author: NAJAM, Judge.

text:
    Everett SWEET, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 35A02-1305-PC-451.
    Court of Appeals of Indiana.
    Dec. 6, 2013.
    Everett Sweet, Westville, IN, Appellant pro se.
    Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

In August of 2009, Everett Sweet pleaded guilty to dealing in methamphetamine, as a Class B felony, after he had been fully advised of his rights and he had agreed with the State's factual basis underlying the allegation against him. In April of 2010, Sweet filed a petition for post-conviction relief in which he sought to have his conviction overturned on the theory that he had received ineffective assistance of counsel in a pretrial evidentiary hearing on a motion to suppress the State's evidence. Had he not received ineffective counsel on his motion to suppress, Sweet contends, the State's evidence against him would have been suppressed and he would not have pleaded guilty. This is not a permissible basis to collaterally attack a guilty plea in Indiana. We therefore affirm the post-conviction court's denial of Sweet's pro se petition for post-conviction relief.

FACTS AND PROCEDURAL HISTORY

On November 27, 2008, Sweet stayed the night at the home of Jason Weinley. The next morning, Sweet "callled] around trying to find ... fertilizer" and told Wein-ley he needed fertilizer "[flor making meth." Motion to Suppress Transcript at 7-8. Weinley told Sweet to leave, and Weinley gave Sweet a ride to a third party's house. En route, Sweet told Weinley that "he forgot his [backpack] on [Wein-ley's] porch." Id. at 8.

When he returned to his home, Weinley located Sweet's backpack. Weinley "was worried about what was in it because [he had] kids running around" and he "wanted to make sure that it wasn't stuffed with meth." Id. at 9. Upon opening Sweet's backpack, Weinley discovered a mobile meth lab. Weinley called the Huntington Police Department.

Detective Matt Hughes responded to Weinley's call and learned that the State had several active warrants for Sweet's arrest. Detective Hughes set up surveillance a few blocks from Weinley's residence and observed Sweet return to pick up his backpack and then drive away. Detective Hughes initiated a traffic stop and arrested Sweet pursuant to the active arrest warrants. Detective Hughes observed Sweet's backpack behind the driver's seat, and he seized and searched the backpack without a search warrant. Detective Hughes confirmed Weinley's initial report that the backpack was a mobile meth lab.

The State charged Sweet with dealing in methamphetamine, as a Class B felony; attempted dealing in methamphetamine, as a Class- B felony; and possession of drug precursors, as a Class D felony. The State subsequently amended its information to additionally allege that Sweet was an habitual offender. Sweet filed a motion to suppress the evidence, in which he argued that Weinley was an agent of the Huntington Police Department and, therefore, his search of Sweet's backpack without a search warrant violated Sweet's rights under the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution. At an ensuing evidentiary hearing, Sweet's counsel questioned one of the detectives involved in the investigation about Wein-ley's relationship with the Huntington Police Department, but he did not question Weinley. The trial court denied Sweet's motion to suppress.

Following the trial court's denial of his motion to suppress, Sweet pleaded guilty to dealing in methamphetamine, as a Class B felony. In exchange for his plea, the State dismissed the remaining charges, including the habitual offender allegation. On August 25, 2009, the trial court held a guilty plea hearing and fully advised Sweet of his rights. Following the advisement, the court engaged Sweet in the following colloquy:

THE COURT: Do you understand that by pleading guilty that you are admitting that the facts contained in this charging document are true and accurate?
DEFENDANT SWEET: Yes, siv.
*# * #
THE COURT: Have you discussed [the motion to enter a plea of guilty and written advisement and waiver of rights] with your attorney?
DEFENDANT SWEET: I have. THE COURT: Is there any portion of these documents that you do not understand?
DEFENDANT SWEET: No, sir.
* * #
THE COURT: Paragraph nine (9) states that you are pleading guilty to Count 1: Dealing in Methamphetamine, a Class B felony[, in exchange for the dismissal of the remaining charges and a eapped sentence.] Do you understand that?
DEFENDANT SWEET: Yes, siv.
THE COURT: Has anyone offered you anything or promised you anything other than what is contained in paragraph nine (9)?
DEFENDANT SWEET: No, sir.
THE COURT: Do you feel that your Plea of Guilty today is of your own free and voluntary act?
DEFENDANT SWEET: Yes, sir.
* * #
THE COURT: How do you plead to Count one (1): Dealing in Methamphetamine, a Class B felony?
DEFENDANT SWEET: Guilty.
THE COURT: Would the State present a factual basis?
THE STATE: Yes, your Honor, the factual basis is contained in paragraph fifteen (15) of the Defendant's Written Motion to Enter a Plea of Guilty.
In summary, the facts are that the Defendant is currently thirty-five (85) years old.
On November 28th, 2008, the Defendant possessed a backpack containing a mobile meth lab which included salt, drain opener, lithium batteries, Coleman fuel and a HCL generator with which he was manufacturing methamphetamine.
All of these events occurred in Huntington County, Indiana.
THE COURT: Is that a correct statement of the facts?
DEFENDANT SWEET: Yes, sir.

Guilty Plea Hearing Transcript at 17-21. The court then accepted Sweet's plea agreement. Pursuant to the terms of Sweet's plea agreement, the trial court sentenced him to eighteen years. Sweet did not file a direct appeal.

On April 13, 2010, Sweet filed his petition for post-conviction relief, which he later amended. In his amended petition, Sweet alleged that his trial counsel had rendered ineffective assistance when he failed to question Weinley at the motion to suppress hearing and that, if his counsel had properly examined Weinley, his counsel would have learned that Weinley was a paid informant of the Huntington Police Department. Sweet then alleged that this additional evidence would have compelled the trial court to grant his motion to suppress the evidence and that, with the State's evidence suppressed, he would not have pleaded guilty. The post-conviction court held an evidentiary hearing on Sweet's petition on March 19, 2013, after which the court entered findings of fact and conclusions of law denying the petition. This appeal ensued.

DISCUSSION AND DECISION

Sweet appeals the post-conviction court's denial of his petition for post-conviction relief. Our standard of review is clear:

[The petitioner] bore the burden of establishing the grounds for postconviction relief by a preponderance of the evidence. See Ind. Post-Conviction Rule 1(5); Timberlake v. State, 753 N.E.2d 591, 597 (Ind.2001). Post-conviction procedures do not afford a petitioner with a super-appeal, and not all issues are available. Timberlake, 753 N.E.2d at 597. Rather, subsequent collateral challenges to convictions must be based on grounds enumerated in the post-conviction rules. Id. If an issue was known and available, but not raised on direct appeal, it is waived. Id. If it was raised on appeal, but decided adversely, it is res judicata. Id.
In reviewing the judgment of a post-conviction court, appellate courts consider only the evidence and reasonable inferences supporting the post-conviction court's judgment. Hall v. State 849 N.E.2d 466, 468 (Ind.2006). The post-conviction court is the sole judge of the evidence and the credibility of the witnesses. Id. at 468-69. Because he is now appealing from a negative judgment, to the extent his appeal turns on factual issues [the petitioner] must convince this court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. See Timberlake, 753 N.E.2d at 597. We will disturb the decision only if the evidence is without conflict and leads only to a conclusion contrary to the result of the post-conviction court. Id.

Lindsey v. State, 888 N.E.2d 319, 322 (Ind.Ct.App.2008), trans. denied.

Sweet purports to allege two issues on appeal, namely, that his counsel rendered ineffective assistance when he failed to question Weinley at the motion to suppress hearing and that, if his counsel had not acted ineffectively, the State's evidence would have been suppressed and Sweet would not have pleaded guilty. The post-conviction court's judgment and the State's response on appeal focus on the merits of Sweet's arguments. However, we affirm the post-conviction court's judgment on a different rationale: Sweet's attempt to collaterally attack his guilty plea by challenging the underlying evidence against him is inconsistent with the plea itself.

Our Supreme Court has been unambiguous on the consequences of pleading guilty in Indiana: "a defendant's plea of guilty is not merely a procedural event that forecloses the necessity of trial and triggers the imposition of sentence. It also, and more importantly, conclusively establishes the fact of guilt, a prerequisite in Indiana for the imposition of eriminal punishment." Alvey v. State, 911 N.E.2d 1248, 1249 (Ind.2009) (internal alterations and quotations omitted). "[It is inconsistent to allow defendants both to plead guilty and to challenge evidence supporting the underlying convictions." Id. "When a judgment of conviction upon a guilty plea becomes final and the defendant seeks to reopen the proceedings, the inquiry is normally confined to whether the underlying plea was both counseled and voluntary." Id.

