author: FRIEDLANDER, Judge.

text:
    David S. HEALEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 02A04-1110-CR-537.
    Court of Appeals of Indiana.
    June 11, 2012.

      Randy M. Fisher, Leonard, Hammond, Thoma & Terrill, Fort Wayne, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

FRIEDLANDER, Judge.

David S. Healey appeals his conviction of three counts of Failure to Register as Offender, all as class C felonies. Healey presents the following restated issues for review:

1. Did the trial court correctly deny Healey’s motion to dismiss, based on his claim that the Indiana Sex Offender Registration Act (SORA), I.C. §§ 11-8-8-1 through 11-8-8-22 (West, Westlaw through legislation effective May 31, 2012) constitutes an ex post facto law in violation of the United States and Indiana Constitutions as applied to him?
2. Did the trial court abuse its discretion in sentencing Healey and impose an appropriate sentence?

We affirm and remand with instructions.

On July 7, 1995, Healey pleaded guilty to child molesting as a class C felony. He was sentenced to eight years imprisonment for this offense, with the sentence to be served consecutively to a sentence imposed for a conviction in a different county for receiving stolen auto parts. On July 21, 2009, Healey was charged with failure to register as offender in Cause No. 02D04-0907-FD-000688. He pleaded guilty and was sentenced to two years imprisonment.

The present failure-to-register-as-offender charges were initially filed on September 22, 2010 and involved allegations of failing to abide by Internet-use and reporting requirements. A fourth charge under Count IV alleged that Healey, as a sex or violent offender under I.C. § 11-8-8-5 (West, Westlaw through legislation effective May 31, 2012), committed the sex offender internet offense of using a social networking website that allowed persons less than eighteen years of age to access or use the website. On January 6, 2011, Healey filed a motion to dismiss the charges on grounds that subjecting him to the requirements of the sex offender registry statute constituted ex post facto legislation in violation of the federal and state constitutions. The trial court denied the motion to dismiss. A bench trial was held, for which the parties stipulated to the evidence, which consisted of State’s Exhibits 1-5. Those exhibits included a detailed stipulation to the facts supporting the charges. The trial court found Healey guilty as charged. The trial court sentenced Healey to the maximum eight years for each of the three failure-to-register offenses, and one year for the Internet offense, with all sentences to be served concurrently with one another, for a total executed sentence of eight years.

1.

Healey contends the trial court erred in denying his motion to dismiss, which was based on his claim that, as applied to him, SORA constitutes an ex post facto law in violation of the United States and Indiana Constitutions.

Article I, § 10 of the United States Constitution and article 1, § 24 of the Indiana Constitution prohibit the enactment of any law that “ ‘imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’” Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 856 (1866)). “The underlying purpose of the Ex Post Facto Clause is to give effect to the fundamental principle that persons have a right to fair warning of that conduct which will give rise to criminal penalties.” Jensen v. State, 905 N.E.2d 384, 389 (Ind.2009). Healey contends that as applied to him, SORA violates both the Indiana and federal constitutional prohibitions against ex post facto laws.

We begin with Healey’s claim under the United States Constitution. In Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), the United States Supreme Court determined that Alaska’s sex registration statute, which is substantially similar to Indiana’s, does not violate the Federal Constitution’s Ex Post Facto Clause, see Wallace v. State, 905 N.E.2d 371, 374 (Ind.2009), because it is “non-punitive and create[s] a civil regime.” Healey contends that Smith and Wallace do not apply in his case because “[t]his is a case of first impression ... following the Indiana Supreme Court decisions in Wallace and [Jensen v. State, 905 N.E.2d 384] as Mr. Healey falls directly between the originally codified version of the sex offender registry and the 1995 amendments requiring ten (10) years of registration.” Appellant’s Brief at 10. The dates to which Healey refers spanned from the enactment of SORA’s registration requirement to the enactment of the 1995 amendments. Those amendments increased the length of time that offenders were required to register.

We conclude that the Smith rationale is broad enough to include challenges such as Healey presents in the present case. Pursuant to Smith, we hold that, as applied to Healey, the lengthened registering requirement under the 1995 amendment to SORA does not contravene Article I, § 10 of the United States Constitution. See also Jensen v. State, 905 N.E.2d at 390 (“[i]n Wallace we noted that the United States Supreme Court has concluded that ... Alaska’s Sex Offender Registry Act, which is very similar to Indiana’s Act, does not violate the Ex Post Facto Clause of the United States Constitution ... [w]e thus proceeded to evaluate Wallace’s claim under the Indiana Constitution”).

Healey contends the 1995 amendment to SORA violates the Indiana Constitution’s ex post facto prohibition as applied to him. Healey’s 1995 conviction of the lesser-included offense of class C felony child molesting, with an offense date of September 20, 1994, subjected him to the sex offender registration requirements. The initial version of SORA took effect on July 1, 1994. Act of March 2,1994, Pub.L. No. 11-1994, § 7 (codified as I.C §§ 5-2-12-1 to 5-2-12-13) (current version at I.C. §§ 11-8-8-1 to 11-8-8-22). Because this was prior to the time Healey committed his underlying sex-offender offense, the 1994 version of SORA was applicable and therefore did not pose an ex post facto problem. The 1994 version of SORA would have required Healey to register as a sex offender within seven days of arriving in the law enforcement jurisdiction where he intended to reside, and would have required him to continue to register until he was no longer on probation or had been discharged from parole.

Healey was released from parole on July 20, 2003. Had the 1994 version of SORA been in effect, Healey’s duty to register would have expired on that day. In July 1995,. however, an amendment took effect that extended the length of time that an offender was required to register — to ten years after the date the offender was released from prison, placed on parole, or placed on probation, whichever occurred last. See I.C. § 5-2-12-13 (1995) (repealed by P.L. 140-2006, Sec. 41 and reco-dified under I.C. § 11-8-8-19). The 1995 amendment was therefore in effect at the time that Healey was discharged from parole on his qualifying offense. Healey contends that extending his reporting requirement by ten years under the 1995 version of SORA and using that extended requirement to charge him with failure to report in the present offense constitutes an ex post facto violation.

We evaluate ex post facto claims under the Indiana Constitution by applying the “intent-effects” test. Jensen v. State, 905 N.E.2d at 390. We must first determine whether the legislature meant the statute to establish civil proceedings. Jensen v. State, 905 N.E.2d 384. If the legislature intended to impose punishment, our inquiry is at an end because punishment results. Id. On the other hand, if we conclude the legislature intended a non-punitive regulatory scheme, we must further examine whether the scheme is nevertheless “so punitive in effect as to negate that intention thereby transforming what was intended as a civil regulatory scheme into a criminal penalty.” Id. at 390.

Healey contends the 1995 amendments had a punitive effect because they increased by ten years the period of time an offender was required to register. Our Supreme Court has repeatedly declined to hold that the legislature intended the registration requirement in SORA as a criminal penalty. In so doing, the Court acknowledged that “it is difficult to determine any intent [with respect to SORA] given the lack of legislative history and purpose statement.” Lemmon v. Harris, 949 N.E.2d 803, 810 (Ind.2011). Moreover, our courts have repeatedly noted when considering ex post facto challenges to SORA that the burden of proving a statute unconstitutional is assigned to the party challenging a statute on that basis, because every statutes come before us “clothed with the presumption of constitutionality until that presumption is clearly overcome by a contrary showing.” Jensen v. State, 905 N.E.2d at 390. The Court has also noted that “the [overall] Act advances a legitimate regulatory purpose,” namely, “public safety.” State v. Pollard, 908 N.E.2d 1145, 1149 (Ind.2009). For these reasons, the Court has assumed without deciding that “the legislature’s intent was to create a civil, non-punitive, regulatory scheme.” Id. at 1150. This has been the result even in response to a challenge to an amendment that resulted in an offender postconviction reclassification as an SVP, which had the effect of converting his ten-year registration requirement into a lifetime-registration requirement. See Lemmon v. Harris, 949 N.E.2d 803 (discussing the 2007 amendment to SORA). Surely Healey’s argument is no more compelling than that. Similarly, we assume without deciding that the 1995 amendment to SORA increasing the length of time of the registration requirement was intended as an amendment to a civil regulatory scheme. See also, e.g., Spencer v. O’Connor, 707 N.E.2d 1039, 1043 (Ind.Ct.App.1999) (registration “provisions evidence an intent to monitor the whereabouts of the offender, not to punish the offender”), ircros. denied.

Having found no punitive intent on the part of the Legislature, we must now determine whether the effects of applying the regulatory scheme embodied in the 1995 Amendment is punitive as to Healey. In so doing, we assess the following factors, established by the United States Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963):

[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment — retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.

Lemmon v. Harris, 949 N.E.2d at 810 (quoting Wallace, 905 N.E.2d at 379).

