author: Brown, Judge.

text:
    STATE of Indiana, Appellant-Respondent, v. Matthew STIDHAM, Appellee-Plaintiff.
    Court of Appeals Case No. 18A02-1701-PC-68
    Court of Appeals of Indiana.
    FILED September 6, 2018
    Attorneys for Appellant: Curtis T. Hill, Jr., Attorney General of Indiana, Ellen H. Meilaender, Supervising Deputy Attorney General, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, Indiana
    Attorney for Appellee: David W. Stone, IV, STONE Law Office & Legal Research, Anderson, Indiana
   Brown, Judge.

[1] The State of Indiana appeals the post-conviction court's grant of a petition for post-conviction relief filed by Matthew Stidham. The State raises one issue which we revise and restate as whether the post-conviction court erred by granting Stidham post-conviction relief. We reverse.

Facts and Procedural History

[2] The relevant facts as discussed in Stidham's direct appeal follow:

On the night of February 23, 1991, [Stidham] and several of his friends, including the decedent in this case, drove to the decedent's apartment where they drank whiskey and played guitars. They eventually started "trading punches." This evidentially started as horseplay but grew into an angry encounter between [Stidham] and the decedent.
As the fight escalated, the others joined with [Stidham] in beating the decedent. Not only did they beat and kick the decedent, but they also struck him with a wooden club. They then loaded much of the decedent's electronic equipment into his van, gagged him, placed him in the back of the van and drove off. They eventually arrived at a secluded area near the Mississinewa River where the decedent was removed from the van and again beaten and stabbed some forty-seven times before his body was thrown into the river. After visiting with friends, who they told of the killing, [Stidham] and his associates drove into the State of Illinois where they were arrested.

Stidham v. State , 637 N.E.2d 140, 142 (Ind. 1994).

[3] A jury trial resulted in the conviction of Stidham for murder, robbery as a class A felony, criminal confinement as a class B felony, battery as a class C felony, and auto theft as a class D felony. Id. In February 1993, the Indiana Supreme Court reversed Stidham's convictions and remanded the case for a new trial. Id. (citing Stidham v. State , 608 N.E.2d 699 (Ind. 1993) ).

[4] After retrial and convictions on all counts, Stidham appealed. Id. In that appeal, he contended in part that his 141-year sentence was unreasonable and disproportionate to the crime. Id. at 144. He argued "in sharp contrast to his behavior prior to his original sentencing, his behavior in prison had been exemplary, that he had obtained a GED, and that he actively participated in a substance abuse program as certified by a letter to Judge Dailey from Linda Poe[,] the substance abuse supervisor at the institution." Id. He also argued that the record disclosed that he was an abused child. Id.

[5] In an opinion issued in July 1994, the Indiana Supreme Court concluded: "Given the extreme brutality of the crimes committed in this case, the trial judge was well within his discretion in refusing to mitigate the sentences either on [Stidham's] subsequent conduct in the prison or the abuse he had received as a child." Id. The Court observed: "As pointed out by the trial judge, two of [Stidham's] brothers had received the same treatment but had become upstanding citizens in their community." Id. The Court concluded that the sentence was defective in one regard, remanded to the trial court for the purpose of vacating the auto theft conviction as it should have been merged with the robbery conviction, and affirmed the trial court in all other respects. Id.

[6] On February 8, 2016, Stidham filed a verified petition for post-conviction relief contending that his sentence violated the Eighth Amendment of the United States Constitution and Article 1, Section 16 of the Indiana Constitution. On February 12, 2016, the State filed an answer to Stidham's petition, and on October 27, 2016, the court held a hearing. Stidham's counsel offered an exhibit "which is a full and complete transcript, which is a fair and accurate copy of the original and that includes everything from the beginning through the sentencing and all the appendices." October 27, 2016 Transcript at 5. The prosecutor had no objection, and the court admitted it as Petitioner's Exhibit 1. Delonda Lee Hartman testified that Stidham was her student when she was teaching for Ball State University at Indiana State Prison in Michigan City. She stated she thought Stidham was one of those students highlighted in a video titled Cell Block Scholars. Stidham's counsel offered the video as an exhibit, and the prosecutor objected on the basis of relevance. Stidham's counsel argued that the video supports that "juveniles should be treated differently by the Court" and that "juveniles need to have the ability to be reformed." Id. at 8-9. The court overruled the objection and admitted the exhibit. Hartman testified that Stidham matured, was very helpful in class, and was an exemplary student.

[7] Stidham indicated that he had "no real formal education" prior to being sentenced but had become a full-time firefighter in prison, taught the biohazard certification program and for an apprenticeship program, and was the firefighter instructor. Id. at 12.

[8] On November 29, 2016, he filed proposed findings of fact and conclusions of law, which concluded that his sentence should be ordered reduced to time served. On January 3, 2017, the post-conviction court entered an order granting Stidham's petition and stating in part:

* * * * *
2. [Stidham] was seventeen (17) years old at the time of the offense.
* * * * *
8. The Petition raises a single issue for consideration by this Court: Whether [Stidham's] sentence violates the 8th Amendment of the US Constitution and Article 1 Sec 16 of the Indiana Constitution prohibiting cruel and unusual punishment.
9. Based upon the sentence imposed by this Court, if [Stidham] is still alive, he will be eighty two (82) years of age when his sentence is complete.
10. Since [Stidham] was sentenced much research has been done on the brains of juveniles and their ability to change.
11. Neither the trial court nor the Supreme Court had access to this information and research since it did not exist at that time.
12. Furthermore, [Stidham's] actions and progress in prison is a testament to this research.
13. There is no question that the crimes committed were heinous.
14. The question for the Court, however, is whether the sentence imposed was excessive in light of the research done and cases decided in the meantime.
CONCLUSIONS OF LAW
15. The United States Supreme Court in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) held that the imposition of mandatory life sentences without parole on juveniles is forbidden.
16. Miller requires the sentencing judge to "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison" [132] S.Ct. at 2469.
17. While Stidham was not sentenced to life without parole, it is the functional equivalent.
18. Other courts in other jurisdictions have held similarly in cases involving juveniles. Hayden v. Keller , 134 F.Supp.3d 1000 (E.D.N.C. 2015) cites several cases where de facto life sentences for juveniles were held to be cruel and unusual punishment in violation of the 8th Amendment of the Constitution.
19. The Indiana Supreme Court relied on Miller in two separate 2014 cases.
20. In Brown v. State [,] 10 N.E.3d 1 (Ind. 2014) [,] and Fuller v. State , [9 N.E.3d 653 (Ind. 2014),] the Court held that imposition of juveniles of two consecutive 75 year sentences for two (2) murders was improper.
21. The Court in those cases discussed the U.S. Supreme Court's observations that first, a juvenile lacks maturity and has an underdeveloped sense of responsibility; second that they are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure, and they have limited control over their own environment and lack the ability to extricate themselves from horrific, crime-producing settings; and third a child's character is not as well formed as an adult's and his actions are less likely to be evidence of irretrievable depravity.
22. The Court in Fuller found that the maximum consecutive sentence means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of the juvenile convict, he will remain in prison for the rest of his days.
23. As a result, this Court finds that [Stidham's] sentence was excessive in light of his age at the time of the offense and his Petition should be GRANTED.

Appellant's Appendix Volume 2 at 51-52 (underlining omitted).

[9] The State appealed. In a memorandum decision, we held that the post-conviction court had not entered "an appropriate order with respect to the conviction or sentence" or complied with Section 6 of Ind. Post-Conviction Rule 1 and we remanded for further proceedings. See State v. Stidham , No. 18A02-1701-PC-68, slip op. at 8, 2017 WL 2569796 (Ind. Ct. App. June 14, 2017).

[10] The State petitioned for rehearing and argued that this Court should have addressed its arguments that Stidham's sentencing claim was barred from review by procedural default, that his sentence did not violate the Eighth Amendment, and that the post-conviction court could not revisit a sentence found not unreasonable or disproportionate by the Indiana Supreme Court. The State also argued that we should grant rehearing to clarify a jurisdictional issue, i.e., whether this Court had retained jurisdiction or whether a new notice of appeal would be necessary. We granted rehearing to clarify that we retained jurisdiction and remanded for the post-conviction court to issue a sentencing order. See State v. Stidham , No. 18A02-1701-PC-68, 2017 WL 4666878 (Ind. Ct. App. October 18, 2017).

[11] On December 13, 2017, the State filed a Verified Motion for Writ in Aid of Appellate Jurisdiction asserting that the post-conviction court scheduled a resentencing hearing for March 8, 2018, and requested that this Court order the post-conviction court to issue an amended post-conviction order within fifteen days specifying the relief granted so that this Court could adjudicate the State's appeal and to refrain from holding new sentencing proceedings. Stidham filed a response. On January 20, 2018, this Court entered an order denying the State's motion and stating in part:

In an affidavit attached to [Stidham's] Response, Stidham's counsel asserts that an unrecorded conference occurred on October 26, 2016, at which he and the deputy prosecutor were present and at which it was agreed that the case would proceed in two phases, that the first phase was to be limited to whether or not Stidham was entitled to post-conviction relief, and that the second phase was to be devoted to evidence on what sentence should be imposed if it was determined by the trial court in the first phase that the defendant was entitled to post-conviction relief. See Affidavit of John C. Reeder at 1. Neither party previously mentioned the October 26, 2016 conference or that the parties had agreed to proceed in two phases, which we find disappointing. We disapprove of what appears to be a failure of candor with this Court in the briefing process.

January 10, 2018 Order at 2.

[12] On March 15, 2018, the post-conviction court held a resentencing hearing and incorporated prior proceedings at the request of Stidham's counsel. Cynthia Morris, Stidham's aunt, testified that since he had been incarcerated Stidham received his GED, his associate's degree, and his bachelor's degree, that he became the captain of the fire department, and that he was "completely changed." March 15, 2018 Transcript at 7. She testified that Stidham suffered severe abuse from other family members and foster homes including starvation, someone trying to make him eat dog feces, being struck, and being stabbed with scissors. She offered that Stidham could live with her sister and stated that he had several job offers, that she spoke with people in the community who were aware that he would be eligible to work with volunteer fire departments, and that his family would help him financially.