Our Supreme Court has also made clear that this rationale applies in the postcon-viction setting:

A plea of guilty ... forecloses a post-conviction challenge to the facts adjudicated by the trial court's acceptance of the guilty plea and the resulting conviction. The facts established by a plea of guilty may not be later challenged in post-conviction proceedings.
Though this defendant now claims that new evidence would require that his conviction be vacated, we cannot harmonize this new position taken by the defendant with the fact that he originally admitted to committing the crime by his guilty plea. It is inconsistent to allow defendants who pleaded guilty to use post-conviction proceedings to later revisit the integrity of their plea in light of alleged new evidence seeking to show that they were in fact not guilty. Both his confession and his new claims cannot be true. A defendant knows at the time of his plea whether he is guilty or not to the charged erime. With a trial court's acceptance of a defendant's guilty plea, the defendant waives the right to present evidence regarding guilt or innocence.

Norris v. State, 896 N.E.2d 1149, 1153 (Ind.2008) (footnote omitted ).

Here, again, Sweet asserts that his conviction must be reversed because, had his counsel not rendered ineffective assistance, his motion to suppress the State's evidence would have been granted. This is, in effect, a challenge to the evidence underlying Sweet's conviction. But Sweet's conviction is based on his own guilty plea and the factual basis underlying his plea. Accordingly, he may not challenge the evidence underlying his conviction in the post-conviction forum. See id. And Sweet does not suggest that, independent of his counsel's alleged ineffective assistance, his guilty plea was neither counseled nor voluntary.

In sum, our post-conviction rules do not permit a defendant who has pleaded guilty to collaterally challenge the evidence underlying his conviction. Accordingly, we affirm the post-conviction court's denial of Sweet's petition for post-conviction relief.

Affirmed.

MATHIAS, J., and BROWN, J., concur.

      . The court in Norris noted that that case "d[id] not involve any request for post-conviction DNA testing" pursuant to Indiana Code Section 35-38-7-19(3). 896 N.E.2d at 1153 n. 2. Neither does the instant appeal.


source: Caselaw Access Project

license: Public Domain

text:
    Michelle Orr CARPENTER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 77A01-1306-CR-293.
    Court of Appeals of Indiana.
    Dec. 6, 2013.

      Cara Schaefer Wieneke, Plainfield, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Larry D. Allen, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Michelle Orr Carpenter appeals the trial court's revocation of her probation. Carpenter raises a single issue for our review, namely, whether the State presented sufficient evidence to demonstrate that she committed the alleged probation violation during the term of her probation. We reverse.

FACTS AND PROCEDURAL HISTORY

On September 28, 2012, the State arrested Carpenter for Class A misdemeanor resisting law enforcement and Class B misdemeanor battery. © Less than one week later, on October 4, Carpenter pleaded guilty to the resisting law enforcement charge, the State dismissed the battery allegation, and the trial court sentenced her to 351 days suspended to probation. Among other things, the terms of her probation prohibited her from using any controlled substance without a preseription. The court also ordered Carpenter to provide a list of her prescription medications to her probation officer. According to Carpenter's list of prescriptions, she was taking Suboxone, a pain medication. On October 9, five days after having been placed on probation, Carpenter failed a drug test. According to the drug test results, Carpenter had ingested phenobarbital, a barbiturate for which she did not have a prescription.

The State filed a notice of probation violation on October 17, and the trial court held a fact-finding hearing on April 30, 2013. At that hearing, the State called Ed Walker, a pharmacist, to testify. According to Walker, Suboxone might produce a positive drug test for an opiate but not for a barbiturate. Walker further testified that phenobarbital is known to have a potential for abuse and that the half-life of phenobarbital in the human body is three days. However, Walker further explained that, depending on the sensitivity of the drug test, one might test positive for phenobarbital up to three weeks after having ingested it. The State did not present any evidence regarding the sensitivity of the drug test it administered to Carpenter or the concentration levels of phenobarbital in her system as revealed by that test.

Carpenter also testified at the fact-finding hearing. According to her testimony, at the "end of May" she was an inpatient at the Fairbanks Recovery Center ("Fairbanks"), and she had been prescribed phenobarbital to aid in her recovery from drug addiction. Transcript at 17. She left Fairbanks after eight days, about four months before her October 4 drug test. Outside of her time at Fairbanks, she testified that she had never ingested phenobarbital.

The trial court found that Carpenter had violated the terms of her probation. As such, the court revoked her probation and ordered her to serve fourteen days of her originally suspended sentence. This appeal ensued.

DISCUSSION AND DECISION

Carpenter appeals the trial court's revocation of her probation. As our supreme court has explained:

Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled. The trial court determines the conditions of probation and may revoke probation if the conditions are violated. Onee a trial court has exercised its grace by ordering probation rather than incarceration, the judge should have eonsiderable leeway in deciding how to proceed. If this discretion were not afforded to trial courts and sentences were seruti-nized too severely on appeal, trial judges might be less inclined to order probation to future defendants. Accordingly, a trial court's sentencing decisions for probation violations are reviewable using the abuse of discretion standard. An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and cireumstances.

Prewitt v. State, 878 N.E.2d 184, 188 (Ind.2007) (citations omitted).

On appeal, Carpenter contends that there is no evidence that she used phenobarbital during the five days between her placement on probation and her drug test. "It is axiomatic that[,] to violate one's probation, one must perform some prohibited act, or fail to perform some required action, during the period of probation." C.S. v. State, 817 N.E.2d 1279, 1281 (Ind.Ct.App.2004). In considering this issue, we note that "[al probation hearing is civil in nature and the State need only prove the alleged violations by a preponderance of the evidence." Cox v. State, 706 N.E.2d 547, 551 (Ind.1999). "We will consider all the evidence most favorable to supporting the judgment of the trial court without reweighing that evidence or judging the credibility of witnesses." Id. "If there is substantial evidence of probative value to support the trial court's conclusion that a defendant has violated any terms of probation, we will affirm its decision to revoke probation." Id.

Carpenter relies on C.S. in her appeal. In C.S., we held that the State had failed to show that the probationer had violated the terms of his probation by using cocaine during his probationary period. 817 N.E.2d at 1282. As we explained:

Here the urine test was taken only five days after C.S. was placed on probation. We know that cocaine metabolites appear in the urine for some time period after cocaine has been ingested.
The [State produced no evidence whatever of what that time period might be. There was no prior screen establishing that C.S. was free of drugs, so that subsequent use might be inferred. There was not even any evidence of the amount, or concentration, of the metabolite in the urine.
Because the sample was taken only five days after C.S. was placed on probation, we are left to merely speculate whether he used cocaine before or after probation was imposed. We are unable to say that the evidence favorable to the decision, and the reasonable inferences therefrom, are sufficient to establish by a preponderance of the evidence that C.S. used cocaine at some time after he was placed on probation.
It follows that the decision revoking probation must be reversed....

Id. at 1281-82.

Likewise here, the State presented no evidence of the time period in which Carpenter ingested phenobarbital. For example, Carpenter's probation officer did not give Carpenter a drug sereen upon the commencement of her probation to establish what drugs, if any, Carpenter may have had in her system upon entering the probationary period. Had the probation officer done so, the trial court would have been able to infer subsequent use from the later drug sereen. Alternatively, Walker, the State's witness and a pharmacist, testified that phenobarbital has a half-life of three days in the human body, and that it may be detected in a drug sereen up to three weeks after it has been ingested. But the State did not present any evidence of the amount or concentration of the controlled substance it detected, which would have allowed the trial court to infer time of use. Rather, the State left the trial court to speculate that Carpenter had used phenobarbital during her probationary period, even though the State's own evidence demonstrated that Carpenter could have ingested the phenobarbital as early as three weeks before the test, which would have been as much as ten days before she had even been arrested. While these examples are not intended to be exhaustive of how the State may have met its burden of proof, they. demonstrate that the State's evidence was not sufficient to support the revocation of Carpenter's probation.

The State asserts that C.S. is inapposite because, unlike C.S., here the probationer testified in her own defense. The State continues by alleging that Carpenter's failure to adequately explain the presence of phenobarbital in her system allowed the trial court to reasonably infer that she must have used the phenobarbital during the probationary period.