The first of the Mendoza-Martinez factors considers whether the sanction involves an affirmative disability or restraint. Our Supreme Court has observed that “through aggressive notification of their crimes, [SORA] exposes registrants to profound humiliation and community-wide ostracism”, among other things. Wallace v. State, 905 N.E.2d at 380. Thus, the Court concluded, “[c]onsidered as a whole [SORA] ’s registration and notification provisions impose substantial disabilities on registrants.” Id. On the other hand, in Jensen, the defendant pleaded guilty to, among other things, vicarious sexual gratification under Ind.Code Ann. § 35-42-4-5 (West, Westlaw through legislation effective May 31, 2012). At the time the defendant pleaded guilty, SORA required that he register as a sex offender for a period of ten years following his release from prison and probation. In 2006, however, the Legislature amended SORA such that a defendant who committed an offense qualifying the defendant as a “sexually violent predator” under I.C. § 11-8-8-19 must register for life. Jensen was informed that pursuant to the amendment, he would now have to register for life. He appealed that determination ultimately to the Supreme Court, which noted that the “disabilities] or restraint[s]” described in Wallace “applied to Jensen even before his offense qualified him as a sexually violent predator” and that “nothing mentioned above imposes any greater burden on Jensen or has any greater adverse affect now that he is required to register for a longer period.” Jensen v. State, 905 N.E.2d at 391-92. Finally, however, the Court acknowledged that based upon the new status, he would be required to inform authorities of plans to travel from his principal place of residence for more than 72 hours and to re-register for the rest of his life. Taken as a whole, the Court concluded that the restraints resulting from the amendment leaned “slightly in favor of treating the effects of the Act as punitive when applied to Jensen.” Id. at 392.

The primary effect of the 1995 amendment was to extend by ten years the period of time that Healey was required to register. In Jensen, the Court noted the extension of the registration requirement from ten years to life, but, even when including the requirement to report travel plans, the Court concluded that the additional restraints leaned only slightly in favor of treating the effects as punitive. By comparison, we believe that increasing the registration requirement by ten years does not favor treating the effects of the 1995 amendment as punitive as applied to Hea-ley.

The second factor involves a determination of whether the reporting requirement has historically been regarded as a punishment. Again, our Supreme Court has weighed in on this question and determined that it has. See, e.g., Wallace v. State, 905 N.E.2d at 380-81 (“[ajside from the historical punishment of shaming, the fact that [SORA’s] reporting provisions are comparable to supervised probation or parole standing alone supports a conclusion that the second Mendoza-Martinez factor favors treating the effects of the Act as punitive when applied in this case”). This factor favors treating the effects of the 1995 amendment as punitive as applied to Healey. See also Jensen v. State, 905 N.E.2d 384.

The third factor considers whether the 1995 amendment comes into play only on a finding of scienter. On this factor, our Supreme Court has stated, SORA “overwhelmingly applies to offenses that require a finding of scienter for there to be a conviction. The few exceptions do not imply a non-punitive effect. We conclude that the third Mendoza-Martinez factor slightly favors treating the effects of [SORA] as punitive when applied here.” Wallace v. State, 905 N.E.2d at 381.

The fourth factor considers “ ‘whether [the statute’s] operation will promote the traditional aims of punishment — retribution and deterrence.’ ” Jensen v. State, 905 N.E.2d at 393 (quoting Mendoza-Martinez, 372 U.S. at 168, 83 S.Ct. 554). In applying this factor, we are mindful of the underlying assumption that if the statute in question promotes the traditional aims of punishment, it is more likely punitive than regulatory. Jensen v. State, 905 N.E.2d 384. The Court’s explanation of its conclusion that the legislation extending Jensen’s registration requirement from ten years to life was non-punitive as to him applies equally to application of the 1995 amendment to Healey, i.e.:

There is no question that the Act’s deterrent effect is substantial and that the Act promotes community condemnation of offenders — both of which are traditional aims of punishment. But this is so whether applied to an offender who is required to register for ten years or an offender required to register for life. Essentially, as to this factor Jensen is in no different position now than he was before the Act was amended in 2006.

Id. at 393. Therefore, the fourth factor favors treating the effects of the 1995 amendment as non-punitive when applied to Healey.

The fifth factor considers “ ‘whether the behavior to which [the statute] applies is already a crime.’ ” Id. (quoting Mendoza-Martinez, 372 U.S. at 168, 83 S.Ct. 554). Again, we reach the same conclusion on this factor that the Supreme Court did in Jensen, and upon the same reasoning, i.e.:

The fact that a statute applies only to behavior that is already and exclusively criminal supports a conclusion that its effects are punitive. There is no question that it is the determination of guilt for the offense of vicarious sexual gratification that triggered Jensen’s lifetime registration requirement. This seems to support the view that the effects of the statute are punitive. However, when Jensen pleaded guilty to this offense in January 2000 he also was required to register as a sex offender, albeit for ten years. In short, Jensen’s behavior was criminal both before and after the 2006 amendment. With the exception of an extended period of registration, Jensen is in the exact position he was in when he pleaded guilty. We conclude the fifth Mendoza-Martinez factor favors treating the effects of the Act as non-punitive when applied to Jensen.

Id. (citation to authority omitted). Similarly, Healey’s conviction of child molesting triggered his registration requirement. When he pleaded guilty, he was required to register as a sex offender, although the registration period ended sooner. Thus, his behavior was criminal both before and after the 1995 amendment. With the exception of an extended period of registration, Healey is in exactly the same position he was in when he pleaded guilty. See Jensen v. State, 905 N.E.2d 384. Accordingly, the fifth Mendoza-Martinez factor favors treating the effects of the 1995 amendment as non-punitive when applied to Healey.

The sixth factor considers whether “ ‘an alternative purpose to which [the statute] may rationally be connected is assignable for it.’ ” Id. at 393 (quoting Mendoza-Martinez, 372 U.S. at 168-69, 83 S.Ct. 554). Restated, this asks whether SORA advances a legitimate regulatory purpose. Jensen v. State, 905 N.E.2d 384. The Supreme Court in Jensen answered this unequivocally in the affirmative. Therefore, the sixth Mendoza-Martinez factor also favors treating the effects of SORA as non-punitive when applied to Healey.

The seventh and final factor considers “ ‘whether [the Act] appears excessive in relation to the alternative purpose assigned.’ ” Id. at 393-94 (quoting Mendoza-Martinez, 372 U.S. at 169, 83 S.Ct. 554). As our Supreme Court noted in Wallace, “a number of courts give greatest weight to this factor.” Wallace v. State, 905 N.E.2d at 383. Although our Supreme Court described SORA’s registration requirements as “broad and sweeping”, id., they were in place and applied to Healey at the time of his guilty plea in July 1995. The only thing that changed with the enactment of the 1995 amendments was the extension of the registration period, which the Court held in Jensen did not render the amendment in that case punitive. Therefore, the seventh Mendoza-Martinez factor favors treating the effects of the 1995 amendment as non-punitive when applied to Healey.

Of the seven factors identified by Mendoza-Martinez as relevant to the inquiry of whether a statute has a punitive effect despite legislative intent that the statute be regulatory and non-punitive, only two lean in favor of treating the effects of the 1995 amendment as punitive when applied to Healey. The remaining factors lean in the opposite direction, even if slightly. Significantly, the seventh and perhaps most important Mendozar-Martinez factor, leans in favor of treating the amendment as non-punitive when applied to Healey. Therefore, we conclude that Healey has not carried his burden of demonstrating that as applied to him, the 1995 amendment violates the Indiana constitutional prohibition against ex post facto laws.

2.

Healey contends the trial court abused its discretion in sentencing him and imposed an inappropriate sentence. Sentencing decisions rest within the sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482 (Ind.2007), clarified on reh’g, 875 N.E.2d 218. With the exception of our authority to review sentences under Ind. Appellate Rule 7(B), as long as a defendant’s sentence is within the statutory range, it is reviewed only for an abuse of discretion. Id. An abuse of discretion occurs if the trial court’s decision is clearly against the logic and effect of the facts and circumstances and the reasonable inferences to be drawn therefrom. Id. Circumstances under which a trial court may be found to have abused its discretion include: (1) failing to enter a sentencing statement, (2) entering a sentencing statement that includes reasons not supported by the record, (3) entering a sentencing statement that omits reasons clearly supported by the record, or (4) entering a sentencing statement that includes reasons that are improper as a matter of law. Id. Where a trial court has identified proper aggravating and mitigating circumstances, however, “[t]he relative weight or value assignable to reasons properly found or those which should have been found is not subject to review for abuse.” Id. at 491.

When imposing a sentence for a felony, a trial court must enter a sentencing statement that includes a reasonably detailed recitation of its reasons for imposing the sentence. Anglemyer v. State, 868 N.E.2d 482. A trial court abuses its discretion if its reasons and circumstances for imposing the sentence are clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Hollin v. State, 877 N.E.2d 462 (Ind.2007). If the statement includes a finding of aggravating and/or mitigating circumstances, then the statement must identify all significant mitigating and aggravating circumstances. Anglemyer v. State, 868 N.E.2d 482.

