text:
    Leslie Ann GRIDER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 48A02-1112-CR-1156.
    Court of Appeals of Indiana.
    Oct. 24, 2012.

      John T. Wilson, Anderson, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Leslie Grider appeals her sentence following her convictions, in three separate causes, for two counts of forgery, Class C felonies; four counts of theft, as Class D felonies; and two counts of check fraud, as Class D felonies; pursuant to a plea agreement. Grider raises a single issue for our review, namely, whether the trial court erred when it imposed a sentence that violates the terms of her plea agreement.

We reverse and remand with instructions.

FACTS AND PROCEDURAL HISTORY

In 2010, the State charged Grider, under three separate cause numbers, with two counts of forgery, Class C felonies; four counts of theft, as Class D felonies; and two counts of check fraud, as Class D felonies. On June 2, 2010, Grider filed her written plea agreement with the trial court wherein she pleaded guilty as charged. The plea agreement provided in relevant part that her sentence would “be open to the Court with all counts to run concurrently.” Appellant’s App. at 29. At the sentencing hearing, Grider requested that she be given an opportunity to participate in Drug Court. The trial court agreed and ordered that she be evaluated for placement in the Drug Court program prior to sentencing.

On May 18, 2011, Grider began participating in the Drug Court program. But on September 14, she was terminated from the program for absconding. Accordingly the trial court held another sentencing hearing on October 31. At that hearing, the trial court rejected Grider’s plea agreement and ordered a jury trial. But the State then moved to set aside that order and asked the trial court to reinstate the plea agreement, which the court did. At sentencing on November 14, the trial court imposed sentence as follows: in Cause FC-073, eight years for forgery, a Class C felony; and three years each on the remaining counts; all sentences to run concurrently, for an aggregate term of eight years. In Cause FD-074, the trial court imposed three years for theft, as a Class D felony, to be served consecutive to the sentences imposed in Cause FC-073 and Cause FB-77. And in Cause FC-97, the trial court imposed eight years for forgery, a Class C felony, and three years for theft, as a Class D felony, with those sentences to run concurrently, for an aggregate term of eight years. In addition, the trial court ordered that the sentence in Cause FC-97 run consecutive to the sentences in Cause FC-073, FD-074, and FB-77. Thus, the trial court imposed an aggregate term for all causes of nineteen years. This appeal ensued.

DISCUSSION AND DECISION

Grider contends that the trial court violated the terms of her plea agreement when it imposed consecutive sentences. Our courts have long held that plea agreements are in the nature of contracts entered into between the defendant and the State. Lee v. State, 816 N.E.2d 35, 38 (Ind.2004). That is:

[a] plea agreement is contractual in nature, binding the defendant, the [S]tate, and the trial court. The prosecutor and the defendant are the contracting parties, and the trial court’s role with respect to their agreement is described by statute: If the court accepts the plea agreement, it shall be bound by its terms.

Id. (citing Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind.1994)). As such, we will look to principles of contract law when construing plea agreements to determine what is reasonably due to the defendant. See id.

The primary goal of contract interpretation is to give effect to the parties’ intent. Griffin v. State, 756 N.E.2d 572, 574 (Ind.Ct.App.2001), trans. denied. When the terms of a contract are clear and unambiguous, they are conclusive of that intent, and the court will not construe the contract or look to extrinsic evidence. Id. Rather, we will merely apply the contractual provisions. Id. Terms of a contract are not ambiguous merely because a controversy exists between the parties concerning the proper interpretation of terms. Id. Instead, ambiguity will be found in a contract only if reasonable people would find the contract subject to more than one construction. Id. We construe any contract ambiguity against the party who drafted it, which, in the case of plea agreements, is the State. See, e.g., Time Warner Entm’t Co. v. Whiteman, 802 N.E.2d 886, 894 (Ind.2004).

Here, Grider pleaded guilty as charged under three separate cause numbers in a single plea agreement. The provision relevant to sentencing states as follows: “The sentence shall be open to the Court with all counts to run concurrently.” Appellant’s App. at 29. Grider interprets that language to mean that the sentences for each of the counts to which she pleaded guilty would run concurrently. But the State argues, and the trial court agreed, that the provision means that while the individual counts were to run concurrently, there was “no barrier to the trial court exercising its discretion and ordering the sentences in the three causes from running consecutively.” Brief of Appellee at 7. We must agree with Grider.

Again, the plea agreement encompasses all counts and all three cause numbers. The plain meaning of the language “all counts to run concurrently,” absent any qualifying language, is that all of the counts that are included in the plea agreement are to run concurrently. Appellant’s App. at 29. Indeed, the plea agreement refers to “the sentence” and not “the sentences,” which clearly contemplates a single sentence for all three cause numbers and all counts. Id. We hold that the sentencing provision in the plea agreement is not ambiguous and that the plain meaning of the language indicates the parties’ intention that the trial court would impose concurrent sentences on all counts regardless of the separate cause numbers.

Further, even if the provision were ambiguous, any ambiguity is resolved in favor of the defendant. Rather than relying on extrinsic evidence, as the State would have us do, the better rule is to strictly construe the plea agreement against its drafter, the State. See, e.g., Time Warner, 802 N.E.2d at 894 (“we construe any contract ambiguity against the party who drafted it.”). As the United States Court of Appeals for the Third Circuit succinctly and persuasively stated: “In view of the government’s tremendous bargaining power, we will strictly construe the text against it when it has drafted the agreement.” United States v. Baird, 218 F.3d 221, 229 (3d Cir.2000), cert. denied, 522 U.S. 898, 118 S.Ct. 243, 139 L.Ed.2d 173 (1997). Thus, if we were to assume that Grider’s plea agreement is ambiguous, we must construe the term “all counts to run concurrently” to mean that the sentences under each cause number cannot run consecutively. See Appellant’s App. at 29. Hence, the trial court erred when it sentenced Grider to nineteen years. We reverse and remand and instruct the trial court to impose concurrent sentences for all counts and all cause numbers, for a total aggregate term of eight years, executed.

Reversed and remanded with instructions.

KIRSCH, J., and MAY, J., concur.

      . On appeal, Grider suggests that the record may be unclear whether the trial court reinstated the plea agreement, but the State asserts, and the record indicates, that the trial court did accept and reinstate the plea agreement prior to sentencing Grider.

      . Cause FB-77 refers to Grider's convictions for burglary and theft in January 2003.


source: Caselaw Access Project

license: Public Domain

text:
    In re PILOT PROJECT FOR AUDIO/VISUAL RECORDINGS IN LIEU OF PAPER TRANSCRIPTS IN the PREPARATION OF the RECORD AND BRIEFING ON APPEAL.
    No. 94S00-1209-MS-522.
    Supreme Court of Indiana.
    Sept. 18, 2012.
   ORDER ESTABLISHING THE INDIANA COURT REPORTING PILOT PROJECT FOR EXPLORING THE USE OF AN AUDIOVISUAL RECORD ON APPEAL

After a study of court reporting methods employed in court systems throughout the country, this Court determined that Indiana should explore some of the ways used by other jurisdictions to improve court reporting services. The use of audio/visual recording as the record on appeal is a method our neighbor, Kentucky, has used for more than 25 years to expedite the appellate process. This Order establishes a special court reporting pilot project, which will explore the use of audio/visual recordings as the record on appeal in lieu of paper transcripts. This effort shall be designated as the Indiana Court Reporting Pilot Project for Audio/Visual Recordings.

Background: Indiana’s trial courts use recording equipment, primarily digital, to record the proceedings in their courts. The courts employ county-paid court reporters who help the judge record the proceedings and, when requested to do so, transcribe the recording and create a transcript of the proceedings for submission and use by the Courts on Appeal. Pursuant to Administrative Rule 15, the courts of records in the county adopt, for approval by the Supreme Court, local rules by which all court recording services and charges are governed. The local rules must set the permissible per page fees a court reporter can charge for transcribing the record and must require an annual report of the income generated by each court reporter through the preparation of court transcripts. The 2011 reports indicate that approximately $1,862,000 was collected from the preparation of transcripts, and that $968,000 of that amount was paid from public funds for transcripts in indigent cases. The amounts generated in each county vary depending on the number of appeals and the length of the transcripts. The 2011 total amounts reported by county varied from zero to approximately $320,000 in Marion County, while the county transcript preparation per page charges varied from $2.50 to $7.50.

The Indiana Rules of Appellate Proce7 dure, which were adopted on February 4, 2000, effective January 2, 2001, were the result of a comprehensive undertaking by the Appellate Section of the Indiana State Bar Association, a special Appellate Rules Project, and the Supreme Court Committee on Rules of Practice and Procedure. The proposal tendered to this Court included, among other things, a recommendation that the time for preparation of the transcript be reduced from ninety (90) to sixty (60) days. This Court declined to reduce the 90-day time limit but indicated that further study may be warranted by stating in Appellate Rule 11(B) that the 90-day period will remain “until July 1, 2003, and until revised thereafter.”

Consistent with its continuing study and review of how to expedite the appellate process and improve court reporting services, this Court directed the Division of State Court Administration (Division) to conduct a study and report to the court on what other court systems are doing to provide more efficient, more timely and less costly court reporting and transcribing services. The Division reported that among the methods other jurisdictions use to expedite the appellate process, improve court reporting and transcription services, and reduce costs are: (1) the use of audio/visual recordings as the record on appeal; (2) the use of certified professional transcription experts; and, (3) the use of electronic briefing, filing and transmission of appellate documents.

In a separate effort, the Indiana Court of Appeals conducted an analysis of the time that transpired between the filing of the notices of appeal and the completion of transcripts in cases filed with that court. The results indicated that in 2010 there were two thousand two hundred seventy-six (2,276) appeals in which a transcript was filed. In those cases, the average number of days between the filing of a Notice of Appeal and the filing of the transcript was one hundred fifty-one (151) days. The fewest number of days was eighty-six (86), and the largest was two hundred twenty-nine (229).

In light of the foregoing, this Court decided to direct the Division to undertake a pilot project designed to explore ways for presenting the record on appeal without the preparation of the traditional transcript by a court reporter, and to explore ways to receive and use transcripts in a more timely, efficient, and cost-effective manner. Former Chief Justice Randall Shepard sought and received a pledge of cooperation from the Indiana Court of Appeals, and Chief Judge Margret Robb appointed Judge Cale Bradford, Judge Melissa May, and Judge James Kirsch as the Court of Appeals judges who will spearhead the project and participate in the review of the selected cases.

