)(B)(iii).

      . Boling does not contest the sufficiency of the evidence supporting his conviction of child molesting as a Class C felony.

      . This section was formerly located at Indiana Code section 35-41-1-5.5. It was recodified effective July 1, 2012, with the language of the statute remaining the same.

      . Boling also contends the trial court erred in failing to advise him of the consequences of the finding as required by Indiana Code section 35-38-1-7.8. However, section 35-38-1-7.8 was added as a new section effective July 1, 2012. Boling was convicted in March 2012 and sentenced in April 2012, and the requirements of the statute did not apply at that time.


author: BROWN, Judge.

text:
    In the Matter of the ESTATE OF Samuel L. TOLLEY, Deceased, First Merchants Bank, N.A., Appellant, v. Duane Earl Tolley, and Betty June Tolley, Appellees.
    No. 52A02-1208-EU-671.
    Court of Appeals of Indiana.
    Feb. 13, 2013.

      Jason W. Bennett, Bennett Boehning & Clary LLP, Lafayette, IN, Attorney for Appellant.
    John Johnston, Johnston & Johnston, Wabash, IN, Attorney for Appellees.
   OPINION

BROWN, Judge.

First Merchants Bank, N.A., (“First Merchants”) appeals the trial court’s order granting summary judgment to the Estate of Samuel Tolley (the “Estate”). First Merchants raises one issue which we revise and restate as whether the court erred in granting the Estate’s motion for summary judgment and in denying its motion for summary judgment. We reverse and remand.

FACTS

Samuel Tolley died on November 17, 2010. On December 17, 2010, Betty Tolley and Duane Tolley by their attorney, James Berkshire, filed a petition for appointment of co-personal representatives and for unsupervised administration. That same day, Berkshire called First Merchants and stated that Samuel died on November 17, 2010, that he was the attorney for the personal representatives for the Estate and had filed pleadings and other documents to open administration of the Estate, and that proceedings had been filed in Miami Superior Court II. Berkshire also asked First Merchants to send him copies of their records of the accounts Tolley had on deposit with them. That same day, First Merchants faxed a document to Berkshire which detailed Samuel’s customer information and under the “Comment Line” stated “SAMUEL DECD 11/17/10.” Appellant’s Appendix at 74.

On December 31, 2010, and again on January 7, 2011, a Notice of Administration was published in the Peru Tribune. The notice provided information related to the proceeding before the trial court including the cause number as well as the address and phone number for the Estate’s attorney and stated:

Notice is hereby given that on the 21st day of December, 2010, Betty June Tol-ley and Duane Earl Tolley, were appointed Co-Personal Representatives of the Unsupervised Estate of Samuel L. Tolley, deceased, who died on the 17th day of November, 2010.
All persons having claims against this estate, whether or not now due, must file the claim in the office of the Clerk of this Court within three (3) months from the date of the first publication of this notice, or within nine (9) months after the decedent’s death, whichever is earlier, or the claims will be forever barred. Dated at Peru, Indiana, this 21st day of December, 2010.

Id. at 71.

First Merchants sent delinquency notices addressed to Samuel and Betty beginning in December 2010. First Merchants also sent letters to Betty that were dated March 18, 2011, and May 18, 2011, that indicated that the grace period on her loan was approaching and provided steps to avoid a late charge. In a letter dated July 6, 2011, and addressed to Betty, First Merchants stated that the account was “seriously past due.” Id. at 102.

COURSE OF PROCEEDINGS

On July 26, 2011, First Merchants filed Claim No. 1 against the Estate with respect to an adjustable rate note which was secured by a mortgage and requested principal, total fees, interest, attorney fees, and costs which totaled $23,650.03. First Merchants attached an adjustable rate note to the claim which was signed by Samuel and Betty Tolley as borrowers. That same day, First Merchants filed Claim No. 2 against the Estate requesting a total of $134,251.94 related to an adjustable rate note which was secured by a mortgage. The note and mortgage were signed by Duane Reavis, Samuel, and Betty as borrowers.

