author: PYLE, Judge.

text:
    Jerome BINKLEY, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 84A05-1208-PC-441.
    Court of Appeals of Indiana.
    Sept. 10, 2013.

      Jerome Binkley, Pendleton, IN, Appellant, Pro Se.
    Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

Jerome Binkley (“Binkley”) appeals pro se from the post-conviction court’s order denying his petition for post-conviction relief.

We reverse and remand.

ISSUE

Whether the post-conviction court erred by summarily denying Binkley’s petition for post-conviction relief.

FACTS

The facts of Binkley’s crimes were set forth in the opinion by our Supreme Court on direct appeal as follows:

The evidence at trial showed that in the early morning hours of August 31, 1991, Wayne Kemp was shot in the head while sitting in the front seat of his car. After completing an autopsy, the coroner could not determine what type of gun fired the fatal bullet. Furthermore, the police could not find the fatal bullet. They did discover, however, a spent shell casing on the floor of the car. Ballistics tests confirmed that the casing had housed a bullet fired from a Taurus nine-millimeter pistol found in a trash can behind the house of the appellant’s friend, Dennis Owens.
Linking the putative murder weapon to Binkley was an important element of the State’s case. Though the pistol had been cleaned of fingerprints, Owens and another witness, Bill Loveland, testified that it had been in Binkley’s possession the night of Kemp’s murder. Police confirmed that the pistol was one of several firearms stolen a week before the murder from a Terre Haute sporting goods store. Binkley, Loveland, and Kemp were suspects in that robbery. Quite a number of the Terre Haute weapons were also recovered from Owens’ trash can. According to Owens, Binkley had left a trash bag containing several guns, including the Taurus pistol, at his (Owens’) house a few days before the murder. Owens took a fancy to the pistol, and at some point gave Binkley forty dollars toward its purchase.
The night before the murder, Owens and Binkley met with friends at various Terre Haute night spots. Owens had loaded the pistol before leaving home, and had it with him in his car. He still considered it to be Binkley’s gun, and gave it to Binkley after he asked for it in the parking lot across the street from Nolan’s Bar. At some point, Wayne Kemp’s car pulled up to the group of revelers in the parking lot. Owens last saw appellant that night walking toward Wayne Kemp’s car.
The next morning Binkley came to Owens’ house and presented him with a cloth bundle containing the pistol, now covered with sand and dirt. Binkley left, but returned later in the day after being questioned by the police. He informed Owens that the police were looking for the guns stolen in Terre Haute in connection with Kemp’s murder, and he said they needed to get rid of them. Owens, who had cleaned the Taurus pistol prior to Binkley’s return, concealed it with the other weapons at the bottom of a trash can in the alley behind his house. A short while later Binkley was arrested at Owens’ house for Kemp’s murder. Owens subsequently led detectives to the stash of guns.
Loveland corroborated Owens’ account in important ways. He testified he had been sleeping at Binkley’s apartment on the night in question, and he was awakened at least twice before sunrise. On the first occasion, while Binkley was still out on the town, Wayne Kemp came by looking for him. Kemp left after smoking some cocaine, possibly heeding Loveland’s suggestion to look for Bink-ley at Nolan’s. (It was outside Nolan’s where Owens observed appellant approach Kemp’s car.)
Loveland was awakened again about 4 a.m. when Binkley returned to the apartment. The two took to the streets on Loveland’s bicycle just as dawn was beginning to break. They first attempted to call on Owens. When no one responded to their knocking, Binkley produced a nine-millimeter pistol and hid it in the barbecue grill behind Owens’ house (thus explaining the gritty coating Owens described). They next attempted to purchase cocaine at another location, without success, and finally proceeded at Binkley’s direction to the alley where Kemp’s car sat with his body inside.
At the car, Binkley retrieved the keys from inside and opened the trunk. Binkley told Loveland he had already taken five hundred dollars from Kemp and was searching for “the rest of the money.” The trunk search proved unsuccessful, and Loveland and Binkley departed for a nearby crack house. On each of two visits Binkley acquired a gram of cocaine. The cocaine had a street value of a hundred dollars per gram. When arrested several hours later, Binkley was carrying three one-hundred dollar bills and a one-dollar bill. The testimony by Owens and Loveland strongly suggested Binkley’s guilt, of course, but there was also physical evidence linking appellant to the murder. The clothes he was seen wearing the night of the murder turned up covered in blood in a dumpster. Tests of the blood on Binkley’s sweatshirt and blue jeans indicated that the blood could have come from the decedent, but not from Binkley. There was also evidence that Binkley knew Kemp was about to receive his loan check. According to Loveland, Kemp had approached Bink-ley about purchasing some of cocaine once the loan check cleared. Binkley told Loveland he intended to “gank” (that is, rob) Kemp instead.

Binkley v. State, 654 N.E.2d 736, 737-38 (Ind.1995).

After two mistrials, Binkley was convicted of murder and found to be an habitual offender. Binkley was sentenced to sixty (60) years in prison for murder enhanced by thirty (30) years for being an habitual offender.

Thereafter, Binkley filed a direct appeal from his convictions, arguing that the evidence was insufficient to convict him of murder and that his ninety (90) year sentence was manifestly unreasonable. As part of his sufficiency argument, Binkley specifically challenged the credibility of Loveland’s testimony. The Supreme Court addressed his sufficiency argument as follows:

Binkley’s lawyer struggled mightily to undermine Loveland’s testimony by introducing several sworn statements in which Loveland told different versions of the events on the night of Kemp’s murder. His brief on appeal casts Loveland’s testimony as “inherently unbelievable, and unreliable.” Whatever incentives Loveland may have had to perjure himself, we think a jury could have reasonably concluded, based on the testimony of Loveland and Owens and the attendant physical evidence, that Binkley had indeed followed through with his stated intent to “gank” Kemp, with fatal consequences.

Id. at 738-39. The Supreme Court affirmed both Binkley’s conviction and sentence. Id. at 740.

In 2000 and 2003, Binkley filed petitions for post-conviction relief (“PCR”). He eventually withdrew both petitions. On July 20, 2012, Binkley filed a pro se petition for PCR, claiming that:

trial counsel was ineffective for failure to adequately preserve that the knowing use of perjured testimony is fundamentally unfair; and a conviction obtained by the use of such testimony will not be upheld — which was stronger than the issue legally inapplicable for appellate review. This violated petitioner’s Fifth, Sixth, and Fourteenth amendments to the United States Constitution, and state law.

(State’s App. 2). The State filed an answer to Binkley’s petition on August 7, 2012. On August 13, 2012, the post-conviction court summarily denied Binkley’s petition for PCR. Binkley now appeals.

DECISION

Binkley appeals from the post-conviction court’s order denying post-conviction relief without conducting an eviden-tiary hearing. Our standard of review in postconviction proceedings is well settled.

We observe that post-conviction proceedings do not grant a petitioner a “super-appeal” but are limited to those issues available under the Indiana Post-Conviction Rules. Post-conviction proceedings are civil in nature, and petitioners bear the burden of proving their grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner who appeals the denial of PCR faces a rigorous standard of review, as the reviewing court may consider only the evidence and the reasonable inferences supporting the judgment of the post-conviction court. The appellate court must accept the post-conviction court’s findings of fact and may reverse only if the findings are clearly erroneous. If a PCR petitioner was denied relief, he or she must show that the evidence as a whole leads unerringly and unmistakably to an opposite conclusion than that reached by the post-conviction court.

Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind.Ct.App.2010) (internal citations omitted), trans. denied.

The only issue on appeal is whether the post-conviction court erred by summarily denying Binkley’s petition for PCR that raised a claim of ineffective assistance of counsel. The State argues that the post-conviction court did not err because the pleadings conclusively established that he was not entitled to relief. In addition, the State argues that Binkley’s allegation of ineffective assistance of counsel was essentially the same issue addressed by our Supreme Court in his direct appeal. Bink-ley argues that his ineffective assistance of counsel claim is different because it involves a claim that his trial counsel did not adequately preserve the issue of whether the State’s primary witness (Bill Loveland) committed perjury.

In addressing this issue, it is important to decide the appropriate standard of review. Post-Conviction Rule 1, section 4 outlines two different ways a post-conviction court may deny a petition without a hearing. A separate panel of this court has discussed the differences as follows:

First, in subsection (f), the rule provides: “If the pleadings conclusively show that petitioner is entitled to no relief, the court may deny the petition without further proceedings.” Second, in subsection (g), the rule provides:
The court may grant a motion by either party for summary disposition of the petition when it appears from the pleadings, depositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Disposal of a petition under each of these two subsections leads to a different standard of review on appeal.
When a court disposes of a petition under subsection (f), we essentially review the lower court’s decision as we would a motion for judgment on the pleadings. The court errs in disposing of a petition in this manner unless ‘the pleadings conclusively show that petitioner is entitled to no relief.’ If the petition alleges only errors of law, then the court may determine without a hearing whether the petitioner is entitled to no relief on those questions. However, if the facts pled raise an issue of possible merit, then the petition should not be disposed of under section 4(f). ‘This is true even though the petitioner has only a remote chance of establishing his claim.’
On the other hand, when a court disposes of a petition under subsection (g), we review the lower court’s decision as we would a motion for summary judgment. We face the same issues that were before the postconviction court and follow the same process. A grant of summary disposition is erroneous unless ‘there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.’ We must resolve all doubts about facts, and the inferences to be drawn from the facts, in the non-movant’s favor. The appellant has the burden of persuading us that the post-conviction court erred.
Under the plain language of subsection (g), a court may grant summary disposition after ‘a motion by either party and after considering the pleadings and other evidence submitted.’ The language of subsection (f), on the other hand, permits a court to deny a petition based upon only the pleadings and apparently without a motion by either party....