[13] Stidham testified that he continued his education and training since the last hearing and had become certified as a module A and a module B firefighter, which includes technical rescue awareness, hazardous response operations, and first responder awareness. When asked what had changed since the earlier sentencing hearings in the 1990s, he answered in part:

I would like to say that if there's one (1) thing that changed the most is, you know, as a kid I was given a lot of opportunities. People tried to help me. I refused it. You know, I destroyed every relationship I ever come in contact with. And the biggest thing that I think I've overcome is the fact that when I see opportunities I try to take advantage of them. You know, even when I fell or fumble, you know, I, I pick myself back up and I put myself back on the right track. And that was something that I was incapable of doing as a kid.

Id. at 16. He testified he had not received any conduct reports for any acts of violence while incarcerated. Stidham's institutional behavior listed in Defendant's Exhibit B included: refusing to obey an order in 1993, smoking where prohibited in 1997, refusing to obey an order in 1998, unauthorized use or possession of an electronic device in 2007, disruptive, unruly, rowdy conduct in 2009, and unauthorized use or possession of an electronic device in 2014.

[14] On cross-examination, Stidham testified that he was sixty days shy of turning eighteen years old when the offense occurred. On redirect examination, he stated that one of his co-defendants received a sentence modification to be released from the Department of Correction and another received a plea agreement for only thirty-five years incarceration.

[15] After Stidham rested, the State presented the testimony of Mary Ann Barker, who testified that she had known Daniel Barker, the victim in this case, and that her husband was the victim's brother. She stated that Daniel was a "quiet, soft spoken person that wouldn't hurt anybody," "just wanted a friend," and "thought he found friends." Id. at 26. When asked if anything had lessened the pain of the murder that occurred in 1991, she answered: "No, it has not." Id. at 27. She stated that her husband was not emotionally able to testify, and that she thought Stidham should serve his full sentence.

[16] That same day, the court entered an order, stating:

This Court granted that petition for post-conviction relief on June 21, 2017.
The Court now proceeds to re-sentencing.
The Court has considered the pre-sentence investigation report with the attached addendum from the 1993 sentencing, together with the evidence as presented and the final comments of counsel.
The Court, being duly and sufficiently advised in this cause, now finds as follows:
Circumstances Supporting an Enhanced Sentence:
1. The defendant has a lengthy history of juvenile criminal activity, which ultimately resulted in his commitment to the Indiana Boys School on two occasions; and the Court gives this factor some weight.
2. The defendant is in need of correctional or rehabilitative treatment that can best be provided by commitment of the person to a penal facility, and prior attempts at correctional treatment and rehabilitation through juvenile probation and incarceration has not been successful; and the Court gives this factor some weight.
3. Imposition of a reduced or suspended sentence would depreciate the seriousness of the crime; and the Court gives this factor some weight.
4. The victim was likely mentally challenged; and the Court gives this factor some weight.
5. The crime was particularly devastating to the victim's family members, and or relatives; and the Court gives this factor some weight.
6. The defendant took substantial steps to conceal the crime and evade capture; and the Court gives this factor some weight.
7. While incarcerated in the Madison County Jail, the defendant was involved in an escape attempt on May 16, 1991[,] and was placed on lockdown status; and the Court gives this factor some weight.
8. This crime was savagely committed. The acts build upon themselves, and the defendant had the opportunity to stop his actions at any time, however, he chose to proceed to the ultimate level without stepping away; and the Court gives this factor some weight.
Circumstances Supporting a Reduced Sentence:
1. The defendant was of youthful age, that being 17 years of age and this is his first felony conviction as an adult; and the Court gives this factor some weight.
2. The defendant was severely and brutally abused by his adopted mother while he was growing up; and the Court gives this factor significant weight.
3. The defendant was first sentenced in 1991, and then again in 1993. Between those dates the defendant served approximately two (2) years at the Indiana Department of Corrections. During that time, the defendant earned his GED; and the Court gives this factor some weight.
4. Also during the two years prior to the re-sentencing in 1993, the defendant's attitude completely had changed, he had learned why he had had such a difficult time getting along with others and was very polite during the second interview with probation; and the Court gives this factor some weight.
5. The defendant had learning difficulties and was not well educated; and the Court gives this factor some weight.
6. Also during the two years at the Department of Corrections between sentencings, defendant had taken advantage of substance abuse counseling and general counseling; and the Court gives this factor some weight.
In weighing the above factors, the Court finds the circumstances supporting an enhanced sentence outweigh the circumstances supporting a reduced sentence.
The nature of the offense would support an enhanced sentence. Defendant participated with others to confine another, kill him brutally and steal items. All of these were senseless acts.
Defendant's character supports the advisory sentence. Defendant has a juvenile history, albeit a lengthy one, and no prior adult convictions. The Court is going to take this opportunity to point out the obvious: we are here today, almost 25 years after the second sentencing. While the Court in re-sentencing must go back and look at the laws and circumstances as of 1993, we cannot ignore the accomplishments of the Defendant in prison during that 25 years, and the Court is doing so as part of the Defendant's character. The Defendant has been a model prisoner. He has earned his Associates and Bachelor's Degrees from Ball State University, was on the Dean's List every semester, graduated Magna Cum Laude, became a certified firefighter and has spent 15 years as a paid full time firefighter through the Department of Corrections, earned additional certifications as a firefighter such that he is only one (1) of (11) people certified in the United States as a Structural Firefighter, is an instructor in firefighting, assists with education programs, and participated in a documentary about the positive changes people can make in the Department of Corrections, produced by Ball State University.
Therefore, as to Count 1, Murder, a felony, Defendant is committed to the custody of the Indiana Department of Correction for a period of sixty (60) years executed.
As to Count 2, Robbery, a Class A Felony, the Defendant is committed to the custody of the Indiana Department of Correction for a period of fifty (50) years, executed, which shall be served concurrently with the sentence imposed under Count 1.
As to Count 3, Criminal Confinement, a Class B Felony, the Defendant is committed to the custody of the Indiana Department of Correction for a period of twenty (20) years, executed, which shall be served concurrently with the sentence imposed under Counts 1 and 2.
As to Count 4, Battery, a Class C Felony, the Defendant is committed to the Indiana Department of Correction for a period of eight (8) years, suspended, which shall be served consecutively to the sentences imposed under Counts 1, 2, and 3.
The Defendant should be given credit for nine thousand eight hundred eighty-one (9,881) days of jail time served as follows:
The original 851 days assessed at the time of sentencing in 1993
06/24/1993-12/31/1993 191 days
01/01/1994-03/14/2018 8839
Together with one thousand two hundred seventy-six (1,276) days granted as a time cut by the Indiana Department of Corrections while incarcerated, for a total of eleven thousand one hundred fifty-seven (11,157) days served.
Defendant shall be given Class I Credit Time for the jail time credit of nine thousand eight hundred eighty-one (9,881) days.
The Court finds the executed sentence imposed under Count 1 has been satisfied.
Further, the Court finds that the Defendant has served two hundred seven (207) days of the eight (8) years imposed under Count 4. Therefore, the Defendant shall serve seven (7) years and one hundred fifty-eight (158) days of the eight (8) years suspended sentence on supervised probation. The Defendant shall pay all associated costs and fees associated with supervised probation.
This Court assessed costs of $113.00 at the time of sentencing in 1993, but found the defendant indigent. This Court will not assess any further fines or costs.
* * * * *
The State of Indiana requests the Court to stay the portion of the Order releasing the Defendant to supervised probation pending resolution of the appeal that is currently before the Indiana Court of Appeals.
Argument heard and concluded.
The Court denied the State's request.
Defendant ordered released in this matter.

March 15, 2018 Order on Sentencing Hearing at 1-4.

Discussion

[17] The issue is whether the post-conviction court erred by granting Stidham post-conviction relief. "Post-conviction proceedings are not super-appeals and provide only a narrow remedy for subsequent collateral challenges." State v. Oney , 993 N.E.2d 157, 161 (Ind. 2013) (quoting State v. Cooper , 935 N.E.2d 146, 148 (Ind. 2010) ). Generally, freestanding claims are unavailable in post-conviction proceedings. See Reed v. State , 866 N.E.2d 767, 768 (Ind. 2007) (holding that only issues not known at the time of the original trial or issues not available on direct appeal may be properly raised through post-conviction proceedings); Sanders v. State , 765 N.E.2d 591, 592 (Ind. 2002) (holding that in "post-conviction proceedings, complaints that something went awry at trial are generally cognizable only when they show deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal" and that it is wrong to review the petitioner's fundamental error claim in a post-conviction proceeding); Lambert v. State , 743 N.E.2d 719, 726 (Ind. 2001) (holding that post-conviction procedures do not provide a petitioner with a "super-appeal" or opportunity to consider freestanding claims that the original trial court committed error and that such claims are available only on direct appeal), reh'g denied , cert. denied , 534 U.S. 1136, 122 S.Ct. 1082, 151 L.Ed.2d 982 (2002).

[18] Where, as here, the State appeals a judgment granting post-conviction relief, we review using the standard in Indiana Trial Rule 52(A). Oney , 993 N.E.2d at 161.

On appeal of claims tried by the court without a jury or with an advisory jury, at law or in equity, the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses.

Id. (quoting State v. Hollin , 970 N.E.2d 147, 150 (Ind. 2012) ). Under the clearly erroneous standard of review, we review only for the sufficiency of the evidence. Id. We neither reweigh the evidence nor determine the credibility of witnesses. Id. We consider only the probative evidence and reasonable inferences supporting the judgment and reverse only on a showing of clear error. Id. Clear error is "that which leaves us with a definite and firm conviction that a mistake has been made." Id. We do not defer to the post-conviction court's legal conclusions. Hollowell v. State , 19 N.E.3d 263, 269 (Ind. 2014).

[19] The State argues that Stidham's challenge of his sentence is barred by res judicata . Stidham argues that his direct appeal addressed whether double jeopardy barred some of his sentences and whether his sentence was unreasonable. He argues that no claim was made that his sentence was unconstitutional.

