author: RUCKER, Justice.

text:
    Martez BROWN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 48S02-1406-CR-363.
    Supreme Court of Indiana.
    June 2, 2014.

      David W. Stone IV, Stone Law Office and Legal Research, Anderson, IN, for Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, for Attorneys for Appellee.
   On Petition To Transfer from the Indiana Court of Appeals, No. 48A02-1212-CR-1007

RUCKER, Justice.

Martez Brown appeals his 150-year sentence imposed for two counts of murder and one count of robbery. Exercising our constitutional authority we revise Brown’s sentence.

Facts and Procedural History

Sometime during the late evening hours of Friday, November 26 and the early morning hours of Saturday, November 27, 2010, three teenagers — eighteen-year-old Na-Son Smith, sixteen-year-old Martez Brown, and fifteen-year-old Jacob Fuller— robbed Stephen Streeter and his girlfriend Keya Prince in their Anderson home. Streeter and Prince were shot and killed during the robbery, and Brown and his friends absconded with several thousand dollars in cash, several pounds of marijuana, two video game systems, two flat-screen televisions, and a 9mm handgun. The bodies of Streeter and Prince were discovered the following Monday when police conducted a welfare check at their home. In the days following the crime Brown sold the stolen 9mm handgun, which eventually made its way into the hands of police investigating the murders.

Approximately four days after the victims’ bodies were discovered, Brown was arrested in connection with the crime and gave police a statement — which he subsequently recanted when called as a witness during Fuller’s trial — implicating himself, Fuller, and Smith in the double killings. Specifically Brown explained that he, Fuller and Smith had targeted Streeter because they heard he was a drug dealer and kept large amounts of cash. See State’s Ex. 172 (Tr. of Brown’s Interview at 24-25). According to Brown, Fuller drove the three of them to Streeter’s house; each of the teenagers was armed with a gun; and the trio entered the house, bound Streeter, and grabbed Prince. While Brown was “looking for money and the bud,” Fuller shot Prince once in the chest. Id. at 29. According to Brown, shortly thereafter Smith shot Streeter once in the back of the head. Brown told police his friends shot the victims because they were afraid of being recognized. After the robbery Brown and his cohorts went on a shopping spree in which they spent the proceeds. They were later identified in a Walmart surveillance video during one of these excursions. And police later recovered photographs retrieved from the cell phones of Smith and Fuller taken shortly after the crime depicting the trio displaying large amounts of cash. State’s Ex. 157a.

The State charged Brown with two counts of murder, one count of robbery as a Class A felony, one count of burglary as a Class A felony, and one count of theft as a Class D felony. The State also sought a sentence of life imprisonment without parole. Although the record is not entirely clear, it appears that Brown at one point entered a plea agreement with the State that was either withdrawn or not accepted by the trial court. In any event Brown eventually waived his right to trial by jury and his three-day bench trial began October 30, 2012, at the conclusion of which the State moved to dismiss the burglary charge and its request for a sentence of life without parole. The trial court granted the motion and found Brown guilty of the remaining charges. At the sentencing hearing the trial court reduced the robbery conviction to a Class B felony because of double jeopardy concerns and did not enter judgment for theft finding it a lesser included offense of the robbery. After recounting and weighing the aggravating and mitigating factors the trial court ultimately sentenced Brown to the maximum term of sixty-five years for each murder and the maximum term of twenty years for the robbery, all to be served consecutively, resulting in an aggregate sentence of 150 years.

Brown appealed raising several claims including the appropriateness of his sentence, all of which the Court of Appeals rejected. See Brown v. State, No. 48A02-1212-CR-1007, 2013 WL 3894117 (Ind.Ct. App. July 30, 2013). We now grant Brown’s petition to transfer to address his appropriateness claim. In all other respects we summarily affirm the opinion of the Court of Appeals. See Ind. Appellate Rule 58(A)(2). Additional facts are set forth below.

Discussion

Typically, the juvenile court has jurisdiction over sixteen-year-old teenagers like Brown. However, in the case of some crimes — including murder and robbery— “[t]he juvenile court does not have jurisdiction over an individual ... [who] was at least sixteen (16) years of age at the time of the alleged violation.” I.C. § 31-30-1-4(a). It is by virtue of this statute that Brown was tried as an adult. The sentencing range for an adult convicted of murder is forty-five to sixty-five years, with the advisory sentence being fifty-five years. I.C. § 35-50-2-3(a). The sentencing range for Class B felony robbery is six to twenty years, with the advisory sentence being ten years. I.C. § 35-50-2-5. In addition, the trial court has discretion to “determine whether terms of imprisonment shall be served concurrently or consecutively ... [and] may consider” aggravating and mitigating circumstances in making such a determination. I.C. § 35-50-l-2(e).

At the sentencing hearing, before imposing sentence the trial court commented: “This is a community tragedy. It’s a significant community tragedy and it requires a powerful response and my job, my role here is to act as the voice of the community and tell you what the community thinks about what you’ve done.” Tr. at 429-30. The trial court then considered the aggravating and mitigating factors. In aggravation the court identified the following: (1) two people were killed; (2) Brown’s history of criminal and delinquent activity; (3) the offenses were committed in the presence of a person under eighteen years of age (cohort Jacob Fuller who was fifteen); (4) Brown had recently violated probation; and (5) that Brown conspired with his co-defendants to commit the offenses. Tr. at 430. In mitigation, the trial court found: (1) Brown initially cooperated with law enforcement by giving a statement; and (2) Brown’s young age. Tr. at 431. The trial court then imposed the maximum sentence possible: Sixty-five years for Street-er’s murder, plus sixty-five years for Prince’s murder, plus twenty years for the robbery, all to be served consecutively.

The trial court certainly acted well within its broad discretion in imposing this sentence. But see infra note 3. However, “[e]ven where a trial court has not abused its discretion in sentencing, the Indiana Constitution authorizes independent appellate review and revision of a trial court’s sentencing decision.” Pierce v. State, 949 N.E.2d 349, 352 (Ind.2011) (citing Ind. Const. art. 7, §§ 4, 6; Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.2007), clarified on reh’g by 875 N.E.2d 218). We implement this authority through Indiana Appellate Rule 7(B), which provides that we may “ ‘revise a sentence authorized by statute if, after due consideration of the trial court’s decision’ ” we find “ ‘the sentence is inappropriate in light of the nature of the offense and the character of the offender.’ ” Anglemyer, 868 N.E.2d at 491 (quoting App. R. 7(B)). Whereas prior to 2003 our authority to revise was confined to cases in which the sentence was “manifestly unreasonable in light of the nature of the offense and the character of the offender,” see App. R. 7(B) (2002) (emphasis added), the current rule reflects our “modest steps to provide more realistic appeal of sentencing issues.” Serino v. State, 798 N.E.2d 852, 856 (Ind.2003). Today’s Rule 7(B) “places central focus on the role of the trial judge, while reserving for the appellate court the chance to review the matter in a climate more distant from local clamor.” Id. at 856-57.

In considering the nature of the offense we recognize the advisory sentence is the starting point the Legislature selected as appropriate for the crime committed. See Anglemyer, 868 N.E.2d at 494. The trial court ultimately imposes a sentence based on the aggravating and mitigating circumstances it finds. However, in analyzing a claim under Appellate Rule 7(B), we are not limited to the mitigators and aggravators found by the trial court.

Nature of the offense

The record in this case reveals two circumstances we find important with respect to the nature of Brown’s offense.

