source: Caselaw Access Project

author: RILEY, Judge.

license: Public Domain

text:
    In the Matter of R.S. (Minor Child), Child in Need of Services, and S.S. (Mother) & B.M. (Father), Appellants-Respondents, v. The Indiana Department of Child Services, Appellee-Petitioner.
    No. 02A05-1208-JC-422.
    Court of Appeals of Indiana.
    April 30, 2013.

      Jennifer M. Young, Denis L. Koehlinger, Fort Wayne, IN, Attorneys for Appellants.
    Mitch Gerber, Fort Wayne, IN, Robert J. Henke, DCS Central Administration, Indianapolis, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellants-Respondents, S.S. (Mother) and B.M. (Father), (Collectively, Parents), appeal the trial court’s determination that their infant daughter, R.S. (R.S.), is a child in need of services (CHINS).

We reverse.

ISSUE

Parents raise one issue, which we restate as: whether there is sufficient evidence to support the trial court’s determination that R.S. is a CHINS.

FACTS AND PROCEDURAL HISTORY

In the spring of 2011, the Allen County Department of Child Services (DCS) filed petitions to terminate the parental relationship between Parents and their three minor children, three-year-old S.S., two-year-old A.M., and one-year-old S.M. Hearings on the petitions were held in September, October, November, and December 2011. Testimony at the hearings revealed that S.S., A.M., and S.M. are all special needs children who require occupational, physical, speech, and developmental therapies. The evidence also revealed that Parents did not have adequate housing or financial resources to care for their three children. In addition, Parents did not complete court-ordered educational and therapeutic treatment programs to address their low cognitive functioning and personality disorders. They also had elevated scores on the Child Abuse Potential Inventories. The trial court issued orders granting the petitions to terminate the Parents’ rights to their three children on March 12, 2012.

One month later, on April 26, 2012, Mother gave birth to R.S. The following day, before Mother and R.S. were discharged from the hospital, DCS removed R.S. from Parents based solely on the family’s past history and evidence given during the termination hearings of the three children. On May 24, 2012, DCS filed a petition alleging that R.S. was a CHINS. All allegations in the petition related to Parents’ history with S.S., A.M. and S.M. There were no specific factual allegations that R.S. needed care that she was not receiving.

The trial court held a hearing on the petition in June 2012. All DCS case workers and supervisors testified that R.S. was removed from Parents based solely on the family’s history before R.S.’s birth. Further testimony revealed that R.S. was healthy and tested negative for drugs at birth. Mother receives approximately $700 per month in social security disability benefits, and Father is now making minimum wage. Following the termination of their parental relationships with S.S., A.M., and S.M., Parents moved out of the large home they had for themselves and their three children and moved into a hotel for two weeks while they waited for their current residence to become available. They now share the $315 per month bill for rent, gas, and water, and have enough money left over to purchase adequate food, clothing, and other necessities for their daughter.

Dining visits with R.S., Parents appropriately fed, interacted with, and nurtured R.S. A DCS Investigator testified that the Parents’ residence is clean and appropriate for R.S. Parents have adequate formula, diapers, and clothing for R.S. R.S.’s foster mother testified that she has observed Parents with R.S. and has not seen any behavior that concerns her. A DCS case worker testified that before R.S. was born, Father was accused of, but not charged with, molesting a child that lived in Parents’ home. DCS substantiated the allegations, and Father was appealing the substantiation at the time of the hearing. Father also has a 2011 misdemeanor conviction for public indecency for wearing his pants too low. Mother has a 2012 theft conviction.

Although Mother suffers from a personality disorder, post-traumatic stress, and a learning disability, she discontinued her medication during her pregnancy with R.S. because she was worried about her baby’s health. At the time of the hearing, Mother had a medical appointment scheduled so that she could resume taking her medication.

When asked why she thought she was in a better position to parent now than she had been in the past, Mother responded as follows:

Because, um, I’ve learn[ed] from my past. I know I messed up in the past. And now since I feel and I know that I’m stable. I have everything I need for her and I know I can do this. I can raise my child.

(Transcript p. 88). Following the hearing, on June 20, 2012, the trial court issued an order adjudicating R.S. to be a CHINS. The order provides in relevant part as follows:

1. The court may rely on an historic pattern of a parent’s behavior in determining whether a child is in need of services....
6. Given the close proximity of time from which their parental rights to other children were terminated and that fact that most other significant reasons for which the termination order was entered have not been corrected, this court finds and concludes that the child’s physical and and/or mental condition is seriously impaired or at risk as a result of the parents’ inability to provide the child with the necessary shelter and supervision.

Parents now appeal. We will provide additional facts when necessary.

DISCUSSION AND DECISION

The Due Process Clause of the Fourteenth Amendment to the United States Constitution protects the fundamental rights of parents in directing the care, custody, and control of their children. In re T.H., 856 N.E.2d 1247, 1250 (Ind.Ct. App.2006). However, these rights are limited, and the State has the authority under its parens patriae power to intervene when necessary to protect the health and safety of children. Id.

The purpose of a CHINS adjudication is to protect children rather than to punish parents. In re N.E., 919 N.E.2d 102, 106 (Ind.2010). To that end, a juvenile court need not wait until a tragedy occurs to intervene. In re A.H., 913 N.E.2d 303, 305 (Ind.Ct.App.2009).

Here, Parents’ sole argument is that there is insufficient evidence to support the trial court’s CHINS determination with respect to R.S. Because the juvenile court entered findings of fact and conclusions of law, we apply a two-tiered standard of review. Parmeter v. Cass County Department of Child Services, 878 N.E.2d 444, 450 (Ind.Ct.App.2007). We first consider whether the evidence supports the factual findings and then whether the findings support the judgment. Id. While we defer substantially to findings of fact, we do not do so to conclusions of law. Id. DCS has the burden of proving by a preponderance of the evidence that a child is a CHINS. In re A.H., 751 N.E.2d 690, 695 (Ind.Ct.App.2001), trans. denied.

Indiana Code section 31-34-1-1-pro-vides:

A child is a [CHINS] 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 from the court.

Here, our review of the evidence reveals that Parents’ parental relationships with S.S., A.M., and S.M. were terminated in part because the Parents lacked financial resources and adequate housing to properly care for their three special needs children who all required occupational, physical, speech, and developmental therapies. However, R.S. is a healthy infant who tested negative for drugs. Mother now receives approximately $700 per month in social security disability benefits, and Father has a minimum wage job. They share their monthly bill for rent, gas, and water, and have enough money left over to purchase adequate food, clothing, and other necessities for R.S. Their residence is clean and appropriate for R.S. During visits with R.S., Parents appropriately fed and nurtured their daughter.

This evidence simply does not support the trial court’s conclusion that the most significant reasons for which the pri- or termination order was entered have not been corrected, and R.S.’s physical and/or mental condition is seriously impaired or at risk as a result of the parents’ inability to provide the child with the necessary shelter and supervision. A CHINS adjudication focuses on the condition of a child, and whether that child needs services. In re N.E., 919 N.E.2d 102, 105 (Ind.2010). It in no way challenges the general competency of a parent to continue a relationship with a child. Id. Only when the State moves to terminate a parent’s rights does an allegation of fault attach. Id.

Further, a CHINS adjudication may not be based solely on conditions that no longer exist. Matter of D.T., 547 N.E.2d 278, 284 (Ind.Ct.App.1989), trans. denied. The trial court should also consider the parents’ situation at the time the case is heard by the court. In re C.S., 863 N.E.2d 413, 418 (Ind.Ct.App.2007), trans. denied.

Here, it is apparent that Parents have made positive changes in their lives. This is something for which we should applaud them rather than condemn them through coercive action. See In re V.H., 967 N.E.2d 1066, 1073 (Ind.Ct.App.2012). Accordingly, we reverse the trial court’s order determinating that R.S. is a CHINS.

CONCLUSION

Based on the foregoing, there is insufficient evidence to support the trial court’s determination that R.S. is a CHINS.

Reversed.

BRADFORD, J. and BROWN, J. concur.


author: VAIDIK, Judge.

text:
    Dekuita STEEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1211-CR-877.
    Court of Appeals of Indiana.
    May 2, 2013.

      Matthew D. Anglemeyer, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Dekuita Steen appeals her Class D felony theft conviction. She contends that the trial court erred in admitting a loss-prevention officer’s testimony concerning security tags and store labels into evidence because it was inadmissible hearsay and there is insufficient evidence to sustain her conviction. Finding that the evidence was properly admitted and the evidence is sufficient, we affirm.

Facts and Procedural History

On Black Friday, November 26, 2010, Kyle Hadley, a loss-prevention officer employed by U.S. Security, was working at H & M clothing store in Circle Centre Mall. Hadley saw a large group of women enter H & M. One woman, Steen, was pushing a stroller, but there was no child inside. Hadley watched Steen for about half an hour and saw her take items such as jeans, shirts, and children’s clothing and place them on top of the stroller. Steen then moved to the children’s department between shelves and a wall and began putting the clothing items inside bags on the bottom of the stroller. Hadley watched this happen through the shelves and had a clear view of Steen’s actions.

The group of women Steen entered the store with left, and Steen exited the store ■without paying for the clothes in the stroller about a half minute later. As Steen left H & M, the store’s E.A.S. podiums, which scan the electronic tags on items that have to be deactivated at the registers, began beeping. Hadley followed Steen out of the store and into the mall, stopping her after she had walked past two or three other stores. Hadley identified himself and showed his loss-prevention officer badge and identification card. Hadley asked Steen to return to H & M so that they could talk about the clothing that she took without purchasing.