On February 6, 2012, the Estate filed a motion for summary judgment and alleged that “there is no genuine issue as to any material fact and the [Estate] is entitled to judgment as a matter of law on the issue of whether the claims of [First Merchants] were filed within three (8) months after the date of the first published notice to creditors as required by IC 29-1-14-1.” Id. at 63. That same day, the court scheduled a hearing for March 6, 2012.

On March 6, 2012, the parties filed a joint motion to continue the hearing, and the court granted the motion. That same day, First Merchants filed a cross-motion for summary judgment alleging that there were no genuine issues of material fact and that Claims 1 and 2 were timely as a matter of law. On April 25, 2012, the court granted the motion for hearing on summary judgment and scheduled a hearing for June 5, 2012. On June 5, 2012, the court held a hearing on the motions for summary judgment.

On August 20, 2012, the court granted the Estate’s motion for summary judgment. The court’s order states:

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON BEHALF OF ESTATE

On June 5, 2012 the Court heard argument pursuant to the Estate’s Motion for Summary Judgment against Claims #1 and #2 filed by [First Merchants]. The Estate asserts that the claims were not timely filed. Whereas [First Merchants] asserts they were not given proper notice. There is no factual issue in this case. The issue is whether the notice provided by attorney James Berkshire on November 17, 2010 constitutes substantial compliance with the notice requirements. The Court finds that the Personal Representative is not required to serve notice to [First Merchants] because [First Merchants] had actual knowledge of the death of Samuel Tolley and that the administration had been opened on the Tolley Estate. This occurred on [December] 17, 2010 when attorney James Berkshire called [First Merchants] and gave them that information. That knowledge was confirmed by records of [First Merchants] faxed to counsel on December 17, 2010 with a notation “SAMUEL DECD 11/17/10”.

Since [First Merchants] had actual knowledge of the death of Samuel Tolley and his administration of the estate there is no reason to serve it with actual written notice.

Wherefore, because on December 17, 2010 [First Merchants] had actual knowledge of the decedent’s death and estate administration the Court finds that Claims #1 and #2 are untimely filed and therefore are ordered barred and dismissed.

ALL OF WHICH IS ORDERED this 10th day of August 2012.

Id. at 6.

ISSUE/STANDARD OF REVIEW

The issue is whether the trial court erred in granting the Estate’s motion for summary judgment and in denying First Merchants’ motion for summary judgment. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(c); Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind.2001). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. We must carefully review a decision on summary judgment to ensure that a party was not improperly denied its day in court. Id. at 974. Any doubt as to the existence of an issue of material fact, or an inference to be drawn from the facts, must be resolved in favor of the nonmov-ing party. Cowe by Cowe v. Forum Grp., Inc., 575 N.E.2d 680, 633 (Ind.1991).

A party moving for summary judgment bears the initial burden of showing no genuine issue of material fact and the appropriateness of judgment as a matter of law. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 975 (Ind.2005). If the movant fails to make this prima facie showing, then summary judgment is precluded regardless of whether the non-mov-ant designates facts and evidence in response to the movant’s motion. Id. In reviewing a trial court’s ruling on a motion for summary judgment, we may affirm on any grounds supported by the Indiana Trial Rule 56 materials. Catt v. Bd. of Commr’s of Knox Cnty., 779 N.E.2d 1, 3 (Ind.2002).

The fact that the parties make cross motions for summary judgment does not alter our standard of review. Hartford Acc. & Indem. Co. v. Dana Corp., 690 N.E.2d 285, 291 (Ind.Ct.App.1997), trans. denied. Instead, we must consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Id. The entry of specific findings and conclusions does not alter the nature of a summary judgment which is a judgment entered when there are no genuine issues of material fact to be resolved. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind.1996). In the summary judgment context, we are not bound by the trial court’s specific findings of fact and conclusions of law. Id. They merely aid our review by providing us with a statement of reasons for the trial court’s actions. Id.

