author: VAIDIK, Judge.

text:
    G.H., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
    No. 49A02-1207-JV-532.
    Court of Appeals of Indiana.
    May 9, 2013.

      Elizabeth A. Houdek, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

G.H. appeals the trial court’s true finding for what would be Class D felony criminal gang activity if committed by an adult. He argues that there is insufficient evidence to support his adjudication. We conclude that the State failed to prove that G.H. had a specific intent to further a gang’s criminal goals, which is necessary to sustain an adjudication for criminal gang activity. We reverse.

Facts and Procedural History

In December 2010, fourteen-year-old V.A. met a male friend to attend a party. Before going to the party, the two boys met another group of teenagers, including fourteen-year-old G.H., at G.H.’s house. In total, about twenty juveniles gathered at G.H.’s house.

A.M., one of the boys at G.H.’s house, left for a short time. When A.M. returned, he walked up to V.A. and pulled back his coat to reveal a sawed-off shotgun. Tr. p. 21. V.A. decided to leave G.H.’s house and began walking home. A group of people followed him, including G.H. People began suggesting that G.H. and V.A. should fight. V.A. told G.H., “I’m not going to fight you, I’m just going to cut out[.]” Id. at 23. G.H. began taunting V.A., and another boy struck V.A. in the head with a glass bottle. The group swarmed V.A. and began kicking and punching him. One of V.A.’s friends intervened and helped him up, and the two boys ran away. However, the group pursued them, and when they caught V.A., the battery continued. Eventually, a bruised and bleeding V.A. escaped the group.

While running from the group, V.A. encountered his sixteen-year-old brother, J.A. Despite the battery, V.A. and J.A. decided to go to another party. When G.H., A.M., and the other boys who had attacked V.A. showed up at that party, J.A. told his brother to leave. V.A. left but later returned, afraid for his older brother’s safety. When the party ended around 1:00 a.m., the boys set off for home.

As they walked, the brothers heard nearby shouts of “skoo woo” and “Drop ‘Em Squad.” Id. at 35, 89. V.A. knew that Drop ‘Em Squad was a gang because he used to be a member of it. Id. at 35. V.A. and J.A. walked faster, but G.H., A.M., and some other boys blocked them at the end of an alley. A.M. asked V.A. and J.A. if they wanted to fight. J.A. said he did not want to fight, and the brothers took off running.

The brothers made it home safely, where their mother examined V.A. V.A. had a bloody nose, blood on his clothes, a footprint on his back, and a bump on his head. Id. at 93, 102. When V.A.’s mother looked out her window, she saw a crowd of boys. She called the police and reported the incident.

In February 2012, the State alleged that G.H. was a delinquent child for committing what would be Class C felony criminal gang intimidation, Class C felony stalking, Class C felony intimidation, Class D felony criminal gang activity, and Class A misdemeanor battery if committed by an adult. The trial court held a fact-finding hearing in May 2012.

At the hearing, V.A. testified about the incident and G.H.’s gang involvement. When asked if he knew whether G.H. was a member of Drop ‘Em Squad, V.A. responded “no, not really.” Id. at 38. He also testified that there were no gang calls during the first incident, but after the party, when the boys blocked him and J.A. at the end of the alley, the boys were yelling “skoo woo” and “Drop ‘Em Squad.” Id. at 46. J.A. recalled things differently; he testified that G.H. was with the other boys in the alley confrontation, but did not yell “skoo woo” or “Drop ‘Em Squad.” Id. at 89. J.A. said that all of the boys involved in the battery, including G.H., were members of Drop ‘Em Squad, and that he had once heard G.H. say he was a gang member, although J.A. did not say when he heard G.H. say this. Id. at 90. J.A. also said he believed all the boys were gang members at the time of the incident because “they were all hanging out together.” Id. at 91.

No witness could link any physical evidence of gang activity to G.H. Indianapolis Metropolitan Police Department Detective Miguel Roa, a member of the IMPD’s Criminal Gang Unit, testified that gang members frequently called out “skoo woo,” followed by a gang name, as a way of identifying themselves as members of that gang. Id. at 111. He also testified that Drop ‘Em Squad is a confirmed east-side gang. Id. at 110, 129-30. Detective Roa said that he searched G.H.’s home but found no evidence of gang affiliation. Id. at 132-36. At the conclusion of the fact-finding hearing, the trial court took the matter under advisement.

In June 2012, the trial court entered a true finding on the Class D felony criminal gang activity and Class A misdemeanor battery allegations. The court entered not true findings on the Class C felony criminal gang intimidation, Class C felony stalking, and Class C felony intimidation allegations. G.H. was placed on probation. G.H. now appeals the Class D felony criminal gang activity true finding only.

Discussion and Decision

G.H. argues that there is insufficient evidence to support the trial court’s true finding that he committed criminal gang activity. G.H. does not dispute that Drop ‘Em Squad is a criminal gang. However, he contends that the State failed to prove that he was an active gang member, that he knew anything about the gang’s criminal advocacy, and that the battery he committed had any link to alleged gang membership.

When the State seeks to have a juvenile adjudicated as a delinquent for committing an act that would be a crime if committed by an adult, the State must prove each element of the crime beyond a reasonable doubt. G.R. v. State, 893 N.E.2d 774, 776 (Ind.Ct.App.2008) (citing J.S. v. State, 843 N.E.2d 1013, 1016 (Ind.Ct.App.2006), trans. denied). When we review a juvenile adjudication, we consider only the evidence and reasonable inferences supporting the judgment, and will not reweigh evidence or judge the credibility of witnesses. Id. If there is substantial evidence of probative value from which a reasonable trier of fact could conclude that the juvenile was guilty beyond a reasonable doubt, we will affirm the adjudication. Id.

Indiana Code section 35-45-9-1 defines a criminal gang as a group with at least three members that:

(1) either:
(A) promotes, sponsors, or assists in; or
(B) participates in; or
(2) requires as a condition of membership or continued membership;
the commission of a felony or an act that would be a felony if committed by an adult or the offense of battery ([Ind. Code § 35-42-2-1]).

A person who knowingly or intentionally actively participates in a criminal gang commits criminal gang activity, a Class D felony. Ind.Code § 35-45-9-3. To prove that G.H. committed criminal gang activity, the State must show that he: (1) was an active member of a criminal gang, (2) had knowledge of the group’s criminal advocacy, and (3) had a specific intent to further the group’s criminal goals. Robles v. State, 758 N.E.2d 581, 585 (Ind.Ct.App.2001) (citations omitted), trans. denied. The specific-intent element requires proof of a nexus between furthering the goals of the criminal gang and the alleged crime. Id.

There is negligible evidence that G.H. was a member of Drop ‘Em Squad. V.A. could not say that G.H. was a member of the gang. J.A. testified that G.H. said he was in a gang, but he did not say when G.H. said this. Though both V.A. and J.A. testified that G.H. was with the group of boys who blocked their path at the end of an alley, the brothers gave contradictory testimony about whether G.H. yelled “skoo woo” or “Drop ‘Em Squad.” And Detective Roa testified that he found no evidence of G.H.’s gang affiliation. At best, this evidence shows that G.H. was a gang member at some point in time, which is insufficient. See Ferrell v. State, 746 N.E.2d 48, 51 (Ind.2001) (The State’s case “consisted only of evidence that Ferrell, at some point, was a member of a gang that commits criminal offenses. That is not enough.”).

The State argues that G.H. and the other boys were gang members at the time of the incident because J.A. testified that they hung out together. This guilt-by-association argument is circular and unpersuasive. At trial, the State was attempting to prove that G.H., A.M., and another boy had all engaged in criminal gang activity. Now, the State relies on J.A.’s testimony to argue that G.H. is a gang member because he spent time with other gang members. But the State was attempting to prove at the same time that these other supposed gang members were, in fact, gang members. The guilt-by-association argument does not establish active gang membership in this context.

However, even if the evidence established G.H.’s active gang membership, we would still conclude that the evidence is insufficient to sustain G.H.’s adjudication because there is no evidence that G.H. had the specific intent to further Drop ‘Em Squad’s criminal goals by battering V.A.

The battery allegation against G.H. stemmed from the fight that occurred outside G.H.’s house early in the evening. After seeing that another boy had a sawed-off shotgun, V.A. decided to leave G.H.’s house and began walking home. A group of people followed him, including G.H. People began suggesting that G.H. and V.A. should fight. V.A. declined and G.H. began taunting him. After another boy struck V.A. in the head with a glass bottle, the group swarmed V.A. and began kicking and punching him. Eventually, a bruised and bleeding V.A. escaped the group. V.A. testified that no one yelled “skoo woo” or “Drop ‘Em Squad” during this fight. Tr. p. 57.

This evidence does not show a nexus between V.A.’s battery and Drop ‘Em Squad’s criminal goals. There was no mention of the gang at the time of the battery and no claim that the purpose of the battery was retribution by Drop ‘Em Squad, initiation into Drop ‘Em Squad, or to fulfill any other criminal goal of the gang. The only mention of Drop ‘Em Squad came later in the evening, in the alley confrontation, and no allegations against G.H. arose from that incident.

Because the State failed to prove that G.H. had a specific intent to further Drop ‘Em Squad’s criminal goals, his adjudication for criminal gang activity must be reversed.

Reversed.

KIRSCH, J., and PYLE, J., concur.

      . G.H. interprets this statement as V.A. saying that G.H. was not a member of Drop ‘Em Squad. The State says V.A. simply said he did not know. There was no clarification, but at the very least, we observe that V.A. could not confirm that G.H. was a member of the gang.

      . G.H. filed his notice of appeal on July 3, 2012. The State filed a motion to dismiss alleging that the notice of appeal was untimely. This Court denied the State's motion. See Order on State’s Motion to Dismiss, Cause No. 49A02-1207-JV-532 (Ind. Ct. App. Jan. 11, 2013). The State renews its dismissal request in its Appellee’s Brief. However, this Court has already denied this request and we decline to consider the matter further.