Steen followed Hadley willingly back to the store, but as they started to enter the store, Steen said that she did not know what Hadley was talking about and she refused to go into the store office. Steen started to walk away so Hadley grabbed her arm. Steen pulled away and began to resist, so Hadley placed her in handcuffs and escorted her and the stroller into the store office. Once inside the office, Had-ley removed the clothing from the bags in the bottom of the stroller and recognized it as the same clothing he had seen Steen select and take out of the store. Hadley also saw the H & M security tags and store labels on the clothing.

Hadley requested to see Steen’s identification, and she showed him an identification card. She stated that the address on the identification was incorrect, so she gave Hadley another address and social-security number. Hadley confirmed that the person pictured on the identification was Steen. At that time, the store manager told Hadley that the women that Steen had come to the store with earlier had returned and were grabbing large amounts of merchandise. Hadley asked the manager to stand in front of the office door so he could go see what was happening. When Hadley returned, the manager told him that Steen had left through the back room and gone down the fire escape. Hadley looked for Steen in the fire escape and went down to the floor level, but he could not find her. Hadley flagged down an Indianapolis Metropolitan Police Department officer and gave the officer a description of Steen. Four days later, IMPD Detective Julie Busic contacted Hadley and asked to meet with him, and Hadley identified Steen from a photograph.

The State charged Steen with Class D felony theft and Class A misdemeanor conversion, but it later dropped the conversion charge. A jury trial was held and Steen was found guilty. The trial court sentenced her to 365 days with 863 days suspended to probation.

Steen now appeals.

Discussion and Decision

Steen raises two arguments on appeal: (1) whether the trial court erred in admitting a loss-prevention officer’s testimony concerning security tags and store labels into evidence and (2) whether there is sufficient evidence to sustain her conviction for Class D felony theft.

I. Security Officer’s Testimony

Steen contends that the trial court erred in admitting the loss-prevention officer’s testimony concerning the security tags and store labels that were on the clothing because it was inadmissible double hearsay. A trial court has broad discretion in ruling on the admission or exclusion of evidence. Kimbrough v. State, 911 N.E.2d 621, 631 (Ind.Ct.App. 2009). The trial court’s ruling on the admissibility of evidence will be disturbed on review only upon a showing of an abuse of discretion. Id. An abuse of discretion occurs when the trial court’s ruling is clearly against the logic, facts, and circumstances presented. Id. Error may not be predicated upon a ruling that admits or excludes evidence unless a substantial right of the party is affected. Ind. Evidence Rule 103.

Steen argues that both the security tags and store labels on the clothing and Had-ley’s testimony about the tags and labels constitute hearsay. We disagree.

Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c). We find that the security tags and store labels in this case do not fall under this definition and therefore are not hearsay. While the security tags and store labels are not in evidence, we assume based on the parties’ briefs that the security tags and the store labels contained the writing “H & M.” This writing, taken by itself, is not capable of being true or not true. Since it is not capable of being true or not true, the clothing labels could not have been admitted for the truth of the matter asserted. Rather, they were admitted as circumstantial evidence showing that because the tags were attached to the clothing, it made it more likely than not that the clothing belonged to H & M. Since the security tags and store labels inside the clothing were not out-of-court assertions admitted for the truth of the matter asserted, they did not constitute hearsay evidence.

As for Hadley’s testimony about the clothing labels, the trial court stated that Hadley was “testifying to what he observed,” Tr. p. 76, and we agree. A witness may testify to what he observed as long as it is based on his personal knowledge of the matter. Ind. Evidence Rule 602. Since Hadley was testifying to his personal knowledge of what he saw on the clothing, the H & M security tags and store labels, his testimony was proper and not inadmissible hearsay.

The trial court did not err in admitting Hadley’s testimony at trial.

II. Sufficiency of the Evidence

Steen also contends that there is insufficient evidence to sustain her conviction. Our standard of review with regard to sufficiency claims is well settled. In reviewing a sufficiency of the evidence claim, this Court does not reweigh the evidence or judge the credibility of the witnesses. Bond v. State, 925 N.E.2d 773, 781 (Ind.Ct. App.2010), reh’g denied, trans. denied. We consider only the evidence most favorable to the verdict and the reasonable inferences draw therefrom and affirm if the evidence and those inferences constitute substantial evidence of probative value to support the verdict. Id. Reversal is appropriate only when a reasonable trier of fact would not be able to form inferences as to each material element of the offense. Id.

Class D felony theft is governed by Indiana Code section 35^43-4-2(a) which states that “A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of its value or use, commits theft, a Class D felony.” Steen argues that the State presented no evidence that H & M owned the clothes she took out of the store and no evidence that Steen exerted unauthorized control over the clothes. We disagree.

The evidence presented at trial showed that Hadley, while working at H & M, watched Steen select clothing items from the store, place them on top of the stroller, put them inside bags on the bottom of the stroller, and walked out of the store, causing the E.A.S. podiums to beep. Tr. p. 70-71. When Hadley brought Steen back into the store and removed the items from the bags, he testified that they were the same items that he saw her earlier select from the store. Id. at 76. Hadley also testified that he saw the H & M security tags and store labels on the items. Id. This is sufficient evidence that H & M owned the clothes that Steen took out of the store.

The evidence also showed that Steen exerted unauthorized control over the clothes. She placed the clothes into bags in the stroller and walked out of the store without paying for them. Id. at 71, 73. Hadley also testified that he let Steen walk out of the store and past both doors of H & M to ensure “that she wasn’t looking for those people that was with her ... maybe, you know, for — if they had something of hers to pay — anything like that. I wanted to make sure that she was intentionally leaving the store without wanting to pay for the merchandise.” Id. at 73. Finally, when Hadley stepped out of the store office while he was questioning Steen, she fled from the store and down the fire escape, id. at 78, providing circumstantial evidence of her guilt. Gee v. State, 526 N.E.2d 1152, 1154 (Ind.1988). This is sufficient evidence to show that Steen exerted unauthorized control over the clothes that she took out of the store. We therefore affirm Steen’s Class D felony theft conviction.

Affirmed.

KIRSCH, J., and PYLE, J„ concur.

      . This distinguishes the present case from those that the State refers to in its brief in which price tags were deemed to be hearsay since they were admitted for the truth of the price listed on the label in order to establish the value of an item. See, e.g., Stephans v. State, 262 P.3d 727, 732 (Nev.2011); Robinson v. Com., 258 Va. 3, 516 S.E.2d 475, 478 (1999); State v. Odom, 99 N.C.App. 265, 393 S.E.2d 146, 151 (1990).

      . We note that this is not a best-evidence argument. See Lawson v. State, 803 N.E.2d 237, 240-41 (Ind.Ct.App.2004), trans. denied. As best we can understand, this is a personal-knowledge argument, and we agree with the trial court’s ruling.


author: BRADFORD, Judge.

text:
    Love Jeet KAUR, Appellant/Defendant, v. STATE of Indiana, Appellee/Plaintiff.
    No. 29A05-1208-CR-424.
    Court of Appeals of Indiana.
    May 6, 2013.

      John (Jack) F. Crawford, Crawford & Devane, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

INTRODUCTION

To combat what it perceives to be the growing problem of synthetic drugs such as “Spice,” “Bath Salt,” and “Black Mamba,” the General Assembly has enacted a statutory scheme that defines such drugs and criminalizes dealing or possessing them (referred to collectively as “the Synthetic Drug Law”). One feature of the Synthetic Drug Law is that the Indiana Board of Pharmacy (“the Board”) is given the power to declare new compounds illegal synthetic drugs by emergency rule. Appellant/Defendant Love Jeet Kaur has been charged with dealing and possession of a synthetic drug, AM-2201. In this interlocutory appeal, Kaur contends that the trial court erred in denying her motion to dismiss the charges against her because (1) the charging information was not specific enough to put her on notice of the crime with which she was being charged, (2) the Synthetic Drug Law is unconstitutionally vague, and (3) the Synthetic Drug Law represents an unconstitutional delegation of legislative authority. The State counters that the charging information along with the probable cause affidavit are sufficient to put Kaur on notice regarding the criminal charges against her. Responding to the vagueness argument, the State counters that the Synthetic Drug Law is not vague as applied to Kaur and is not inherently vague in any event. As for the delegation argument, the State argues that Kaur’s charges, because they are not based on a synthetic drug designated by the Board, are not the result of any delegation and also that the delegation itself was proper. Because we conclude that the charging information and probable cause affidavit were sufficient to place Kaur on notice, the Synthetic Drug Law is not vague as applied to Kaur, and the Synthetic Drug Law does not represent an unconstitutional delegation of legislative power as applied to Kaur, we affirm the trial court’s denial of Kaur’s motion to dismiss.

FACTS AND PROCEDURAL HISTORY

On March 20, 2012, the Hamilton/Boone County Drug Task Force was allegedly informed that synthetic cannabinoids were being sold from a Valero gas station in Noblesville. Authorities allegedly determined that the owners of the Valero were Love Jeet Kaur and Kamal Jit Singh. Between March 21 and 26, 2012, undercover detectives allegedly made three purchases from either Kaur or Singh of substances that were determined to contain AM-2201, a controlled substance.

On May 11, 2012, the State charged Kaur with Class D felony dealing in a synthetic cannabinoid, Class D felony possession of a synthetic cannabinoid, and Class D felony maintaining a common nuisance. On June 21, 2012, Kaur filed a motion to dismiss all charges on the basis that the Synthetic Drug Law is unconstitutionally vague and represents an impermissible delegation of legislative authority. On July 12, 2012, the trial court denied Kaur’s motion to dismiss. On August 3, 2012, the trial court certified its denial of Kaur’s motion to dismiss for interlocutory appeal.

DISCUSSION

Statutory Background

In 2011, the General Assembly outlawed the possession and dealing of synthetic cannabinoids, substances which are generally referred to as “K2” or “Spice.” Ind. P.L. 138-2011. During the 2012 session, the General Assembly revised the relevant statutes, expanding the concept of “synthetic eannabinoid” to “synthetic drug” and adding several substances to the list of banned substances, including AM-2201. Ind.Code § 35-31.5-2-321(1)(QQ) (effective Mar. 15, 2012).