First, and particularly important, although receiving the same maximum sentence as his two cohorts, Brown was apparently found guilty of both murders as an accomplice. As the prosecutor noted in closing argument, “the evidence suggests and probably indicates [Brown] did not kill anybody himself.” Tr. at 409. “The evidence in this case suggests he probably was not [one of] the murderers. Not one of the persons that actually pulled the trigger and took a life himself.” Id. However, the prosecutor correctly contended: “[Brown is] still guilty under the theory of accompli[ce] liability.” Id. Recently in Castillo v. State, we recognized that the “nature of the offense ... provides the strongest consideration in favor of revising the defendant’s sentence” where “the evidence was insufficient for a reasonable jury to conclude that the defendant knowingly or intentionally killed the victim but ... sufficient for the jury to find her guilty as an accomplice.” 974 N.E.2d 458, 463 (Ind.2012) (footnote omitted). In that case Engelica Castillo was sentenced to life imprisonment without parole for her role in her boyfriend’s beating death of a two-year-old child in her care. In revising Castillo’s sentence to sixty-five years we relied in part on our case authority which acknowledged “[w]hile an accomplice may be found guilty of the crime largely executed by his principal, it does not follow that the same penalty is appropriate.” Id. at 467 (alteration in original) (quoting Martinez Chavez v. State, 534 N.E.2d 731, 735 (Ind.1989)). Cf. Graham v. Florida, 560 U.S. 48, 69, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (“[W]hen compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.”)

Our second observation is that although senseless and reprehensible, the murders in this case were not particularly heinous. This Court has declared that a murderer is deserving of an enhanced sentence under facts where “the nature of the killings are brutal.” Taylor v. State, 840 N.E.2d 324, 341 (Ind.2006). In Taylor, the defendant alleged his appellate counsel was ineffective for failing to, among other things, challenge his maximum sixty-year sentence on the basis that the aggravators were improper, specifically the aggravator that the crime was particularly heinous. In that context we observed that the crime at issue — accomplice murder by single gunshot to the heart, taking place in the victim’s home, the motive of which was to collect money from the victim — did not warrant an enhancement for heinousness. See id. at 341-42 (contrasting Taylor’s crime with cases in which the death was “painful and torturous to the victim,” in which a defendant “killed his parents in front of his nine-year-old sister,” and in which “the murder resulted from the aggravated burglary of a 92-year-old man who was confined to his hospital bed”) (citations omitted). In this case there is no evidence that the victims were tortured, beaten, or lingered in pain. Although the trial court here did not explicitly identify heinousness as an aggravating factor, we find this factor relevant in our determination of the appropriateness of Brown’s sentence under Appellate Rule 7(B).

Character of the offender

The presentence report reflects that the instant offenses are the first for which Brown was charged as an adult. See App. at 64. And although Brown has a lengthy history of juvenile adjudications, the only violent offense appears to be a 2009 battery incident. See id. at 63. Although not reflecting favorably upon Brown’s character, Brown’s offenses do not appear particularly grave and more importantly are not related to his murder convictions. See, e.g., Wooley v. State, 716 N.E.2d 919, 929 n. 4 (Ind.1999) (recognizing that the significance of a criminal history in sentencing “varies based on the gravity, nature and number of prior offenses as they relate to the current offense”). See also Ruiz v. State, 818 N.E.2d 927, 929 (Ind.2004) (concluding that history of four alcohol-related misdemeanors did not support aggravation of sentence for Class B felony child molesting even though alcohol was involved in the instant offense). Cf. Vasquez v. State, 762 N.E.2d 92, 97 (Ind.2001) (affirming enhanced sentence for murder where criminal history reflected an escalation of violence).

The record also reflects that Brown has been using alcohol and marijuana since the age of ten, and he admitted to daily marijuana use. App. at 66.5. In one sense such abuse may be interpreted as evidence of Brown’s bad character. Indeed, longstanding drug or alcohol abuse without improvement despite opportunities for rehabilitation may support such a conclusion. See Mefford v. State, 983 N.E.2d 232, 237-38 (Ind.Ct.App.2013), trans. denied (finding forty-one-year-old defendant’s “extensive and prolonged history of alcohol and drug use despite prior treatment does not reflect positively on his character”). On the other hand where children and adolescents are the victims of addiction, this fact does not necessarily indicate bad character. As Chief Justice Roberts has observed, a juvenile offender’s difficult upbringing, which can include early drug and alcohol use, can serve to diminish the juvenile’s culpability and weigh in favor of a lesser sentence. See Graham, 560 U.S. at 92, 130 S.Ct. 2011 (Roberts, C.J., concurring in the judgment) (considering a sixteen-year-old defendant’s difficult upbringing which included use of alcohol since age nine and marijuana since age thirteen in finding defendant’s LWOP sentence for armed burglary to be disproportionate) (citing Graham, 560 U.S. at 53, 130 S.Ct. 2011). In this case, we view Brown’s drug use from childhood as reducing his culpability for the life path that led him to this crime.

Further supportive of Brown’s character is that upon his arrest Brown gave police a detailed account of the crime. Both Brown and his mother waived Brown’s Miranda rights and voluntarily spoke to police before consulting counsel. In fact, Brown’s uncounseled statement to police provided the only non-circumstantial evidence produced at trial. And although Brown later recanted his statement, as the trial court observed at sentencing: “The Defendant’s own statement was some of the most damning evidence against him in this case.” Tr. at 411-12.

Finally — and most significantly— Brown was only sixteen years old at the time of the crime. We take this opportunity to reiterate what the United States Supreme Court has expressed: Sentencing considerations for youthful offenders— particularly for juveniles — are not coextensive with those for adults. See Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407 (2012) (requiring the sentencing judge to “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison” (footnote omitted)). Thus, both at initial sentencing and on appellate review it is necessary to consider an offender’s youth and its attendant characteristics.

In holding death sentences and mandatory life without parole sentences for those under the age of eighteen to be unconstitutional, the United States Supreme Court has underpinned its reasoning with a general recognition that juveniles are less culpable than adults and therefore are less deserving of the most severe punishments. See Graham, 560 U.S. at 68, 130 S.Ct. 2011. This presumption that juveniles are generally less culpable than adults is based on previous and ongoing ‘“developments in psychology and brain science’” which “ ‘continue to show fundamental differences between juvenile and adult minds’ ” in, for instance, “ ‘parts of the brain involved in behavior control.’ ” Miller, 132 S.Ct. at 2464 (quoting Graham, 560 U.S. at 68, 130 S.Ct. 2011). The Supreme Court has discerned “three significant gaps between juveniles and adults.” Id. First, “[a]s compared to adults, juveniles have a ‘lack of maturity and an underdeveloped sense of responsibility.’ ” Graham, 560 U.S. at 68, 130 S.Ct. 2011 (quoting Roper v. Simmons, 543 U.S. 551, 569, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (quotation omitted)). Second, “they ‘are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure,’ ” Id. (quoting Roper, 543 U.S. at 569, 125 S.Ct. 1183), and “they have limited ‘contro[l] over their own environment’ and lack the ability to extricate themselves from horrific, crime-producing settings.” Miller, 132 S.Ct. at 2464 (alteration in original) (quoting Roper, 543 U.S. at 569, 125 S.Ct. 1183). Finally, “a child’s character is not as ‘well formed’ as an adult’s ... and his actions [are] less likely to be ‘evidence of irretrievabl[e] deprav[ity].’ ” Id. (alteration in original) (quoting Roper, 543 U.S. at 570, 125 S.Ct. 1183). “These salient characteristics mean that ‘[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’ ” Graham, 560 U.S. at 68, 130 S.Ct. 2011 (alteration in original) (quoting Roper, 543 U.S. at 573, 125 S.Ct. 1183). Even justices not finding categorical Constitutional violations in these juvenile cases agree with this precept. See Graham, 560 U.S. at 90, 130 S.Ct. 2011 (Roberts, C.J., concurring in the judgment) (“Roper’s conclusion that juveniles are typically less culpable than adults has pertinence beyond capital cases.”); Roper, 543 U.S. at 599, 125 S.Ct. 1183 (O’Connor, J., dissenting) (“It is beyond cavil that juveniles as a class are generally less mature, less responsible, and less fully formed than adults, and that these differences bear on juveniles’ comparative moral culpability.”).