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

Stated in more detail:
1. the former judgment must have been rendered by a court of competent jurisdiction;
2. the former judgment must have been rendered on the merits;
3. the matter now in issue was or might have been determined in the former suit; and
4. the controversy adjudicated in the former suit must have been between the parties to the present action or their privies.

Id. (quoting Chemco Transp., Inc. v. Conn , 527 N.E.2d 179, 181 (Ind. 1988) ). If any element is absent, res judicata does not apply. Id. "[I]ssues decided on direct appeal may not be collaterally attacked on post-conviction review." Allen v. State , 749 N.E.2d 1158, 1178 (Ind. 2001), reh'g denied , cert. denied , 535 U.S. 1061, 122 S.Ct. 1925, 152 L.Ed.2d 832 (2002).

[21] In Stidham's brief filed with the Indiana Supreme Court on November 22, 1993, he specifically cited the Eighth Amendment and Article 1, § 16 of the Indiana Constitution, which are the same provisions cited in his petition for post-conviction relief. See Appellant's November 22, 1993 Brief at 27. In his 1993 brief, Stidham raised the arguments of improvements while in prison. He argued that he did not have any conduct write-ups in prison, obtained his G.E.D., and participated in a substance abuse program and religion classes. Stidham also pointed to the abuse he suffered as a child.

[22] In responding to Stidham's arguments, the Indiana Supreme Court issued an opinion in July 1994 which held:

Appellant points out that he was resentenced after the second trial nearly two years after his first trial and that during that period of time he was incarcerated in the Indiana State Prison. Appellant contends that, in sharp contrast to his behavior prior to his original sentencing, his behavior in prison had been exemplary, that he had obtained a GED, and that he actively participated in a substance abuse program as certified by a letter to Judge Dailey from Linda Poe the substance abuse supervisor at the institution.
Appellant further states that the record discloses he was an abused child, a fact which should be taken into consideration as a mitigating factor. Although the trial judge considered these factors in rendering his sentence, he was not required to make an affirmative finding expressly negating each potential mitigating factor. Stout v. State (1988), Ind., 528 N.E.2d 476 ; Hammons v. State (1986), Ind., 493 N.E.2d 1250.
Given the extreme brutality of the crimes committed in this case, the trial judge was well within his discretion in refusing to mitigate the sentences either on appellant's subsequent conduct in the prison or the abuse he had received as a child. As pointed out by the trial judge, two of appellant's brothers had received the same treatment but had become upstanding citizens in their community.

Stidham , 637 N.E.2d at 144.

[23] Based upon the arguments in his 1993 brief and in his petition for post-conviction relief, we conclude that the controversy adjudicated by the Indiana Supreme Court in 1994 determined this issue and that the doctrine of res judicata precludes Stidham's claim. See Wrinkles v. State , 749 N.E.2d 1179, 1187 n.3 (Ind. 2001) ("Wrinkles contends on post-conviction that his death sentence constitutes 'cruel and unusual punishment' because of 'unfair and unreliable sentencing procedures.' We reviewed Wrinkles' death sentence on direct appeal and found it to be appropriate. To the extent Wrinkles now seeks to relitigate the appropriateness of his death sentence, his claim is barred by res judicata."), cert. denied , 535 U.S. 1019, 122 S.Ct. 1610, 152 L.Ed.2d 624 (2002) ; Allen , 749 N.E.2d at 1178 (holding that issues raised by the petitioner were barred by res judicata ); Martsv. State , 478 N.E.2d 63, 64-65 (Ind. 1985) ("The precise issue, i.e. whether his sentence constituted cruel and unusual punishment in violation of the State and Federal Constitutions, regardless of how it is now phrased, was presented to this Court and determined adversely to his position in his direct appeal. Hence, the issue was not reviewable in a subsequent post-conviction proceeding.") (citations omitted).

[24] To the extent Stidham's claims are based upon improvements since 1994, he is essentially requesting a sentence modification. At the time Stidham filed his petition for post-conviction relief on February 8, 2016, Ind. Code § 35-38-1-17 was titled "Reduction or suspension of sentence," and subsection (k) provided:

This subsection applies to a convicted person who is a violent criminal.[ ] A convicted person who is a violent criminal may, not later than three hundred sixty-five (365) days from the date of sentencing, file one (1) petition for sentence modification under this section without the consent of the prosecuting attorney. After the elapse of the three hundred sixty-five (365) day period, a violent criminal may not file a petition for sentence modification without the consent of the prosecuting attorney.

[25] In his 1993 brief, Stidham asserted that his sentence was unconstitutional, and the Indiana Supreme Court rejected the claim. Accordingly, despite his argument to the contrary, Stidham is essentially requesting a modification of his sentence. See Marts , 478 N.E.2d at 65 ("In the case at bar, however, this Court had previously determined that the sentence was not unconstitutional, Marts v. State , 432 N.E.2d [18, 22 (Ind. 1982) ], the only ground upon which Petitioner claims error; hence, he is clearly requesting a modification, not a correction, of his sentence."). Stidham does not allege that he filed a petition for sentence modification or that he had the consent of the prosecuting attorney. Accordingly, we cannot say that Stidham filed a proper modification of his sentence pursuant to Ind. Code § 35-38-1-17(k) or that the post-conviction court had the authority to modify the sentence. See id. (holding that the post-conviction court had no authority to modify the petitioner's sentence following the time limit in Ind. Code § 35-38-1-17 and "in light of the fact that the Post-Conviction Rules do not provide for modification of a sentence which has been established by the Legislature as appropriate for the offense and which has been found to be constitutional").

[26] For the foregoing reasons, we reverse the post-conviction court's grant of Stidham's petition for post-conviction relief.

[27] Reversed.

Pyle, J., concurs.

May, J., concurs in result with separate opinion.

[28] The doctrine of res judicata undoubtedly performs functions essential to the success of our American legal system, as it prevents repetitious litigation that would keep parties in interminable conflict, bog down our system, and delay or prevent the administration of justice. See , e.g. , Ind. State Ethics Comm'n v. Sanchez , 18 N.E.3d 988, 993 (Ind. 2014) (res judicata 'prevent[s] repetitious litigation of disputes that are essentially the same, by holding a prior final judgment binding against both the original parties and their privies' ") (quoting Becker v. State , 992 N.E.2d 697, 700 (Ind. 2013) ). Nevertheless, our Indiana Supreme Court has also explained:

With due respect for the doctrine of res judicata this Court has always maintained the option of reconsidering earlier cases in order to correct error. "A court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was 'clearly erroneous and would work manifest injustice.' " State v. Lewis (1989), Ind., 543 N.E.2d 1116[ , 1118] (quoting Christianson v. Colt Industries Operating Corp. , 486 U.S. 800, 817, 108 S.Ct. 2166, 2178, 100 L.Ed.2d 811, 831 (1988) ). Finality and fairness are both important goals. When faced with an apparent conflict between them, this Court unhesitatingly chooses the latter.

State v. Huffman , 643 N.E.2d 899, 901 (Ind. 1994).

[29] Our understanding of juvenile offenders and of the factors to consider when determining an appropriate sentence for juveniles have changed greatly in the twenty-five years since seventeen-year-old Stidham received his 141-year sentence:

In holding death sentences and mandatory life without parole sentences for those under the age of eighteen to be unconstitutional, the United States Supreme Court has underpinned its reasoning with a general recognition that juveniles are less culpable than adults and therefore are less deserving of the most severe punishments. See Graham [v. Florida ], 560 U.S. [48,] 68, 130 S.Ct. 2011 [176 L.Ed.2d 825] [2010]. This presumption that juveniles are generally less culpable than adults is based on previous and ongoing " 'developments in psychology and brain science' " which " 'continue to show fundamental differences between juvenile and adult minds' " in, for instance, " 'parts of the brain involved in behavior control.' "
Miller [v. Alabama ], [567 U.S. 460, 471-72,] 132 S.Ct. [2455,] 2464 (quoting Graham , 560 U.S. at 68, 130 S.Ct. 2011 ). The Supreme Court has discerned "three significant gaps between juveniles and adults." Id. First, "[a]s compared to adults, juveniles have a 'lack of maturity and an underdeveloped sense of responsibility.' " Graham , 560 U.S. at 68, 130 S.Ct. 2011 (quoting Roper v. Simmons , 543 U.S. 551, 569, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (quotation omitted) ). Second, "they 'are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure,' " Id. (quoting Roper , 543 U.S. at 569, 125 S.Ct. 1183 ), and "they have limited 'contro[l] over their own environment' and lack the ability to extricate themselves from horrific, crime-producing settings." Miller , 132 S.Ct. at 2464 (alteration in original) (quoting Roper , 543 U.S. at 569, 125 S.Ct. 1183 ). Finally, "a child's character is not as 'well formed' as an adult's ... and his actions [are] less likely to be 'evidence of irretrievabl[e] deprav[ity].' " Id. (alteration in original) (quoting Roper , 543 U.S. at 570, 125 S.Ct. 1183 ). "These salient characteristics mean that '[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.' " Graham , 560 U.S. at 68, 130 S.Ct. 2011 (alteration in original) (quoting Roper , 543 U.S. at 573, 125 S.Ct. 1183 ). Even justices not finding categorical Constitutional violations in these juvenile cases agree with this precept. See Graham , 560 U.S. at 90, 130 S.Ct. 2011 (Roberts, C.J., concurring in the judgment) (" Roper 's conclusion that juveniles are typically less culpable than adults has pertinence beyond capital cases."); Roper , 543 U.S. at 599, 125 S.Ct. 1183 (O'Connor, J., dissenting) ("It is beyond cavil that juveniles as a class are generally less mature, less responsible, and less fully formed than adults, and that these differences bear on juveniles' comparative moral culpability.").
Consistent with the [United States] Supreme Court's reasoning this Court has not been hesitant to reduce maximum sentences for juveniles convicted of murder. In Carter v. State , we reduced to fifty years a fourteen-year-old's maximum sixty-year sentence for the brutal murder of a seven-year-old girl, recognizing among other things his young age. 711 N.E.2d 835, 836-37 (Ind. 1999). In the case of a sixteen-year-old who brutally beat his adoptive parents to death while they slept, we reduced a maximum 120-year sentence to eighty years. Walton v. State , 650 N.E.2d 1134, 1135, 1137 (Ind. 1995). And in Widener v. State , 659 N.E.2d 529, 530 (Ind. 1995), the seventeen-year-old defendant and his two eighteen-year-old cohorts planned to rob a woman as she made a night deposit after work. In executing the crime, the defendant fired multiple shots at the victim, killing her. In the days after the robbery the perpetrators spent the proceeds of their crime at the mall, going to the movies and out to eat. Finding additional mitigating circumstances not recognized by the trial court, we concluded the defendant's seventy-year sentence was manifestly unreasonable and reduced it to an aggregate term of fifty years. Id. at 530-31, 534.
Similar to a life without parole sentence, Brown's 150 year sentence " 'forswears altogether the rehabilitative ideal.' " Miller , 132 S.Ct. at 2465 (quoting Graham , 560 U.S. at 74, 130 S.Ct. 2011 ). Indeed, Brown's sentence essentially " 'means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of the [juvenile] convict, he will remain in prison for the rest of his days.' " Graham , 560 U.S. at 70, 130 S.Ct. 2011 (quoting Naovarath v. State , 105 Nev. 525, 779 P.2d 944, 944 (1989) ).