Allen v. State, 791 N.E.2d 748, 752-758 (Ind.Ct.App.2003) (internal citations omitted), trans. denied.

Concerning the issue of ineffective assistance of trial counsel, we have held this particular issue is fact sensitive. Kelly v. State, 952 N.E.2d 297, 300 (Ind.Ct.App.2011). In fact, some factual determinations must be made. Id. “Consequently, when a petitioner alleges ineffective assistance of counsel, and the facts pled raise an issue of possible merit, the petition should not be summarily denied.” Id. at 300 (emphasis added).

In this case, it is clear from the record that the post-conviction court made its decision based solely on the pleadings under subsection (f). Neither party had submitted any affidavits, referred to other evidence, or filed a motion for summary disposition, which would have triggered subsection (g). As a result, we must determine whether the pleadings conclusively show that Binkley is not entitled to relief.

In his petition, Binkley inartfully argues that his trial counsel was ineffective for failing “to adequately preserve that the knowing use of [Loveland’s] perjured testimony” was fundamentally unfair. (Binkley’s App. 15). The State argues that the postconviction court likely disregarded this argument because it was addressed by our Supreme Court on direct appeal. While our Supreme Court mentioned Loveland’s perjured testimony, it did not address the testimony in terms of whether the manner in which Binkley’s trial counsel sought to prevent or counteract the testimony amounted to ineffective assistance of counsel. In other words, whether the performance of Binkley’s trial counsel (1) fell below an objective standard of reasonableness; and (2) but for counsel’s errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ineffective assistance is a separate and distinct inquiry from whether there is sufficient evidence to support a conviction. This is partly why an ineffective assistance claim is available for post-conviction relief, even when the issue is available and not raised on direct appeal. Landis v. State, 749 N.E.2d 1130 (Ind.2001).

Because Binkley has pled sufficient facts to raise an issue of possible merit, we find that the trial court erred in summarily denying Binkley’s PCR petition. As a result, we remand for further proceedings on Binkley’s ineffective assistance of counsel claim and direct the post-conviction court to issue findings of fact and conclusions of law consistent with Post-Conviction Rule 1(6).

Reversed and remanded.

KIRSCH, J„ and VAIDÍK, J„ concur.

      . The Supreme Court set out the facts during their analysis of the sufficiency of the evidence argument.

      . It seems that the day before his murder, Kemp had cashed his Indiana State University loan check. His widow testified that even after paying various debts and other expenses, he still had five or six one-hundred dollar bills on his person in the hours before his death. This cash was not recovered from the murder scene.

      . Neither party included a copy of the State's answer in their appendices.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Jeffrey D. HECK, Respondent.
    No. 29S00-1303-DI-170.
    Supreme Court of Indiana.
    Sept. 5, 2013.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW IN INDIANA FOR NONCOOPERATION

On March 20, 2013, 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. The Commission has filed a “Request for Ruling and to Tax Costs,” asserting that Respondent still has not fully cooperated with its investigation.

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)(3), 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)(f)(5), that Respondent reimburse the Disciplinary Commission $512.22 for the costs of prosecuting this proceeding.

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 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Lonnie M. RANDOLPH, Respondent.
    No. 45S00-1302-DI-132.
    Supreme Court of Indiana.
    Sept. 5, 2013.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: Prior to Respondent’s representation of L.H., L.H. had been convicted and sentenced for dealing in cocaine, a class A felony, enhanced for being a habitual offender. After an appeal that resulted in remand, he was resen-tenced on the habitual offender count. He then filed a PCR petition (“First PCR”), which resulted in the habitual offender sentence being vacated, leaving a 20-year nonsuspendable sentence for dealing in cocaine.

In fall of 2007, L.H. retained Respondent to represent him in seeking sentence modification, for which he or his family paid Respondent a $1,500 fee for initial research and a $8,500 flat fee for completion of the representation. Under the circumstances, Respondent should have known that sentence modification was not possible. Several months later, Respondent told L.H. that he would be filing a PCR petition instead. He did not inform L.H. of the need to obtain appellate court approval to file a second PCR petition (“Second PCR”), and did not seek such approval before filing it. Consequently, the trial court denied the Second PCR petition the day it was filed. Respondent made some preparations to file another PCR petition (“Third PCR”), but it was never filed. When L.H. expressed his displeasure at the status of the case, Respondent wrote back that the balance owed for his fee was $5,000, which must be paid before any hearing on the Third PCR petition. He did not explain the basis of this fee demand.

In February 2009, L.H. terminated Respondent and demanded a refund of the fees he had been paid. Respondent refused. Eventually the trial court entered an order that Respondent refund $8,500 of the fees. Respondent appealed, the Court of Appeals affirmed, finding that the issues Respondent raised in the Second PCR had already been litigated in L.H.’s appeal or in his First PCR proceeding. This Court denied Respondent’s petition to transfer. Respondent then tendered payment of the judgment.

Aggravating and mitigating facts. The parties cite the following fact in aggravation: Respondent has received two prior private reprimands. The parties cite the following fact in mitigation: Respondent acknowledges his misconduct by resolving this matter by conditional agreement.

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

1.1: Failure to provide competent representation.
1.3: Failure to act with reasonable diligence and promptness.
3.1: Asserting a position for which there is no non-frivolous basis in law or fact. 1.5(a): Making an agreement for, charging, or collecting an unreasonable fee. 1.16(d): Failure to refund an unearned fee upon termination of representation.

Discipline: The parties propose the appropriate discipline is a public reprimand. The discipline imposed for Respondent’s misconduct might have been more severe had this matter been submitted without the Commission’s agreement to the proposed discipline. However, in light of the Commission’s assessment that the proposed discipline is sufficient under the circumstances of this case, the Court now approves the agreed discipline and imposes a public reprimand for Respondent’s misconduct.

The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged.

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(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Jerry L. PETEET, Respondent.
    No. 45S00-1305-DI-302.
    Supreme Court of Indiana.
    Sept. 6, 2013.
   PUBLISHED ORDER OF INTERIM SUSPENSION UPON NOTICE OF GUILTY FINDING

The Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 23(ll.l)(a), has filed a “Notice of Guilty Finding and Request for Suspension,” asking that Respondent be suspended from the practice of law in this State, pending further order of this Court or final resolution of any resulting disciplinary action, due to Respondent being found guilty of a crime punishable as a felony.

The Court, being duly advised and upon consideration of all materials submitted, now finds that Respondent has been found guilty of the following felonies under federal law: Racketeering and Attempt to Commit Murder in Aid of Racketeering Activity.

IT IS THEREFORE ORDERED that Respondent is suspended from the practice of law in this State, effective immediately. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26). The interim suspension shall continue until further order of this Court or final resolution of any resulting disciplinary action, provided no other suspension is in effect.

The Clerk of this Court is directed to send notice of this Order to Respondent or Respondent’s attorney by certified or registered mail, to the Indiana Supreme Court Disciplinary Commission, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Timothy V. CLARK, Respondent.
    No. 49S00-1304-DI-272.
    Supreme Court of Indiana.
    Sept. 6, 2013.
   PUBLISHED ORDER ACCEPTING RESIGNATION AND CONCLUDING PROCEEDING

A “Verified Complaint for Disciplinary Action” against Respondent was filed on April 23, 2013. Respondent has now tendered to this Court an affidavit of resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 23(17), which requires an acknowledgement that the material facts alleged are true and that Respondent could not successfully defend himself if prosecuted.

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective October 1, 2013. The Clerk of this Court is directed to record Respondent’s resignation on the Roll of Attorneys. Respondent shall not undertake any new legal matters between service of this order and the effective date of the resignation, and Respondent shall fulfill all the applicable duties under Admission and Discipline Rule 23(26)(d).

IT IS FURTHER ORDERED that any attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent’s resignation. Respondent shall be ineligible to petition for reinstatement to the practice of law for five years from the date of this order. See Admis. Disc. R. 23(4)(a).

Respondent has an extensive history of discipline, which includes a warning that any future misconduct could lead to a sanction up to and including disbarment. See Matter of Clark, 834 N.E.2d 653, 656 (Ind.2005) The misconduct charged in the verified complaint, considered in light of Respondent’s extensive disciplinary history, would likely have resulted in permanent disbarment had Respondent not chosen voluntary resignation from the bar. If Respondent seeks reinstatement, the misconduct admitted in Respondent’s affidavit of resignation, as well as any other allegations of misconduct, will be addressed in the reinstatement process. Approval of a petition for reinstatement is discretionary and may be granted only if Respondent could meet the most stringent burden of proving by clear and convincing evidence all the requirements of Admission and Discipline Rule 23(4)(b), including without limitation that he can safely be recommended to the legal profession, the courts and the public as a person fit to represent them and otherwise act in matters of trust and confidence; and that he is genuinely remorseful for his misconduct. Acceptance of Respondent’s resignation of from bar serves only to remove him from the practice of law and does not relieve him from any liability he might have for his misconduct under civil or criminal law.

The costs of this proceeding are assessed against Respondent. With the acceptance of this resignation, the hearing officer appointed in this case is discharged.

