author: BRADFORD, Judge.

text:
    WIND WIRE, LLC, Appellant-Defendant, v. Roger FINNEY and Patricia Finney, Appellees-Plaintiffs.
    No. 71A03-1202-PL-78.
    Court of Appeals of Indiana.
    Oct. 17, 2012.
    Jonathan A. Watson, Wandling & Associates, South Bend, IN, Attorney for Appellant.
    Jamie C. Woods, Phillip A. Garrett, Thorne • Grodnik, LLP, Mishawaka, IN, Attorneys for Appellees.
   OPINION

BRADFORD, Judge.

Appellant-Defendant Wind Wire LLC appeals the trial court’s judgment that it fraudulently induced Appellees-Plaintiffs Roger and Patricia Finney to execute a contract for the purchase and installation of a residential wind turbine and that it breached that contract’s implied warranty of fitness for a particular purpose. We affirm.

FACTS AND PROCEDURAL HISTORY

The trial court based its judgment on these specific findings of fact. At some point prior to May 14, 2008, the Finneys received a copy of a Wind Wire advertising brochure that had been left in their mailbox by a Wind Wire representative. The brochure described the cost savings to be realized through the use of energy producing wind turbines and included the following representations:

WIND-WIRE provides the average household the means to harness the wind at a feasible cost for a savings of approximately 75% to 100% of current electric service.
With a savings of approximately $160 plus per month and a payoff span of 3^4 years you would control 75% to 100% of your electric supply utilizing nature and doing your small part for the ecology? (sic)
If you could invest in a system that would not only increase the value of your property but could generate an average of 700K wh [sic] per hour could you do it?
WIND-WIRE will show how the homeowner can receive a substantial refund on their (sic) taxes for the installation of the system, saving the homeowner even more money.

Appellant’s App. p. 4

Wind Wire produced the brochure as an advertising tool to induce people to contract with Wind Wire for the purchase and installation of wind turbines, and it conceded at trial that a reasonable person would rely on the information contained in the brochure. Intrigued by the brochure’s representations, the Finneys contacted Wind Wire and later met with Wind Wire representatives to discuss the installation of a wind turbine on the Finneys’ property.

While meeting with Wind Wire, Mr. Fin-ney declared that the Finneys wanted to install a turbine to save money on their electric bill. In response to Mr. Finney’s statement, Wind Wire representative Glen Smith affirmed the cost savings representations contained in Wind Wire’s brochure. At trial, however, Wind Wire could not recall the name or location of the customer alleged in the brochure to have generated an average of 700 kWh through the use of its wind turbine. Moreover, at the time Wind Wire placed the brochure in the Finneys’ mailbox, it did not know the average wind speed in the town where the Finneys’ property is located.

Smith also told the Finneys that Wind Wire was highly qualified, had been in the wind turbine business for awhile, and had installed two turbines at a bank in Misha-waka. Based on these representations, the Finneys believed Wind Wire’s representatives to be qualified and knowledgeable. However, the extent of Smith’s formal training was a one-hour “webinar”; he had no experience with wind turbines prior to undertaking the business of selling and installing them.

Wind Wire also told the Finneys that the company supplying their electric service, AEP, would purchase the excess energy produced by their wind turbine. As intended by Wind Wire, Mr. Finney understood this to mean that AEP would issue him a check for those periods in which his energy production exceeded his energy consumption. AEP, however, does not issue checks to its customers for this reason. Moreover, Wind Wire failed to inform the Finneys that, in order to measure the production of excess energy, their wind turbine would require a type of electrical meter other than the typical residential meter with which their wind turbine was equipped.

Wind Wire’s representatives further told the Finneys that installation of a wind turbine would entitle them to a tax credit, the amount of which was described in terms of a percentage of the purchase price. In fact, the credit was fixed at $900.00 for the Finneys. Wind Wire created the impression that the amount of the Finneys’ tax credit would be greater.

