author: David, Justice.

text:
    HAMILTON SOUTHEASTERN UTILITIES, INC., Appellant (Petitioner below), v. INDIANA UTILITY REGULATORY COMMISSION, et al., Appellees (Respondents below).
    Supreme Court Case No. 18S-EX-49
    Supreme Court of Indiana.
    Filed June 27, 2018
    ATTORNEYS FOR APPELLANT: Randolph L. Seger, Brian W. Welch, Michael T. Griffiths, Bingham Greenebaum Doll, LLP, Indianapolis, Indiana
    ATTORNEYS FOR APPELLEES: Curtis T. Hill, Jr., Attorney General of Indiana, Thomas M. Fisher Solicitor General, Patricia C. McMath, Lara Langeneckert, Julia C. Payne, Deputy Attorneys General, Beth E. Heline, Jeremy Comeau, Indiana Utility Regulatory Commission, Indianapolis, Indiana, William Fine, Daniel M. Le Vay, Scott C. Franson, Abby R. Gray, Indiana Office of Utility Consumer Counselor, Indianapolis, Indiana
    On Petition to Transfer from the Indiana Court of Appeals, No. 93A02-1612-EX-2742
   David, Justice.

In response to a low rate of return over a six-year period, Hamilton Southeastern Utilities, Inc. ("HSE") petitioned the Indiana Utility and Regulatory Commission ("the Commission") to approve an 8.42% increase in its rates. The Commission, in several findings of fact, authorized a rate and charges increase much lower than HSE requested. HSE appealed the Commission's decision and named the Commission as a respondent. Upon HSE's motion, and over the Commission's objection, the Court of Appeals dismissed the Commission, concluding that it was not a proper party to the appeal. We now address whether the Commission was a proper party on appeal. As for the issue raised in the Indiana Office of Utility Consumer Counselor's ("the OUCC") petition-whether the Commission may include in HSE's revenue requirement the state and federal income taxes paid by HSE's individual shareholders-we summarily affirm the Court of Appeals.

Facts and Procedural History

HSE is a for-profit public utility that provides sewage collection and treatment services to customers in Hamilton County, Indiana. HSE relies on an affiliate company, Sanitary Management & Engineering Company, Inc. ("SAMCO"), to carry out the operation, maintenance, and engineering functions of HSE's sewage operations. As a public utility, HSE is subject to regulation by the Commission.

In a 2010 order, the Commission approved HSE to charge a flat monthly rate of $34.63 per single family unit and, in establishing that rate, it authorized a 9.8% rate of return. Since then, largely due to an aging system and sewage overflows, HSE incurred significant maintenance and operating costs, totaling over $11 million. These increased costs affected HSE's profitability; HSE averaged a 1.9% rate of return between 2009 and 2015-much lower than the Commission-approved 9.8%.

On September 24, 2015, HSE filed a rate case with the Commission requesting, in relevant part, approval of an 8.42% increase to its rates. The increase would produce just under $1 million of additional yearly revenue. The Commission conducted a hearing to consider HSE's petition. The OUCC, a state agency tasked with representing the interests of consumers in utility matters, advocated for a 14.01% rate reduction. The OUCC argued that HSE could operate more efficiently by ending its relationship with SAMCO and performing those tasks outsourced to SAMCO with in-house employees. After reaching certain agreements with the OUCC, HSE reduced its rate increase request to 6.27%.

The Commission ultimately approved an increase much lower than HSE had hoped for; it issued an order authorizing only a 1.17% increase in HSE's rates and charges. The Commission reasoned, in part, that expenses related to SAMCO should be eliminated from HSE's working capital allowance. The Commission did, however, authorize HSE to include in its rates the state and federal income tax liability that is passed through to, and paid by, HSE's shareholders.

HSE appealed, arguing that the Commission erred in excluding some expenses from its rates. The OUCC cross-appealed, arguing that HSE should not be permitted to recover income tax liability in its utility rate because, as an S Corporation, HSE has no tax liability of its own as a matter of law. Hamilton Southeastern Utils., Inc. v. Ind. Util. Regulatory Comm'n , 85 N.E.3d 612, 617, 625 (Ind. Ct. App. 2017). HSE initially named the Commission as an appellee-respondent, but then moved to dismiss the Commission, claiming that it had mistakenly identified the Commission as a party. Id. Over the Commission's objection, the Court of Appeals granted HSE's motion to dismiss the Commission. Id. at 626.

The Court of Appeals then made the following determinations: (1) the Commission acted arbitrarily in excluding SAMCO-related expenses (the 3% contract increase and 10% management fee) from HSE's rate calculation; (2) the Commission was within its discretion to exclude the paid-in-arrears SAMCO expenses from HSE's calculation of working capital; (3) the Commission did not err in its conclusion regarding HSE's system development charge based on the evidence presented;

and (4) the Commission properly permitted HSE to recover its passed-through income tax liability in its rates. Id.

The OUCC and the Commission filed separate petitions seeking transfer. We granted both petitions, thereby vacating the Court of Appeals' opinion. Ind. Appellate Rule 58(A).

Discussion and Decision

The OUCC and the Commission challenge separate portions of the Court of Appeals' decision. While the OUCC argues that the Commission erred in allowing HSE to include in its rate calculation federal and state income tax paid by shareholders-a determination that the Court of Appeals affirmed-the Commission argues that the Court of Appeals erred in granting HSE's motion to dismiss the Commission as an improper party on appeal. We elect to address only the Commission's question: whether the Commission was a proper party on appeal. As for the Commission's inclusion of income taxes in HSE's rate calculation, we summarily affirm the Court of Appeals.

I. The Commission was a proper party on appeal.

The Commission seeks to appear as a party on appeal to defend its own order, arguing that while other parties sometimes intervene to challenge the appellant's position, those third parties may not always represent the entirety of the Commission's interest in defending the order. We agree with the Commission and refrain from disturbing long-standing custom and practice that have treated the Commission as a proper party on appeal for over a century.

A. The Legislature has remained silent on whether the Commission may appear on appeal.

Chapter 1, Article 1, Title 8 of the Indiana Code establishes the Commission, but sheds little light on the Commission's role on appeal. It instructs the Commission to "be an impartial fact-finding body" in all hearings it conducts and to "make its orders in such cases upon the facts impartially found by it." Ind. Code § 8-1-1-5(a). It also explains that "[t]he [C]ommission shall in no such proceeding, during the hearing, act in the role either of a proponent or opponent on any issue to be decided by it." Ind. Code § 8-1-1-5(a). But these mandates set forth the Commission's impartiality in its own proceedings , not when defending its orders on appeal.

Of course, absence of legislative guidance on the Commission's role on appeal does not create a presumption that the Commission's participation in defending its own rulings is permitted. So, we turn to other factors to be sure that the Commission should remain a named party. Specifically, we examine custom, practice, and public policy.

B. Long-standing custom and practice persuades us that the Commission should continue appearing on appeal as it deems necessary.

The legislature may not have yet weighed in on whether the Commission may appear on appeal, but custom and practice favor the Commission's position. For over a century, the Commission and its predecessor, the Public Service Commission, have defended appeals from its final order on numerous occasions. See generally Winfield v. Pub. Serv. Comm'n , 187 Ind. 53, 118 N.E. 531 (1911) (defending an order increasing telephone company rates); Kosciusko County Rural Electric Membership Corp. v. Pub. Serv. Comm'n , 225 Ind. 666, 77 N.E.2d 572 (1948) (defending an order granting a certificate of public convenience and necessity to a service company);

Sizemore v. Public Service Comm'n , 133 Ind.App. 51, 177 N.E.2d 743 (1961) (defending an order modifying interstate telephone rates); Stucker Fork Conservancy Dist. v. Ind. Util. Regulatory Comm'n , 600 N.E.2d 955 (Ind. Ct. App. 1992) (defending an order classifying a district as a "public utility"); Nextel W., Corp. v. Ind. Util. Regulatory Comm'n , 831 N.E.2d 134 (Ind. Ct. App. 2005) (defending an order establishing and administering an Indiana Universal Service Fund). The Commission has ordinarily appeared on appeal to argue one of several positions: (1) that its order was in the public interest, (2) that it was based on the record evidence, or (3) that the Commission's decision is entitled to deference. Dismissal of the Commission runs counter to a long-standing practice of allowing it to defend its own orders-a practice that the legislature has left intact by remaining silent throughout the past one hundred years.

Moreover, similarly situated executive branch agencies enjoy the ability to defend their decisions on appeal, both through explicit legislative directive and as a result of legislative acquiescence to custom and practice. Unlike in appeals from other Indiana administrative agencies, appeals of the Commission's final orders skip the trial court and are taken directly to the Court of Appeals. Ind. Appellate Rule 9(A)(3). Indiana has three other administrative agencies for which judicial review bypasses the trial court and is heard in the first instance by the Court of Appeals; those agencies are the Workers Compensation Board, the Indiana Civil Rights Commission ("the ICRC"), and the Review Board of the Department of Workforce Development ("the Review Board"). Ind. Appellate Rules 2(A), 9(A)(3). Two of the three agencies-the ICRC and the Review Board-appear regularly to defend their orders on appeal. While the Review Board appears on all appeals of its orders because appellants are statutorily mandated to name it as an appellee, Ind. Code § 22-4-17-12(b), statutes governing the ICRC are silent on whether the ICRC is a proper party to an appeal of its own order. Yet, like the Commission, the ICRC regularly appears on appeals and we summarily affirmed the ICRC's ability to challenge its own orders, finding that the ICRC has an interest in ensuring that its orders are enforced. Filter Specialists, Inc. v. Brooks , 879 N.E.2d 558, 570 (Ind. Ct. App. 2007), vacated in part and summarily affirmed in part , 906 N.E.2d 835, 845 (Ind. 2009). We find that the Commission also has an interest in ensuring that its orders are enforced. That interest is critical to its mission, and favors permitting the Commission's participation in defending challenged orders.