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(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Joseph B. BARKER, Respondent.
    No. 55S00-1008-DI-429.
    Supreme Court of Indiana.
    Sept. 6, 2013.
   PUBLISHED ORDER FINDING MISCONDUCT AND IMPOSING DISCIPLINE

Upon review of the report of the hearing officer, the Honorable Kimberly J. Brown, who was appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission’s “Verified Complaint for Disciplinary Action,” and the briefs of the parties, the Court finds that Respondent engaged in professional misconduct and imposes discipline on Respondent.

Facts: The salient facts are stipulated or otherwise undisputed. Respondent represented a client (“Father”) in a dissolution action in which Father’s ability to exercise parenting time became an issue. On August 26, 2009, Respondent sent a letter to the attorney for the child’s mother (“Mother”) that said:

[Father] told me this week that he has only seen his baby ... one day all year. Your client doesn’t understand what laws and court orders mean I guess. Probably because she’s an illegal alien to begin with.
I want you to repeat to her in whatever language she understands that we’ll be demanding she be put in JAIL for contempt of court.
I’m filing a copy of this letter with the Court to document the seriousness of this problem.

(Emphasis in original.) The letter was also sent to the judge presiding in the dissolution case.

Violations: The Commission charged Respondent with violating these Indiana Professional Conduct Rules prohibiting the following misconduct:

4.4(a): Using means in representing a client that have no substantial purpose other than to embarrass, delay, or burden a third person.
8.4(g): Engaging in conduct, in a professional capacity, manifesting bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors, and this conduct was not legitimate advocacy.

Respondent argues that it was legitimate advocacy to connect Mother’s alleged violation of immigration laws with her violation of Father’s court-ordered visitation rights. However, regardless of the frustration Respondent might have felt in the circumstances, we conclude that accusing Mother of being in the country illegally is not legitimate advocacy concerning the legal matter at issue and served no substantial purpose other than to embarrass or burden Mother. The Court therefore concludes that Respondent violated both Rule 4.4(a) and Rule 8.4(g) as charged.

Discipline: While it is a mitigating fact that Respondent has no disciplinary history, the Respondent’s misconduct is aggravated by the fact that he has no insight into his misconduct, he has not apologized to Mother, and he has substantial experience in the practice of law. Under these circumstances, the Court concludes that a period of suspension is required. See Matter of McCarthy, 938 N.E.2d 698 (Ind.2010).

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 30 days, beginning October 14, 2013. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the period of suspension, provided there are no other suspensions then in effect, Respondent shall be automatically reinstated to the practice of law, subject to the conditions of Admission and Discipline Rule 23(4)(c).

The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.

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(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Earl C. MULLINS, Jr., Respondent.
    No. 98S00-1306-D1-427.
    Supreme Court of Indiana.
    Sept. 6, 2013.
   PUBLISHED ORDER IMPOSING RECIPROCAL DISCIPLINE

The Indiana Supreme Court Disciplinary Commission filed a “Verified Notice of Foreign Discipline and Petition for Issuance of an Order to Show Cause,” advising that Respondent was disciplined by the Commonwealth of Kentucky and requesting, pursuant to Indiana Admission and Discipline Rule 23(28), that reciprocal discipline be imposed in this state. On June 17, 2013, this Court issued an “Order to Show Cause.”

Respondent was admitted to practice law in Indiana and in Kentucky. On May 23, 2013, the Supreme Court of Kentucky found Respondent’s conduct violated that jurisdiction’s rules of professional conduct. For this misconduct, Respondent was suspended from the practice of law in Kentucky for 90 days, with 30 days actively served and 60 days probated for two years on the condition that he receive no further disciplinary charges, effective as of the date of the order.

The Court finds that there has been no showing, pursuant to Admission and Disci-' pline Rule 23(28)(c), of any reason why reciprocal discipline should not issue in this state. Respondent does not protest imposition of reciprocal discipline. He does, however, request two accommodations: (1) that his suspension take effect 120 days after the date of the Court’s order; and (2) that he not be required to notify his clients of his suspension. The Court will grant the first of request in part, delaying the effective date of suspension for approximately 6 weeks. Respondent, however, does not state any compelling reason to be relieved of this obligation to notify clients of his suspension pursuant to Admis. Disc. R. 23(26)(c).

Being duly advised, the Court orders Respondent suspended indefinitely from the practice of law in this state beginning October 18, 2013. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). The costs of this proceeding are assessed against Respondent.

If Respondent is reinstated to practice in Kentucky, Respondent may file a “Motion for Reinstatement” after his minimum 30-day active suspension in Indiana pursuant to and in full compliance with Admission and Discipline Rule 23(28)(e), provided there is no other suspension order in effect. Reinstatement in Indiana shall be subject to compliance with the terms of Respondent’s probation in Kentucky as determined by that jurisdiction.

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

All Justices concur.


author: RUCKER, Justice.

text:
    Andrew McWHORTER, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
    No. 33S01-1301-PC-7.
    Supreme Court of Indiana.
    Sept. 12, 2013.
    Rehearing Denied Dec. 5, 2013.

      Stephen T. Owens, Public Defender of Indiana, James T. Aeklin, Chief Deputy Public Defender, Indianapolis, IN, for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Stephen Richard Creason, Deputy Attorney General, Indianapolis, IN, for Appellee.
   RUCKER, Justice.

Andrew McWhorter appealed the denial of his petition for post-conviction relief arguing trial counsel rendered ineffective assistance for failing to object to a flawed voluntary manslaughter jury instruction. On review the Court of Appeals reversed the judgment of the post-conviction court and remanded this cause for retrial on reckless homicide only. On transfer, we also reverse the judgment of the post-conviction court but conclude ¿hat on remand there is no prohibition for retrial on either voluntary manslaughter or reckless homicide.

Facts and Procedural History

The State charged McWhorter with murder in the shooting death of his girlfriend, Amanda Deweese. At close range, McWhorter shot Deweese in the head with a shotgun. Shortly before the shooting McWhorter had confronted Deweese about her sexual infidelity with another man while she was pregnant with their child. McWhorter asked for return of the engagement ring that he had given Deweese. She took it off and handed it to him. He threw it on the floor and stepped on it. After Deweese retrieved the ring, McWhorter asked for it again. Deweese gave it back to McWhorter and he threw it again. At trial, there was no dispute McWhorter was the shooter. His defense was that the shooting was accidental. According to McWhorter the facts supporting an accidental shooting included “that only a single shot was fired, and that immediately after the shot, McWhorter exclaimed in ‘horror’, ‘[o]h no, oh no’ and said aloud that he didn’t know there was a shell in the gun.” Br. of Appellant at 8 (quoting Tr. 135, 151, 158-61). He also points to the fact that he “did not flee and waited for authorities to arrive while his grandmother called 911.” Id. Despite McWhorter’s apparent all-or-nothing defense of accident, at the close of trial and without objection from defense counsel, the trial court also instructed the jury on voluntary manslaughter and reckless homicide. After deliberating the jury returned the following verdict: “We, the Jury, find the Defendant, Andrew W. McWhorter, not guilty of murder, but guilty of voluntary manslaughter, a Class A felony, as a lesser included offense of murder, a felony.” App. at 20. McWhorter was also adjudged a habitual offender. The trial court sentenced McWhorter to forty-five years imprisonment for the voluntary manslaughter conviction enhanced by thirty years for the habitual offender adjudication.

On appeal McWhorter contended the trial court erred in admitting certain photographs into evidence, and he also argued the evidence was not sufficient to sustain the conviction. In an unpublished memorandum decision the Court of Appeals rejected both claims and affirmed the judgment of the trial court. See McWhorter v. State, No. 33A01-0701-CR-2, 2007 WL 2264712 (Ind.Ct.App. Aug. 9, 2007), trans. denied.

Thereafter on June 12, 2008 McWhorter filed a pro se petition for post-conviction relief that was later amended by counsel on September 21, 2011. As amended the petition essentially alleged that trial counsel rendered ineffective assistance for failing to object to the voluntary manslaughter instruction. More particularly McWhorter contended that the instruction “was structurally flawed, was an incorrect statement of the law, was confusing, and permitted the jury to re-deliberate on the elements of murder (in the context of voluntary manslaughter) after having acquitted McWhorter of murder.” App. to Br. of Appellant at 28.

After a hearing the post-conviction court denied McWhorter’s petition for relief. McWhorter appealed raising the same claims he raised before the post-conviction court. Agreeing that counsel rendered ineffective assistance, the Court of Appeals reversed the judgment of the post-conviction court. In so doing the Court remanded this cause concluding McWhorter may be retried on the charge of reckless homicide, but may not be retried on the charge of voluntary manslaughter. See McWhorter v. State, 970 N.E.2d 770, 778 (Ind.Ct.App.2012). The State sought transfer challenging, only this aspect of the Court of Appeals opinion. Having previously granted transfer we conclude that McWhorter may be retried on the charge of reckless homicide as well as voluntary manslaughter.

Discussion

McWhorter contends and the Court of Appeals agreed that the now-challenged instruction:

[D]irected the jury to proceed, upon a failure of proof of one or more of the elements of Murder, to consider the lesser charge of Voluntary Manslaughter. However, the only element in dispute was intent. The jury was led by the sequential error of the instruction to, as a practical matter, find that McWhorter did not knowingly or intentionally kill Deweese, but that he did knowingly or intentionally kill Deweese while acting in sudden heat.

McWhorter, 970 N.E.2d at 777.