Consistent with the Supreme Court’s reasoning this Court has not been hesitant to reduce maximum sentences for juveniles convicted of murder. In Carter v. State, we reduced to fifty years a fourteen-year-old’s maximum sixty-year sentence for the brutal murder of a seven-year-old girl, recognizing among other things his young age. 711 N.E.2d 835, 836-37 (Ind.1999). In the case of a sixteen-year-old who brutally beat his adoptive parents to death while they slept, we reduced a maximum 120-year sentence to eighty years. Walton v. State, 650 N.E.2d 1134, 1135, 1137 (Ind.1995). And in Widener v. State, 659 N.E.2d 529, 530 (Ind.1995), the seventeen-year-old defendant and his two eighteen-year-old cohorts planned to rob a woman as she made a night deposit after work. In executing the crime, the defendant fired multiple shots at the victim, killing her. In the days after the robbery the perpetrators spent the proceeds of their crime at the mall, going to the movies and out to eat. Finding additional mitigating circumstances not recognized by the trial court, we concluded the defendant’s seventy-year sentence was manifestly unreasonable and reduced it to an aggregate term of fifty years. Id. at 530-81, 534.

Similar to a life without parole sentence, Brown’s 150 year sentence “ ‘forswears altogether the rehabilitative ideal.’ ” Miller, 132 S.Ct. at 2465 (quoting Graham, 560 U.S. at 74, 130 S.Ct. 2011). Indeed, Brown’s sentence essentially “ ‘means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of the [juvenile] convict, he will remain in prison for the rest of his days.’ ” Graham, 560 U.S. at 70, 130 S.Ct. 2011 (quoting Naovarath v. State, 105 Nev. 525, 779 P.2d 944, 944 (1989)).

As noted earlier the trial court acted well within its broad discretion in imposing Brown’s sentence. However in the exercise of our constitutional authority to review and revise sentences, we have attempted to explain why we are of the view that the 150 year sentence here is inappropriate. But what is an appropriate sentence in this case? As we have acknowledged before, there is “no right answer ... in any given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.2008). Instead appellate review and revision ultimately boils down to the appellate court’s “collective sense of what is appropriate, not a product of a deductive reasoning process.” Id. at 1225. Enforcing this collective sense we “focus on the forest — the aggregate sentence — rather than the trees— consecutive or concurrent, number of counts, or length of the sentence on any individual count.” Id. Applying these considerations to the case before us, we conclude that Brown should receive an enhanced sentence of sixty years for each count of murder to be served concurrently and an enhanced sentence of twenty years for robbery to be served consecutively, for a total aggregate sentence of eighty years imprisonment.

Conclusion

We affirm Brown’s convictions and remand this cause to the trial court with instructions to issue an amended sentencing order consistent with this opinion.

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

      . Fuller also seeks revision of his sentence for these crimes, which we address separately today in Fuller v. State, No. 48S02-1406-CR-364, 9 N.E.3d 653, 2014 WL 2466325 (Ind.2014).

      . Subsequent to Brown's sentencing, the Indiana Legislature enacted statutes providing courts with greater flexibility in choosing sentencing alternatives where juveniles under the age of eighteen are outside the jurisdiction of the juvenile court or are waived to adult court. See Pub.L. No. 104-2013, §§ 1 and 2, 2013 Ind. Acts 766-71 (codified at Ind.Code §§ 31-30-4-1, -7 (2013) and Ind.Code § 35-50-2-17 (2013)).

      . The deaths of Streeter and Prince were no doubt tragic events within the Anderson community and beyond. But we are disquieted by the trial court’s statement, "[i]t’s a significant community tragedy and it requires a powerful response and my job, my role here is to act as the voice of the community and tell you what the community thinks about what you’ve done.” Tr. at 429-30. As this Court has recently declared, we "disapprove of consideration of a community’s outrage in the determination or review of a criminal sentence.” Escobedo v. State, 989 N.E.2d 1248, 1248 (Ind.2013) (responding to the Court of Appeals’ statement that "the maximum sentence [for Escobedo] can be justified as a deontological response giving voice to a community’s outrage, based on the facts and circumstances of the crime” (quoting Escobedo v. State, 987 N.E.2d 103, 120 (Ind.Ct.App.2013), vacated)).


source: Caselaw Access Project

author: NAJAM, Judge.

license: Public Domain

text:
    Everett SWEET, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 35A02-1305-PC-451.
    Court of Appeals of Indiana.
    Feb. 5, 2014.
    Stephen T. Owens, Public Defender of Indiana, Deidre R. Eltzroth, Assistant Chief Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION ON REHEARING

NAJAM, Judge.

STATEMENT OF THE CASE

The State petitions for rehearing following this court’s December 6, 2013, opinion, in which we affirmed the post-conviction court’s denial of Sweet’s petition for post-conviction relief. While the State prevailed in our original appeal, in its petition for rehearing the State asserts that we mistakenly relied on our Supreme Court’s opinion in Norris v. State, 896 N.E.2d 1149 (Ind.2008), rather than our Supreme Court’s opinion in Helton v. State, 907 N.E.2d 1020 (Ind.2009). The State is correct. Norris involved a petition for post-conviction relief filed pursuant to Indiana Post-Conviction Rule 1(a)(4), whereas Hel-ton, like Sweet’s appeal, involved a petition filed pursuant to Rule 1(a)(1). Accordingly, we grant the State’s petition, vacate our prior opinion, and substitute our prior opinion with this opinion on rehearing. We again affirm the post-conviction court’s denial of Sweet’s 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 “eall[ed] around trying to find ... fertilizer” and told Wein-ley he needed fertilizer “[f]or 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 metharaphetamine, 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, fully advised Sweet of his rights, and established the factual basis for Sweet’s plea of guilty. 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 evi-dentiary hearing on Sweet’s petition on March 19, 2013, after which the court entered findings of fact and conclusions of law denying the petition. In particular, the post-conviction court found, in relevant part, as follows:

In order to prevail on this issue, Petitioner would have to show that he would have prevailed on his Motion to Suppress Evidence if his counsel, Jeremy Nix, had raised the issue of Jason Wein-ley being a paid informant, and thus a police agent, when he conducted a war-rantless search of the back pack. Even though Mr. Nix did not question Mr. Weinley about being paid by the police for the information he provided to the police about the Petitioner, it would not have made a difference during the suppression hearing because the evidence shows that Jason Weinley was not a police agent on November 28, 2008, when he conducted the search of the back pack.
What was not disclosed at the suppression hearing is that Jason Weinley received $100 from the Huntington Police Department as a reward for the information he provided approximately one to two weeks after November 28, 2008, and then another $200 after the Petitioner was sentenced. Prior to November 28, 2008, Mr. Weinley had been paid for working as a confidential informant for the Huntington Police Department in late 2007 by assisting the police with controlled buys of narcotics. He did not receive any money from the Huntington Police Department between late 2007 and December 2008, despite having provided the police with information during that time period. The police did not discuss the possibility of payment with Mr. Weinley at any time on November 28, 2008.
In order for a private citizen to be considered an agent of the police for Fourth Amendment purposes, the government had to have known and acquiesced to the search[,] and the private citizen’s purpose in conducting the search is to assist law enforcement agents or to further his own ends. Bone v. State, 771 N.E.2d 710, 714 (Ind.Ct.App.2002). Also, simply being paid for information in the past does not make him a police agent. Zupp v. State, [258 Ind. 625] 283 N.E.2d 540 ([]1972). Jason Weinley would not be considered an agent of the police because the first prong of the Bone test is not met. The police were unaware that Jason Weinley searched the Petitioner’s back pack pri- or to him doing so, or that he even had access to the back pack. Additionally, Jason Weinley testified at the suppression hearing that he searched the back pack because he was concerned about what may have been in the back pack since his children would have access to it.
The payments made to Jason Weinley by the Huntington Police Department after the search do not make him a paid informant and thus does not change the outcome of the hearing on the Motion to Suppress Evidence....
Petitioner has not shown an objectively reasonable probability that competent representation would have caused the [Pjetitioner not to enter a plea. Petitioner has failed to demonstrate by a preponderance of the evidence that he was denied the effective assistance of counsel during his plea of guilty or the suppression hearing.