Brown v. State , 10 N.E.3d 1, 6-8 (Ind. 2014). Thus, were we able to consider the merits of Stidham's argument, it may be that his 141-year sentence is inappropriate in light of his offenses and character.

[30] However, Stidham challenged his sentence on 8th Amendment grounds in his 1993 appellate brief and our Indiana Supreme Court addressed his sentencing arguments. See Stidham v. State , 637 N.E.2d 140, 144 (Ind. 1994). While a court has "the power to revisit prior decisions of its own or of a coordinate court in any circumstance," Huffman , 643 N.E.2d at 901 (quoting Lewis , 543 N.E.2d at 1118 ), we are not a "coordinate court" of our Indiana Supreme Court. Cf . Inferior Court , BLACK'S LAW DICTIONARY (10th ed. 2014) ("Any court that is subordinate to the chief appellate tribunal within a judicial system."). And see , e.g. , American Family Mut. Ins. Co. v. Federated Mut. Ins. Co. , 800 N.E.2d 1015, 1022 (Ind. Ct. App. 2004) ("The trial court is not a coordinate court to this court; thus, it has no power to alter an appellate decision."). Therefore, I am constrained to concur with the majority's determination that the doctrine of res judicata prohibits us from reconsidering the appropriateness of Stidham's sentence.

      Justice Sullivan, with Justice DeBruler concurring, dissented with respect to the sentence. 637 N.E.2d at 144.

      On March 16, 2018, this Court granted the State's motion for stay.

      The State did not include a copy of Stidham's 1993 brief in the record. However, Ind. Evidence Rule 201 provides that we "may judicially notice ... the existence of ... records of a court of this state."

      Ind. Code § 35-38-1-17(d) defines a "violent criminal" as a person convicted of murder.


source: Caselaw Access Project

author: May, Judge.

license: Public Domain

text:
    Jonathan HUMMEL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 75A03-1710-PC-2449
    Court of Appeals of Indiana.
    Filed September 6, 2018
    Appellant Pro Se: Jonathan Hummel, Westville, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, Indiana
   May, Judge.

[1] Jonathan Hummel appeals the trial court's denial of his motion to correct error. Hummel's appeal arises after the appointment of a special judge to hear Hummel's post-conviction relief ("PCR") petition. The special judge first approved an agreement between the State and Hummel that modified Hummel's sentence and called for dismissal of Hummel's PCR petition. Approximately forty-five minutes later, the special judge revoked his approval of the agreement and reinstated Hummel's PCR petition. Hummel filed a motion to correct error from the trial court's reversal of the judgment it had entered in his favor, which the trial court denied, leading to Hummel's notice of appeal.

[2] The State cross-appeals, asserting the denial of Hummel's motion to correct error was not a final, appealable order and, as Hummel did not fulfill the requirements for an interlocutory appeal, this appeal should be dismissed. As to the merits of Hummel's appeal, the State counters the special judge was correct in his determination he did not have the authority to modify the underlying sentence; thus, the special judge did not err when he denied Hummel's motion to correct error.

[3] We reverse and remand.

Facts and Procedural History

[4] On April 23, 2012, Hummel pled guilty pursuant to a plea agreement to Class A felony dealing in a narcotic drug, two counts of Class B felony robbery, and Class D felony criminal mischief under cause number 75C01-1112-FA-16 ("FA-16"). In return the State dismissed all other pending cases. On May 17, 2012, the trial court sentenced Hummel to thirty-one and one-half years, as agreed in the plea agreement.

[5] On December 14, 2015, Hummel filed a petition for PCR. On March 23, 2016, Hummel filed a motion for recusal of judge. On June 16, 2016, the trial court granted that motion and appointed Special Judge Michael Shurn.

[6] On February 24, 2017, at 1:30 p.m., at the evidentiary hearing on Hummel's petition, Hummel and the State indicated they had come to an agreement modifying Hummel's sentence to include Purposeful Incarceration. In exchange, Hummel requested his petition for PCR be dismissed. Special Judge Shurn accepted the agreement and dismissed the PCR. Special Judge Shurn left the court room. At 2:22 p.m., approximately forty-five minutes later, Special Judge Shurn returned to the court room. The parties were still present. Special Judge Shurn informed the parties he had only been appointed to preside over the PCR case and that he did not have the authority to modify the sentence in FA-16. Special Judge Shurn then revoked his approval of the agreement and reinstated Hummel's PCR case.

[7] On March 20, 2017, Hummel filed a motion to correct error alleging Special Judge Shurn did have the authority to accept the agreement between him and the State. In his motion, Hummel argued our Indiana Supreme Court had held that post-conviction courts had the authority to accept agreements made between the State and a petitioner. Hummel amended his motion on April 27, 2017, to add citation to a later case wherein the Court of Appeals held post-conviction courts have discretion to accept or reject an agreement that modifies the sentence in the underlying cause number.

[8] Special Judge Shurn conducted a hearing on June 28, 2017, and granted Hummel's request for ninety more days in which to present additional authority on his motion. Then, on October 6, 2017, Special Judge Shurn conducted a hearing on Hummel's motion to correct error. Hummel was unable to present any additional authority. Hummel stated he "was just under the impression that today you were gonna' go ahead and deny the Motion to Correct Error and then I was gonna' - uh - I got my - uh - Notice of Appeal ready to send to the Court then we were gonna' move on from there." (Tr. Vol. II at 5.) Special Judge Shurn later confirmed, "So, I'm just gonna' show we had a telephonic case management conference today and - on the Motion to Correct Errors and it's denied and then [Hummel is] gonna' appeal." (Id. at 7.)

Discussion and Decision

[9] Hummel argues Special Judge Shurn had the authority to accept the agreement between him and the State. Hummel asks this court to clarify the special judge's authority to accept such agreements and to insist the State be bound by the agreement it made with Hummel.

[10] The State cross-appeals and argues this appeal should be dismissed because the order being appealed is not a final, appealable order and Hummel did not follow the correct procedure to proceed with an interlocutory appeal. The State then argues, as to Hummel's assertions, that Hummel has not presented a cogent argument for appeal; thus, the issue is waived. Waiver notwithstanding, the State argues Special Judge Shurn was correct in his assertion he did not have authority to modify the sentence in FA-16 as his appointment was for only the PCR case.

State's Cross-Appeal

[11] As it could be dispositive, we address the State's cross-appeal first. The State cross-appeals stating Hummel is not appealing from a final appealable order and we should dismiss his appeal.

[12] The post-conviction court entered a final appealable order when it accepted the agreement between the State and Hummel and dismissed Hummel's PCR petition. See Ind. Appellate Rule 2(H)(1) ("A judgment is a final judgment if: (1) it disposes of all claims as to all parties ...."). Then, when the special judge returned to the bench to revoke that acceptance and reinstate the PCR petition, the court invoked its authority to sua sponte move to correct error. See Ind. Trial Rule 59(B) ("The motion to correct error, if any, may be made by the trial court, or by any party."). The court's grant of that motion to correct error was also an appealable final order. See App. R. 2(H)(4) ("A judgment is final judgment if ... it is a ruling on either a mandatory or permissive Motion to Correct Error which was timely filed under Trial Rule 59...."); Ind. Trial Rule 59(F) ("Any modification or setting aside of a final judgment or an appealable final order following the filing of a Motion to Correct Error shall be an appealable final judgment or order."). Thereafter, Hummel filed his own motion to correct error-which our rules permit him to do in this circumstance. See Jackson v. Pempleton , 559 N.E.2d 1193, 1193 (Ind. Ct. App. 1990) (When a "trial court [ ] alter[s], amend[s], or supplement[s] its findings and/or judgment in its ruling on the first motion to correct error, the parties would have [ ] the discretion to file another motion to correct error directed to the changed findings and/or judgment."). Therefore, the order from which Hummel appeals is a final appealable order and is not subject to dismissal on the State's asserted ground.

Hummel's Appeal

Acceptance of Agreement

[13] Hummel appeals the special judge's determination that the special judge did not have authority, within a PCR action, to accept an agreement between a petitioner and the State that modified the petitioner's original sentence. Hummel argues Indiana Supreme Court precedent gives a PCR court the authority to accept such agreements between the State and PCR petitioners. Hummel notes our Indiana Supreme Court explained:

Indiana prosecutors and petitioners for post-conviction relief do resolve post-conviction relief claims on terms that include a sentence different than that imposed at trial (1) prior to adjudication, and (2) after adjudication but prior to resolution on appeal. There are sound policy reasons that our system should permit prosecutors and petitioners for post-conviction relief to agree to resolve post-conviction relief claims, including facilitating resolution of meritorious, difficult-to-defend, and otherwise complex post-conviction issues; making efficient use of limited resources; and promoting judicial economy. To further these policies, we affirm the authority of prosecutors and petitioners for post-conviction relief to agree to resolve post-conviction relief claims on terms that include a sentence different than that imposed at trial; and we affirm the authority of post-conviction courts to accept such agreements.