IT IS, THEREFORE, ORDERED THAT the Executive Director of the Division of State Court Administration and staff shall work with Chief Judge Robb, the Court of Appeals judges and staff, and the selected trial court judges to conduct a pilot project for a limited period of time, and in a limited number of appealed cases, in three phases to accomplish the following: (1) utilizing audio/visual recordings in lieu of paper transcripts in selected courtrooms; (2) using outside transcript preparation to expedite the process of transcript preparation of lower court proceedings; and, (3) requiring parties on appeal to file in digital format only their appellate briefs and transcript of proceedings. This is one of three (3) Orders concerning this pilot project.

Notwithstanding the procedures set out in the Indiana Rules of Appellate Procedure, this Court authorizes a limited pilot project utilizing audio/visual recordings in lieu of paper transcripts for the preparation of the record and briefing on appeal. During the term of the pilot project, the participating trial courts, trial court clerks, court reporters, and parties shall comply with the Indiana Rules of Appellate and Trial Procedure except as set forth below. Each of the participating courts will utilize the audio/visual equipment installed in its courtroom for this pilot project, while continuing to use its court’s existing audio equipment, to record every proceeding in its courtroom during this pilot project. In the cases chosen by the trial courts for this pilot project, participation is mandatory for the parties. Citations to paper transcripts may not be used in the preparation of the appellate briefs in these limited cases.

PILOT PROJECT TERM: This pilot project shall end on December 31, 2013, unless extended by further order of this Court.

PARTICIPATING COURTS: Marion Superior Court, Criminal Division 6 (Major Felony); Tippecanoe Superior Court # 3; and Allen Superior Court (Civil).

CASES ON APPEAL: After a Notice of Appeal has been filed, within five (5) business days, the trial court may designate the case as a pilot project case by filing a notice with the appellate clerk, in the form and substance of the attached Exhibit A, with service to the parties. This notice will inform the parties that their appeal must be prepared using the audio/visual recordings in lieu of a paper transcript. Each of the participating trial courts will select fifteen (15) cases being appealed from their courts to the Court of Appeals of Indiana from the following case types: Marion Superior Court — fifteen (15) criminal cases, Tippecanoe Superior Court — fifteen (15) termination of parental rights cases, and Allen Superior Court— fifteen (15) civil cases.

APPELLATE PANEL: During the term of the pilot project, fifteen (15) appeals utilizing audio/visual recordings in lieu of paper transcripts from each of the participating courts will be assigned to a predetermined three-judge panel.

ALTERNATIVE PROCEDURES:

A. Trial Court Proceedings. The record of trial court proceedings shall consist of two (2) simultaneously created audio/visual recordings. The recordings shall be made using equipment meeting guidelines established by the Executive Director of the Division of State Court Administration, as approved by this Court.

B. Method of Identification. For identification purposes the court reporter, judge or designee shall label each of the two (2) official audio/visual records as follows:

1. line one — the case number assigned in the trial court;
2. line two — a short caption of the proceeding (e.g. Smith v. Jones);
3. line three — the appellate case number assigned by the court on appeal, if known; and,
4. line four — the date and the sequential volume number of the record.

C. Trial Event Log. The court reporter, judge or a designee shall keep a Trial Event Log within the accompanying software for the equipment. The Trial Event Log shall indicate:

1. where each witness’ direct, cross, or redirect examination begins and ends;
2. where each exhibit is offered into evidence and the court’s ruling on the admission of each exhibit begins;
3. where voir dire and jury instructions begin and end, injury trials;
4. where opening and closing statements begin and end; and,
5. where pre-trial hearings begin and end with a brief synopsis identifying the nature of the hearings.

D. Access to the Audio/Visual Recording. Prior to the filing of a Notice of Appeal, parties may request, and at the trial court’s discretion, the Court may provide to the parties a copy of the Audio/Visual Recording provided that the parties supply their own media for copying purposes. Such copy shall be provided at no cost to the parties. Notwithstanding the provisions of Ind. Administrative Rule 9(H) prohibiting public access to court records and pursuant to the authority vested in this Court by the Indiana Access to Public Records Act, I.C. 5-14-3-4(a)(8), the Audio/Visual Recording and any copies shall be deemed confidential and not subject to public access until after the court proceeding has been concluded and all direct appeals have been exhausted.

E. Certification and Notice of Completion of Audio/Visual Recording. Within thirty (30) days of the filing of a Notice of Appeal, two (2) of the copies of the Audiovisual Recording shall be certified by the court reporter and filed with the trial court clerk. The trial court shall retain a copy of the Audiovisual Recording. Upon the filing of the two (2) certified copies of the Audiovisual Recording, the trial court clerk shall issue and file a Notice of Completion of Audio/Visual Recording, in the form and substance of Exhibit B, as is provided in Ind. Appellate Rule 10(D) for paper transcripts.

F. Submission of Audiovisual Recording. Following certification of the Audiovisual Recording, the court reporter shall seal two (2) certified copies in an envelope or package bearing the trial court case number and marked “Audiovisual Recording.” The court reporter shall retain the court reporter’s copy of the Audiovisual Recording and provide a duplicate copy at no cost to each party at the time of filing the Notice of Completion of Audiovisual Recording (in criminal cases, a copy should be provided to the Attorney General). The court reporter shall file the sealed Audiovisual Recording, paper exhibits, and photographic reproductions of nondocumentary and oversized exhibits (if included pursuant to Rule 29(a)) with the trial court clerk in accordance with Appellate Rule 11.

G. Briefs and Other Filings; Filing Deadlines and Citations.

1. Appellant’s Brief. The appellant’s brief shall be filed no later than forty-five (45) days after the date the trial court clerk serves its Notice of Completion of the Audiovisual Recording under section E above. Rule 25(C), which grants a three-day extension of time for service by mail or third-party commercial carrier, does not extend the due date for filing the appellant’s brief, but does apply to the filing of all other briefs.
2. Appellee’s Brief. The appellee’s brief shall be filed no later than forty-five (45) days after service of the appellant’s brief.
3. Appellant’s Reply Brief; Cross-Appellee’s Brief. Any appellant’s reply brief shall be filed no later than fifteen (15) days after service of the appellee’s brief. If the reply brief also serves as the cross-appel-lee’s brief, it shall be filed no later than forty-five (45) days after service of the appellee’s brief.
4. Cross-Appellant’s Reply Brief. Any cross-appellant’s reply brief shall be filed no later than fifteen (15) days after service of the appellant’s reply brief.
5. Citations to Audiovisual Recording. Each reference in a brief to a segment of the Audiovisual Recording (hereinafter AV Rec.) shall set forth in parentheses “AV Rec.” and include the following: the number of the diskette or tape, and the month, day, year, hour, minute, and second at which the reference begins as recorded in the AV Rec. For example: (AV Rec. No. 1; 08/30/86; 09:22:26). Parties may not cite to any paper transcript within briefs, appendices, addendums, and petitions filed with the court on appeal.
6. Other Documents. All briefs, appendices, addendums, and petitions filed with the court on appeal in cases being appealed from a participating court during the term of the pilot project shall be filed in paper format as required under the Rules of Appellate Procedure. Parties are also encouraged to file these documents electronically (see Appellate Rule 43(E)).

ADDITIONAL PROVISION: For this pilot project, the following additional provision shall apply:

In the fifteen (15) criminal cases chosen for this pilot project appealed from Marion Superior Court, Criminal Division 6 (Major Felony), the party filing the Notice of Appeal shall also request and make payment for a paper transcript to be prepared by the court reporter (in accordance with the Rules of Appellate Procedure). Criminal felony eases files must be retained in a permanent medium and microfilmed pursuant to Administrative Rule 6(G)(3) or, if maintained electronically, they must be kept so that a hard copy can be generated at any time. See Trial Rule 77(J). The paper transcripts are necessary in order to comply with the current permanency standard for felony ease files. However, the parties shall not cite to the paper transcript and are strongly encouraged not to use the paper transcript in the preparation of the briefs on appeal. In these fifteen (15) pilot project criminal cases, these transcripts will be maintained and preserved as part of the appellate record along with the audio and audio/video recordings.

IT IS ORDERED THAT the Clerk of this Court is directed to include a copy of this Order with the case file of each case appealed using the proceedings set out in this Order and to include a reference in the chronological case summary that the appeal is governed by this Order.

IT IS FURTHER ORDERED THAT the Clerk is directed to send copies of this Order to the following: the Hon. Nancy E. Boyer, Allen Superior Court (Civil), 715 S. Calhoun Street, # 325, Fort Wayne, IN 46802-1805; the Hon. Loretta H. Rush, Tippecanoe Superior Court # 3, 301 Main Street, Lafayette, IN 47901; the Hon. Mark D. Stoner, Marion Superior Court (Major Felony), 200 East Washington Street, W306, Indianapolis, IN 46204-3363; Chief Judge Margret G. Robb, Court of Appeals of Indiana; Steven F. Lancaster, Administrator of the Court of Appeals of Indiana; the Michie Company; and Thomson Reuters. The Clerk is further directed to post this Order on the Court’s website.

Thomson Reuters is directed to publish this Order in the advance sheets of this Court.

This Order is effective July 1, 2012.

All Justices concur.

Exhibit A

IN THE INDIANA COURT OF APPEALS

NOTICE OF DESIGNATION OF CASE AS AN AUDIO/VISUAL RECORDING PILOT PROJECT CASE

The undersigned presiding Judge hereby notifies the parties, pursuant to the Indiana Supreme Court Order Establishing the Indiana Court Reporting Pilot Project for Exploring the Use of an Audio/Visual Record on Appeal (Order) in Supreme Court Case No. _¡ — ;_—MS_, that this case is designated as a pilot project case pursuant to the authority vested in me by the above Order. The parties to this appeal must prepare their appellate briefs using only the audio/visual recording in lieu of a paper transcript.