Appellant’s App. at 7-9. 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 postconviction 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), tram, denied.

On appeal, Sweet argues that his trial counsel rendered ineffective assistance when he failed to investigate Weinley’s relationship with the Huntington Police Department prior to or during the motion to suppress hearing; that, if his counsel had properly investigated this relationship, the State’s evidence would have been suppressed for having been seized in violation of the Fourth Amendment to the United States Constitution; and that, because of his counsel’s purported failure, Sweet did not enter into his guilty plea knowingly, intelligently, and voluntarily. As our Supreme Court has explained:

To establish a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel performed defi-ciently and the deficiency resulted in prejudice. Lee v. State, 892 N.E.2d 1231, 1233 (Ind.2008) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984))....
[The petitioner’s] claim is that his counsel’s failure to file a motion to suppress was ineffective assistance of counsel. In order to prove prejudice stemming from ineffective assistance, a defendant must show a reasonable probability that, but for counsel’s unprofessional errors, the result of his criminal proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. [at] 2052. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. ... A petitioner alleging ineffective assistance of counsel in overlooking a defense leading to a guilty plea must show a reasonable probability that, had the defense been raised, the petitioner would not have pleaded guilty and would have succeeded at trial.

Helton, 907 N.E.2d at 1023.

As we have explained:

“A search or seizure by a private party does not implicate the Fourth Amendment.” U.S. v. Shahid, 117 F.3d 322, 325 (7th Cir.1997), cert. denied. 522 U.S. 902, 118 S.Ct. 254, 139 L.Ed.2d 182. “However, the Fourth Amendment does apply to a search or seizure by a party (even if otherwise a private party) who is acting as an ‘instrument or agent’ of the government.” Id. (citations omitted). Two “critical factors” in the “instrument or agent” analysis are (1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the private party’s purpose in conducting the search was to assist law enforcement agents or to further its own ends. Id.

Bone v. State, 771 N.E.2d 710, 714 (Ind.Ct.App.2002). And our Supreme Court has recognized that having acted as an informant in the past does not automatically make one a State agent. See Zupp v. State, 258 Ind. 625, 628, 283 N.E.2d 540, 542 (1972).

The premise underlying each of Sweet’s arguments on appeal is that Wein-ley was a paid informant for, and thereby an agent of, the Huntington Police Department at the time Weinley searched Sweet’s backpack, without a warrant, at Weinley’s residence. In particular, Sweet asserts that Weinley had an on-going contractual relationship with the Huntington Police Department and that Weinley was paid for the information he turned over. We cannot agree with Sweet’s characterization of the evidence before the postconviction court.

The evidence does not demonstrate that the State knew of and acquiesced in Wein-kes search of Sweet’s backpack and that Weinley conducted that search in order to assist law enforcement or to further his own ends. There is no evidence that Weinley was in a contractual relationship with the Huntington Police Department at the time of the November 28, 2008, search. The parties have stipulated that “no document currently exists which memorializes the agreement” between the Huntington Police Department and Weinley. Appellant’s App. at 38. Huntington Police Department Detective Chad Hacker testified that, in 2007, Weinley had entered into an agreement wherein he would be paid to participate in two controlled drug buys, and that that agreement had been completed shortly thereafter. Post-Conviction Transcript at 37. Detective Hacker further testified that Weinley did not enter into any subsequent contracts with the department and that the department did not have any permanently paid confidential informants. Id. 37, 41. And Detective Hacker testified that departmental records showed no payments to Weinley between the completion of his 2007 contract and November 28, 2008, even though Weinley had twice submitted information to the department in that time, and that Crime Stoppers, an organization that pays citizens for turning in information about crimes, paid Weinley $200 following Sweet’s conviction. Id. at 44-45. Detective Hughes submitted an affidavit in which he also stated that Weinley had not been paid for information following the completion of the 2007 contract and that that contract did not include a provision for Weinley to be paid for turning in information about illegal activity. Appellant’s App. at 11-12.

Weinley likewise testified before the post-conviction court that he had, on two occasions between the completion of the 2007 contract and November 28, 2008, given law enforcement information, but he had not been paid either time. Post-Conviction Transcript at 76, 82-83. And Weinley testified that he had not been told he would be paid if he searched Sweet’s bag on November 28, 2008. Id. at 79. Indeed, at the evidentiary hearing on Sweet’s motion to suppress, Weinley testified that he did not search Sweet’s backpack under the direction of an officer but because he “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.” Motion to Suppress Transcript at 9. Only after Wein-ley opened Sweet’s backpack did Weinley contact the Huntington Police Department. Id. at 10-11; Post-Conviction Transcript at 79.

Moreover, the evidence before the post-conviction court shows that Nix, Sweet’s trial counsel, investigated Weinley’s potential status before the motion to suppress hearing. Nix testified that he had discussed Weinley’s potential status as a paid informant with the deputy prosecutor, Andrew Kobe. Nix testified that Kobe had told him about Weinley’s 2007 contract but told him that Weinley was not paid a weekly fee and was not on the department’s payroll. Post-Conviction Transcript at 104. Based on this information, Nix did not question Weinley about his status at the motion to suppress hearing.

Sweet’s arguments on appeal are, in essence, a request for this court to ignore the evidence most favorable to the post-conviction court’s judgment and, instead, reweigh the evidence in the manner most favorable to Sweet. We -will not do so. See Lindsey, 888 N.E.2d at 322. Considering only the evidence most favorable to the post-conviction court’s judgment, it is clear that Sweet has not met his burden to demonstrate that Weinley was an agent of the Huntington Police Department on November 28, 2008. Sweet cannot show that the Huntington Police Department knew of and acquiesced in Weinley’s search of Sweet’s backpack and that Weinley’s purpose in conducting that search was to assist law enforcement or to further his own ends. See Bone, 771 N.E.2d at 714. Indeed, the evidence demonstrates that Weinley was acting as a private citizen when he searched Sweet’s backpack. As such, the Fourth Amendment does not apply here. Id. Further, Sweet cannot show that Nix failed to investigate this issue before the motion to suppress hearing or that, had this issue been raised, Sweet would not have pleaded guilty and would have succeeded at trial. See Helton, 907 N.E.2d at 1023. In sum, the evidence as a whole does not lead unerringly and unmistakably to a decision opposite that reached by the post-conviction court. See Lindsey, 888 N.E.2d at 322.

Accordingly, Sweet cannot demonstrate either that his counsel rendered ineffective assistance or that Sweet was prejudiced by his counsel’s assistance. See Helton, 907 N.E.2d at 1023. Further, Sweet cannot demonstrate that he entered into the guilty plea unknowingly, unintelligently, or involuntarily. See id. As such, we affirm the post-conviction court’s denial of Sweet’s petition for post-conviction relief.

Affirmed.

MATHIAS, J., concurs.

BROWN, J., concurs in result.

      . Although Sweet asserts that Weinley's search violated his rights under both the federal and state constitutions, Sweet does not separately explain how the facts of this case demonstrate a violation of the Indiana Constitution. As such, ''[a]ny claim of error under the Indiana Constitution is waived.” Dye v. State, 717 N.E.2d 5, 13 n. 7 (Ind.1999). In any event, for the same reasons Sweet cannot demonstrate error under the federal constitution he cannot demonstrate error under the Indiana Constitution. See, e.g., Sowers v. State, 724 N.E.2d 588, 591-92 (Ind.2000).


author: BAKER, Judge.

text:
    In the Matter of the ADOPTION OF J.M. J.P. and J.M., Appellants-Natural Parents, v. R.H. and R.H., Appellees-Foster Parents.
    No. 82A01-1309-AD-404.
    Court of Appeals of Indiana.
    May 20, 2014.