The State asks too much from discrediting Carpenter's testimony. We agree that Carpenter's apparent lack of credibility allowed the trial court to infer that she illegally ingested phenobarbital and even that she ingested the phenobarbital more recently than "the end of May," as she had testified. See Transcript at 17. But that is not enough. The question here is whether Carpenter ingested phenobarbital between the start of her probation on October 4, 2012, and her drug test five days later on October 9. Even entirely discounting Carpenter's testimony, there is still no evidence from which one may infer when she ingested the phenobarbital, As such, we cannot agree with the State's attempt to distinguish C.S. from the instant appeal.

The State failed to present any evidence to demonstrate that Carpenter violated the terms of her probation by using phenobarbital during her probationary period. Even when viewed most favorably to the State, the evidence here was in equipoise, and it was no more likely that Carpenter ingested phenobarbital during her probationary period than it was that she ingested it before her probationary period. Accordingly, we must reverse the trial court's decision to revoke Carpenter's probation.

Reversed.

BAKER, J., and CRONE, J., concur.

      . In her reply brief, Carpenter asserts that the State's argument improperly shifts the burden of proof to her. This is incorrect. Carpenter did not move for involuntary dismissal, pursuant to Trial Rule 41(B), following the completion of the State's case-in-chief in the trial court. As such, the trial court was not obligated to look only to the State's evidence' in determining the merits of the State's allegation, and on appeal we will "address whether the totality of the evidence presented" supports the trial court's judgment. Williams v. State, 892 N.E.2d 666, 670-72 (Ind.Ct.App.2008), trans. denied.


author: BRADFORD, Judge. BAILEY, Judge,

text:
    David DIDION and Kristi Didion as Parents and Legal Guardians of Braydon Didion, Appellants, v. AUTO-OWNERS INSURANCE COMPANY, Appellee.
    No. 27A02-1303-PL-232.
    Court of Appeals of Indiana.
    Dec. 10, 2013.

      Nicholas J. Wagner, Stewart & Stewart Attorneys, Carmel, IN, Attorney for Appellants.
    David L. Taylor, Christopher D. Simp-kins, Taylor Law Firm, P.C., Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

In June of 2008, Braydon Didion was playing in the yard of a Gas City house ("the House") being lived in by Michael Carl when he was allegedly bit in the face by Michael's dog and injured ("the Loss"). Von Carl and Ginger Hawk, who lived in Kentucky at the time, owned the House and had home owner's insurance pursuant to a policy with Appellee Auto-Owners Insurance Company ("the Policy"). Michael did not notify Auto-Owners, Von, or Ginger of the Loss. Braydon's parents, Appellants David and Kristi Didion ("the Didions"), filed suit against Michael and eventually named Ginger as a defendant. Ultimately, default judgment was entered against Michael and Ginger, although the judgment as to Ginger was subsequently set aside. Most likely in July of 2009, Ginger became aware of the Loss and the lawsuit and soon notified her insurance agent of both. In February of 2012, Auto-Owners filed a complaint, seeking a declaratory judgment that it had no liability for the Loss. The trial court entered summary judgment in favor of Auto-Owners. The Didions claim on appeal that the trial court erred in concluding that (1) Michael was not .an insured under the terms of the Policy and (2) Auto-Owners was not given timely notice of the Loss. Concluding that Michael was not an insured and that Auto-Owners was not given timely notice of the Loss pursuant to the terms of the Policy, we affirm.

FACTS AND PROCEDURAL HISTORY "

In June of 2008, Von and Ginger owned the House, which was being lived in by Michael, Ginger's cousin. Ginger, who was born in 1957, had lived in the House at one time, but had not done so since she was sixteen or seventeen years old. Ginger lived in Kentucky with her husband and son, and had lived in her current residence for approximately eight years. Ginger checked on the House "probably every couple months" but "would just drive by, drive down the driveway, or drive down Broadway in front of the property[,]" never going inside. Appellant's App. p. 35. Von and Ginger had secured home-owner's coverage pursuant to the Policy, which provided in part as follows:

HOMEOWNERS POLICY
FORM 3
INSURING AGREEMENT
The attached Declarations describe the property we insure and the Coverages and Limits of Insurance for which you have paid a premium. In reliance upon your statements in the Declarations and application(s), we agree to provide insurance subject to all terms and conditions of this policy. In return, you must pay the premium and comply with all the terms and conditions of this policy. This policy applies to losses, bodily injury, property damage, and personal injury which occur during the policy term shown in the Declarations.
DEFINITIONS
To understand this policy, you must understand the meaning of the following words. These words appear in bold face type whenever used in this policy and endorsements attached to this policy.
2. Bodily injury means physical injury, sickness or disease sustained by a person including resulting death of that person. Bodily injury does not include personal injury.
5. Insured means:
a. you;
b. your relatives; and
__ e. any other person under the age of 21 residing with you who is in your care or the care of a relative.
13. Relative means a person who resides with you and who is related to you by blood, marriage or adop- - tion.. ...
WHAT TO DO IN CASE OF LOSS
2. PERSONAL LIABILITY PROTECTION
In the event of bodily injury, property damage or personal injury, the insured must
a. notify us or our agency as soon as possible. The notice must give:
(1) your name and policy number;
(2) the time, place and cireum-stance of the occurrence or incident; and
(3) the names and addresses of injured persons and witnesses;
b. promptly send us any legal papers received relating to any claim or suit:
c. cooperate with us and assist us in any matter relating to a claim or suit[.]

Appellant's App. pp. 190-91, 213-14 (all emphases in original).

On June 16, 2008, Braydon was allegedly bit in the face by Michael's dog as Bray-don played in the yard of the House. ~On July 24, 2008, the Didions filed a complaint for money damages against Michael, amending the complaint to add Ginger on September 30, 2008. On February 9, 2009, the Didions filed a motion for default judgment, which the trial court granted the next day. On April 16, 2009, the trial court issued an order fixing the Didions' damages at $250,000.00. At some point, most likely in July of 2009, Ginger notified her insurance agent of the Loss and the lawsuit. Ginger had first heard of the Loss and the lawsuit after learning that there was a lien on the House and then speaking with Michael on the telephone. Very soon after, she notified Auto-Owners of both. On September 1, 2009, the trial court granted Ginger's motion to set aside the default judgment against her.

On February 25, 2010, Auto-Owners filed a complaint for declaratory judgment on the issue of liability against Michael, Ginger, and the Didions. On September 28, 2012, the Didions filed a motion for partial summary judgment against Auto-Owners, to which Auto-Owners responded on October 30, 2012. On February 20, 2013, the trial court granted summary judgment in favor of Auto-Owners, concluding, inter alia, that

1. Michael Carl did not reside with Von Carl or Ginger Hawk at the time of the Incident.
4. Michael Carl is not an insured under the Policy.
5. Michael Carl failed to provide timely and reasonable notice of the Incident, claims or Tort Lawsuit of Didions to Auto-Owners, which was a condition precedent to coverage under the Policy.

Appellant's App. pp. 17-18.

DISCUSSION AND DECISION

When reviewing the grant or denial of a summary judgment motion, we apply the same standard as the trial court. Merchs. Nat'l Bank v. Simwell's Sports Bar & Grill, Inc., 741 N.E.2d 383, 386 (Ind.Ct.App.2000). Summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Id.; Ind. Trial Rule 56(C). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmoving party. Id. To prevail on a motion for summary judgment, a party must demonstrate that the undisputed material facts negate at least one element of the other party's claim. Id. Once the moving party has met this burden with a prima facie showing, the burden shifts to the nonmoving party to establish that a genuine issue does in fact exist. Id. The party appealing the summary judgment bears the burden of persuading us that the trial court erred. Id.

I. Whether Michael Was an "Insured" Under the Policy

The Didions argue that the trial court erred in concluding that Michael was not an insured pursuant to the policy. Specifically, the Didions contend that Michael is a blood relative of Ginger and that he "resided" with Ginger in the Gas City house, making him an "insured."