ANALYSIS

This case requires us to interpret the statutes relating to notice requirements in the Probate Code. When interpreting a statute, we independently review a statute’s meaning and apply it to the facts of the case under review. Bolin v. Wingert, 764 N.E.2d 201, 204 (Ind.2002). If a statute is unambiguous, we must give the statute its clear and plain meaning. Id. A statute is unambiguous if it is not susceptible to more than one interpretation. Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 942 (Ind.2001). If a statute is susceptible to multiple interpretations, we must try to ascertain the legislature’s intent and interpret the statute so as to effectuate that intent. Bolin, 764 N.E.2d at 204. A statute should be examined as a whole, avoiding excessive reliance upon a strict literal meaning or the selective reading of individual words. Mayes v. Second Injury Fund, 888 N.E.2d 773, 776 (Ind.2008).

We begin with a discussion of the difference between a nonclaim statute and a statute of limitation as well as the difference between nonclaim statutes that are self-executing and those that are not self-executing. The Indiana Supreme Court has addressed the distinction between non-claim statutes and statutes of limitation as follows:

The distinction between nonclaim statutes and statutes of limitation is explained in Donnella v. Crady, 135 Ind. App. 60, 185 N.E.2d 623 (1962):

[A] nonclaim statute ... grants to every person having a claim of any kind or character against a decedent’s estate, the right to file the same in the court having jurisdiction thereof and have the same adjudicated, provided such claim is filed -within the time specified in the statute. Unless such claim is filed within the time so allowed by the statute, it is forever barred. The time element is a built-in condition of the said statute and is of the essence of the right of action. Unless the claim is filed within the prescribed time set out in the statute, no enforceable right of action is created.
While such statutes limit the time in which a claim may be filed or an action brought, they have nothing in common with and are not to be confused with general statutes of limitation. The former creates a right of action if commenced within the time prescribed by the statute, whereas the latter creates a defense to an action brought after the expiration of the time allowed by law for the bringing of such an action.
Id. at 62-63, 185 N.E.2d at 624. Thus, the statute is a nonclaim statute when “there is clearly evidenced a legislative intent in [the] statute to not merely withhold the remedy, but to take away the right of recovery where a claimant fails to present his claim as provided in the statute.” Rising Sun State Bank v. Fessler, 400 N.E.2d 1164, 1166 (Ind.Ct. App.1980). While equitable principles may extend the time for commencing an action under statutes of limitation, non-claim statutes impose a condition precedent to the enforcement of a right of action and are not subject to equitable exceptions. See Id.; Anson v. Anson’s Estate, 399 N.E.2d 432, 435 (Ind.Ct.App.1980); Donnella, 135 Ind.App. at 63-64, 185 N.E.2d at 625.

Estate of Decker v. Farm Credit Servs. of Mid-America, ACA, 684 N.E.2d 1137, 1138-1139 (Ind.1997).

A nonclaim statute that is triggered solely by the death of the decedent is a self-executing statute, while a nonclaim statute that is not self-executing involves state action. See id. at 1140 n. 4 (observing that the nonclaim statute at issue in Tulsa Prof 'l Collection Servs., Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988), was not self-executing because the probate court was intimately involved throughout and without that involvement the time bar was never activated); Burnett v. Villaneuve, 685 N.E.2d 1103, 1111 (Ind. Ct.App.1997) (observing that the Indiana Supreme Court in Decker, 684 N.E.2d 1137, noted that the one-year provision was triggered by the death of the decedent, not government machinery, authority or power and was therefore self-executing).

We observe that the United States Supreme Court has held that the Fourteenth Amendment protects property interests only from a deprivation by state action. Pope, 485 U.S. at 485, 108 S.Ct. at 1345. Private use of state-sanctioned private remedies or procedures does not rise to the level of state action. Id. Nor is the state’s involvement in the mere running of a general statute of limitations generally sufficient to implicate due process. Id. at 485-486, 108 S.Ct. at 1345. “But when private parties make use of state procedures with the overt, significant assistance of state officials, state action may be found.” Id. at 486, 108 S.Ct. at 1345.