      Karen M. Heard, Vanderburgh County Public, Defender’s Office, Evansville, IN, Attorney for Appellants.
    Julianne L. Fox, Fox & Lutz, LLC, Evansville, IN, Attorney for Appellees.
   OPINION

BAKER, Judge.

In this case, appellants-natural parents Mother and Father (collectively, “the Natural Parents”) had a relationship that was plagued by substance abuse and domestic violence when JM was born in December 2009. The Indiana Department of Child Services (DCS) removed JM from the Natural Parents when she was only a few months old.

JM was placed in foster care. Eventually, the DCS filed a petition to terminate parental rights. While that petition was pending, JM’s foster parents (Foster Parents) filed a petition to adopt her. Several months later, JM’s paternal grandparents (Grandparents), filed a competing petition to adopt JM, and the Natural Parents consented to Grandparents adopting JM.

The trial court determined that in light of the competing adoption petitions, a consent hearing was necessary. Following a hearing, the trial court determined that the Natural Parents were unfit and that their consent was unnecessary. After a change of judge, an adoption proceeding was held, and the trial court granted the Foster Parents’ petition to adopt JM, emphasizing that because of a post-adoption agreement, the Grandparents would remain a part of JM’s life.

The Natural Parents appeal the trial court’s determination that their consent was unnecessary and that it was in JM’s best interest to dispense with their consent. Concluding that the trial court did not err by dispensing with the Natural Parents’ consent and refusing to hear additional evidence on the issue during the adoption proceeding, we affirm the judgment of the trial court.

FACTS

JM was born on December 23, 2009, to Mother and Father. At the time of her birth, JM was the youngest of four children born to Mother and the younger of two children born to Father. Father’s oldest child lives with his biological mother in Evansville.

On April 20, 2010, the DCS removed JM and her three siblings from the Natural Parents because of their alcoholism and drug use, the conditions in the home, the children’s school absences, and domestic violence. At that time, Father was incarcerated in the Indiana Department of Correction (DOC). The four children were found to be Children in Need of Services (CHINS) and placed in foster care with the Foster Parents; family members did not request placement until after petitions to terminate parental rights had been filed.

A disposition hearing was held on June 9, 2010, and Mother’s parental participation plan was ordered. Three months later, when father was released from the DOC, his parental participation plan was ordered.

Although the Natural Parents had severe parenting issues, they did show progress. Nevertheless, the DCS filed Informations for Contempt on the Natural Parents for failure to comply with services. Specifically, Mother failed at least two different drug and alcohol treatment programs. Mother consumed alcohol when she had the children during the eleven-day trial home visit in August 2011, and she had alcohol in her home at the time of the consent hearing. Mother was on probation for driving while intoxicated at the time of the consent hearing.

Father was on probation during the pen-dency of the CHINS proceeding. Father continued to use alcohol and drugs during the pendency of the case. Father denied having an alcohol problem at the consent hearing, even though his criminal history is evidence of it.

Domestic violence was also an issue throughout the case; at least two DCS caseworkers observed bruising on Mother. The DCS was prepared to do a trial home visit but did not proceed because Mother appeared in court with unexplained bruises. Mother and Father were ordered to attend domestic violence classes but failed to attend. Mother and Father requested an opportunity to attend couples therapy but neglected to complete it. The eldest child in the household exhibited anger issues from witnessing the violence that had occurred in the home and needed therapy to overcome the issues associated with living in that environment.

Throughout the CHINS proceeding, housing was an issue. At the time of the consent hearing, Mother and Father were residing in a home provided by Father’s father.

The DCS continued to work with the family until it filed its petition to terminate parental rights in August 2011, after the eleven-day trial home visit had failed. Relatives of Mother’s three older children filed petitions for guardianship over those children. The Grandparents filed a petition for guardianship of JM. The Natural Parents consented to all guardianships.

The Foster Parents, with whom all of the children had been living in foster care, did not object to the guardianships of the older children, and the guardianships of the three older children were granted. The three older children went to live with their relatives.

The Grandparents requested placement of JM pending their guardianship hearing, and the Foster Parents objected. The Foster Parents then filed a petition to adopt JM on November 1, 2011. The Grandparents filed a competing petition to adopt JM on January 24, 2012, and parental consents soon followed.

The Natural Parents received notices of adoption in open court on November 15, 2011. Father timely filed a notice to contest the adoption on December 15, 2011, but Mother did not file a notice to contest until May 30, 2012.

Because the Foster Parents did not have signed parental consents, they requested a consent hearing; the Grandparents filed a memorandum of law in opposition. After hearing arguments, the trial court ordered a consent hearing to determine whether parental consent was necessary before proceeding to the contested adoption hearing.

The consent hearing was held over the course of three days: June 26, 2012, July 3, 2012, and July 12, 2012. The Grandparents and their attorney were not permitted to be present at the consent hearing. Following the consent hearing, the trial court concluded that “the parents are unfit and the adoption would serve the children’s best interests.” Appellant’s App. p. 92. Accordingly, the trial court determined that the Natural Parents’ consent was unnecessary.

The Grandparents moved for a change to a special judge. The trial court granted the request over the Foster Parents’ objection. Through a process of striking the names of proposed judicial officers, the parties chose Vanderburgh County Magistrate Jill R. Marcrum to act as special judge during the adoption proceeding.

The adoption hearing on the competing petitions commenced on April 9, 2013. The trial court permitted the Natural Parents to intervene over the Foster Parents’ objection by allowing their attorney to participate in the hearing.

The Guardian Ad Litem (GAL) and Court Appointed Special Advocate (CASA) recommended that the Grandparents be permitted to adopt the child. The DCS filed consents for the Grandparents and the Foster Parents. The hearing on the competing adoption petitions ended on April 12, 2013.

On August 28, 2013, the trial court issued its order and its amended order, granting the Foster Parents’ petition and denying the Grandparents’ petition. The trial court found, in part:

23. Based upon the evidence presented, both parties are appropriate to care for [JM]. Both parties appear to have stable relationships and are appropriate to be adoptive parents. All of the parties love [JM] and appear to want the best for her. [JM] ’s life appears to be stable and full of love. It is unfortunate that the circumstances of her parents left her in the current situation.
26. In [JM] ’s world, the [Foster Parents] are her parents and the [Grandparents] are her grandparents. [JM] has lived three years with the [Foster Parents]. She has been a part of their family while also having the love and support of the [Grandparents] as grandparents. To grant the [Grandparents] petition would rip [JM] from the only life she can remember. While biological family is important, the best interests of [JM] require that she not be torn from the only family unit that she can remember. To grant the [Grandparents]’ request would shift the Grandparents from being [JM] ’s grandparents to being her parents. The [Foster Parents] would suddenly just be friends of the family.
27. Both parties have filed post-adoptive agreements. The post-adoptive agreement will ensure that [JM] continues to have a relationship with the Grandparents and that the bond they have formed will continue.

Appellant’s App. p. 96.

The Grandparents did not appeal the trial court’s decision, denying their petition to adopt JM. The Natural Parents now appeal the trial court’s decision that their consent was unnecessary.

DISCUSSION AND DECISION

I.Standard of Review

The Natural Parents assert three arguments on appeal: (1) the trial court erred when it held a consent hearing and extinguished their rights to parental consent; (2) the trial court erred when it refused to hear any evidence as to whether the adoption placement selected by the Natural Parents through their consents was in JM’s best interests; and (8) both trial courts erred when they failed to properly consider the Natural Parents’ fitness at the time of the hearings.

Here, the trial court entered findings of fact and conclusions of law. Thus, we determine whether the evidence supports the findings and whether the findings support the judgment. In re Adoption of K.F., 935 N.E.2d 282, 287 (Ind.Ct.App.2010). A trial court’s findings and judgment will be left undisturbed unless they are clearly erroneous. Id. Findings of fact are clearly erroneous when the record lacks any direct evidence or reasonable inferences to support them. Id. A trial court’s judgment is clearly erroneous when it is unsupported by the findings and conclusions. Id.