      . The State argues alternatively that the evidence shows G.H.’s active membership in an unnamed gang of three boys who assisted or participated in V.A.’s battery. See Appellee's Br. p. 10 (citing Kelly v. State, 813 N.E.2d 1179, 1183-84 (Ind.Ct.App.2004), trans. denied ). The State raises this argument for the first time on appeal, and thus it is waived. C.T.S. v. State, 781 N.E.2d 1193, 1204 (Ind.Ct.App.2003)(failure to raise an argument in the trial court results in its waiver on appeal), trans. denied. And we note that the Kelly Court confined its holding to the facts before it, saying, "While admittedly, no evidence was presented that the instant group possessed traits commonly associated with a traditional street gang, e.g., a name, symbolic colors, or initiation rituals, the facts of this particular case amply satisfy the statutory elements of the offense.” 813 N.E.2d at 1184 (emphasis added).


source: Caselaw Access Project

author: CRONE, Judge.

license: Public Domain

text:
    Joseph MATHENY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A04-1207-CR-347.
    Court of Appeals of Indiana.
    May 13, 2013.

      Patricia Caress McMath, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION ON REHEARING

CRONE, Judge.

The State petitions for rehearing in Matheny v. State, 983 N.E.2d 672 (Ind.Ct.App.2013), in which we affirmed Matheny’s conviction for class D felony auto theft. In so doing, we concluded that although the trial court erred in refusing Matheny’s tendered jury instruction regarding the jury’s duty to conform the evidence to the presumption that the defendant is innocent, that error was harmless. Id. at 680-81. The State asks us to reconsider our conclusion that the trial court’s refusal of Matheny’s tendered instruction constituted error in light of Santiago v. State, 985 N.E.2d 760 (Ind.Ct.App.2013), and Albores v. State, No. 45A03-1207-CR-327, 987 N.E.2d 98, 2013 WL 1341563 (Ind.Ct.App. Apr. 4, 2013). In each of those cases, another panel of this court concluded that the trial court did not err in refusing an instruction that was conceptually similar to that tendered by Matheny. We grant the State’s petition solely to clarify that our holding does not conflict with the holdings in those cases, and we affirm our original opinion in all respects.

In Robey v. State, 454 N.E.2d 1221 (Ind.1983), our supreme court held that “[a]n instruction ... which advises the jury that the presumption of innocence prevails until the close of the trial, and that it is the duty of the jury to reconcile the evidence upon the theory of the defendant’s innocence if they could do so, must be given if requested.” Id. at 1222 (emphasis added). However, the Robey court concluded that the trial court had not erred in refusing the defendant’s tendered instruction because “the instructions given adequately directed the jury to receive and evaluate the trial evidence while in the posture of presuming the defendant innocent and demanding of the State that it produce strong and persuasive evidence of guilt wholly at odds with innocence.” Id.; see also Farley v. State, 127 Ind. 419, 26 N.E. 898, 899 (1891) (holding that it is necessary upon request to advise the jury that the presumption of innocence prevails until the close of trial and that it is the jury’s duty to reconcile the evidence upon the theory of the defendant’s innocence if they can do so).

Matheny’s tendered Instruction No. 6 read,

You are the exclusive judges of the evidence, the credibility of the witnesses and of the weight to be given to the testimony of each of them. In considering the testimony of any witness, you may take into account his or her ability and opportunity to observe; the manner and conduct of the witness while testifying; any interest, bias or prejudice the witness may have; any relationship with other witnesses or interested parties; and the reasonableness of the testimony of the witness considered in the light of all of the evidence in the case.
You should attempt to fit the evidence to the presumption that the accused is innocent and the theory that every witness is telling the truth. You should not disregard the testimony of any witness without a reason and without careful consideration. If you find conflicting testimony you must determine which of the witnesses you will believe and which of them you will disbelieve.
In weighing the testimony to determine what or whom you will believe, you should use your own knowledge, experience and common sense gained from day to day living. The number of witnesses who testify to a particular fact, or the quantity of evidence on a particular point need not control your determination of the truth. You should give the greatest weight to that evidence which convinces you most strongly of its truthfulness.

Appellant’s App. at 62 (emphasis added).

In its appellee’s brief, the State argued that the trial court’s Instruction No. 14 adequately expressed the concept that the jury should attempt to fit the evidence to the presumption that the accused is innocent, specifically directing our attention to the following: “Where proof of guilt is by circumstantial evidence only, it must be so conclusive and point so convincingly to the guilt of the accused that the evidence excludes every reasonable theory of innocence.” Appellant’s App. at 82. We disagreed. Matheny, 983 N.E.2d at 680. Instruction No. 14 applies to circumstantial evidence only and does not speak to the jury’s duty to weigh all the evidence and attempt to conform it to the presumption of innocence if possible. In other words, it did not convey to the jury the duty “to receive and evaluate the trial evidence while in the posture of presuming the defendant innocent.” Robey, 454 N.E.2d at 1222.

We reached the same conclusion in Simmons v. State, 179 Ind.App. 342, 385 N.E.2d 225 (1979). There, the defendant’s tendered instruction read,

The law presumes the defendant to be innocent of the crime charged, and this presumption continues in his favor throughout the trial of this cause.
It is your duty, if it can be reasonably and conscientiously done to reconcile the evidence upon the theory that the defendant is innocent and you cannot find the defendant guilty of the crime charged in the affidavit, unless the evidence satisfies you beyond a reasonable doubt of his guilt.

Id. at 343, 385 N.E.2d at 225 (quotation marks omitted). The trial court’s instruction on circumstantial evidence stated, “You should not find a defendant guilty unless the facts and circumstances proved exclude every reasonable theory of innocence.” Id. at 343 n. 2, 385 N.E.2d at 225 n. 2. The Simmons court concluded that “Contrary to the state’s argument, we do not agree that this alone was sufficient to advise the jury of the presumption of innocence.” Id. at 343 n. 2, 385 N.E.2d at 225 n. 2. In addition, the Simmons court concluded that the instruction given on reasonable doubt did not adequately define the presumption of innocence, explaining as follows:

“(I)n a criminal case the term (presumption of innocence) does convey a special and perhaps useful hint over and above the other form of the rule about the burden of proof, in that it cautions the jury to put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced. In other words, the rule about burden of proof requires the prosecution by evidence to convince the jury of the accused’s guilt; while the presumption of innocence, too, requires this, but conveys for the jury a special and additional caution (which is perhaps only an implied corollary to the other) to consider, in the material for their belief, nothing but the evidence, i.e., no surmises based on the present situation of the accused. This caution is indeed particularly needed in criminal cases.”

Id. at 344, 385 N.E.2d at 226 (quoting Taylor v. Kentucky, 436 U.S. 478, 484-85, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978)).

Likewise here, the trial court’s instruction on the burden of proof in Instruction No. 12, based on Indiana Pattern Jury Instruction No. 1.15, is insufficient to convey to the jury that “the presumption of innocence prevails until the close of the trial, and that it is the duty of the jury to reconcile the evidence upon the theory of the defendant’s innocence if they could do so.” Robey, 454 N.E.2d at 1222.

We now turn to the instructions in Santiago and Albores. The Santiago court found that the concept that the jury should attempt to fit the evidence to the presumption that the accused is innocent was adequately covered by the trial court’s instructions, which included detailed instructions on reasonable doubt, apparently based on Indiana Pattern Jury Instruction No. 1.15, as well as the following:

... it is a fundamental concept in our law that the defendant comes into court presumed to be innocent of the charges; and this presumption remains throughout the trial of the case until and unless it is overcome by competent proof of guilt beyond a reasonable doubt.

Santiago, 985 N.E.2d at 762. Albores involved given instructions that were nearly identical to those given in Santiago. 987 N.E.2d at 99-102, 2013 WL 1341563 at *2-3. The Santiago and Albores courts distinguished Lee v. State, 964 N.E.2d 859 (Ind.Ct.App.2012), trans. denied, in which we concluded that the trial court’s refusal of the defendant’s tendered jury instruction on the presumption of innocence resulted in reversible error. The Santiago and Albores courts explained that in Lee, the given instructions were not as detailed and the jury was not instructed that the presumption of innocence prevails throughout the trial. Santiago, 985 N.E.2d at 763-64; Albores, 987 N.E.2d at 100-02, 2013 WL 1341563 at *3.

As in Lee, the jury in this case was not instructed that the presumption of innocence prevails throughout the trial. Accordingly, we reach a different conclusion than Santiago and Albores because the instructions that the trial court gave the jury did not adequately convey the substance of Matheny’s tendered instruction. It is worth noting that in response to Lee, Indiana Pattern Jury Instruction No. 1.13 on the presumption of innocence was amended such that, if requested by the defendant, then the jury should also be instructed as follows: “You should reconcile the evidence on the theory that the defendant is innocent if you can do so,” or ‘You should fit the evidence to the presumption that the defendant is innocent if you can do so.” However, before Lee, Indiana law required that “[a]n instruction ... which advises the jury that the presumption of innocence prevails until the close of the trial, and that it is the duty of the jury to reconcile the evidence upon the theory of the defendant’s innocence if they could do so, must be given if requested.” Robey, 454 N.E.2d at 1222. In this case, such an instruction was requested, refused, and not adequately covered by the given instructions, and therefore the trial court abused its discretion.

The State contends that, in contrast to Santiago and Albores, we used a “magic words” approach and failed to consider the entirety of the jury instructions to determine whether the substance of Matheny’s tendered instruction was nevertheless adequately conveyed. Appellee’s Pet. for Reh’g at 2. See Walden v. State, 895 N.E.2d 1182, 1186-87 (Ind.2008) (“When evaluating the refusal of a tendered instruction, this Court is to determine whether the substance of the instruction was covered by other instruction, not whether other instructions contained the exact words.”). To the contrary, we did consider the instructions the trial court gave the jury. The State’s argument simply ignores the fact that the instructions given in this case were different from those given in Santiago and Albores.

The State also asserts that because we considered the instructions the trial court gave the jury in concluding that the error was harmless, it must follow that the presumption of innocence was adequately covered by the trial court’s given instructions. We disagree. The State would be correct if all we considered were the given instructions, but that is not the case. We considered “the totality of the circumstances— including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors — to determine whether the defendant received a constitutionally fair trial.” Matheny, 983 N.E.2d at 681 (quoting Kentucky v. Whorton, 441 U.S. 786, 789, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979)).