C. Public policy also supports a finding that the Commission should not have been dismissed.

As the Commission noted in its briefing, sometimes in cases involving issues for which no parties with opposed interests come forward, the Commission ends up being the only appellee. In other cases where parties with opposed interests do challenge the appellant, the Commission may still be the only appellee to submit a brief. Although the case at bar involves opposing parties advocating for competing interests, we worry that a holding as broad as HSE suggests and the Court of Appeals has issued-dismissing the Commission as an improper party by virtue of its role as a neutral fact finder-would not only do away with long-standing practice that the legislature has not disturbed in over one hundred years, but would also frustrate the effectiveness of challenges to appeals given that other parties seldom represent the entirety of the Commission's interests. And in those instances where the Commission concludes that its interests are adequately represented, it can simply choose not to participate in the appeal. We find that the Commission's collective expertise puts it in a favorable position to determine whether its interests are being adequately represented. Requiring the Commission to petition to intervene promotes inefficiencies and the potential for unnecessary litigation and/or appeals. The Commission's ability to determine when its participation is necessary to defend its orders on appeal promotes a more efficient appeals process and upholds a century of accepted practice in the courts.

II. Neither the Commission's administrative role nor the existence of competing parties on appeal persuade us that the Commission should be deemed an improper party.

HSE makes several arguments against allowing the Commission to appear as a party, but we do not find those arguments sufficiently persuasive.

In response to the Commission's petition, HSE frames the Commission's role in its initial proceedings as judicial in nature, but that is far from accurate. The Commission's main function in this proceeding was not adjudicative; rather, it was legislative in nature. The Commission carries broad authority for regulatory oversight of all public utilities and, in doing so, it sets rates for HSE. "[R]ate-making is a legislative, not a judicial function ...." Pub. Serv. Comm'n v. City of Indianapolis , 235 Ind. 70, 131 N.E.2d 308 (1956). When HSE filed a petition with the Commission, it was not to settle a dispute with another party. It sought permission to increase its rates. The Commission uses its technical expertise to set rates that are reasonable for ratepayers while also allowing a reasonable profit for the utility, which incentivizes it to remain in business. As such, the proceedings that the Commission held were not akin to those before a trial court.

HSE further claims that the Commission is an unnecessary party because, even without the Commission, there are "clearly opposing parties advocating for competing interests." Consol. Brief of Hamilton Southeastern Utilities in Response to Petitions to Transfer at 19. As explained above, while there certainly are opposing parties with competing interests involved here, that is not always the case. Sometimes the Commission is the only appellee. And even where other appellees participate in an appeal, the participating parties' interests do not necessarily encompass the entirety of the Commission's interest in defending the order.

Here, two appellees opposed HSE's appeal: the OUCC and the Commission. The Commission's dismissal left only the OUCC as an appellee, but the OUCC and the Commission's interests did not align perfectly. While the OUCC is tasked with protecting consumers in utility matters-an interest that overlaps with the Commission-the Commission's interests are much broader than those of the consumer protection agency (and in some instances, the interests conflict with one another). The Commission's role "is to insure [sic] that the public utilities provide constant, reliable, and efficient service to the citizens of Indiana." N. Indiana Pub. Serv. Co. v. U.S. Steel Corp. , 907 N.E.2d 1012, 1015 (Ind. 2009). The OUCC even argued against portions of the Commission's order; specifically, the OUCC challenged the Commission's determination to include in HSE's rate calculation federal and state income tax paid by HSE's shareholders.

The Commission's administrative role was not adjudicative in nature. And, at least in some cases, only the Commission can fully defend its own orders on appeal. Accordingly, we are not persuaded by HSE's arguments and find that the Commission was a proper party to the appeal.

Conclusion

We reverse the Court of Appeals' dismissal of the Commission as a party and now hold that the Commission was a proper party to the appeal. Because the Court of Appeals found that the Commission acted arbitrarily in excluding SAMCO-related expenses from HSE's rate calculation without giving the Commission an opportunity to defend its order, we also reverse on that issue and remand to the Court of Appeals with instructions to permit the Commission an opportunity to brief the issue. As for the rest of the Court of Appeals' opinion, we summarily affirm.

Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.

      The Workers Compensation Board has no statute regulating its appearance on appeal, but it does not routinely appear as an appellee in appeals from its orders.

      The Commission does not defend all, or even most, of its orders on appeal, but does so when it determines the public interest is at stake.


source: Caselaw Access Project

license: Public Domain

text:
    Brian L. PAQUETTE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    Supreme Court Case No. 63S04-1709-CR-570
    Supreme Court of Indiana.
    Argued: October 12, 2017 Filed June 29, 2018
    ATTORNEYS FOR APPELLANT: Mark A. Bates, Schererville, Indiana, Thomas W. Vanes, Merrillville, Indiana
    ATTORNEYS FOR APPELLEE: Curtis T. Hill, Jr., Attorney General of Indiana, Andrew J. Kobe, Tyler G. Banks, Deputy Attorneys General, Indianapolis, Indiana
    On Petition to Transfer from the Indiana Court of Appeals, No. 63A04-1612-CR-02891
   David, Justice.

We are asked to resolve whether a defendant can be convicted of multiple felony resisting law enforcement charges when those charges stem from a single incident of resisting. For reasons discussed herein, we find that Indiana Code section 35-44.1-3-1 authorizes only one conviction for felony resisting law enforcement where the defendant engages in a single act of resisting while operating a vehicle that causes multiple deaths. Accordingly, we reverse the trial court and remand for revised sentencing.

Facts and Procedural History

On the evening of February 2, 2016, Indiana Police State Trooper James Manning ("Trooper Manning") was parked on the northbound shoulder of I-69, near Petersburg, Indiana. A motorist pulled over and informed Trooper Manning that he observed a blue Chevy Tahoe driving northbound on the southbound lanes of the interstate. Trooper Manning activated his patrol vehicle's emergency signals-the lights and siren-and gave chase, driving northbound on I-69. Shortly thereafter, he spotted a blue SUV driving on the wrong side of the road. Officers later learned that Brian L. Paquette was driving that vehicle.

As Trooper Manning approached the blue SUV, he aimed his spotlight at the fleeing vehicle. Trooper Manning then pulled into the median, and Paquette seemed to slow down. Instead of coming to a full stop, however, Paquette made a U-turn onto the northbound lane and continued driving on the wrong side of the road, this time heading south. Trooper Manning immediately veered onto the southbound road and followed Paquette, once again shining his spotlight at the blue SUV.

At the same time, several passenger vehicles traveled north on the northbound road. Among those was a vehicle occupied by Jason and Samantha Lowe, who were returning to their home in Fishers, Indiana after visiting Samantha's mother at an Evansville hospital. Also traveling northbound on I-69 were Stephanie Molinet and Autumn Kapperman, who were riding in a Ford Focus to pick up Kapperman's sister and her newly-born niece from Riley Hospital. Kapperman was expecting a child of her own at the time of the incident.

Trooper Manning followed in pursuit and Paquette continued southbound, driving between two northbound lanes. Within two miles of making the U-turn, Paquette's SUV collided head-on with Molinet's Ford Focus, striking the passenger side where Kapperman was seated. Molinet, Kapperman, and Kapperman's unborn child died as a result of the crash. The impact of the collision caused Paquette's Chevy Tahoe to flip over and land on the driver's side of the Lowe's vehicle, instantly killing Jason Lowe.

Paquette survived the crash. While officers waited for firefighters to extract Paquette from his vehicle, Paquette told an officer that, at the time of the crash, he believed he was being chased by farmers through a field. He also believed he was carrying a female passenger, but officers found no evidence of another passenger at the crash site.

The State charged Paquette with a total of eleven offenses. Among those were three counts for each of the following: resisting law enforcement by fleeing in a vehicle causing death, a Level 3 felony; operating a vehicle with methamphetamine in his blood causing death, a Level 4 felony; and reckless homicide, a Level 5 felony. Each duplicative count related to one of the three deceased victims. Paquette was also charged with operating a vehicle with methamphetamine in his body causing serious bodily injury to Samantha Lowe, a Level 6 felony; and possession of methamphetamine, a Level 6 felony.

Paquette agreed to plead guilty to all charges, but reserved the right to ask the court to enter only one conviction and sentence for the felony resisting law enforcement charge. Paquette argued that he engaged in only one act of resisting, thus conviction on all three resisting law enforcement felony charges-one for each deceased victim-violated a state and federal prohibition on double-jeopardy. On that issue, the trial court ruled against Paquette, finding that conviction and sentence on all three counts of resisting law enforcement was not barred by double-jeopardy protections.

The trial court then entered convictions on all three Level 3 felony counts of resisting law enforcement and on the charge of operating a vehicle with methamphetamine in his blood causing serious bodily injury. The court merged the remaining counts into the four aforementioned counts. For each of the three felony resisting law enforcement convictions, the trial court imposed 16-year sentences to be served consecutively. For the operating while intoxicated conviction, Paquette received a 2.5-year sentence to be served consecutively with the resisting sentences. In total, Paquette was to serve fifty-and-a-half years executed.

Paquette appealed, making a statutory argument instead of a constitutional one. He argued that, as written, Indiana's resisting law enforcement statute authorizes only one conviction for each act of resisting and that the trial court, therefore, erred when it entered three convictions and sentences against him. Relying on its own precedent in Armstead v. State , 549 N.E.2d 400 (Ind. Ct. App. 1990), the Court of Appeals reversed and remanded for revised sentencing. It held that the legislature intended only one conviction for each act of resisting, and since Paquette had only engaged in one act of resisting when he fled using a vehicle, he could be convicted of only one count of felony resisting law enforcement. Paquette v. State , 79 N.E.3d 932, 935-36 (Ind. Ct. App. 2017).