The adoption statutes created a proceeding that was unknown at common law. In re Adoption of B.W., 908 N.E.2d 586, 592 (Ind.2009). Therefore, they must be strictly construed, preserving the rights of natural parents, while protecting children from instability and uncertainty. Id. at 592, 594.

II.Necessity of Consent Hearing

The Natural Parents argue that the trial court erred by conducting a consent hearing, insofar as they had already consented to the Grandparents adopting JM. Generally, parental consent is required before a child under the age of eighteen may be adopted; however, there are some exceptions. In re Adoption of A.S., 912 N.E.2d 840, 848-49 (Ind.Ct.App.2009). For instance, Indiana Code section 31 — 19—9—8(a)(l 1) provides:

Consent to adoption, which may be required under section 1 of this chapter, is not required from any of the following:
A parent if:
(A) a petitioner for adoption proves by clear and convincing evidence that the parent is unfit to be a parent; and
(B) the best interests of the child sought to be adopted would be served if the court dispensed with the parent’s consent.

Here, on November 1, 2011, the Foster Parents filed a petition to adopt JM, stating that “consent of the parents should not be required as Mother and Father have termination of parental rights trials on November 29, 2011.” Appellants’ App. p. 27-28. Thus, the necessity of parental consent was at issue from the moment the first petition to adopt JM was filed. Then, a few months later, the Grandparents filed their petition to adopt JM, and parental consents followed. Id. at 30-33, 35-36.

Under these circumstances, a consent hearing was necessary before the trial court could procedurally address the competing adoption petitions. Indeed, the consent hearing was akin to the termination of parental rights proceeding that was on hold, pending the outcome of the adoption proceedings.

III.The Child’s Best Interests

The Natural Parents argue that the trial court erred when it failed to determine whether their prior consents were in JM’s best interests. However, Indiana Code section 31-19-9-8(a)(ll)(B) provides that the trial court determine whether “the best interests of the child sought to be adopted would be served if the court dispensed with the parent’s consent.” Accordingly, the trial court was not required to determine whether the Natural Parents’ prior consents were in JM’s best interests.

That said, the trial court found that the “parents are unfit to be parents and the best interest of the child would be served if the Court finds that the parents’ consent should be dispensed with.” Appellants’ App. p. 90. Thus, the trial court did make a finding regarding JM’s best interests as it pertained to dispensing with the Natural Parents’ consent, and this argument fails.

IV Parental Fitness at the Time of Hearings

Finally, the Natural Parents argue that the trial court erred by not considering their fitness at the time of the hearings. More particularly, they contend that the trial court should have considered their fitness at the time of the consent hearing and again at that the adoption hearing.

In re K.F., 935 N.E.2d 282 (Ind.Ct.App.2010), is instructive. In that case, father and stepmother had physical custody of the children, and mother was granted supervised visitation because of her serious drug addiction. Id. at 283. Mother failed one drug screen in 2007 and two in 2008. Id. In May 2008, stepmother filed a petition to adopt the children. Id. In April 2009, mother was arrested for dealing in heroin and was four months pregnant, but was unaware that she was pregnant. Id. Mother failed another drug screen in 2010 and admitted to taking Percocet and snorting heroin. Id. at 284.

The trial court observed that “Indiana courts have found parents unfit due to drug abuse.” Id. at 287. Additionally, the trial court, citing mother’s “historical inability and difficulty staying off drugs even while this adoption proceeding was pending,” found mother to be an unfit parent and that it would be in the best interests of the children that her rights be terminated and that the adoption be granted. Id. On appeal, a panel of this Court affirmed, reasoning that mother had been battling a serious substance abuse problem and that this was sufficient to prove that she is unfit to be a parent. Id. at 289.

Here, the record indicates that the DCS removed four-month-old JM and her three siblings from the home because of, among other things, the Natural Parents’ alcoholism, drug use, and domestic violence. Pet. Ex. lia, Ex. vol. I. At that time, Father was incarcerated. JM was found to be a CHINS, and she was placed with the Foster Parents. Id.

Moreover, the DCS filed Informations for Contempt on the Natural Parents for failure to comply with services. Specifically, Mother missed drug screens on December 6 and 7, 2010; January 10, 24, 25, and 31, 2011; February 1, 2, 7, 8, and 9, 2011; and August 4, 7, and 15, 2011. On March 6, 2011, her results were “[p]ositive alcohol 10,000” and on March 11, 2011, her results were “[p]ositive alcohol 1098.” Id. She failed to complete treatment and was discharged on August 12, 2011. Id. Similarly, Father was ordered to remain drug free but “[h]ad a positive ETG on 04/18/2011 with a value of 10,000.” Id.

In August 2011, Mother consumed alcohol during an eleven-day trial visit with the children. Appellants’ App. p. 86. And although Mother completed court-ordered treatment in May 2012, she keeps alcohol at her residence. Id. Father continues to drink on occasion, particularly holidays, even though he has a history of alcohol-related crimes. Id. at 85. In light of the Natural Parents’ historical difficulty with alcohol and lack of insight into the negative effects that alcohol has had on their lives, we cannot say that the trial court erred by concluding that they were unfit at the consent hearing.

As for the adoption hearing, the Natural Parents’ argument that the trial court should have reevaluated their fitness at that time is merely a request for a second bite at the proverbial apple. Once the trial court concluded that the Natural Parents were unfit at the consent hearing, as stated above, the effect was the termination of their parental rights.

Notwithstanding this fact, we observe that in many adoption cases, the result is not only the termination of parental rights, but also the severance from a family tree; however, that did not happen in the instant case. Indeed, because of the post-adoption agreements, the Grandparents will continue to be JM’s grandparents. Appellants’ App. p. 96. JM will not be severed from her family tree of birth, but rather, will enjoy the love and nurturing that grandparents give so freely. We encourage these agreements, where appropriate, for the benefit of children.

The judgment of the trial court is affirmed.

BARNES, J., and CRONE, J., concur.

      . Because of the voluminous record in this case, particularly exhibits, we will refer to the volume in which a particular exhibit is located.


author: RILEY, Judge.

text:
    YELLOW BOOK INC. f/k/a Yellow Book Sales and Distribution Company, Inc., Appellant-Plaintiff, v. CENTRAL INDIANA COOLING & HEATING, INC. and Lawrence E. Stone aka Larry Stone, Appellees-Defendants.
    No. 30A05-1311-CC-561.
    Court of Appeals of Indiana.
    May 22, 2014.
    Rehearing Denied July 16, 2014.

      Joseph L. Mulvey, Rubin & Levin, P.C., Indianapolis, IN, Attorneys for Appellant.
    John S. Merlau, New Palestine, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Plaintiff, Yellow Book Inc. f/k/a/ Yellow Book Sales and Distribution Company, Inc. (Yellow Book), appeals the trial court’s findings of fact and conclusions of law in favor of Appellee-Defen-dant, Central Indiana Cooling & Heating, Inc. (Central Indiana) and Lawrence E. Stone (Stone), with respect to Central Indiana’s payments made pursuant to several advertising contracts entered into with Yellow Book.

We affirm in part, reverse in part, and remand with instructions.

ISSUES

Yellow Book raises three issues on appeal, which we restate as follows:

(1)Whether the trial court erred by concluding that Yellow Book failed to credit certain Central Indiana payments totaling $19,717.10;

(2) Whether the trial court erred by concluding that Stone properly cancelled an advertising contract with Yellow Book; and

(3) Whether the trial court erred by concluding that Yellow Book is not entitled to recover prejudgment interest and reasonable attorney’s fees.