The General Assembly also passed a new statutory procedure whereby the Board could declare new substances to be synthetic drugs:

(a) The board may adopt an emergency rule to declare that a substance is a synthetic drug.
(b) The board may adopt an emergency rule declaring a substance to be a synthetic drug if the board finds that the substance:
(1) has been scheduled or emergency scheduled by the United States Drug Enforcement Administration; or
(2) has been scheduled, emergency scheduled, or criminalized by another state.
(c) A rule adopted under this section becomes effective thirty (30) days after it is filed with the publisher under IC 4-22-2-37.1.
(d) A rule adopted under this section expires on June 30 of the year following the year in which it is filed with the publisher under IC 4-22-2-37.1.
(e) The board may readopt under this section an emergency rule that has expired.

Ind.Code § 25-26-13-4.1 (effective Mar. 15, 2012).

Indiana Code section 35-31.5-2-321(9) (effective Mar. 15, 2012) added to the definition of “synthetic drug” “[a]ny compound determined to be a synthetic drug by rule adopted under IC 25-26-13-4.1.” Finally, Indiana Code sections 35-48-4-10 and 35-48-4-11 were revised to criminalize dealing in and possession of “synthetic drugs,” as opposed to “synthetic cannabinoids.” (Effective Mar. 15,2012).

I. Whether the State Put Kaur on Sufficient Notice of the Charges Against Her

At oral argument, Kaur argued that the charging information did not sufficiently put her on notice regarding the charges against her because it only mentioned “synthetic eannabinoid” and not AM-2201. “The key issue is whether [the defendant] was sufficiently apprised of the charges against her so that she could prepare her defense.” Patterson v. State, 495 N.E.2d 714, 719 (Ind.1986). As the State pointed out, however, it is proper to look also at the probable cause affidavit, if any, filed with the charging information. See, e.g., id. (concluding that while the charging information should have included alleged cause of death, defendant suffered no prejudice when “[t]he probable cause affidavit supporting the information stated the cause of death as a beating”); Woods v. State, 980 N.E.2d 439, 443 (Ind.Ct.App. 2012) (“Since the charging information and probable-cause affidavit are filed together, they should be viewed in tandem to determine if they satisfy the goal of putting the defendant on notice of the crimes with which she is charged during the applicable statute of limitations period so that she can prepare an appropriate defense”).

According to the May 11, 2012, charging information, Kaur has been charged with possession and delivery of a “synthetic cannabinoid” on or about March 22, 2012. The probable cause affidavit filed with the charging information, however, specifically averred that the substances purchased between March 21 and 26, 2016, from either Kaur or Singh tested positive for AM-2201. We find the information contained in the probable cause affidavit to be sufficient to put Kaur on notice of the charges against her.

II. Whether the Synthetic Drug Law Is Unconstitutionally Vague

Kaur contends that the Synthetic Drug Law is unconstitutionally vague. Kaur specifically argues that with the definition of “synthetic drug” left to the allegedly arbitrary decision of the Board, no ordinary citizen will be able to understand what conduct is prohibited.

A challenge to the validity of a statute must overcome a presumption that the statute is constitutional. State v. Lombardo, 738 N.E.2d 658, 655 (Ind.2000). The party challenging the statute has the burden of proving otherwise. Brady v. State, 575 N.E.2d 981, 984 (Ind.1991).
Due process principles advise that a penal statute is void for vagueness if it does not clearly define its prohibitions. Klein v. State, 698 N.E.2d 296, 299 (Ind. 1998) (citing Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)). A criminal statute may be invalidated for vagueness for either of two independent reasons: (1) for failing to provide notice enabling ordinary people to understand the conduct that it prohibits, and (2) for the possibility that it authorizes or encourages arbitrary or discriminatory enforcement. City of Chicago v. Morales, 527 U.S. 41, 56, 119 S.Ct. 1849, 1859, 144 L.Ed.2d 67, 79-80 (1999); Healthscript, Inc. v. State, 770 N.E.2d 810, 815-16 (Ind.2002). A related consideration is the requirement that a penal statute give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden so that “no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” Healthscript, Inc., 770 N.E.2d at 816 (quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, 996 (1954)). In State v. Downey, 476 N.E.2d 121, 123 (Ind.1985), this Court emphasized that “there must be something in a criminal statute to indicate where the line is to be drawn between trivial and substantial things so that erratic arrests and convictions for trivial acts and omissions will not occur. It cannot be left to juries, judges, and prosecutors to draw such lines.” Accordingly, the statutory language must “convey sufficiently definite warning as to the proscribed conduct when measured by common understanding.” Rhinehardt v. State, 477 N.E.2d 89, 93 (Ind. 1985).
But a statute “is not void for vagueness if individuals of ordinary intelligence could comprehend it to the extent that it would fairly inform them of the generally proscribed conduct.” Klein, 698 N.E.2d at 299; accord Lombardo, 738 N.E.2d at 656. And the statute does not have to list specifically all items of prohibited conduct; rather, it must inform the individual of the conduct generally proscribed. Lombardo, 738 N.E.2d at 656. The examination of a vagueness challenge is performed in light of the facts and circumstances of each individual case. Id.

Brown v. State, 868 N.E.2d 464, 467 (Ind. 2007).

The State argues that Kaur’s vagueness challenge must fail because the synthetic drug she is alleged to have possessed and dealt, AM-2201, was specifically named in the relevant statutes, while Kaur’s argument relates only to those synthetic drugs that the Board has designated or may designate. We agree with the State. “[A] statute is void for vagueness only if it is vague as applied to the precise circumstances of the present case.” Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind.Ct.App.2008) “The defendant is not at liberty to devise hypothetical situations which might demonstrate vagueness.” Id. Kaur’s vagueness challenge to Indiana’s synthetic drug laws fails because her argument applies only to synthetic drugs that have been or might be designated by the Board.

III. Whether the Synthetic Drug Law Represents an Unconstitutional Delegation of Legislative Authority

Article III, Section 1 of the Indiana Constitution, which is sometimes called the Distribution of Powers Clause, reads as follows: “The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial: and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.” Kaur contends that the General Assembly’s delegation to the Board of the power to designate new synthetic drugs violates the Distribution of Powers Clause.

We need not reach the merits of Kaur’s argument on this point. The State argues that because AM-2201 was specifically made illegal by the General

Assembly, not through the rulemaking power of the Board, the Distribution of Powers Clause is not implicated in this case. We agree.

Unless the statute in issue is incapable of constitutional application, the court should limit itself to vindicating the rights of the party before it. Thus, once an Indiana constitutional challenge is properly raised, the court should first determine whether the statute is capable of constitutional application and then determine whether its application in the case was constitutional, refraining from speculating about hypothetical applications.

Helton v. State, 624 N.E.2d 499, 507 (Ind. Ct.App.1993) (citations and footnote omitted), trans. denied. There is no question that the synthetic drugs specifically designated by the General Assembly do not run afoul of the Distribution of Powers Clause, and Kaur does not argue that they do. Because Kaur is charged with possessing and delivering one of the legislatively-designated synthetic drugs, her rights under the Distribution of Powers Clause are not implicated. The synthetic drug law is clearly capable of constitutional application and its application in this case is an example. We need not address Kaur’s argument in this regard any further.

The judgment of the trial court is affirmed.

FRIEDLANDER, J., and KIRSCH, J„ concur.

      . We heard oral argument in this case on April 16, 2013, at Shortridge High School in Indianapolis. We would like to commend counsel for the high quality of their oral presentations and to thank the administration, faculty, staff, and students of Shortridge for their hospitality.

      . Ind.Code§ 35-48-4-10.

      . Ind.Code§ 35-48-4-11.

      . Ind.Code § 35-48-4-13.

      . Indiana Code section 35-31.5-2-321 currently includes sixty-three specific compounds (designated (A) through (MMM), skipping (KKK) and, for some reason, (KK)), seven additional classes of compounds, and any compound determined to be a synthetic drug pursuant to Indiana Code section 25-26-13-4.1.

      . As of April 18, 2013, the Board has issued three emergency rules pursuant to section 25-26-13-4.1, Legislative Services Agency Documents # 12-493(E), # 12-590(E), and # 13-27(E).

      . We leave for another day — and express no opinion on — the question of whether a person charged with possession of one of the Board-specified synthetic drugs would have a meritorious Article III, Section 1 argument.


author: CRONE, Judge.

text:
    Ryan WESTLAKE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 73A01-1209-CR-433.
    Court of Appeals of Indiana.
    May 7, 2013.

      Gilda W. Caviness, Caviness Law Office, LLC, Rushville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Ryan Westlake was charged under two cause numbers with various offenses stemming from his sexual relationships with two teenage girls. Westlake entered a plea agreement whereby he pled guilty to class A felony child molesting and class B felony sexual misconduct with a minor in exchange for the dismissal of four other charges. Sentencing was left to the trial court’s discretion. The trial court identified one aggravating factor, Westlake’s criminal and juvenile record, and one mitigating factor, his mental health issues. Finding the factors to be of equal weight, the trial court imposed concurrent advisory sentences.

Westlake appeals his sentence, arguing that the trial court abused its discretion by failing to identify his guilty plea as a mitigating factor and that his sentence is inappropriate. The State argues that Westlake waived his right to appeal his sentence by signing a document titled “Advisement of Rights and Waiver” that was submitted to the court along with his plea agreement. We conclude that the waiver clearly forecloses Westlake’s right to challenge his sentence pursuant to Indiana Appellate Rule 7(B), but does not prohibit him from raising the issue of whether the trial court abused its discretion. However, because Westlake had already confessed to having sexual intercourse with the victims and received a substantial benefit in the form of dismissed charges, he has not persuaded us that the trial court abused its discretion by failing to identify his guilty plea as a mitigating factor. Therefore, we affirm.