Johnston v. Dobeski , 739 N.E.2d 121, 123 (Ind. 2000) (footnotes omitted), overruled on other grounds by State v. Hernandez , 910 N.E.2d 213 (Ind. 2009) (overruling Johnston only "[t]o the extent [it] held that a life sentence was indeterminate and that a prisoner serving a life sentence was eligible for consideration for parole"). Based thereon, our Indiana Supreme Court held that where "the administrative branch of government acting through the county prosecutor, as part of an effort to resolve and conclude litigation, sought court approval of an agreement that, among other things, included a sentence different than that imposed at trial" the post-conviction court had the authority to accept that agreement and dismiss the post-conviction petition. Id. at 126. Nearly a decade later, our Indiana Supreme Court "reaffirm[ed] [its] holding in Johnston that the agreement between the prisoner and the county prosecutor was valid." State v. Hernandez , 910 N.E.2d 213, 221 (Ind. 2009).

[14] In Jackson v. State , 958 N.E.2d 1161 (Ind. Ct. App. 2012), reh'g denied, trans. denied , Jackson argued post-conviction proceedings are civil in nature and thus the "post-conviction court had no discretion to deny his proffered agreement[.]" Id. at 1165. However, a panel of our court held that while a post-conviction court has the authority to accept such an agreement, "because a post-conviction proceeding is not the equivalent of a civil proceeding[,]" id. at 1166, the post-conviction court was not required to accept any agreement.

[15] In light of that precedent, we are constrained to hold that a post-conviction court has the authority to accept sentence modification agreements reached by the State and a post-conviction petitioner that call for the dismissal of the post-conviction petition in exchange for a sentence modification. See Johnston , 739 N.E.2d at 126 (holding it to be "within the judicial power to dismiss the [post-conviction] litigation" based on the parties' agreement and "affirming the post-conviction court's acceptance of the 1989 agreement between the State and [petitioner]").

[16] In addition, we note that, in Johnston , after the State and Dobeski reached an agreement that would modify his sentence, the State changed its position and argued the court had no authority to accept the agreement. In response, the Supreme Court said:

[T]he State should be held to the agreement it made with Dobeski in 1989 for the following reasons. First, affirming the agreement furthers as a general matter the interests identified above-facilitating resolution of meritorious, difficult-to-defend, and otherwise complex post-conviction issues; making efficient use of limited resources; and promoting judicial economy. Some if not all of these considerations were undoubtedly at work in this case. Second, as part of the agreement, Dobeski dismissed his claim for post-conviction relief with prejudice. We see reviving this claim now, almost a decade later, highly problematic for all concerned. Third, the original life sentences had been imposed under an indeterminate sentencing regime that expressly provided for later review. Fourth, practice under the indeterminate sentencing system regularly authorized parole from life sentences after periods of time much less than the revised sentence in this case. Fifth, the sentence provided for in the agreement here corresponds to consecutive presumptive terms under the sentencing regime in effect at the time the agreement was approved.

Johnston , 739 N.E.2d at 125-26.

[17] Despite this precedent in favor of Hummel's position, the State argues Special Judge Shurn did not have authority to accept the agreement to modify the sentence in FA-16 but rather only had the authority to grant or deny the relief sought by Hummel in his petition for post-conviction relief. The State's assertion is premised on the fact that special judges are appointed to hear a single case, not to adjudicate the court's entire docket. See Skipper v. State , 525 N.E.2d 334, 335 (Ind. 1988) (noting "distinction between a judge pro tempore and a special judge is that a special judge is appointed for a particular case, whereas a judge pro tempore is appointed to preside over the entire court for a span of time").

[18] However, to accept the State's argument appears to eliminate the possibility that a special judge could ever preside over a PCR action. A PCR action, by its very design, is a collateral attack on the results of a criminal case that arose under a separate cause number. See Ind. Post-Conviction Rule 1. Thus, the presiding judge in a PCR action must have authority to act in such a way that does, in fact, have repercussions for the outcome of a different cause number-in this case, the underlying criminal proceeding. Whether that judge is a special judge or a conventional judge ought not impact that authority. Our Indiana Supreme Court has held a PCR court has the authority to accept agreements presented to it that modify the sentence in the underlying criminal case, see Johnston , and we now hold that the authority vested in the judge presiding over a PCR action must be the same, whether that judge is an elected judge, a judge pro tempore , or a special judge.

[19] Although Special Judge Shurn was appointed to serve on the PCR action, and not the FA-16 case, Special Judge Shurn had the authority as the PCR judge to accept the agreement between the State and Hummel that modified Hummel's sentence in FA-16. Additionally, like with plea agreements, once the agreement was accepted by the court, the parties were bound by the terms of their agreement. See, e.g., Brewer v. State , 830 N.E.2d 115, 118 (Ind. Ct. App. 2005) ("A plea agreement is a contract, binding upon both parties when accepted by the trial court."), trans. denied ; see also Johnston , 739 N.E.2d at 125 (for sound policy reasons, "the State should be held to the agreement it made with [petitioner]"). Therefore, Special Judge Shurn erred when he sua sponte granted his own motion to correct error based on his belief he did not have the authority to accept the agreement reached by the State and Hummel.

Conclusion

[20] As this appeal arose from a final appealable order, we do not grant the State's cross-appeal request that we dismiss Hummel's appeal. Special Judge Shurn had the authority to accept the agreement between the State and Hummel, and the State is bound by the terms of that agreement. Therefore, we reverse the post-conviction court's revocation of its acceptance of the agreement, which also called for dismissal of Hummel's PCR petition. We remand for the post-conviction court to re-enter its original order enforcing the parties' agreement and dismissing Hummel's PCR petition.

[21] Reversed and remanded.

Riley, J., and Mathias, J., concur.

      Ind. Code § 35-48-4-1 (2006).

      Ind. Code § 35-42-5-1 (1984).

      Ind. Code § 35-43-1-2 (2006).

      This petition is not included in the record for review; thus, we do not know the grounds on which Hummel's petition asserted he was entitled to relief.

      Neither the parties nor the record before us indicates whether placement in Purposeful Incarceration was the basis for Hummel's petition for post-conviction relief or merely an ancillary negotiation. Additionally, the transcript for this hearing is not included in the record; thus, we rely on the Chronological Case Summary ("CCS") and the parties' briefs in this recitation of facts. The State and the CCS agree that Purposeful Incarceration was the substance of the agreement between Hummel and the State. Hummel, himself, does not elaborate on the terms of the agreement.

      While we note the State's argument that Hummel did not include either his original petition or the agreement, this does not preclude our review of the merits of this case. The State acknowledges it did make an agreement with Hummel, ostensibly regarding Purposeful Incarceration. As such, we will proceed under the presumption that regardless of the substance of Hummel's petition, the State and Hummel negotiated a mutually satisfactory agreement wherein Hummel's sentence was modified to include the prospect of Purposeful Incarceration.


author: Bailey, Judge.

text:
    Rodney G. PATTERSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-959
    Court of Appeals of Indiana.
    Filed September 14, 2018
    Attorney for Appellant: Jack Quirk, Muncie, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Ian McLean, Supervising Deputy Attorney General, Indianapolis, Indiana
   Bailey, Judge.

Case Summary

[1] Rodney G. Patterson ("Patterson") was brought to trial on several counts. At trial, Patterson pursued an insanity defense, but the jury found him guilty but mentally ill as to the most serious count of Attempted Murder, a Level 1 felony, and guilty of the remaining counts tried to it. Patterson now appeals.

[2] We affirm.

Issues

[3] Patterson presents two issues, which we restate as follows:

I. Whether his insanity defense should have prevailed; and
II. Whether the trial court committed fundamental error in instructing the jury on the insanity defense.

Facts and Procedural History

[4] On the afternoon of September 1, 2017, Patterson spoke with his apartment manager, Tony Ong ("Ong"), who lived a couple of doors down in Muncie. Ong asked Patterson when he would be paying rent that day, and Patterson said that he would see what he could do. Patterson returned to his apartment.

[5] Around 9:00 p.m., Jan Borror ("Borror"), who lived nearby, saw Patterson wearing a closed-faced motorcycle helmet and trench coat, standing still "like a statue" against an exterior wall. Tr. Vol. II at 205. Borror called Ong to tell him about Patterson's behavior. Ong was not very concerned. About thirty minutes later, Ong was inside his apartment when he saw Patterson wearing a motorcycle helmet, peeking in through the storm door. Ong nodded and waved at Patterson, who jerked away. Ong got up, opened the door, and greeted Patterson. Patterson did not respond and turned away. Patterson then turned back and shot Ong in the chest. At that point, Patterson rushed toward the apartment while Ong struggled to get inside. Ong managed to lock the door.

[6] Around this time, a neighbor heard the gunshot and saw Patterson walking away from Ong's apartment. The neighbor yelled out to Patterson, asking about the noise. Patterson looked at the neighbor, then kept walking down the sidewalk and entered his apartment. Both Ong and the neighbor called 9-1-1. Responding officers then formed a perimeter around the building with guns drawn. A police negotiator yelled through a bullhorn speaker, attempting-to no avail-to get Patterson to come out of his apartment. At some point, a gunshot sounded nearby, and law enforcement decided to enter the apartment. Meanwhile, Ong was transported to the hospital and successfully treated.