FACTS AND PROCEDURAL HISTORY

Stone is the owner of Central Indiana, which is essentially a small, one-man corporation, that installs commercial and residential cooling and heating systems. On October 8, 2007, Stone entered into a contract with Yellow Book to advertise his business throughout central Indiana (Contract 1). Pursuant to Contract 1, Stone agreed to pay Yellow Book $3,037.00 per month for twelve months to publicize his services in Yellow Book’s Indianapolis, Shelby County, and Hancock County directories.

The following year, on October 27, 2008, Jill Herman, on behalf of Central Indiana, executed a new advertising contract with Yellow Book (Contract 2). In accordance with the terms of Contract 2, Central Indiana agreed to pay Yellow Book a monthly amount of $553.00 for twelve months to promote Central Indiana’s business in the Hamilton and Hancock County directories.

On February 20, 2009, Stone executed a contract with Yellow Book for advertisements in central Indiana (Contract 3). Contract 3 provided that Stone was to pay Yellow Book $2,542.00 per month for twelve months in exchange for advertising Central Indiana in Yellow Book’s 2010 Indianapolis directory.

On August 3, 2011, Yellow Book filed its Complaint against Central Indiana in the Marion County Circuit Court, seeking recovery of damages arising from Central Indiana’s failure to pay for the advertising provided pursuant to the three Contracts and Stone’s personal guarantee on two of the advertising contracts. The case was subsequently transferred to Hancock County Superior Court. On July 22, 2013, a bench trial was conducted. On August 28, 2013, the trial court entered its findings of fact and conclusions of law, issuing judgment as follows:

[Central Indiana and Stone] entered into a contract with [Yellow Book] and there was miscommunication between [Central Indiana and Stone] and [Yellow Book]. The [c]ourt finds [Central Indiana and Stone] to be appropriately credited for payments he testified he made to [Yellow Book] which were not applied to the contract in the amount of $19,707.10 which leaves [Yellow Book] with a judgment in the amount of $22,135.07 with interest in the amount of $3,984.31. There will be no award of attorney fees in said matter.

(Appellant’s App. p. 25).

On September 12, 2013, Central Indiana and Stone filed their motion to correct error, claiming that because Stone had cancelled Contract 3, Central Indiana did not owe anything to Yellow Book after certain uncredited payments were applied to the indebtedness owed on Contracts 1 and 2. On September 23, 2013, Yellow Book filed its response to the motion to correct error, as well as a cross-motion to correct error. In its cross-motion, Yellow Book requested the trial court to enter an amended judgment for the full amount sought by Yellow Book because the evidence reflected that all payments made by Central Indiana and Stone had been properly credited and Contract 3 had not been cancelled. On October 4, 2013, the trial court conducted a hearing on the parties’ motions and on October 18, 2013, the trial court entered its Order on the Parties [Motions] to Correct Error, finding that Contract 3 was properly cancelled and amending the judgment “for [Central Indiana and Stone]” and “against [Yellow Book] cost paid.” (Appellant’s App. p. 53).

Yellow Book now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

Where, as here, the trial court sua sponte enters specific findings of fact and conclusions, we review its findings and conclusions to determine whether the evidence supports the findings, and whether the findings support the judgment. Helm v. Helm, 873 N.E.2d 83, 87 (Ind.Ct.App.2007). We will set aside the trial court’s findings and conclusions only if they are clearly erroneous. Id. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake was made. Id. We neither reweigh the evidence nor assess the witnesses’ credibility, and consider only the evidence mist favorable to the judgment. Id. Further, “findings made sua sponte control only ... the issues they cover and a general judgment will control as to the issues upon whether there are no findings. A general judgment entered with findings will be affirmed if it can be sustained on any legal theory supported by the evidence.” Id.

II. Crediting of Payments

Yellow Book contends that Central Indiana paid a total of $25,876.27 under Contract 1, and incurred late fees in the amount of $845.93, leaving an unpaid balance to Yellow Book on Contract 1 of $11,413.67. Contract 2 was executed for a total amount of $6,636.00; Central Indiana did not make any payments under this Contract. However, the trial court concluded that Central Indiana had made payments in the amount of $19,717.10 which had not been properly credited by Yellow Book to Central Indiana’s accounts, thereby entitling Yellow Book to no further debit. Yellow Book now disputes the trial court’s conclusion.

At trial, Yellow Book’s corporate paralegal representative, Natalia Anderson (Anderson), testified as to Central Indiana’s payments under the Contracts. Anderson clarified the payments made and amounts owed by Central Heating to Yellow Book under the Contracts. She explained that it is Yellow Book’s practice to apply the payments to the older directories first and then “to the oldest balance outstanding on the directories.” (Transcript p. 20). As such, Anderson stated that all of Central Indiana’s checks — which Central Indiana claimed to be uncredited— were divided up to be applied to the oldest balance first.

During Stone’s cross-examination, Stone was asked to compare each of the perceived uncredited payments with the payments as reflected on Yellow Book’s Statement of Account. For example, Stone had previously testified that a payment made on July 5, 2009 in the amount of $4,566 had not been credited. However, during questioning, he conceded that this payment had been divided into four separate payments of $200, $3,838.00, $353.00, and $179.00 and had been credited towards separate balances or directories on July 13, 2009. At the conclusion of his interrogation, Stone admitted that all payments, with the exception of two, “were credited” by Yellow Book to the Contracts executed by Central Indiana. (Tr. p. 97). Unlike for the other payments, Stone did not submit any evidence that the two missing payments that had not been credited by Yellow Book had, in fact, been made by Stone in the first place.

In support of his argument that his payments had not been properly credited towards his accounts, Stone focuses on a facsimile sent by Yellow Book sales representative, Theresa Angleton (Angleton), to Stone on November 16, 2007. In her facsimile, Angleton suggested to “reconcile the check #’s with the payment amounts. Maybe there is a payment missing?” (Respondent’s Exh. B). In this facsimile, An-gleton did not admit — as asserted by Stone — that Yellow Book had not credited certain payments. Furthermore, Angle-ton’s facsimile was sent eleven months before Central Indiana made any of the perceived uncredited payments.

Mindful of Stone’s admission at trial that all payments he had perceived as omitted from Yellow Book’s account statement had in fact been credited towards his unpaid balances, we conclude that Stone owes the remaining balance under Contracts 1 and 2. Therefore, the trial court improperly concluded that Stone was not indebted to Yellow Book under Contracts 1 and 2.

III. Contract 3

Focusing on Contract 3, Yellow Book contends that the trial court erroneously concluded that the Contract was properly cancelled. Although Central Indiana alleged fraud in the inducement of the Contract, the trial court merely referenced a “miscommunication” as the basis for its conclusion that Contract 3 was can-celled and that Central Indiana did not owe Yellow Book any payments under this Contract. (Appellant’s App. p. 25). In its findings, the trial court noted as follows:

3. On February 20, 2009, Stone executed a contract with Yellow Book on behalf of [Central Indiana], whereby [Central Indiana] agreed to pay Yellow Book $2,542.00 per month for twelve months ($30,504.00 total) in exchange for advertising in Yellow Book’s 2010 Indianapolis directory. Contract 3 contains language providing that, by executing it, Stone personally guaranteed any indebtedness that [Central Indiana] incurred with Yellow Book.... At trial, the sole defense of [Central Indiana] and Stone for liability for amounts under Contract 3 was that Contract 3, according to Stone, was only to be a placeholder in the Indianapolis directory, and that a subsequent contract, reflecting a prize of only $500 per month (as opposed to $2,542.00 per month) was to be provided by Yellow Book to Stone and [Central Indiana], which would supersede the version of Contract 3 that was actually executed.
13. [Central Indiana] made between eight and fifteen phone calls to various representatives of [Yellow Book] located in various offices commencing the day after the signing of the third contract when no one brought him the corrected contract for the agreed reduced amount.
14. Finally after receiving no response to his numerous phone calls [Central Indiana] sent a fax to various representatives of [Yellow Book] expressing his concern and demanding the signed contract be corrected or cancelled as per the representations previously made and again expressing the contract was executed only to reserve his advertising position in the directory a[t] the request and direction of [Yellow Book’s] representative. Said fax was sent four days after the contract in question was signed. Said fax was also a timely cancellation notice as again [Central Indiana] relied upon the representations of [Yellow Book’s] employees in the manner in which said notices could be provided.