Finally, we note that the determination of mitigating circumstances is within the discretion of the trial court. Rogers v. State, 878 N.E.2d 269 (Ind.Ct.App.2007), trans. denied. The trial court is not obligated to accept the defendant’s argument as to what constitutes a mitigating factor, and a trial court is not required to give the same weight to proffered mitigating factors as does a defendant. Id. A trial court does not err in failing to find a mitigating factor where that claim is highly disputable in nature, weight, or significance. Id. An allegation that a trial court abused its discretion by failing to identify or find a mitigating factor requires the defendant on appeal to establish that the mitigating evidence is significant and clearly supported by the record. Id.

Healey first contends that the trial court erred in failing to find as a mitigator that he accepted responsibility for his actions, in that he “stipulated to all facts of the case and waived jury trial, sparing both significant time and expense for the State of Indiana.” Appellant’s Brief at 20. Although Healey did indeed admit to the underlying facts that supported the charges against him, this is not to say that he accepted responsibility for them. To accept responsibility for one’s actions means more than merely admitting the deed, it also connotes a sense of accountability, a willingness to accept the legal consequences flowing from those actions. For this reason, the claim that accepting responsibility for criminal conduct should be considered a mitigating factor is overwhelmingly associated with a guilty plea, i.e., an admission of guilt and a willingness to be punished for that conduct. See, e.g., id. In the present case, Healey did not plead guilty to violating SORA, but merely admitted that he committed acts that would be in violation of SORA if he were subject to its registration requirement. In fact, he argued — and argues still — that he should not be subject to its provisions and thus should suffer no consequences. We do not mean to criticize his legal strategy in defending against these charges when we observe that his response to the charges against him falls short of the sort of personal accountability that would compel a finding that his admission of the underlying facts alone should be a mitigating consideration at sentencing. The trial court did not abuse its discretion in this regard.

Healey next contends that the trial court abused its discretion in failing to find as a mitigator that he would benefit from a short period of incarceration or a term of probation. It is undoubtedly true that Healey himself would benefit from a short period of incarceration in the sense that it is his desire that his freedom be curtailed for as short a time as possible. It seems to us, however, that this miti-gator is not a function of the individual defendant’s wishes on this subject. Were it so, this would certainly be universally found as a mitigating circumstance. Rather, this mitigator is a reflection of the court’s assessment of an individual defendant’s prospects for living a productive life upon release from incarceration, including most notably an assessment of the risk for re-offending. In the present case, Healey has a long history of criminal and delinquent behavior and continues to pose a risk of re-offending, as evidenced by the facts in the present case, i.e., that under false pretenses, he solicited a minor on an internet site to pose for him. The trial court did not abuse its discretion in failing to find this as a mitigating factor.

Finally, Healey contends the trial court abused its discretion in refusing to find as a mitigator his history of substance abuse and efforts at rehabilitation. The record reveals that Healey began using alcohol when he was fifteen years old, and he continued to drink until the time of his incarceration for the present offense. He has smoked marijuana since he was nineteen, and has experimented with other illegal substances in his recent past. Much of this activity was illegal when he engaged in it. Indeed, this rationale may underpin the conclusion of some courts that substance abuse is actually an aggravating circumstance. See Iddings v. State, 772 N.E.2d 1006 (Ind.Ct.App.2002), trans. denied. Be that as it may, we can find no indication that his offenses were committed because he was then under the influence of alcohol or drugs. Also, we note Healey’s claim that his history of substance abuse is mitigating because he has sought substance-abuse treatment in the past. This argument loses its force in light of the fact that the only mention of treatment programs at sentencing was his counsel’s allusion to “a substance abuse class that Mr. Healey’s been in while incarcerated at the Allen County Jail.” Transcript of Sentencing Hearing at 5. Viewed as a whole, the trial court did not abuse its discretion in declining to find Healey’s history of substance abuse as a significant mitigating circumstance.

Finally, Healey contends his sentence was inappropriate in light of his character and the nature of his offenses. Article 7, section 4 of the Indiana Constitution grants our Supreme Court the power to review and revise criminal sentences. Pursuant to Ind. Appellate Rule 7, the Supreme Court authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d 1219 (Ind.2008). Per App. R. 7(B), we may 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.” Wilkes v. State, 917 N.E.2d 675, 693 (Ind.2009), cert. denied, — U.S. —, 131 S.Ct. 414, 178 L.Ed.2d 321 (2010). “[Sentencing is principally a discretionary function in which the trial court’s judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d at 1223. Healey bears the burden on appeal of persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind.2006).

We begin by considering the nature of the offenses. The State concedes that Healey’s offenses, ie., his failure to register as a sex offender and to report his computer social website username, his email address, and the fact that he used a website program that could be accessed by persons less than eighteen “fall within the strictures provided by the registration law and therefore fall within the ambit of the advisory sentence.” Appellee’s Brief at 16.

We turn now to the character of the offender. As alluded to above, Healey has an extensive juvenile and criminal history. Beginning in 1987 and continuing almost unabated since then, he has accumulated seven prior misdemeanor convictions and seven prior felony convictions. Two true findings were entered against him in 1987 for committing acts that would constitute the crimes of criminal mischief and burglary if committed by an adult. He has been convicted of a total of seven misdemeanor offenses, including criminal conversion, two counts of resisting law enforcement, two counts of check deception, and two counts of criminal trespass. His felony offenses include a 1990 conviction for receiving stolen property, as well as another conviction for receiving stolen property incurred almost immediately after Healey was discharged from probation. He received yet another receiving-stolen-property conviction, this one in 1995 and occurring within five months of his being discharged from probation for the previous offense. He received the aforementioned child-molesting conviction in 1995, followed by a forgery conviction in 1997. Within eight months of being discharged from the Department of Correction, Hea-ley was convicted of auto theft. Two months after being discharged from parole with respect to that offense, he pleaded guilty to a charge of failure to register as sex offender. The present offenses were committed within a month of Healey’s release to parole. Healey has spent most of his adult life in prison or jail because he continues to reoffend when released from incarceration. Probation and short terms of imprisonment have not altered his propensity to commit crimes. Moreover, given the nature of the most recent offenses and Healey’s posing as a photographer and soliciting the participation of a minor via the Internet, he poses a substantial threat to the community. In summary, we conclude that his extensive criminal history, by itself, justified the sentence imposed by the trial court. Healey has failed to persuade us that his sentence is inappropriate.

Judgment affirmed and remanded with instructions.

MAY, J., and BARNES, J., concur.

      . Ind.Code Ann. § 11-8-8-17 (West, Westlaw through legislation effective May 31, 2012).

      . The amended charging information for Count I is representative of the nature of the alleged violations, viz., “David S. Healey ... did knowingly or intentionally make a material misstatement or omission while registering as a sex offender under 11-8-8-11; to wit: failed to notify the appropriate criminal justice institute and/or sheriff of his social web site username [.]" Appellant’s Appendix at 19 (emphasis supplied). Counts II and III were identical except for the highlighted portion, which in Counts II and III was replaced by two separate email addresses obtained by Healey.

      . We note the appendix contains a copy of the October 3 judgment of conviction that states, in relevant part: "Defendant having entered plea of guilty pursuant to plea agreement, sentencing hearing is held.” Appellant’s Appendix at 51. This statement is at odds with the rest of the appellate record, including the September 16 Order or Judgment of the Court and the relevant notations on the Chronological Case Summary, and indeed the transcript of the trial and sentencing hearing, all of which indicate that Healey was found guilty following a bench trial. We remand this case with instructions to correct the judgment of conviction to reflect a conviction following a bench trial.


source: Caselaw Access Project

author: SHEPARD, Senior Judge.

license: Public Domain

text:
    Byron CHAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1110-MI-1024.
    Court of Appeals of Indiana.
    June 21, 2012.
    Abhishek Chaudhary, Andrew Ault, Indiana Legal Services, Indianapolis, IN, Attorneys for Appellant.

      Gregory F. Zoeller, Attorney General of Indiana, Elizabeth Rogers, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

SHEPARD, Senior Judge.

When a shoplifter steals goods priced at $97, does the $7 in sales tax that would have been due if he had purchased the items mean that their “retail value” was $104 such that the forfeiture statutes entitle the State to seize the car the thief used to drive to the scene of the crime?

FACTS AND PROCEDURAL HISTORY

In February 2010, a loss prevention officer employed by a Menards store in Indianapolis detained appellant Byron Chan after Chan left the store carrying various electronics items (like two garage door remotes and an ear bud case) for which he had not paid. The Menards employee called the Indianapolis Metropolitan Police Department, whose officers came to the store and took Chan into custody.