[Blecause the interpretation of a contract is a matter of law, cases involving the interpretation of insurance contracts are particularly appropriate for summary judgment.
Moreover, provisions of insurance contracts are subject to the same rules of construction as other contracts. We interpret an insurance policy with the goal of ascertaining and enforcing the parties' intent as revealed by the insurance contract. In accomplishing that goal we must construe the insurance policy as a whole, rather than considering individual words, phrases, or paragraphs. If the contract language is clear and unambiguous, it should be given its plain and ordinary meaning.
Additionally, we must accept an interpretation of the contract language that harmonizes the provision rather than one which supports a conflicting version of the provisions. Policy terms are interpreted from the perspective of an ordinary policyholder of average intelli-genee. If reasonably intelligent persons honestly may differ as to the meaning of the policy language, the policy is ambiguous. However, an ambiguity does not exist merely because the parties proffer differing interpretations of the policy language. >

Wright v. Am. States Ins. Co., 765 N.E.2d 690, 692-93 (Ind.Ct.App.2002) (citations omitted).

Contracts for insurance are subject to the same rules of interpretation and construction as are other contracts. Eli Lilly and Co. v. Home Ins. Co. (1985), Ind., 482 N.E.2d 467; Sharp v. Indiana Union Mut. Ins. Co. (1988), Ind.App., 526 N.E.2d 237, trans. denied. Whenever summary judgment is granted based upon the construction of a written contract, the trial court has either determined as a matter of law that the contract is not ambiguous or uncertain, or the contract ambiguity, if one exists, can be resolved without the aid of a factual determination. Kutche Chevrolet, Inc. v. Anderson Banking Co. (1992), Ind.App., 597 N.E.2d 1307. Generally, construction of a written contract is a question of law for the trial court and therefore summary judgment is particularly appropriate. Id. However, if reasonable minds differ as to the meaning of the contract's terms, then an ambiguity exists rendering summary judgment inappropriate. Id.

Plumlee v. Monroe Guar. Ins. Co., 655 N.E.2d 350, 354 (Ind.Ct.App.1995), trans. denied. As a general rule, "[wlhere provisions limiting coverage are not clearly and plainly expressed, the policy will be construed most favorably to the insured, to further the policy's basic purpose of indemnity." Meridian Mut. Ins. Co. v. Auto-Owners Ins. Co., 698 N.E.2d 770, 773 (Ind.1998).

There is no dispute that Michael is a blood relative of Ginger's, but he would have to "reside" with her in the House in order to qualify as an insured pursuant to the Policy. "Reside" may be defined as "[tlo be in residence; to occupy a fixed abode; [or] to dwell permanently or continuously (reside in the district)." WILLIAM P. Srarsxy, Waer's Lecar THsrsaurug/Dicro-wary 655 (1985). While we acknowledge that the word "reside" may be, perhaps, not without some inherent ambiguity, that potential ambiguity is not even remotely broad enough to support a conclusion that Ginger "resided" in the House with Michael. The Indiana Supreme Court has made it clear that, while ambiguities will be strictly construed against the insurer, "for ambiguity to confer coverage, the covered item must be somewhere within the circle of ambiguity." Allstate Ins. Co. v. Dana Corp., 759 N.E.2d 1049, 1057 (Ind.2001).

The uncontradicted designated evidence indicates that Ginger lived permanently and continuously in Kentucky with her immediate family and drove by the House every couple. of months to check on its condition, never even going inside. While Ginger had lived in the House in the past, she had not done so since the early 1970s. There is no designated evidence tending to show that Ginger had any personal property in the House or that she had ready access to the house or any of its contents. Were we to interpret the word "reside" in the broad fashion urged by the Didions, it would render similar "insured" clauses in other insurance contracts meaningless and without effect. In summary, we do not believe that any ordinary policyholder of reasonable intelligence would understand an absentee landlord who does no more than drive by a house every so often to "reside" in that house. The trial court did not err in concluding that Michael was not an "insured" under the Policy.

II. Whether Auto-Owners Received Adequate Notice

The Didions also contend that the trial court erred in concluding that Auto-Owners did not receive timely notice of the Loss. Although the trial court concluded that notice was inadequate because Michael failed to notify Auto-Owner's, we have already concluded that Michael was not an "insured." As previously mentioned, the notice provision of the Policy provides, in part, that, "In the event of bodily injury, property damage or personal injury, the insured must ... notify us or our agency as soon as 'possible." Appellant's App. p. 214 (bold emphasis removed and italics added). Michael had absolutely no obligation to notify Auto-Owners of the Loss, and his failure to do so is therefore irrelevant. The ouly question, then, is whether Ginger, as a named "insured" and party to the underlying lawsuit, provided adequate notice to Auto-Owners pursuant to the policy.

We have held that the notice requirement is "material, and of the essence of the contract." London Guarantee & Accident Co. v. Siwy, 35 Ind.App. 340, 66 N.E. 481, 482 (1903). The duty to notify an insurance company of potential liability is a condition precedent to the company's liability to its insured. Shelter Mut. Ins. Co. v. Barron, 615 N.E.2d 503, 507 (Ind.Ct.App.1993), trans. denied. When the facts of the case are not in dispute, what constitutes reasonable notice is a question of law for the court to decide. Id. Unlike other policy provisions requiring the cooperation of the insured, noncompliance with notice of elaim provisions resulting in an unreasonable delay triggers a presumption of prejudice to the insurer's ability to prepare an adequate defense. Miller v. Dilts, 463 N.E.2d 257, 265 (Ind.1984). The Indiana Supreme Court stated in Miller that:
The requirement of prompt notice gives the insurer an opportunity to make a timely and adequate investigation of all the cireumstances surrounding the accident or loss. This adequate investigation is often frustrated by a delayed notice.

Askren. Hub States Pest Control Servs., Inc. v. Zurich Ins. Co., 72l N.E.2d 270, 277-78 (Ind.Ct.App.1999).

We must conclude that Ginger's failure to notify Auto-Owners of the Loss until over year had passed did not satisfy her obligation to do so "as soon as possible." We have little trouble concluding that the length of delay in this case was unreasonable. The facts of this case amply support our conclusion: in the over one year that passed between the Loss and Ginger's notification to her agent, the Didions' lawsuit had not only been filed but had already proceeded to default judgment regarding liability and damages. In other words, Auto-Owners had been denied of all opportunity to timely investigate the Loss and to control the litigation from the early stages. See, eg., Miller, 4638 N.E.2d at 266 (concluding that summary judgment should be entered in favor of three insurance companies which received notice of the accidents giving rise to liability one month, six months, and seven months after their occurrence and which received notice of the resulting lawsuits as early as five days after filing).

Moreover, we cannot excuse Ginger's delay on the basis that she was ignorant of the Loss and notified Auto-Owners almost immediately upon being made aware of it. Indiana courts have been consistent in holding that there is no "discovery rule" in the insurance context. In Brunner v. Economy Preferred Insurance Co., 597 N.E.2d 1317 (Ind.Ct.App.1992), we adopted the rule that, for purposes of notice provisions in insurance contracts, "the insured's failure to discover the loss until some time after it occurred was immaterial[.]" Id. at 1319; see also United Techs. Auto. Sys., Inc. v. Affiliated FM Ins. Co., 725 N.E.2d 871, 875 (Ind.Ct.App.2000) ("In addition, we note that Indiana courts have followed the reasoning of the vast majority of state courts in holding that failure to discover damages does not toll the contractual period of limitation; rather, a policy's period of limitation begins to run' at the time the loss occurs, regardless of whether the insured knew of it."), trams. denied. Ginger's obligation to report the Loss to Auto-Owner's was not altered by her ignorance of it. The trial court correctly concluded that Auto-Owner's did not receive timely notice.

We affirm the judgment of the trial court.

MAY, J., concurs.

BAILEY, J., c'oncurs in result with opinion.

BAILEY, Judge,

concurring in result.

I agree with the majority that the trial court did not err when it entered summary judgment against the Didions on the question of the availability of insurance coverage for Michael under the homeowners' insurance policy of his sister, Ginger, and I concur in the majority's reasoning on that point. I write separately because I do not think there is any need to examine the question of the timeliness of notice.

I reach this conclusion for two reasons. First, the lack of coverage inquiry is dis-positive. Michael does not fall within the scope of an insured under the policy, and thus I think we need not reach the question of timely notice of an occurrence. And "statements not necessary in the determination of the issues presented are obiter dictum. They are not binding and do not become the law." Koske v. Townsend Eng'g Co., 551 N.E.2d 437, 443 (Ind.1990). It would be better, then, for us to remain silent on the issue.