The State sought transfer, which we granted, thereby vacating the Court of Appeals' opinion. Ind. Appellate Rule 58(A).

Standard of Review

Matters of statutory interpretation, which inherently present pure questions of law, are reviewed de novo. Jackson v. State , 50 N.E.3d 767, 770 (Ind. 2016).

Discussion and Decision

The question we address today is identical to the one raised before our Court of Appeals: whether multiple convictions and sentences are permissible under Indiana Code section 35-44.1-3-1, where the defendant operated a vehicle in a manner that caused death to multiple people. The defendant, Paquette, was charged with several offenses, but only three felony resisting law enforcement counts are at issue here.

In relevant part, Indiana Code section 35-44.1-3-1 states that a person commits the crime of resisting law enforcement when he "knowingly or intentionally ... flees from a law enforcement officer after the officer has, by visible or audible means, including operation of the law enforcement officer's siren or emergency lights, identified himself ... and ordered the person to stop." Ind. Code § 35-44.1-3-1(a)(3).

Resisting law enforcement is ordinarily a Class A misdemeanor, but subsection (b) provides several exceptions. Notably, under paragraph (b)(3), the offense becomes a Level 3 felony if, while resisting law enforcement as described in subsection (a), "the person operates a vehicle in a manner that causes the death of another person ..." Ind. Code § 35-44.1-3-1(b)(3). Paquette's three counts for Level 3 felony resisting law enforcement relate to three victims killed as a result of his flight.

Whether Paquette resisted law enforcement was not the basis for the Court of Appeals' reversal and is not in dispute today. Paquette fled from an officer who was driving a marked police vehicle with the emergency lights and siren activated, and Paquette ignored the officer's signal to pull over. Likewise, whether Paquette operated the vehicle in a manner that caused death is clear; drug-induced hallucinations led Paquette to drive his vehicle on the wrong side of the interstate, which directly caused the death of three motorists who had the misfortune of crossing paths with Paquette. Instead, the Court of Appeals' reversal hinged on its interpretation of the relevant statute. It held that Indiana Code section 35-44.1-3-1 authorizes only one conviction where the offense stems from a single act of resisting law enforcement. "Because Paquette engaged in only one act of resisting," the Court of Appeals found that "he [could] be convicted and sentenced on only one count of resisting law enforcement." Paquette , 79 N.E.3d at 936.

The State challenges the Court of Appeals' holding, proposing a different interpretation of the statute. It argues that the trial court was correct in entering judgment on three counts of resisting law enforcement while operating a vehicle in a manner that caused death-one count for each deceased victim-because the legislature intended multiple convictions for multiple deaths resulting from the same act of resisting. Recognizing that our Court of Appeals is split on this issue, we granted transfer.

I. The Court of Appeals' reliance on its own precedent in Armstead v. State was not misplaced.

Our Court of Appeals relied heavily on Armstead , 549 N.E.2d at 400 to find that Paquette could not be convicted of multiple felony resisting law enforcement charges where a single act of resisting law enforcement led to multiple deaths. While Paquette urges us to adopt the Court of Appeals' holding in Armstead , the State argues that reliance on Armstead was entirely misplaced because Armstead dealt only with offenses against multiple officers. We begin by first addressing whether Armstead is inapplicable.

The Court of Appeals' reliance on Armstead was not misplaced because the Armstead court did not limit its holding to harms suffered by police officers. While it is true that the Armstead court addressed only section (a) and paragraph (b)(1) in its decision and made no mention of acts of resisting law enforcement that reach out into the public, the Armstead panel used language that suggests it intended its holding to extend to other portions of the statute-even those portions not at issue in that case. Two parts of the Armstead opinion come to mind in examining the extent of the holding's application. First, the court stated that "[t]he offenses set forth in title 35, art. 44, ch. 3 do not constitute crimes against the person." Armstead , 549 N.E.2d at 401. Second, it found that "[a] person who violates [ Indiana Code section] 35-44-3-3 harms the peace and dignity of the State ... and its law enforcement authority." Id. In both instances, the Armstead court referred to the entire statute instead of limiting its rationale to the portions that were at issue in the case. The court's broad language indicates that the panel deciding Armstead contemplated the impact its holding would have on other portions of the statute and intended it to apply to those as well. Thus, we find unpersuasive the argument that Armstead is inapplicable here because its holding has a narrow application.

We recognize that the statute in place at the time of the Armstead decision was different from the one used to convict Paquette, but we find the rationale used by the Court of Appeals to decide Armstead applies with equal force to the current version of the statute. When Armstead was decided, the resisting law enforcement statute was codified in Indiana Code section 35-44-3-3. The structure of the relevant subsections was essentially the same as it is now. The clause making it a felony to resist law enforcement while "operat[ing] a vehicle in a manner that causes the death of another person" was added as paragraph (b)(3) in 1993, see P.L. 248-1993, § 1, but its language is substantially similar to portions of the statute in the earlier version considered by the Armstead court. Specifically, paragraph (b)(2) strikes a significant resemblance to the paragraph at issue in this case. While paragraph (b)(2) in the earlier version made it a felony to resist law enforcement if the offense was committed by a person "operat[ing] a vehicle in a manner that cause[d] serious bodily injury to another person," Ind. Code § 35-44-3-3(b)(2) (1988), the paragraph at issue now enhances the resisting law enforcement offense where the defendant operates a vehicle, which causes death of another person. The only significant difference between the two is the degree of harm caused; the mode and subject of the harms stayed the same. Thus, if the Armstead holding was intended to apply to the entire statute in place at that time-including paragraph (b)(2)-it also applies to paragraph (b)(3) of the current statute.

To be clear, we reiterate that the specific facts of Armstead dealt only with injuries suffered by arresting officers, including a broken nose sustained by one of the arresting officers, but the State fails to consider that the statutory paragraph assessed in Armstead did not itself limit the felony enhancement to serious bodily injuries sustained by police officers. Rather, that portion served to enhance the offense of resisting law enforcement "if, while committing [the offense], the person operate[d] a vehicle in a manner that cause[d] serious bodily injury to another person." The critical language-"another person"-left open the possibility that serious bodily injury incurred by innocent by-standers could be the basis for a felony enhancement of a resisting law enforcement charge. Meanwhile, the portion of the statute that served to enhance Paquette's conviction shares the "other person" language that existed in the very paragraph the Armstead court considered. Accordingly, we cannot agree with the State that Armstead is inapplicable or that the Court of Appeals' reliance on its own holding was entirely misplaced.

II. Indiana Code section 35-44.1-3-1 permits only one conviction for each act of resisting.

Turning to the heart of the issue, we find that the resisting law enforcement statute, as written, was intended to permit only one conviction for each act of resisting, even where multiple deaths are caused by use of a vehicle.

While the Armstead decision is not inapplicable, it does not fully resolve the issue before us. The Armstead court was silent on whether subsection (b) creates a new and independent offense; it dealt only with a single offense under subsection (b). The present case, on the other hand, involves a claim that each death constitutes a new and independent offense, totaling three offenses under the same subsection. Nonetheless, we agree that the Armstead decision is helpful, and we find that it serves as a starting point to analyze the legislature's intent.

Throughout the Armstead opinion, the Court of Appeals referred to separate and discrete incidents that may be the basis for a conviction. To the extent that the Court of Appeals sought to highlight the separate and distinct incidents outlined in subsection (a), we find they were correct. Any of the several acts in subsection (a) constitute a separate offense of resisting law enforcement, and when more than one of those incidents occurs, we may uphold multiple resisting law enforcement convictions. Conversely, a single discrete incident can be the basis for only one conviction, no matter how many individuals are harmed. This is because, as the Armstead court noted, "a person who violates [the statute] harms the peace and dignity of the State of Indiana and its law enforcement authority." Armstead , 549 N.E.2d at 401. We agree with the Armstead panel that resisting law enforcement is inherently an offense against authority, not the individual officers. So, whether a defendant resists one officer or twenty-five officers, the offense remains the same.

The above principle applies equally when dealing with an offense under subsection (b). We find that an offense committed under subsection (b) continues to be a harm against the peace and dignity of the State because the offender is, at his core, still resisting law enforcement. As written, no new or independent offense is created when subsection (b) is invoked. Rather, subsection (b) enhances the degree of the offenses outlined in subsection (a). In other words, it merely moves the needle in terms of gravity. Thus, the offense that involves a single affray with police will continue to be a single harm to the peace and dignity of the State, regardless of how many other people are killed.

To be sure, we examine the statute's structure and language. Several features of the statute indicate that the legislature intended only to increase the gravity of the offense, not to create an entirely new offense for each individual injured or killed. First, we note that subsection (a)-which outlines the three ways in which a person knowingly or intentionally resists law enforcement-lays the foundation for the offense in question. In relevant part, it prohibits a person from fleeing from law enforcement where the officer has "by visible or audible means ... identified himself ... and ordered the person to stop." Ind. Code § 35-44.1-3-1(a)(3). Without this first subsection, the subsequent subsections outlined in the statute could not stand.

Second, the legislature's deliberate use of cross-referencing between subsections (a) and (b) bolsters our reading of the statute. Notably, subsection (a) states that each paragraph violated is deemed a Class A misdemeanor, "except as provided in subsection (b)." Ind. Code § 35-44.1-3-1(a). Subsection (b), then references back to subsection (a), noting that "[t]he offense under subsection (a)" can become a felony or felonies of varying levels, depending on certain factors. Ind. Code § 35-44.1-3-1(b). The deliberate manner of cross-referencing between subsections (a) and (b) indicates that, rather than a separate offense, the legislature intended subsection (b) to be an enhancement that stems from the foundation outlined in subsection (a).