Aside from whatever proceedings may have occurred under the criminal law, the State filed a complaint seeking forfeiture of the Honda that Chan used in driving to and expected to use in driving away from the store.

After a trial on the merits, the court granted the State’s petition. It ordered the vehicle forfeited for the use of the Indianapolis Metropolitan Police Department and sold for the benefit of the Marion County Law Enforcement Fund. This appeal followed.

ISSUE

Indiana’s civil forfeiture statutes provide that a vehicle may be forfeited if it is used or intended to be used to transport any stolen or converted property, “if the retail or repurchase value of that property is one hundred dollars ($100) or more.” Ind. Code § 34-24-l-l(a)(l)(B).

DISCUSSION AND DECISION

Unsurprisingly, the Code does not provide a detailed definition of “retail or repurchase value” that answers the question at issue.

Chan argues that the overall legislative scheme for the sales tax treats the tax as an amount separate from the value of the goods purchased. Section 6-2.5-2-1 provides that the sales tax is paid “to the retail merchant as a separate added amount to the consideration in the transaction.” And, he cites an ordinary definition of the word “consideration,” which is “[s]omething of value.” Black’s Law Dictionary 300 (7th ed. 1999). He argues that the tax cannot be considered part of the value of the goods inasmuch as it is calculated on the basis of the value of the goods.

The State responds by noting that because merchants must collect sales tax from customers as part of a retail transaction, Ind.Code § 6-2.5-2-1, common understanding would be that the retail sale encompasses both the price of the goods and the amount of the tax. “Retail value” for purposes of the forfeiture statute, says the State, is “effectively the full amount the consumer must pay.” Appellee’s Br. p. 4.

Forfeitures such as the present case are civil in nature, and the standard of review for claims of insufficient evidence proceeds under the general civil standard. The reviewing court considers the evidence most favorable to the judgment and reverses on evidentiary grounds only if there is a failure of proof. $100 v. State, 822 N.E.2d 1001 (Ind.Ct.App.2005), trans. denied. Where the issue turns on a question of law, review is de novo. Tankersley v. Parkview Hosp., 791 N.E.2d 201 (Ind.2003). As the parties do not dispute any of the facts necessarily found by the trial court, the issue here is solely one of statutory interpretation.

Both Chan and the State have advanced entirely respectable interpretations of the forfeiture statute. One says “retail value” is the price of the goods without tax, and the other says most people think of value as how much they had to pay when they purchased the goods.

In the presence of two competing reasonable interpretations, courts construe forfeiture statutes much in the same way they construe statutes creating crimes. Hornbook law says that criminal statutes are construed according to a rule of lenity that serves to protect against creating a crime by mere construction. 8 Indiana Law Encyclopedia Criminal Law § 7 (2004). Likewise, forfeitures are not favored in the law, and statutes authorizing forfeitures are strictly construed. 86 Am. Jur.2d Forfeitures and Penalties § 8 (2011); see also Gomez v. Vill. of Pinecrest, 17 So.3d 322 (Fla.Dist.Ct.App.2009), approved, 41 So.3d 180 (Fla.2010); People v. Borash, 354 Ill.App.3d 70, 289 Ill.Dec. 566, 820 N.E.2d 74 (Ill.App.Ct.2004), appeal denied.

Of course, application of this canon leads to the conclusion that “retail or repurchase value” should be read as meaning the price of the goods without the addition of the sales tax due on the transaction.

CONCLUSION

We thus reverse the trial court.

CRONE, J., and BRADFORD, J., concur.


author: NAJAM, Judge. BARNES, Judge,

text:
    GERMAN AMERICAN FINANCIAL ADVISORS & TRUST COMPANY d/b/a German American Investment Services, Primevest Financial Services, Inc., and Jeffery W. Tooley, Appellants-Defendants, v. Dennis M. REED, Appellee-Plaintiff.
    No. 19A01-1110-PL-428.
    Court of Appeals of Indiana.
    June 22, 2012.

      David Williams Russell, David I. Rubin, Harrison & Moberly, LLP, Indianapolis, IN, Attorneys for Appellants.
    Marietto V. Massillamany, Starr Austen & Miller, LLP, Logansport, IN, Attorney for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

German American Financial Advisors & Trust Company d/b/a German American Investment Services (“GAFA”), PrimeVest Financial Services, Inc. (“PrimeVest”), and Jeffrey W. Tooley (collectively “Appellants”) appeal the trial court’s denial of their second motion to compel arbitration of Dennis M. Reed’s claims against them. Appellants present the following issues for our review:

1. Whether the trial court erred when it denied their motion to compel arbitration.
2. Whether, assuming the trial court erred when it denied the motion to compel arbitration, Reed can be compelled to arbitrate his claims against GAFA.

We reverse and remand with instructions.

FACTS AND PROCEDURAL HISTORY

On March 13, 2003, Tooley, an employee of GAFA and PrimeVest, assisted Reed in opening an IRA account with PrimeVest. Reed filled out a document entitled “IRA New Account Application” (“2003 application”) on that date, and the following language appeared directly above Reed’s signature:

I have read, understand and agree to the Important Disclosures and the Customer Agreement that are a part of this New Account Application packet, as well as the separate Privacy Policy.
I AM AWARE THAT SECTION 20 OF THE CUSTOMER AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE DISPUTES.

Appellants’ App. at 60. And Section 20 of the Customer Agreement incorporated by reference in the application provided in relevant part that Reed agreed that “ANY DISPUTE BETWEEN PRIMEVEST AND [REED] ARISING OUT OF THIS AGREEMENT SHALL BE SUBMITTED TO ARBITRATION[.]” Id. at 48.

On April 19, 2006, Tooley advised Reed that he should “roll over” his existing IRA accounts into a variable rate annuity, which Reed did. Id. at 12. Tooley told Reed that the return on that investment after three years would be approximately $100,000. And Tooley stated that Reed would be able to withdraw the full amount from the account, without penalties, at that time. But when Reed sought to withdraw all of the funds from the annuity in 2009, after Tooley had left his employment with GAFA, Frederick Mattingly, a GAFA employee, informed Reed that he “would only be able to withdraw a portion of the account without incurring significant penalties.” Id. at 13.

On April 15, 2009, Reed filed a complaint against Appellants alleging that they: violated the Indiana Uniform Securities Act; committed fraud; committed constructive fraud; were negligent; and breached their fiduciary duty. On June 10, Appellants filed their first motion to compel arbitration. In support of that motion, Appellants submitted the following: a copy of a new account application Reed had signed on March 11, 2008 (“2008 application”); and an affidavit executed by Andrew Krempp, the vice president of GAFA. In support of his response in opposition to the motion to compel arbitration, Reed argued in part that “the clear language of the New Account Application’s arbitration clause shows it is prospective only, not retroactive, and therefore does not apply to the allegations of this lawsuit.” Appellee’s App. at 32. In particular, Reed signed the 2008 new account application approximately two years after Tooley had advised Reed to purchase the annuity, which was the subject matter of the lawsuit.

On July 23, 2009, Appellants filed their Reply in Support of Motion to Compel Arbitration, and they attached as Exhibit I the 2003 application signed by Reed. In addition, Appellants included a copy of the “Customer Agreement” incorporated by reference in the new account application. Appellants argued that by signing the 2008 new account application, Reed “ratified” his 2003 agreement to arbitrate. Id. at 45.

After deposing Krempp, Reed filed a “Surreply in Opposition to Motion to Compel Arbitration and Motion for Sanction Against Defendants of Denial of Their Motion to Compel Arbitration Based on Defendant’s Submission of False Affidavits to the Court in Support of that Motion.” In deposing Krempp, Reed had learned that neither Krempp nor Prime-Vest had maintained a complete copy of Reed’s new account applications in their files. In particular, while the signature page of each application was maintained in the files, a copy of the Customer Agreement incorporated by reference in those applications was not kept in Reed’s files. And Krempp admitted during his deposition that the copies of the Customer Agreement submitted to the trial court in support of their motion to compel arbitration and reply in support of motion to compel arbitration were not the correct versions of the Agreement. In other words, Appellants had not yet produced an accurate copy of the document purporting to contain an arbitration clause. And when Krempp submitted his affidavit identifying the attached Customer Agreement as the one that was incorporated by reference in the application Reed had signed, Krempp had been mistaken. Following a hearing, the trial court denied Appellants’ motion to compel arbitration and denied Reed’s motion for sanctions.