In support of his argument McWhorter cites the case of Demontiney v. Montana, BIO Mont. 406, 51 P.3d 476 (2002) for the proposition that the double jeopardy prohibition dictates that he cannot be not be retried for voluntary manslaughter. Br. of Appellant at 13. In that case the jury was instructed on deliberate homicide (knowingly causing the death of another) and mitigated deliberate homicide (knowingly causing the death of another while under the influence of extreme mental or emotional stress). Similar to the facts here, the jury was instructed “first to consider the charge of deliberate homicide. Only if they reached a verdict of not guilty ... was the jury then to consider the charge of mitigated deliberate homicide.” Demontiney, 51 P.3d at 479. The jury returned a verdict of not guilty of deliberate homicide, but convicted the defendant of mitigated deliberate homicide. On appeal he argued the jury’s verdict was “legally inconsistent.” Id. at 478 (quotation omitted). The Montana Supreme Court agreed declaring among other things:

[A] finding of guilty on mitigated deliberate homicide requires a finding of every element of deliberate homicide plus an additional finding of extreme mental or emotional stress. The District Court’s jury instructions and verdict form, however, allowed the jury to find Demontiney not guilty of the elements of deliberate homicide yet somehow guilty of those same elements when combined with a finding of extreme mental or emotional stress. The jury exposed this inconsistency by returning a logically impossible verdict. This verdict resulted in Demontiney’s conviction of mitigated deliberate homicide.

Id. at 480 (emphasis added). Concluding that the trial court’s instruction amounted to reversible error, the Court reversed the conviction and then addressed whether the defendant could be retried on any related or included offenses including mitigated deliberate homicide. The Court declared, “[bjecause the jury found Demontiney not guilty of deliberate homicide, it cannot logically convict Demontiney of mitigated deliberate homicide. The State thus cannot retry Demontiney on that charge.” Id. However the Court appears to have based its decision not on state or federal double jeopardy grounds, but rather on its “supervisory control” over District Courts. See id. at 478-79, 481. In fact the Court cited the Montana constitutional prohibition on double jeopardy only for the proposition that the State could not retry the defendant for deliberate homicide — the offense for which the jury returned a verdict of not guilty. Id. at 480.

We decline to follow the Demon-tiney Court. In this jurisdiction “[j]ury verdicts in criminal cases are not subject to appellate review on grounds that they are inconsistent, contradictory, or irreconcilable.” Beattie v. State, 924 N.E.2d 648, 649 (Ind.2010). Indeed we tolerate such verdicts under some circumstances acknowledging that they conceivably could be “due to a compromise among disagreeing jurors, or to expeditiously conclude a lengthy deliberation, or to avoid an all-or-nothing verdict, or for other reasons.” Id. (discussing inconsistency between jury returning a verdict of not guilty of dealing in cocaine and possession of cocaine, but guilty of possession of cocaine within 1,000 feet of a family housing complex and possession of marijuana). Because such verdicts are not subject to appellate review, the structural flaw in the challenged instruction here, which gave rise to a “legally inconsistent” and potentially compromised or allegedly “unreliable” verdict, cannot provide a basis for precluding retrial on the voluntary manslaughter charge. This leaves us with McWhorter’s more general double jeopardy claim.

The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, provides that “[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V; Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The double jeopardy prohibition “bars a defendant from being prosecuted for an offense after being acquitted for the same offense.” Griffin v. State, 717 N.E.2d 73, 77 (Ind.1999) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989)).

Here however McWhorter was acquitted of murder, and the State seeks to retry him for the lesser-included offense of voluntary manslaughter. It is true that under principles of double jeopardy a conviction of a greater offense precludes the conviction of a lesser-included offense. See Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). But it is well-settled that “a defendant may be retried for a lesser offense, of which he was convicted at the first trial, after that conviction is reversed on appeal, and this is true even though the first trial also resulted in a verdict of acquittal on a greater offense.” Griffin, 717 N.E.2d at 78 (citing Price v. Georgia, 398 U.S. 323, 326-27, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970)). Retrial after reversal of a conviction is prohibited only where the reversal is for insufficient evidence, which is akin to an acquittal. See Dexter v. State, 959 N.E.2d 235, 240 (Ind.2012). It is clear that traditional federal double jeopardy jurisprudence does not preclude retrying McWhorter for voluntary manslaughter.

McWhorter’s double jeopardy argument is premised on the notion that the only matter in dispute during trial “was whether the shooting was knowing or accidental.” Br. of Appellant at 3 (citing Tr. at 42-43). Essentially, the argument continues, because the jury found him not guilty of murder, and because murder and voluntary manslaughter share the same element of a “knowing” killing, McWhorter insists the jury has already determined that he did not knowingly kill Deweese; and thus the State should not be allowed another opportunity to present this issue. In essence McWhorter contends that the verdict form was the functional equivalent of not only an acquittal of murder, but also an acquittal of voluntary manslaughter.

This argument is more appropriately framed not as a double jeopardy prohibition but rather as a matter of applying the doctrine of collateral estoppel. Also referred to as issue preclusion, collateral estoppel has been characterized as an “awkward phrase” however, “it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 897 U.S. 436, 448, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). “Collateral estoppel is not the same as double jeopardy, but rather it is embodied within the protection against double jeopardy.” Coleman v. State, 946 N.E.2d 1160, 1165 (Ind.2011). “[T]he traditional bar of jeopardy prohibits the prosecution of the crime itself, whereas collateral estoppel, in a more modest fashion, simply forbids the government from relit-igating certain facts in order to establish the fact of the crime.” Id. (alteration in original) (internal quotation omitted). “In essence the doctrine of collateral estoppel ‘precludes the Government from relitigat-ing any issue that was necessarily decided by a jury’s acquittal in a prior trial.’ ” Id. (quoting Yeager v. United States, 557 U.S. 110, 119, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009)) (emphasis added). To determine what a jury’s verdict necessarily decided, we “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Id. (quoting Yeager, 557 U.S. at 120, 129 S.Ct. 2360 (quotation omitted)).

In Ashe, a group of armed and masked men robbed each person in a group of poker players. Ashe, 397 U.S. at 437, 90 S.Ct. 1189. At the defendant’s first trial, a jury acquitted him of robbing one poker player, but at his second trial a jury convicted him of robbing another poker player. Id. at 439-40, 90 S.Ct. 1189. The sole issue in dispute at the first trial was the defendant’s identity as one of the robbers. See id. at 445, 90 S.Ct. 1189 (“The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers.”). Thus the Court held that the doctrine of collateral estoppel answered negatively the question of whether the prosecution “could constitutionally hale him before a new jury to litigate that issue again.” Id. at 446, 90 S.Ct. 1189.

By contrast, in the case before us whether McWhorter acted knowingly was not the only “single rationally conceivable issue in dispute before the jury.” Also in dispute was whether McWhorter acted under sudden heat. Evidence at trial indicated the shooting took place after McWhorter and Deweese had argued about her involvement with another man. And although we do not decide here whether there was “sufficient” evidence of sudden heat, we note that the question was squarely before the jury. And perhaps most importantly, the jury was instructed on sudden heat. Thus, taking into account the “pleadings, evidence, charge, and other relevant matter,” Coleman, 946 N.E.2d at 1165 (quotation omitted), we conclude that a rational jury could have based McWhorter’s acquittal on an issue other than whether he acted knowingly. Particularly given the presence of an instruction on voluntary manslaughter (flawed though it may have been), it is certainly conceivable that a rational jury could have determined that McWhorter acted knowingly but did so under mitigating circumstances.

Conclusion

We reverse the judgment of the post-conviction court, vacate McWhorter’s conviction for voluntary manslaughter, and remand this cause for retrial. However, neither the prohibition of double jeopardy nor the doctrine of collateral estoppel preclude retrial for reckless homicide or voluntary manslaughter.

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

      . The instruction reads:
      The Defendant is charged with murder. Voluntary manslaughter and reckless homicide are lesser included offenses in the charge of murder. If the State proves the Defendant guilty of murder, you need not consider the included crimes. However, if the State fails to prove the Defendant committed murder, you may consider whether the Defendant committed voluntary manslaughter or reckless homicide, which the Court will define for you.
      You must not find the Defendant guilty of more than one crime.
      The statute defining the offense of Murder which was in force at the time of the offense charged reads as follows:
      35-42-1-1. Murder
      A person who: knowingly ... kills another human being ... commits murder, a felony. To convict the Defendant, the State must have proved each of the following elements:
      1. The Defendant
      2. knowingly

      3. killed
      4. Amanda L. Deweese.