Facts and Procedural History

In January 2012, R.E. reported that her fourteen-year-old daughter, C.E., had run away and might be with Westlake at an abandoned residence on West Washington Street in Shelbyville. Officer Dan McCarty went to the residence and found C.E. and Westlake there.

According to the probable cause affidavit filed in cause number 73D01-1201-FB-4 (“FB-4”), police determined that the residence belonged to Christopher Lux, who had not given C.E. or Westlake permission to be there. Officer McCarty ordered Westlake to come out of the house several times before he complied. In a subsequent interview, Westlake, who was twenty-two years old at the time, admitted that he knew that C.E. was fourteen and admitted to having sexual intercourse with C.E. on three occasions during January 2012. As a result, Westlake was charged under this cause number with class B felony sexual misconduct with a minor, class C felony sexual misconduct with a minor, class D felony residential entry, and class A misdemeanor resisting law enforcement.

According to the probable cause affidavit filed in cause number 73 D01-1201-FA-1 (“FA-1”), on January 13, 2012, the Department of Child Services informed the Shelbyville Police Department that it had received a report that Westlake had been involved in a sexual relationship with a thirteen-year-old girl, B.B. After his arrest on the charges in FB-4, Westlake was also questioned about this report. Westlake admitted that he had had sexual intercourse with B.B. on three occasions and that she had told him prior to the second and third occasions that she was thirteen. As a result, Westlake was charged with child molesting as a class A and as a class C felony.

On May 25, 2012, Westlake and the State filed a joint motion to enter guilty plea concerning the charges in FA-1 and FB-4. Westlake agreed to plead guilty to class A felony child molesting in FA-1 and class B felony sexual misconduct with a minor in FB-4, and the State agreed to dismiss the remaining charges. Sentencing was left to the court’s discretion. The parties also filed a document titled “Advisement of Rights and Waiver,” which includes the following language:

If you are pleading guilty to an offense with sentencing to be determined by the Court, you waive your right to have any Court review the reasonableness of the sentence, including but not limited to appeals under Indiana Rule of Appellate Procedure 7(b) [sic], and you agree and stipulate that the sentence of the Court is reasonable and appropriate in light of your nature and character, and the nature and character of the offense. Creech v. State, 887 N.E.2d 73 (Ind.2008).

Appellant’s App. at 43. At the guilty plea hearing, the trial court gave Westlake the following advisement concerning his right to appeal:

THE COURT: Do you understand if you went to trial and you were convicted that you would have the right to appeal your conviction?
MR. WESTLAKE: Yes, sir.
THE COURT: Do you understand that by pleading guilty you’re giving up most of your rights associated with your right of appeal?
MR. WESTLAKE: Yes, sir.

Tr. at 6-7.

After advising Westlake of his rights, the court questioned Westlake about the factual basis for his plea. The court asked Westlake how he knew B.B., and Westlake said, “I mentored her there for a little bit and I took her to church” because her father had “asked me to find an activity for her to keep out of trouble.” Id. at 14. Westlake stated that B.B. “was giving me looks and stuff and like, pretty much made a move and I let it happen.” Id.

Westlake said that he met C.E. through B.B. Westlake stated that the night that he ran away with C.E., he had been smoking marijuana and got into an argument with his sister. His sister said that she was going to call the police, and Westlake left because he did not want to get caught with drugs in his system. He went to a friend’s house and smoked some more marijuana. Then he went to C.E.’s house and told her that he needed help getting out of town because the police were after him, and she took him to an abandoned house. Westlake claimed that after a while, C.E. started “looking” at him, and he “made a move.” Id. at 16.

The trial court took the plea agreement under advisement and scheduled a sentencing hearing. At the sentencing hearing on July 27, 2012, the trial court accepted the plea and heard testimony from Westlake’s mother, Angela Spears. Spears stated that Westlake had been in special education classes in school and was typically four to five grades behind other students his age. She said that on an emotional level, Westlake is “younger than an adult,” and his “brain capacity” is comparable to children twelve to fourteen years old. Id. at 23. Because of this, Westlake tended to associate with children that age. Spears testified that Westlake is capable of following rules “to an extent” and does better if his day is structured. Id. at 24. She felt that Westlake has trouble with drugs and alcohol and is susceptible to peer pressure. Westlake made a statement to the court in which he apologized for his actions and acknowledged that what he had done was wrong.

The presentence investigation report (“PSI”) indicates that Westlake committed his first delinquent act — class D felony theft if committed by an adult — in 2000 at the age of ten. He was placed on probation and ordered to participate in mental health treatment. In 2002, he committed what would be class A misdemeanor battery if committed by an adult. He was again placed on probation. He underwent a mental health evaluation and was diagnosed with bipolar disorder, post-traumatic stress disorder, and disruptive behavior disorder. In 2003, he committed what would be class C felony child molesting if committed by an adult. The victim was a four-year-old girl whom his mother was babysitting. He was again placed on probation and ordered to participate in counseling. Westlake violated probation twice by running away and possessing pornography. In 2005, he was arrested and charged with being a runaway and what would be class A misdemeanor conversion, class D felony intimidation, and class A misdemeanor battery resulting in bodily injury if committed by an adult. The PSI does not reflect which of these resulted in true findings, but Westlake was placed in the Indiana Boys School. Westlake was placed on parole at some point, but he violated parole and was returned to the Indiana Boys School. Westlake was released in 2009 at the age of nineteen. In 2011, Westlake was convicted of class C misdemeanor operating a vehicle having never received a license, his only adult offense other than the instant offenses.

The PSI reflects that Westlake has received mental health treatment from at least five different facilities. Although he denied having been abused as a child, other information in the PSI suggests that he was. Westlake’s IQ is 82, and he never received a diploma or GED. Westlake admitted that he had been smoking marijuana heavily over the previous two years. When the interviewer asked Westlake about the instant offenses, he admitted that he was “in the wrong,” but also blamed the girls’ parents for not supervising them more carefully. Appellant’s App. at 80.

The trial court found Westlake’s criminal and juvenile record to be aggravating, placing particular emphasis on the adjudication for child molesting. As a mitigating factor, the court found that Westlake has significant mental health issues that impact his ability to conform his behavior to the law. The court found that the aggravating and mitigating factors were of equal weight and imposed concurrent advisory sentences — thirty years on the class A felony and ten years on the class B felony. The court suspended five years of the thirty-year sentence, giving Westlake an aggregate sentence of twenty-five years executed and five suspended. Westlake now appeals his sentence.

Discussion and Decision

Westlake argues that the trial court abused its discretion by failing to identify his guilty plea as a mitigating factor and that his sentence is inappropriate. The State argues that Westlake has waived his right to appeal these issues. Because the State’s argument is potentially dispositive, we will address it first.

I. Waiver

Along with his plea agreement, Westlake signed a document titled “Advisement of Rights and Waiver.” That document contains the following provision:

If you are pleading guilty to an offense with sentencing to be determined by the Court, you waive your right to have any Court review the reasonableness of the sentence, including but not limited to appeals under Indiana Rule of Appellate Procedure 7(b) [sic], and you agree and stipulate that the sentence of the Court is reasonable and appropriate in light of your nature and character, and the nature and character of the offense. Creech v. State, 887 N.E.2d 73 (Ind.2008).

Appellant’s App. at 43.

In Creech, our supreme court held that a defendant may, as part of a plea agreement, waive the right to appellate review of his sentence, as long as the waiver is knowing and voluntary. 887 N.E.2d at 75. In determining whether a defendant has made a knowing and voluntary waiver, our courts have typically considered the advisement given by the trial court at the guilty plea hearing. See, e.g., Ricci v. State, 894 N.E.2d 1089, 1093-94 (Ind.Ct.App.2008) (finding no waiver where, despite language in the plea agreement that defendant waived his right to appeal the sentence, court advised defendant at the plea hearing that he had not surrendered his right to appeal the sentence), trans. denied. At the guilty plea hearing, the trial court advised Westlake as follows:

THE COURT: Do you understand if you went to trial and you were convicted that you would have the right to appeal your conviction?
MR. WESTLAKE: Yes, sir.
THE COURT: Do you understand that by pleading guilty you’re giving up most of your rights associated with your right of appeal?
MR. WESTLAKE: Yes, sir.

Tr. at 6-7.

The written waiver clearly states that Westlake waived his right to challenge his sentence pursuant to Indiana Appellate Rule 7(B). Although the trial court’s advisement was not very specific, nothing in the advisement contradicts the language of the waiver. Therefore, we conclude that Westlake has waived his right to challenge his sentence pursuant to Appellate Rule 7(B).

An abuse of discretion claim, however, is distinct from review pursuant to Appellate Rule 7(B). See King v. State, 894 N.E.2d 265, 267 (Ind.Ct.App.2008) (inappropriate sentence and abuse of discretion claims are to be analyzed separately). The waiver provision states that he cannot challenge the “reasonableness” of the sentence, a term which appears to be used as a synonym for “appropriateness,” the linchpin of our analysis pursuant to Appellate Rule 7(B). The waiver provision does not specifically address abuse of discretion claims or include any “catchall” language completely foreclosing the possibility of appeal. The trial court’s advisement also suggested that some relief might still be available on appeal. As to abuse of discretion claims, the waiver provision is ambiguous at best and should be construed against the State as the drafter. See Valenzuela v. State, 898 N.E.2d 480, 483-84 (Ind.Ct.App.2008) (ambiguous plea agreement should be strictly construed against the State), trans. denied (2009). We conclude that Westlake has not waived his abuse of discretion claim.