(Appellant’s App. pp. 22-23, 25) (internal references omitted) (emphasis added).

To establish fraud, Central Indiana would have to prove that Yellow Book made (1) a material representation of a past or existing fact (2) that was untrue and known to be untrue, or else recklessly made, and (3) that Central Indiana did in fact rely on the representation, (4) which proximately caused it to suffer injury. Circle Ctr. Dev. Co. v. Y/G Ind., L.P., 762 N.E.2d 176, 179 (Ind.Ct.App.2002), trans. denied. Although the trial court did not make an explicit conclusion of fraud, but merely alluded to a ‘miscommunication,’ the trial court’s findings clarify that this phrasing should be interpreted and read as a misrepresentation.

Yellow Book now contends that even if the trial court’s conclusion should be characterized as a fraud in the inducement, evidence of the oral misrepresentations is not admissible due to the inclusion of an integration clause in Contract 3. Specifically, paragraph 14F of Contract 3 provides:

This agreement supersedes any other verbal or written agreement between Customer and Publisher. This agreement may not be changed except by a writing signed by an authorized signatory of Customer and Publisher.

(Plaintiffs Exh. 5).

“An integration clause of a contract is to be considered as any other contract provision to determine the intention of the parties and to determine if that which they intended is fully expressed in the four corners of the writing.” Prall v. Ind. Nat’l Bank, 627 N.E.2d 1374, 1377-78 (Ind.Ct.App.1994). “Generally, where parties have reduced an agreement to writing and have stated in an integration clause that the written document embodies the complete agreement between the parties, the parol evidence rule prohibits courts from considering extrinsic evidence for the purpose of varying or adding to the terms of the written contract.” Id. “An exception to the parol evidence rule applies, however, in the case of fraud in the inducement, where a party was ‘induced’ through fraudulent representations to enter a contract.” Circle Ctr. Dev. Co., 762 N.E.2d at 179. A party can overcome the effect of an integration clause if it can show if it had a right to rely on the alleged misrepresentations and did in fact rely on them in executing the release and/or interpretation clause. Wind Wire, LLC v. Finney, 977 N.E.2d 401, 405 (Ind.Ct.App.2012). Prall indicated that “[wjhether one has the right to rely depends largely on the facts of the case.” Prall, 627 N.E.2d at 1379.

The evidence reflected, and the trial court found, that Stone entered into Contract 3 during a meeting with Yellow Book’s representative, Tina Dunn (Dunn). Stone testified that, even though he had requested “a much smaller contract,” Dunn brought the wrong contract and told him to “get this one signed and get it over with to hold [my] placement [in the Yellow Book].” (Transcript p. 63). She told Stone that she “would get [him] the smaller contract” for five hundred dollars. (Tr. p. 64). Because Stone “felt pressured” and “liked the placement,” he signed the contract. (Tr. pp. 63, 64). When he did not receive the smaller contract the following day, Stone “tried to call [Dunn] several times and continued to call the next couple of days.” (Tr. p. 64). As he was not successful, Stone contacted Dunn’s supervisor, Brian Blake (Blake). Finally, Stone sent a facsimile to Dunn and Blake, cancelling the contract. The evidence further indicates that, at the time Stone executed the contract, Dunn knew that Yellow Book did not “have lesser payments on signed contracts.” (Tr. p. 42). Dunn also testified that she never mentioned that the executed contract could not serve as a place holder until a smaller contract could be sent to Stone.

Mindful of the trial court’s credibility determination, we conclude that Stone had a right to rely on Dunn’s representations. Dunn, a Yellow Book representative, assured him a less costly contract was available and the current, signed contract would only serve as a placeholder until the cheaper agreement could be executed. Dunn clearly made the representation with the intent that Stone would sign the current contract. Stone took Dunn’s statements at face value and did not independently investigate them. See contra Prall, 627 N.E.2d at 1378-79 (Prall testified he had independently investigated Indiana National Bank’s representations). Absent these representations, Stone would not have entered into Contract 3 and consequently caused the execution of the integration clause. Therefore, because fraud in the inducement caused Stone to enter Contract 3, Contract 3 is rescinded.

IV. Pre-judgment Interest and Attorney’s Fees

Finally, Yellow Book contends the trial court erred when it denied an award of pre-judgment interest and attorney’s fees. Contract 1 and Contract 2 provide that

If Publisher does not receive the full amount invoiced by the due date on the bill, Publisher may assess a late charge not to exceed 1.5% per month of the overdue amount.
In the event Publisher refers Customer’s account to a collection agency or attorney due to a non-payment, Customer will be liable for all of Publisher’s reasonable costs and expenses incurred in connection with Customer’s non-payment, including without limitation, court costs and reasonable attorney’s fees up to 25% of the unpaid account balance (plus interest accrued thereon).

(Plaintiffs Exh. 3).

A. Pre-judgment Interest

An award of pre-judgment interest in a breach of contract action is warranted if the amount of the claim rests upon a simple calculation and the terms of the contract make such a claim ascertainable. Noble Roman’s Inc. v. Ward, 760 N.E.2d 1132, 1140 (Ind.Ct.App.2002). “The test for determining whether an award of pre-judgment interest is appropriate is whether the damages are complete and may be ascertained as of a particular time.” Id. Importantly for purposes of our review, “an award of prejudgment interest is generally not considered a matter of discretion.” Id.

Here, prejudgment interest on the amounts owed under Contracts 1 and 2 are easily calculated and arose at a particular time. Therefore, because we reversed the trial court with respect to Contracts 1 and 2, we now remand for a calculation of prejudgment interest on the amounts owed.

B. Attorney’s fees

During the hearing, counsel for Yellow Book noted that his law firm had “expended 70.00 hours to date” and requested fees in the amount of “$17,375.00.” (Plaintiffs Exh. 14). He testified that this amount reflected the work incurred on the three Contracts and he had not made a calculation with respect to each individual Contract.

Because we hold that Yellow Book is only entitled to attorney’s fees with respect to Contracts 1 and 2, we direct the trial court on remand to consider what would constitute a reasonable attorney’s fees award for the two Contracts. “An excessive attorney fee award can be avoided when fees are apportioned according to the significance of the issues upon which a party prevails, balanced against those on which the party does not avail.” Stepp v. Duffy, 686 N.E.2d 148, 153 (Ind.Ct.App.1997), trans. denied. Additionally, pursuant to the terms of Contract 1, Stone is personally liable for the indebtedness incurred by Central Indiana under this Contract. (See Clause 15G — “By his/her execution of this agreement, the signer personally and individually undertakes and assumes, jointly and severally with the Customer, the full performance of this agreement, including payment of amounts due hereunder.”). Therefore, we remand to the trial court for a calculation of the pre-judgment interest and reasonable attorney’s fees pursuant to Contracts 1 and 2.

CONCLUSION

Based on the foregoing, we conclude that (1) the trial court erred when it concluded that Yellow Book failed to credit certain Central Indiana payments under Contracts 1 and 2; (2) Contract 3 was induced by fraud and is rescinded; and (3) Yellow Book is entitled to pre-judgment interest and reasonable attorney’s fees for amounts owed under Contracts 1 and 2.

Affirmed in part, reversed in part, and remanded with instructions.

ROBB, J. and BRADFORD, J., concur.

      . Because we concluded that Contract 3 was rescinded as it was induced by fraud, Yellow Book is not entitled to pre-judgment interest and attorney’s fees on Contract 3.

      . We do not reach a similar conclusion with respect to Contract 2 as Contract 2 was signed by Stone’s employee who is not a party or involved in this cause.