Finally, while the use of the word "or" following paragraph (2) of subsection (a) makes clear that each paragraph in that subsection was intended to be a separate and distinct offense, the legislature chose to structure subsection (b) differently. It drafted the various paragraphs in the conjunctive, using the word "and" following paragraph (3). This indicates that the legislature aimed to accomplish something different with subsection (b). We think that the only logical reading of the statute is that the legislature intended the various paragraphs of subsection (b) to serve as enhancements of a single offense stemming from subsection (a).

For good measure, we compare Indiana Code section 35-44.1-3-1 to other statutes, which we find further supports our reading of the statute. Specifically, we analyze statutes where our legislature has expressly allowed convictions for each death caused by a single act. Indiana Code section 9-30-5-5, for example, addresses operating a vehicle while intoxicated and authorizes multiple convictions when multiple deaths occur. But its structure differs greatly from the resisting law enforcement statute at issue here. For starters, it makes operating a vehicle "while intoxicated" a stand-alone crime when it "causes the death of another person." Ind. Code § 9-30-5-5(a)(3). Subsection (e) goes on to expressly allow multiple convictions if multiple deaths occur; it provides that a person who violates the statute "commits a separate offense for each [victim] whose death is caused by the violation[.]" Moreover, we glean the legislature's intent to allow multiple convictions from the fact that the General Assembly added the provision in subsection (e) after we summarily affirmed the Court of Appeals' holding, which allowed only one conviction for one violation of the operating while intoxicated statute. P.L. 53-1994, § 6. We agreed with the Court of Appeals that, without express authorization, multiple convictions arising from a single incident could not stand, even if multiple deaths occurred.

Similarly, Indiana Code section 35-43-1-1, a statute making arson unlawful, proves instructive here. Subsection (a) of that statute outlines the various ways a person may commit arson and then enhances the underlying arson offense if "it results in serious bodily injury." We held in Mathews v. State , 849 N.E.2d 578 (Ind. 2006) that the version of the statute in place at the time allowed only one arson conviction, regardless of the number of people injured. There too, the General Assembly added a provision to the statute in response to our decision. While the current version of the arson statute neglects to make arson resulting in serious bodily injury a stand-alone offense, it explicitly allows separate convictions "for each person who suffers a ... serious bodily injury that is caused by violation of subsection (a) ...." Ind. Code § 35-43-1-1(e). Unlike the arson and operating a vehicle while intoxicated statutes, the resisting law enforcement statute is silent on multiple convictions when multiple deaths occur.

Ultimately, we find unpersuasive the State's contention that the legislature intended to create an independent criminal offense for each person killed when a defendant resists law enforcement using a vehicle. Nothing about the structure or language of the statute creates a new or independent offense and our inquiry into other similar statutes confirms our reading of Indiana Code section 35-44.1-3-1. Our legislature is aware that multiple convictions for multiple harms caused by a single violation require explicit authorization and we trust that they would have done so if that was their intent.

Since our legislature has drafted the resisting law enforcement statute without such explicit authorization and has otherwise remained silent, we glean its intent to allow only one resisting law enforcement conviction for each act of resisting. Subsection (b) merely enhances the underlying offenses in subsection (a), thus the number of resulting deaths does not affect the number of convictions allowed-only one is permissible. To find otherwise would require us to engraft language into a statute, which we have repeatedly said we may not do. See Indiana Alcohol & Tobacco Comm'n v. Spirited Sales, LLC , 79 N.E.3d 371, 376 (Ind. 2017) ("We may not add new words to a statute which are not the expressed intent of the legislature"); see also Kitchell v. Franklin , 997 N.E.2d 1020, 1026 (Ind. 2013) ("Further, [c]ourts may not engraft new words onto a statute or add restrictions where none exist") (internal citations and quotation omitted). Accordingly, we find that Paquette could not be convicted of multiple resisting law enforcement charges stemming from a single act of resisting.

Conclusion

We find that Paquette could not be convicted of more than one felony resisting law enforcement charge where multiple deaths occurred from a single act of resisting. Because our decision is premised on the statute, we need not conduct a double-jeopardy analysis. Our resisting law enforcement statute does not create a new offense for each death that occurs. Instead, it enhances the underlying resisting law enforcement conviction's degree in circumstances where the offense is committed using a vehicle in a manner that causes another person's death. Without explicit authorization for multiple convictions arising out of the same act, we cannot find that Paquette's three felony resisting law enforcement convictions can stand. Accordingly, we reverse the trial court as to two of the three convictions for felony resisting law enforcement. Since one of Paquette's other offenses allows for multiple convictions based on a single act of operating a vehicle, we remand for the trial court to enter convictions under that statute for all victims and instruct the trial court to sentence accordingly.

Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.

      Paquette also argued that the sentence imposed by the trial court was inappropriate, but the Court of Appeals declined to address that argument because Paquette's sentence would be modified on remand as a result of its decision.

      In 1990, subsections (a) and (b) of the statute provided:
      (a) A person who knowingly or intentionally:
      (1) Forcibly resists, obstructs, or interferes with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of his duties as an officer;
      (2) Forcibly resists, obstructs, or interferes with the authorized service or execution of a civil or criminal process or order of a court; or
      (3) Flees from a law enforcement officer after the officer has, by visible or audible means, identified himself and ordered the person to stop;
      Commits resisting law enforcement, a Class A misdemeanor, except as provided in subsection (b).
      (b) The offense under subsection (a) is a:
      (1) Class D felony if, while committing it, the person draws or uses a deadly weapon, inflicts bodily injury on another person, or operates a vehicle in a manner that creates a substantial risk of bodily injury to another person; and
      (2) Class C felony if, while committing it, the person operates a vehicle in a manner that causes serious bodily injury to another person ....
      Ind. Code § 35-44-3-3 (1988).


text:
    In the MATTER OF: Jill N. HOLTZCLAW, Respondent
    Supreme Court Case No. 18S-DI-206
    Supreme Court of Indiana.
    FILED July 17, 2018
    Published Order Certifying Termination of Noncooperation Suspension
    Pursuant to Indiana Admission and Discipline Rule 23 (10.1)(c), this Court suspended Respondent from the practice of law in this State for failing to cooperate with the Indiana Supreme Court Disciplinary Commission concerning a grievance, No. 18-1055 , filed against Respondent. On July 13, 2018, the Executive Director of the Disciplinary Commission filed a "Certification of Compliance," stating that Respondent has now cooperated with its investigation.
    The Court therefore ORDERS that Respondent's suspension from the practice of law for failure to cooperate in this case be shown as terminated as of July 13, 2018. Respondent, however, is under another suspension order entered in Case No. 18S-MS-306, which remains in effect.


author: Brown, Judge. Riley, Judge, dissenting.

text:
    Michael FLOWERS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 10A01-1703-CR-586
    Court of Appeals of Indiana.
    FILED April 18, 2018
    Attorney for Appellant: Christopher Sturgeon, Clark County Public Defender's Office, Jeffersonville, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana
   Brown, Judge.

[1] Michael Flowers appeals the trial court's revocation of his placement in a community corrections program. Flowers raises one issue which we revise and restate as whether the doctrine of res judicata precludes the trial court's revocation of his placement. We reverse and remand.

Facts and Procedural History

[2] On September 27, 2012, Flowers entered a plea agreement in which he agreed to plead guilty to aggravated battery as a class B felony and the State agreed to dismiss the remaining counts against him. The plea agreement provided that Flowers would be sentenced to sixteen years executed at the Department of Correction and that the State had no objection to Flowers serving the "last six (6) year term (three (3) years actual) in the Clark County Work Release Program." Appellant's Appendix Volume II at 140. The court's sentencing order states that it accepted Flowers's plea and "sentences [him] to the Indiana Department of Correction for a sixteen (16) year-executed term of imprisonment." Id. at 156. The order also states: "The State has no objection to [Flowers] serving the last six (6) year term (three (3) years actual) in the Clark County Work Release Program if approved by the Court." Id.

[3] On December 7, 2016, the State filed a Petition to Revoke Placement in Community Corrections Work Release alleging that Flowers failed to follow the rules of the Clark County Community Corrections Program by: "[p]ositive drug screen for Methamphetamine on 11/22/2016. Mr. Flowers admitted to the use of Methamphetamine and signed an admission form stating that he used said substance on 12/7/2016"; having "multiple late returns to the work release facility ranging from 5 minutes to over an hour"; and being in arrears in program fees in the amount of $7,210.50. Id. at 161.

[4] On January 18, 2017, the court held a hearing on the petition to revoke placement. Flowers admitted to the violations. Valerie, Flowers's case manager, indicated she believed Flowers's behavior would prevent him from qualifying to re-enter community corrections. She testified that Flowers "could not comply with the terms and conditions of Work Release." Transcript Volume II at 18. The prosecutor recommended that Flowers serve the remainder of his sentence in the Department of Correction. Flowers's counsel recommended that the court modify the sentence and order Flowers to serve the balance of his sentence on home incarceration. The court found that Flowers violated the terms and conditions of work release, granted the change of placement, and stated that "the executed portion, balance of the executing portion of the sentence be served as a direct placement in the Clark County Community Corrections and is given credit for forty-two (42) actual days good time credit." Id. at 28.

[5] On January 24, 2017, Flowers's counsel filed a Notice of Withdrawal of Public Defender. On January 26, 2017, the court held a hearing at which it stated, "I think that you entered, placed you back on the, to Community Corrections," and "[f]or some reason, Judge, I was out, Judge South has not been back to sign an order. I went ahead and signed it." Id. at 29. The court informed Flowers "this is a zero tolerance policy," and Flowers stated that he understood. Id. The court also told Flowers that it was sending him to the community corrections program.