On May 14, 2008, in reliance on the representations contained in the brochure and the statements made by Wind Wire representatives during their meeting with the Finneys, the Finneys executed a contract with Wind Wire for the purchase and installation of a wind turbine. The wind turbine was not erected on the Finneys’ property until October 2008, and it did not begin producing electrical power until September 2009. Since that time, the Fin-neys’ wind turbine has produced no excess power and has had no effect on their electric bills. The wind turbine actually consumes energy while it sits idle. Based on the cost of electricity from AEP, it would not be possible for the Finneys’ wind turbine to pay for itself in three to four years. AEP represents that it typically takes twenty-five years for a wind turbine to pay for itself. Moreover, in the approximately one year since its installation on the Fin-neys’ property, the wind turbine has produced a total of only 184.2 kWh. According to AEP, even if the wind turbine were running continuously at maximum capacity, it would create only 1100-1200 kWh and produce, at most, a utility savings of $155 per month.

In July 2010 a Wind Wire representative met with representatives of Southwest Wind Power (“SWP”), the manufacturer of the wind turbines Wind Wire installs, to address problems with such installations. SWP had received customer complaints directed at Wind Wire and was concerned about customer expectations of energy production associated with Wind Wire’s installation of SWP wind turbines. SWP questioned Wind Wire about its customers’ experiences, specifically inquiring as to how Wind Wire arrived at the energy production data it was advertising. SWP was especially concerned about Wind Wire’s marketing materials and its ability to service its customers adequately. Ultimately, SWP placed Wind Wire on a sixty-day suspension and admonished Wind Wire not to “share extraordinary production levels of previous customers with potential customers during the sales process.” Appellant’s App. p. 4. SWP further placed Wind Wire on six months probation due to concerns with Wind Wire’s marketing materials and customer satisfaction.

On August 9, 2010, the Finneys filed a complaint in St. Joseph Superior Court, alleging, among other things, breach of contract, breach of implied warranty of fitness for a particular purpose, and fraud. Relevant to these claims, the Finneys’ contract with Wind Wire contained the following integration clause:

It is understood that this Agreement and any documents which are attached hereto or referenced herein constitute the intire [sic] agreement between the parties and all other agreements, repre-senstion [sic], promises, inducements, statements, and understandings, prior to and contemporaneous with this Agreement, written or oral, are suspended by this Agreement.

Appellant’s App. p. 17. The contract also included the following paragraph regarding warranties:

IF PURCHASER MAKES ALL PAYMENTS WHEN DUE, SELLER AND THE MANUFACTURER OF CERTAIN OF THE MATERIAL BEING SUPPLIED BY SELLER WILL PROVIDE PURCHASER WITH SPE-CIFICATE [sic] WARRANTIES. SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESEPCT TO THE GOODS COVERED BY THIS CONTRACT....

Appellant’s App. p. 18. On January 17, 2012, after a bench trial, the trial court entered judgment in favor of the Finneys. Specifically, the trial court concluded:

Wind Wire has breached [the contract] by failing to provide [the Finneys] the warranties referenced in paragraph 15.[]
[Wind Wire] has breached the implied warranty that the turbine at issue was fit for the particular purpose for which [the Finneys] purchased it.
[Wind Wire] fraudulently induced [the Finneys] to execute the contract by knowingly and falsely misrepresenting its experience and expertise, knowingly and falsely misrepresenting the cost savings [the Finneys] would enjoy as a result of the installation of the wind turbine at issue, and by having made such representations, fully aware of their falsity, for the purpose of inducing [the Finneys] to contract with Wind Wire for the purchase and installation of a wind turbine.

Appellant’s App. p. 9. The trial court determined that the Finneys suffered damages “at least in the amount of $14,500.00” and that they “are entitled to treble damages due to [Wind Wire’s] fraudulent conduct.” Appellant’s App. p. 9. The court also awarded the Finneys reasonable attorneys fees, for a total judgment of “$54,-893.00 plus the costs of this action.” Appellant’s App. p. 9.