[7] At the apartment building, a Special Weapons and Tactics ("SWAT") team assembled in a line behind Sergeant Joe Kresja ("Sergeant Kresja"), who was carrying a ballistic shield. The SWAT team approached the apartment, opened the door with a battering ram, and placed a distraction device inside. After the device detonated, the apartment door was pushed closed from inside. Sergeant Kresja pushed back on the door, entered the apartment, and saw Patterson by the doorframe. When the SWAT team entered, Patterson was wearing a motorcycle helmet with the visor closed, and his hands were stuffed inside his jacket pockets. Sergeant Kresja ordered Patterson to get down, but Patterson did not comply. A struggle ensued, with three officers attempting to handcuff Patterson, who was pushing his hands into his jacket pockets. During the struggle, officers removed a 9mm Taurus firearm from a holster on Patterson's hip. Officers eventually subdued and handcuffed Patterson, who had a 9mm Hi-Point firearm in his left jacket pocket, and two knives attached to his belt.

[8] A search of the apartment produced two identification cards: one issued to Rodney Patterson and another to Kenan Abraman, an alias. The search also produced a receipt showing a transaction the afternoon of the shooting. The receipt, together with firearm transaction records, indicated that Patterson had purchased the Taurus and the Hi-Point earlier that day, under the name Kenan Abraman. In the same transaction, Patterson had purchased ammunition. He also gave untruthful answers in completing a form to obtain the firearms, failing to disclose a prior felony conviction and previous mental health commitments.

[9] The State charged Patterson with (1) Attempted Murder, a Level 1 felony; (2) Unlawful Possession of a Firearm by a Serious Violent Felon, a Level 4 felony; (3) Criminal Recklessness, as a Level 5 felony; and Resisting Law Enforcement, as a Class A misdemeanor. Patterson filed a Suggestion of Insanity, and the trial court ordered that Patterson be evaluated by Dr. Frank Krause ("Dr. Krause") and Dr. Craig Buckles ("Dr. Buckles"). After the court held a competency hearing and determined Patterson was competent to stand trial, a jury trial commenced on February 20, 2018. At trial, there was evidence that Patterson suffered from mental health issues: "schizoaffective disorder, bipolar type[;] antisocial personality disorder [;] and some chemical dependence issues." Tr. Vol. IV at 58. There was also conflicting evidence concerning Patterson's sanity at the time of the offenses: Dr. Krause opined that Patterson had been insane while Dr. Buckles opined that Patterson had been sane.

[10] The jury was instructed on the insanity defense as well as the consequences of finding Patterson "not responsible by reason of insanity" or, alternatively, "guilty but mentally ill." App. Vol. III at 121. The jury ultimately rejected Patterson's insanity defense, finding him guilty but mentally ill with respect to Attempted Murder, and guilty of Criminal Recklessness and Resisting Law Enforcement. The jury further found that Patterson had possessed a firearm.

[11] The trial court vacated the count related to possessing a firearm, as "the State could not proceed to phase two of the trial on that charge." Tr. Vol. IV at 205. The court also vacated the Criminal Recklessness count because of double jeopardy concerns. On the remaining counts, the trial court imposed a forty-year sentence for Attempted Murder and a concurrent one-year sentence for Resisting Law Enforcement, to be executed in the Indiana Department of Correction. The trial court recommended that Patterson be placed in a correctional facility with a specialized unit offering mental health treatment.

[12] Patterson now appeals.

Discussion and Decision

Insanity Defense

[13] "A person may be convicted of an offense only if his guilt is proved beyond a reasonable doubt." I.C. § 35-41-4-1(a). However, "the burden of proof is on the defendant to establish the defense of insanity ... by a preponderance of the evidence." I.C. § 35-41-4-1(b). Thus, "[a] defendant claiming the insanity defense should have prevailed at trial faces a heavy burden because he or she 'is in the position of one appealing from a negative judgment.' " Galloway v. State , 938 N.E.2d 699, 709 (Ind. 2010) (quoting Thompson v. State , 804 N.E.2d 1146, 1149 (Ind. 2004) ). When reviewing such a claim, "we will reverse only when the evidence is without conflict" and leads to a single conclusion: "that the defendant was insane when the crime was committed." Thompson , 804 N.E.2d at 1149. In conducting our review, we "will not reweigh evidence, reassess witness credibility, or disturb reasonable inferences made by the trier of fact." Myers v. State , 27 N.E.3d 1069, 1074 (Ind. 2015) (quotation marks omitted). We will instead "consider only the evidence most favorable to the judgment and the reasonable and logical inferences to be drawn therefrom." Satterfield v. State , 33 N.E.3d 344, 348 (Ind. 2015) (quotation marks omitted).

[14] Indiana Code Section 35-41-3-6 sets forth the defense of insanity:

(a) A person is not responsible for having engaged in prohibited conduct if, as a result of mental disease or defect, he was unable to appreciate the wrongfulness of the conduct at the time of the offense.
(b) As used in this section, "mental disease or defect" means a severely abnormal mental condition that grossly and demonstrably impairs a person's perception, but the term does not include an abnormality manifested only by repeated unlawful or antisocial conduct.

[15] In challenging the rejection of his defense, Patterson asserts that "[t]he State has the burden of proving sanity beyond a reasonable doubt." Appellant's Br. at 14. However, the Indiana Supreme Court has rejected this proposition. See Thompson , 804 N.E.2d at 1149 (explaining that "[t]he State must prove the offense, including mens rea , beyond a reasonable doubt but need not disprove insanity"). Patterson also focuses on favorable evidence that would support a determination of insanity. Yet, the evidence on this issue is not without conflict. Rather, the evidence included-inter alia -testimony from Dr. Buckles who opined that although Patterson suffered from mental illness he "should have been able to understand that it was wrong for him to shoot another person." Tr. Vol. IV at 64. In light of conflicting evidence, we cannot say that the jury's rejection of the insanity defense was contrary to law.

Jury Instructions

[16] Patterson did not object to the jury instructions. Thus, he may now obtain relief only by demonstrating fundamental error, see Pattison v. State , 54 N.E.3d 361, 365 (Ind. 2016), which occurs "when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process," Lewis v. State , 34 N.E.3d 240, 246 (Ind. 2015) (quotation marks omitted).

[17] Patterson briefly argues that the trial court committed fundamental error by using the phrase "not responsible by reason of insanity" in the jury instructions. See App. Vol. III at 115, 121. According to Patterson, the language "not responsible" poses a "substantial potential for harm" in that it "suggests that the Defendant will suffer no consequences if found 'not responsible' and this is a denial of due process because it creates ... improper conclusions" concerning "the Defendant's future." Appellant's Br. at 16. Patterson asserts that the phrase should instead be "not guilty by reason of insanity." Id.

[18] Yet, the trial court expressly instructed the jury on the consequences of finding Patterson not responsible by reason of insanity:

If the Defendant is found not responsible by reason of insanity at the time of the crime, the prosecuting attorney will file a petition for mental health commitment with the court. The court will hold a mental health commitment hearing at the earliest opportunity. The Defendant will be detained in custody until the completion of the hearing. If the court finds that the Defendant is mentally ill and either dangerous or gravely disabled, then the court may order the Defendant to be either placed in an outpatient treatment program of not more than ninety (90) days, or committed to an appropriate mental health facility until a court determines commitment is no longer needed.

App. Vol. III at 121. Thus, there was no substantial risk that the jury would, as Patterson suggests, believe that he would "suffer no consequences if found 'not responsible.' " Appellant's Br. at 16. We are therefore not persuaded that Patterson was deprived of due process because of the challenged instruction.

[19] Affirmed.

Mathias, J., and Bradford, J., concur.

      Ind. Code §§ 35-42-1-1, 35-41-5-1(a).

      I.C. § 35-47-4-5(c).

      I.C. § 35-42-2-2(a), -2(b)(2).

      I.C. § 35-44.1-3-1(a)(1).


author: Friedlander, Senior Judge.

text:
    C.S., JR., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
    Court of Appeals Case No. 18A-JV-862
    Court of Appeals of Indiana.
    FILED September 19, 2018 Rehearing Denied November 29, 2018
    Attorney for Appellant: Nancy A. McCaslin, McCaslin & McCaslin, Elkhart, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Laura R. Anderson, Deputy Attorney General, Indianapolis, Indiana
   Friedlander, Senior Judge.

[1] On December 11, 2017, Elkhart police officers encountered C.S., Jr. after responding to a report of gunshots. During this encounter, C.S., Jr. turned his back on the officers, reached into his waistband, removed a loaded 9mm firearm, and placed the firearm on the ground. The officers found a spent 9mm casing and a live 9mm round on the ground nearby.

[2] On December 18, 2017, the State filed a delinquency petition alleging that C.S., Jr. was delinquent for committing what would be Class A misdemeanor dangerous possession of a firearm if committed by an adult. The next day, C.S., Jr. admitted to the allegation. The juvenile court adjudicated him delinquent and ordered that he be made a temporary ward of the Department of Correction ("DOC") for completion of a diagnostic evaluation. The juvenile court further ordered that upon completion of the evaluation, C.S., Jr. would return to the juvenile detention center pending an additional hearing regarding disposition.

[3] Residential placement was recommended after completion of the diagnostic evaluation. A DOC facility psychologist also completed a psychological evaluation and recommended residential placement. In making this recommendation, the psychologist noted C.S., Jr.'s previous failures at home-based programming. The psychologist opined that C.S., Jr. required more structured monitoring than home-based services could provide given his recent suicide attempt and "rather violent history." Appellant's App. Vol. 2, p. 70.

[4] In addition to the diagnostic and psychological examinations, the probation department considered that, while in the juvenile detention center prior to being sent to the DOC for his evaluation, C.S., Jr. had attempted to commit suicide and displayed aggressive behavior. It also considered that C.S., Jr. had informed a social worker that he hated being in the juvenile detention center and was "going to make the staff's life miserable." Id. at 48. The social worker noted that he believed residential care was the least restrictive option and there were few alternatives for C.S., Jr.'s placement. The probation department investigated residential placements, ultimately recommending placement in the DOC.

[5] During a March 6, 2018 hearing, the juvenile court heard evidence supporting the probation department's recommended disposition. C.S., Jr. appeared at this hearing via video conference from the juvenile detention center. At the end of the hearing, the juvenile court committed C.S., Jr. to the DOC.

[6] C.S., Jr. raises two issues on appeal. First, he argues that the juvenile court abused its discretion by committing him to the DOC. Second, he argues that the juvenile court erred by having him appear at the March 6, 2018 hearing via video conference.