Entered this_day of_, 20_

Judge

_ Court

Copies to:

Exhibit B

IN THE INDIANA COURT OF APPEALS

NOTICE OF COMPLETION OF AUDIOIVISUAL RECORDING

-, the Court Reporter of _ Court, hereby notifies the parties, pursuant to the Indiana Supreme Court Order Establishing the Indiana Court Reporting Pilot Project for Exploring the Use of an Audio/Visual Record on Appeal (Order) in Supreme Court Case No. _-MS- -, that the Audio/Visual Recording in this cause is complete. This_day of -, 20 —, the Audio/Visual Recording was filed with the clerk of the trial court in accordance with the above Order.

Court Reporter

CERTIFICATE OF SERVICE

I certify that on [insert date] I sent copies of this document to the following parties of record by United States Mail, postage prepaid. [List parties and their addresses]

Court Reporter


text:
    In the Matter of Martin A. McCLOSKEY, Respondent.
    No. 20S00-1203-DI-146.
    Supreme Court of Indiana.
    Oct. 24, 2012.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

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

Stipulated Facts: In February 2007, DH pled guilty to a federal felony charge pursuant to an agreement that waived various rights, including his right to appeal and to seek relief under 28 U.S.C. § 2255. DH nevertheless hired an attorney to pursue an appeal. While the appeal was pending, he hired Respondent in November 2007 to file a motion to correct errors or modify his sentence and to request a pardon for prior state felonies. It was understood that Respondent would not seek relief in federal court until the appeal had ended. The fee agreement called for a $7,500 nonrefundable fee, purportedly earned on receipt, for up to 37.5 hours of work.

Respondent began working on a § 2255 petition to modify DH’s sentence and preparing a pardon request. Respondent had no experience with either procedure. DH had authorized his son and his daughter to assist Respondent, but Respondent had difficulty communicating with them. In April 2008, DH authorized AL to act as his new liaison with Respondent. DHs appeal was dismissed for lack of prosecution in May 2008. The deadline for filing a § 2255 petition would expire in August 2009. In May 2009, DH’s daughter, acting through a power of attorney, terminated Respondent’s representation. She declined his request to continue with the § 2255 petition, which Respondent said would take only about two more hours to complete. In the 19 months since he was hired, neither the § 2255 petition nor the pardon request had been completed.

DH sent Respondent a letter in September 2009, saying that he had consulted with another attorney, who told him that there were insufficient grounds for a § 2255 petition. Moreover, the other attorney said that if the petition had been successful, DH would have risked losing his sentence reduction for acceptance of responsibility.

The parties cite no facts in aggravation. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent was cooperative with the Commission; and (3) despite the language used in his fee agreement, it was Respondent’s practice to refund the unused portion of any advance payment.

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

1.1: Failure to provide competent representation.
1.3: Failure to act with reasonable diligence and promptness.
1.5(a): Charging an unreasonable fee.
3.2: Failure to expedite litigation consistent -with the interests of a client.

Discipline: The parties propose the appropriate discipline is a public reprimand. The Court, having considered the submissions of the parties, now approves the agreed discipline and imposes a public reprimand for Respondent’s misconduct.

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

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

All Justices concur.


text:
    In the Matter of Kjell P. ENGEBRETSEN, Respondent.
    No. 06S00-1111-DI-646.
    Supreme Court of Indiana.
    Oct. 29, 2012.
   PUBLISHED ORDER FINDING MISCONDUCT AND IMPOSING DISCIPLINE

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

Facts: On November 2, 2011, the Commission filed a 106-paragraph complaint consisting of six counts alleging misconduct occurring from 2006 through 2011. The Commission charged Respondent with neglecting clients’ cases, failing to do the work for which he was hired, failing to communicate with clients, failing to inform clients that medical problems would severely limit his ability to represent them, failing to inform clients of court orders and hearings, failing to appear at hearings and a pretrial conference, unilaterally terminating his representation of clients without protecting the clients’ interests, failing to refund unearned fees, and failing to cooperate with the Commission. Respondent was served with the complaint and did not respond. Accordingly, the hearing officer took the facts alleged in the complaint as true. See Admis. Disc. R. 23(14)(c).

The hearing officer found the following facts in aggravation: (1) Respondent has a history of noncooperation with the Commission and suspensions (described below); (2) he engaged in a chronic and widespread pattern of neglect that affected his clients, the courts, and other attorneys; (3) his misconduct severely damaged the public’s perception of the profession; (4) his misconduct caused great harm to his clients, some of whom were extremely vulnerable due to incarceration or limited financial means; and (5) he has shown no remorse and has displayed utter indifference to paying restitution to his clients. Although there were indications that Respondent may have suffered from depression or other illness that contributed to his misconduct, the hearing officer found the evidence to be insufficient to find any facts in mitigation.

Neither party filed a petition for review of the hearing officer’s report. When neither party challenges the findings of the hearing officer, “we accept and adopt those findings but reserve final judgment as to misconduct and sanction.” Matter of Levy, 726 N.E.2d 1257, 1258 (Ind.2000).

History of noncooperation and suspensions. Respondent has the following history of noncooperation with the Commission and suspensions:

06S00-0807-DI-399: Show cause petition filed 07/21/08. Suspended for noncooperation 11/06/08. Reinstated on certificate of compliance 11/19/08.
06S00-0904-DI-159: Show cause petition filed 04/16/09. Dismissed with costs 5/12/09.
Continuing legal education noncompliance suspension, 05/05/09; reinstated 5/18/09.
Dues nonpayment suspension, 05/05/09; reinstated 5/18/09.
Suspension order for failure to pay costs, 3/19/11. Still in effect.
06S00-1106-DI-346: Show cause petition filed 6/16/11. Suspended for noncooperation 9/2/11. Converted to indefinite suspension 5/25/12. Still in effect.
06S00-1109-DI-558: Show cause petition filed 9/14/11. Show cause order entered 9/19/11. Dismissed as moot due to other suspension 5/30/12.

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

1.3: Failure to act with reasonable diligence and promptness.
1.4(a)(3): Failure to keep a client reasonably informed about the status of a matter.
1.4(a)(4): Failure to comply promptly with a client’s reasonable requests for information.
1.4(b): Failure to explain a matter to the extent reasonably necessary to permit a client to make informed decisions.
1.16(d): Failure to protect a client’s interests upon termination of representation.
1.16(d): Failure to refund an unearned fee upon termination of representation.
3.2: Failure to expedite litigation consistent with the interests of a client.
8.1(b): Failure to respond in a timely manner to the Commission’s demands for information.
8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

Discipline: Respondent’s serial misconduct injured his clients and tarnished the reputation of the legal profession. Respondent is already under two suspension orders and failed to appear or in any way respond to the current charges against him. Although Respondent’s medical problems may have contributed to his misconduct, such problems do not excuse misconduct, see Matter of Thomsen, 911 N.E.2d 575 (Ind.2009), and Respondent presented no evidence on the issue. Under these circumstances, to protect the public and the integrity of the legal profession, the Court concludes that Respondent should be suspended from the practice of law for not less than three years. See Matter of Eckert, 867 N.E.2d 141 (Ind.2007).

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than three years, without automatic reinstatement, effective immediately. At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4). Reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

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

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

All Justices concur, except DAVID, J., who dissents regarding the discipline, believing it to be insufficient, and would disbar Respondent.


text:
    WHISKEY BARREL PLANTERS CO., INC., et al., Appellants, v. AMERICAN GARDENWORKS, INC., et al., Appellees.
    No. 04S03-1209-PL-503.
    Supreme Court of Indiana.
    Oct. 29, 2012.
   PUBLISHED ORDER

By order dated August 31, 2012, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals. After further review, including considering the points presented by counsel at oral argument and further discussion among the justices in conference after the oral argument, the Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinion reported as Whiskey Barrel Planters Co., Inc. v. American GardenWorks, Inc., 966 N.E.2d 711 (Ind.Ct.App.2012), should be reinstated as Court of Appeals precedent. Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end.

The Court DIRECTS the Clerk to certify this appeal as final and to send copies of this order to the Hon. Margret G. Robb, Chief Judge of the Court of Appeals; the Hon. Rex W. Kepner, Judge the Benton Circuit Court; to Steve Lancaster and Danielle Sheff; and to all counsel of record.

The Court further DIRECTS the Clerk to send a copy of this Order to LexisNexis and to Thomson/Reuters for publication on-line and in the bound volumes of this Court’s decisions.

All Justices concur.


author: MASSA, Justice.

text:
    Lisa J. KANE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 30S04-1206-CR-372.
    Supreme Court of Indiana.
    Oct. 30, 2012.

      John S. Merlau, Brent Eaton, New Palestine, IN, attorneys for appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Brian L. Reitz, Deputy Attorneys General, attorneys for appellee.
   MASSA, Justice.

Lisa Kane appeals her conviction for receiving stolen property, arguing that the trial court improperly instructed the jury on the mental state required to convict her. We agree, reverse her conviction, and remand her case for retrial.

Facts and Procedural History

In 2010, Sam Rifner and Lisa J. Kane had been in a relationship for about fifteen years. They had one child together, and they had shared an apartment for some time. When Sam lost his job in the fall of 2010, the couple could no longer afford their apartment, and Sam moved into the home of his parents, Shirley and Stephen Rifner. Kane moved in with her own parents and occasionally visited Sam at his parents’ home.

At some point, Shirley noticed that some of her personal property — specifically, video game equipment — was missing from her home. She also noticed that some of her husband’s tools were missing. When she asked Sam about the missing items, he admitted he had taken them and pawned them. Shirley then went into Sam’s room and found several pawn tickets. Two of these tickets appeared to bear Kane’s signature.

Shirley reported the thefts to the Hancock County Sheriffs Department, which conducted an investigation in conjunction with the Indianapolis Metropolitan Police Department. They determined that the thumbprint of the person who had pawned the item, located on the back of one of the pawn tickets, matched Kane’s thumbprint.

The State charged Kane with receiving stolen property, a class D felony, and later amended that charge to add a habitual offender enhancement. Kane was tried before a jury, and at the close of the evidence, both parties tendered proposed jury instructions. Among the State’s proposed instructions was No. 8 regarding accomplice liability. “You are instructed that when two or more persons combine to commit a crime, each is responsible for the acts of his confederate(s) committed in furtherance of the common design, the act of one being the act of all.” App. at 33.