Having clarified our holding, we affirm our original opinion in all respects.

KIRSCH, J., and MATHIAS, J., concur.


text:
    Anthony McCULLOUGH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1209-PC-719.
    Court of Appeals of Indiana.
    May 16, 2013.

      Hilary Bowe Ricks, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Katherine Modesitt Cooper, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Anthony McCullough appeals the post-conviction court’s partial denial of his petition for post-conviction relief. He contends that the post-conviction court erred in finding that his plea for Class C felony fraud on a financial institution was knowingly, intelligently, and voluntarily entered into because he had ineffective assistance of trial counsel for his Class D felony failure to register as a sex offender charge, and the pleas were part of a combined plea agreement. Finding that McCullough received effective assistance of trial counsel for his guilty plea for fraud and therefore pled guilty knowingly, intelligently, and voluntarily to that charge, we affirm.

Facts and Procedural History

On September 4 and 10, 2008, McCullough and Julee Kehoe gave false information on a loan application to Fifth Third Bank to purchase a ear. On May 28, 2009, the State charged McCullough with Class C felony conspiracy to commit fraud on a financial institution, Class C felony fraud on a financial institution, Class D felony theft, and Class A misdemeanor check deception. On September 29, 2009, McCullough entered into a combined plea agreement in which he pled guilty to Class C felony fraud on a financial institution and an unrelated Class D felony failure to register as a sex offender charge under cause number FD-210841. The plea agreement called for concurrent sentences and capped the executed portion of the sentence at two years, but left the rest of sentencing to the trial court’s discretion. In exchange for the plea, the State dismissed the remaining three counts in the fraud case, agreed not to argue for placement in the Department of Correction, and agreed not to file the habitual offender sentence enhancement. At the sentencing hearing, the trial court sentenced McCullough to eight years, with six years suspended, on the Class C felony fraud conviction and a concurrent two-year executed sentence on the Class D felony failure to register conviction. McCullough was ordered to serve the executed portion of his sentence on home detention through electronic monitoring services.

After being sentenced, McCullough learned of our Supreme Court’s holding in Wallace v. State, 905 N.E.2d 371 (Ind.2009), reh’g denied, that the sex-offender registry requirements were not retroactive. His trial counsel had not previously advised him of the holding in this case. McCullough then filed a petition and was removed from the sex-offender registry because he never should have been required to register.

McCullough later filed a petition for post-conviction relief under both cause numbers. An evidentiary hearing was held, and the court took the matter under advisement. McCullough then filed a motion to withdraw his petition without prejudice, which was granted. McCullough filed a new petition for post-conviction relief under both cause numbers, which he moved to amend two months after filing. The post-conviction court granted the petition. The amended petition claimed that McCullough’s guilty pleas were not knowing, intelligent, and voluntary due to ineffective assistance of trial counsel, specifically trial counsel’s failure to advise him about the Wallace holding. An evidentia-ry hearing was held, and the post-conviction court entered findings of fact and conclusions of law. Post-conviction relief was granted in the Class D felony failure to register case, vacating that conviction, but denied in the Class C felony fraud case.

McCullough now appeals.

Discussion and Decision

The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004). When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. On review, we will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Id. The post-conviction court in this case entered findings of fact and conclusions thereon in accordance with Indiana Post-Conviction Rule 1(6). “A post-conviction court’s findings and judgment will be reversed only upon a showing of clear error — that which leaves us with a definite and firm conviction that a mistake has been made.” Id. (internal quotation omitted). The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Id. We accept findings of fact unless clearly erroneous, but we accord no deference to conclusions of law. Id.

McCullough contends that his plea was not knowing, intelligent, and voluntary because he received ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his counsel’s performance was deficient and that the petitioner was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, failure to satisfy either prong will cause the claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind.2002). “[I]f we can dismiss an ineffective assistance claim on the prejudice prong, we need not address whether counsel’s performance was deficient.” Lee v. State, 892 N.E.2d 1231, 1233 (Ind.2008).

Counsel’s performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. French, 778 N.E.2d at 824. Counsel is afforded considerable discretion in choosing strategy and tactics, and we will accord those decisions deference. Timberlake v. State, 753 N.E.2d 591, 603 (Ind.2001), reh’g denied. A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. To meet the appropriate test for prejudice, the petitioner must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind.2001).

There are two different types of ineffective assistance of counsel claims that can be made in regards to guilty pleas: (1) failure to advise the defendant on an issue that impairs or overlooks a defense and (2) an incorrect advisement of penal consequences. Segura v. State, 749 N.E.2d 496, 500 (Ind.2001); see also Smith v. State, 770 N.E.2d 290, 295 (Ind.2002). Since McCullough is arguing that he was not properly advised about the possible defense he may have had to the Class D felony failure to register charge, the first category is at issue in this case. The specific standard for showing prejudice on such a claim was articulated by our Supreme Court in Segura and requires:

a showing of a reasonable probability of success at trial if the alleged error is one that would have affected a defense. .... A new trial is of course necessary if an unreliable plea has been accepted. But its costs should not be imposed needlessly, and that would be the result if the petitioner cannot show a reasonable probability that the ultimate result-conviction-would not have occurred despite counsel’s error as to a defense.

749 N.E.2d at 503.

In this case, McCullough’s post-conviction petition was granted as to the charge for which his trial counsel failed to advise him about a viable defense, vacating the Class D felony failure to register conviction.

The charge for which his post-conviction petition was denied, however, was the Class C felony fraud charge. While McCullough’s trial counsel testified at the post-conviction hearing that there were some defenses that could have been asserted on this charge, McCullough makes no argument that his trial counsel failed to inform him about any defense to fraud. The evidence against McCullough for this charge was considerable: his co-defendant had signed a plea agreement and was going to testify against him, and the State had substantial evidence in the form of documents that all pointed to McCullough’s guilt. His trial counsel testified that “the evidence against Mr. McCullough was overwhelmingly and strongly against his favor” and “conviction was almost certain if we had gone to trial.” Tr. p. 67. He also testified that McCullough did not want to go to trial on the fraud case. Id. at 66-67.

Additionally, we note that McCullough received a substantial benefit from his plea agreement. The State dismissed three charges: a Class C felony, a Class D felony, and a Class A misdemeanor. The State also limited McCullough’s executed time to two years and agreed not to file the habitual offender sentencing enhancement. Without this agreement, McCullough could have faced up to a twenty-year executed sentence in the DOC for the fraud charge alone — up to eight years for the Class C felony, Indiana Code section 35-50-2-6, and up to twelve years for the habitual offender enhancement. Ind.Code § 35 — 50—2—8(h). Instead, he was sentenced to two concurrent two-year executed sentences to be served on home detention, one of which was later vacated.

Based on these facts, we cannot say that the post-conviction court clearly erred in granting relief as to the Class D felony failure to register charge, but denying relief as to the Class C felony fraud charge. McCullough did not receive ineffective assistance of counsel as to the fraud charge; his trial counsel did not fail to inform him of any defense, and he has failed to show a reasonable probability of success at trial if he had not pled guilty to fraud.

While we realize that both of the charges were part of a single plea agreement, the post-conviction court did not err in separating the charges when coming to its decision. Our Supreme Court has previously separated the charges in a plea agreement, reversing only five of the six charges to which the defendant pled guilty in Smith v. State, 770 N.E.2d at 298. We also note that in this particular case, the two charges to which McCullough pled guilty arose out of two unrelated criminal acts with separate cause numbers, allowing us to easily separate the charges, relevant defenses, and effectiveness of his trial counsel’s assistance. Finally, we note that the Segura Court, in articulating the standard for showing ineffectiveness of counsel for failure to advise of a defense, stated that the costs of a new trial “should not be imposed needlessly.” 749 N.E.2d at 503. In this case, in failing to show that his counsel was ineffective in regards to the fraud charge, McCullough has not presented us with any evidence that the outcome of a trial on that charge would have been any different than a guilty plea; there is no reason to needlessly impose the costs of a new trial in this instance.

We therefore find that McCullough pled guilty knowingly, intelligently, and voluntarily to the fraud charge and affirm the post-conviction court’s holding.

Affirmed.

KIRSCH, J., and PYLE, J., concur.


author: WENTWORTH, J.

text:
    KOOSHTARD PROPERTY VIII, LLC, Petitioner, v. SHELBY COUNTY ASSESSOR, Respondent.
    No. 49T10-1011-TA-58.
    Tax Court of Indiana.
    April 29, 2013.

      Timothy J. Vrana, Timothy J. Vrana LLC, Columbus, IN, Attorney for Petitioner.
    Marilyn S. Meighen, Attorney at Law, Carmel, IN, Attorney for Respondent.
   WENTWORTH, J.

This case concerns whether the Indiana Board correctly found that Kooshtard failed to establish a prima facie case that its land was overassessed. The Court finds that it did.

FACTS AND PROCEDURAL HISTORY

During the 2006 and 2007 tax years (the years at issue), Kooshtard owned two acres of land in Shelbyville, Indiana on which a convenience store and gas station were located. In valuing those two acres, the assessing officials applied a positive influence factor of 100% that increased their value from a base rate of $200,000 per acre to $400,000 per acre.

Believing that the assessments were erroneous, Kooshtard timely filed two petitions for review, first with the Shelby County Property Tax Assessment Board of Appeals (PTABOA) and then with the Indiana Board. The Indiana Board consolidated the petitions and held a hearing. On October 8, 2010, the Indiana Board issued a final determination upholding the assessments.

Kooshtard appealed to this Court on November 22, 2010. The Court heard oral argument on June 17, 2011. Additional facts will be supplied as necessary.

STANDARD OF REVIEW

The party seeking to overturn an Indiana Board final determination bears the burden to demonstrate that it is invalid. Hubler Realty Co. v. Hendricks Cnty. Assessor, 938 N.E.2d 311, 313 (Ind. Tax Ct.2010) (citation omitted). Consequently, Kooshtard must demonstrate to the Court that the Indiana Board’s final determination is arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial or reliable evidence. See Ind.Code § 33-26-6-6(e)(l), (5) (2013).