DISCUSSION AND DECISION

I. Integration Clause and Disclaimer

Wind Wire argues that the trial court erred in finding fraud in the inducement. The elements of fraud are “(1) a material representation of [... ] facts which (2) was false, (3) was made with knowledge or reckless ignorance of its falsity, (4) was made with the intent to deceive, (5) was rightfully relied upon by the complaining party, and (6) proximately caused injury to the complaining party.” Tru-Cal, Inc. v. Conrad Kacsik Instrument Sys., Inc., 905 N.E.2d 40, 44-45 (Ind.Ct.App.2009). Wind Wire claims the Finneys are precluded from satisfying the fifth element — justifiable reliance— because its contract with the Finneys contained an integration clause that disclaimed reliance on any prior representations. We restate this issue as whether the trial court committed clear error by applying the wrong legal standard.

In the appellate review of claims tried without a jury, the findings and judgment are not to be set aside unless clearly erroneous, and due regard is to be given to the trial court’s ability to assess the credibility of the witnesses. A judgment will be clearly erroneous when there is “no evidence supporting the findings or the findings fail to support the judgment,” and when the trial court applies the wrong legal standard to properly found facts. While findings of fact are reviewed under the clearly erroneous standard, appellate courts do not defer to conclusions of law, which are reviewed de novo.

Fraley v. Minger, 829 N.E.2d 476, 482 (Ind.2005) (internal citations omitted).

“An integration clause of a contract is to be considered as any other contract provision to determine the intention of the parties and to determine if that which they intended to contract is fully expressed in the four corners of the writing.” Prall v. Ind. Nat’l Bank, 627 N.E.2d 1374, 1377-78 (Ind.Ct.App.1994) (citing Franklin v. White, 493 N.E.2d 161, 166 (Ind.1986)). “Generally, where parties have reduced an agreement to writing and have stated in an integration clause that the written document embodies the complete agreement between the parties, the parol evidence rule prohibits courts from considering extrinsic evidence for the purpose of varying or adding to the terms of the written contract.” Id. (citing I.C.C. Protective Coatings, Inc. v. A.E. Staley Mfg. Co., 695 N.E.2d 1030, 1035 (Ind.Ct.App.1998)). “An exception to the parol evidence rule applies, however, in the case of fraud in the inducement, where a party was ‘induced’ through fraudulent representations to enter a contract.” Circle Ctr. Dev. Co. v. Y/G Ind., L.P, 762 N.E.2d 176, 179 (Ind.Ct.App.2002).

Wind Wire contends the fraudulent inducement exception to the parol evidence rule only applies if the alleged misrepresentation specifically “ ‘induced or produced the execution of the ... disclaimer,’ ” as opposed to the signing of the contract generally. Appellant’s Br. p. 9 (quoting Circle Ctr. Dev. Co., 762 N.E.2d at 180). Although Wind Wire accurately quotes our decision in Circle Ctr. Dev. Co., the proposition upon which it relies has a broader application. “In both Prall and Circle Ctr. Dev. Co. we acknowledged that a party could overcome the effect of an integration clause if it could show it had a right to rely on the alleged misrepresentations and did in fact rely on them in executing the release and/or integration clause.” Trur-Cal, Inc., 905 N.E.2d at 45 (emphasis added) (citing Prall, 627 N.E.2d 1374; Circle Ctr. Dev. Co., 762 N.E.2d 176). Moreover, our decision in Circle Ctr. Dev. Co. did not overrule the requirement that the weight given to a contract’s integration clause be decided on a case-by-case basis. See id. at 46 (quoting Prall, 627 N.E.2d at 1379) (“ ‘Whether one has the right to rely depends largely on the facts of the case.’ ”).

We conclude that the trial court did not apply the wrong legal standard and, therefore, that its judgment is not clearly erroneous. We note that Wind Wire makes no claim in its Appellant’s Brief that the evidence does not support the trial court’s findings of fact or that these findings fail to support the court’s conclusions of law. The trial court’s judgment on this issue is affirmed.

II. Warranty of Fitness for a Particular Purpose

Having affirmed the trial court’s judgment on fraud in the inducement, we need not reach Wind Wire’s second argument that the court erred in finding breach of the implied warranty of fitness for a particular purpose. As Wind Wire correctly highlights in its reply brief, “the breach of warranty did not form the basis of [the trial court’s] decision” or the resulting calculation of damages. Reply Br. p. 7. “Rather, the decision was based entirely on the finding of fraud.” Reply Br. p. 7. Any error pertaining to this issue is, therefore, harmless.