II. Abuse of Discretion

Sentencing decisions are within the sound discretion of the trial court and are reviewed only for an abuse of that discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007), clarified on reh’g, 875 N.E.2d 218. An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Id. A trial court may abuse its discretion in sentencing by failing to enter a sentencing statement, entering a sentencing statement that explains reasons for imposing a sentence which the record does not support, omitting reasons that are clearly supported by the record and advanced for consideration, or giving reasons that are improper as a matter of law. Id. at 490-91.

Westlake argues that the trial court abused its discretion by failing to identify his guilty plea as a mitigating factor. “An allegation that the trial court failed to identify or find a mitigating factor requires the defendant to establish that the mitigating evidence is both significant and clearly supported by the record.” Id. at 493. A guilty plea does not automatically amount to a significant mitigating factor. Wells v. State, 836 N.E.2d 475, 479 (Ind.Ct.App.2005), trans. denied (2006). “For instance, a guilty plea does not rise to the level of significant mitigation where the defendant has received a substantial benefit from the plea or where the evidence against him is such that the decision to plead guilty is merely a pragmatic one.” Id.

Westlake notes that he pled guilty a few months after being arrested, he pled guilty to the most serious charge under each cause number, and his plea agreement contained no cap on the sentence that could be imposed. However, he obtained a substantial benefit in that four additional charges were dismissed, three of which were felonies. In addition, Westlake admitted to having sexual intercourse with each victim multiple times after being discovered in an abandoned home with one of the victims. Given the strength of the evidence against him and the benefit that Westlake received from the plea agreement, Westlake has not persuaded us that the trial court abused its discretion by failing to identify his guilty plea as a mitigating factor. We therefore affirm his sentence.

Affirmed.

ROBB, C.J., and FRIEDLANDER, J., concur.

      . See Ind.Code § 35-50-2 — 4 (advisory sentence for a class A felony is thirty years); Ind.Code § 35-50-2-5 (advisory sentence for class B felony is ten years).


author: ROBB, Chief Judge.

text:
    Gail EISENHUT, Appellant, v. Richard EISENHUT, M.D., Appellee.
    No. 49A02-1208-DR-633.
    Court of Appeals of Indiana.
    May 7, 2013.
   ORDER

ROBB, Chief Judge.

Appellant, Gail Eisenhut, by counsel, filed a Motion To Publish Memorandum Decision.

Having reviewed the matter, the Court FINDS AND ORDERS AS FOLLOWS:

1. The Appellant’s Motion To Publish Memorandum Decision is GRANTED and this Court’s opinion heretofore handed down in this cause on March 22, 2013, marked Memorandum Decision, Not for Publication is now ORDERED PUBLISHED.
2.The Clerk of this Court is directed to send copies of said opinion together with copies of this Order to the West Publishing Company and to all other services to which published opinions are normally sent.


text:
    Roberto BARAJAS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 10A01-1208-PC-387.
    Court of Appeals of Indiana.
    May 10, 2013.

      William P. McCall, III, Jeffersonville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Roberto Barajas appeals the post-conviction court’s denial of his petition for postconviction relief. Barajas argues that his trial counsel was ineffective for failing to explain the deportation consequences of his guilty plea to Class D felony possession of cocaine. Concluding that Barajas has failed to demonstrate prejudice in light of the trial court’s advisements at his guilty-plea hearing, we affirm the post-conviction court.

Facts and Procedural History

On May 30, 2006, Barajas, who was not a citizen of the United States and only spoke “a little bit of English,” appeared before the trial court for his guilty-plea hearing. Def.’s Ex. A, p. 4. Barajas had entered into a plea agreement with the State in which he agreed to plead guilty to Class D felony possession of cocaine; in exchange, the State agreed to dismiss a dealing-in-cocaine charge. The plea agreement was translated into Spanish for Barajas. During the guilty-plea hearing, which was also translated into Spanish for Barajas by Ramona Sharp, a regular translator for the court who Barajas said that he understood, the trial court asked Barajas whether he was a citizen of the United States. Barajas said no. The trial court then advised Barajas as follows:

Do you understand, sir, that your plea of guilty today may cause you consequences if you are not a United States citizen, especially if you are not a legal resident of the ... United States. Are you aware of that?

Id. at 9. When Barajas asked for further explanation, the trial court continued, “Like you could be deported if the Department of Immigration would find out that you had pled guilty to any criminal offenses, particularly felonies.” Id. at 10. Barajas responded:

You know what, I really need to talk to that about, to an attorney about that. But really I didn’t come here to talk about Immigration. But really I need, you know, if this is the case ... you know, a case against the State but not against Immigration with it.

Id. (formatting altered). The trial court responded:

No. This is not an Immigration case. But as a consequence of your pleading guilty today there may be other penalties that might [ajffect you because of pleading guilty here today. And I, well, like I said, if Immigration would find out that you pled guilty there’s a possibility that you could be deported. And I just want to make sure that you know about these possibilities before you enter any plea of guilty today. If you wish to take time to talk to an attorney about that then the Court will reschedule this for jury trial and put it back on the trial docket. But I want you to talk to your attorney first to figure out what you both feel is in your best interest.

Id. at 10-11. Barajas acknowledged that “we might not be able to finish this case” because “I was supposed to plead guilty to this case.” .Id. at 11. The trial court judge then asked Barajas if he would like her to leave the courtroom so that they could talk privately. Trial counsel said that he needed a few minutes with Bara-jas. Id. After a break, the trial court went back on the record. The trial court then asked Barajas if he “wish[ed] to go ahead and complete the plea today,” to which Barajas said yes. Id. at 12. Barajas then pled guilty to Class D felony possession of cocaine. Barajas said that trial counsel had done a good job representing him. Id. at 20. The trial court accepted Barajas’ guilty plea and sentenced him to one and a half years suspended to probation. Bara-jas successfully completed his probation.

In January 2012, Barajas, represented by counsel, filed a petition for postconviction relief alleging that his trial counsel was ineffective for failing to advise him of the deportation consequences of pleading guilty. The post-conviction court held hearings over the course of two days in March and April 2012. On the first day, Barajas attempted to call as a witness Ramona Sharp, who interpreted for Bara-jas during his guilty-plea hearing, but she did not appear. The post-conviction court, a senior judge, noted that he was familiar with Sharp because he had used her in his court “for many years” when he was presiding judge. P-C Tr. p. 58. The court also noted that Sharp was from Cuba, had extensively practiced as an interpreter in both Indiana and Kentucky, and was one of the first interpreters in their judicial district to become certified by the Indiana Supreme Court in 2008. Id. at 58-54; Appellant’s App. p. 19. On the second day, Barajas did not attempt to call Sharp as a witness, explaining to the court that he no longer considered her testimony necessary. Appellant’s App. p. 20.

Barajas testified that at some point after his guilty plea, most likely in 2011, he was taken into custody by immigration authorities. P-C Tr. p. 72-73. Barajas consulted an immigration attorney in an attempt to obtain United States citizenship, at which time the immigration attorney advised him that his May 2006 conviction was the reason for his imminent removal from the United States. Id. at 72-74. In addition, Barajas testified that before entering his guilty plea, he met with trial counsel two or three times, but counsel “never explained to me that this could [ajffect my Immigration status or that I could be deported. He never explained that to me.” Id. at 79. And, Barajas maintained, “[I was] not told that this would be an offense for which [I] would be deported.” Id. at 80. As for the break during the guilty-plea hearing when the judge left the courtroom, Barajas alleged that “we really didn’t talk about anything. [Trial counsel] said you’re going to plead guilty so that we can get this over with.” Id. at 81. Bara-jas alleged that there was no discussion off the record that by entering his guilty plea he would be deported pursuant to federal law. Id. at 81, 84. Barajas said that if he would have known these things, he would have never pled guilty. Id. at 85-86. Finally, Barajas alleged that Sharp did not interpret everything that the judge said. Id. at 82-88.

Trial counsel, on the other hand, testified to a different version of events at the post-conviction-relief hearing. Trial counsel testified that he knew Barajas was not a United States citizen and although he did not recall his exact conversations with Ba-rajas, he assumed that he would have given Barajas a “general advisement,” just like he would have with his other non-citizen Hispanic clients. Id. at 17-18; see also id. at 44 (trial counsel testified that approximately 3% of his clientele was Hispanic and that the number was slightly higher when he represented Barajas because his receptionist at the time spoke Spanish). That advisement would have included that a guilty plea to an aggravated felony or to a crime calling for a sentence of one year or more (even if the time was suspended) would make him eligible for deportation. Id. at 45. Trial counsel would also advise his non-citizen Hispanic clients to seek immigration counsel. Id. As for the break during the guilty-plea hearing when the judge left the courtroom, although trial counsel did not have an independent recollection of their private meeting, trial counsel said he would have reiterated his general advisement to Barajas. Id. at 29, 47, 48. But trial counsel would not have referred to any United States Code provisions in his general advisement. Id. at 29-30, 34. Trial counsel denied forcing Barajas to plead guilty. Id. at 48-49, 51.

In May 2012, the post-conviction court issued an order denying Barajas’ petition for post-conviction relief. Appellant’s App. p. 19-21. In pertinent part, the postcon-viction court found that the trial court “did everything reasonable and proper to dispel th[e] misconception [concerning deportation consequences of a guilty plea] and [Barajas] ignored her warnings at his peril. Willful disregard of advisements is no basis for postconviction relief.” Id. at 21. Barajas filed a motion to correct errors, which the court denied.

Barajas now appeals.

Discussion and Decision

Barajas contends that the post-conviction court erred in denying his petition for post-conviction relief. Post-conviction proceedings are civil proceedings in which the defendant must establish his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind.2013). Postconviction proceedings do not offer a super-appeal; “[r]ather, subsequent collateral challenges to convictions must be based on grounds enumerated in the post-conviction rules.” Wilkes, 984 N.E.2d at 1240 (quotation omitted). Those grounds are limited to “issues that were not known at the time of the original trial or that were not available on direct appeal.” Id. (quotation omitted).