Kane’s attorney objected to that proposed instruction. The trial judge asked Kane’s attorney to “expand” upon his objection, and a colloquy ensued. Tr. at 152-58. Kane’s attorney explained that there was no evidence that “Ms. Kane or Mr. Rifner planned this out or talked about it in advance-” Tr. at 152-53. He also expressed concern that the jury could convict Kane based on Sam’s actions “without necessarily proving that she had knowledge” — meaning, presumably, knowledge that the goods were stolen. Tr. at 153. The prosecuting attorney argued that “acting in concert with another is part and parcel of the circumstantial evidence that can be used to infer knowledge.” Tr. at 153. The trial court noted that the instruction at issue was not a pattern instruction and requested that the prosecuting attorney provide some statute or case law in support of it. The prosecuting attorney cited Harrison v. State, 269 Ind. 677, 382 N.E.2d 920 (1978), and the trial judge assigned an intern to look up that case. After a little more discussion, Kane’s attorney renewed his objection, and the trial court took the matter under advisement.

The proposed instruction, as modified to mirror the instruction used in Harrison, was ultimately included in the trial court’s final instructions as No. 12: “Where two or more persons combine to commit a crime, each is criminally responsible for the acts of his or her confederates committed in furtherance of common design, the act of each being the act of all.” App. at 38; see also Harrison, 269 Ind. at 687, 382 N.E.2d at 926 (finding no fault with an abandonment instruction that read, in part: “When two or more persons combine to commit a crime, each is criminally responsible for the acts of his confederates committed in furtherance of the common design, the act of each being the act of all.”).

The jury convicted Kane of the charged D felony receiving stolen property. Kane admitted to being a habitual offender. She was sentenced to three years for receiving stolen property with an enhancement of two years (one suspended) for her habitual offender status.

Kane appealed her conviction on two grounds: (1) that the evidence was insufficient to support the conviction and (2) that the trial court abused its discretion both by failing to give one of her proposed jury instructions and by giving Final Instruction No. 12. A divided panel of the Court of Appeals affirmed Kane’s conviction in an unpublished opinion. Kane v. State, No. 30A04-1109-CR-488, 2012 WL 1478788, slip op. at 2 (Ind.Ct.App. April 27, 2012). The majority found that the evidence, though circumstantial, was nonetheless sufficient to support the inference that Kane knew the property was stolen. Id. at 5. As to Kane’s proffered jury instruction, the court found her appeal waived for failure to develop a cogent argument, but noted that even if it were not, it would fail “because each element of the tendered instruction was covered by other instructions given.” Id. at 7. As to Final Instruction No. 12, the court agreed it was “deficient,” but found that Kane had waived her challenge to the error by failing to raise that specific argument at trial or on appeal. Id. at 9.

Judge Barnes dissented, believing Kane had preserved the instructional issue for appeal. Id. at 10 (Barnes, J., dissenting). He described Final Instruction No. 12 as “outdated and woefully inadequate.” Id. at 10-11. He noted that it omitted the mental state requirement for accomplice liability and that we had found a similar instruction to be deficient in Small v. State, 531 N.E.2d 498 (Ind.1988). Kane, slip op. at 11-12. He also stated that he did not believe the error could be harmless because the case “was a very ‘close call.’ ” Id. at 12.

Kane petitioned for transfer to this Court on the basis of the State’s accomplice liability instruction only. We granted transfer, thereby vacating the opinion below. Kane v. State, 970 N.E.2d 155 (Ind.2012) (table); Ind. Appellate Rule 58(A).

Standard of Review

When reviewing a trial court’s decision to give or refuse to give a party’s tendered instruction, we consider “(1) whether the tendered instruction correctly states the law; (2) whether there was evidence presented at trial to support giving the instruction; and, (3) whether the substance of the instruction was covered by other instructions that were given.” Mayes v. State, 744 N.E.2d 390, 394 (Ind.2001). The trial court has broad discretion as to how to instruct the jury, and we generally review that discretion only for abuse. Id. Where, however, as here, the appellant’s challenge to the instruction is based on the first of our three considerations — an argument that the instruction was an incorrect statement of the law — we review the trial court’s interpretation of that law de novo. LaPorte Cmty. Sch. Corp. v. Rosales, 963 N.E.2d 520, 523 (Ind.2012).

Kane Has Not Waived Her Claim of Instructional Error

As a threshold matter, the State contends that Kane’s claim of instructional error is waived because she did not raise the particular grounds for her objection at trial or on appeal. We disagree.

It is well-established in both common law and rule that a party wishing to preserve instructional error for appeal must identify the specific grounds for objection at the time of trial. See, e.g., McDowell v. State, 885 N.E.2d 1260, 1262 (Ind.2008); Childers v. State, 719 N.E.2d 1227, 1232 (Ind.1999); Ind.Crim. Rule 8(B) (“No error with respect to the giving of instructions shall be available as a cause for new trial or on appeal, except upon the specific objections made as above required.”); Ind. Trial Rule 51(C) (“No party may claim as error the giving of an instruction unless he objects thereto ... stating distinctly the matter to which he objects and the grounds of his objection.”). We require such a specific and timely objection to ensure that the trial court has every opportunity to avoid error “that might otherwise require reversal and result in a miscarriage of justice and a waste of time and resources.” McDowell, 885 N.E.2d at 1262 (citing Godby v. State, 736 N.E.2d 252, 255 (Ind.2000)).

We find McDowell particularly instructive here. In that case, the defendant was on trial for voluntary manslaughter, and her attorney objected to one of the State’s proposed jury instructions on the ground that it was “unduly prejudicial.” Id. at 1262. On appeal, the defendant argued the instruction was an incorrect statement of the law because it impermissibly relieved the State of its burden to prove the element of intent beyond a reasonable doubt. The State contended that the defendant had waived her objection by not raising it at trial. We agreed with the defendant, noting that although the defendant’s objection might “normally lack the necessary specificity to preserve the error for appeal,” where, as here, “we have the benefit of an ensuing colloquy between the trial court and counsel, which informs us that the trial judge gave specific consideration to whether the proposed instruction was a correct statement of law,” the error is preserved. Id.

Here, as in McDowell, Kane’s attorney initially made a general objection to Final Instruction No. 12. He subsequently argued that there was insufficient evidence to support giving it, and he specifically expressed concern that it could cause the jury to convict Kane even if the State failed to prove the requisite mens rea— knowingly or intentionally — for the charged crime. What is more, during this colloquy, the trial court noted that the instruction was not a pattern instruction, sent an intern to look up the case the prosecutor cited in support of it, and said he would “take at look” at it. Most significantly, the trial judge did not simply adopt the State’s proposed instruction; rather, he changed it to mirror language that, in his estimation, had received judicial approval in Harrison. We find this is enough to show that the trial judge considered whether the proposed instruction was an incorrect statement of the law and thus to preserve for appeal an objection to the instruction on that ground.

Jury Instruction No. 12 Was an Incorrect Statement of the Law

Indiana’s accomplice liability statute states that “[a] person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense....” Ind.Code § 35-41-2-4 (emphasis added). Accordingly, the pattern jury instruction on accomplice liability tracks the language of the statute and includes a prominent mention of the required mental state: “A person who, knowingly or intentionally [aids] [induces] [causes] another person to commit an offense commits that offense.” 1 Ind. Pattern Jury Instructions (Criminal) No. 2.11 (2011) (emphasis added; bracketed text in original). Final Instruction No. 12, in contrast, omits altogether the key phrase “knowingly or intentionally” — indeed, it says nothing about mens rea at all. Instead, it states that “each is criminally responsible for the acts of his or her confederates committed in furtherance of common design, the act of each being the act of all.”

In prior cases, we have weighed jury instructions that were unclear as to the relevant mental state and found them wanting. See Small, 531 N.E.2d at 499. Final Instruction No. 12 does not include a mental state at all; rather, it seems to impose strict liability on Kane for the unlawful acts of Sam, whether she knew about them or not. That is not the law in Indiana, and so we hold that the trial court erred by giving the jury Final Instruction No. 12.

The Error Was Not Harmless

Having found the challenged instruction to be erroneous, we presume the error affected the verdict, and we will reverse the defendant’s conviction “unless the verdict would have been the same under a proper instruction.” Rosales, 963 N.E.2d at 525; see also Dill v. State, 741 N.E.2d 1230, 1233 (Ind.2001) (finding an instruction harmless error only when the conviction is “clearly sustained by the evidence and the jury could not properly have found otherwise.”); Ind. Appellate Rule 66(A) (stating that an error at trial may be reversed on appeal unless “its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.”).

Here, the State concedes there is no direct evidence that Kane knew the property was stolen when she pawned it, but argues the circumstantial evidence was sufficient for the jury to have found the knowledge element of the crime proven beyond a reasonable doubt. See Appel-lee’s Br. at 7 (“Because there are reasonable inferences from the evidence that permit the jury to find that Defendant had knowledge of the stolen nature of the property that she pawned, she is guilty of receiving stolen property.”). The State presented uncontroverted evidence at trial to show Kane and Sam were in an intimate relationship, they had financial difficulties, Kane relied upon Sam for transportation, they spent time together in the home from which the property was taken, and Sam had previously stolen property and pawned it.

We agree with Judge Barnes that this “evidence of Kane’s knowledge that she was helping Sam ‘fence’ stolen property is far from overwhelming.” Kane, slip op. at 11 (Barnes, J., dissenting). It may be enough to clear the lower bar of sufficiency, but we believe it is not enough to overcome the presumption of prejudice that applies here. Thus, we cannot say the verdict would have been the same if the jury had been properly instructed as to the knowledge requirement of the offense, and we find the error was not harmless.

Conclusion

Accordingly, we reverse Kane’s conviction and remand this case for retrial.

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

      . We believe the Court of Appeals correctly decided Kane’s claim that the evidence was insufficient to support her conviction, and so we summarily affirm that portion of its opinion. Ind. Appellate Rule 58(A)(2). Finally, we have decided her case on another ground, and so we need not — and do not — consider Kane’s argument regarding the trial judge's refusal to give her proffered jury instruction. See Horseman v. Keller, 841 N.E.2d 164, 167 n. 1 (Ind.2006) (declining to address an issue when resolving the case on other grounds).


author: FRIEDLANDER, Judge.

text:
    Tim L. GODBY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 33A01-1203-CR-128.
    Court of Appeals of Indiana.
    Oct. 10, 2012.
    Tim L. Godby, Carlisle, IN, Appellant pro se.
    Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

FRIEDLANDER, Judge.