The Court in Pope addressed whether the state’s involvement with a nonclaim statute was substantial enough to implicate the Due Process Clause and explained why the Oklahoma nonclaim statute at issue was not self-executing as follows:

The probate court is intimately involved throughout, and without that involvement the time bar is never activated. The nonclaim statute becomes operative only after probate proceedings have been commenced in state court.... It is only after all of these actions take place that the time period begins to run, and in every one of these actions, the court is intimately involved. This involvement is so pervasive and substantial that it must be considered state action subject to the restrictions of the Fourteenth Amendment.

Id. at 487, 108 S.Ct. at 1346. The Court held that “whether a particular method of notice is reasonable depends on the particular circumstances.” Id. at 484, 108 S.Ct. at 1344. The Court discussed creditors’ interests as well as the state’s interest in the expeditious resolution of probate proceedings. Id. at 489, 108 S.Ct. at 1347. The Court observed that the executor or executrix would often be a party with a beneficial interest in the estate and that “[t]his could diminish an executor’s or executrix’s inclination to call attention to the potential expiration of a creditor’s claim. There is thus a substantial practical need for actual notice in this setting.” Id. The Court concluded that “[providing actual notice to known or reasonably ascertainable creditors, however, is not inconsistent with the goals reflected in nonclaim statutes. Actual notice need not be inefficient or burdensome. We have repeatedly recognized that mail service is an inexpensive and efficient mechanism that is reasonably calculated to provide actual notice.” Id. at 489-490,108 S.Ct. at 1347.

While the federal Due Process Clause is implicated when a provision is not self-executing, the clause is not implicated when a provision is self-executing. As an example, in Decker, the Indiana Supreme Court addressed the former version of Ind.Code § 29-1-7-7 which provided that “a claim subject to this subsection may not be filed more than one (1) year after the death of the decedent.” 684 N.E.2d at 1139. The Court held that the federal Due Process Clause was not implicated because the provision was self-executing. See id.

With this background in mind, we turn to the relevant provisions found in the Probate Code. Ind.Code § 29-1-14-1 contains general time limitations related to claims against an estate. Ind. Farmers Mut. Ins. Co. v. Richie, 707 N.E.2d 992, 993 (Ind.1999). Subsection (d) bars claims against a decedent’s estate if not filed within nine months after the death of the decedent. As a general matter, subsection (a) bars all claims unless they are filed within three months after the first published notice to creditors. However, subsection (a) states “[ejxcept as provided in IC 29-1-7-7....” Both parties cite Ind. Code § 29-1-7-7, which governs notice of administration. See Burnett, 685 N.E.2d at 1106 (“Because the creditors in this case were known, the personal representative’s notice is governed by I.C. 29-1-7-7-”). The statute provides:

(a) As soon as letters testamentary or of administration, general or special, supervised or unsupervised, have been issued, the clerk of the court shall publish notice of the estate administration.
(b) The notice required under subsection (a) shall be published in a newspaper of general circulation, printed in the English language and published in the county where the court is located, once each week for two (2) consecutive weeks. A copy of the notice, with proof of publication, shall be filed with the clerk of the court as a part of the administration of the estate within thirty (30) days after the publication. If no newspaper is published in the county, the notice shall be published in a newspaper published in an adjacent county.
(c) The notice required under subsection (a) shall be served by first class postage prepaid mail on each heir, devisee, legatee, and known creditor whose name and address is set forth in the petition for probate or letters, except as otherwise ordered by the court. The personal representative shall furnish sufficient copies of the notice, prepared for mailing, and the clerk of the court shall mail the notice upon the issuance of letters.
(d) The personal representative or the personal representative’s agent shall serve notice on each creditor of the decedent:
(1) whose name is not set forth in the petition for probate or letters under subsection (c);
(2) who is known or reasonably ascertainable within one (1) month after the first publication of notice under subsection (a); and
(3) whose claim has not been paid or settled by the personal representative. The notice may be served by mail or any other means reasonably calculated to ensure actual receipt of the notice by a creditor.
(e) Notice under subsection (d) shall be served within one (1) month after the first publication of notice under subsection (a) or as soon as possible after the elapse of one (1) month. If the personal representative or the personal representative’s agent fails to give notice to a known or reasonably ascertainable creditor of the decedent under subsection (d) within one (1) month after the first publication of notice under subsection (a), the period during which the creditor may submit a claim against the estate includes an additional period ending two (2) months after the date notice is given to the creditor under subsection (d). However, a claim filed under IC 29-1-14 — 1(a) more than nine (9) months after the death of the decedent is barred.
(f) A schedule of creditors that received notice under subsection (d) shall be delivered to the clerk of the court as soon as possible after notice is given.
ifs ⅜ ⅜ ⅜ ⅜
(i) The notice shall read substantially as follows:
NOTICE OF ADMINISTRATION
In the _ Court of _ County, Indiana.
Notice is hereby given that_was, on the_day of_, 20_, appointed personal representative of the estate of_, deceased, who died on the_day of_, 20_
All persons who have claims against this estate, whether or not now due, must file the claim in the office of the clerk of this court within three (3) months from the date of the first publication of this notice, or within nine (9) months after the decedent’s death, whichever is earlier, or the claims will be forever barred.
Dated at_, Indiana, this_day of_,20_
CLERK OF THE_COURT
FOR_COUNTY, INDIANA
Ind.Code § 29-1-7-7 (emphases added).
Ind.Code § 29-1-14-21 provides: When any person claims any interest in any property in the possession of the personal representative adverse to the estate, the person may file, prior to the expiration of three (3) months after the date of the first published notice to creditors, a petition with the court having jurisdiction of the estate setting out the facts concerning such interest, and thereupon the court shall cause such notice to be given to such parties as it deems proper, and the case shall be set for trial and tried as in ordinary civil actions.

“While it is true Indiana Code section 29-1-14-21 provides that a person with an interest in property held by the personal representative ‘may1 file a petition with the probate court, the statute is silent regarding the consequences of failing to do so.” Bettenhausen v. Godby, 878 N.E.2d 1277, 1279 (Ind.Ct.App.2008). “This Court, however, has held that ‘the consequence of a failure to file a timely claim under IC 29-1-14-21 is that the claimant must proceed against the distributees [of the estate] rather than the estate.’ ” Id. (quoting Estate of Penzenik v. Penz Products, Inc., 749 N.E.2d 61, 64-65 (Ind.Ct.App.2001)). “The obvious purpose of Indiana Code section 29-1-14-21 is to ‘promote [ ] the expeditious conclusion of estate proceedings’ ....” Id. at 1279 n. 3 (quoting In re Williams’ Estate, 398 N.E.2d 1368, 1371 (Ind.Ct.App.1980)).

First Merchants argues that subsection (d) of Ind.Code § 29-1-7-7 requires notice by mail or any other means reasonably calculated to ensure actual receipt of the notice and that the statute strongly implies that notice must be given in writing. First Merchants argues that actual written notice is the bare minimum Due Process requires. First Merchants also argues that even if notice by telephone could satisfy the statute in form, the substance of the Estate’s phone call was insufficient because it provided none of the critical information required by the statute. Specifically, First Merchants points to subsection (i) of the statute and alleges that “the statute reveals five pieces of information that are critical to a valid Notice — (1) where the estate is being administered, (2) who the personal representatives are, (3) how to file a claim, (4) when the claims deadline expires, and (5) why it matters.” Appellant’s Brief at 7. First Merchants also argues that it was entitled to summary judgment because its claims filed on July 26, 2011 were filed well before the nine-month deadline which expired on August 17, 2011.