Second, while the majority is correct that Indiana courts have regularly held as untimely notice of an occurrence or claim that occurred over the span of time at issue here, it does not appear that our courts have been faced squarely with a case like this one. Here, the party responsible for providing notice of an occurrence under the policy appears not to have been aware of an occurrence, might have been actively prevented from obtaining the requisite knowledge, and the policy language required notice "as soon as possible." Neither the majority nor the parties cite any cases that fit this fact pattern. Since we need not reach that issue, and in the apparent absence of prior decisive law, I think it better as a matter of judicial restraint that we not comment on the matter and permit our courts to address such matters when those issues are squarely and necessarily before them.

For the foregoing reasons, I concur with the result reached by the majority. °

      . The Didions rely on our decision in Erie Insurance Exchange v. Stephenson, 674 N.E.2d 607 (Ind.Ct.App.1996), a case in which we found coverage pursuant to an homeowner's lability policy even though the owner no longer lived in the house. Id. at 610. In that case, however, the question was not whether the owner "resided" in the house but whether she could be a member of the "household" despite not living in the house. Id. Consequently, our decision in Erie Insurance Exchange is inapposite and does not help the Didions.


author: WENTWORTH, J.

text:
    Roderick E. KELLAM, Petitioner, v. FOUNTAIN COUNTY ASSESSOR, Respondent.
    No. 49T10-1211-TA-78.
    Tax Court of Indiana.
    Dec. 10, 2013.
    Roderick E. Kellam, Covington, IN, Petitioner Appearing Pro Se.
    Gregory F. Zoeller, Attorney General of Indiana, Michele C. Roberts, Deputy Attorney General, Indianapolis, IN, Attorneys for Respondent.
   WENTWORTH, J.

Roderick E. Kellam appeals the Indiana Board's final determination denying a homestead standard deduction on his Fountain County property for the 2010 tax year. The Court reverses.

FACTS AND PROCEDURAL HISTORY

In July 2009, Kellam and Carol Myers bought a house in Fountain County. On July 16, 2009, Kellam and Myers visited the Fountain County Auditor's office to apply for homestead and mortgage deductions for the property. Kellam and Myers, who are not a married couple, were instructed by an employee at the Auditor's office to "[plrint your names, your address, and sign" the application for the homestead deduction. (Cert. Admin. R. at 98, 116-17.) The Auditor's employee further explained that the employees at the Auditor's office "would fill everything else out." (Cert. Admin. R. at 115-16.) Accordingly, neither Kellam nor Myers completed the portion of the homestead deduction application entitled "Property Owned by Claimant in Other Counties." (See Cert. Admin. R. at 46 (Form HC10).)

In contrast to the instructions given to Kellam and Myers for completing the homestead deduction application, the Auditor's employee instructed them to complete the entire mortgage deduction application. Accordingly, Kellam and Myers listed the other properties they owned in Indiana (Wells County and Grant County respectively) on the mortgage deduction application.

Kellam received a homestead deduction on the Fountain County property in 2009. The March 2011 Fountain County property tax statement included the homestead deduction for the 2010 tax year just as the previous year's property tax statement had for 2009. On March 16, 2011, however, the Fountain County Treasurer sent a letter to Kellam and Myers stating that the "Assessor has requested a C of E to correct your parcel." (Cert. Admin. R. at 43.) The Treasurer's letter further stated that "a new tax statement [is enclosed] for the above mentioned parcel." (Cert. Admin. R. at 43.) The new property tax statement did not include the homestead deduction.

On April 25, Kellam visited the Treasurer's office to find out that the term "C of E" that was used in the Treasurer's letter meant "Correction of Error." (Cert. Admin. R. at 92.) Kellam then visited the Assessor's office to find out the reason for the change. The Assessor explained that the homestead deduction was removed because no one lived there, as shown by the lack of utility usage. Kellam responded that the house was being totally renovated, and while doing the work, he was staying next door with Myers' parents. Moreover, the Assessor said that Kellam had another problem because he still had a homestead deduction on his Wells County property for 2010. The Assessor told Kellam that if he had the Wells County homestead deduction removed, however, she would reinstate the homestead deduction on his Fountain County property.

On May 9, 2011, Kellam faxed the Fountain County Assessor a "corrected" Wells County property tax statement indicating that he had successfully removed the Wells County homestead deduction. That day, the Fountain County Auditor informed Kellam that she was denying the homestead deduction anyway because Myers already had a homestead deduction on her Grant County residence and had signed the Fountain County application.

On May 19, 2011, Kellam filed a Petition for Correction of an Error (Form 133). The Fountain County Property Tax Assessment Board of Appeals denied Kel-lam's petition on June 6, 2011. Kellam then appealed to the Indiana Board, which conducted a hearing on August 14, 2012, and issued a final determination denying the deduction on October 9, 2012.

On November 16, 2012, Kellam filed this original tax appeal. The Court heard the parties' arguments on July 25, 2013. Additional facts will be supplied as necessary.

STANDARD OF REVIEW

The party seeking to overturn a final determination of the Indiana Board must demonstrate that the determination is invalid. Hubler Realty Co. v. Hendricks Cnty. Assessor, 938 N.E.2d 311, 313 (Ind. Tax Ct.2010). The Tax Court may reverse the Indiana Board's final determination if it is arbitrary, capricious, an abuse of dis-eretion, not in accordance with law, or unsupported by substantial or reliable evidence. See Ind.Code § 33-26-6-6(e)(1), (5) (2013). On review, the Court will neither reweigh the evidence nor judge the credibility of witnesses, but the Court will review any questions of law arising from the Indiana Board's factual findings de movo. See Grant Cnty. Assessor v. Kerasotes Showplace Theatres, LLC, 955 N.E.2d 876, 880 (Ind. Tax Ct.2011).

LAW

"Each year a homestead is eligible for a standard deduction from the assessed value of the homestead for an assessment date." Ind.Code § 6-1.1-12-37(b) (2009) {amended 2013). For purposes of this deduction, a "homestead" is defined, in relevant part, as "an individual's principal place of residence: (A) that is located in Indiana; [and] (B) that: (1) the individual owns." I.C. § 6-1.1-12-37(a)(2)(A), (B)(i) (emphasis added). Although Cope § 6-1.1-12-37 does not define the term "principal place of residence," the term is defined by regulation as "an individual's true, fixed, permanent home to which the individual has the intention of returning after an absence." See 50 Ind. Admin.Code 24-2-5 (2009) (see http://www.in.gov/ legislative/iac/) (emphasis added); I.C. § 6-1.1-12-37.

To obtain a homestead deduction, an individual must file a certified application with the auditor of the county in which the homestead is located. See I.C. § 6-1.1-12-37(e). Among other things, the application must include:

(1) the parcel number or key number of the property and the name of the city, town, or township in which the property is located;
(2) the name of any other location in which the applicant or the applicant's spouse oums, is buying, or has a beneficial interest in residential real property;
(3) the names of:
(A) the applicant and the applicant's spouse (if any).

1.0. § 6-1.1-12-87(e)(1)-(3)(A) (emphases added).

ANALYSIS

The Indiana Board's final determination stated the following rationale for denying Kellam a homestead deduction on his Fountain County property:

The most important reason the deduction should have been denied is that [Kellam] and co-owner Myers both had homesteads in other Indiana counties when the application was filed. There fore, neither one was eligible for the homestead standard deduction on the subject property. Contrary to what the [Assessor] said during the hearing, an individual may have only one homestead standard deduction per year. The subject property needed to be [Kellam's] principal residence, as a person cannot have more than one principle [sic] residence. n

(Cert. Admin. R. at 25 ¶ 32 (footnote added).) On appeal, Kellam raises several issues that the Court restates as whether the Indiana Board's final determination is unsupported by substantial or reliable evidence or is contrary to law.

Only an individual or married couple can obtain a homestead deduction on the individual's or married couple's property. See I.C. § 6-1.1-12-37(e). But see L.C. § 6-1.1-12-37(a)(2)(B)(iii)-(iv), (e)(3)(B), (k) (permitting certain entities to claim the deduction on an individual's or married couple's homestead under certain cireum-stances). Moreover, an individual or married couple can generally have a homestead deduction on just one property-a See § 6-1.1-12-37(a)(2); I.C. § 61.1-12-37(h)(1)-(2) (denying the homestead deduction to individuals or married couples who claim the deduction on more than one property in a given year, with the exception discussed supra note 2.) "principal place of residence." See I.C.