The judgment of the trial court is affirmed.

ROBB, C.J., and BAKER, J., concur.

      . The warranties are actually referenced in paragraph 16.

      . "A release is a species of contract....” Prall, 627 N.E.2d at 1377.


source: Caselaw Access Project

author: BAILEY, Judge. CRONE, Judge,

license: Public Domain

text:
    Calvin MERIDA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 69A01-1203-CR-110.
    Court of Appeals of Indiana.
    Oct. 23, 2012.
    Jennifer A. Joas, Madison, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Calvin Merida (“Merida”) pled guilty to and was convicted of two counts of Child Molesting, as Class A felonies. He now appeals his sentence.

We reverse and remand with instructions.

Issue

Merida raises two issues for our review, which we restate as a single issue: whether his sentence is inappropriate.

Facts and Procedural History

Merida married his wife, J.M., who at the time of their marriage had a daughter, R.M., from a prior relationship. Merida adopted R.M. as his daughter. On at least two occasions during the period from 2001 to 2007, Merida performed or submitted to sexual intercourse or deviate sexual conduct with R.M. while he was at least twenty-one years of age and R.M. was less than fourteen years of age.

On December 20, 2010, the State filed charges against Merida for eight counts of Child Molesting, as Class A felonies, with each separate count pertaining to one year from 2000 to 2007. On December 21, 2010, the State moved to amend its charging information to add counts Nine and Ten. Count Nine alleged that Merida had committed Child Molesting, as a Class A felony, during the period from January 1, 2001 to November 1, 2001. Count Ten alleged that Merida had committed Child Molesting, as a Class A felony, during the period from December 1, 2001 to December 31, 2007.

On November 28, 2011, the State moved to dismiss the eight original counts, and a jury trial as to Counts Nine and Ten was scheduled for November 30, 2011. After a jury was empanelled but before evidence was offered, Merida pled guilty to Counts Nine and Ten.

On January 30, 2012, a sentencing hearing was conducted. At its conclusion, the trial court entered judgments of conviction against Merida and sentenced him to thirty years imprisonment for each of the two counts, with the sentences run consecutively for an aggregate term of imprisonment of sixty years.

This appeal ensued.

Discussion and Decision

Merida challenges the appropriateness of his sentence. Specifically, he directs our attention to 1) the trial court’s use of the emotional impact of his offense upon R.M. as an aggravating factor at sentencing, and 2) the trial court’s decision to run the two terms of imprisonment consecutively to one another. He therefore asks that we revise his sentence pursuant to our independent authority to review sentences under the Indiana Constitution and Appellate Rule 7(B).

In Reid v. State, the Indiana Supreme Court reiterated the standard by which our state appellate courts independently review criminal sentences:

Although a trial court may have acted within its lawful discretion in determining a sentence, Article VII, Sections 4 and 6 of the Indiana Constitution authorize independent appellate review and revision of a sentence through Indiana Appellate Rule 7(B), which provides that a court may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender. The burden is on the defendant to persuade us that his sentence is inappropriate.

876 N.E.2d 1114, 1116 (Ind.2007) (internal quotation and citations omitted).

Our supreme court has stated that “sentencing is principally a discretionary function in which the trial court’s judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.2008). Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented. See id. at 1224. One purpose of appellate review is to attempt to “leaven the outliers.” Id. at 1225. “Whether we regard a sentence as appropriate at the end of the day turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Id. at 1224.

Here, Merida was convicted of two counts of Child Molesting, as A felonies. The sentencing range for each offense runs from twenty to fifty years imprisonment, with an advisory sentence of thirty years. Ind. Code § 35-50-2-4. The trial court sentenced Merida to the advisory sentence of thirty years for each offense with the sentences to run consecutively, yielding an aggregate term of imprisonment of sixty years.