Because Barajas is appealing from the denial of post-conviction relief, he is appealing from a negative judgment and bears the burden of proof. Id. Thus, Ba-rajas “must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court’s decision.” Id. “In other words, [Barajas] must convince this Court that there is no way within the law that the court below could have reached the decision it did.” Id. (quotation omitted). We review the post-conviction court’s factual findings for clear error, but do not defer to its conclusions of law. Id. (citing Ind. Trial Rule 52(A)).

Barajas argues that his trial counsel was ineffective for failing to explain the deportation consequences of his guilty plea. Appellant’s Br. p. 6. Claims of ineffective assistance of counsel are evaluated using the Strickland standard articulated by the United States Supreme Court. Wilkes, 984 N.E.2d at 1240. To establish ineffective assistance of counsel, a defendant must demonstrate to the post-conviction court that (1) counsel performed deficiently based upon prevailing professional norms and (2) the deficiency resulted in prejudice to the defendant. Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

This standard first asks whether, “considering all the circumstances,” counsel’s actions were “reasonable[ ] under prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689, 104 S.Ct. 2052. Second, even if counsel’s performance is deficient, the defendant must demonstrate that counsel’s deficient performance actually prejudiced the defense. Wilkes, 984 N.E.2d at 1241. That is, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed. Landis v. State, 749 N.E.2d 1130, 1134 (Ind.2001).

Barajas claims both deficient performance under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), and prejudice. In Padilla, the United States Supreme Court held, “When the [immigration] law is not succinct and straightforward ..., a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear ..., the duty to give correct advice is equally clear.” Id. at 1483 (footnote omitted). The State counters that even assuming trial counsel performed below prevailing professional norms, Barajas was not prejudiced because the trial court properly advised him that he could be deported as a result of his guilty plea to Class D felony possession of cocaine. In its order, the post-conviction court in essence found no prejudice, concluding that “the sentencing judge did everything reasonable and proper to dispel th[e] misconception [concerning deportation consequences of a guilty plea] and petitioner ignored her warnings at his peril. Willful disregard of advise-ments is no basis for post-conviction relief.” Appellant’s App. p. 21.

The record shows that Sharp, a regular translator for the court, translated the guilty-plea hearing into Spanish for Bara-jas. Barajas told the trial court that he understood Sharp, and he made no comment on the record about his inability to understand the proceedings. Def.’s Ex. A, p. 4. When the trial court asked Barajas whether he was a United States citizen, he said no. The trial court judge then carefully advised Barajas:

Do you understand, sir, that your plea of guilty today may cause you consequences if you are not a United States citizen, especially if you are not a legal resident of the ... United States. Are you aware of that?

Id. at 9. When Barajas asked for further explanation, the trial court continued, “Like you could be deported if the Department of Immigration would find out that you had pled guilty to any criminal offenses, particularly felonies.” Id. at 10. Barajas responded:

You know what, I really need to talk to that about, to an attorney about that. But really I didn’t come here to talk about Immigration. But really I need, you know, if this is the case ... you know, a case against the State but not against Immigration with it.

Id. (formatting altered). The trial court responded:

No. This is not an Immigration case. But as a consequence of your pleading guilty today there may be other penalties that might [ajffect you because of pleading guilty here today. And I, well, like I said, if Immigration would find out that you pled guilty there’s a possibility that you could be deported. And I just want to make sure that you know about these possibilities before you enter any plea of guilty today. If you wish to take time to talk to an attorney about that then the Court will reschedule this for jury trial and put it back on the trial docket. But I want you to talk to your attorney first to figure out what you both feel is in your best interest.

Id. at 10-11. Barajas acknowledged that “we might not be able to finish this case” because “I was supposed to plead guilty to this case.” Id. at 11. The trial court then asked Barajas if he would like her to leave the courtroom so that they could talk privately. Trial counsel said that he needed a few minutes with Barajas. Id. After a break, the trial court went back on the record. The trial court then asked Bara-jas if he “wish[ed] to go ahead and complete the plea today,” to which Barajas said yes. Id. at 12. Barajas then pled guilty to Class D felony possession of cocaine. Barajas said that trial counsel had done a good job representing him. Id. at 20.

Even assuming that trial counsel performed below prevailing professional norms by not explaining to Barajas the potential immigration consequences of his guilty plea, we conclude that Barajas was not prejudiced because the trial court explained the consequences to him. Because Barajas was told that his guilty plea could result in deportation, we do not need to analyze the issue of whether competent representation would have caused Barajas not to enter a plea. See Segura v. State, 749 N.E.2d 496, 507 (Ind.2001). To the extent that Barajas argues that Sharp did not translate everything that the judge said at his guilty-plea hearing, we note that he did not call Sharp as a witness on the second day of his post-conviction-relief hearing. Moreover, when the State asked Barajas if he recalled having a conversation with the judge “about having consequences if you’re not a United States citizen if you ple[a]d guilty,” Barajas responded:

She told me something I remember, what was it she told me. I don’t remember. She told me something about that, that the Judge said that but I don’t remember what my answer was to her.

P-C Tr. p. 89-90. This belies Barajas’ claim that he did not understand the guilty-plea proceedings. Thus, the post-conviction court was free to make a credibility determination on this issue. We therefore affirm the post-conviction court.

Affirmed.

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

      . The record does not reflect what felony level the dealing charge was or the facts underlying the charges.

      . Sharp did not interpret for Barajas at his post-conviction-relief hearings; rather, two different people interpreted for Barajas on each day of the hearings.

      . The State argues that Padilla does not apply retroactively to this case. Even though we resolve this case on prejudice, we note that retroactivity is not an issue as Padilla is consistent with Indiana decisions that predate it. See Carrillo v. State, 982 N.E.2d 468, 473 n. 9 (Ind.Ct.App.2013); see also Segura v. State, 749 N.E.2d 496, 500 (Ind.2001) ("[T]he failure to advise of the consequence of deportation can, under some circumstances, constitute deficient performance.”).

      . In its order denying Barajas post-conviction relief, the post-conviction court found:
      The court indicated it would, to the extent allowable by law, take judicial notice of these qualifications [of Sharp] and would, at any rate, be conscious of them if required to determine the credibility of any claims of incompetent translation. Appellant's App. p. 20. The post-conviction court went on to note that Barajas did not call Sharp as a witness on the second day of his post-conviction-relief hearing because he "no longer considered her testimony necessary.” Id.


author: PYLE, Judge.

text:
    Bobby ALEXANDER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A04-1207-CR-351.
    Court of Appeals of Indiana.
    May 10, 2013.

      Victoria L. Bailey, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

Bobby Alexander (“Alexander”) attempts to appeal one of his two convictions, following a jury trial, for Class B felony aggravated battery.

We dismiss this appeal and remand.

ISSUE

Whether this appeal should be dismissed because the order from which Alexander is attempting to appeal is not a final judgment.

FACTS

Alexander was charged with two counts of Class A felony attempted murder and two counts of Class B felony aggravated battery after he used a semiautomatic rifle to shoot a car containing four individuals. As a result of the shooting, Alexander injured two of the individuals, Robert Seger (“Seger”) and Ryan Little (“Little”). A jury trial was held in June 2012, and the jury found Alexander guilty of the two Class B felony aggravated battery charges and not guilty of the two Class A felony attempted murder charges.

On June 20, 2012, the trial court held a sentencing hearing. During the hearing, the State requested restitution in the amount of $96,674.53 for Seger and introduced copies of the Seger’s medical bills. Alexander’s counsel asked the trial court if it could conduct a restitution hearing at a later date because counsel wanted to “follow up” on “discounts” for Seger’s medical bills. (Tr. 579). The trial court granted Alexander’s request and stated that it would allow Alexander to look into any insurance write-offs or self-pay discounts and would allow the parties to work out the issue. Alexander indicated that he waived his right to be at any future restitution hearing, and the trial court stated that it would set a restitution hearing “in a couple of weeks[.]” (Tr. 637). Thus, the trial court did not enter a restitution order but did sentence Alexander on his two convictions. The trial court imposed a six (6) year executed sentence for Alexander’s Class B felony aggravated battery conviction relating to Little and imposed an eight • (8) year sentence with six (6) years executed and two (2) years suspended to probation for Alexander’s Class B felony aggravated battery conviction relating to Seger. The trial court ordered the sentences to be served consecutively at the Department of Correction.

On June 29, 2012, the State filed a motion for a hearing on restitution. The trial court granted the motion and set the hearing for July 16, 2012. Meanwhile, on July 11, 2012, Alexander commenced an appeal of his conviction and filed a notice of appeal. On July 16, 2012, the trial court held a hearing but reset the restitution hearing for August 7, 2012. Thereafter, the Notice of Completion of Clerk’s Record was filed for this appeal on July 26, 2012. On August 7, 2012, the trial court held a hearing and indicated that it would reschedule the restitution hearing “at a later date.” (CCS at 27). From the record before us on appeal, there is nothing to indicate that the trial court has entered a restitution order or has held or scheduled a restitution hearing.

Nevertheless, on November 26, 2012, Alexander filed his Appellant’s Brief, raising a sufficiency challenge to only one of his convictions — the aggravated battery conviction as to Little — and arguing that there was insufficient evidence that Little’s injury created a substantial risk of death.