On December 4, 2009, PrimeVest and Tooley filed a second motion to compel arbitration, and, on November 12, 2010, GAFA joined that motion. In support, Appellants submitted the affidavits of Too-ley; Mark Stieve, President and CEO of GAFA at all times relevant to Reed’s complaint; and Kimberly Holweger, Director of Operations of PrimeVest, as well as “a true and correct copy of the IRA New Account Application (the “Application”) executed by Dennis M. Reed (“Reed”) dated March 13, 2003, with attached Customer Agreement (the “Agreement”) in which account, in 2006, Mr. Reed purchased the John Hancock annuity at issue in this litigation.” Appellants’ App. at 42. Section 20 of the Customer Agreement provided that “any dispute between PrimeVest and [Reed] arising out of this agreement shall be submitted to arbitration^]” Id. at 48.

In his response in opposition to that motion, Reed argued in relevant part:

Defendants now want to convince the Court that they have finally cobbled together the correct document [containing the arbitration clause]. Nevertheless, one of their current affiants, Kimberly Holweger, the Director of Operations of PrimeVest Financial Solutions has been forced to admit “under the PrimeVest record retention policy, only the account application form is filmed and retained as a film business record.” PrimeVest does not retain the customer agreements that their clients review prior to signing the account application form. Therefore, how can Defendants bear their burden of proving that Jeff Tooley had Denny Reed sign an account application over seven years ago that had attached to it an arbitration agreement when no one kept copies of the documents that were actually attached to Denny’s signature page?
In light of the fact that the Defendants filed two false affidavits earlier, why should any of us believe that they have now “got it right”? Furthermore, the Defendants have offered no evidence why the current affidavits they are submitting are any more accurate than the two earlier affidavits submitted by Andrew Krempp. Is it too much to ask that if the Defendants want to take away a client’s constitutional right to a jury, they should at least be required to keep a complete, signed copy of any agreement requiring arbitration? How much weight can truly be given to the Defendants’ new affidavits since none of us have any reliable way of actually knowing what if any forms were attached to the signature pages of the application that Denny signed seven years ago? Thus far, the Defendants have kept guessing as to the wrong documents because of its incredibly poor business decision of not keeping copies!

Appellants’ App. at 127-28. The trial court denied the second motion to compel arbitration. This appeal ensued.

DISCUSSION AND DECISION

Issue One: Motion to Compel

Appellants first contend that the trial court erred when it denied their second motion to compel arbitration. In Williams v. Orentlicher, 939 N.E.2d 663, 667-68 (Ind.Ct.App.2010), we set out the applicable standard of review:

The trial court’s denial of a motion to compel arbitration is reviewed de novo. The party seeking to compel arbitration must demonstrate the existence of an enforceable arbitration agreement and that the disputed matter is the type of claim that is intended to be arbitrated under the agreement. Whether the parties agreed to arbitrate any disputes is a matter of contract interpretation, and most importantly, a matter of the parties’ intent. Courts in Indiana have long recognized the freedom of parties to enter into contracts and have presumed that contracts represent the freely bargained agreement of parties. Thus, imposing on parties a policy favoring arbitration before determining whether they agreed to arbitrate could frustrate their intent and freedom to contract. We will decide whether the dispute, on its face, is covered by the language of the arbitration provision. In doing so, we will apply ordinary contract principles governed by state law. If we determine that the parties have agreed to arbitrate, Indiana policy favors arbitration.
Med. Realty Assocs., LLC v. D.A. Dodd, Inc., 928 N.E.2d 871, 874 (Ind.Ct.App.2010) (quotations and citations omitted). Further, when construing arbitration agreements, “every doubt is to be resolved in favor of arbitration, and the parties are bound to arbitrate all matters, not explicitly excluded, that reasonably fit within the language used.” Bielfeldt v. Nims, 805 N.E.2d 415, 418 (Ind.Ct.App.2004) (quotations omitted), trans. denied.

Here, Appellants maintain that they have satisfied their burden to show (1) the existence of an enforceable arbitration agreement and (2) that the disputed matter is the type of claim that is intended to be arbitrated under the agreement. See id. Thus, they contend the trial court erred when it denied their second motion to compel arbitration. Indeed, our review of the record shows that when Reed signed the 2003 application, he agreed to arbitrate “any dispute” with PrimeVest arising out of their agreement. Appellants’ App. at 48.

But Reed asserts that Appellants “have not demonstrated the existence of an enforceable agreement.” Brief of Appellee at 10. In particular, Reed points out that the evidence shows that: neither Krempp nor PrimeVest retained a copy of the Customer Agreement with Reed’s files; the Customer Agreement has been altered “dozens of times” over the years; and “this is the [Appellants’] fourth attempt” to provide an accurate copy of the relevant Customer Agreement. Id. at 10-11. Reed maintains that the version of the Customer Agreement submitted with Appellants’ second motion to compel arbitration “has insufficient indicia of reliability and trustworthiness” and cannot, therefore, support a finding that the parties had a valid arbitration agreement. Id. at 12. In essence, Reed urges us to hold that, because Appellants had previously provided the trial court with incorrect versions of the Customer Agreement and had provided false testimony in affidavits submitted to the court, Appellants have not met their burden to prove the existence of an enforceable arbitration agreement.

We are not persuaded that Appellants’ failure to provide an accurate copy of the Customer Agreement prior to the filing of their second motion to compel arbitration has any bearing on the admissibility of the evidence submitted in support of that motion. Indeed, while the previous versions of the Customer Agreement submitted by Appellants were proven to be incorrect versions of the parties’ agreement, the version submitted with their second motion to compel arbitration has significant indicia of reliability. The copies of both the 2003 application signature page and the Customer Agreement submitted with the second motion to compel arbitration include the same copyright notice: “© 1996 Bankers Systems, Inc., St. Cloud, MN Form IRA-PRIME 6/1/2002.” Appellants’ App. at. 47-48. Further, the signature page refers to the arbitration clause in “SECTION 20” of the Customer Agreement, and Section 20 of the attached Customer Agreement does, indeed, contain an arbitration clause. Id.

Further, each version of the Customer Agreement Appellants submitted to the trial court contains the same essential terms pertaining to arbitration. It is well settled that “only essential terms need be included in order to render a contract enforceable.” Wolvos v. Meyer, 668 N.E.2d 671, 676 (Ind.1996). “ ‘All that is required is reasonable certainty in the terms and conditions of the promises made, including by whom and to whom.’ ” Id. (quoting Johnson v. Sprague, 614 N.E.2d 585, 588 (Ind.Ct.App.1993)). Here, Appellants submitted three different versions of the Customer Agreement to the trial court. But each of those versions contains the same essential terms regarding arbitration, namely, an agreement to arbitrate “any dispute between me and you arising out of this agreement.” Appellee’s App. at 7, 54; Appellants’ App. at 48. And while the arbitration clauses are inconsistent regarding which entity shall conduct the arbitration, FINRA Dispute Resolution or NASD Dispute Resolution, all three versions are consistent in naming the American Arbitration Association as the entity that shall conduct arbitration if the named entity “is not available for the dispute.” Id.

Reed does not outright contend on appeal that there is no valid arbitration agreement. Instead, he contends that Appellants have not proven that they have submitted a valid copy of the agreement to the trial court. Again, we review the trial court’s denial of the second motion to compel arbitration de novo. Williams, 939 N.E.2d at 667-68. And we hold that Appellants have sustained their burden to show the existence of an enforceable arbitration agreement and that the disputed matter is the type of claim that is intended to be arbitrated under the agreement.

Issue Two: GAFA

Appellants next contend that Reed is required to arbitrate his claims against GAFA, even though GAFA was not a party to the arbitration agreement. In support of that contention, Appellants rely on precedent holding that third-party beneficiaries to an arbitration agreement may compel arbitration. See Dunmire v. Schneider, 481 F.3d 465 (7th Cir.2007). But we do not find support for a determination that GAFA is a third-party beneficiary to the Customer Agreement in this case. We do, however, hold that the principles of equitable estoppel apply here.

In Williams v. Orentlicher, 939 N.E.2d 663, 670 (Ind.Ct.App.2010), this court acknowledged case law from other jurisdictions holding that, under the doctrine of equitable estoppel, a nonsignatory to an agreement may bind a signatory to an arbitration clause. (Citing MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir.1999); Sunkist Soft Drinks v. Sunkist Growers, Inc., 10 F.3d 753, 756-57 (11th Cir.1993)), cert. denied, 513 U.S. 869, 115 S.Ct. 190, 130 L.Ed.2d 123 (1994); Hughes Masonry Co. v. Greater Clark County Sch. Bldg. Corp., 659 F.2d 836 (7th Cir.1981). In MS Dealer, the United States Court of Appeals for the Eleventh Circuit stated:

Existing case law demonstrates that equitable estoppel allows a nonsignatory to compel arbitration in two different circumstances. First, equitable estoppel applies when the signatory to a written agreement containing an arbitration clause must rely on the terms of the written agreement in asserting its claims against the nonsignatory. When each of a signatory’s claims against a nonsignatory makes reference to or presumes the existence of the written agreement, the signatory’s claims arise out of and relate directly to the written agreement, and arbitration is appropriate. Second, application of equitable es-toppel is warranted when the signatory to the contract containing an arbitration clause raises allegations of substantially interdependent and concerted misconduct by both the nonsignatory and one or more of the signatories to the contract. Otherwise the arbitration proceedings between the two signatories would be rendered meaningless and the federal policy in favor of arbitration effectively thwarted.