Taking into account the nature of Meri-da’s offense and his character, we cannot conclude that the sixty-year aggregate term of imprisonment is appropriate here. Merida pled guilty to two counts of Child Molesting over the course of a nearly seven-year period. There is no evidence that Merida’s conduct itself was particularly violent or in any other way more severe than that contemplated by the legislature in setting an advisory sentence. However, Merida was R.M.’s adoptive father and therefore held a position of trust and care with the victim. In addition, the presen-tencing investigation report included a statement from J.M. that “as a result of the offenses becoming known, [R.M.] suffers from life-altering anxiety” that forced R.M. to withdraw from school and precluded her from leaving her home with friends or even taking phone calls from friends. (App. at 175.)

With respect to his character, Merida has no prior criminal history, graduated from high school, obtained some additional education through correspondence training, and maintained consistent and generally well-paid employment. Merida pled guilty after the jury was empanelled and before the presentation of evidence, but did so without the presence of a plea agreement.

Under these circumstances, we cannot conclude that the nature of Merida’s offense and his character warrant the sixty-year aggregate term of imprisonment assessed by the trial court. In light of our role to “leaven the outliers,” Cardwell v. State, 895 N.E.2d at 1222, and the relative equipoise of the trial court’s assessment of the aggravating and mitigating factors, we exercise our independent power under Appellate Rule 7(B) to revise Merida’s sentences. We therefore reverse the trial court’s sentencing order and remand with instructions to revise the sentencing order to run his two thirty-year sentences concurrent to one another, for an aggregate thirty-year term of imprisonment.

Reversed and remanded with instructions.

RILEY, J., concurs.

CRONE, J., concurs in part and dissents in part, with opinion.

CRONE, Judge,

concurring in part and dissenting in part.

I agree with the majority’s determination that Merida’s sixty-year aggregate sentence is inappropriate in light of the nature of the offenses and his character. I also agree with its determination that the thirty-year advisory sentence on each count is appropriate. Nevertheless, I respectfully disagree with the majority’s de-cisión to “run [Merida’s] two thirty-year sentences concurrent to one another, for an aggregate thirty-year term of imprisonment.” Op. at 409. In the words of the Cardwell court, I believe that “additional criminal activity directed to the same victim should not be free of consequences,” 895 N.E.2d at 1225, and therefore I would remand with instructions to revise Meri-da’s sentence such that eight years of the thirty-year sentence on count 10 would run consecutive to the thirty-year sentence on count 9 and the remainder would run concurrent, for a total executed sentence of thirty-eight years.

In Hull v. State, 799 N.E.2d 1178 (Ind.Ct.App.2003), another panel of this Court disapproved of a similarly structured sentence for two counts of murder, stating,

“When a sentence is imposed, the commencement of that sentence cannot be delayed absent specific statutory authorization^]” Erby v. State, 511 N.E.2d 302, 304 (Ind.1987); see also Woods v. State, 583 N.E.2d 1211, 1212-13 (Ind.1992) (concluding that five and one-half year delay in commencement of sentence violated the principles of equity and the requirements of prompt action by the State). The trial court cited and we can find no statutory support for the ten-year delay in commencement of the sentence for Count II under these circumstances.

Id. at 1182. In a footnote, the Hull court remarked,

To conclude otherwise could lead to some rather complicated scenarios. For instance, if Hull’s sentence on Count I was overturned for some reason, would he be free for ten years before having to report to the Department of Correction to begin serving his sentence on Count II? Would he need to be monitored during the ten year hiatus? What if he committed another crime during those ten years? Could he request that he begin serving his sentence immediately rather than having it hanging over him for a decade?

Id. at n. 1.

With all due respect, I believe that the Hull court’s concerns are unfounded. The commencement of any consecutive sentence must be delayed, and the courts and the Department of Correction have always managed to sort through any complications arising from sentences being overturned on appeal in consecutive sentencing cases. Moreover, the statute that governs consecutive sentencing, Indiana Code Section 35-50-1-2, does not specifically prohibit partially consecutive sentences such as the one imposed in Hull. In my view, such sentences would be eminently reasonable in situations where simply “stacking” sentences for crimes against multiple victims (or multiple crimes against a single victim) would result in an inappropriately lengthy aggregate sentence and ordering concurrent sentences would result in an inappropriately lenient one.