' Kellam and Myers both signed the 2009 homestead deduction application for the Fountain County property they co-owned. Nonetheless, they were ineligible to claim a homestead deduction together because they were not a married couple. See I.C. 6-1.1-12-37(e). The Indiana Board concluded, however, that neither Kellam nor Myers was individually eligible for a homestead deduction on the Fountain County property because "both had homesteads in other Indiana counties." (Cert. Admin. R. at 25 ¶ 32.)

Myers had a homestead deduction on a property in Grant County in 2010. (Cert. Admin. R. at 93, 128.) Accordingly, she could not elaim a second homestead deduction on the Fountain County property in 2010. See I.C. § 6-1.1-12-37(a)(2), (h)(1)-(2).

Kellam would also be ineligible for a homestead deduction on the Fountain County property in 2010 if he continued to receive a homestead deduction on his Wells County property in 2010. In April 2011, the Assessor's records showed that Kellam still had a homestead deduction on his Wells County property in 2010. (See Cert. Admin. R. at 3, 93, 105.) Nonetheless, Kellam submitted further evidence indicating that the Wells County Auditor subsequently removed the 2010 homestead deduction, that Kellam paid the additional tax owed as a result of its removal, and that Kellam notified the Fountain County Assessor of these events. (See Cert. Admin. R. at 63-64, 71-72, 138-143.)

To demonstrate that he did not receive a homestead deduction for his Wells County property in 2010, Kellam presented a document he received from the Fountain County Assessor containing information about the Wells County property. (Cert. Admin. R. at 71-72, 138-40.) Kellam pointed out that, although the document indicated that he received a $29,760 homestead deduction in 2010, it also showed that he paid $477.08 in property taxes: the total amount of property tax due if the $29,760 homestead deduction was not applied. (See Cert. Admin. R. at 64, 72, 141-43.) Kellam testified that this document, together with his other evidence, established that he had paid taxes on his Wells County property in an amount inconsistent with receiving the benefit of the homestead deduction in 2010. (See Cert. Admin. R. at 140-43.) The Assessor agreed and presented no contradictory evidence. (See Cert. Admin. R. at 78-85, 100-14, 118, 128-25, 127-31, 133-38, 141-144, 146-147, 156, 158-72, 176-77.) Therefore, a finding that Kellam did not qualify for a homestead deduction on the 2010 Fountain County property because he had a 2010 homestead deduction on a Wells County property is unsupported by substantial or reliable evidence. See Meijer Stores Ltd. P'ship v. Smith, 926 N.E.2d 1134, 1139 (Ind. Tax Ct.2010) (reversing the Indiana Board's determination in favor of an assessor as not based on substantial evidence because the assessor "presented no evidence against which to weigh or discount" the taxpayer's evidence).

The Indiana Board also appears to have concluded that the Fountain County property was not Kellam's "principal place of residence" because Kellam was not physically residing there. (See Cert. Admin. R. at 21 ¶ 21, 25 ¶ 32.) The legal standard for determining an individual's principal place of residence, however, depends on the "intention" to return to the property after an absence, not continuous physical presence at the property. See 50 I.A.C. 24-2-5. In addition to explaining that he was not physically residing at the property because he was renovating it, Kellam testified that he alone intended to seek the homestead deduction for the Fountain County property. (See Cert. Admin. R. at 91-92, 97-98, 120.) Moreover, as further evidence of his intent, the certified administrative record reveals that he used the Fountain County property as his mailing address; as the location of his voter registration; and as the address on his driver's license, bank statements, and tax returns. (See Cert. Admin. R. at 173.) Accordingly, the Indiana Board's conclusion that the Fountain County property was not Kellam's principal place of residence is contrary to law.

CONCLUSION

For the above-stated reasons, the Court finds that the Indiana Board's final determination denying Kellam a 2010 homestead standard deduction on his Fountain County property is unsupported by substantial or reliable evidence and is contrary to law. Consequently, the Indiana Board's final determination is REVERSED and REMANDED for action consistent with this decision.

      . This sentence appears to apply to 2009, the year the application was filed, but 2009 is not the year at issue.

      . This misstates the law because an individual who receives a homestead deduction on a property on March ist of a year may also qualify for a homestead deduction on another property that same year if the sole reason for the second application is that the individual's principal residence moved to the second property after March 1st that year. See Ind. CoDe § 6-1.1-12-37(h) (2009) (eff. July 1, 2009) (amended 2011). Thus, it is possible that a claimant may have two homestead deductions in the year he applies for the homestead deduction on a new property, as Kellam did in 2009.

      . On appeal, the Assessor claimed that Myers' Grant County homestead deduction disqualified Kellam from obtaining the Fountain County homestead deduction because he and Myers "maintained" a principal place of residence together. (See Resp't Resp. Br. at 7-8 (citing I. C. § 6-1.1-12-37(f)(2)(B) (stating that "an individual who is receiving the deduction provided by this section ... is no longer eligible ... [if] the individual maintains the individual's principal place of residence with another individual who receives a deduction under this section'")).) Nonetheless, the Assessor did not raise this issue before the Indiana Board, and the Indiana Board did not consider the issue in its final determination. Consequently, the issue is waived. See Word of His Grace Fellowship, Inc. v. State Bd. of Tax Comm'rs, 711 N.E.2d 875, 878-79 (Ind. Tax Ct.1999) (finding that an issue not raised by a party at the administrative level was waived).


author: BRENT E. DICKSON, Chief Justice.

text:
    In the Matter of David J. SOKOLOWSKI, Respondent.
    No. 20S00-1307-DI-485.
    Supreme Court of Indiana.
    Dec. 19, 2013.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW IN INDIANA FOR NONCOOPERATION

BRENT E. DICKSON, Chief Justice.

On July 23, 2018, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission's investigation of a grievance filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court's order to show cause. On November 6, 2018, the Commission filed a "Request for Ruling and to Tax Costs" asserting that Respondent still has not cooperated.

Being duly advised, the Court ORDERS that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. Pursuant to Admission and Discipline Rule 23(10)(f)(8), this suspension shall continue until: (1) the Executive Secretary of the Disciplinary Commission certifies to the Court that Respondent has cooperated fully with the investigation; (2) the investigation or any disciplinary proceedings arising from the investigation are disposed of; or (3) until further order of this Court, provided there are no other suspensions then in effect. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED, pursuant to Admission and Discipline Rule 23(10)({)(5), that Respondent reimburse the Disciplinary Commission $524.44 for the costs of prosecuting this proceeding. If not paid by the due date of the next annual registration fee (October 1), Respondent will be subject to suspension for nonpayment of costs. See Admis. Disc. R. 23(10)(f)(5) and 2(b).

The Clerk of this Court is directed to give notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys. The Clerk of this Court is further directed to give notice of this order to the Disciplinary Commission and to all other entities entitled to notice under Admission and Discipline Rule 28(8)(d). The Clerk is further directed to post this order to the Court's website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court's decisions.

All Justices concur.


text:
    In the Matter of William DROZDA, Petitioner.
    No. 45S00-9105-DI-422.
    Supreme Court of Indiana.
    Dec. 19, 2013.
   PUBLISHED ORDER GRANTING REINSTATEMENT TO THE PRACTICE OF LAW

In 1991, the Indiana Supreme Court Commission filed a verified complaint against Petitioner. The Commission and Petitioner agreed to interim suspension, effective December 11, 1991. On June 16, 1995, the Court imposed suspension for not less than three years, with credit for time already suspended. See Matter of Drozda, 653 N.E.2d 991 (Ind.1995). Petitioner filed a petition for reinstatement on September 13, 2012. On November 12, 2013, the Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 28(18)(b), filed its recommendation that Petitioner be reinstated to the practice of law in Indiana.

A petition for reinstatement may be granted only if the petitioner proves to the Commission by clear and convincing evidence that:

(1) The petitioner desires in good faith to obtain restoration of his or her privilege to practice law;
(2) The petitioner has not practiced law in this State or attempted to do so since he or she was disciplined;
(3) The petitioner has complied fully with the terms of the order for discipline;
(4) The petitioner's attitude towards the misconduct for which he or she was disciplined is one of genuine remorse;
(5) The petitioner's conduct since the discipline was imposed has been exemplary and above reproach;
(6) The petitioner has a proper understanding of and attitude towards the standards that are imposed upon members of the bar and will conduct himself or herself in conformity with such standards;
(7) The petitioner can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and an officer of the Courts;
(8) The disability has been removed, if the discipline was imposed by reason of physical or mental illness or infirmity, or for use of or addiction to intoxicants or drugs;
(9) The petitioner has taken the Multi-state Professional Responsibility Examination (MPRE) within six (6) months before or after the date the petition for reinstatement is filed and passed with a scaled score of eighty (80) or above.