LAW

In Indiana, real property is assessed on the basis of its market value-in-use: the value “of a property for its current use, as reflected by the utility received by the owner or a similar user, from the property[.]” 2002 Real Property Assessment Manual (Manual) (incorporated by reference at 50 Ind. Admin. Code 2.3-1-2 (2002 Supp.)) at 2. See also Ind.Code § 6-l.l-31-6(c) (2006). To determine a property’s market value-in-use, assessing officials refer to a series of guidelines that explain the valuation process for both land and improvements. See Real PropeRty Assessment Guidelines For 2002 — Version A (Guidelines) (incorporated by reference at 50 I.A.C. 2.3-1-2), Bks. 1 and 2.

With respect to land, the guidelines call for the development of neighborhood valuation forms, which establish “base rates” for commercial, industrial, and residential land in each of the townships throughout the county. See generally Guidelines, Bk. 1, Ch. 2. These guidelines merely provide the starting point, however, for an assessing official to determine the market value-in-use of land. See, e.g., Guidelines, Bk. 1, Ch. 2 at 16 (explaining that in selecting base rates for land valuation, the guidelines stress that “the pricing method for valuing the neighborhood is of less importance than arriving at the correct value of the land as of the valuation date”). In certain instances, assessing officials must adjust their assessments to arrive at a property’s actual market value-in-use. See Manual at 2. For example, assessing officials may apply an influence factor to a land assessment to account for an increase or decrease in value caused by the land’s shape, size, view, or any other peculiar condition. See Guidelines, Bk. 1, Ch. 2 at 93-96; supra note 1.

While assessments made pursuant to Indiana’s assessment guidelines are presumed to be accurate, a taxpayer may rebut this presumption with evidence that indicates that the property’s assessment does not accurately reflect its market-value-in-use. Manual at 5. “Such evidence may include actual construction costs, sales information [or assessments] regarding the subject or comparable properties, appraisals that are relevant to the market value-in-use of the property, and any other information compiled in accordance with generally accepted appraisal principles.” See id.; Ind.Code § 6-1.1-15-18 (2018) (footnote added).

ANALYSIS

During the Indiana Board hearing, Kooshtard claimed that the application of the positive influence factor of 100% to its land was erroneous because adjacent properties did not have the factor and uniformity requires that it be applied to all similar land. (See Cert. Admin. R. at 64, 141^46.) Kooshtard also claimed that sales data from similar properties indicated that its land was overassessed. (See Cert. Admin. R. at 2, 149-50.) On appeal, Kooshtard restates its uniformity argument.

The Indiana Board determined that Kooshtard’s argument that its land was not uniformly assessed because comparable land was not assessed in the same manner was insufficient to raise a prima facie case. (See Cert. Admin. R. at 35-86.) To establish a prima facie case, a petitioner must present “evidence that is ‘sufficient to establish a given fact and which if not contradicted will remain sufficient [to establish that fact].’ ” Inland Steel Co. v. State Bd. of Tax Comm’rs, 739 N.E.2d 201, 211 (Ind. Tax Ct.2000) (citation omitted) (emphasis added), review denied. Consequently, Kooshtard needed to present to the Indiana Board some type of relevant market based evidence to support its claim. See, e.g., Lake Cnty. Assessor v. U.S. Steel Corp., 901 N.E.2d 85, 93-94 (Ind. Tax Ct.2009) (explaining that market based evidence may be used to quantify the impact of a negative influence factor), review denied.

Kooshtard did not present any market-based evidence to support its claim; instead, Kooshtard merely concluded that because the Assessor did not apply the same positive influence factor of 100% to a nearby office building, automotive sales/service center, and fast-food restaurant, the factor should be removed from its assessment. (See Cert. Admin. R. at 64, 73-82, 141-46, 155, 200-01, 206.) Conclu-sory statements are insufficient to make a prima facie case because they are not probative evidence (i.e., “evidence that ‘tends to prove or disprove a point in issue’ ”). See, e.g., Inland Steel, 739 N.E.2d at 211-12 (citations omitted). Accordingly, Kooshtard has not persuaded the Court that the Indiana Board’s final determination is erroneous on this basis.

Kooshtard also presented new arguments for the first time on appeal. One argument is that its assessments are invalid because the Assessor’s claim that sales data supports the assessments is an impermissible post hoc rationalization that lacks any evidentiary support and implies that the use of selective reappraisal is proper when it is not. (See Pet’r Br. at 15-17, 27-29 (footnote added).) A second argument is that the Indiana Board’s final determination ignores the “rule of law” because the Assessor was not required to show compliance with Indiana’s assessment guidelines in applying the positive influence factor of 100% to its land. (See Oral Argument Tr. at 29-30; Pet’r Reply Br. at 12-14; Pet’r Br. at 11-27 (footnote added).)

It is well-settled that this Court generally cannot review an issue or argument raised for the first time on appeal because there would be no written findings in the record for the Court to review. See, e.g., Scheid v. State Bd. of Tax Comm’rs, 560 N.E.2d 1283, 1284-86 (Ind. Tax Ct.1990); Ind.Code § 38-26-6-3(b) (2013) (limiting the Court’s review to the issues raised by the litigants during the Indiana Board proceedings or the issues discussed by the Indiana Board in its final determination). The record in this case establishes that Kooshtard’s new arguments were not presented to the Indiana Board. Consequently, the Court finds that Kooshtard has waived these arguments because it could have, but failed to, present them to the Indiana Board.

CONCLUSION

The Indiana Board’s final determination that Kooshtard did not make a prima facie case must stand: Kooshtard offered nothing more than conclusory statements and previously rejected arguments in challenging the propriety of its land assessments. Accordingly, the final determination of the Indiana Board is AFFIRMED.

      . An "influence factor” is a multiplier, expressed as a positive or negative percentage that is applied to the value of land to account for its unique conditions or features. See Real Property Assessment Guidelines For 2002 — Version A (2004 Reprint) (Guidelines) (incorporated by reference at 50 Ind. Admin. Code 2.3-1-2 (2002 Supp.)), Bk. 2, Glossary at 10.

      . See also, e.g., Hurricane Food, Inc. v. White River Twp. Assessor, 836 N.E.2d 1069, 1074 (Ind. Tax Ct.2005) (explaining that "assessing officials are permitted to make whatever adjustments are necessary to bring an assessment made under the Manual/Guidelines[ ] ... more in line with other probative evidence as to a property’s [actual] market value-in-use”).

      .The assessment guidelines indicate that a taxpayer may present varying types of market based evidence to rebut the presumption that an assessment is correct; nonetheless, one of the most effective methods to rebut this presumption is through the presentation of a market value-in-use appraisal, completed in conformance with the Uniform Standards of Professional Appraisal Practice (USPAP). See Kooshtard Prop. VI, LLC v. White River Twp. Assessor, 836 N.E.2d 501, 506 n. 6 (Ind. Tax Ct.2005), review denied.

      . During the Indiana Board hearing, however, the Assessor explained that the sales data to which Kooshtard referred was presented to the PTABOA, but not to the Indiana Board. (See Cert. Admin. R. at 160-61.)

      . To the extent Kooshtard has also raised a constitutional claim regarding the non-uniformity of its assessments, it too fails because the Court previously rejected virtually the same argument in Westfield Golf Practice Center v. Washington Township Assessor, 859 N.E.2d 396 (Ind. Tax Ct.2007).

      . The record, however, indicates that the Assessor applied the positive influence factor of 100% to Kooshtard’s land based on the Assessor’s review of certain sales data and intended to apply that same adjustment to all similar properties throughout Shelby County. (See Cert. Admin. R. at 91-128, 158-94, 200-04).

      . Kooshtard thus invites the Court to revisit and overrule its own precedent interpreting the manner by which a taxpayer may challenge the "new” property tax assessment system enacted by the legislature effective 2002. (See Oral Argument Tr. at 4, 23-34). The Court declines the invitation. See P/A Builders & Developers, LLC v. Jennings Cnty. Assessor, 842 N.E.2d 899, 899-901 (Ind. Tax Ct.2006) (rejecting virtually the same "rule of law” argument), review denied. Accordingly, the failure to follow the guidelines does not by itself indicate that the resulting valuation is incorrect.


text:
    INDIANA MHC, LLC, Petitioner, v. SCOTT COUNTY ASSESSOR, Respondent.
    No. 39T10-1009-TA-52.
    Tax Court of Indiana.
    May 3, 2013.

      Andrew J. Vandiver, Adams, Stepner, Woltermann & Dusing, PLLC, Covington, KY, Attorney for Petitioner.
    Gregory F. Zoeller, Attorney General of Indiana, John P. Lowrey, Timothy A. Schultz, Deputy Attorneys General, Indianapolis, IN, Attorneys for Respondent.
   WENTWORTH, J.

Indiana MHC, LLC appeals from the Indiana Board of Tax Review’s final determination that Indiana MHC failed to prove its 2007 real property assessment was incorrect. The Court affirms the Indiana Board’s final determination.

FACTS AND PROCEDURAL HISTORY

Indiana MHC owns Amberly Pointe, a manufactured home community in Scotts-burg, Indiana. The community is situated on approximately 33 acres of land and has 205 rentable pads.

For the 2007 assessment, the Scott County Assessor assigned Amberly Pointe an assessed value of $5,400,300. Believing that value to be too high, Indiana MHC filed an appeal with the Scott County Property Tax Assessment Board of Appeals (PTABOA). The PTABOA reduced the assessment to $3,377,000. Still believing the assessment to be too high, Indiana MHC filed an appeal with the Indiana Board.