1. Disposition

[7] The choice of a specific disposition of a juvenile adjudicated a delinquent child is within the sound discretion of the juvenile court, subject to the statutory considerations of the welfare of the child, the community's safety, and the Indiana Code's policy of favoring the least harsh disposition. A juvenile disposition will not be reversed absent a showing of an abuse of discretion. An abuse of discretion occurs when the trial court's action is clearly erroneous and against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.

E.H. v. State , 764 N.E.2d 681, 684 (Ind. Ct. App. 2002) (internal citations omitted), trans. denied .

[8] Generally, Indiana Code section 31-37-18-6(1)(A) (1997) requires that a juvenile court enter a dispositional decree that is "in the least restrictive (most family like) and most appropriate setting available." Section 31-37-18-6, however, "requires placement in the least restrictive setting only 'if consistent with the safety of the community and the best interest of the child.' " J.S. v. State , 881 N.E.2d 26, 29 (Ind. Ct. App. 2008) (quoting Ind. Code § 31-37-18-6 ) (emphasis added). "Thus, the statute recognizes that in certain situations the best interest of the child is better served by a more restrictive placement." J.S. , 881 N.E.2d at 29.

[9] In this case, the team that completed C.S., Jr.'s diagnostic evaluation, a DOC psychologist, and a social worker all recommended residential placement. In addition to evidence that C.S., Jr. was found in possession of a loaded firearm, the recommendations were based, at least in part, on evidence indicating that C.S., Jr. had displayed a pattern of suicidal tendencies and a history of violent and delinquent behavior. He had frequently abused drugs and alcohol and had been suspended from school more than twenty times and expelled twice. He had failed to positively respond to prior opportunities for rehabilitation. He had also displayed a general lack of respect for authority figures.

[10] The recommendations of the service providers, coupled with the probation department's opinion that C.S., Jr. was too great a risk for community placement, support the juvenile court's disposition. As such, we conclude that the juvenile court did not abuse its discretion in committing C.S., Jr. to the DOC.

2. Appearance Via Video Conference

[11] The nature of the juvenile process is rehabilitation and aid to the juvenile to direct his behavior so that he will not later become a criminal. For this reason the statutory scheme of dealing with minors is vastly different than that directed to an adult who commits a crime. Juvenile judges have a variety of placement choices for juveniles who have delinquency problems.... None of these commitments are considered sentences .

Jordan v. State , 512 N.E.2d 407, 408 (Ind. 1987) (emphasis added).

[12] C.S., Jr. argues that the juvenile court erred by having him appear at the March 6, 2018 hearing via video conference because he did not sign a written waiver of his right to appear at the hearing in person. In support, he cites to the Indiana Supreme Court's opinion in Hawkins v. State , which establishes that a criminal defendant has a right to be "personally present" at sentencing and that a trial court "may conduct a sentencing hearing at which the defendant appears by video, but only after obtaining a written waiver of his right to be present and the consent of the prosecution." 982 N.E.2d 997, 1002-03 (Ind. 2013) (discussing Ind. Code § 35-38-1-4(a) & Ind. Admin. R. 14(A)(2)(c) ). C.S., Jr.'s reliance on Hawkins , however, is misplaced.

[13] Unlike the defendant in Hawkins , C.S., Jr. was not a criminal defendant appearing before the court for a sentencing hearing. C.S., Jr. was a delinquent child appearing before the juvenile court for a modification hearing. Given the Indiana Supreme Court's express statement that commitment of a delinquent child is not considered a sentence, Jordan , 512 N.E.2d at 408, we conclude that the rules relating to the sentencing of criminal offenders do not apply. Rather, we look to the statutes relating to juvenile delinquency proceedings.

[14] Indiana Code section 31-37-18-1.3 (2007) requires that a delinquent child be given notice of and an opportunity to be heard during a dispositional hearing. Nothing in the statute, however, requires that the delinquent child be physically present for either a dispositional or modification hearing. C.S., Jr. does not claim that he was not given adequate notice of the March 6, 2018 hearing. The record clearly demonstrates that he participated in the hearing via video conference. We conclude that C.S., Jr.'s presence via video conference was sufficient to satisfy the requirements of Indiana Code section 31-37-18-1.3.

[15] Judgment affirmed.

Pyle, J., and Altice, J., concur.


text:
    IN RE the Matter of B.V., Minor Child, and D.V., Mother, Appellant-Respondent, v. The Indiana Department of Child Services, Appellee-Petitioner.
    Court of Appeals Case No. 18A-JC-988
    Court of Appeals of Indiana.
    FILED September 27, 2018
    Attorney for Appellant: Leanna Weissmann, Lawrenceburg, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, Indiana
   Brown, Judge.

[1] D.V. ("Mother") appeals the trial court's order determining that B.V. is a child in need of services ("CHINS"). Mother raises one issue which we revise and restate as whether the evidence is sufficient to support the court's determination that B.V. is a CHINS. We reverse.

Facts and Procedural History

[2] On November 10, 2017, Mother gave birth to B.V. That month, the Department of Child Services ("DCS") filed a petition alleging that B.V. was a CHINS. The petition also alleged that both Mother and B.V. tested positive for THC, staff at the hospital reported concerns for Mother's mental health, Mother admitted to being diagnosed with bipolar disorder and not taking medication for treatment, and Mother was living with a known drug user.

[3] On November 15, 2017, the court held a hearing at which Mother denied the allegations and asserted that she never yelled at her baby and that she was diagnosed with a mood swing disorder and not bipolar disorder. Family Case Manager Erin Tomlinson testified that Mother at one point, while she was nursing B.V., said: "Ow, you bit me you stupid f------ child." Transcript Volume II at 16. She testified that Mother admitted to regularly smoking marijuana during her pregnancy while knowing the effects that marijuana can have on a child, and to smoking marijuana when B.V. was in the home. She testified that DCS had concerns about Mother's present living situation because she was living with Kevin Ruble in an apartment where Ruble was on home detention for previous drug charges and, when case managers and law enforcement arrived at the home for the detention, they detected a strong odor of marijuana in the home. She testified that B.V. was placed in a foster home. After some discussion, the court stated "I'm going to be safe than sorry with a five-day old baby." Id. at 23.

[4] On March 8, 2018, the court held a hearing. Mother testified that she was living with her ex-boyfriend, Ruble, in November 2015, and subsequently began staying with her mother and grandmother before obtaining her own apartment two months before the hearing. She testified that she was no longer with Ruble and that she lived with Anthony Hubbard periodically for "a month or so." Id. at 31. She testified that she provided DCS or her caseworker with her current address, and that she was employed at McDonald's for "maybe two and a half weeks" and had previously worked at OSO and "Valleyo (phonetic)." Id. at 33-34. She testified that she agreed to participate in services and had an assessment in which it was recommended that she attend drug classes once a month. She stated that she called DCS every day to determine if she was on the drug screen list, that she was tested maybe two or three times a week, and that she had been visiting B.V. regularly. On cross-examination, Mother testified that she had been receiving clean drug screens for three months, that she had the support of her family, and that she felt she was able to stay free of THC or any other drug.

[5] Family Case Manager Chelsea Morgan ("FCM Morgan") testified that Mother calls about every five days which is concerning because there are certain drugs that would be out of her system within three to five days, but that Mother had generally tested negative on the screens. FCM Morgan testified that she did not receive Mother's address until February. When asked if DCS had concerns regarding Mother's present housing because DCS had not been able to see it, she answered:

"No, I don't have concerns, specifically for that. No." Id. at 55. DCS's attorney asked: "So is [DCS] okay with her apartment given her testimony, or does the department wish ...." Id. FCM Morgan answered: "We would like to go look at her house. Yes, we [are] concerned. I didn't understand." Id. On cross-examination, FCM Morgan acknowledged that she had Mother's correct address on February 7th but had not been to Mother's home since then, and that Mother called in fifteen times since December. She acknowledged that Mother completed her assessment at Centerstone, had been regularly visiting with B.V., and that reports from visitation had been positive.

[6] Rodney Fischer, the visit supervisor, testified that Mother did very well during the two two-hour visits per week with B.V., that she was "a loving doting mom," that she always appeared at every visit with a full diaper bag with everything needed, and that "she took good care of him." Id. at 62-63. He also testified that Mother was concerned about dirt under B.V.'s fingernails, pointed out that B.V. was being transported in an expired car seat, and provided a different car seat to transport him.

[7] Mother testified that there were a few times she did not call in "not because I didn't want to take a drug screen, but for the fact that I worked a lot and I was tired." Id. at 67. She testified that she never refused a drug screen, was willing to take a drug screen, and had been passing the screens for several months. She also testified that she did not feel like she needed services from Centerstone and would be able to go there to obtain services on her own if she felt like she needed help.

[8] The trial court stated:

So the issue today is if this child is [in] need of services, and I - as I sit here today I could make a finding that the child's in need of services based on where we started, and you know, the lack of her residency, the lack of a job, the testing positive for THC, people living in the home, a lot of those things have been alleviated. So I mean I could say that the child's not in need of services as well, because she's done a lot of things to remedy the situation.
I think there's a middle ground here that I'd like to explore, which is an in-home CHINS, just simply because I still think what I've heard is several short-term jobs. Not having had housing of her own for a long period of time. You know with a child this age short-term jobs don't work because you lose your housing, and having housing consistently is very important.
You know I haven't seen enough that I'm a hundred percent comfortable that we're a hundred - we're all the way there yet. But I do think that I don't see the dangers to the child that I saw when the child was detained either.
Mr. Ruble's no longer in the home. We do have residency, we have employment. She has to a great extent cooperated with the department, I think she would continue to do that if the child was in her home and being cared for [by] her. But I do think that, you know, she's young, the child's young, and a lot of things that are - that she's doing are in the right direction, but could easily slide backward, and that's why I think that a CHINS would be appropriate just to make sure that the drug - being drug free is consistent, being with a job is consistent, being with housing is consistent.

Id. at 69-70. On March 20, 2018, the court entered an order finding B.V. to be a CHINS.