177 F.3d at 947 (citations omitted).

Here, Reed admitted in his brief in opposition to the motion to compel arbitration that his claims against each of the Appellants “will require the presentation of the same evidence.” Appellants’ App. at 9. And Reed alleges joint and several liability against the Appellants, with his claims against GAFA stemming from Too-ley’s conduct and the contractual relationship between Reed and PrimeVest. Accordingly, Reed’s claims against GAFA both “arise out of and relate directly to the written agreement” between Reed and Pri-meVest, and those claims allege “substantially interdependent and concerted misconduct by both the nonsignatory and one or more of the signatories to the contract.” See MS Dealer, 177 F.3d at 947. We adopt the reasoning set out in MS Dealer and hold that Reed must arbitrate his claims against GAFA under the doctrine of equitable estoppel.

Conclusion

Again, we hold that Appellants have satisfied their burden to show (1) the existence of an enforceable arbitration agreement and (2) that the disputed matter is the type of claim that is intended to be arbitrated under the agreement. While we are unimpressed with Appellants’ failure to locate the proper documentation to support their first motion to compel, they ultimately met their burden on the second motion to compel arbitration, which is the only issue before us, and Reed has not offered any evidence to refute the evidence pointing to a valid arbitration agreement. Further, under the doctrine of equitable estoppel, Reed is required to arbitrate his claims against GAFA, as well as against PrimeVest and Tooley. We reverse and remand with instructions to the trial court to enforce the parties’ arbitration agreement on Reed’s claims against each of the Appellants.

Reversed and remanded with instructions.

FRIEDLANDER, J., concurs.

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

BARNES, Judge,

concurring in part and dissenting in part.

I concur with the majority’s resolution of Issue One in this appeal. I respectfully dissent, however, from its conclusion in Issue Two that GAFA may compel Reed to submit his claims against it to arbitration.

First, Indiana law is that parties are only bound to arbitrate those issues that by clear language they have agreed to arbitrate, and arbitration agreements will not be extended by construction or implication to cover any other matters. Showboat Manna Casino P’ship v. Torn & Blank Constr., 790 N.E.2d 595, 597-98 (Ind.Ct.App.2003). Here, I believe the majority is elasticizing the plain and unambiguous language of the arbitration agreement by allowing GAFA to insist on arbitration when GAFA was not a named party to the arbitration agreement — only PrimeVest and Reed were named. I might also add that, although there are of course important public policy reasons for enforcing arbitration agreements, there are vital public policy concerns, enshrined in the Indiana Constitution, which guarantee open courts, remedies by due course of law, and civil jury trials. See Ind. Const. Art. 1, §§ 13 & 20. A waiver of such constitutional rights must be clear and unmistakable.

There is an Indiana statute governing the creation of arbitration agreements stating, “If the parties to such an agreement stipulate in writing, the agreement may be enforced by designated third persons, who shall in such instances have the same rights as a party under this chapter.” Ind.Code § 34-57-2-l(a). There is no such written stipulation in this case regarding third parties having the right to enforce the arbitration agreement. I believe there is a legitimate inference to be made that, in enacting this statute, the legislature did not contemplate that non-signatory third parties to a contract should be allowed to enforce an arbitration agreement unless there was such a stipulation.

The MS Dealer case relied upon by the majority holds that, because of “equitable estoppel,” it was permitting a non-signatory to an arbitration agreement to enforce it against a signatory to the agreement. MS Dealer, 177 F.3d at 947. This does not seem compatible with the standard Indiana definition of “equitable estoppel,” which requires a party to show its (1) lack of knowledge and of the means of knowledge as to the facts in question, (2) reliance upon the conduct of the party es-topped, and (3) action based thereon of such a character as to change his position prejudicially. Town of New Chicago v. City of Lake Station ex rel. Lake Station Sanitary Dist., 939 N.E.2d 638, 653 (Ind.Ct.App.2010), trans. denied. Here, most importantly, I see no indication whatsoever that Reed misled GAFA into doing anything, based on a representation that he would agree to arbitrate any dispute with GAFA, which I think GAFA would have to prove in order to show “equitable estop-pel” under established Indiana law. This strained definition of “equitable estoppel” is one of the main reasons that our colleagues on the Appellate Court of Illinois have refused to apply MS Dealer’s holding in that state. See Ervin v. Nokia, Inc., 849 Ill.App.3d 508, 285 Ill.Dec. 714, 812 N.E.2d 534, 542-43 (2004), app. denied,

Regardless of the “equitable estoppel” label, MS Dealer and the majority appear to be concerned that a party to a contract with an arbitration clause should not be able to raise claims related to the contract against a non-party while avoiding the contract’s arbitration clause. It is not Reed’s fault that the arbitration clause in this case explicitly refers only to PrimeVest as the party against whom claims must be arbitrated. This clearly was a form document that PrimeVest wrote. Reed has not acted inequitably in this regard. Reed also is not suing GAFA directly for breach of contract; indeed, it does not appear that Reed could enforce any contractual rights or remedies against GAFA, nor could GAFA against Reed. Finally, there is no argument by GAFA or evidence that it is a principal or agent of PrimeVest, or that it is merely a corporate alter ego of Prime-Vest, or a successor in interest to Prime-Vest, or that it is a third-party beneficiary of the PrimeVest-Reed contract. Particularly in the absence of any such argument and evidence, and in light of my views stated above, I would hold that GAFA is not entitled to compel Reed to submit his claims against it to arbitration.

      .PrimeVest is a "registered securities broker/dealer” and had a "commission sharing agreement” with GAFA at all times relevant to this appeal. Appellant’s App. at 27. On appeal, the parties provide no further information regarding the relationship between PrimeVest and GAFA.

      . Reed's complaint alleges facts that Appellants dispute. For purposes of this appeal, we need not resolve the factual disputes. For ease of discussion, we set out the basic facts as set out in Reed’s complaint.

      . Reed had signed a new account application in 2003, but Tooley asked him to sign another application in 2008.

      . PrimeVest modified the terms of the Customer Agreement periodically over the years.

      . GAFA was delayed in filing its motion to compel arbitration due to initial confusion as to whether it was a properly named party in Reed’s complaint.

      .Reed also argues that Appellants have not presented admissible evidence of an arbitration agreement to support their motion to compel because, Reed alleges, the customer agreement is hearsay. But Reed makes this argument for the first time on appeal. As such, the issue is waived. See Grathwohl v. Garrity, 871 N.E.2d 297, 302 (Ind.Ct.App.2007) (“If a party does not present an issue or argument to the trial court, appellate review of the issue or argument is waived.”).

      . In contrast, the version of the Customer Agreement Appellants submitted with their first motion to compel arbitration indicated a 2007 copyright notice.

      . Prior versions of the Customer Agreement submitted by Appellants contained an arbitration clause in Section 21 instead of Section 20.

      . According to Reed, Appellants provided a fourth version of the customer agreement to Reed during Krempp’s deposition.

      . For clarity, we note that the first two versions submitted by Appellants use the words "you and me,” but the third version submitted to the trial court uses the words "me and PRIMEVEST.”

      . To the extent that Reed contends that Appellants' record-keeping practices prove that they are incapable of producing an accurate copy of the relevant customer agreement, again, we are not persuaded. The Customer Agreement was incorporated by reference in the new account application signed by Reed. Appellants’ difficulty in finding the appropriate version of the Customer Agreement is explained by the fact that the terms of the Agreement have changed several times over the years. Regardless, the arbitration clauses contained in each version contain the same essential terms.

      . In Williams, a signatory was attempting to bind a nonsignatory to an arbitration agreement, the converse of the circumstances in our case. And we held that a signatory may not use equitable estoppel to compel arbitration against a nonsignatory. Williams, 939 N.E.2d at 670.

      . Finally, Appellants address two other issues raised by Reed to the trial court, namely, whether (1) their second motion to compel was a repetitive motion and "should be discouraged”; and (2) the arbitration provision is unenforceable because the chosen forum, the National Association of Securities Dealers, is defunct. But Reed does not present argument on either of those issues in his brief on appeal, so we do not address them. We note, however, that in Lesjak v. New England Financial, 879 N.E.2d 1129, 1130 n. 1 (Ind.Ct.App.2008), this court acknowledged that the NASD "consolidated its operations and merged with" FINRA in 2007. And other jurisdictions have “continuefd] to enforce NASD arbitration clauses through FINRA arbitration and interpret and enforce NASD's rules as applicable to FINRA.” In re Stanford Group Company, 273 S.W.3d 807, 810 n.1 (Tex.App.2008); see also Morgan Stanley & Co., Inc. v. Feeley, 75 A.D.3d 417, 906 N.Y.S.2d 13, 14 (N.Y.App.Div.2010).