The Indiana Board held an administrative hearing on April 1, 2010. During the hearing, Kurtis Keeney, Indiana MHC’s managing partner, testified that due to the manufactured home industry’s “credit crisis” of 2005, only 85 of Amberly Pointe’s 205 pads (ie., 40%) were rented and generating income between 2005 and 2008. Consequently, he believed only those 85 pads had value for purposes of the 2007 assessment. Keeney also claimed that approximately 2.6 of Amberly Pointe’s 33 acres had no value because that acreage, zoned as “green space,” could not generate any income at all. Using Amberly Pointe’s 2007 actual data to illustrate what he believed its assessed value should be, Keeney submitted a worksheet with the following income capitalization approach: he took the total income generated by the 85 rented pads ($229,841) and reduced it by Indiana MHC’s expenses in administering the property ($122,272) for a net operating income of $107,569; he then applied a capitalization rate of 10% to the $107,569 to arrive at a property value of $1,075,692.

On August 16, 2010, the Indiana Board issued a final determination affirming the PTABOA’s assessment. In its final determination, the Indiana Board explained that when valuing property under the income capitalization approach,

it is appropriate to consider the historic and projected income and expense data of the property in question, but it is also necessary to consider that same kind of data from other comparable properties in order to make accurate, realistic projections about the income stream a property should be expected to produce. Where the income and expense data for the subject property is out of step with what the market data shows, generally accepted appraisal principles require further examination and analysis. For example, considering both types of income and expense data helps to protect against distortions and inaccurate value estimates that might be caused by extraneous factors (such as bad management or poor business decisions) that really have nothing to do with the inherent value of a property.

(Cert. Admin. R. at 283.) The Indiana Board therefore concluded that because Indiana MHC’s income capitalization approach failed to take into account any market data whatsoever, it lacked probative value. As a result, the Indiana Board held that Indiana MHC failed to demonstrate that its 2007 assessment was erroneous.

Indiana MHC filed this original tax appeal on September 27, 2010. The Court heard oral arguments on October 28, 2011. Additional facts will be supplied as necessary.

STANDARD OF REVIEW

A taxpayer seeking to overturn an Indiana Board final determination bears the burden of demonstrating its invalidity. Osolo Twp. Assessor v. Elkhart Maple Lane Assocs., 789 N.E.2d 109, 111 (Ind. Tax Ct.2003). Accordingly, Indiana MHC must demonstrate to the Court that the Indiana Board’s final determination is, for example, arbitrary or capricious, an abuse of discretion, contrary to law, or not supported by substantial or rehable evidence. See Ind.Code § 33-26-6-6(e)(l), (5) (2013).

DISCUSSION

On appeal, Indiana MHC argues that the Indiana Board’s final determination is arbitrary and capricious because it disregarded the “substantial evidence” it presented demonstrating that Amberly Pointe’s 2007 assessment should have been much lower: it had an occupancy rate of only 40% and its green space was “worthless.” (Pet’r Br. at 1, 5-8.) Indiana MHC is incorrect.

An assessment, determined using the cost approach as set forth in Indiana’s Property Assessment Manual and Guidelines, is presumed accurate. 2002 Real Property Assessment Manual (2004 Reprint) (“Manual”) (incorporated by reference at 50 Ind. Admin. Code 2.3-1-2 (2002 Supp.)) at 5. Nevertheless, a taxpayer that appeals an assessment

shall be permitted to offer evidence relevant to the fair market value-in-use of the property to rebut such presumption[.] ... Such evidence may include actual construction costs, sales information regarding the subject or comparable properties, appraisals that are relevant to the market value-in-use of the property, and any other information compiled in accordance with generally accepted appraisal principles.

Id. (emphasis added). Thus, when contesting an assessment, a taxpayer may present evidence demonstrating its property’s value using the income capitalization approach. See Manual at 3. See also Appraisal Institute, The Appraisal of Real Estate 62-64 (12th ed. 2001)(explaining that the three generally accepted appraisal techniques for valuing property are the sales comparison approach, the cost approach, and the income capitalization approach).

The income capitalization approach values property based on its earning power and is informed not only by the principle of anticipation but also by the expectations and behaviors of typical market participants. See id. at 471-72 (footnote added). See also Manual at 14. Indeed, in applying the income capitalization approach,

the income expected to be earned by [a] subject property is estimated, allowing for reasonable expenses, vacancy, and/or collection loss, to arrive at net operating income (NOI). The NOI is subsequently converted to a present value by dividing it by a capitalization rate. The capitalization rate generally reflects the annual rate of return necessary to attract investment capital and is influenced by such factors as “apparent risk, market attitudes toward future inflation, the prospective rates of return for alternative investments, the rates of return earned by comparable properties in the past, the supply of and demand for mortgage funds, and the availability of tax shelters.”

Hometowne Assocs., L.P. v. Maley, 839 N.E.2d 269, 275 (Ind. Tax Ct.2005) (citation omitted)(emphasis added). Consequently, to provide a sound value indication under the income capitalization approach, one must not only examine the historical and current income, expenses, and occupancy rates for the subject property, but the income, expenses and occupancy rates of comparable properties in the market as well. See The Appraisal of Real Estate at 493, 501, 509, 511-12.

Here, Indiana MHC’s income capitalization approach failed to comply with generally accepted appraisal principles because it did not consider the occupancy rates of comparable properties in the market. In fact, the administrative record contains evidence that indicates Amberly Pointe’s low occupancy rate of 40% was actually the anomaly in the market place. (See Cert. Admin. R. at 424 (showing that five other mobile home communities in the immediate vicinity had occupancy rates between 70% and 95%, despite the fact they charged higher rents).) As the Indiana Board explained, “[wjhere the income and expense data for the subject property is out of step with what the market data shows, generally accepted appraisal principles require further examination and analysis ... [in order] to protect against distortions and inaccurate value estimates that might be caused by extraneous factors (such as bad management or poor business decisions) that really have nothing to do with the inherent value of a property.” (Cert. Admin. R. at 238.)

Based on Indiana MHC’s failure to examine, analyze and reconcile its 40% occupancy rate in light of the much higher occupancy rates prevalent in the marketplace, the Indiana Board did not err in finding that Indiana MHC’s income capitalization approach lacked probative value. Because Indiana MHC’s income capitalization approach lacked probative value, the Indiana Board was correct in determining that Indiana MHC failed to prove its 2007 real property assessment was incorrect.

CONCLUSION

For the foregoing reasons, the Indiana Board’s final determination is AFFIRMED.

      . A person who owns a manufactured home may rent a pad on which to place the home. The pad includes a driveway off the street, footers on which the home is placed, and utility hook-up. (See Cert. Admin. R. at 578, 592.)

      . (See Cert. Admin. R. at 582-83 (asserting that when selling property, a purchaser "want[s] to pay you for exactly what’s generating revenue [now], not what could happen in the future”).) (See also Cert. Admin. R. at 610-11 (stating that potential property purchasers will only pay for what is actually generating revenue because "the rest of it is speculation”).)

      . “All income capitalization methods, techniques, and procedures attempt to consider anticipated future benefits [of property ownership] and estímate their present value.” Appraisal Institute, The Appraisal of Real Estate 471 (12th ed. 2001).

      . Given that Indiana MHC's income capitalization approach to value fails to comport with generally accepted appraisal principles and therefore lacks probative value, its argument that Amberly Pointe's green space is worthless also fails.

      . Indiana MHC has also argued that the Indiana Board's final determination is arbitrary and capricious because it "completely disregarded [ ] Keeney’s testimony despite his strong credentials" as "an expert in the mobile home community industry!.] (Pet r Br. at 1, 3.)(See also Cert. Admin. R. at 563-64.) The Indiana Board did not, however, "completely disregard" Keeney's testimony; rather, it indicated that the weight of Keeney's testimony was diminished because — regardless of whether or not he was an expert in the mobile home community industry — he did not establish that he complied with generally accepted appraisal principles in performing his income capitalization approach to value. (See Cert. Admin. R. at 282-84.)


text:
    In the Matter of Jeffery K. FETTERS, Respondent.
    No. 44S00-1205-DI-278.
    Supreme Court of Indiana.
    May 7, 2013.
   PUBLISHED ORDER FINDING MISCONDUCT AND IMPOSING DISCIPLINE

Upon review of the report of the hearing officer, the Honorable Lori K. Morgan, 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.

Procedural background: The Commission filed its Verified Complaint on May 22, 2012. Under Rule 23(14)(a), Respondent had 30 days from the date of service to file an answer. Respondent filed nothing within this period. On June 19, 2012, he mailed a one sentence Motion for Extension (“June 19 Motion”) to the “Indiana Supreme Court” using the address of the Commission. He did not send the June 19 Motion to the Clerk, and thus it was not filed. The Commission filed an Application for Judgment on the Complaint on June 29, 2012. On July 5, 2012, Respondent filed a response to the Commission’s application and a Motion for Extension (“July 5 Motion”) that was substantially identical to the unfiled June 19 Motion.

Respondent asserts that he mistakenly believed that he was properly submitting the June 19 Motion for filing with the Clerk by mailing it to the Commission’s address. The Court concurs with the hearing officer’s conclusion that there was no excuse for Respondent’s failure to understand and comply with the procedures for filing documents with the Clerk of this Court. See, e.g., Admis. Disc. R. 23(11.2) (distinguishing between filing with the Clerk and service on parties). Moreover, the contents of neither the June 19 Motion nor the July 5 Motion complied with the substantive requirements of Admis. Disc. R. 23(14)(a), which governs motions for extensions of time to file an answer.

In the absence of an answer to the Commission’s verified complaint, the hearing officer properly took the facts alleged in the complaint as true. See Admis. Disc. R. 23(14)(c).

Facts: In July 2009, a client hired Respondent to represent him a dispute with his landlord. Respondent entered an appearance, and the issue of immediate possession was resolved in the client’s favor. After Respondent and the client failed to appear at a hearing regarding unpaid rent and damages, Respondent did not notify the client that the court entered default judgment in the amount of $6,089, and he did not respond to the client’s attempts to contact him. After the client discovered that default judgment had been entered against him, Respondent told the client he would “appeal” it within the next 30 days, but he took no action. Respondent then refused to talk to the client when he called Respondent’s office.

During the Commission’s investigation, Respondent stated that he had withdrawn from the client’s case in court before the judge, but the chronological case summary for the case makes no reference to Respondent’s withdrawal.