        If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty of murder, a felony, as charged in the Information. You may then consider any included crime. The crime of voluntary manslaughter is included in the charged crime of murder. Voluntary manslaughter is defined by statute as follows:
      A person who knowingly ... kills another human being while acting under sudden heat commits voluntary manslaughter, a Class B felony. The offense is a Class A felony if it is committed by means of a deadly weapon.
      Sudden heat is a mitigating factor that reduces what otherwise would be murder to voluntary manslaughter. The State has the burden of proving beyond a reasonable doubt that the Defendant was not acting under sudden heat.
      Before you may convict the Defendant, the state must have proved each of the following beyond a reasonable doubt:
      1. The Defendant
      2. knowingly

      3. killed
      4. Amanda Deweese
      5. and the Defendant was not acting under sudden heat
      6. and the Defendant killed by means of a deadly weapon.
      If the State failed to prove each of elements 1 through 4 of the crime of murder beyond a reasonable doubt, you must find the Defendant not guilty of murder as charged. If the State did prove each of elements 1 through 4 and element 6 beyond a reasonable doubt, but the State failed to prove beyond a reasonable doubt element 5, you may find the Defendant guilty of voluntary manslaughter, a Class A felony, a lesser included offense of murder. If this is your finding but that the Defendant did not do so by means of a deadly weapon, you may find the Defendant guilty of voluntary manslaughter, a Class B felony, a lesser included offense of murder. If the State proves the Defendant guilty of voluntary manslaughter, you need not consider the next included crime.
      If the State did prove each of elements 1 through 5 beyond a reasonable doubt, you may find the Defendant guilty of murder, a felony.
      The crime of reckless homicide is defined by law as follows:
      A person who recklessly kills another human being commits reckless homicide, a Class C felony.
      Before you may convict the Defendant of reckless homicide, the State must have proved each of the following beyond a reasonable doubt:
      1. The Defendant
      2. recklessly

      3. killed
      4. Amanda Deweese.
      If the State failed to prove each of these elements beyond a reasonable doubt, you must find the defendant not guilty of reckless homicide a Class C felony.
      App. 25-27 (emphases added).

      . McWhorter readily concedes that he is subject to retrial on the charge of reckless homicide. Br. of Appellant at 13 n. 4.

      . In its Petition to Transfer, the State does not contest the Court of Appeals' conclusion that trial counsel rendered ineffective assistance. We summarily affirm the opinion of the Court of Appeals on this point.

      . A similarly worded provision in the Indiana Constitution provides: "No person shall be put in jeopardy twice for the same offense.” Ind. Const, art. 1, § 14. McWhorter does not cite or make any claim under the Indiana Double Jeopardy Clause. Therefore we do not address the issue here on Indiana constitutional grounds. See Jackson v. State, 735 N.E.2d 1146, 1150, n. 1 (Ind.2000) (declining to address an Indiana constitutional claim where appellant referred to the constitutional provision but made no separate argument on that basis).


author: VAIDIK, Judge.

text:
    Christopher NAAS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A04-1301-CR-4.
    Court of Appeals of Indiana.
    Aug. 14, 2013.
    Timothy J. Burns, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Christopher Naas appeals his conviction for Class B misdemeanor public intoxication under Indiana’s recently amended statute. He contends that the evidence is insufficient to show that he was intoxicated and that he breached the peace and/or annoyed or alarmed another person. The evidence of Naas’s red, watery eyes, slurred speech, unsteady balance, odor of alcohol about his person, and Naas alarming others by walking toward them in an aggressive manner while yelling at them which caused them to back away from him is sufficient to prove public intoxication. We therefore affirm his conviction.

Facts and Procedural History

On September 20, 2012, Naas, Ryan Wall, and another male drove to Thornton’s gas station at 5310 West Tenth Street in Indianapolis after being involved in a traffic incident with a male and female in another car. Speedway Police Officer Robert Fekkes was dispatched to the scene in response to a report of a disturbance between a male and a female at the gas station. Upon arrival, Officer Fekkes saw an argument between Naas, Wall, and the male and female from the other car. Naas was yelling and walking aggressively toward the male and female as they backed away from him and tried to “deescalate the situation.” Tr. p. 9.

Naas appeared intoxicated to Officer Fekkes, who saw that Naas had “red watery eyes, slurred speech, unsteady balance and had the odor of an alcoholic beverage upon his person.” Id. at 10. When Officer Fekkes questioned Naas, he was “relatively calm” but continued “to either not answer any of the questions or lie ... about the answers.” Id. at 12. He also noticed a half-empty bottle of whiskey on the passenger floorboard of the car that Naas was standing next to.

The State charged Naas with public intoxication as a Class B misdemeanor. In December 2012, a bench trial was held. The State presented the testimony of Officer Fekkes, and Naas presented the testimony of Wall and also testified on his own behalf. Naas and Wall both stated that Naas did not argue with anyone and was walking into the gas station to “purchase a pack of cigarettes.” Id. at 24. The trial court found Naas guilty of public intoxication as a Class B misdemeanor and “specifically that he breached the peace with his manner and behavior and that he did, I am going to infer, alarm[ ] the other people by the fact that they backed away. That’s the evidence that the officer said.” Id. at 33. The court sentenced Naas to four days in jail.

Naas now appeals.

Discussion and Decision

Naas contends that the evidence is insufficient to sustain his conviction for public intoxication. Our standard of review with regard to sufficiency claims is well settled. In reviewing a sufficiency of the evidence claim, we neither reweigh the evidence nor judge the credibility of the witnesses. Lainhart v. State, 916 N.E.2d 924, 939 (Ind.Ct.App.2009). We will consider only the evidence most favorable to the judgment and the reasonable inferences drawn therefrom and will affirm if the evidence and those inferences constitute substantial evidence of probative value to support the judgment. Id. A conviction may be based upon circumstantial evidence alone. Id. Reversal is appropriate only when reasonable persons would not be able to form inferences as to each material element of the offense. Id.

Our General Assembly amended the public-intoxication statute, Indiana Code section 7.1-5-1-3, effective July 1, 2012, by requiring the State to prove more than that a defendant was intoxicated in a public place or place of public resort. See P.L. 117-2012. Specifically, the statute now requires:

Subject to section 6.5 of this chapter, it is a Class B misdemeanor for a person to be in a public place or a place of public resort in a state of intoxication caused by the person’s use of alcohol or a controlled substance (as defined in Indiana Code 35-48-1-9), if the person:
(1) endangers the person’s life;
(2) endangers the life of another person;
(3) breaches the peace or is in imminent danger of breaching the peace; or
(4) harasses, annoys, or alarms another person.

Ind.Code § 7.1-5-1-3. As charged in this case, the State was required to prove that Naas was in a public place or place of public resort in a state of intoxication caused by his use of alcohol or a controlled substance and endangered his life or the life of another person, breached the peace, or harassed, annoyed, or alarmed another person. Appellant’s App. p. 15.

Indiana Code section 9-13-2-86 defines “intoxicated” as “under the influence of ... alcohol ... so that there is an impaired condition of thought and action and the loss of normal control of a person’s faculties.” “Impairment can be established by evidence of: (1) the consumption of a significant amount of alcohol; (2) impaired attention and reflexes; (3) watery or bloodshot eyes; (4) the odor of alcohol on the breath; (5) unsteady balance; (6) failure of field sobriety tests; and (7) slurred speech.” Vanderlinden v. State, 918 N.E.2d 642, 644 (Ind.Ct.App.2009), trans. denied.

Naas first argues that the evidence is insufficient to show that he was intoxicated. He claims that Officer Fek-kes testified inconsistently at trial that he exhibited the behaviors of someone who was intoxicated, but at the same time was “calm and compliant when placed in custody.” Appellant’s Br. p. 7. The evidence most favorable to his conviction, however, reveals that Officer Fekkes testified that Naas had “red watery eyes, slurred speech, unsteady balance and had the odor of an alcoholic beverage upon his person.” Tr. p. 10. He also saw that there was a half-empty bottle of whiskey on the passenger floorboard of the car that Naas was near. Furthermore, Officer Fekkes had been trained to recognize the signs of intoxication and concluded that Naas was in fact intoxicated. The fact that Naas may have been calm when taken into custody does not negate the fact that he was intoxicated.

Next, Naas argues that the “record is devoid of the requisite evidence of breach of peace or of behavior that alarmed another person.” Appellant’s Br. p. 5. He claims that there was no evidence of breach of peace on Naas’s behalf because Officer Fekkes testified that all individuals involved in the altercation were yelling. Tr. p. 10. He also claims that Officer Fekkes’s testimony that the other male and female looked as if “they were trying to back away from [Naas] who appeared to be excited” does not rise to the level of alarming another person. Id. at 9. The evidence most favorable to the conviction reveals that Naas was agitated, yelling, “trying to continue the altercation,” and walking in an aggressive manner, causing the other parties to back away. Id. at 9-10, 15. At trial, the court found “specifically that [Naas] breached the peace with his manner and behavior and that he did, I am going to infer, alarm[] the other people by the fact that they backed away.” Id. at 33. We agree that the evidence of the parties backing away is sufficient to infer that Naas alarmed them when he yelled and walked in an aggressive manner toward them. Accordingly, we conclude that the evidence of intoxication and alarming others constitutes substantial evidence of probative value to support Naas’s conviction of Class B misdemeanor public intoxication.

Affirmed.

BAKER, J., and FRIEDLANDER, J., concur.

      . Before the amendment, Indiana Code section 7.1 — 5—1—3 simply provided that "[i]t is a Class B misdemeanor for a person to be in a public place or a place of public resort in a state of intoxication caused by the person’s use of alcohol or a controlled substance (as defined in IC 35-48-1-9).” Ind.Code Ann. § 7.1 — 5—1—3 (West 2005).


author: BARNES, Judge.

text:
    Derik A. BLOCKER and Tammi Blocker, Appellants, v. U.S. Bank NATIONAL ASSOCIATION as Trustee for the Certificateholders Citigroup Mortgage Loan Trust Inc. Asset-Backed Pass-Through Certificate Series 2007-AHL3, Appellee.
    No. 45A03-1211-MF-479.
    Court of Appeals of Indiana.
    Aug. 19, 2013.
    Derik A. Blocker, Merrillville, IN, Appellant Pro Se.
    Phillip A. Norman, Valparaiso, IN, Attorney for Appellee.
   OPINION

BARNES, Judge.