Tim L. Godby, pro se, appeals the denial of his motion to correct erroneous sentence. He presents four issues on appeal, which we consolidate and restate as the following issue: Did the trial court properly deny the motion to correct erroneous sentence?

We affirm.

On December 9, 1995, Godby murdered Jeffery Asberry in Newcastle. In 1997, he was convicted by a jury and subsequently sentenced to sixty years in prison for the murder. The trial court also ordered God-by to pay court costs. Godby’s conviction was affirmed by our Supreme Court on direct appeal in 2000, and we affirmed the denial of his petition for post conviction relief in 2004. Godby v. State, 736 N.E.2d 252 (Ind.2000); Godby v. State, 809 N.E.2d 480 (Ind.Ct.App.2004), trans. denied.

On February 17, 2012, Godby filed a pro se motion to correct erroneous sentence, which the trial court summarily denied. Godby now appeals.

A motion to correct erroneous sentence derives from Ind.Code Ann. § 35-38-1-15 (West, Westlaw current with all 2012 legislation):

If the convicted person is erroneously sentenced, the mistake does not render the sentence void. The sentence shall be corrected after written notice is given to the convicted person. The convicted person and his counsel must be present when the corrected sentence is ordered. A motion to correct sentence must be in writing and supported by a memorandum of law specifically pointing out the defect in the original sentence.

“The purpose of the statute is to provide prompt, direct access to an uncomplicated legal process for correcting the occasional erroneous or illegal sentence.” Davis v. State, 937 N.E.2d 8, 10 (Ind.Ct.App.2010), trans. denied.

“[A] motion to correct sentence may only be used to correct sentencing errors that are clear from the face of the judgment imposing the sentence in light of the statutory authority.” Robinson v. State, 805 N.E.2d 783, 787 (Ind.2004). In other words, use of this statutory motion should be reserved for the correction of “obvious sentencing errors”. Id. at 787 n. 3. Claims that require consideration of matters outside the face of the sentencing judgment may not be addressed via this type of motion. See, e.g., Neff v. State, 888 N.E.2d 1249 (Ind.2008); Robinson v. State, 805 N.E.2d 783.

We initially address Godby’s claim that the trial court improperly “considered the evidence introduced at the trial as an aggravator.” Appellant’s Brief at 9. While acknowledging that a court may consider the particularized circumstance of a crime to be aggravating, Godby argues, “[i]t is impossible to determine from the Order of Sentencing just what evidence introduced at the trial the court considered.” Id. at 10.

Godby’s rather undeveloped argument appears to be that the trial court abused its discretion with respect to the finding of a least one aggravating circumstance. This is not a proper claim for a motion to correct erroneous sentence because it necessarily requires consideration of the sentencing hearing, at which the trial court “made findings on record in open court regarding the existence of aggravating and mitigating circumstances.” Appellant’s Appendix at 24. Godby should have addressed this claimed error on direct appeal or, if applicable, post-conviction relief. He may not do so now.

At first blush, Godby’s other claim of error has some teeth. He claims that the trial court failed to fully comply with I.C. § 35 — 38—3—2(b) (West, Westlaw current with all 2012 legislation), which provides a list of items a sentencing judgment “must include”. The requirement at issue in this case is “the amount of the fines or costs (including fees) assessed, if any, whether or not the convicted person is indigent, and the method by which the fines or costs (including fees) are to be satisfied”. I.C. § 35-38-3-2(b)(3). Godby correctly observes that when imposing court costs, the trial court failed to include in the judgment of conviction the amount of the court costs, whether Godby was indigent, and the method of satisfying the court costs. This error is clearly apparent on the face of the sentencing judgment. Our analysis, though, does not end here.

Ind.Code Ann. § 33-37-2-2 (West, Westlaw current with all 2012 legislation) makes clear that costs imposed in a criminal action “are not part of the sentence”. Because the error in this case relates only to costs (and not fines), we conclude that Godby’s belated attempt to correct the error through a motion to correct erroneous sentence is not proper. In other words, the error here does not relate to a provision of Godby’s sentence and is not the type of fundamental sentencing error contemplated by I.C. § 35-38-1-15. See Beliles v. State, 663 N.E.2d 1168, 1173 (Ind.Ct.App.1996) (“procedures to correct an erroneous sentence under I.C. 35-38-1-15 should be limited ... to those fundamental sentencing errors where sentences have been entered in violation of express statutory authority or an erroneous interpretation of a statutory penalty provision”). The trial court properly denied Godby’s motion to correct erroneous sentence.

Judgment affirmed.

BROWN, J., and PYLE, J., concur.

      . The State appears to confuse the abstract of judgment and the sentencing judgment. It is well established, however, that the "abstract of judgment form is not the ‘judgment of conviction’ Robinson v. State, 805 N.E.2d at 793. Although "an abstract of judgment may function in place of a judgment of conviction in a county ... in which trial courts do not regularly issue formal judgments of conviction”, Neff v. State, 888 N.E.2d at 1252, such is not the case here.

      . Throughout his argument, Godby directs us to authority addressing the imposition of fines, rather than costs. The two are not synonymous.


author: BROWN, Judge.

text:
    Earl F. SHIELDS, Larry J. Shields, and Robert L. Shields, Appellants, v. Rodney L. TAYLOR, Appellee.
    No. 53A04-1202-PL-95.
    Court of Appeals of Indiana.
    Oct. 17, 2012.

      Michael 0. Ellis, Bloomington, IN, Attorney for Appellants.
    Michael L. Carmín, Andrews, Harrell, Mann, Carmín & Parker, P.C., Blooming-ton, IN, Attorney for Appellee.
   OPINION

BROWN, Judge.

Earl Shields, Larry Joe Shields, and Robert Shields (collectively, the “Shields”) appeal the trial court’s Findings of Fact, Conclusions of Law and Order, and subsequent denial of the Shields’ motion to correct errors, in favor of Rodney Taylor. The Shields raise one issue which we revise and restate as whether the court erred in concluding that their counterclaim was not sufficiently pled to encompass a theory of easement by prescription. We affirm.

FACTS

The relevant facts follow. The Shields and Taylor are owners of adjacent parcels of land in Monroe County, in which Taylor’s parcel is situated to the north of the Shields parcel. Taylor’s property is bordered on the north side by Earl Young Road. Taylor purchased his property approximately fifteen years ago from John and Phyllis Chuke, who had previously purchased the property from Frank Hu-doff. The Shields have owned their property for three generations. The Shields’ property is divided into two parts by a steep hill, and they have driven across Taylor’s property on a dirt road accessed from Earl Young Road in order to reach the back portion, which they called “the long bottom,” for the last forty or fifty years. Transcript at 166. In the time that Taylor had owned his property, the Shields had not spoken with Taylor about their using it to access the long bottom and felt they had no reason to do so.

In September 2010, a dispute arose between the Shields and Taylor regarding the Shields’ use of the dirt road on Taylor’s land to access the long bottom. Specifically, the Shields contracted to have logging performed on their property, and the logging company cut a logging trail through Taylor’s property to access the Shields’ property, including through creek banks. After Taylor told the Shields they could not use his property for their logging activities, the Shields attempted to access the long bottom through another neighbor’s property owned by Barrow, whose property was to the west of Taylor’s, and Taylor told the Shields that the route they were using still passed upon part of his property and pointed to a marker to show the border of his property.

COURSE OF PROCEEDINGS

On April 4, 2011, Taylor filed a complaint alleging trespass and requesting a restraining order, and on that same day filed a verified petition for temporary restraining order to stop the Shields from entering his property. On May 9, 2011, the court held a hearing on the petition for temporary restraining order, and on May 17, 2011, the court issued a temporary restraining order enjoining the Shields from entry onto Taylor’s property. On September 2, 2011, the Shields filed an answer and counterclaim in which their counterclaim asserted as follows:

Defendants, for their counterclaim against plaintiff, state as follows:

1. The Taylor real estate is adjacent to the Shields real estate along the north boundary line of Shields’ property and the south boundary line of Taylor’s property.
2. The northernmost 20 acres of the Shields’ property is accessible only from the northern side of the property because the Shields property is divided by a high, very steep hill, such 20 acres hereinafter referred to as “the Back Twenty Acres.”
8. From the late 1950’s and for approximately 50 years thereafter, the Shields family has had continuous, uninterrupted access to their Back Twenty Acres by an easement granted by Frank Hudoff — the former owner of the Taylor property — then by John and Phyllis Chute [sic] — the subsequent owners of the Taylor property — and then, most recently, by plaintiffs own consent or acquiescence.
3. [sic] All of the owners of the Taylor real estate since the late 1950’s have agreed with Shields’ right to use the easement across the Taylor real estate (Taylor’s driveway) to access the Back Twenty Acres, and all the neighbors for the past 50 years have known of this. There has never been a question or controversy about such use until the Shields timbered some of their land in August 2010.
4. Even Taylor himself did not contest defendants’ use of the right of way until Taylor saw them cutting timber and taking it out across the easement. At that time, Taylor demanded exorbitant fees from the timbering for use of the easement, which the Shields refused to pay.
5. At such time, Taylor blocked the access to Shields’ Back Twenty Acres and the Shields gained permission from the neighbor Barrow to cross his land and then the creek to access the Back Twenty Acres.
6. At this time Taylor began to claim that he owned the creek too, so that any crossing into the Back Twenty Acres would be, he claimed, a trespass and he threatened to prosecute the Shields if they tried to gain such access even across Barrow’s land.
7. By such means — and for the first time in 50 years — the Shields were unable to harvest and plant the Back Twenty Acres with hay to feed the Shields’ cattle.
8. Due to Taylor’s actions without legal justification, the Shields lost a season’s worth of hay for their cattle, at a cost to them of approximately $300.
9. Taylor is liable to the defendants for $300 for last year’s hay, together with the costs of this year’s hay if Taylor continues to prevent the Shields from planting for the new season.
WHEREFORE, defendants pray the Court find in their favor and against plaintiff in the amount of $300, together with any new damages relating to the planting of this year’s hay season.