The Court finds the following facts in aggravation: (1) Respondent has a history of prior discipline, see Matter of Fetters, 837 N.E.2d 145 (Ind.2005) (60-day suspension with automatic reinstatement); (2) Respondent has not acknowledged his misunderstanding of the proper procedure for filing pleadings with the Court; and (3) there is no indication that Respondent has made restitution to the client for any harm caused by the default judgment. The Court notes that Respondent has been suspended for dues nonpayment and continuing legal education (“CLE”) noncompliance since June 8, 2010.

Violations: The Court finds that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

1.2(a): Failure to abide by a client’s decisions concerning the objectives of representation.
1.3: Failure to act with reasonable diligence and promptness.
1.4(a)(3): Failure to keep a client reasonably informed about the status of a matter.
1.4(b): Failure to explain a matter to the extent reasonably necessary to permit a client to make informed decisions.
8.1(a): Knowingly making a false statement of material fact to the Disciplinary Commission in connection with a disciplinary matter.

Discipline: For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than six months, without automatic reinstatement, beginning as of the date of this order. Respondent fulfill all the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, cures his dues and CLE suspensions, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4). Reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b). If reinstatement is sought, it would likely be granted only on a showing that Respondent has made restitution to the client for any harm caused by Respondent’s misconduct.

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 Juan Carlos GARCIA, Jr., Respondent.
    No. 20S00-1303-DI-192.
    Supreme Court of Indiana.
    May 7, 2013.
   PUBLISHED ORDER ACCEPTING RESIGNATION AND CONCLUDING PROCEEDING

A “Notice of Guilty Finding and Request for Suspension” against Respondent was filed on March 14, 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).

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately. The Clerk of this Court is directed to record Respondent’s resignation on the Roll of Attorneys. Respondent shall fulfill all the applicable duties under Admission and Discipline Rule 23(26)(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). If Respondent seeks reinstatement, the misconduct admitted in Respondent’s affidavit of resignation, as well as any other allegations of misconduct, may be addressed in the reinstatement process. Approval of a petition for reinstatement is discretionary and requires clear and convincing evidence of the petitioner’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

The costs of this proceeding are assessed against Respondent.

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

All Justices concur.


author: RUSH, Justice.

text:
    GIRL SCOUTS OF SOUTHERN ILLINOIS, Appellant (Defendant below), v. VINCENNES INDIANA GIRLS, INC., Appellee (Plaintiff below).
    No. 42S00-1210-PL-597.
    Supreme Court of Indiana.
    May 14, 2013.

      Chad Michael Smith, Evansville, IN, Attorney for Appellant.
    Brent Stuckey, Jill Doggett, Katie Kot-ter, Vincennes, IN, Attorneys for Appellee.
    Gregory F. Zoeller, Attorney General of Indiana, Thomas M. Fisher, Solicitor General, Ashley Tatman Harwel, Heather Ha-gan McVeigh, Deputy Attorneys General, Indianapolis, IN, Attorneys for Amicus Curiae State of Indiana.
   RUSH, Justice.

The Contracts Clause of the Indiana Constitution protects vested contract rights, including agreed contractual restrictions on land use, against retroactive impairment. Here, one Scouting organization deeded its campground to another on the condition that the Scouting use continue for 49 years, with the deed providing that ownership of the campground would revert to the original owner (the grantor) if the Scouting-use condition was breached during that time. We conclude that the Contracts Clause of the Indiana Constitution protects the enforceability of this 49-year land use limitation despite a subsequently enacted statute, Indiana Code section 32-17-10-2, that purports to limit re-versionary clauses in land transactions to a maximum of 30 years.

Facts and Procedural History

In 1946, Vincennes University donated Camp Wildwood to Vincennes Indiana Girls, Inc. (“VIG”) — then known as Vin-cennes Indiana Girl Scout Council, Inc.— for use as a Girl Scout facility for the local troops. Then in 1965, the national Girl Scouts reorganized, and required VIG’s local organization to be absorbed into a predecessor entity of Girl Scouts of Southern Illinois, Inc. (“GSSI”). That reorganization also required VIG to convey Camp Wildwood to GSSI’s predecessor for continued use as a camping facility for Girl Scouts in GSSI’s region.

VIG deeded Camp Wildwood as demanded, but on the condition that it be used for Scouting purposes for 49 years, enforced by a 49-year possibility of revert-er to VIG, and a prohibition on “the grant- or” (which, as the parties acknowledged, would be nonsensical unless it was a scrivener’s error for “grantee”) selling or conveying the Camp during that time. Substituting the current parties’ proper names for clarity, the deed provided:

[T]he conveyance of which real estate ... shall be upon and subject to the condition that such real estate ... shall revert to [VIG] if the same are not used for and as a Girl Scouts camping site and facilities for a period of forty-nine years from and after the date of such conveyance and transfer, which reversion shall automatically occur upon such failure of use as aforesaid; provided, however, that ... for the period aforesaid no rights shall exist in [GSSI] to convey, sell or dispose of said real estate in any fashion whatsoever or its use destroyed or terminated during the aforesaid forty-nine year period except as hereinbefore permitted; ... provided further[,] however[,] that if [VIG]’s existence is terminated or corporate charter surrendered, reversionary rights automatically terminate.

Both before and after the transfer, about 25 Vincennes-area Girl Scout troops used Camp Wildwood for their weekly meetings, summer day camps, singalongs and overnight camping, special events like “Boo Bash,” “Daisy Tea,” “Birthday Bash,” “Brownie Fest,” and “Egg Hunt.” The camp also hosted other community events.

That use continued for 44 years — until January 2009, when GSSI ceased using Camp Wildwood as a Girl Scout facility and decided to sell. It notified VIG of its intent to sell the camp, instructed VIG to remove its belongings within 30 days, and locked Vincennes-area troops out of the camp. VIG later discovered that it had been administratively dissolved in April 2004 for failure to pay annual fees to the Secretary of State, but was reinstated in August 2009.

In May 2010, VIG sued to quiet title to Camp Wildwood and enjoin GSSI from selling the camp until the 49-year period had expired, alleging that an Indiana statute limiting the duration of reversionary interests to 30 years was unconstitutional as applied, as a retroactive impairment of its contract rights. GSSI counterclaimed to quiet title, alleging that VIG’s reversion-ary interest expired by operation of the statute in 1995, or by the terms of the deed when VIG was administratively dissolved in 2004.

The trial court granted summary judgment quieting title in VIG, and GSSI appealed. The appeal was initially filed in the Court of Appeals, but because the trial court’s judgment declared a state statute unconstitutional, Appellate Rule 4(A)(1)(b) gives this Court mandatory and exclusive jurisdiction over the appeal. The case was therefore transferred to this Court under Appellate Rule 6, and proceeded as a direct appeal.

Standard of Review

In reviewing summary judgment rulings, we apply the same standard as the trial court: “summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.” Tom-Wat, Inc. v. Fink, 741 N.E.2d 343, 346 (Ind.2001). In reviewing cross-motions for summary judgment, we consider each motion separately to make that determination. Keaton & Keaton v. Keaton, 842 N.E.2d 816, 819 (Ind.2006). But here, the parties disagree only as to the appropriate legal conclusions, without controverting the other’s facts — and so both motions present pure questions of law. See Tom-Wat, 741 N.E.2d at 346 (“[B]oth Fink’s and Tom-Wat’s motions for summary judgment “present[ ] a question of law because ... the affidavits filed by the parties do not raise any factual disputes. Rather, to the extent they conflict, they do so only as to legal conclusions.”).

Discussion

On appeal, GSSI argues that possibilities of reverter are not protected against retroactive impairment, because Indiana does not recognize them as vested rights — and thus, Indiana Code section 32-17-10-2, which voids reversionary interests after 30 years, is constitutional. It also argues in the alternative that VIG’s reversionary interest in Camp Wildwood terminated by the terms of the deed when VIG was administratively dissolved in 2004. VIG argues that its reverter is just one part of a larger vested right to enforce the deed’s requirement that Camp Wild-wood be used as a Scout camp for 49 years; and that under the relevant statute, its corporate existence continued through its administrative dissolution and was reinstated retroactively as if the dissolution never happened. We address the administrative dissolution issue first, because we generally avoid addressing constitutional questions if a case can be resolved on other grounds. Ind. Wholesale Wine & Liquor Co., Inc. v. State ex rel. Ind. Alc. Bev. Comm’n, 695 N.E.2d 99, 106 (Ind.1998); Citizens Nat. Bank of Evansville v. Foster, 668 N.E.2d 1236, 1241 (Ind.1996).

I. VIG’s Administrative Dissolution and Reinstatement.

GSSI’s non-constitutional argument relies on the deed’s provision that “if [VIG]’s existence is terminated or corporate charter surrendered, reversionary rights automatically terminate.” GSSI argues that when VIG was administratively dissolved by the Indiana Secretary of State in 2004, its existence — and thus, its reverter — terminated as the deed contemplates; and that because GSSI closed Camp Wildwood in January 2009, VIG’s August 2009 reinstatement came eight months too late to exercise the reverter. Based on the controlling statutes, we disagree.

First, Indiana Code section 23-17-23-2(c) provides in relevant part that an administratively dissolved non-profit corporation “continues [its] corporate existence but may not carry on any activities except those necessary to wind up and liquidate [its] affairs under IC 23-17-22-5” (emphasis added). We cannot conclude that VIG’s existence was “terminated” in terms of the deed, when the controlling statute expressly provides that its existence “continue[d].” And though GSSI also argues that VIG “surrendered its charter,” we find the ordinary sense of “surrender” connotes a voluntary act. See Black’s Law Dictionary 1581 (9th ed. 2009) (“2. The giving up of a right or claim.”) Here, GSSI has designated nothing to controvert VIG’s evidence that the failure to pay fees that caused its dissolution was involuntary, following the death of its corporate secretary who had handled those matters in the past.