[9] On March 27, 2018, the court held a dispositional hearing. FCM Morgan testified that B.V. was placed with Mother. She also testified that DCS had filed a petition for parental participation including that Mother participate in home-based casework, maintain stable housing, and undergo random drug screens and a psychological evaluation. When asked the point of the psychological evaluation at that time, FCM Morgan answered:

So a psychological evaluation is in there due to concerns with parenting and mental health and that basically would determine if there were any additional underlying mental health needs that weren't being addressed in therapy, that - when those were presented to the therapist, the therapist could address those things.

Id. at 82.

[10] On April 4, 2018, the court entered a Dispositional Order and ordered Mother to participate in a treatment program or pay for services consistent with the recommendation of DCS, including that she contact the family case manager every week, allow the family case manager or other service providers to make unannounced visits to the home of the child, and participate in home-based casework through Healthy Families. Mother was ordered to maintain suitable housing, and a legal and stable source of income, submit to random drug screens, obtain a substance abuse assessment if she tests positive, and ensure that B.V. is properly clothed, fed, supervised, and will become engaged in a home-based counseling program.

Discussion

[11] The issue is whether the evidence is sufficient to support the court's determination that B.V. is a CHINS. Mother argues that the evidence is insufficient to determine that B.V. is a CHINS. DCS agrees and requests this Court to reverse.

[12] In reviewing a trial court's determination that a child is in need of services, we neither reweigh the evidence nor judge the credibility of witnesses. In re S.D. , 2 N.E.3d 1283, 1286-1287 (Ind. 2014), reh'g denied. Instead, we consider only the evidence that supports the trial court's decision and reasonable inferences drawn therefrom. Id. at 1287. As to issues covered by findings, we apply the two-tiered standard of whether the evidence supports the findings and whether the findings support the judgment. Id. We review remaining issues under the general judgment standard, under which a judgment will be affirmed if it can be sustained on any legal theory supported by the evidence. Id.

[13] The Indiana Supreme Court has cautioned that "[n]ot every endangered child is a child in need of services, permitting the State's parens patriae intrusion into the ordinarily private sphere of the family." Id. DCS alleged that B.V. was a CHINS pursuant to Ind. Code § 31-34-1-1, which provides:

A child is a child in need of services if before the child becomes eighteen (18) years of age:
(1) the child's physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child's parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision; and
(2) the child needs care, treatment, or rehabilitation that:
(A) the child is not receiving; and
(B) is unlikely to be provided or accepted without the coercive intervention of the court.

[14] The Indiana Supreme Court has interpreted this provision to require "three basic elements: that the parent's actions or inactions have seriously endangered the child, that the child's needs are unmet, and (perhaps most critically) that those needs are unlikely to be met without State coercion." In re S.D. , 2 N.E.3d at 1287.

[15] Additionally, DCS alleged that B.V. was a CHINS pursuant to Ind. Code § 31-34-1-10, which provides:

Except as provided in sections 12 and 13 of this chapter, a child is a child in need of services if:
(1) the child is born with:
* * * * *
(C) any amount, including a trace amount, of a controlled substance, a legend drug, or a metabolite of a controlled substance or legend drug in the child's body, including the child's blood, urine, umbilical cord tissue, or meconium; and
(2) the child needs care, treatment, or rehabilitation that:
(A) the child is not receiving; or
(B) is unlikely to be provided or accepted without the coercive intervention of the court.

[16] As noted, DCS agrees with Mother that reversal is required. Specifically, it states there is no evidence that Mother had any difficulty in meeting B.V.'s needs and that there were no findings that B.V. had any unmet needs. It asserts that the trial court's only concern was that Mother was young and could backslide, which does not satisfy the statutory dictates. DCS concedes that there was no evidence that Mother's marijuana use ever harmed B.V. and her visitation supervisor thought Mother did very well at visits and was loving and doting. Based upon DCS's agreement that reversal is required as well as our review of the record, we reverse the court's determination that B.V. was a CHINS. See In re S.M. , 45 N.E.3d 1252, 1256-1257 (Ind. Ct. App. 2015) (observing that there was "no evidence in the record showing how, specifically, marijuana-positive meconium endangered the child," finding that the evidence was insufficient to support the CHINS determination, and stating: "We are well aware that DCS and the courts are overwhelmed with the growing numbers of CHINS cases statewide. All would be better served if the system focused its time, efforts, and resources on the families who really need them. This one did not."); see also Ad.M. v. Ind. Dep't of Child Servs. , 103 N.E.3d 709, 714 (Ind. Ct. App. 2018) ("Following In re S.M. , without any specific evidence that the marijuana itself or Mother's use of it presented a serious danger to the Children, we must conclude that the DCS failed to present sufficient evidence to support the CHINS determination.").

Conclusion

[17] For the foregoing reasons, we reverse the trial court's CHINS determination.

[18] Reversed.

Altice, J., and Tavitas, J., concur.


author: Bradford, Judge.

text:
    In the MATTER OF: T.T. and M.M., Children in Need of Services:
    C.Y. (Mother), Appellant-Respondent, v. The Indiana Department of Child Services, Appellee-Petitioner.
    Court of Appeals Case No. 18A-JC-1216
    Court of Appeals of Indiana.
    FILED October 10, 2018
    Attorney for Appellant: Carlos I. Carrillo, Greenwood, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, David E. Corey, Deputy Attorney General, Indianapolis, Indiana
   Bradford, Judge.

Case Summary

[1] C.Y. ("Mother") appeals from the juvenile court's determination that T.T. and M.M. (collectively, "the Children") are children in need of services ("CHINS"). Mother contends that the juvenile court erred in denying her motion to dismiss the CHINS petitions filed by the Indiana Department of Child Services ("DCS"), which motion was made on the ground that the factfinding hearing was not completed within the statutorily-mandated timeframe. Because we agree, we reverse the judgment of the juvenile court and remand with instructions to dismiss the CHINS petitions without prejudice.

Facts and Procedural History

[2] DCS became involved with the Children after receiving reports that Mother had been arrested following a domestic disturbance involving M.M.'s father. On August 17, 2017, DCS filed petitions alleging the Children to be CHINS. The juvenile court began a factfinding hearing on October 6, 2017. After the parties waived the initial sixty-day time limitation set forth in Indiana Code section 31-34-11-1(a) and consented to an additional sixty days to complete the hearing, the factfinding hearing was continued to November 7, 2017. On November 7, 2017, the factfinding hearing was continued at DCS's request. The juvenile court rescheduled the factfinding hearing for January 3, 2018.

[3] At the start of the January 3, 2018 hearing, Mother moved to dismiss the proceedings, arguing that the factfinding hearing had not been completed within the statutorily-mandated time following the filing of the CHINS petitions. The juvenile court denied Mother's motion to dismiss and completed the factfinding hearing. On March 7, 2018, the juvenile court found the Children to be CHINS. On April 13, 2018, the juvenile court entered a dispositional order and parental participation decree for M.M. and dismissed T.T.'s case.

Discussion and Decision

[4] Mother contends that the juvenile court erred in denying her motion to dismiss pursuant to Indiana Code section 31-34-11-1, which provides, in relevant part, as follows:

(a) Except as provided in subsection (b), unless the allegations of a petition have been admitted, the juvenile court shall complete a factfinding hearing not more than sixty (60) days after a petition alleging that a child is a child in need of services is filed in accordance with IC 31-34-9.
(b) The juvenile court may extend the time to complete a factfinding hearing, as described in subsection (a), for an additional sixty (60) days if all parties in the action consent to the additional time.
* * * *
(d) If the factfinding hearing is not held within the time set forth in subsection (a) or (b), upon a motion with the court, the court shall dismiss the case without prejudice.

(Emphasis added). We recently interpreted this statute, concluding "there is no longer any reason to believe that the General Assembly intends [the statute] to mean anything other than what its clear language indicates, i.e. , that a factfinding hearing shall be completed within" the statutorily-mandated timeframe and failure to do so "is grounds for dismissal." Matter of J.R. , 98 N.E.3d 652, 655 (Ind. Ct. App. 2018) (emphases in original). We further concluded that "if we were to allow the deadline to be ignored here, trial courts could habitually set these matters outside the time frame and there would be no consequence whatsoever." Id.

[5] The parties agree that the 120-day deadline for concluding the factfinding hearing was December 17, 2017. DCS argues, however, that dismissal was not necessary because (1) it did not believe that Indiana Code section 31-34-11-1 created "a hard and fast deadline" and (2) Mother waived her objection by agreeing to the continuance. Tr. Vol. II p. 68. Contrary to DCS's argument, we believe that the General Assembly clearly intends for the timeframe set forth in Indiana Code section 31-34-11-1 to be a certain deadline. Further, while subsection (a) provides that the parties may waive the initial 60-day deadline by agreeing to a continuance, subsection (b) does not include any such provision. This lack of allowance for an additional extension of time indicates that the General Assembly intends to require that a factfinding hearing must be completed within 120 days of the filing of a CHINS petition regardless of any act or agreements of the parties. To allow the parties to agree to dates beyond the maximum 120-day limit would thwart the legislative purpose of timely rehabilitation and reunification of families that are subject to CHINS proceedings. Consequently, we reverse the judgment of the juvenile court and remand with instructions to dismiss the CHINS petitions without prejudice.

[6] We reverse the judgment of the juvenile court and remand with instructions.

Bailey, J., and Mathias, J., concur.

      Mother raises numerous alternative contentions, however, because we find her contention relating to the denial of her motion to dismiss to be dispositive, we need not consider these alternative contentions.

      Should DCS refile, it "would not be able to rely solely on the evidence that was admitted at the original CHINS factfinding; it would have to also submit new evidence" regarding the current conditions. See Matter of J.R. , 98 N.E.3d at 655 (internal quotation omitted). It seems unlikely that DCS would do so, however, given that DCS sought to dismiss the CHINS proceedings for T.T. and DCS Family Case Manager Kourtney Wheeler admitted during the dispositional hearing that she no longer had any concerns about M.M.'s safety and believed that M.M. should be returned to Mother's care.