To be sure, a thirty-eight-year aggregate sentence could have been achieved in this case simply by ordering concurrent sentences of thirty-eight years on each count (or thirty years on the first count and thirty-eight on the second). Given that “additional criminal activity directed to the same victim should not be free of consequences,” Cardwell, 895 N.E.2d at 1225, ordering partially consecutive sentences would be a more logical way of imposing what I consider the appropriate punishment in this case.

I acknowledge that Indiana Code Section 85-50-1-2 does not specifically authorize partially consecutive sentences, but I believe that the statute should be interpreted to provide trial courts with as much flexibility as possible to tailor an appropriate sentence for each defendant based on the facts of each case. See id. at 1224 (“Indiana has never adopted a mechanical approach to sentencing, and we have not identified any inflexible system that did not raise more problems than it solved”). Any doubts in this regard should be resolved by either our supreme court or our legislature, which is currently reviewing Indiana’s criminal code with an eye toward overhauling both its substantive and sentencing provisions. If it is determined that the statute as currently written does not authorize partially consecutive sentences, it is my hope that the legislature would amend the statute accordingly and give trial courts and appellate courts an important tool for crafting appropriate sentences in cases like this one.

      . Ind.Code § 35-42-4-3(a).

      . To the extent the parties rely upon aver-ments in the probable cause affidavits submitted in support of the charging informations, we observe that there is nothing in the record that indicates whether the parties stipulated to the facts as set forth in the affidavits, we lack a copy of the transcript of the hearing in which Merida entered his guilty plea, and the trial court does not appear to have based its sentencing decisions on the affidavits. We therefore set forth the facts and review Meri-da’s appeal based upon the limited record now before us.

      . Counts Nine and Ten reflect a change in address of the family home in November 2001.

      . Pursuant to Indiana Code Section 35-50-2-2, Merida would not be eligible for a suspended sentence on at least one of the counts (count 9), which alleges that he molested R.M. when she was either six or seven years old. See Ind.Code § 35 — 50—2—2(i) ("If a person is: (1) convicted of child molesting (IC 35-42-4-3) as a Class A felony against a victim less than twelve (12) years of age; and (2) at least twenty-one (21) years of age; the court may suspend only that part of the sentence that is in excess of thirty (30) years.”). Count 10 alleges that Merida molested R.M. when she was between seven and thirteen years old. If a person is convicted of class A felony child molesting against a victim at least twelve years of age, "the court may suspend only that part of the sentence that is in excess of the minimum sentence,” which is twenty years. Ind.Code § 35-50-2-2(b). In my view, suspending any portion of Merida’s sentence would not be appropriate.

      . The defendant in Hull pled guilty to two counts of murder, and the trial court ordered that "ten years of the [sixty-five-year] sentence on Count Two will run consecutively to the [sixty-five-year] sentence on Count One. The remaining portion is run concurrently, so the sum total executed sentence imposed is 75 years executed.” 799 N.E.2d at 1181.

      . Indiana Code Section 35-50-1-2 reads in pertinent part as follows:
      (c)Except as provided in subsection (d) or (e), the court shall determine whether terms of imprisonment shall be served concurrently or consecutively. The court may consider the:
      (1) aggravating circumstances in IC 35-38-1-7.1(a); and
      (2) mitigating circumstances in IC 35-38-1-7.1(b);
      in making a determination under this subsection. The court may order terms of imprisonment to be served consecutively even if the sentences are not imposed at the same time. However, except for crimes of violence [listed in subsection (a) ], the total of the consecutive terms of imprisonment, exclusive of terms of imprisonment under IC 35-50-2-8 and IC 35-50-2-10, to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct [defined in subsection (b) ] shall not exceed the advisory sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted.
      (d) If, after being arrested for one (1) crime, a person commits another crime:
      (1) before the date the person is discharged from probation, parole, or a term of imprisonment imposed for the first crime; or
      (2) while the person is released:
      (A) upon the person's own recognizance; or
      (B) on bond
      the terms of imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes are tried and sentences are imposed.
      (e) If the factfinder determines under IC 35-50-2-11 that a person used a firearm in the commission of the offense for which the person was convicted, the term of imprisonment for the underlying offense and the additional term of imprisonment imposed under IC 35-50-2-11 must be served consecutively.