Appellants’ Appendix at 6-7. On October 24, 2011, in advance of trial, Taylor filed a trial memorandum detailing “the applicability of the doctrines of license and easement” and specifically discussed express, written easements. Appellee’s Appendix at 18. The Shields did not file a trial memorandum.

On October 28, 2011, the court held a bench trial in which, at the conclusion of the Shields’ opening statement, their counsel noted that it would ask the court to “declare that the Shields do in fact have an easement across Taylor’s property to access the long bottom.... ” Transcript at 7-8. At trial, Taylor testified that the Shields “occasionally” asked if they could cross his property, which he later indicated was “every couple months.” Id. at 10, 12. Taylor testified that he posted no trespassing signs on the borders of his property as soon as he purchased it. Id. at 11. Taylor testified that Mary Hampton, who is the Shields’ sister and who also is an owner of the Shields’ parcel, indicated to him that “she had an easement,” that “it was recorded,” and that she would retrieve a copy for Taylor, but she never produced a copy of a written easement. Id. at 23. When asked about whether Taylor knew if the Shields had historically used his parcel to access the long bottom, Taylor testified that “back before [he] bought it [ ] no one lived there. It was just, they probably took advantage of it, and they probably run in and out of there at, at will,” but that “after I bought it, it just didn’t happen. And I went down and I checked all the records to know, nothing saying that they can. There’s no easement.” Id. at 52.

Earl Shields, who was sixty-one years old, testified that at least since he was a child of five or six, his family accessed the long bottom by a dirt road which was accessible by Earl Young Road and currently runs across Taylor’s property. Earl testified that he, his father, and his grandfather all farmed the long bottom, that he uses a tractor to farm it, that he farms it “[j]ust about every year,” and that in order to use the tractor he approaches the long bottom from the dirt road running across Taylor’s property. Id. at 171. Earl testified that he stopped using the route across Taylor’s land in the summer of 2010 when Taylor told him to stop.

On cross-examination, Earl testified that the route he has used to approach the long bottom was “a logging road to start” but that it currently is used by Taylor as a driveway. Id. at 173. Earl testified that he has never asked permission of Taylor to use the dirt road to approach the long bottom and he did not have knowledge of either of his brothers doing the same. Earl testified that the prior owners of Taylor’s property, beginning with the Hu-doffs, gave their consent to use their property to approach the long bottom, and he indicated that Taylor “consented to and approved ... coming through there until the summer Two Thousand Ten when he ... told [the Shields] to stop.” Id. at 176. On redirect, Earl indicated that he did not understand the language contained in Paragraph 3 of the counterclaim, and he reiterated that he had never had a conversation with Taylor about crossing Taylor’s property and that he would “just go across” if he wanted to. Id. at 184. Earl indicated that “because [his] family has used that pathway for a long time” he “felt like [he] didn’t have to ask for permission.” Id. at 185.

Larry Joe Shields testified similarly to Earl, noting that they have always traversed Taylor’s property to approach the long bottom and have farmed it yearly. When asked whether he had ever asked the Chukes for permission to use the dirt road, Taylor objected, the court responded “[y]ou may answer,” and Larry Joe stated that he had not because “we always went, went through there.” Id. at 191. Larry Joe also testified that he had never asked Taylor for permission to cross. He also testified that he had never seen a no trespassing sign on Taylor’s property. Also, Michael Sheppard, a surveyor hired by the Shields, testified that he had walked the border of the Shields’ and Taylor’s property three times and did not recall seeing any posted no trespassing signs.

Taylor called Robert Shields to the stand, and Robert testified that he had never spoken with Taylor. Taylor also called Mary Hampton who testified that she never told Taylor or the court at a previous hearing that she had a written easement. Afterward, Taylor was recalled to the stand and testified that he had spoken with Robert Shields about restoring creek banks, that Hampton had told him she had a written easement but never provided one, and that he believed Larry Joe had visited his house and asked if he could use the dirt road to access the long bottom.

Also, during the Shields’ examination of Larry Joe Shields, Taylor’s counsel objected to the line of questioning, arguing that “[w]e’re here to defend a claim that was filed that says contrary to what they’re now saying.... The case we’re here to try is their claim of consensual easement, not what is now trying to build a case for adverse, restrictive [sic] easement or something else.” Id. at 191-192. The Shields’ counsel responded that “[t]he counterclaim says consent or acquiescence. It had to be written that way because I didn’t know whether we had a recorded easement,” and that “Larry believed that there was a recorded easement. We’ve not found a recorded one, but they’ve always maintained they’ve had an easement or a right to use that.” Id. at 192. The following then occurred:

[Taylor’s Counsel]: So what? We’re supposed to come in here and draw all the pleadings and, and anything goes today? This, we’re here to defend a specific claim, and this is not it that we’re here today, and I object to this. We are not here ...
THE COURT: ... sustained ...
[Shields’ Counsel]: Counsel objects to the word consent. The counterclaim also says acquiescence. You just didn’t read the word.
[Taylor’s Counsel]: Only as to [Taylor], not as to anybody else. It’s your pleading.
[Shields’ Counsel]: I believe my question was did he ever ask permission from Mister Taylor. Is that, I, I’m not sure exactly what [Taylor’s Counsel] is objecting to ...
[Taylor’s Counsel]: .... objection, relevance. I thought it was sustained.
THE COURT: Go ahead.
[Shields’ Counsel]: Okay. Well I’ll ask it and see what happens. Did you ever ask Mister Taylor for permission to ...
[Larry Joe]: ... no ...
[Taylor’s Counsel]: ... objection, relevance.
[Shields’ Counsel]: And you cut across his property through all the years that he owned it until September, Two Thousand Ten?
[Larry Joe]: Yeah.

Id. at 192-193 (ellipses in original).

On November 14, 2011, the parties tendered proposed findings and conclusions, and on December 9, 2011, the court entered its Findings of Fact, Conclusions of Law and Order (the “December 9 Order”), containing the following:

FINDINGS OF FACT
35. [The Shields] asserted that they have a written easement contained in a deed giving them a right of access across [Taylor’s] property. [The Shields] failed to produce any written easement in the form of a deed or any other written document to substantiate a claimed right of an easement through the Taylor Real Estate.
36. [The Shields], in their Counterclaim, allege a right of access through the Taylor Real Estate by oral consent to such access by [Taylor] and [Taylor’s] predecessors in title. [The Shields’] counterclaim alleges only consensual entry or a consensual right of access to the Taylor Real Estate given by [Taylor] and [Taylor’s] predecessors in interest. [The Shields’] trial testimony suggested possible theories of access to the Taylor Real Estate including by way of necessity and prescriptive easement. The pleadings do not support such additional theories of rights of access to the Taylor Real Estate. The evidence does not support the elements of right of way by necessity. The Shields Real Estate touches upon a public road and is not in any manner landlocked. [The Shields’] allegations and evidence indicated that entry onto the Taylor Real Estate was consensual and not prescriptive as would be required to establish a prescriptive easement.
CONCLUSIONS OF LAW
1. An express easement can only be created through the execution of a written document.... Only a revocable license can be orally created....
2. Express easements must be in writing....
3. [The Shields’] claim of easement requires that the easement be set forth in a written instrument. The easement cannot be created by oral agreement. An oral agreement concerning the use or interest in real estate is a license.
4. A license may be rescinded at any time....
5. In the Shields’ Counterclaim, they assert that their use of the Taylor Real Estate was through the consent and acquiescence of the Taylors until 2010. According to Webster’s Dictionary, to “acquiesce” is to “agree or consent quietly,” and to “consent” is “to give permission, approval, or agree.” By asserting that the Taylors consented to the Shields’ use of the Taylor Real Estate until 2010, the Shields acknowledge the permissive nature of their past access to the Taylor Real Estate. [The Shields’] allegations of consent by Taylor constitute an allegation that Taylor granted a license to [the Shields] for use or entry onto the Taylor Real Estate. [The Shields] further allege that at some point [Taylor] objected to [the Shields] entry onto the Taylor Real Estate. Such allegation is an admission that any oral license had been rescinded.
6.[The Shields] do not have a legal basis for continued entry onto the Taylor Real Estate.
9. [The Shields] have no right of access through the Taylor Real Estate absent [Taylor’s] consent.

Appellants’ Appendix at 9, 17-19. The court ordered that the property line between Taylor’s and the Shields’ parcel be set “in accordance with the land survey of Erick Deckard” and that the Shields pay Taylor $4,150 with costs due to damage caused by the Shields to Taylor’s property, and it further ordered “that judgment is entered for [Taylor] and against [the Shields] on their Counterclaim.” Id. at 20-21. The court also permanently enjoined the Shields from trespassing upon Taylor’s property.

On January 9, 2012, the Shields filed a motion to correct errors stating that “[w]hile the history of Indiana case law is filled with cases which state that a prescriptive easement is obtained by the landowner’s acquiescence, the Order relies instead on a dictionary definition to render ‘acquiescence’ as another form of consent,” and they also filed a brief in support of their motion; Id. at 23. The court denied the Shields’ motion on January 27, 2012.

ISSUE

The issue is whether the trial court erred in concluding that the Shields’ counterclaim-was not sufficiently pled to encompass a theory of easement by prescription. The trial court entered findings of fact and conclusions thereon pursuant to Ind. Trial Rule 52(A). We may not set aside the findings or judgment unless they are clearly erroneous. Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind.2000), reh’g denied. In our review, we first consider whether the evidence supports the factual findings. Id. Second, we consider whether the findings support the judgment. Id. “Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind.1996). A judgment is clearly erroneous if it relies on an incorrect legal standard. Menard, 726 N.E.2d at 1210. We give due regard to the trial court’s ability to assess the credibility of witnesses. Id. We do not reweigh the evidence; rather we consider the evidence most favorable to the judgment with all reasonable inferences drawn in favor of the judgment. Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind.1999). We evaluate questions of law de novo and owe no deference to a trial court’s determination of such questions. Kwolek v. Swickard, 944 N.E.2d 564, 570 (Ind.Ct.App.2011) (citing McCauley v. Harris, 928 N.E.2d 309, 313 (Ind.Ct.App.2010). reh’g denied, trans. denied ), trans. denied.