Second, Indiana Code section 23-17-23-3(c) expressly provides that “the reinstatement relates back to and takes effect as of the effective date of the administrative dissolution and the corporation resumes carrying on the corporation’s activities as if the administrative dissolution had never occurred.” (Emphasis added.) We are bound to enforce that statute by its terms. GSSI urges us to “hold [VIG] accountable for its mistakes” by creating an exception that “rights and assets of which the corporation was divested prior to the revival” cannot be reinstated. Appellant’s Br. at 22, citing Arnold Developer, Inc. v. Collins, 318 Md. 259, 567 A.2d 949, 952 (1990). But Arnold reached that conclusion because the controlling Maryland statute expressly provides that “[a]ll the assets and rights of the corporation [are restored], except those sold or those of which it was otherwise divested while the charter was void.” 567 A.2d at 952, quoting Md.Code Ann., Corps. & Ass’ns § 3-512(2) (Lexis-Nexis 1989) (emphasis added). Our Code has no comparable provision, and we will not invent one.

In sum, VIG’s corporate existence continued (albeit in a limited capacity) even while it was administratively dissolved, and its reinstatement was retroactive “as if the ... dissolution had never occurred.” Accordingly, the dissolution did not terminate VIG’s existence or surrender its charter, and so its reversionary rights did not terminate by operation of the deed. Since the parties’ non-constitutional arguments cannot resolve this case, we turn to the constitutional question.

II. Constitutionality of Indiana Code Section 32-17-10-2 as Applied.

A. Contracts Clause and Rights Under a Deed.

Under the Contracts Clause of our state Constitution, “[n]o ex post facto law, or law impairing the obligation of contracts, shall ever be passed.” Ind. Const, art. 1, § 24. We have held that provision protects vested contract rights, Pulos v. James, 261 Ind. 279, 289-90, 302 N.E.2d 768, 775 (1973)—including contract rights arising under a deed, Clem v. Christole, Inc., 582 N.E.2d 780, 782 (Ind.1991). The question presented here, as we restate it, is whether Indiana Code section 32-17-10-2 unconstitutionally impairs VIG’s contract rights under the deed to enforce the condition subsequent.

The statute at issue declares possibilities of reverter invalid after 30 years, even if the interest was created before the statute was enacted:

A possibility of reverter or right of entry for breach of a condition subsequent concerning real property is invalid after thirty (30) years from the date the possibility of reverter or right of entry is created, notwithstanding a period of creation longer than thirty (30) years:
(1) if the breach of the condition has not occurred; and
(2) despite whether the possibility of re-verter or right of entry was created before, on, or after July 1,1993.

Ind.Code § 32-17-10-2 (2004). Like any statute under constitutional challenge, it comes before us with a strong presumption of constitutionality, and every doubt must be resolved in favor of its validity. Steup v. Ind. Hous. Fin. Auth., 273 Ind. 72, 75, 402 N.E.2d 1215, 1217 (1980).

Even under that steep standard, we have invalidated a statute that retroactively impaired homeowners’ rights under restrictive covenants as violating Article 1, Section 24. In Clem, homeowners challenged the constitutionality of a statute voiding restrictive covenants to the extent they barred special-needs group homes from residential subdivisions. 582 N.E.2d at 781. We recognized that the covenants gave the homeowners a protected contract right that could not be retroactively impaired, id. at 782, except in a legitimate exercise of the “necessary police power,” id. at 783-84 (emphasis original). Finally, we held that even though “mainstreaming” the developmentally disabled was a worthy goal that could justify prohibiting such covenants in the future under the “general” police power, it could not impair existing covenants under the narrower “necessary” police power. Id. at 784. We therefore declared the statute unconstitutional under Article 1, Section 24. Id. at 785.

But GSSI and the Attorney General as amicus argue that Indiana Code section 32-17-10-2 is different, asserting that the Contracts Clause protects only vested rights, while possibilities of reverter have traditionally been considered too remote to be treated as vested. We have never squarely held that unvested rights are not protected — only that vested rights are. E.g., Pulos, 261 Ind. at 289-90, 302 N.E.2d at 775 (“[T]he Legislature may prohibit contracts that are against public policy,” but “nevertheless[ ] may not impair previously legal contracts after the rights thereunder have vested.”); see also S. Bend Cmty. Sch. Corp. v. Nat’l Educ. Ass’n-S. Bend, 444 N.E.2d 348 (Ind.Ct.App.1983). And Indiana has at least implicitly followed the traditional common law rule that a “naked possibility of reverter” is too remote and speculative to be treated as vested. E.g., Outland v. Bowen, 115 Ind. 150, 154, 17 N.E. 281, 283 (1888); accord, Gushwa v. Gushwa, 93 Ind.App. 68, 73-74, 177 N.E. 366, 368 (1931) (“Until the breach of [a] condition [subsequent] and a reverting of the estate through re-entry[,] the whole title is in the grantee,” so that any potential reversion, “being a mere possibility, is not an estate.”) (internal quotation omitted). Yet even if both points are correct, they miss the larger picture. We see VIG’s reverter as secondary to the parties’ bargained-for limit on GSSI’s use of the land — essentially the same interest at issue in Clem, and subject to the same constitutional protections.

B. Nature of VIG’s Contract Right.

Though VIG retained a possibility of reverter in its conveyance to GSSI, the deed reveals that it retained other rights as well — and we are concerned with VIG’s entire “bundle of rights,” rather than any one of them individually. Deeds, like contracts, are read as a whole, and we determine the parties’ intent by the unambiguous language they used, presuming they intended each part to have meaning. Tazian v. Cline, 686 N.E.2d 95, 97 (Ind.1997). Applying that standard here shows that the parties’ central focus was to impose a contract obligation on GSSI to use Camp Wildwood “for and as a Girl Scouts camping site and facilities for a period of forty-nine years.” The remaining provisions are subsidiary, framed in terms of enforcing that obligation:

• VIG’s “reversion shall automatically occur upon such failure of use ” as a Girl Scout camp, and
• GSSI is deprived of any right “to convey, sell or dispose of [the Camp] ... or its use destroyed or terminated during the aforesaid forty-nine year period.”

(Emphases added.)

Reading those provisions together makes clear that VIG’s reversionary interest works in tandem with the charitable-use requirement to create a valid condition subsequent. Such conditions are generally disfavored and strictly construed, so that “nothing short of express provisions for forfeiture and either a reverter ... or a right to retake the property in the donor or his heirs [will] enable a donor to effectively impose a condition subsequent.” St. Mary’s Med. Ctr. v. McCarthy, 829 N.E.2d 1068, 1075-76 (Ind.Ct.App.2005), reh’g denied (internal citations and quotations omitted). And VIG’s deed does just that: it requires GSSI to use the camp for Scouting purposes for 49 years, expressly provides for forfeiture in case of nonuse, and creates a possibility of reverter to enforce that condition. The condition would therefore be enforceable, regardless of its duration. (For example, because of a charitable bequest John Herron made subject to a condition subsequent, the Herron School of Art and Design at Indiana University-Purdue University (Indianapolis) has borne his name since 1895. See id. at 1076 & n. 3, citing Herron v. Stanton, 79 Ind.App. 683, 147 N.E. 305 (1920).)

Moreover, VIG reinforced that condition subsequent with an additional mechanism that is only permissible in charitable conveyances — depriving GSSI of the right “to convey, sell or dispose of said real estate in any fashion whatsoever” during the required 49-year period of Scouting use. Just as conditions subsequent are generally disfavored, so are restrictions on alienation, because “[t]he power to dispose of real estate is universally regarded as an inseparable incident of a fee.” Granger v. Granger, 147 Ind. 95, 111, 46 N.E. 80, 83 (1897). Nevertheless, we permit such restrictions in charitable conveyances in order to encourage philanthropy. See Quinn v. Peoples Trust & Sav. Co., 223 Ind. 317, 60 N.E.2d 281 (1945) (“the rule against restraints upon alienation does not apply to public charitable trusts”); Hays v. Harmon, 809 N.E.2d 460, 467 (Ind.Ct.App.2004) (“A charitable trust is a favorite of the law, and the most liberal rules of construction will be employed to sustain and uphold every attempt of a person to donate his property to a charitable use.”), trans. denied. And by withholding that ordinarily “inseparable” ownership power from GSSI as grantee, VIG necessarily retained a corresponding right as grantor — a right we have characterized as “vested”:

The foundation of the power to restrain alienation rests upon the fact that there remains or is vested in someone a valid remainder or reversion, whose estate in possession is contingent upon some event which defeats the precedent estate, and who is entitled to take advantage of the prohibited act or use.

Conger v. Lowe, 124 Ind. 368, 371, 24 N.E. 889, 889-90 (1890) (emphasis added).

Accordingly, even though the enforcement mechanism in this case is different than in Clem, the thrust of the parties’ bargain is the same — a land-use restriction. In both cases, the restriction “im-postes] an affirmative burden” and “touches and concerns the land” — and thus is of a type that would be capable of running with the land, even indefinitely, when the parties so intend. See Columbia Club, Inc. v. American Fletcher Realty Corp., 720 N.E.2d 411, 418 (Ind.Ct.App.1999), trans. denied (“[A] real covenant imposing an affirmative burden will run with the land if: (1) the covenantor and covenantee intend it to run; (2) the covenant touches and concerns the land; and (3) there is privity of estate between subsequent grantees of the original covenantor and covenantee.”). Here, though the parties only intended the restriction to run for 49 years instead of indefinitely, their contract would nevertheless be substantially impaired if it were cut off after just 30 years by applying Indiana Code section 32-17-10-2 — an effect just as “permanent, irrevocable, and retroactive in altering the [parties’] contractual relationships” as in Clem, 582 N.E.2d at 784. We see no reason this restriction, and the contractual relationship it creates, should have any less constitutional protection in a condition subsequent than in a restrictive covenant as in Clem.