Case Summary

Derik and Tammi Blocker appeal the trial court’s summary judgment and decree of foreclosure entered in favor of U.S. Bank National Association as Trustee for the Certificateholders Citigroup Mortgage Loan Trust Inc. Asset-Backed Pass-Through Certificates Series 2007-AHL3 (“U.S. Bank”). We affirm.

Issue

The restated issue before us is whether there are any genuine issues of material fact that would preclude the entry of a decree of foreclosure in favor of U.S. Bank.

Facts

On February 26, 2007, the Blockers signed a promissory note for $162,350.00 with Accredited Home Lenders, Inc., (“Accredited”) to finance the purchase of their home in Merrillville, and also executed a mortgage with Accredited to secure payment of the loan. Accredited’s nominee, Mortgage Electronic Registration Systems, Inc., (“MERS”) later assigned the mortgage to U.S. Bank. There are two such assignments in the record, one that was recorded on October 13, 2011, and one that was recorded on December 9, 2011.

The Blockers stopped paying the loan beginning with the monthly payment due in June 2011, when the principal balance was $157,473.83. U.S. Bank initiated foreclosure proceedings on December 30, 2011. On February 27, 2012, a Marcus Lenton, Jr., of Chicago sent a personal, non-certified check for $180,000.00 to U.S. Bank on behalf of the Blockers to pay off their loan. The Blockers had previously named Len-ton as their attorney-in-fact; the Blockers never hired an attorney-at-law to represent them. On the back of the check in the endorsement box, Lenton had written, “NOT FOR DEPOSIT EFT ONLY!!!” App. p. 123. U.S. Bank did not attempt to cash this check. It subsequently informed the Blockers that their debt could be paid off only via certified funds, such as a money order, cashier’s check, or wire transfer.

The parties held a settlement conference on April 27, 2012. At this conference, the Blockers apparently presented U.S. Bank’s representatives with documents prepared by Lenton, which the Blockers contend represented a “payment instrument to discharge the alleged debt....” Id. at 76. These documents included a “Lawful Order for Money” directed to the United States Treasury Department requesting a “Charge to the Drawee’s [Lenton’s] Account the Value of the SUM CERTAIN AMOUNT OF: $200,000.” Id. at 86. A separate letter from Lenton to the Secretary of the Treasury stated that the $200,000 was, “[a]s you know, ... a public debt obligation of the United States.” Id. at 84. Lenton had also prepared a “UCC Financing Statement” requesting that U.S. Bank assign and release their interest in the Blockers’ home in exchange for Len-ton’s “INTERNATIONAL BILL OF EXCHANGE” in the amount of $200,000.00. Id. at 83. U.S. Bank did not accept these documents as payment for the Blockers’ indebtedness.

On July 24, 2012, U.S. Bank filed a motion for summary judgment. On August 1, 2012, the Blockers filed a response. On that same day, the Blockers presented a document to U.S. Bank that was labeled an “International Promissory Note (UN-CITRAL Convention),” written for the amount of $200,000.00. Id. at 98. The document was not written against any bank account; instead, it was written against the “Marcus J. Lenton Jr. Trust” as drawee and Lenton himself as drawer. Id. U.S. Bank refused to accept this document as payment for the Blockers’ indebtedness.

The trial court scheduled a hearing for October 11, 2012. On September 14, 2012, the Blockers served interrogatories and a request for production of documents upon U.S. Bank and demanded a response by October 11, 2012. U.S. Bank did not respond to either document, and the trial court held the summary judgment hearing as scheduled. On October 16, 2012, the trial court granted summary judgment and entered a decree of foreclosure in favor of U.S. Bank. The Blockers now appeal pro se.

Analysis

We will affirm a trial court’s grant of summary judgment only if no genuine issues of material facts exist and the mov-ant is entitled to judgment as a matter of law. Reed v. Reid, 980 N.E.2d 277, 303 (Ind.2012) (citing Ind. Trial Rule 56(C)). Any doubts concerning the existence of a genuine issue of material fact must be resolved in favor of the nonmoving party and result in reversal of summary judgment. Id. “A fact is material for summary judgment purposes if its resolution is decisive of either the action or a relevant secondary issue.” Id. U.S. Bank argues that it is undisputed the Blockers had stopped paying on the promissory note and that U.S. Bank was entitled to foreclose on the mortgage because of that failure.

The bulk of the Blockers’ brief is dedicated to arguing that they in fact made no fewer than three tenders of payment to U.S. Bank through their attorney-in-fact Lentoii prior to the granting of summary judgment, any one of which should have discharged their mortgage debt. The Blockers’ argument goes awry by focusing on the three “payment” attempts by Len-ton. It seems readily apparent that those attempts were not done through normal banking channels. Instead, although the documents in the record and arguments by the Blockers are somewhat confusing, it appears that Lenton requested that the United States Treasury Department pay off the Blockers’ mortgage for them.

Rather than risk improperly paraphrasing the Blockers’ arguments, they state in part:

Derik A. Blocker and his Attorney-in-Fact may issue Negotiable Instruments against the obligations of the United States because Derik A. Blocker is one whose private property is at risk to collateralize the government’s debt and currency.
Therefore, by legal definitions, Derik A. Blocker and his Attorney-in-Fact are part of a “national banking association” the members of which may issue Negotiable Instruments against these obligations of the UNITED STATES, to that part of the public debt due them as Principals and Sureties.
Therefore, the legal definitions relating to “legal tender” have been written by Congress to provide for the inclusion of those Negotiable Instruments issued by those private principals and creditors of the U.S. against the obligation of the United States for recovery on their (and the Blocker’s) private assets and property that have been and are still being used to collateralize the obligations of the United States.
This has been the case since 1933, when, in the wake of the U.S. bankruptcy, Congress passed House Joint Resolution 192, now Public Law 73-10, and codified at Title 31 § 5118. Since that time, these creditors have collectively and nationally constituted a legal class of persons recognized as being a ‘national banking association’ with the right to issue such notes against the obligation of THE UNITED STATES for equity interest recovery due and accrued to these Principals and Sureties of the United States.

Appellants’ Br. pp. 8-9.

U.S. Bank has not favored us with a direct response to the Blockers’ lengthy arguments on this point, other than to say that Lenton’s tendered payment offers were not “valid.” Appellee’s Br. p. 5. It appears that the Blockers’ arguments are an outgrowth of the so-called “Redemp-tionist Movement,” although they never use that phrase in their brief. The theory behind that movement has been explained in part as follows:

[T]he “Redemptionist” theory ... propounds that a person has a split personality: a real person and a fictional person called the “strawman.” The “strawman” purportedly came into being when the United States went off the gold standard in 1933, and, instead, pledged the strawman of its citizens as collateral for the country’s national debt. Redemptionists claim that government has power only over the straw-man and not over the live person, who remains free.

McLaughlin v. CitiMortgage. Inc., 726 F.Supp.2d 201, 209 (D.Conn.2010) (quoting Monroe v. Beard, 536 F.3d 198, 203 n. 4 (3d Cir.2008), cert. denied).

Another court has observed:

Adherents to this theory assert that the government first sets up fictitious accounts — in the initial amount of $630,-000.00 — for each person at birth, and then pledges the “straw man of its citizens” as collateral for the national debt. Through a series of obscure procedures derived from the Uniform Commercial Code, citizens can allegedly gain access to these “secret accounts” and write “sight drafts” to utilize those funds for their own purposes. Some believe the secret accounts are virtually bottomless, meaning those who truly understand and comply with the required filings must never actually pay for anything.

Stevenson v. Bank of America, 359 S.W.3d 466, 469 n. 6 (Ky.Ct.App.2011).

Closely related to the “redemption” theory is the “vapor money” theory, which also seems to play a role in the Blockers’ arguments:

The “vapor money” (or “no money lent”) theory posits that Congress has never given banks the authority to extend credit and, thus, banks act beyond their charters when making loans. Proponents claim banks create money “out of thin air,” through ledger entries and bookkeeping tricks, by “depositing” a borrower’s promissory note without the borrower’s permission, listing the note as an “asset” on the bank’s ledger entries, and then lending a borrower back his own “money.” Since banks do not have enough “real money in their vaults” to cover the sums lent, loans are not backed by actual money — the only real money is gold or silver; paper money is worthless since it is created by an illegitimate Federal Reserve — making them invalid ab initio and creating no obligation for repayment.

Id. Both the “vapor money” and “redemption” theories have been “roundly rejected by courts across the nation.” Id.

In sum, Lenton’s attempts to pay off the Blockers’ mortgage debt were not only unorthodox but also legally unacceptable. It is unclear who Lenton is or what his relationship to the Blockers is and whether he represented to them that he knew the “secret formula” to accessing money locked away in a clandestine Treasury Department account but, in any event, he clearly failed to access or provide the funds needed to pay off their mortgage. The trial court did not err in refusing to countenance these purported attempts to discharge the Blockers’ debt.

The Blockers also briefly argue that the assignment of the mortgage to U.S. Bank “appears to be fraudulent.” Appellants’ Br. p. 14. They seem to base this argument on the fact that there are two different assignments from MERS to U.S. Bank in the record. Indeed, it is unclear why there are two different assignments. Nonetheless, we do not believe this gives rise to any reasonable inference of fraud. Either of the assignments would be sufficient to establish U.S. Bank as the proper party to foreclose the mortgage and any suggestion to the contrary would be based on mere conjecture or speculation, which is insufficient to create genuine issues of material fact and defeat a motion for summary judgment. See City of Evansville v. U.S. Fidelity & Guar. Co., 965 N.E.2d 92, 102 (Ind.Ct.App.2012), trans. denied.