The principles of notice pleadings are utilized in Indiana. Grzan v. Charter Hosp. of N.W. Ind., 702 N.E.2d 786, 793 (Ind.Ct.App.1998) (citing Miller v. Mem’l Hosp. of South Bend, 679 N.E.2d 1329, 1332 (Ind.1997)). “Ind. Trial Rule 8(A) merely requires ‘(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for the relief to which the pleader deems entitled....’” Id. Also, “Ind. Trial Rule 8(F) provides that ‘all pleadings shall be so construed as to do substantial justice, lead to disposition on the merits, and avoid litigation of procedural points.’ ” Id. at 794. “Notice pleading is designed to ‘discourage battles over mere form of statement and to sweep away needless controversies that have occurred either to delay trial on the merits or to prevent a party from having a trial because of mistakes in statement.’ ” Id. (quoting Miller, 679 N.E.2d at 1332).

“Under Indiana’s notice pleading system, a pleading need not adopt a specific legal theory of recovery to be adhered to throughout the case.” ARC Const. Mgmt., LLC v. Zelenak, 962 N.E.2d 692, 697 (Ind.Ct.App.2012); see also Miller, 679 N.E.2d at 1332; State v. Rankin, 260 Ind. 228, 231, 294 N.E.2d 604, 606 (1973). Indiana’s notice pleading rules do not require the complaint to state all elements of a cause of action. Zelenak, 962 N.E.2d at 697 (citing State v. Am. Family Voices, Inc., 898 N.E.2d 293, 296 (Ind.2008), reh’g denied). Notice pleading merely requires pleading the operative facts so as to place the defendant on notice as to the evidence to be presented at trial. Id.; see also City of Clinton v. Goldner, 885 N.E.2d 67, 74 (Ind.Ct.App.2008) (citing Noblesville Redev. Comm’n v. Noblesville Assoc.’s Ltd. P’ship, 674 N.E.2d 558, 563 (Ind.1996)). Therefore, under notice pleading the issue of whether a complaint sufficiently pleads a certain claim turns on whether the opposing party has been sufficiently notified concerning the claim so as to be able to prepare to meet it. Id. A complaint’s allegations are sufficient if they put a reasonable person on notice as to why a plaintiff sues. Id.

ANALYSIS

The specific issue in this case is whether the Shields sufficiently pled facts claiming that their use of the dirt road over Taylor’s property connecting Earl Young Road and the long bottom had established a prescriptive easement. We observe that once a prescriptive easement has been established, the right vests by operation of law. Whitman v. Denzik, 882 N.E.2d 260, 264 (Ind.Ct.App.2008). “However, prescriptive easements generally ‘are not favored in the law.’” Id. (quoting Wilfong v. Cessna Corp., 838 N.E.2d 403, 405 (Ind.2005) (quoting Carnahan v. Moriah Prop. Owners Ass’n, Inc., 716 N.E.2d 437, 441 (Ind.1999))). “The existence or non existence of a prescriptive easement is a question of fact.” Id. (quoting Ballard v. Harman, 737 N.E.2d 411, 418 (Ind.Ct.App.2000), reh’g denied). A party claiming the existence of a prescriptive easement must provide evidence showing “ ‘an actual, hostile, open, notorious, continuous, uninterrupted adverse use for twenty years under a claim of right.’ ” Id. (quoting Wilfong, 838 N.E.2d at 406 (quoting Carnahan, 716 N.E.2d at 441)); see also Ind.Code § 32-23-1-1 (“The right-of-way, air, light, or other easement from, in, upon, or over land owned by a person may not be acquired by another person by adverse use unless the use is uninterrupted for at least twenty (20) years.”). However, in Fraley v. Minger, 829 N.E.2d 476, 486 (Ind.2005), the Indiana Supreme Court reformulated the elements of adverse possession. These new elements apply to establishing prescriptive easements, except for those differences required by the differences between fee interests and easements. Wilfong, 838 N.E.2d at 406. Therefore, a party claiming the existence of a prescriptive easement “must establish clear and convincing proof of (1) control, (2) intent, (3) notice, and (4) duration.” Id.

The Shields argue that “their pleadings stated that they owned an easement across [Taylor’s] land, and that they set out the facts sufficient to place [him] on notice that [their] easement may be prescriptive.” Appellants’ Brief at 6. The Shields argue that “they had an easement by either ... consent or acquiescence, and that they had uninterrupted use for more than twenty years during the ownership of successive owners.” Id. The Shields argue that “[a]c-quiescence is at the very heart of prescriptive easement and is not mere ‘consent’ giving rise to license.” Id.

Taylor argues in part that the “Shields’ argument that a prescriptive easement was pled by reference to consent or acquiescence [] mischaracterizes the Counterclaim,” noting that it “does not allege acquiescence by all owners in the chain of title,” and that “[t]o the contrary, Shields allege consent or acquiescence specifically as to Taylor.” Appellee’s Brief at 14. Taylor argues that “[acquiescence was not alleged with regard to any owner of the Taylor property except for Taylor ... who had owned the property approximately fifteen (15) years, well short of the prescriptive period of twenty (20) years.” Id. Taylor argues that “[t]he reference to acquiescence is not in context with the continuous, uninterrupted use during ownership by Taylor’s predecessors in interest, but only during Taylor’s limited period of ownership.” Id.

We begin by discussing the element of duration. As noted above, Ind. Code § 32-23-1-1 establishes that a prescriptive easement must be shown to have been in existence uninterrupted for at least twenty years. Indeed, “Indiana cases have also required that the evidence demonstrate an actual, hostile, open, notorious, continuous, uninterrupted, and adverse use for twenty (20) years under a claim of right, or such continuous, adverse use with knowledge and acquiescence of the owner.” Capps v. Abbott, 897 N.E.2d 984, 988 (Ind.Ct.App.2008) (citing Downing v. Owens, 809 N.E.2d 444, 450 (Ind.Ct.App.2004), trans. denied; Greenco, Inc. v. May, 506 N.E.2d 42, 45 (Ind.Ct.App.1987); Powell v. Dawson, 469 N.E.2d 1179, 1181 (Ind.Ct.App.1984), reh’g denied). “It is the general rule that where there has been the use of an easement for twenty (20) years which is unexplained, the presumption is that it is under a claim of right, and adverse, and is sufficient to establish title by prescription unless such use is contradicted or explained.” Id. Also,

[t]he party asserting the prescriptive right may make a prima facie case by showing an open and continuous use of another’s land with the owners [sic] knowledge, creating a rebuttable presumption that such use is adverse and under a claim of right. The presumption of a grant arises from proof of an uninterrupted adverse use for the prescriptive period. However, the presumption of a prescriptive right may be defeated by proof that the use was by permission or not under a claim of right.

Greenco, 506 N.E.2d at 45-46 (citations omitted).

As observed in Capps, the Indiana Supreme Court in Wilfong “found that Wilfong had not established a prescriptive easement to use a private road across the Cessna family’s property because there was no evidence establishing that use of the land by Wilfong’s predecessors-in-title had been adverse to the interest of the Cessna family.” 897 N.E.2d at 989. In so holding, “the Court noted the trial court’s finding that the Cessna family had granted Wilfong’s predecessors-in-title permission to use the roadway.” Id.

Here, our concern is with the operative facts pled by the Shields in their counterclaim rather than with the evidence presented at trial. However, the principle exhibited in Wilfong applies with equal force here to defeat the Shields’ claim. As noted above, the Shields pled the following in them counterclaim:

3. From the late 1950’s and for approximately 50 years thereafter, the Shields family has had continuous, uninterrupted access to their Back Twenty Acres by an easement granted, by Frank Hudoff — the former owner of the Taylor property — then by John and Phyllis Chute [sic] — the subsequent owners of the Taylor property — and then, most recently, by plaintiffs own consent or acquiescence.
3. [sic] All of the owners of the Taylor real estate since the late 1950’s have agreed with Shields’ right to use the easement across the Taylor real estate (Taylor’s driveway) to access the Back Twenty Acres, and all the neighbors for the past 50 years have known of this. There has never been a question or controversy about such use until the Shields timbered some of their land in August 2010.
4. Even Taylor himself did not contest defendants’ use of the right of way until Taylor saw them cutting timber and taking it out across the easement. At that time, Taylor demanded exorbitant fees from the timbering for use of the easement, which the Shields refused to pay.

Appellants’ Appendix at 6-7 (emphases added).

Thus, regardless of whether the Shields’ use of the phrase “consent or acquiescence” in their counterclaim alleged that their use of Taylor’s land during Taylor’s ownership was prescriptive in nature, it is clear that the Shields also stated in their pleading that such “acquiescence” existed only on Taylor’s part and that originally they used the dirt road based upon permission granted by the Hudoffs and subsequently the Chukes. Use of land for access is not adverse if that use is permissive in nature. See Bass v. Salyer, 923 N.E.2d 961, 967 (Ind.Ct.App.2010) (noting that “[i]f the facts and circumstances of a case lead to the conclusion that the use[ ] was merely permissive, they are fatal to the prescription”) (quoting Brown v. Heidersbach, 172 Ind.App. 434, 444, 360 N.E.2d 614, 621 (1977)). Indeed, it would be illogical to read a pleading as stating that a landowner granted to another a prescriptive easement, for prescriptive easements are established by operation of law based upon adverse use as defined in Wilfong and Fraley. Wilfong, 838 N.E.2d at 406 n. 1 (citing Fraley, 829 N.E.2d at 486); Whitman, 882 N.E.2d at 264 (“[O]nce a prescriptive easement has been established, the right vests by operation of law.”) (citing Downing, 809 N.E.2d at 452); see also Bass, 923 N.E.2d at 965 (noting that whether a prescriptive easement exists is a question of fact). Also, our conclusion is bolstered by the prayer for relief contained in the Shields’ counterclaim, in which they asked for monetary damages in the amount of $300 only and did not request that the court enter an order declaring a prescriptive easement over Taylor’s property.

The Shields in their counterclaim did not plead that they used the dirt road on Taylor’s property in an adverse manner for twenty years or more. Accordingly, we conclude that the court did not err in finding that their counterclaim alleged only consensual entry or a consensual right of access to Taylor’s property.

For the foregoing reasons, we affirm the trial court’s December 9 Order and denial of the Shields’ motion to correct errors.