[6] In a letter dated January 31, 2017, Clark County Community Corrections Director Lindon Dodd wrote to the trial court informing it that the Clark County Community Corrections "feels that ... Flowers no longer qualifies to be in this program" and that "[t]here are numerous violations and other actions that I feel justified denying him to return to Community Corrections." Appellant's Appendix Volume II at 226. Director Dodd requested that Flowers not be returned to the program.

[7] On February 2, 2017, Flowers filed a letter with the court which stated in part:

On 1-30-17 I had Jerry from "Jerry's Place" to speak with [Director Dodd] of the Clark County [Community] Corrections and was told [Director Dodd] was going to go against the court order and not allow [me] to return or be placed in the Clark County [Community] Corrections on house arrest because he has personal reasons for Director [Dodd] not to let me out of jail.
I Michael Flowers am asking the Clark County Circuit Court to be brought before this court again for a[ ] possible alternative placement of probation over that [Community] Corrections.
An[d] to be brought before the Clark County Circuit Court an[d] be told why [Director Dodd] of the Clark County [Community] Corrections can refuse a court order that was signed on 1-26-17 because of personal reasons.
And if I can be released until this matter is brought before your court I am being illegally detained in the Clark County Jail after my placement hearing.

Id. at 228-229.

[8] On February 15, 2017, the court held a revocation hearing. At the beginning of the hearing, Flowers's counsel objected to the proceedings and asked the court to execute the prior orders made by the court on January 18th. The court noted the objection, provided the background of the case, and noted that the court was informed on February 1, 2017, that Flowers "did not qualify or that they were not accepting Mr. Flowers back into the Community Corrections Program." Transcript Volume I at 4. The court stated: "We will note your objection to the previously ordered-order of the Court by Senior Judge Nicholas South on January 18th, 2017 and we will note that any court order by a senior judge can be reviewed by the presiding judge, as well as modified or altered by the presiding judge." Id. The court also stated:

The problem we have here is Community Corrections isn't willing to accept Mr. Flowers. I can't order them to accept him, it's their program. Similar to the Department of Corrections, I don't have the authority to tell the Department of Corrections what to do. If they're not willing to accept Mr. Flowers, then I don't have anything but to allow him to serve the remainder of his sentence.

Id. at 4-5.

[9] Flowers's counsel then moved to withdraw the admission that was made on January 18th, and the court granted the motion. Galadriel Ballard testified that Flowers violated the terms and conditions for not using any drugs or substances not prescribed by a doctor. He also testified that the late returns resulted in unaccounted time which was a violation of the work release process and that Flowers did not pay program fees in excess of $7,000. Ballard testified that he listed the dates for the late returns of about seventeen in total spanning a little over a year. He also testified that it was the position of the Clark County Community Corrections that it would not welcome Flowers back to community corrections. Director Dodd testified that he thought Flowers was a danger to the community and to himself.

[10] Flowers's counsel made an offer of proof stating that he thought the testimony would show that Flowers was a suspect or a person of interest in a murder investigation of two people that involved a cell phone that was allegedly identified to "this individual" and that Flowers would "deny any involvement in any of that sort of thing." Id. at 19. The court noted the offer of proof.

[11] The prosecutor requested the court to find that Flowers violated the terms of the work release program and that he serve the remainder of his sentence. Flowers's counsel asked the court to find that the punishment that had been imposed on Flowers to that point was adequate "for those violations, if accepted as true, and to direct the Community Corrections to accept him as Judge South had and to disregard, as the Court indicated, the underlying real reasons as to why we're here." Id. at 20.

[12] The court found that Flowers violated the terms of the community corrections program and granted the request of the community corrections program to revoke Flowers's placement in the program.

Discussion

[13] The issue is whether the doctrine of res judicata precludes the trial court's revocation of Flowers's placement in the community corrections program. Flowers asserts that the February 15, 2017 hearing on the State's petition to revoke placement in community corrections was barred by res judicata . The State argues that the doctrine of res judicata did not bar the revocation of Flowers's placement in community corrections. It asserts that Flowers's status or his placement with community corrections was heard over the course of three separate hearings and that evidence at the third hearing was not presented at the earlier two hearings. The State also asserts that the doctrine of res judicata does not apply to a proceeding like this one, which is not treated as an adversarial criminal proceeding.

[14] The Indiana Supreme Court has held that "[r]es judicata is a legal doctrine intended 'to prevent repetitious litigation of disputes that are essentially the same, by holding a prior final judgment binding against both the original parties and their privies.' " Ind. State Ethics Comm'n v. Sanchez , 18 N.E.3d 988, 993 (Ind. 2014) (quoting Becker v. State , 992 N.E.2d 697, 700 (Ind. 2013) ). "It applies 'where there has been a final adjudication on the merits of the same issue between the same parties.' " Id. (quoting Gayheart v. Newnam Foundry Co., Inc. , 271 Ind. 422, 426, 393 N.E.2d 163, 167 (1979) ).

[15] Generally, Ind. Code § 11-12-1-1 defines a community corrections program as:

a community based program that provides preventive services, services to offenders, services to persons charged with a crime or an act of delinquency, services to persons diverted from the criminal or delinquency process, services to persons sentenced to imprisonment, or services to victims of crime or delinquency, and is operated under a community corrections plan of a county and funded at least in part by the state subsidy provided in IC 11-12-2.

Ind. Code § 35-38-2.6-2 defines a community corrections program as "a program consisting of residential and work release, electronic monitoring, day treatment, or day reporting that is: (1) operated under a community corrections plan of a county and funded at least in part by the state subsidy provided under IC 11-12-2; or (2) operated by or under contract with a court or county." Ind. Code § 35-38-2.6-4.2(a) provides that "[a] community corrections program shall establish written criteria and procedures for determining if an offender or alleged offender is eligible for direct placement supervision under this chapter." Ind. Code § 35-38-2.6-4.2(b) provides that "[t]he criteria and procedures established under subsection (a) must establish a record keeping system that allows the department or community corrections program to quickly determine if an offender or alleged offender is in violation of the terms of a direct placement order issued under this chapter." We also observe that Ind. Code § 33-23-2-4 provides: "All courts retain power and control over their judgments for ninety (90) days after rendering the judgments in the same manner and under the same conditions as they retained power and control during the term of court in which the judgments were rendered."

[16] We have previously held:

For purposes of appellate review, we treat a hearing on a petition to revoke a placement in a community corrections program the same as we do a hearing on a petition to revoke probation. The similarities between the two dictate this approach. Both probation and community corrections programs serve as alternatives to commitment to the [Department of Correction] and both are made at the sole discretion of the trial court. A defendant is not entitled to serve a sentence in either probation or a community corrections program. Rather, placement in either is a matter of grace and a conditional liberty that is a favor, not a right.

Withers v. State , 15 N.E.3d 660, 663-664 (Ind. Ct. App. 2014) (quoting Monroe v. State , 899 N.E.2d 688, 691 (Ind. Ct. App. 2009) (citations and quotation marks omitted) ).

[17] To the extent Flowers asserts that there was nothing new at the February 15th hearing, we disagree. Following the trial court's order in January that Flowers be placed in the community corrections program, the director of the community corrections program informed the court that he felt justified denying Flowers's return to community corrections and requested that Flowers not be returned to the program. Further, Flowers sent a letter to the court essentially requesting a hearing. Under these circumstances and in light of Ind. Code § 33-23-2-4, we cannot say that the doctrine of res judicata warrants reversal.

[18] Nonetheless, we believe the trial court's analysis was flawed in two respects warranting remand for reconsideration and entry of a new order. First, we note that the trial court stated at the February 15, 2017 hearing that "any court order by a senior judge can be reviewed by the presiding judge, as well as modified or altered by the presiding judge." Transcript Volume I at 4. This statement equates the role and authority of a senior judge with that of a commissioner or a magistrate, which finds no support in the law. Ind. Code § 33-23-3-3 sets forth the powers and duties of senior judges and plainly states that a senior judge who is appointed to serve in a county may, with the consent of the circuit court judge (which, presumably, occurred in this case, as Judge South was permitted to preside over the first revocation hearing) "sit as the judge of the consenting judge's court in any matter as if the senior judge were the elected judge or appointed judge of the court." In other words, a court order entered by a senior judge must be treated precisely the same as any order entered by any presiding judge. The trial court was, in fact, entitled to revisit Judge South's order, but not because of his status as a senior judge. Instead, the trial court was permitted to do so by virtue of Ind. Code § 33-23-2-4, which, as previously noted, provides that all courts "retain power and control over their judgments for ninety (90) days after rendering the judgments in the same manner and under the same conditions as they retained power and control during the term of court in which the judgments were rendered."

[19] Second, the trial court believed that its proverbial hands were tied by the refusal of Community Corrections to accept Flowers as a client: "The problem we have here is Community Corrections isn't willing to accept Mr. Flowers. I can't order them to accept him, it's their program." Transcript Volume 1 at 4-5. This analysis is flawed. Ind. Code § 35-38-2.6-5 is the primary statutory source of authority given to Community Corrections programs. That statute authorizes the Community Corrections Director to choose between the following courses of action if a client violates the terms of the placement:

(1) Change the terms of the placement.
(2) Continue the placement.
(3) Reassign a person assigned to a specific community corrections program to a different community corrections program.
(4) Request that the court revoke the placement and commit the person to the county jail or department of correction for the remainder of the person's sentence.
The community corrections director shall notify the court if the director changes the terms of the placement, continues the placement, or reassigns the person to a different program.

Ind. Code § 35-38-2.6-5 (emphasis added). The statute reveals that the Community Corrections program is not authorized to make the decision to revoke; instead, it must make that request of the court, which then has the authority to grant or deny the request. The final sentence of the statute, which omits a possibility of a Community Corrections program conducting a sua sponte revocation, emphasizes the fact that the program has no right to do so.