Additionally, the Blockers do not argue that MERS lacked authority to assign the mortgage on behalf of Accredited to U.S. Bank. There was also uncontradicted evidence that U.S. Bank was the current holder of the original promissory note and, therefore, it was entitled to enforce the note. See Ind.Code § 26-1-3.1-301. Thus, the trial court properly concluded that U.S. Bank was the proper party to enforce the note and foreclose the mortgage.

The Blockers also contend that their procedural due process rights were violated when U.S. Bank failed to respond to their interrogatories and request for production of documents before the trial court issued its summary judgment ruling. They cite no authority, however, for the proposition that an opposing party’s failure to respond to a discovery request in a civil case amounts to a due process violation. We also observe that the Blockers did not file a motion to compel discovery under Indiana Trial Rule 37; parties surely cannot claim a due process violation related to failure to cooperate with discovery when they have not used the intended procedures to compel discovery. In any event, we also observe that the Blockers gave U.S. Bank less than thirty days to answer the interrogatories and produce the documents. Both Trial Rules 33 and 34, governing interrogatories and motions to produce documents, give an opposing party thirty days to respond to them, and the Blockers did not ask the trial court to shorten this time period. Finally, the Blockers never sought to continue the summary judgment hearing so that they could obtain the evidence requested in their discovery motions. We cannot perceive how the Blockers’ due process rights were violated by U.S. Bank’s failure to answer the interrogatories or produce the requested documents.

Finally, we acknowledge that the Blockers contend several times that the trial court lacked subject matter jurisdiction. “Subject matter jurisdiction exists when the Indiana Constitution or a statute grants the court the power to hear and decide cases of the general class to which any particular proceeding belongs.” R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 457 (Ind.2012). The trial court in this case was a division of the Lake Superior Court, which is a court of general jurisdiction. See Kozlowski v. Dordieski 849 N.E.2d 535, 537 (Ind.2006). It is clear the trial court had subject matter jurisdiction to enter a decree of foreclosure. To the extent the Blockers make other arguments attacking the trial court’s jurisdiction or the propriety of its judgment that we have not explicitly addressed, it suffices to say that those arguments lack cogency and we will not address them further. See A.J. v. Logansport State Hosp., 956 N.E.2d 96, 109 (Ind.Ct.App.2011) (noting that under Indiana Appellate Rule 46(A)(8)(a), lack of cogent reasoning waives an argument for appellate review).

Conclusion

There are no genuine issues of fact that would preclude the entry of summary judgment and a decree of foreclosure in favor of U.S. Bank against the Blockers. We affirm.

Affirmed.

KIRSCH, J., and VAIDIK, J., concur.

      . Although there is no information about the "Redemptionist Movement” in the briefs or trial record, we are permitted to refer to factual information outside the record, based upon published sources we have discovered that we cite with specificity, in order to provide the background information essential to a thorough and fair consideration of a case. See Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 808 n. 1 (Ind.2012).


author: CRONE, Judge.

text:
    Alec LUCAS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 49A02-1301-CR-51.
    Court of Appeals of Indiana.
    Aug. 27, 2013.
    James R. Recker, Indianapolis, IN, Attorney for Appellant.
   OPINION

CRONE, Judge.

Case Summary

In 2011, Lucas was charged with several criminal offenses, some of which were dismissed pursuant to a plea agreement. He later filed a petition pursuant to Indiana Code Section 35-38-5-5.5 to restrict access to his arrest records for the dismissed charges. The trial court denied the petition, concluding that the statute does not apply to cases where some, but not all, charges are dismissed pursuant to a plea agreement. Lucas now appeals, arguing that the trial court misinterpreted the statute. While the statute is not a model of clarity, we conclude that it was intended to apply to any dismissed charge and not just in cases where all charges have been dismissed. Therefore, we reverse and remand.

Facts and Procedural History

On January 17, 2011, the State filed an information charging Lucas with four criminal offenses and an infraction: (1) possession of a controlled substance as a class D felony; (2) possession of marijuana as a class D felony; (3) dealing marijuana as a class D felony; (4) minor in possession of alcohol as a class C misdemeanor; and (5) driving infractions. On March 15, 2011, pursuant to a plea agreement, Lucas pled guilty to counts 1 and 3, and judgment was entered on those counts as class A misdemeanors. The State dismissed the remaining counts. Lucas was sentenced to one year, all suspended to probation except for time served.

On November 9, 2012, Lucas filed a “Verified Petition to Restrict Access to Criminal History,” in which he requested that, pursuant to Indiana Code Section 35-38-5-5.5, access to his arrest records for possession of marijuana and minor in possession of alcohol be restricted. Appellant’s App. at 26. A master commissioner granted the petition on December 5, 2012. However, it appears that the presiding judge sua sponte set the motion for a hearing. After hearing arguments on December 18, 2012, the presiding judge vacated the master commissioner’s ruling. Based on the court’s statements at the hearing, it appears that the court ruled that the statute did not apply to scenarios where a defendant pled guilty to some charges in exchange for the dismissal of others. Lucas now appeals.

Discussion and Decision

Lucas argues that the trial court erred by concluding that Indiana Code Section 35-38-5-5.5 does not apply to cases where some, but not all, charges are dismissed pursuant to a plea agreement. Interpretation of a statute is a question of law, which we review de novo. Adams v. State, 960 N.E.2d 793, 797 (Ind.2012). Our goal in statutory construction is to determine, give effect to, and implement the intent of the legislature. State v. Prater, 922 N.E.2d 746, 748 (Ind.Ct.App.2010), trans. denied.

Indiana Code Section 35-38-5-5.5 (2012) provides:

(a) If a person charged with a crime:
(1) is not prosecuted or if charges against the person are dismissed;
(2) is acquitted of all criminal charges; or
(3) is convicted of the crime and the conviction is subsequently vacated;
the person may petition a court to restrict disclosure of the records related to the arrest to a noncriminal justice organization or an individual.
(c) A petition under subsection (a) must be filed not earlier than:
(1) if the person is acquitted, thirty (3Q) days after the person is acquitted;
(2) if the person’s conviction is vacated, three hundred sixty-five (365) days after:
(A) the order vacating the person’s conviction is final, if there is no appeal or the appeal is terminated before entry of an opinion or memorandum decision; or
(B) the opinion or memorandum decision vacating the person’s conviction is certified; or
(3) if the person is not prosecuted, thirty (30) days after charges are dismissed, if the charges are not refiled.
(d) A petition under subsection (a) must set forth:
(1) the date of the arrest;
(2) the charge;
(3) the date charges were dismissed, if applicable;
(4) the date of conviction or acquittal, if applicable;
(5) the date the conviction was vacated, if applicable;
(6) the basis on which the conviction was vacated, if applicable;
(7) the law enforcement agency employing the arresting officer;
(8) any other known identifying information, such as the name of the arresting officer, case number, or court cause number;
(9) the date of the petitioner’s birth; and
(10) the petitioner’s Social Security number.
(f) If the prosecuting attorney wishes to oppose a petition under subsection (a), the prosecuting attorney shall, not later than thirty (30) days after the petition is filed, file a notice of opposition with the court setting forth reasons for opposing the petition. The prosecuting attorney shall attach to the notice of opposition a certified copy of any documentary evidence showing that the petitioner is not entitled to relief. A copy of the notice of opposition and copies of any documentary evidence shall be served on the petitioner in accordance with the Indiana Rules of Trial Procedure. The court may:
(1) summarily grant the petition;
(2) set the matter for hearing; or
(3) summarily deny the petition, if the court determines that:
(A) the petition is insufficient; or
(B) based on documentary evidence submitted by the prosecuting attorney, the petitioner is not entitled to have access to the petitioner’s arrest records restricted.
(g) If notice of opposition is filed under subsection (f) and the court does not summarily grant or summarily deny the petition, the court shall set the matter for a hearing.
(h) After a hearing is held under subsection (g), the court shall grant the petition filed under subsection (a), unless the petitioner is being reprosecuted on charges related to the original conviction.
(i) If the court grants a petition filed under subsection (a), the court shall order the state police department not to disclose or permit disclosure of the petitioner’s limited criminal history information to a noncriminal justice organization or an individual under IC 10-18-3-27.

(Emphasis added.)

The statute alternates between using the singular “charge” and the plural “charges.” However, at no point does the statute reference a requirement that “all” charges be dismissed. By contrast, subsection (a)(2) permits a petition to be filed if the person “is acquitted of all criminal charges.” (Emphasis added.) In addition, Indiana Code Section 35-88-5-1 permits a person to petition for expungement of arrest records (as opposed to restriction of access) when “all criminal charges filed against an individual are dropped.” (Emphasis added.) Section 35-38-5-1 was already in existence when Section 35-38-5-5.5 was enacted. Many of the provisions of Section 35-38-5-5.5 mirror Section 35-38-5-1, which suggests that omission of the word “all” in Section 35-38-5-5.5 was deliberate.