Admis. Disc. R. 23(4)(b).

This Court, being duly advised, finds that the recommendation of the Commission should be accepted. The Court therefore GRANTS the petition for reinstatement and REINSTATES Petitioner as a member of the Indiana bar as of the date of this order. Petitioner shall pay any costs owing under Admis. Disc. R. 23(18)(d).

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

All Justices concur.


text:
    In the Matter of Gordon Lee HARPER, Respondent.
    No. 49S00-1310-DI-697.
    Supreme Court of Indiana.
    Dec. 19, 2013.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW DUE TO DISABILITY

BRENT E. DICKSON, Chief Justice.

Pursuant to Indiana Admission and Discipline Rule 23, Section 25, on October 24, 2013, the Disciplinary Commission filed a "Verified Petition to Determine Disability," requesting this Court to suspend Respondent from the practice of law in this state due to disability. Respondent filed an "Affidavit of Consent to Disability Suspension" on November 6, 2013. On November 14, 2013, the Commission filed an "Unopposed Motion to Vacate Appoint ment of the Hearing Officer, and Motion to Suspend Gordon Lee Harper's License to Practice Law."

Being duly advised, the Court GRANTS the Commission's petition and motion and ORDERS that Respondent be hereby suspended from the practice of law in this state, effective immediately, due to disability, pursuant to Admission and Discipline Rule 28(25). Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). Respondent may petition for reinstatement upon termination of the disability pursuant to Admission and Discipline Rule 23(4) and (18). The hearing officer appointment in this case is hereby vacated.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 28(8)(d). The Clerk is further directed to post this order to the Court's website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court's decisions.

All Justices concur.


author: VAIDIK, Judge. BAKER, Judge,

text:
    In the Matter of the TERMINATION OF the PARENT-CHILD RELATIONSHIP OF S.B., Ay.B., A.B. & K.G. (Minor Children), and K.G. (Mother), Appellant-Respondent, v. MARION COUNTY DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner, Child Advocates, Inc., Co-Appellee (Guardian ad Litem).
    No. 49A02-1303-JT-244.
    Court of Appeals of Indiana.
    Oct. 29, 2013.

      Steven J. Halbert, Carmel, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Robert J. Henke, Deputy Attorney General, Patrick M. Rhodes, Ryan Kenneth Gardner, Child Advocates, Inc., Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

In 2011, Magistrate Julianne Cartmel held an evidentiary hearing to determine whether K.G.'s ("Mother") parental rights to her four children should be terminated. Mother did not attend the hearing but she was represented by counsel. Magistrate Cartmel resigned after the hearing without reporting factual findings or conclusions to the juvenile court. The case was transferred to Magistrate Larry Bradley. Magistrate Bradley reviewed the record and reported factual findings and conclusions to Judge Marilyn Moores, who approved Magistrate Bradley's findings and conclusions and issued an order terminating Mother's parental rights.

This case is one of a number of termination cases arising from Magistrate Cart-mel's resignation to reach this Court. The appellants challenge Magistrate Bradley's authority to report factual findings and conclusions without having presided over the underlying evidentiary hearing. In this specific case, Mother argues that the order terminating her parental rights violated Indiana law and her due-process rights because it was based on the findings of a magistrate who did not preside over the evidentiary hearing.

We conclude that the termination order does not violate Indiana law because the relevant statutory section does not prohibit Magistrate Bradley's actions. We also conclude that the order does not violate Mother's due-process rights because the underlying evidence was undisputed and did not require Magistrate Bradley to make any credibility determinations. Specifically, there was no dispute that Mother had not successfully completed services and had not secured stable housing or employment. There was also no dispute that Mother had stopped visiting the children and communicating with caseworkers. We therefore find that Magistrate Bradley did not err by reviewing the record and reporting findings and conclusions to Judge Moores without holding a new evi-dentiary hearing. We affirm the termination of Mother's parental rights.

Facts and Procedural History

Mother has four sons: ten-year-old S.B., seven-year-old Ay.B., five-year-old A.B., and four-year-old K.B. In 2011, the local Marion County Department of Child Services ("MCDCS") learned that Mother was using drugs and the children had been living intermittently in a car and with relatives. The children were removed from Mother's care and adjudicated children in need of services ("CHINS"). Mother was ordered to complete a variety of services, including home-based counseling, home-based case management, and substance-abuse assessments. She was also required to visit the children regularly, obtain housing and employment, and maintain contact with MCDCS. Mother ultimately failed to do all of these things.

As a result, MCDCS filed a petition to terminate Mother's parental rights. Mother did not attend the evidentiary hearing on the termination petition, but she was represented by counsel at the hearing. At the hearing, caseworkers testified that Mother had stopped visiting the children and communicating with MCDCS. Caseworkers also testified that Mother had failed to complete services and had not secured stable housing or employment. The children, meanwhile, were thriving in a relative placement, and those involved with the case unanimously recommended the termination of Mother's rights. At the conclusion of the hearing, Magistrate Cart-mel took the matter under advisement.

Magistrate Cartmel resigned after the hearing without reporting factual findings or conclusions to the juvenile court. The case was transferred to Magistrate Bradley, who reviewed the record and reported factual findings and conclusions to Judge Moores. Judge Moores approved Magistrate Bradley's findings and conelusions, and in March 2018, Judge Moores issued an order terminating Mother's rights to the children.

Mother now appeals.

Discussion and Decision

On appeal, Mother argues that the termination order violated Indiana law and her due-process rights because it was based on the findings and conclusions of a magistrate who did not preside over the evidentiary hearing. Mother does not challenge the sufficiency of the evidence underlying the termination order.

The State argues that Mother waived her right to challenge Magistrate Bradley's review of the evidence by failing to object at the trial level. See Appellant's App. p. 15-16. We disagree. It does not appear Mother was even aware of Magistrate Bradley's involvement in the case until the termination order was entered. Mother properly challenged the termination order by filing a timely appeal.

I. The Termination Order

Mother argues that the termination order violated Indiana law, specifically Indiana Code section 33-23-5-9. Section 33-23-5-9 states that "except as provided under subsection (b), a magistrate shall report findings in an evidentiary hearing, a trial, or a jury's verdict to the court.[] The court shall enter the final order." Nothing in Section 33-23-5-9 requires that the reporting magistrate be the magistrate who presided over the evidentiary hearing. We cannot agree that the order violated Section 33-23-5-9.

Mother also argues that her due-process rights were violated because the termination order is based on findings of a magistrate who did not preside over the underlying evidentiary hearing.

Where evidence is heard by a trial judge who later dies or resigns from office before making findings or ruling on the evidence, the general rule is that a successor judge may not make findings or conclusions without a trial de novo. In re Adoption of A.S., 912 N.E.2d 840, 845 (Ind.Ct.App.2009) (citing Farner v. Farner, 480 N.E.2d 251, 257 (Ind.Ct.App.1985)), trans. denied. "This is because 'a party to an action is entitled to a determination of the issues by the jury or judge that heard the evidence'" Farner, 480 N.E.2d at 257 {citation omitted). However, parties may stipulate that a successor judge should determine the case on the record, so long as the case does not involve credibility issues. Id.

By contrast, "in a case where the resolution of a material issue requires a determination as to the weight and eredi-bility of testimony, due process requires that the trier of fact hear all of the evidence necessary to make a meaningful evaluation." Id. (citation omitted). When a successor judge attempts to resolve ered-ibility and weight-of-evidence issues without 'having heard the evidence and observed the demeanor of witnesses, the judge deprives the parties of an essential element of the trial process. Urbanational Developers, Inc. v. Shamrock Eng'g, Inc., 175 Ind.App. 416, 872 N.E.2d 742, 746 (1978) (citation omitted). "Such an undertaking by the successor judge is against the logic and effect of the facts and circumstances before the court and amounts to an abuse of discretion." Id.