      . This sentence is an addition to the Uniform Arbitration Act of 1956 on which the Indiana statute is based, and which sentence apparently has not been adopted by any other state.

      . Illinois’s definition of "equitable estoppel” is similar to Indiana's, in that it requires "prejudicial reliance” by one party upon representations made by another party. See Ervin, 285 Ill.Dec. 714, 812 N.E.2d at 541.

      . GAFA cites cases holding that agents of a signatory to an arbitration agreement may enforce that agreement. See Dunmire v. Schneider, 481 F.3d 465, 467 (7th Cir.2007). However, it makes no argument that it is in fact an agent or principal of PrimeVest.


author: WENTWORTH, J.

text:
    Havsukh & Parul BOSAMIA, Petitioners, v. MARION COUNTY ASSESSOR, Respondent.
    No. 49T10-1108-TA-53.
    Tax Court of Indiana.
    June 19, 2012.
    Finis Tatum IV, Foley & Abbott, Indianapolis, IN, Attorney for Petitioners.
    Gregory F. Zoeller, Attorney General of Indiana, Jonathan E. Lamb, Deputy Attorney General, Indianapolis, IN, Attorneys for Respondent.
   ORDER ON RESPONDENT’S MOTION TO DISMISS

WENTWORTH, J.

Harsukh and Parul Bosamia appeal the Indiana Board of Tax Review’s final determination upholding their commercial real property assessments for the 2007 and 2008 tax years. The matter is currently before the Court on the Marion County Assessor’s Motion to Dismiss due to the Bosamias’ failure to timely file the certified administrative record as required by Tax Court Rule 3(E). The Court finds the case should be dismissed.

FACTS AND PROCEDURAL HISTORY

On August 24, 2011, the Bosamias, who at the time were representing themselves, initiated an original tax appeal challenging their 2007 and 2008 real property tax assessments. In their petition, the Bosamias requested that the Indiana Board prepare a copy of the certified administrative record. The Bosamias remitted a fifty dollar deposit to the Indiana Board for the preparation of the record, and on September 8, the Indiana Board mailed an invoice to the Bosamias that stated the record was prepared and that the balance of $161.00 was due.

Twenty-four days later on October 2, Harsukh learned that his mother was gravely ill, and he traveled to England to visit her. Harsukh’s wife, Parul, remained in Indianapolis to manage their restaurant and to care for their family. Harsukh returned to Indianapolis on October 18.

On October 21, the Bosamias paid the balance due to the Indiana Board. The following day, the Bosamias traveled to England due to the failing health of Har-sukh’s mother and returned to Indianapolis on November 8, after her death. On November 7, the Assessor moved to dismiss the case, claiming that the Bosamias failed to timely file the record with the Court pursuant to Tax Court Rule 3(E). The Bosamias later filed the record with the Court along with a written motion requesting the Court to permit its untimely filing. On March 12, 2012, the Court conducted a hearing on the Assessor’s Motion to Dismiss. Additional facts will be supplied as necessary.

LAW

A party initiates an original tax appeal from a final determination of the Indiana Board by filing a petition with the Tax Court and, among other things, filing a request that the Indiana Board prepare a certified copy of the agency record. Ind. Tax Court Rule 3(B). Thereafter, “[t]he petitioner shall transmit a certified copy of the record to the Tax Court within thirty (30) days after having received notification from the Indiana Board of Tax Review that the record has been prepared.” Tax Ct. R. 3(E) (emphasis added).

ANALYSIS

The parties agree that if the Indiana Board’s invoice provided adequate notice, the Bosamias had until October 11 to file the record with the Court. The Bosamias admit they missed that deadline, but they contend nonetheless that the Assessor’s Motion to Dismiss should be denied for two alternative reasons.

First, the Bosamias claim that the Indiana Board’s invoice was inadequate notification that the record had been prepared so it failed to trigger their thirty day filing period under Tax Court Rule 3(E). Accordingly, they argue that their payment of the invoice on October 21 was the proper triggering event making their November 9 filing timely.

To support this contention, the Bosami-as rely on the Indiana Supreme Court decision in Wayne County Property Tax Assessment Board of Appeals v. United Ancient Order of Druids-Grove, 847 N.E.2d 924 (Ind.2006) for the proposition that an Indiana Board invoice provides adequate notice if it contains a statement that the record is complete along with either the completed record or a specific date on which the record can be picked up. While the Bosamias’ invoice stated that the record had been prepared, it did not include the completed record or provide a specific date on which to pick up the record. As such, the Bosamias claim that the invoice was inadequate notification and did not trigger their obligation to file the record. The Bosamias’ reading of Druids, however, is incorrect.

In Druids, the Supreme Court examined an Indiana Board invoice to determine if it provided adequate notice to trigger the taxpayer’s duty to file the record under Tax Court Rule 3(E). The Supreme Court found three separate ways the invoice could have provided adequate notice: 1) if the invoice told the taxpayer the record was complete, 2) if it included the completed record, or 3) if it provided a date on which the record could be picked up. Druids, 847 N.E.2d at 929 (footnote added). Noting that all three were absent, and that the only information contained in the invoice was a breakdown of the remaining charges owed, the Court found that the Indiana Board’s invoice in Druids was inadequate to provide notice, and trigger the thirty day filing period. Id.

Here, however, the Indiana Board’s invoice sent to the Bosamias is different from the one in Druids, as it states:

The Administrative Record for the above-referenced case has been prepared per your request. This invoice represents a breakdown of charges that must be paid in order to have the record released. Please send a check payable to the Indiana Board of Tax Review ... and the record will be mailed upon receipt of balance due....
This invoice also triggers your obligation under Tax Court Rule 3(E) to file the Administrative Record with the Tax Court within thirty (30) days of receipt of this notice.

(Resp’t Mot. Dismiss, Ex. 1.) The statement in the Bosamias’ invoice that the record “has been prepared” would by itself be sufficient notice under Druids to trigger the thirty day filing period. See Druids, 847 N.E.2d at 929. Nonetheless, the invoice goes even further by stating 1) how the Bosamias could obtain the record (payment of the invoice) and 2) that their receipt of the invoice triggered their thirty days to file the record. Accordingly, the Court finds the Bosamias’ invoice provided sufficient notice under Tax Court Rule 3(E).

In the alternative, the Bosamias contend that their failure to timely file the record should be excused under Trial Rule 6(B)(2) as their failure was the result of “excusable neglect.” Again, the Court disagrees.

Indiana Trial Rule 6(B)(2) states:

When an act is required or allowed to be done at or within a specific time by these rules, the court may at any time for cause shown ... upon motion made after the expiration of the specific period, permit the act to be done where the failure to act was the result of excusable neglect [.]

Ind. Trial Rule 6(B)(2) (emphasis added.) Neither Trial Rule 6(B)(2), nor its federal counterpart, defines “excusable neglect.” See, e.g., T.R. 6(B)(2); Fed. R.Civ.P. 6(b)(1)(B). Furthermore, Indiana case law interpreting excusable neglect in the context of Trial Rule 6(B)(2) is scarce.

Black’s Law Dictionary defines “excusable neglect” as

A failure ... to take some proper step at the proper time ... not because of the party’s own carelessness, inattention, or willful disregard of the court’s process, but because of some unexpected or unavoidable hindrance or accident or because of reliance on the care and vigilance of the party’s counsel or on a promise made by the adverse party.

Black’s Law Dictionary 1133 (9th ed. 2009). Additionally, Indiana courts have discussed excusable neglect in the context of Trial Rule 60(B), which grants relief from judgments or orders. In those cases, courts have found excusable neglect where the failure to act was caused by some event or action outside a party’s control. See e.g., Whittaker v. Dail, 584 N.E.2d 1084, 1087 (Ind.1992); Shane v. Home Depot USA, Inc., 869 N.E.2d 1232, 1235-36 (Ind.Ct.App.2007); Flying J, Inc. v. Jeter, 720 N.E.2d 1247, 1249-50 (Ind.Ct.App.1999). For example, in Whittaker, the Indiana Supreme Court found that the trial court abused its discretion in not setting aside a default judgment when the evidence clearly demonstrated that the party claiming excusable neglect was not “foot dragging,” but that his failure to act was the result of a breakdown in communication between his insurance agent and his attorney. Whittaker, 584 N.E.2d at 1087. Cf. Smith v. Johnston, 711 N.E.2d 1259, 1262 (Ind.1999) (where the failure to act was not the result of excusable neglect because it was caused by the party’s own actions).