[20] The trial court was incorrect to believe that it was required to accept the Community Corrections program's decision to revoke Flowers's placement. Instead, the trial court should have treated that decision as a request for the court to revoke Flowers's placement, which it would have been free to grant or deny. See Morgan v. State , 87 N.E.3d 506, 510 (Ind. Ct. App. 2017) ("With the statute at issue, the community corrections director is given the ability to manage the community corrections program but not to revoke placement or resentence participants. Although the community corrections director can recommend revocation of placement, it remains the trial court's duty to determine whether revocation will be ordered."), trans. denied . We also note that even if the trial court chose to grant the request that Flowers not be readmitted to Community Corrections, it was not bound to remand Flowers to the Department of Correction as the court could have considered other alternatives as well.

[21] It may very well be that the trial court will ultimately arrive at the same determination. Nevertheless, we remand so that the trial court can reconsider its decision by making a proper analysis and then enter a new order.

Conclusion

[22] For the foregoing reasons, we reverse and remand.

[23] Reversed and remanded.

Baker, J., concurs.

Riley, J., dissents with separate opinion.

Riley, Judge, dissenting.

[24] I find the majority's analysis concerning the trial court's statements about the authority of both senior judges and Community Corrections is wholly irrelevant to the issue before this court on appeal. Therefore, I dissent. Simply, Indiana Code section 33-23-2-4 authorized the trial court to modify the January 18, 2017 order granting placement in Community Corrections within ninety days. During that timeframe, based upon the recommendation of Community Corrections that Michael Flowers was not qualified for the program, the trial court properly ordered his revocation in accordance with Indiana Code section 35-38-2.6-5(4). Accordingly, I would affirm the trial court.

      Both parties cite to a copy of the plea agreement found in the presentence investigation report. The table of contents in the Appellant's Appendix lists "Statement of Plea Agreement; September 27, 2012" as appearing on pages 114-121. Appellant's Appendix Volume I at 4. Unlike the plea agreement found in the presentence investigation report, the plea agreement beginning on page 114 includes the handwritten phrase "IF APPROVED BY THE COURT" following the statement: "The State has no objection to the Defendant serving the last six (6) year term (three (3) years actual) in the Clark County Work Release Program." Appellant's Appendix Volume II at 117.

      A chronological case summary ("CCS") entry dated January 18, 2017, states: "Court orders Defendant be placed in the Clark County Community Corrections Program for the remainder of executed sentence, with credit for 42 actual days. Senior Judge Nicholas South presiding." Appellant's Appendix Volume II at 10. The record does not contain a separate order dated January 18, 2017.

      The CCS states that Flowers was represented by counsel.

      A CCS entry states in part: "Defendant to be released to Community Corrections." Appellant's Appendix Volume II at 11. The record does not contain a copy of a separate order.

      To the extent Flowers cites Shumate v. State , 718 N.E.2d 1133 (Ind. Ct. App. 1999), we do not find that case instructive. In Shumate , we addressed whether a decision by this Court reversing the revocation of probation constituted a final judgment on the merits that precluded relitigation. 718 N.E.2d at 1135. We held that the reversal of the trial court's judgment revoking Shumate's probation was a judgment on the merits and satisfied the "judgment on the merits" element of res judicata. Id. at 1136. Here, we are not confronted with a prior appellate decision reversing a revocation of a placement in community corrections. Thus, we find Shumate distinguishable.


author: Bradford, Judge.

text:
    Kavonya JONES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 49A02-1708-CR-1950
    Court of Appeals of Indiana.
    FILED April 20, 2018
    Attorney for Appellant: Rory Gallagher, Marion County Public Defender, Appellate Division, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Marjorie Lawyer-Smith, Deputy Attorney General, Indianapolis, Indiana
   Bradford, Judge.

Case Summary

[1] On September 16, 2016, Kavonya Jones fled from police officers who were trying to locate an individual who was thought to be her boyfriend. She was subsequently charged with and convicted of Class A misdemeanor resisting law enforcement and Class A misdemeanor driving while suspended. On appeal, Jones challenges her conviction for resisting law enforcement. Specifically, Jones contends that the evidence is insufficient to sustain her conviction. Alternatively, she contends that the trial court erred in instructing the jury and in finding that alleged prosecutorial misconduct did not warrant a mistrial. Concluding that the evidence is sufficient to sustain the challenged conviction and finding no error by the trial court, we affirm.

Facts and Procedural History

[2] At approximately 12:30 p.m. on September 16, 2016, Corporal Travazz Buckley, Deputy Brandon Berry, and Lieutenant Kenny Sanders (collectively, "the Officers"), all of the Marion County Sherriff's Department, were on duty working with the Department's warrant unit in Indianapolis. The Officers were attempting to locate Tyrone Esters, who had outstanding warrants for battery on law enforcement and burglary. Esters was described to the Officers as a "dark-complected, medium-sized male" who was about six feet tall and was known to change his hairstyle, sometimes wearing his hair in "dreads." Tr. Vol. II, p. 17.

[3] While attempting to locate Esters, the Officers conducted surveillance on a residence located at 4630 East 34th Street. The Officers chose this residence "based on information that [Jones] was living at the address and [because Lieutenant Sanders] had serval prior contacts with [Jones and] knew she was associated with" Esters. Tr. Vol. II, p. 16. Specifically, Jones "was known to [Lieutenant Sanders] as the girlfriend of Tyrone Esters at the time." Tr. Vol. II, p. 18. The Officers had also received information that Esters could be driving a gold "Chevy Malibu." Tr. Vol. II, p. 161. Lieutenant Sanders knew that Jones frequently drove a gold Malibu. While Corporal Buckley watched the residence, Lieutenant Sanders and Deputy Berry waited in a nearby parking lot.

[4] Corporal Buckley observed Jones drive away from her residence in the gold Malibu. When Jones returned a short time later, Corporal Buckley observed a black male who appeared to match Esters's general description in the passenger seat of the vehicle. Corporal Buckley informed the other officers that he may have spotted their target. They then made their way to Jones's residence. Once Lieutenant Sanders arrived, he pulled his vehicle behind the gold Malibu and he and Corporal Buckley activated their emergency lights.

[5] After the Officers activated their emergency lights, Jones accelerated her vehicle such that "a little bit of dust kicked up." Tr. Vol. II, p. 163. Corporal Buckley was forced to swerve to avoid being hit by Jones who pulled out on to 34th Street "without stopping at the stop sign." Tr. Vol. II, p. 165. Jones then turned onto Drexel Avenue before stopping. Corporal Buckley testified that Jones "knows [his] truck" and that his lights and sirens were on as he approached her vehicle. Tr. Vol. II, p. 10.

[6] After Jones stopped her vehicle, the Officers ordered both Jones and the passenger to exit the vehicle. Once out of the vehicle, it was clear to the Officers that the passenger was not Esters. Nevertheless, Jones was placed under arrest for fleeing from the Officers and for driving with a suspended license.

[7] On September 17, 2016, the State charged Jones with Class A misdemeanor resisting law enforcement by fleeing and Class A misdemeanor driving while suspended. Before the matter proceeded to trial, Jones filed a motion to suppress in which she alleged that her arrest was illegal because the Officers did not have reasonable suspicion to stop her. Following a hearing, the trial court denied Jones's motion. At the end of trial, a jury found Jones guilty as charged.

Discussion and Decision

[8] On appeal, Jones challenges her conviction for resisting law enforcement. Specifically, Jones contends that the evidence is insufficient to sustain her conviction. Alternatively, she contends that the trial court erred in instructing the jury and in finding that the deputy prosecutor's alleged misconduct did not warrant a new trial.

I. Sufficiency of the Evidence

[9] In challenging her conviction for resisting law enforcement, Jones argues that the evidence is insufficient to prove that the Officers had reasonable suspicion to stop her.

When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court's ruling. Appellate courts affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore 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.

Drane v. State , 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and quotations omitted). "In essence, we assess only whether the verdict could be reached based on reasonable inferences that may be drawn from the evidence presented." Baker v. State , 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in original). Upon review, appellate courts do not reweigh the evidence or assess the credibility of the witnesses. Stewart v. State , 768 N.E.2d 433, 435 (Ind. 2002).

[10] In order to prove that Jones committed the charged offense, the State was required to prove that Jones "knowingly or intentionally ... fle[d] from a law enforcement officer after the officer ha[d] by visible or audible means, including operation of the law enforcement officer's siren or emergency lights, identified himself ... and ordered [her] to stop." Ind. Code § 35-44.1-3-1. The Indiana Supreme Court has found this statute to be constitutional. Gaddie v. State , 10 N.E.3d 1249, 1255 (Ind. 2014). In doing so, however, the Court stated the following:

we hold that the statutory element "after the officer has ... ordered the person to stop" must be understood to require that such order to stop rest on probable cause or reasonable suspicion, that is specific, articulable facts that would lead the officer to reasonably suspect that criminal activity is afoot. Absent proof that an officer's order to stop meets such requirements, the evidence will be insufficient to establish the offense of Resisting Law Enforcement by fleeing.

Id. Thus, in order to conclude that the evidence is sufficient to sustain Jones's conviction, we must also conclude that the Officers had reasonable suspicion to stop Jones.

[11] In denying Jones's motion to suppress, the trial court determined prior to the start of trial that the Officers had reasonable suspicion to stop Jones. We review such determinations de novo. See Robinson v. State , 5 N.E.3d 362, 365 (Ind. 2014) ; Myers v. State , 839 N.E.2d 1146, 1150 (Ind. 2005) (providing that the determination of reasonable suspicion is a question of law that requires de novo review on appeal).