Thereafter, the State filed a motion to dismiss the appeal, arguing that this Court does not have jurisdiction because the trial court had not resolved the issue of restitution prior to Alexander’s filing of his notice of appeal. The State relied on this Court’s recent opinion in Haste v. State, 967 N.E.2d 576 (Ind.Ct.App.2012), in which this Court sua sponte dismissed the defendant’s appeal where the trial court entered sentencing but took the issue of restitution under advisement. The Haste Court explained that because “the requirement that a defendant pay restitution is as much a part of a criminal sentence as any fine or other penalty” and because the trial court had not ruled on restitution, the order imposing sentence was not a final appeal-able order under Appellate Rule 2(H). Haste, 967 N.E.2d at 576 (citing Wilson v. State, 688 N.E.2d 1293 (Ind.Ct.App.1997) (citing Kotsopoulos v. State, 654 N.E.2d 44 (Ind.Ct.App.1995), trans. denied)). In response to the State’s motion to dismiss, Alexander “concede[d] that Haste says what the State says it says” but argued that Haste was “wrongly decided.” (Alexander’s Objection at 3). On February 4, 2013, this Court’s motions panel, in a 3-0 decision, denied the State’s motion to dismiss.

The State subsequently filed its Appel-lee’s Brief. The State did not address Alexander’s sufficiency argument; instead, the State asked this Court to reverse the motions panel’s ruling. The State argued that, under Haste, Alexander’s appeal should be dismissed because he does not have a final judgment under Appellate Rule 2(H). Alexander then filed a motion for oral argument, asking this Court to address the issue of whether this appeal should be dismissed. We will address the issue below.

DECISION

Because the issue is dispositive, we address the State’s argument that we should overrule the motions panel’s decision and that this appeal should be dismissed for lack of appellate jurisdiction. “ ‘It is well established that we may reconsider a ruling by the motions panel.’ ” Treacy v. State, 953 N.E.2d 634, 636 n. 2 (Ind.Ct.App.2011) (quoting Cincinnati Ins. Co. v. Young, 852 N.E.2d 8, 12 (Ind.Ct.App.2006), trans. denied), trans. denied. Although we are “reluctant” to overrule orders decided by our motions panel, we have “inherent authority to reconsider any [motions panel] decision” while an appeal remains pending. Id. (citing Davis v. State, 771 N.E.2d 647, 649 n. 5 (Ind.2002); State v. Moore, 796 N.E.2d 764, 766 (Ind.Ct.App.2003), trans. denied.)

Appellate Rule 9 requires that a party initiate an appeal by filing a notice of appeal within thirty (30) days of a “Final Judgment.” Appellate Rule 2(H)(1) provides that a “final judgment” is one that “disposes of all claims as to all parties.” In Haste, this Court explained that an order of restitution is part of a criminal sentence. Haste, 967 N.E.2d at 576. The Haste Court held that because the trial court indicated that the issue of restitution was under advisement, the trial court’s sentencing “order did not completely dispose of all sentencing issues” and was not a final judgment under Rule 2(H). Id. at 576-77. See also Wilson, 688 N.E.2d at 1295 (explaining that a trial court should enter a restitution order at the time of sentencing and that the trial court lacked authority to enter a restitution order after sentencing where the trial court did not explicitly retain jurisdiction or continue the matter of restitution); Kotsopoulos, 654 N.E.2d at 46 (explaining that the “final component” of the defendant’s sentence was “the court ordered restitution” and that the trial court properly entered a restitution order after sentencing where the trial court specifically continued the sentencing hearing for a determination of restitution).

Here, the State was prepared at the sentencing hearing with its request for restitution. Specifically, the State introduced copies of the Seger’s medical bills and requested that that the trial court order Alexander to pay restitution in the amount of $96,674.53 for Seger’s medical costs. Alexander, however, requested the trial court to delay the entry of a restitution order so that he could investigate possible “discounts” for Seger’s medical bills. (Tr. 579). The trial court granted Alexander’s request to take restitution under advisement and to hold a restitution hearing at a later date.

Now, Alexander is attempting to appeal one of his two convictions, but we have nothing in the record to indicate that the trial court has ever entered a restitution order. Additionally, the parties have not indicated that any such order has been entered. Under these specific circumstances, we dismiss this appeal. See, e.g., Haste, 967 N.E.2d at 576; see also Kotsopoulos, 654 N.E.2d at 46. Given the procedural limbo in which this case stands, we remand this case to the trial court with instructions for the trial court to enter a restitution order within thirty (SO) days of this Court’s opinion. Thereafter, upon issuance of the trial court’s restitution order, Alexander will be required to file a notice of appeal and follow the applicable Appellate Rules so that he may have his appeal heard on the merits.

Finally, we note that it is a common practice in trial courts throughout our state for a trial judge to impose a sentence upon a defendant while taking restitution under advisement for various reasons. This practice, however, can prove to be problematic — as it has in this case — because it delays a defendant’s ability to begin an appeal due to the fact that a final order has not been entered. Consequently, this practice would affect a trial judge’s ability to advise a defendant of his appellate rights. Furthermore, when a trial court enters a sentence but takes restitution under advisement, the trial court is still subject to the ninety (90) day time limitation in Indiana Trial Rule 53.2 (“the lazy judge rule”), which is applicable to criminal proceedings pursuant to Indiana Criminal Rule 15. Therefore, the best practice would be for trial courts to enter an order of restitution at the same time as sentencing.

Dismissed and remanded with instructions.

KIRSCH, and VAIDIK, JJ„ concur.

      . The chronological case summary (“CCS”) contained in the Appendix does not contain a complete entry for August 7, 2012. In a verified motion filed with this Court, Alexander attached a more recent copy of the CCS that contains a complete entry for August 7 and that reveals that the trial court had postponed the scheduling of the restitution hearing. See State v. Black, 947 N.E.2d 503, 504 n. 7 (Ind.Ct.App.2011) (referencing a CCS in our Clerk’s file and noting that our Clerk's file is "part of the record before us”).

      . Given our disposition of this appeal, we deny Alexander's motion for oral argument by separate order.

      . We make no comment on the propriety or amount of restitution that the trial court may order. Our instructions on remand are simply that the trial court enter an order, either setting forth an amount of restitution to be paid or stating that no restitution will be ordered.

      . We note that this delay will not affect Alexander’s appellate rights to have his appeal heard. Additionally, there is also no prejudice resulting from the delay because Alexander is making no appellate challenge to his conviction or sentence relating to the aggravated battery of Seger and would remain in the Department of Correction for that conviction no matter what the outcome of this appeal on the merits.


author: BARNES, Judge.

text:
    Dwight L. COBBS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1207-CR-380.
    Court of Appeals of Indiana.
    May 10, 2013.

      John (Jack) F. Crawford, Crawford & Devane, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

Dwight Cobbs appeals his conviction for Class B felony dealing in cocaine. We affirm.

Issue

Cobbs raises one issue, which we restate as whether the trial court properly admitted the testimony of a confidential informant.

Facts

After Cobbs sold cocaine to a confidential informant inside of a Kroger supermarket in Indianapolis during a recorded, controlled buy on July 15, 2010, the State charged Cobbs with Class A felony dealing in cocaine and Class B felony possession of cocaine. After a dispute regarding the deposition of the confidential informant, Cobbs filed a motion to exclude the confidential informant’s testimony. On June 1, 2011, the trial court granted Cobbs’s motion.

At the beginning of the August 9, 2011 trial, the deputy prosecutor informed the trial court that the police officer who had stopped Cobbs after the controlled buy and recovered the marked buy money was out of the state. The deputy prosecutor stated: “Knowing this Court’s policy on continuances, we’re just going to dismiss this case. However, we are going to refile it and make sure that we have all our witnesses when we are ready to go next time.” August 9, 2011 Trial Tr. p. 16-17. The trial court dismissed the charges without prejudice. Cobbs’s counsel stated, “we’d ask for dismissal with prejudice, but we understand.” Id. at 17.

The State then refiled the charges against Cobbs. The new charges included the original charges plus a charge of Class A felony conspiracy to commit dealing in cocaine. The refiled charges were heard before a different trial court judge. Cobbs filed a motion to dismiss the conspiracy charge because, according to Cobbs, “a purchaser of drugs cannot be considered to be conspiring with another individual to deal drugs.” Appellant’s App. p. 47. The State then moved to dismiss the conspiracy count, which the trial court granted.

Cobbs also filed a motion to exclude the audio recording of the controlled buy and recordings of jail calls. The State then requested that the trial court reconsider the exclusion of the confidential informant’s testimony. The State conceded that, under the law of the case, the confidential informant’s testimony would be excluded in the present case. However, the State pointed out that the audio/video recordings of the controlled buy were not excluded by the original trial court. The State then asked, based on Cobbs’s new request regarding the recordings, that the new trial court reconsider the initial exclusion of the confidential informant’s testimony. Cobbs argued that he was not attempting to relitigate any issues and that the original trial court did not address the recordings.

After a hearing, the new trial court judge found that the confidential informant’s testimony was improperly excluded. The trial court noted that there was no finding of misconduct by the State and there was insufficient evidence of “intentional conduct by the State to keep the witness out.” Tr. p. 9. Consequently, the trial court ruled that the confidential informant could testify at the trial.

Cobbs then filed another motion to exclude the testimony of the confidential informant. Relying on Davenport v. State, 689 N.E.2d 1226 (Ind.1997), reh’g granted in part, 696 N.E.2d 870 (Ind.1998), and Johnson v. State, 740 N.E.2d 118 (Ind.2001), Cobbs argued that his substantial rights had been violated. According to Cobbs, the State refiled the charges to avoid an adverse evidentiary ruling, and the State “waited until the last minute” to try to relitigate the exclusion of the confidential informant’s testimony. App. p. 66. Cobbs again requested that the trial court exclude the testimony of the confidential informant, the audio/video recording of the controlled buy, and “any statements of others derived from the informant.” Id. at 67. The trial court again denied Cobbs’s motion to exclude this evidence. The trial court also denied Cobbs’s motion for certification for interlocutory appeal.