Here, the evidence at the underlying termination hearing was undisputed and there were no credibility determinations to be made. Mother did not attend the hearing. In Mother's absence, caseworkers testified that Mother had stopped visiting the children and communicating with MCDCS. Caseworkers also testified that Mother had failed to complete the required services and had not secured stable housing or employment. No witness testified that Mother should be given more time to complete services or that the children should be returned to Mother's care; in fact, those involved with the case testified unanimously that termination of Mother's rights was in the children's best interests. This is the type of case in which parties may stipulate that a substitute judge should determine the case on the record. Farner, 480 NE2d at 257-58. Despite the fact that the parties did not so stipulate here, the evidence in this case was undisputed and did not require Magistrate Bradley. to make any credibility determinations. For this reason, we cannot say that Magistrate Bradley erred in reporting. findings and conclusions to Judge Moores without holding a new evidentiary hearing. -

Because this case implicates Mother's due-process rights, we note that any risk presented by the procedure used here is minimal. See In re C.G., 954 N.E.2d 910, 917 (Ind.2011) (Because both the State and the parent have substantial interests in termination proceedings, when determining what process is due, we consider the risk of error created by DCS's actions and the trial court's actions.). Mother did not attend the evidentiary hearing but she was represented by counsel who had the opportunity to present evidence in Mother's favor and cross-examine witnesses.

Affirmed.

FRIEDLANDER, J., concurs.

BAKER, J., concurs in resu1_t with separate opinion. A

BAKER, Judge,

concurring in result.

I agree with the majority's determination that Magistrate Bradley had the proper authority to report factual findings and conclusions of law without having presided over the underlying evidentiary hearing. However, while the majority points out that the evidence presented at the termination hearing was undisputed, I part ways with the notion that Mother's due process rights would have been violated thus requiring a new evidentiary hearing even if Magistrate Bradley had to make credibility determinations when reviewing the record.

When the State seeks to terminate the parent-child relationship, it must do so in a manner that meets the requirements of the due process clause. A fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Thompson v. Clark County Div. of Family & Children, 791 N.E.2d 792, 795 (Ind.Ct.App.2003).

As the majority observes, Magistrate Bradley reviewed the record following Magistrate Cartmel's resignation. Absent his careful review of the evidence, he would have been unable to issue the specific findings that are contained in his proposed order. Even more compelling, Mother has not identified any specific prejudice that resulted from Magistrate Bradley's review of the record and his subsequent recommendation of the findings of fact and conclusions of law. Indeed, one who seeks to disturb a judgment has the burden of showing an erroneous ruling and resultant prejudice. TeWalt v. TeWalt, 421 N.E.2d 415, 420 (Ind.Ct.App.1981). The fact that a determination was made by a judge or magistrate is not conclusive on the issue of neutrality. Green v. State, 676 N.E.2d 755, 761 (Ind.Ct.App.1996). However, a judge is presumed by law to be unbiased and unprejudiced. To overcome this presumption, the party seeking to disqualify a judge must establish actual personal bias. Hite v. Haase, 729 N.E.2d 170, 176 (Ind.Ct.App.2000).

Although Mother did not appear at the evidentiary hearing on the termination petition, she was represented by counsel. Op. at 421. Mother's counsel was provided with the opportunity to cross-examine the State's witnesses, as well as the opportunity to introduce evidence in defense of the action. Under these cireumstances, we have recognized that the risk of an inaceu-rate result decreases significantly. Im re C.T., 896 N.E.2d 571, 587 (Ind.Ct.App.2008). It is apparent that counsel protected Mother's interests during the trial, thus decreasing the chance of an error in the evidence that Magistrate Bradley had reviewed.

In sum, I believe that Mother has failed to demonstrate how she was prejudiced as a consequence of Magistrate Bradley's issuance of findings of fact and conclusions of law and recommended order after reviewing the evidence. Thus, I do not believe that Mother's due process rights were violated.

I also note that the provisions of Indiana Trial Rule 63(A) permitted Magistrate Bradley to enter the proposed termination order. This rule provides that

(A) Disability and unavailability after the trial or hearing. The judge who presides at the trial of a cause or a hearing at which evidence is received shall, if available, hear motions and make all decisions and rulings required to be made by the court relating to the evidence and the conduct of the trial or hearing after the trial or hearing is conelud-ed. If the judge before whom the trial or hearing was held is not available by reason of death, sickness, absence or unwillingness to act, then any other judge regularly sitting in the judicial cireuit or assigned to the cause may perform any of the duties to be performed by the court after the verdict is returned or the findings or decision of the court is filed; but if he is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial or new hearing, in whole or in part. The unavailability of any such trial or hearing judge shall be determined and shown by a court order made by the successor judge at any time.

Here, it is apparent that Magistrate Cartmel was unavailable to enter a proposed final order or judgment regarding the petition to terminate Mother's parental rights because of her resignation after the final hearing but before a ruling was made. Under Trial Rule 63(A), any other judge regularly sitting in the judicial circuit asked to rule in the present case could, in his or her discretion, grant a new trial or hearing if he or she was satisfied that the substitute duties for Magistrate Cartmel could not be performed. Similarly, Magistrate Bradley is in the same superior court as was Magistrate Cartmel. Thus, he could prepare findings from a record that was created before the initial judge, or he could have granted a new hearing if he deemed it necessary to do so. See Ruby v. State, 166 Ind.App. 310, 315, 335 N.E.2d 635, 638 (1975) (finding no error when the judge who heard the evidence in a post-conviction relief case found against the petitioner but later died, and the judge's successor, with the assistance of the record of the hearing, made the required findings consistent with the previous decision). Like the cireumstances in Ruby, I do not believe that Magistrate Bradley erred in issuing the recommended order on the pending termination petition, nor would he have erred had he been called upon to make credibility determinations.

Finally, I maintain that the decision to issue the order that was consistent with the evidence presented at the termination hearing was a logical one, and permitting the decision to linger would have delayed the children's permanent placement. For these reasons, I agree that it was proper for Magistrate Bradley to review the evidence and issue a recommendation and proposed order to terminate Mother's parental rights. Thus, I concur in the result reached by the majority.

      . A.M.B. is the father of S.B., Ay.B., and A.B. His parental rights have been terminated and he does not participate in this appeal. The father of K.B. is unknown. Mother also gave birth to a fifth child, D.G., shortly after the children were removed from her care. Although D.G. has also been removed from Mother's care, he is not involved in this case.

      . Mother also implies that the termination order is deficient because the order says that Magistrate Bradley reviewed the record, but it is not clear what that review entailed. However, this Court has held that there is no "show your work" requirement in Indiana Code section 33-23-5-9. See R.W. v. Marion Cnty. Dep't of Child Servs., 892 N.E.2d 239, 244 (Ind.Ct.App.2008) ("'There is no 'show your work' requirement contained in Indiana Code section 33-23-5-9. The clear and unambiguous language of this statute simply requires a magistrate to report his or her findings, following an evidentiary hearing, to the trial court. It does not prescribe a specific method for doing so."). Magistrate Bradley was not required to explain the manner in which he reviewed the record.

      . Subsection (b) relates to criminal proceedings and is not relevant here.

      . For this reason, this case is distinguishable from another case stemming from Magistrate . Cartmel's resignation. In In re D.P., another panel of this Court concluded that a father's due-process rights were violated when Magistrate Bradley reviewed the record and reported factual findings and conclusions that Judge Moores later approved. See In re D.P., 994 N.E.2d 1228 (Ind.Ct.App.2013). However, in that case, the father testified and witnesses gave conflicting testimony regarding the child's removal and the father's ability to remedy the conditions leading to removal. Because the evidence was in conflict and credibility determinations had to be made, a new evidentiary hearing was required.

      . For the first time in her reply brief, Mother references Trial Rule 63(A), arguing that it does not allow Magistrate Bradley to review the record and recommend findings and conclusions. But a party may not raise an argument for the first time on appeal in her reply brief. See Ind. Appellate Rule 46(C) ("No new issues shall be raised in the reply brief"). Nonetheless, we cannot agree that Trial Rule 63(A) prohibits Magistrate Bradley's actions. Rather, the rule "confers 'discretion' upon the successor judge to grant a new trial or new hearing ... when he is satisfied that he cannot perform the duties of the regular judge because he did not preside at the trial." Urbanational Developers, Inc., 372 N.E.2d at 746 (emphasis added).

      . The majority distinguishes this case from In re D.P., 994 N.E.2d 1228 (Ind.Ct.App.2013), where a different panel of this Court determined that a Father's due process rights were violated when Magistrate Bradley reviewed the record and reported factual findings and conclusions that Judge Moores subsequently approved. In that case, the evidence was in conflict and credibility determinations had to be made. Thus, the panel in D.P. concluded that a new evidentiary hearing was required. Op. at 422 n. 4.