[12] The record reveals that the Officers originally approached Jones's residence because they were trying to serve active warrants on Esters. They had reason to believe that Jones was dating Esters, Esters was staying at Jones's residence, and Esters could be using the vehicle that was commonly driven by Jones. The Officers also had a general physical description of Esters. Just before initiating the stop, Corporal Buckley observed a black male sitting in the passenger seat of Jones's vehicle that seemed to match Esters's general physical description. Although the passenger did not have dreadlocks, the Officers knew that Esters was prone to change his hairstyle, sometimes wearing his hair in dreadlocks and other times not. Further, the Officers were not able to definitively determine whether the passenger was Esters without approaching the vehicle. These articulable facts demonstrate that the Officers had reason to believe that Esters, a wanted felon with multiple active warrants, may have been the passenger in Jones's vehicle. Thus, we conclude that the evidence is sufficient to prove that the Officers had reasonable suspicion to stop Jones.

II. Jury Instructions

[13] Jones alternatively contends that the trial court erred in instructing the jury. Specifically, Jones argues that the trial court's instructions to the jury should have contained some reference to the fact that she could only be found guilty if the Officers had probable cause or reasonable suspicion to initiate the stop. The record reveals that Jones did not make this argument before the trial court and, as such, must prove that the alleged error amounted to fundamental error. See Pattison v. State , 54 N.E.3d 361, 365 (Ind. 2016).

[14] Instructing the jury is a matter within the sound discretion of the trial court and we will reverse a trial court's decision to tender or reject a jury instruction only if there is an abuse of that discretion. Id.

We determine whether the instruction states the law correctly, whether it is supported by record evidence, and whether its substance is covered by other instructions. Jury instructions are to be considered as a whole and in reference to each other; error in a particular instruction will not result in reversal unless the entire jury charge misleads the jury as to the law in the case.
* * * *
Error is fundamental if it is a substantial blatant violation of basic principles and where, if not corrected, it would deny a defendant fundamental due process. This exception to the general rule requiring a contemporaneous objection is narrow, providing relief only in egregious circumstances that made a fair trial impossible.

Id. (internal citations and quotations omitted).

[15] Here, it is undisputed that the instruction tendered to the jury correctly lists the elements set forth in Indiana Code section 35-44.1-3-1(a)(3). As such, given the specific nature of Jones's appellate contention, the instruction can only be found to be deficient if it was necessary to instruct the jury as to a finding of reasonable suspicion.

A. Reasonable Suspicion

[16] "The U.S. Supreme Court has declared that the Fourth Amendment's protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest." Armfield v. State , 918 N.E.2d 316, 318 (Ind. 2009) (internal citation and quotation omitted). Under applicable precedent, "an officer is permitted to stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause." Id. (internal quotations omitted). "Generally speaking, evidence obtained pursuant to an unlawful seizure must be excluded under the fruit of the poisonous tree doctrine." Clark v. State , 994 N.E.2d 252, 266 (Ind. 2013). "This extension of the exclusionary rule bars evidence directly obtained by the illegal search or seizure[.]" Id.

[17] In this case, the question of whether the Officers had reasonable suspicion to initiate the stop first arose as a preliminary matter in Jones's motion to suppress. Evidence Rule 104(a) provides that the trial court "must decide any preliminary question about whether ... evidence is admissible." (Emphasis added). "The court must conduct any hearing on a preliminary question so that the jury is not present and cannot hear if ... justice so requires." Ind. Evid. Rule 104(c). Further, "[t]o the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means." Ind. Evid. Rule 103(d). It is well-established that regarding the admissibility of evidence, whether raised in a motion to suppress or at trial, trial courts have broad discretion. See Guilmette v. State , 14 N.E.3d 38, 40 (Ind. 2014) ; Kelley v. State , 825 N.E.2d 420, 424 (Ind. Ct. App. 2005) ; Washington v. State , 784 N.E.2d 584, 587 (Ind. Ct. App. 2003).

B. Analysis

[18] In ruling on Jones's motion to suppress evidence relating to the stop at issue, the trial court conducted a preliminary hearing during which it considered whether the Officers had reasonable suspicion to initiate the stop. Thus, by the time the matter proceeded to trial, the trial court had already determined that the Officers had reasonable suspicion when they stopped Jones. We believe that the trial court's determination regarding reasonable suspicion satisfied the requirement set forth in Gaddie that such a determination be made. Gaddie did not specifically indicate that such was a question for the jury, see 10 N.E.3d at 1255, and Jones has pointed to no authority suggesting the question was one for the jury. Thus, because the trial court had found that the Officers had reasonable suspicion to initiate the stop, we do not believe that it was necessary to resubmit the question to the jury.

[19] Given that the question of whether the Officers had reasonable suspicion to stop Jones had been decided by the trial court and need not have been presented to the jury, we cannot say that the alleged deficiency in the challenged jury instruction amounted to error, much less fundamental error. We therefore conclude that the trial court did not abuse its discretion in instructing the jury.

III. Alleged Prosecutorial Misconduct

[20] Jones also contends that the trial court erroneously determined that the cumulative effect of four alleged instances of prosecutorial misconduct did not unfairly prejudice her. Jones argues that the deputy prosecutor committed prosecutorial misconduct on four occasions during closing argument. Specifically, Jones claims that the deputy prosecutor committed prosecutorial misconduct by: (1) indicating that the State "would request that when you go into that jury room that you seek justice," tr. Vol. II, p. 183; (2) telling the jury that they could "take [the officer's] word for that," tr. Vol. II, p. 195; (3) stating that "[t]he officer testified today that she had seen him before in that unmarked vehicle," tr. Vol. II, p. 196; and (4) stating that "[n]obody was hurt when she flees from law enforcement, thankfully. But there could have been." Tr. Vol. II, p. 197.

[21] "In reviewing a properly preserved claim of prosecutorial misconduct, we determine (1) whether the prosecutor engaged in misconduct, and if so, (2) whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected." Cooper v. State , 854 N.E.2d 831, 835 (Ind. 2006). "Whether a prosecutor's argument constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct." Id. "The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury's decision rather than the degree of impropriety of the conduct." Id.

[22] When an improper argument is alleged to have been made, the correct procedure is to request the trial court to admonish the jury. If the party is not satisfied with the admonishment, then he or she should move for mistrial. Failure to request an admonishment or to move for mistrial results in waiver. Where a claim of prosecutorial misconduct has not been properly preserved, our standard for review is different from that of a properly preserved claim. More specifically, the defendant must establish not only the grounds for the misconduct but also the additional grounds for fundamental error. Fundamental error is an extremely narrow exception that allows a defendant to avoid waiver of an issue. It is error that makes a fair trial impossible or constitutes clearly blatant violations of basic and elementary principles of due process presenting an undeniable and substantial potential for harm.

Id. (citations, quotation, and brackets omitted).

[23] As for the first two comments, the trial court sustained Jones's objections and admonished the jury to disregard the comments. We presume that the trial court's admonishment cured any potential harm. See Green v. State , 587 N.E.2d 1314, 1317 (Ind. 1992) (providing that appellate courts may presume that a timely and accurate admonishment by the trial court will cure any defect); see also Webster v. State , 413 N.E.2d 898, 901, 274 Ind. 668, 673 (1980) (providing that "[o]n appeal, [appellate courts] must presume that the jury obeyed the trial court's instructions in reaching its verdict" and when the jury has been instructed not to consider specific evidence or argument, "we will assume that the jury followed the instructions.").

[24] As for the remaining two comments, the record reveals that although Jones objected to the statements, she did not request an admonishment or a mistrial. Jones, therefore, did not properly preserve her challenge to these comments and, as a result, must prove that the challenged comments amounted to fundamental error. See Cooper , 854 N.E.2d at 835.

[25] With respect to the comment that Jones had previously seen Lieutenant Sanders in his unmarked vehicle, Jones claims that the deputy prosecutor discussed a fact that had not been presented to the jury. The State concedes that prosecutors may not argue facts not in evidence, Neville v. State , 976 N.E.2d 1252, 1263 (Ind. Ct. App. 2012), but argues that did not happen here. The record reveals, contrary to Jones's claim, that the record contained such testimony. Specifically, Lieutenant Sanders testified, without objection, that he had been driving the same unmarked Dodge Charger when he had had prior interactions with Jones. As such, the deputy prosecutor did not mention a fact not presented to the jury, but rather a fact that was admitted, without objection, through Lieutenant Sanders's testimony.

[26] With respect to the comment suggesting that someone could have been hurt when Jones fled from law enforcement, Jones claims that this comment was improper as it "only served to frighten the jury." Appellant's Br. p. 16. We disagree. After defense counsel attempted to argue that Jones's flight did not matter because it was so short in duration, the State responded as follows:

We are talking about a 10 to 15 second resist, but does that 10 to 15 seconds not matter? It does. Nobody was hurt when she blew through that intersection. Nobody was hurt when she flees from law enforcement, thankfully. But there could have been.

Tr. Vol. II, p. 197. Even if this statement was ordinarily objectionable, it was made in response to defense counsel's argument that Jones's act of fleeing from the Officers was so short in duration that it should not matter. "Prosecutors are entitled to respond to allegations and inferences raised by the defense even if the prosecutor's response would otherwise be objectionable." Cooper , 854 N.E.2d at 836. As such, we cannot say that the deputy prosecutor's comment was improper, much less that it amounted to fundamental error.