At the start of Cobbs’s bench trial, the State moved to amend the charges to Class B felony dealing in cocaine and Class D felony possession of cocaine, which the trial court allowed. The trial court found Cobbs guilty as charged. Due to double jeopardy concerns, the trial court did not enter judgment of conviction on the Class D felony charge. On the B felony conviction, the trial court sentenced Cobbs to fourteen years in the Department of Correction.

Analysis

Cobbs argues that the trial court abused its discretion when it admitted the testimony of the confidential informant. We afford the trial court wide discretion in ruling on the admissibility of evidence. Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind.2012). We review evidentiary decisions for abuse of discretion and reverse only when the decision is clearly against the logic and effect of the facts and circumstances. Id. “An error is harmless if its probable impact on the [trier of fact], in light of all of the evidence in the case, is sufficiently minor so as not to affect a party’s substantial rights.” Brown v. State, 770 N.E.2d 275, 280 (Ind.2002).

Cobbs argues that the trial court erred by admitting the testimony of the confidential informant because the testimony had been exclude'd by a previous court and the State dismissed and refiled the charges. Cobbs makes no argument regarding the audio/video recording of the controlled buy. Cobbs asks that we vacate his conviction and remand for the State to retry him without the testimony of the confidential informant or to dismiss all charges against him.

Pursuant to Indiana Code Section 35-34-1-13, the prosecuting attorney may move for the dismissal of charges at any time prior to sentencing. As long as the State gives a reason for the dismissal, the trial court must grant the motion. Davenport v. State, 689 N.E.2d 1226, 1229 (Ind.1997), reh’g granted in part, 696 N.E.2d 870 (Ind.1998). The dismissal of an information under Indiana Code Section 35-34-1-13 is not necessarily a bar to refiling. Id. The State may refile an information against the defendant subject to certain restrictions. For example, the State may not dismiss and refile if jeopardy has already attached or to “evade the defendant’s speedy trial rights.” Id.

Further, “[t]he State may not refile if doing so will prejudice the substantial rights of the defendant.” Id. ‘While we have not specifically defined what a substantial right is in other contexts, it is relatively clear what situations do not necessarily prejudice a defendant’s substantial rights.” Id. Those situations include the following: 1) where the State dismisses a charge because it is not ready to prosecute and then refiles an information for the same offense; 2) where the State dismisses an information in order to avoid an adverse evidentiary ruling and then refiles an information for the same offense; and 3) where the State dismisses a charge and refiles an amended information charging the same offense. Id. “The defendant’s substantial rights are not prejudiced in these situations primarily because the defendant can receive a fair trial on the same facts and employ the same defense in the second trial as in the first.” Id. “Public policy favors the prosecution of persons accused of criminal offenses when a fair trial is available.” Id. at 1230.

In Davenport, the defendant was charged with murder and, four days before trial, the State attempted to amend the charging information by adding charges of felony murder, attempted robbery, and auto theft. The trial court denied the motion, and the State dismissed the murder charge. The State then refiled the murder charge along with the other proposed charges. The defendant moved to dismiss the additional charges, but the trial court denied the motion.

Our supreme court noted that, after receiving an adverse ruling on its motion to amend, the State had dismissed and refiled the information with the additional charges. The State had also moved for and was granted transfer to a different court. “By doing so, the State not only crossed over the boundary of fair play but also prejudiced the substantial rights of the defendant.” Id. “Because of a sleight of hand, the State was able to escape the ruling of the original court and pursue the case on the charges the State had sought to add belatedly.” Id. The court noted that “[t]his [was] significantly different than what ha[d] been permitted in the past.” Id. The court concluded that the trial court erred by denying the defendant’s motion to dismiss the felony murder, attempted robbery, and auto theft charges. Consequently, the court reversed the convictions on those charges.

Our supreme court addressed a similar issue in Johnson v. State, 740 N.E.2d 118 (Ind.2001). There, the defendant was charged with sexual misconduct with a minor, and the trial court granted a motion in limine, excluding certain Rule 404(b) evidence. In response, the State filed a motion to dismiss, which the trial court granted. The State then refiled the information and added ten more charges. The defendant moved to dismiss all of the charges, and the trial court denied the motion.

Our supreme court noted that: “If the State may circumvent an adverse eviden-tiary ruling by simply dismissing and refiling the original charge, and also ‘punish’ the defendant for a successful procedural challenge by piling on additional charges, defendants will as a practical matter be unable to avail themselves of legitimate procedural rights.” Johnson, 740 N.E.2d at 121. The court also noted that no new evidence was discovered between the dismissal and refilling. The court concluded that “the State exceeded the boundaries of fair play.” Id. “The prosecutor impermis-sibly impinged the defendant’s exercise of his substantial procedural rights by dismissing and refiling to evade an adverse trial court ruling and, in the process, piling on additional charges that were unjustified by changed circumstances.” Id. The court concluded that the proper remedy was “to restore the defendant to something like the status quo ante.” Id. It determined that the State could proceed with the original charge of sexual misconduct excluding the 404(b) evidence, or the State could “forego the original charge and pursue another charge carrying a similar potential penalty, with the opportunity to offer Rule 404(b) evidence if timely notice is given and the trial court rules favorably on admissibility.” Id.

Despite Cobbs’s arguments, we conclude that this case is more like Hollowell v. State, 773 N.E.2d 326 (Ind.Ct.App.2002), than Davenport or Johnson. In Hollowell, the defendant was charged with battery and resisting law enforcement. On the day of his trial, the State dismissed the charges because of a missing essential witness. The State offered not to refile the information if the defendant pled guilty in a separate case. When the defendant refused, the State refiled charges of battery, two counts of resisting law enforcement, and escape. The State claimed that it had erred by not filing the additional charges in the prior case. The defendant moved to dismiss the charges, but the trial court denied the motion.

On appeal, we affirmed the trial court’s denial of the motion to dismiss. We noted that the State was not attempting to circumvent an adverse ruling, that the State was not attempting to punish the defendant by adding more charges, that the defendant had sufficient time to prepare a defense for the new charges, and that the defendant was not forced to discard his prior preparation for trial and begin again with new strategies and defenses.

Here, although Cobbs claims that the State dismissed the charges against him to avoid the adverse ruling regarding the testimony of the confidential informant, the record does not support his claim. The record indicates that, despite the original trial court’s ruling regarding the testimony of the confidential informant, the State was proceeding with Cobbs’s trial. The State ultimately dismissed the charges because it was missing an essential witness on the day of trial and because the trial court apparently had a strict continuance policy.

When the State refiled charges, it did add a conspiracy charge. However, that conspiracy charge was promptly dismissed, leaving only the original charges of Class A felony dealing in cocaine and Class B felony possession of cocaine. In fact, at Cobbs’s trial, the State also dropped the allegation that Cobbs sold the cocaine within 1000 feet of a public park, leaving Cobbs with charges of Class B felony dealing in cocaine and Class D felony possession of cocaine, which were less severe than the original charges. Under these circumstances, we cannot say that Cobbs’s substantial rights pursuant to Davenport were violated by the trial court’s admission of the confidential informant’s testimony.

We acknowledge that, after the State refiled the charges, it did seek a reconsideration of the exclusion of the confidential informant’s testimony, and the new trial court allowed that testimony. However, even if the trial court improperly reconsidered the exclusion of the confidential informant’s testimony, we conclude that any error was harmless. Cobbs does not challenge the admission of the audio/video recording of the controlled buy or the officer’s testimony regarding the controlled buy. The evidence presented at trial demonstrated that the officers searched the confidential informant and gave him $100 in buy money. The confidential informant met with Cobbs in the Kroger parking lot. The two men entered the Kroger store and were heard exchanging something for $100. Once outside, the confidential informant was searched again and was in possession of cocaine. Cobbs was stopped by an officer, and he was in possession of the $100 in buy money. Even without the confidential informant’s testimony, there was overwhelming evidence to support Cobbs’s conviction. Even Cobbs concedes that: “It would appear from the evidence that even without the informant testifying the State had a fairly strong case.” Appellant’s Br. p. 11. A reviewing court may determine that improper evidence did not have a significant impact on a judge or jury where there was other overwhelming evidence of guilt. Shanks v. State, 640 N.E.2d 734, 736 (Ind.Ct.App.1994). Any error in the admission of the confidential informant’s testimony was harmless.

Conclusion

The trial court properly admitted the confidential informant’s testimony. Even if the trial court erred by admitting the testimony, any error was harmless. We affirm.

Affirmed.

NAJAM, J., and BAILEY, J., concur.

      . In his reply brief, Cobbs argues that the admission of the confidential informant’s testimony also prejudiced his substantial rights "in contravention of all the fundamental rules of discovery.” Appellant's Reply Br. p. 3. Cobbs reviews the alleged discovery violations and argues that, under the discovery rules, the new trial court judge erred by allowing the confidential informant to testify. This is a different argument than the one presented in Cobbs’s Appellant’s Brief — that his substantial rights were violated pursuant to Davenport. Appellants are not permitted to raise new arguments in their reply briefs. Curtis v. State, 948 N.E.2d 1143, 1148 (Ind.2011). This argument is waived.


text:
    In the Matter of Shante P. HENRY, Respondent.
    No. 45S00-1211-DI-651.
    Supreme Court of Indiana.
    May 16, 2013.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW IN INDIANA FOR NONCOOPERATION

On December 4, 2012, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission’s investigation of a grievance filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court’s order to show cause. The Commission has filed a “Request for Ruling and to Tax Costs.”

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

IT IS FURTHER ORDERED, pursuant to Admission and Discipline Rule 23(10)(f)(5), that Respondent reimburse the Disciplinary Commission $511.50 for the costs of prosecuting this proceeding.

The Clerk of this Court is directed to give notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys. The Clerk of this Court is further directed to give notice of this order to the Disciplinary Commission and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.