The Estate argues that Ind.Code § 29-1-7-7 does not require written notice and that written notice would not serve any purpose because First Merchants already knew Samuel died on November 17, 2010 and that administration had been opened on his estate. The Estate also argues that Due Process does not require notice where there is actual knowledge. The Estate argues that the Probate Code requires creditors to file their claims within three months after the first publication of notice to creditors and First Merchants did not file any claim until almost seven months after the first published notice to creditors. The Estate contends that dismissal of the claims does not prevent First Merchants from foreclosing the mortgages or from recovering any deficiency from Betty Tol-ley and Duane Reavis.

We observe that the relevant statutes include more than just the portion of Ind.Code § 29-l-7-7(e) indicating that a claim is barred if it is not filed within nine months after the death of the decedent. Rather, Ind.Code § 29 — 1—7—7(d) cannot be described as self-executing in that it involves state action as it requires notice by the personal representative to creditors who are known or reasonably ascertainable within one month after the first publication of notice under subsection (a), which is notice by the clerk of the court. Accordingly, we conclude that the Due Process Clause applies.

Ind.Code § 29-l-7-7(d) requires that the personal representative serve notice on each creditor who was known or reasonably ascertainable, and subsection (i) provides that the notice shall include a statement informing the creditor of the time period for filing a claim. Specifically, subsection (i) provides that the notice should read substantially as follows: “All persons who have claims against this estate, whether or not now due, must file the claim in the office of the clerk of this court within three (3) months from the date of the first publication of this notice, or within nine (9) months after the decedent’s death, whichever is earlier, or the claims will be forever barred.” We acknowledge that subsection (i) does not specifically mention a time period for filing a claim following a notice given to a creditor who was known or reasonably ascertainable under subsection (d). However, subsection (i), which governs the notice, includes a statement regarding the time period for filing a claim. Reading subsections (d), (e), and (i) together, we conclude that a notice provided under subsection (d) must include a time period for filing a claim. See Kristin G. Fruehwald, Notice to Creditors — Publication is No Longer Enough, 24 Ind. L.Rev. 1045, 1055 (1991) (“To comply with due process, notice to a decedent’s creditors should contain statements not only that the decedent died but also that a time limitation will affect any claims that are not presented prior to the running of the limitation period.... [T]he statutorily prescribed notice should be tailored to reflect the actual expiration of the nonclaims period applicable to the particular claimant.”).

Even though First Merchants had actual notice of the decedent’s death, the phone call from the attorney for- the personal representatives did not meet the requirement of informing First Merchants of the time period for filing a claim. See Pope, 485 U.S. at 489, 108 S.Ct. at 1347 (citing City of New York v. New York, N.H. & H.R. Co., 344 U.S. 293, 73 S.Ct. 299, 97 L.Ed. 333 (1953) (holding Bankruptcy’s Code’s requirement of “reasonable notice” requires actual notice of deadline for filing claims) and observing that there is a substantial practical need for actual notice in this setting given that an executor’s inclination to call attention to the potential expiration of a creditor’s claim could be diminished by the executor’s beneficial interest in the estate); Estate of Jenkins v. Guyton, 912 S.W.2d 134, 137-138 (Tenn. 1995) (holding that while the term “actual notice” in the Tennessee statute may be something other than an exact copy of the published Notice to Creditors outlined in the statute, such notice must, at a minimum, include information regarding the commencement of probate proceedings and the time period within which claims must be filed with the probate court and concluding that the creditor’s claim was timely filed where the letter received by the creditor did not contain this information and the creditor’s claim was filed within one year of the decedent’s death). Based upon the designated evidence, we cannot say that First Merchants received proper notice. Accordingly, First Merchants’ claims filed on July 26, 2011 which occurred within nine months of Samuel’s death were timely filed.