[27] Furthermore, we do not agree with Jones's claim that the cumulative effect of the deputy prosecutor's allegedly improper statements rendered a fair trial impossible. In addition to the specific admonishments to disregard the first two challenged comments, the trial court also instructed the jury that any "[s]tatements made by the attorneys are not evidence." Appellant's App. Vol. II, 136. Again, we assume the jury followed the trial court's instructions and did not consider the deputy prosecutor's statements to be evidence. See Green , 587 N.E.2d at 1317. We agree with the State that the cumulative impact of the prosecutor's allegedly improper statements was minimal given the evidence of Jones's guilt. As such, we conclude that the trial court did not abuse its discretion in finding that the alleged prosecutorial misconduct did not warrant a mistrial.

Conclusion

[28] In sum, we conclude that the evidence is sufficient to sustain Jones's conviction for Class A misdemeanor resisting law enforcement. We also conclude that the trial court did not abuse its discretion in instructing the jury or in finding that the alleged prosecutorial misconduct did not warrant a mistrial.

[29] The judgment of the trial court is affirmed.

Baker, J., and Kirsch, J., concur.

      Lieutenant Sanders did not initially approach the residence because he "had had contact with [Jones] previously, and he was afraid that his [undercover] vehicle might be noticed." Tr. Vol. II, p. 161.

      We note that Jones does not dispute that she fled from the Officers. She only argues that the Officers did not have reasonable suspicion to stop her on the day in question.

      It is generally understood that (1) reasonable suspicion is a legal conclusion made by the trial court, not a factual finding made by a jury and (2) a conclusion of whether reasonable suspicion exists will often be based upon facts that are not admissible before the jury.

      We note that while we were unable to find a case that explicitly states as such, a review of both Federal and Indiana stop and seizure jurisprudence indicates that determinations of whether officers had reasonable suspicion to initiate a stop are made by the trial court.


author: Vaidik, Chief Judge.

text:
    STATE of Indiana, Appellant-Plaintiff, v. Daniel L. MYERS, Appellee-Defendant
    Court of Appeals Case No. 69A01-1708-CR-1805
    Court of Appeals of Indiana.
    Filed April 24, 2018
    Attorneys for Appellant: Curtis T. Hill, Jr., Attorney General, Ellen H. Meilaender, Supervising Deputy Attorney General, Indianapolis, Indiana
    Attorney for Appellee: Laura Sorge Fattouch, Sorge Law Firm, LLC, Lawrenceburg, Indiana
   Vaidik, Chief Judge.

Case Summary

[1] With some exceptions, Criminal Rule 4(C) guarantees a defendant the right to stand trial within one year of arrest or the date charges are filed, whichever is later. If, during the one-year period, the trial court sets a trial date beyond the one-year period, the defendant is obligated to object in time for the court to reset the trial for a date within the one-year period, otherwise he acquiesces to the date. When a defendant fails to object timely, he cannot then move for discharge under Rule 4(C) when the one-year period expires.

[2] In this case, 20 days before the one-year period was to expire, the court held a pretrial conference and set Myers's trial for a date beyond the one-year period. Myers did not object. Nevertheless, shortly after the period had expired, Myers moved for discharge under Rule 4(C), which the trial court granted. The State appeals and argues that by failing to object during the one-year period, Myers acquiesced to the trial date and waived his motion for discharge. We agree and reverse and remand for further proceedings.

Facts and Procedural History

[3] On December 3, 2015, the State charged Myers with three counts of drunk driving. As a result of numerous delays, some of which were attributable to Myers, the case was still pending in 2017. On May 26, 2017, the trial court held a pretrial conference at which a trial date was to be set. As of that date, 20 days remained in the one-year period under Rule 4(C) -that is, the State had until June 15 to bring Myers to trial. But when the trial court asked if there was any Rule 4(C) issue, neither attorney raised any such concern. The trial was then scheduled for November 14, 2017, without objection from either side.

[4] On June 23, after the one-year period had expired, Myers filed a motion for discharge under Rule 4(C), explaining:

At the May 26, 2017 telephonic pretrial, Defense Counsel had not completed an assessment of the Criminal Rule 4 [ (C) ] issue. Following a conversation with the State, Defense Counsel began reviewing the timeline. Only on June 22, 2017 did Defense Counsel complete his calculations and determine that a Criminal Rule 4 [ (C) ] issue existed.

Appellant's App. Vol. II p. 109. A hearing was held on the motion, and the State argued that Myers had acquiesced to the November 2017 trial date by not objecting when that date was set at the pretrial conference. Myers's attorney disagreed and reiterated that, as of May 26, he "didn't know that there was a CR 4 issue ...." Tr. Vol. II p. 68. He added that June 22 "was the date that I put the math together" and that he did not "believe that there was any unreasonable delay in sitting down and doing the calculation" on that day. Id. The trial court agreed that the motion was "early enough," id. at 69, and ordered Myers discharged.

[5] The State now appeals.

Discussion and Decision

[6] The State contends that Myers waived the right to move for discharge under Rule 4(C) because he did not object to the November 2017 trial date during the pretrial conference at which that date was set. Rule 4(C) provides:

No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule. Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time. Any defendant so held shall, on motion, be discharged.

[7] "The State's duty to try the defendant within one year is affirmative, and the defendant is under no obligation to remind the State of its duty." State v. Delph , 875 N.E.2d 416, 420 (Ind. Ct. App. 2007), trans. denied . If, however, during the one-year period, the court sets a trial date that is beyond the one-year period "and the defendant is or should be aware that the setting is beyond that period, it is his obligation to object at the earliest opportunity so that the court can reset the trial for a date within the proper period." Id. If the defendant sits idly by and does not object to the trial date, he will be deemed to have acquiesced to the date. Id.

[8] Here, it is undisputed that Myers did not object during the one-year period. The State had 20 days remaining in the one-year period when the pretrial conference was held on May 26. At that conference, the trial court asked either party if there was any Rule 4(C) issue, but neither party expressed any concern. Trial was then set for November 2017. Myers did not object. Once the trial court asked about any Rule 4(C) issue, Myers was made aware that an issue may exist. Myers, however, did not calculate the Rule 4(C) deadline until June 22-7 days after the one-year period expired-and then moved for discharge.

[9] Nevertheless, Myers contends that his motion was timely because he filed it "the same day he made the calculation of the time period remaining under Rule 4(C)." Appellee's Br. p. 10. Myers cites Havvard v. State , presumably for the following proposition: "When a defendant learns within the period provided by the rule that the case is set for trial at a time beyond the date permitted, the defendant must object to such a trial setting at the earliest opportunity." 703 N.E.2d 1118, 1121 (Ind. Ct. App. 1999) (emphasis added). Myers renews his argument and takes the position that this passage allows a defendant to object to a trial date when he "learns" that the date is outside of the one-year period, regardless of when he "learns" that fact. The first problem with his contention is that Havvard also states that "[a]n objection must be lodged in time to permit the trial court to reset the trial for a date within the proper period. " Id. (emphasis added). In this case, there is no question that Myers did not alert the trial court in time to permit it to reset the trial for a date within the one-year period.

[10] Furthermore, we are not convinced that the use of the word "learns" in Havvard was meant as an invitation for a defendant to calculate the Rule 4(C) deadline at his convenience, as Myers contends. This would eliminate the defendant's burden to object during the one-year period to a trial date that is set beyond the deadline. Ideally, Myers's attorney would have been tracking the Rule 4(C) deadline since the beginning of the case and would have objected as soon as the court mentioned a November 2017 trial date. At the very least, Myers's attorney should have calculated the deadline reasonably soon after the pretrial conference-at which the trial court specifically inquired about Rule 4(C) -and objected with time still remaining in the one-year period. Instead, Myers waited nearly thirty days to do the calculation and alert the court that the trial was set for a date beyond the one-year period. Because Myers failed to object to the November 2017 trial date before the one-year period expired, he acquiesced to the trial date and waived any claim to discharge under Rule 4(C). See State v. Black , 947 N.E.2d 503, 509 (Ind. Ct. App. 2011) (concluding that defendant acquiesced to the trial date beyond one-year period and waived his right to be discharged under Rule 4(C) by not objecting before period expired); cf. Havvard , 703 N.E.2d at 1121 (holding that a 47-day delay before objecting to a trial date beyond the one-year period was not unreasonable because the State still had 4 months before the period expired).

[11] Of course, this does not mean that the State is now free to try Myers whenever it pleases. As of May 26, the State had 20 days left on its one-year period under Rule 4(C). Therefore, within 7 days of this opinion being certified, the trial court shall hold a hearing and, if Myers demands it, set a trial within 20 days of the hearing. If court congestion prevents the court from setting a date within that timeframe, the court should make an explicit finding to that effect and set the trial for the next available date.

[12] Reversed and remanded.

May, J., and Altice, J., concur.

      This calculation is different from what the parties argued to the trial court. See Tr. Vol. II pp. 42-43 (Myers arguing that the period had expired, or at best, 2 days remained) and p. 44 (State arguing that 13 days remained in the one-year period). On appeal, however, the State's calculation is that there were 20 days remaining in the one-year period as of May 26, 2017, and Myers does not challenge this calculation.

      Throughout his brief, Myers refers to his June 23 filing as an "objection." See Appellee's Br. pp. 5-7, 9-10. But because the document was filed after the one-year period had expired, it was a motion for discharge, not an objection. See Martin v. State , 419 N.E.2d 256, 259 (Ind. Ct. App. 1981) (explaining the difference between an objection to a trial date-made during the one-year period-and a motion for discharge-made after the one-year period expires).

      Myers also contends, "Even if the trial judge had been aware of the twenty-day (20) day time period remaining at the telephonic pretrial conference on May 26, 2017, it is unlikely the judge would have been able to set a trial date before the time period expired." Appellee's Br. p. 10. There is nothing in the record to indicate whether the trial could have been held before the expiration of the one-year period. And even if court congestion would have prevented that, it is well established that the one-year period can be extended due to court congestion. See Logan v. State , 16 N.E.3d 953, 961 (Ind. 2014).