Affirmed.

FRIEDLANDER, J., and PYLE, J., concur.

      . The Court described the reformulated elements as follows:
      These four elements are established by clear and convincing proof of the following:
      (1) Control — The claimant must exercise a degree of use and control over the parcel that is normal and customary considering the characteristics of the land (reflecting the former elements of "actual,” and in some ways "exclusive,” possession);
      (2) Intent — The claimant must demonstrate intent to claim full ownership of the tract superior to the rights of all others, particularly the legal owner (reflecting the former elements of "claim of right,” "exclusive,” "hostile,” and "adverse”);
      (3) Notice — The claimant's actions with respect to the land must be sufficient to give actual or constructive notice to the legal owner of the claimant’s intent and exclusive control (reflecting the former “visible,” "open,” "notorious,” and in some ways the "hostile,” elements); and,
      (4) Duration — the claimant must satisfy each of these elements continuously for the required period of time (reflecting the former “continuous” element).
        Fraley v. Minger, 829 N.E.2d 476, 486 (Ind.2005).

        Wilfong, 838 N.E.2d at 406 n. 1.


author: BARNES, Judge.

text:
    John A. DUGAN, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 49A05-1202-PC-50.
    Court of Appeals of Indiana.
    Oct. 18, 2012.

      Stephen T. Owens, Public Defender of Indiana, Cassandra J. Wright, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

John Dugan appeals the post-conviction court’s denial of his petition for postconviction relief. We reverse and remand.

Issues

Dugan raises two issues, which we restate as:

I. whether the post-conviction court properly rejected Dugan’s freestanding claim regarding his habitual offender enhancement; and
II. whether the post-conviction court properly rejected Dugan’s claim of ineffective assistance of appellate counsel.

Facts

In 2005, the State charged Dugan with Class B felony possession of a firearm by a serious violent felon (“SVF”), Class D felony criminal recklessness, Class D felony pointing a firearm, and Class A misdemeanor carrying a handgun without a license. The State alleged that Dugan was a SVF because he had been convicted of Class C felony battery in 1994. The State also later alleged that Dugan was an habitual offender based on the 1994 battery conviction and an attempted burglary conviction.

At his February 2006 jury trial, the State dismissed all charges except the possession of a firearm by a SVF allegation and the habitual offender allegation. The jury found Dugan guilty of the possession of a firearm by a SVF charge, and Dugan pled guilty to the habitual offender allegation in exchange for the minimum ten-year sentence for the habitual offender enhancement. The trial court sentenced Du-gan to fifteen years for the SVF conviction enhanced by ten years for his status as an habitual offender.

On direct appeal, Dugan argued that the trial court abused its discretion by denying Dugan’s motion to bifurcate the possession of a handgun from the SVF determination. In February 2007, this court affirmed, and our supreme court denied transfer. See Dugan v. State, 860 N.E.2d 1288 (Ind.Ct.App.2007), trans. denied.

In 2008, Dugan filed a petition for post-conviction relief, which he amended in 2011. Based on Mills v. State, 868 N.E.2d 446 (Ind.2007), Dugan argued that his sentence was improper because defendants convicted of unlawful possession of a firearm by a SVF cannot have their sentences enhanced under the habitual offender statute by proof of the same felony used to establish that the defendant was a SVF. Dugan also argued that his appellate counsel was ineffective for failing to raise that issue on direct appeal.

After a hearing, the post-conviction court issued findings of fact and conclusions thereon denying Dugan’s petition. The post-conviction court found that Du-gan’s sentence was proper at the time of his sentencing based on Townsend v. State, 793 N.E.2d 1092 (Ind.Ct.App.2003), trans. denied. The post-conviction court also concluded that Dugan did not receive ineffective assistance of appellate counsel. The post-conviction court found that the issue was not clearly stronger than the issue raised by appellate counsel on direct appeal, that appellate counsel could not have anticipated our supreme court’s interpretation of the issue in Mills, and that Dugan waived his right to challenge the habitual offender enhancement by pleading guilty. Dugan now appeals.

Analysis

Dugan appeals the post-conviction court’s denial of his petition for post-conviction relief. A court that hears a post-conviction claim must make findings of fact and conclusions of law on all issues presented in the petition. Pruitt v. State, 903 N.E.2d 899, 905 (Ind.2009) (citing Ind. Post-Conviction Rule 1(6)). “The findings must be supported by facts and the conclusions must be supported by the law.” Id. Our review on appeal is limited to these findings and conclusions. Id. Because the petitioner bears the burden of proof in the post-conviction court, an unsuccessful petitioner appeals from a negative judgment. Id. (citing P-C.R. 1(5)). “A petitioner appealing from a negative judgment must show that the evidence as a whole ‘leads unerringly and unmistakably to a conclusion opposite to that reached by the trial court.’ ” Id. (quoting Allen v. State, 749 N.E.2d 1158, 1164 (Ind.2001), cert. denied). Under this standard of review, “[we] will disturb a post-conviction court’s decision as being contrary to law only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion.” Id.

I. Freestanding Claim

Dugan argues that his habitual offender enhancement is an illegal sentence. He contends that, at the time of his sentencing and direct appeal, opinions from this court were in conflict on the issue. In Conrad v. State, 747 N.E.2d 575, 595 (Ind.Ct.App.2001), trans. denied, this court held that “a defendant convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the defendant was a serious violent felon.” Based on amendments to the relevant habitual offender statute that took effect after Conrad, this court reached a different result in Townsend. There, this court held that a trial court could properly use a “same prior felony to create the underlying felony of unlawful possession of a firearm by a serious violent felon and support the habitual offender enhancement....” Townsend, 793 N.E.2d at 1097. Then, in 2007, after Dugan’s direct appeal was final, our supreme court decided Mills. In Mills, our supreme court held that the amendments to the habitual offender statute did not clarify the issue and that “a person convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the person was a serious violent felon.” Mills, 868 N.E.2d at 447. Dugan asks that we apply Mills retroactively to invalidate his habitual offender sentence enhancement.

“The purpose of post-conviction relief proceedings is to afford petitioners a forum in which ‘to raise issues unknown or unavailable to a defendant at the time of the original trial and appeal.’ ” State v. Jones, 835 N.E.2d 1002, 1004 (Ind.2005) (quoting Williams v. State, 748 N.E.2d 887, 890 (Ind.Ct.App.2001)). As Mills had not been decided, it was not known or available to Dugan at the time of his trial or direct appeal and is available in post-conviction proceedings. See id. (“Surely, at the time of this trial and initial appeal, Jones could not have known about, nor had available to him, a case not yet decided.”).

Dugan asks that we apply Mills retroactively based on our supreme court’s holding in Jones, where the court applied retroactively an opinion holding that it was improper to apply an habitual offender enhancement tó a handgun possession charge that was enhanced to a felony in the same proceeding. See id. at 1003 (relying on Ross v. State, 729 N.E.2d 113 (Ind.2000)). Jones applied Ross retroactively on collateral review to cases that were final at the time of Ross’s announcement. Id. Ross was a primary basis for the holdings in Conrad and Mills.

The State argues that, because Dugan pled guilty, he is not entitled to relief even if we apply Mills retroactively. In Mills, our supreme court ultimately held that the petitioner was not entitled to relief even though his sentence for a conviction of unlawful possession of a firearm by a SVF was improperly enhanced under the habitual offender statute. The petitioner was not entitled to relief because the double enhancement was imposed pursuant to a plea agreement. “[D]efendants who plead guilty to achieve favorable outcomes give up a plethora of substantive claims and procedural rights, such as challenges to convictions that would otherwise constitute double jeopardy.” Mills, 868 N.E.2d at 453 (quoting Lee v. State, 816 N.E.2d 35, 40 (Ind.2004)). “Among the favorable outcomes Mills achieved were resolution of other charges pending against him and a sentence on those charges concurrent with that on the charges discussed in this opinion. Mills relinquished the right to challenge his sentence as an impermissible double enhancement when he pled guilty.” Id.

Our supreme court reached a different result in Jones. There, a jury found the defendant guilty of several charges, and the defendant then pled guilty to an elevated handgun charge and being an habitual offender. There is no indication in Jones that the defendant received a benefit for pleading guilty. Despite the defendant’s guilty plea, our supreme court found that Ross applied retroactively, vacated the habitual offender sentence, and remanded for resentencing. Jones, 835 N.E.2d at 1004. The court noted that it could not “conclude, as the State argues, that a voluntary guilty plea automatically precludes relief in a post-conviction setting when there has been a change in substantive law.” Id.

We conclude that the circumstances here are more like those in Jones than in Mills. Dugan pled guilty to being an habitual offender, but unlike in Mills, Dugan did not receive a favorable outcome as a result of his guilty plea. The only benefit that Dugan received was a guaranteed minimum sentence on the habitual offender enhancement, which was the illegal sentence at issue. This is not a case where other charges were dropped or reduced as a result of the guilty plea. As a result, we conclude that, pursuant to Jones, Dugan’s guilty plea does not preclude relief in this case. Because Dugan’s direct appeal was final at the time Mills was announced, Dugan is entitled to its retroactive application. Dugan was entitled to post-conviction relief on this freestanding claim, and the post-conviction court erred by denying the claim. Because Dugan is entitled to relief on this claim, we need not address his claim of ineffective assistance of appellate counsel.

Conclusion

The post-conviction court erred when it denied Dugan’s claim that Mills applied retroactively to his habitual offender enhancement. Accordingly, we reverse and remand for the post-conviction court to vacate Dugan’s habitual offender enhancement.

Reversed and remanded.

VAIDIK, J., and MATHIAS, J., concur.

      . Our supreme court also granted relief to the defendant based on Conrad and Mills in Dye v. State, 972 N.E.2d 853 (Ind.2012). However, in Dye, the defendant had pled guilty to the unlawful possession of a firearm by a SVF charge but had a trial on the habitual offender allegation. The defendant was challenging the habitual offender enhancement on direct appeal. Thus, the defendant was not attempting to challenge a guilty plea. Here, Dugan had a trial on the unlawful possession of a firearm by a SVF charge but pled guilty to the habitual offender allegation. He is now challenging the habitual offender enhancement in post-conviction proceedings.