C. “Necessary” Police Power.

Even though the deed’s land-use restriction is a protected contract right, it may nevertheless be restricted under certain circumstances. The Legislature’s “general” police power gives it broad authority to limit prospectively what parties may contract for, but it may retroactively impair existing contracts only through the “necessary” police power, which is much narrower. “Legislation [that] invade[s] freedom of contract can only be sustained ... if it both relates to the claimed objective and employs means which are both reasonable and reasonably appropriate to secure such objective.” Clem, 582 N.E.2d at 783 (internal quotations and citations omitted). Here, we agree with the Attorney General that the Legislature’s likely objective in enacting Indiana Code section 32-17-10-2 was to promote marketable title by terminating clouds on title that had outlived their usefulness and limiting them to a period in which they are likely to retain their utility. A statutory 30-year cap on such interests may well meet the “reasonable and reasonably appropriate” standard as applied to what Outland called “naked possibilities of reverter” — those that depend on speculation or chance, particularly about matters that do not touch and concern the land. See Outland, 115 Ind. at 152-53, 17 N.E. at 282 (contingent on grantee dying childless); Gushwa, 93 Ind.App. at 70, 177 N.E. at 367-68 (contingent on grantee predeceasing the grantor).

But as discussed above, VIG’s reversion-ary interest is secondary to its principal interest in Camp Wildwood — the restricted use it imposed on the conveyance to GSSI. Again, because that restriction imposes on GSSI a contract obligation that touches and concerns the land, it is closely akin to the restrictive covenants in Clem. Such restrictions have significant social utility. In a residential context, they can “permit property owners to collectively provide or obtain protections significantly contributing to the peace, safety, and well-being of themselves and their families.” Clem, 582 N.E.2d at 784. In the commercial context, they can promote the economic viability of a development and protect the investments made by landlords and tenants alike. Tippecanoe Assocs. II, LLC v. Kimco Lafayette 671, Inc., 829 N.E.2d 512, 514 (Ind.2005) (collecting cases upholding non-competition covenants in shopping center leases). And in this charitable context, the restriction not only maintained the camp’s continued public and community use, which is a good in itself, but appears to have been the primary consideration for an otherwise-gratuitous conveyance. When a reverter or condition subsequent serves a function equivalent to a restrictive covenant, arbitrarily terminating it after 30 years is neither “reasonable” nor “reasonably appropriate,” Clem, 582 N.E.2d at 783, and therefore is not within the necessary police power. In that context, Indiana Code section 32-17-10-2 is unconstitutional as applied.

Conclusion

A corporation continues a limited corporate existence even while it is administratively dissolved, and reinstatement restores its full status as if the dissolution never happened. VIG’s administrative dissolution, and subsequent reinstatement, therefore did not trigger the deed’s provision extinguishing VIG’s reversionary interest if its “existence is terminated or corporate charter surrendered.”

And because VIG’s interest imposes a land-use restriction similar to a restrictive covenant, it deserves the same level of Contracts Clause protection. Since the parties bargained for a 49-year land use limitation on Camp Wildwood, terminating that restriction after just 30 years would substantially impair VIG’s contract rights. Indiana Code section 32-17-10-2 is therefore unconstitutional as applied retroactively to the land-use restriction in VIG’s deed to GSSI. Accordingly, we affirm the trial court.

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

      . Since we resolve this issue by analogy to restrictive covenants, we need not consider VIG's alternative argument that we should join an arguable modern trend toward treating possibilities of reverter as becoming 'vested' in the grantor from [their] creation." Washington State Grange v. Brandt, 136 Wash.App. 138, 150, 148 P.3d 1069, 1075 (2006), review denied. See also, e.g., Bagby v. Bredthauer, 627 S.W.2d 190, 196-97 (Tex.App.1981) (so holding as to possibility of re-verter in oil royalties); Restatement (Third) of Prop.: Wills & Other Donative Transfers § 25.1 cmt. a (2011) (“a future interest arises when it is created, not in the future when or if the right to possession or enjoyment matures”).


text:
    In the Matter of Shane E. BEAL, Respondent.
    Nos. 27S00-1302-DI-114, 27S00-1302-DI-116, 27S00-1303-DI-195, 27S00-1303-DI-196, 27S00-1303-DI-197, 27S00-1303-DI-204, 27S00-1303-DI-217, 27S00-1304-DI-246.
    Supreme Court of Indiana.
    May 30, 2013.
   PUBLISHED ORDER IMPOSING INDEFINITE SUSPENSION FROM PRACTICE FOR NONCOOPERATION AND TAXING COSTS

In each of the above cases, this Court issued an Order To Show Cause, pursuant to Admission and Discipline Rule 23(10)(f), directing Respondent to show cause within 10 days of service of the order why Respondent should not be immediately suspended from the practice of law due to failure to cooperate with the Disciplinary Commission’s investigation of pending allegations of misconduct against Respondent. In each case, Respondent was served with the Order to Show Cause by certified mail at his office address.

The Commission has filed a “Request for Ruling and to Tax Costs” in each case (except 217 and 246 ), asserting that Respondent still had not cooperated and requesting that Respondent be suspended immediately for noncooperation. Then, on April 26, 2013, the Commission filed a petition for the suspension of the respondent’s license to practice law in each of these cases (except 246), requesting that Respondent be suspended indefinitely. According to the Commission’s petitions: Respondent has still not responded to the show cause orders in 116, 196 and 204. Respondent has responded adequately to the Commission regarding the show cause orders in 195, 197, and 217. Respondent responded falsely to the show cause order in 114, stating that he had already provided the Commission with a copy of a client’s file when he had not.

Respondent’s disciplinary history is summarized below:

27S00-1008-DI-425: Show cause petition filed 8/17/10. Dismissed with costs 9/21/10.
27S00-1012-DI-667: Show cause petition filed 12/14/10. Dismissed with costs 1/10/11.
27S00-1110-DI-639: Show cause petition filed 10/26/11. Dismissed with costs 11/22/11.
27S00-1111-DI-656: Show cause petition filed 11/9/11. Dismissed with costs 12/9/11.
27S00-1204-DI-221: Show cause petition filed 4/17/12. Suspended for noncooperation 8/7/12. Reinstated on certificate of compliance 8/23/12.
27S00-1211-DI-653: Show cause petition filed 11/29/12. Dismissed with costs 1/28/13.
27S00-1211-DI-654: Show cause petition filed 11/29/12. Dismissed with costs 2/13/13.
27SOO-1301-DI-2: Show cause petition filed 1/2/13. Dismissed with costs 1/28/13.
27S00-1301-DI-4: Show cause petition filed 1/2/13. Dismissed with costs 1/28/13.
27S00-1302-DI-114: Show cause petition filed 2/12/13. Still pending.
27S00-1302-DI-116: Show cause petition filed 2/12/13. Still pending.
27S00-1303-DI-195: Show cause petition filed 3/15/13. Still pending.
27S00-1303-DI-196: Show cause petition filed 3/15/13. Still pending.
27S00-1303-DI-197: Show cause petition filed 3/15/13. Still pending.
27S00-1303-DI-204: Show cause petition filed 3/19/13. Still pending.
27S00-1303-DI-217: Show cause petition filed 3/28/13. Still pending.
27S00-1304-DI-246: Show cause petition filed 4/17/13. Still pending.

“It shall be the duty of every attorney against whom a grievance is filed ... to cooperate with the Commission’s investigation-” Admis. Disc. R. 23(10)(e). Failure to respond to the Commission’s requests for information is a violation of Professional Conduct Rule 8.1(b). The Commission has been forced to seek this Court’s assistance seventeen times since August 2010 to seek Respondent’s cooperation with its investigations. In its petition for indefinite suspension, the Commission asserts that he has yet to respond adequately to four outstanding show cause orders. He has filed nothing addressed to the Court in any of the pending show cause proceedings, not even to contest the Commission’s requests for an indefinite suspension. In prior cases in which a respondent has displayed such disregard for the disciplinary process, this Court has entered orders of indefinite suspension. See Matter of Hill, 840 N.E.2d 316 (Ind.2006); Matter of Atanga, 969 N.E.2d 20 (Ind.2012).

Under these egregious circumstances, the Court concludes that the Commission’s requests for an indefinite suspension from the practice of law should be granted.

In addition, pursuant to Admission and Discipline Rule 23(10)(f)(5), the Court grant’s the Commission’s requests that Respondent be ordered to reimburse the Commission the costs of prosecuting the following proceedings in the following amounts:

27S00-1302-DI-114: $512.22
27S00-1302-DI-116: $512.22
27S00-1303-DI-195: $512.22
27S00-1303-D1-196: $512.22
27S00-1303-D1-197: $512.22
27S00-1303-D1-204: $512.22

Being duly advised, the Court ORDERS that Respondent be suspended from the practice of law indefinitely for noncooperation with the Commission, effective immediately. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26).

Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs assessed above, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4) and (18). If Respondent seeks reinstatement to the practice of law, the issues raised in all pending noncooperation proceedings may be addressed in the reinstatement process. Reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

The Clerk of this Court is directed to forward notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys; 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.

      . Cases are identified by the final part of their cause numbers.


text:
    In the Matter of Alex R. VOILS, Respondent.
    No. 06S00-1304-DI-223.
    Supreme Court of Indiana.
    May 30, 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: Respondent represented Client in pursuing a claim for accidental death benefits under a life insurance policy. The decedent died from carbon monoxide inhalation, which would not be covered unless it resulted from an occupational accident. Client gave Respondent information about a person for whom the decedent was working at the time of his death. The insurance company denied the claim in 2005. Despite Client’s requests, Respondent did little to press the claim against the insurance company. After Client fired Respondent in 2009, Respondent failed to comply with repeated requests from Client and her new counsel for her file. After Client filed a grievance against Respondent, he failed to respond in a timely manner to the Commission’s demand for a response to the grievance and to a subpoena duces tecum.

The parties cite no facts in aggravation. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent had physical and mental health problems at the time of the misconduct; and (3) Respondent has met with Indiana Judges and Lawyers Assistance Program, completed its program requirements, and is being treated by a neu-ropsychologist.

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

1.3: Failure to act with reasonable diligence and promptness.
1.16(d): Failure promptly to return to a client case file materials to which the client is entitled after termination of representation.
8.1(b): Failure to respond in a timely manner to the Commission’s demands for information.

Discipline: The parties propose the appropriate discipline is a thirty (30) day suspension with automatic reinstatement. 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 and ORDERS the agreed discipline.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of thirty (30) days, beginning July 12, 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 Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur, except DAVID, J., who did not participate.