Public Law Number 159-2013, effective July 1, 2013, repealed Section 35-38-5-5.5 and created a new Chapter 35-38-9, titled “Sealing and Expunging Conviction Records.” New Section 35-38-9-1 allows a person to petition a court to seal arrest records if: “(1) the arrest did not result in a conviction or juvenile adjudication; or (2) the arrest resulted in a conviction or juvenile adjudication and the conviction or adjudication was vacated on appeal.” This new statute does not appear to be a clarification of the old statute, but rather a shift from focus on the disposition of individual charges to whether the arrest ultimately resulted in a conviction. The trial court’s approach, however, was more consistent with the new statute than with the statute in effect at the time. We conclude that the trial court erred in concluding that Section 35-38-5-5.5 does not apply to cases where some, but not all, charges are dismissed. As there does not appear to be any other basis in the statute for denying Lucas’s petition, we reverse and remand with instructions for the trial court to grant the petition and issue an order pursuant to Section 35 — 38—5—5.5(i).

Reversed and remanded.

BARNES, J., and PYLE, J., concur.

      . Lucas was eighteen years old at the time.

      . The State apparently did not draft a separate count 5, but attached a traffic ticket, which listed two infractions: unsafe lane movement and failure to reduce speed and proceed with caution when approaching an emergency vehicle. See índ.Code §§ 9-21-8-11(1) and 9 — 21—8—35(b)(2). However, the parties appear to have referred to the infractions collectively as count 5.

      . It appears that no written order was issued. The chronological case summary entry for December 18, 2012, simply states, "Court vacates previous restricted access ruling; counts are no longer restricted].” Appellant’s App. at 17. At the hearing, the court stated:
      I mean, ninety percent of the cases that get resolved in this court ... are by plea agreements. In most of those cases, there are usually charges that are dismissed. As a practical matter, restricting access to that aspect of the information — it's nearly impossible .... And the way I read the statute, it’s to address those cases where ... there wasn’t a guilty finding in a particular case, not where there was one and some of the ... charges got dismissed. So the way I'm reading it is — this doesn’t apply in this circumstance.
      Tr. at 5-6.

      .Pursuant to Indiana Code Section 35-38-5-5.5(e), the petition must be served on the prosecuting attorney and the state central repository for records, which is administered by the Indiana State Police. Subsection (f) permits the prosecutor to file a notice of opposition and submit documentary evidence. Although the prosecutor was present for the hearings, the prosecutor did not file a notice of opposition or submit documentary evidence, and the prosecutor has not participated in this appeal. The Attorney General entered an appearance on behalf of the State (specifically, the State Police) and filed a motion to dismiss, which was denied by our motions panel. The Attorney General then filed a notice of non-involvement, which was accepted on June 20, 2013.

      . This section was in effect at the time that Lucas filed his petition, but was repealed effective July 1, 2013 by Public Law Number 159-2013.


author: RILEY, Judge.

text:
    H.M., Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 49A04-1304-CR-157.
    Court of Appeals of Indiana.
    Sept. 10, 2013.

      Gladys M. Whitfield, Dea C. Lott, Indianapolis, IN, Attorneys for Appellant.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Petitioner, H.M., appeals the trial court’s summary denial of his four petitions to restrict the disclosure of arrest records pursuant to Ind.Code § 35-38-5-5.5.

We affirm.

ISSUES

H.M. raises two issues which we restate as follows:

(1) Whether the trial court properly denied H.M.’s petitions pursuant to I.C. § 35-38-5-5.5; and

(2) Whether the trial court properly denied relief to H.M. pursuant to Admin. R. 9(G)(1)(g).

FACTS AND PROCEDURAL HISTORY

On February 15, 2013, H.M. filed four petitions to restrict the disclosure of his records related to four separate arrests to a noncriminal justice organization or an individual. Each of these arrests occurred in Marion County, Indiana and none resulted in a conviction. Specifically, in December of 1993, police officers arrested H.M. for battery. The State did not file any charges. In May of 1999, H.M. was arrested for public intoxication, disorderly conduct, and criminal trespass. The State declined to file charges. In March of 2000, H.M. was arrested for operating a vehicle while intoxicated and driving while suspended. The State did not bring any charges. Lastly, in January of 2002, a police officer arrested H.M. for theft and receiving stolen property. The State did not file a charging Information.

On March 7, 2013, the trial court conducted a hearing on H.M.’s petitions. Subsequently, on March 14, 2013, the trial court summarily denied his petitions in a single Order, finding that “I.C. § 35-38-5-5.5 applies to those cases in which a person is charged with a crime[.]” (Appellant’s App. p. 15).

H.M. now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Indiana Code section 35-38-5-5.5

H.M. contends that the trial court erred

when it summarily denied his petitions, filed pursuant to I.C. § 35-38-5-5.5, to restrict the disclosure of records related to four arrests.

Whether H.M. can restrict the disclosure of his arrest records is a question of statutory interpretation and subject to a de novo review. See Pinnacle Properties Dev. Group, LLC. v. City of Jeffersonville, 893 N.E.2d 726, 727 (Ind.2008). In such interpretation, the express language of the statute and rules of statutory interpretation apply. Nash v. State, 881 N.E.2d 1060, 1063 (Ind.Ct.App.2008), trans. denied. We will examine the statute as a whole and avoid excessive reliance on a strict literal meaning or the selective reading of words. Id. Where the language of the statute is clear and unambiguous, there is nothing to construe. Id. However, where the language is susceptible to more than one reasonable interpretation, the statute must be construed to give effect to the legislature’s intent. Id. The legislature is presumed to have intended the language used in the statute to be applied logically and not to bring about an absurd or unjust result. Id. Thus, we must keep in mind the objective and purpose of the law as well as the effect and repercussions of such a construction. Id.

Indiana Code section 35-38-5-5.5 restricts the disclosure of records and states, in pertinent part, that:

(a) If a person charged with a crime:
(1) is not prosecuted or if charges against the person are dismissed;
(2) is acquitted of all criminal charges; or
(3) is convicted of the crime and the conviction is subsequently vacated;
the person may petition a court to restrict disclosure of the records related to the arrest to a noncriminal justice organization or an individual.

Focusing on the statutory requirement that a person has to be “charged” with a crime, H.M. contends that the arresting officers charged him with a specific crime in each case and therefore, as the State decided not to prosecute, he falls within the parameters of the statute and access to his arrest records should be restricted.

We agree with H.M. that “charge” or “to charge” is not defined by our criminal statutes. Undefined words in a statute are given their plain, ordinary, and usual meaning. 600 Land, Inc. v. Metropolitan Bd. of Zoning Appeals of Marion Co., 889 N.E.2d 305, 309 (Ind.2008). In determining the plain and ordinary meaning of a term, courts may use English language dictionaries as well as consider the relationship with other words and phrases. Id. Charge is defined as “a formal accusation of an offense as a preliminary step to prosecution.” Black’s Law DICTIONARY 248 (8th ed. 2004). “Any crime may be charged by indictment or information” by the prosecuting attorney. 1.C. § 35-34-l-l(a). Whereas a law enforcement officer may arrest a person, a “criminal prosecution may be commenced only by the filing of an information or indictment.” I.C. § 35-83-1-1; Epperson v. State, 530 N.E.2d 743, 746 (Ind.Ct.App.1988). In Wurster v. State, 715 N.E.2d 341, 344 (Ind.1999), reh’g denied, our supreme court noted:

In Indiana, the voters of each county elect a prosecutor every four years. Once elected, these officials acquire the awesome power to bring any citizen into court to face criminal charges. This may be done by information or by indictment, subject only to the procedural checks built into each process. If an information is used, the prosecutor alone bears responsibility for the decision to charge the defendant. If the prosecutor chooses to proceed via grand jury indictment, the grand jury shares that responsibility.

As such, it is clear that a person is only charged with a crime when the prosecuting attorney files an information or indictment. In the case before us, H.M. was arrested but the State never filed its Information. Therefore, H.M. was not “charged” as interpreted in I.C. § 35-38-5-5.5 and is thus not eligible to restrict the disclosure of his arrest records. We conclude that the trial court properly denied H.M.’s petitions.

II. Administrative Rule 9(G)(1)(g)

Next, H.M. contends that the trial court also improperly denied relief based on Administrative Rule 9(G)(1)(g), which provides, in pertinent part:

Rule 9. Access to court records
⅜ * *
(G) Court records excluded from public access.
(1) Case records — The following information in case records is excluded from public access and is confidential:
(g) All orders of expungement entered in criminal or juvenile proceedings, orders to restrict access to criminal history information pursuant to Ind.Code § 35-38-5-5.5 or Ind.Code § 35-38-8-5 and records excluded from public access by such orders, and information related to infractions that is excluded from public access pursuant to Ind.Code § 34-28-5-15 or Ind.Code § 34-28-5-16.

As we have concluded that H.M. is not eligible to have his arrest records restricted pursuant to I.C. § 35-38-5-5.5, he is also not entitled to relief based on Admin. R. 9(G)(1)(g). Therefore, we affirm the trial court’s denial of H.M.’s petitions.

CONCLUSION

Based on the foregoing, we conclude that the trial court properly denied H.M.’s petitions pursuant to I.C. § 35-38-5-5.5 and Admin. R. 9(G)(1)(g).

Affirmed.

KIRSCH, J. and ROBB, C.J., concur.

      . We note that this statute has been repealed by Public Law 194-2013, effective July 1, 2013, and replaced by the current I.C. § 35-38-9 (2013); however, as H.M.’s petition was filed on February 15, 2013 and the trial court’s summary denial occurred on March 14, 2013, such legislative action has no effect in this case.

      . We note, however, that the revised statute with respect to the sealing of arrest records specifically includes the situation of "a person who has been arrested if: (1) the arrest did not result in a conviction or juvenile adjudication!;.;]” I.C. § 35-38-9-1.