For the foregoing reasons, we reverse the trial court’s grant of summary judgment to the Estate and denial of First Merchants’ motion for summary judgment. We remand for proceedings consistent with this opinion.

Reversed and remanded.

BAILEY, J., and VAIDIK, J., concur.

      . The record does not contain a copy of this petition.

      . On August 25, 2011, First Merchants filed Claim No. 3 against the Estate in which First Merchants sought a total of $36,317.20. First Merchants acknowledged in its cross-motion for summary judgment that Claim No. 3 filed against the Estate on August 25, 2011, was filed after the nine-month deadline. At the hearing on the motions for summary judgment, First Merchants' attorney stated: "There was also then the one claim filed on the August date which in our cross-motion we concede that it’s not within the 9 months provided by statute and so First Merchants does concede that the August claim is in fact time barred.” Transcript at 5. First Merchants’ attorney later stated: "Again, to be clear, claim # 3 which was filed on August 25 was eight days late and is therefore time-barred.” Id. at 7.

      . Ind.Code § 29-l-7-7(e) was amended in 2001 and now provides that "a claim filed under IC 29-l-14-l(a) more than nine (9) months after the death of the decedent is barred.” See Pub.L. No. 252-2001, § 12 (eff. July 1, 2001).

      . Ind.Code § 29-1-14-1 provides:
      (a)Except as provided in IC 29-1-7-7, all claims against a decedent’s estate, other than expenses of administration and claims of the United States, the state, or a subdivision of the state, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise, shall be forever barred against the estate, the personal representative, the heirs, devisees, and legatees of the decedent, unless filed with the court in which such estate is being administered within:
      (1) three (3) months after the date of the first published notice to creditors; or
      (2) three (3) months after the court has revoked probate of a will, in accordance with IC 29-1-7-21, if the claimant was named as a beneficiary in that revoked will;
      whichever is later.
      (b) No claim shall be allowed which was barred by any statute of limitations at the time of decedent's death.
      (c) No claim shall be barred by the statute of limitations which was not barred at the time of the decedent’s death, if the claim shall be filed within:
      (1) three (3) months after the date of the first published notice to creditors; or
      (2) three (3) months after the court has revoked probate of a will, in accordance with IC 29-1-7-21, if the claimant was named as a beneficiary in that revoked will; whichever is later.
      (d) All claims barrable under subsection (a) shall be barred if not filed within nine (9) months after the death of the decedent.
      (e) Nothing in this section shall affect or prevent any action or proceeding to enforce any mortgage, pledge, or other lien upon property of the estate.
      (f) Nothing in this section shall affect or prevent the enforcement of a claim for injury to person or damage to property arising out of negligence against the estate of a deceased tort feasor within the period of the statute of limitations provided for the tort action. A tort claim against the estate of the tort feasor may be opened or reopened and suit filed against the special representative of the estate within the period of the statute of limitations of the tort. Any recovery against the tort feasor’s estate shall not affect any interest in the assets of the estate unless the suit was filed within the time allowed for filing claims against the estate. The rules of pleading and procedure in such cases shall be the same as apply in ordinary civil actions.

      . The Estate does not argue that First Merchants was not a creditor who was known or reasonably ascertainable within one month after the first publication of notice or that Ind.Code § 29 — 1—7—7(d) is not applicable for any other reason.

      . This article also stated:
      Questions exist pertaining to whether a creditor's actual knowledge that the decedent had died would be sufficient notice under Pope. Knowledge of a debtor's death should not, however, constitute sufficient notice because it does not give the creditor knowledge that a time limitation is running against the creditor, any knowledge of the pendency of the action, or the opportunity to present the creditor’s claim. Support for this proposition is found in Pope. The claim in Pope arose from services rendered by the hospital in which the decedent died. The claimant was a subsidiary of the hospital and had actual notice of the decedent’s death. This actual notice of the death was not sufficient to overcome the lack of notice of the proceedings.
      24 Ind. L.Rev. at 1053-1054 (emphasis added and footnote omitted).