In this case, the Bosamias did not file the record within thirty days after receiving the Indiana Board’s invoice. In fact, more than three weeks passed before they even learned of Harsukh’s mother’s illness. Furthermore, after Harsukh left the country to visit his sick mother, his wife had nearly another week to file the record with the Court before the October 11 filing deadline, but she did not do so. The Court sympathizes with the unfortunate circumstances that befell the Bosami-as; however, the failure to timely file was not because of Harsukh’s mother’s illness, but was the result of their own inaction. Given these facts and circumstances, the Court cannot employ its discretion to enlarge the Bosamias’ time to file record.

CONCLUSION

For all the reasons stated above the Court GRANTS the Assessor’s Motion to Dismiss, and the Bosamias’ motion that the Court accept their untimely filed record is DENIED.

SO ORDERED.

      . On December 2, several weeks after the Assessor moved to dismiss the case, counsel for the Bosamias filed his appearance.

      . (See Pet'rs Obj. Resp’t Mot. Dismiss Req. Leave File Cert. Copy Agency Rec. (hereinafter “Pet’rs Obj.’’) at ¶ 9; Resp’t Mot. Dismiss at ¶ 9.)

      . (See Oral Argument Tr. at 12.)

      . (See Oral Argument Tr. at 13.)

      . (See Oral Argument Tr. at 10-14 (citing Wayne Cnty. Prop. Tax Assessment Bd. of Appeals v. United Ancient Order of Druids-Grove No. 29, 847 N.E.2d 924 (Ind.2006).)

      . (See Oral Argument Tr. at 12.)

      . The Supreme Court affirmatively cited Keag Family Limited Partnership v. Indiana Board of Tax Review, 815 N.E.2d 567, 569 (Ind.Tax.Ct.2004) in which the Tax Court held the Indiana Board's invoice was adequate notice despite lacking a statement that the record was complete because the invoice contained the completed record. Druids, 847 N.E.2d at 929.

      .The Assessor argues that Trial Rule 6(B)(2) does not apply to this case because the time limit for filing the administrative record with this Court is prescribed by the Tax Court Rules, not the Trial Rules. (Oral Argument Tr. at 20, 22.) The Court does not address this argument because it finds in favor of the Assessor on other grounds.

      . (Pet'rs Obj. at ¶ 12.)

      . Each tax year stands alone. Indianapolis Racquet Club, Inc. v. Washington Twp. Assessor, 802 N.E.2d 1018, 1022 (Ind.Tax Ct.2004), review denied. Consequently, the Bosamias may protest their property assessment next year, if they so choose.


text:
    Jonathon DOUGLAS, Appellant, v. STATE of Indiana and Ind. Family & Social Serv. Admin, as assignee of the Support Rights of Mechelle (Allen) McCrory, Appellees.
    No. 40S01-1201-DR-50.
    Supreme Court of Indiana.
    June 29, 2012.
   PUBLISHED ORDER

FRANK SULLIVAN, JR., Acting Chief Justice.

By order dated January 27, 2012, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals. After further review, this Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinion reported as Douglas v. State, 954 N.E.2d 1090 (Ind.Ct.App.2011), should be reinstated as Court of Appeals precedent. Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end.

The Court DIRECTS the Clerk to certify this appeal as final. The Court further DIRECTS the Clerk to send a copy of this Order to LexisNexis and to Thomson/Reuters for publication on-line and in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    Julie NUNLEY, Appellant, v. Jeremy NUNLEY, Appellee.
    No. 68S04-1201-DR-51.
    Supreme Court of Indiana.
    June 29, 2012.
   PUBLISHED ORDER

FRANK SULLIVAN, JR., Acting Chief Justice of Indiana.

By order dated January 27, 2012, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals. After further review, this Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinion reported as Nunley v. Nunley, 955 N.E.2d 824 (Ind.Ct.App.2011), should be reinstated as Court of Appeals precedent. Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end.

The Court DIRECTS the Clerk to certify this appeal as final. The Court further DIRECTS the Clerk to send a copy of this Order to LexisNexis and to Thomson/Reuters for publication on-line and in the bound volumes of this Court’s decisions.

All Justices concur.


author: BRENT E. DICKSON, Chief Justice.

text:
    In the Matter of Robert C. SZILAGYI, Respondent.
    No. 46S00-1204-DI-217.
    Supreme Court of Indiana.
    June 29, 2012.
   PUBLISHED ORDER APPOINTING TEMPORARY PROSECUTING ATTORNEY

BRENT E. DICKSON, Chief Justice.

On June 20, 2012, this Court ordered the suspension of Robert C. Szilagyi, Prosecuting Attorney of LaPorte County, for sixty days with automatic reinstatement, subject to the conditions of Admission and Discipline Rule 23(4)(c). We set the effective date of that suspension as August 1, 2012, and ordered that Respondent not undertake any new legal matters between service of the order and the effective date of the suspension, pursuant to Indiana Admission and Discipline Rule 23(26)(b).

This Court notes that a county prosecuting attorney’s duties are concerned with representing the State of Indiana and that performance of these duties requires that the prosecuting attorney be a practicing member of the bar of this state. See State ex rel. Indiana State Bar Association v. Moritz, 244 Ind. 156, 191 N.E.2d 21 (1963). Accordingly, Respondent’s suspension from the practice of law renders him disqualified from performing the duties of a prosecuting attorney. See Matter of Catt, 672 N.E.2d 410 (Ind.1996). Respondent therefore must be suspended from the performance of his duties as prosecuting attorney during his suspension from the practice of law, and his pay for services as prosecuting attorney should be discontinued during the suspension.

Because Respondent’s suspension from the practice of law will create a vacancy in the office of prosecuting attorney, we find that the continued orderly administration of justice requires the appointment of a temporary prosecuting attorney to carry out the duties of the office of prosecuting attorney of LaPorte County.

This Court has been advised that Robert D. Neary, a member of the bar of this state who is currently serving as chief deputy prosecutor for LaPorte County, is able to assume the duties of prosecuting attorney of LaPorte County, effective August 1, 2012, and continuing during the period of Respondent’s suspension.

IT IS THEREFORE ORDERED that Robert D. Neary is appointed to serve as full-time prosecuting attorney of LaPorte County, effective August 1, 2012, through the end of Respondent’s suspension. In addition, until the effective date of Respondent’s suspension, Robert D. Neary is authorized to take any actions necessary to initiate and prosecute new legal matters that Respondent is barred from taking under the terms of this Court’s June 20, 2012, order.

This Order shall be sufficient authority for Robert D. Neary to carry out the regular functions and duties of the office as defined by the laws of this state, and to be compensated for him services at the rate and manner equal to that paid a duly elected full-time prosecuting attorney of LaPorte County during the time of Respondent’s suspension.

IT IS FURTHER ORDERED that during the period of Respondent’s suspension, all payments to him for services as prosecuting attorney shall be discontinued.

The Clerk of this Court is directed to forward notice of this Order to the parties or their respective attorneys, to Robert D. Neary, Office of the LaPorte County Prosecuting Attorney, County Complex Building, Suite 501A, 809 State Street, LaPorte, IN, 46350; Hon. Thomas J. Alevizos, Judge, LaPorte County Circuit Court, 813 Lincolnway, Suite 303, La Porte, Indiana 46350; Hon. Kathleen B. Lang, Judge, LaPorte County Superior Court No. 1, 300 Washington Street, Michigan City, Indiana 46360; Hon. Richard Stalbrink, LaPorte County Superior Court No. 2, 300 Washington Street, Michigan City, Indiana 46360; Hon. Jennifer L. Koethe, Judge, LaPorte County Superior Court No. 2, 809 State Street, LaPorte, Indiana 46350; Hon. William Boklund, LaPorte County Superior Court No. 4, 300 Washington Street, Michigan City, Indiana 46360; the Division of State Court Administration, payroll department; and Craig Hinchman, Auditor of LaPorte County, 555 Michigan Ave. Suite 205, LaPorte, IN, 46350. The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of William F. CONOUR, Respondent.
    No. 49S00-1205-DI-285.
    Supreme Court of Indiana.
    June 29, 2012.
   PUBLISHED ORDER ACCEPTING RESIGNATION AND CONCLUDING PROCEEDING

BRENT E. DICKSON, Chief Justice.

A “Verified Complaint for Disciplinary Action” against Respondent was filed on May 24, 2012. Respondent has now tendered to this Court a resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 23(17).

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately. The Clerk of this Court is directed to record Respondent’s resignation on the Roll of Attorneys. Respondent shall fulfill all the applicable duties under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED that all attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent’s resignation from the bar of this State, subject to consideration of pending allegations in the event there is a petition for reinstatement.

Respondent shall be ineligible to petition for reinstatement to the practice of law for five years from the date of this order. See Admis. Disc. R. 23(4)(a). Approval of a petition for reinstatement is discretionary and requires clear and convincing evidence of the petitioner’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

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

All Justices concur.