author: BARNES, Judge. BAKER, Judge,

text:
    Amanda VAUGHN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1207-CR-544.
    Court of Appeals of Indiana.
    Feb. 15, 2013.

      Suzy St. John, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

Amanda Vaughn appeals the trial court’s sentence for her conviction of Class A misdemeanor criminal trespass. We reverse and remand.

Issue

Vaughn raises one issue, which we restate as whether the trial court abused its discretion when it ordered her to serve forty hours of community service in lieu of fines and costs.

Facts

The State charged Vaughn with Class D felony residential entry and Class B misdemeanor criminal mischief. Vaughn ultimately pled guilty to Class A misdemeanor criminal trespass, and the State dismissed the other charges. The plea agreement gave the trial court discretion as to fines and costs. The trial court sentenced Vaughn to 165 days with 151 days suspended. The trial court then found Vaughn indigent and assessed forty hours of community service in lieu of fines and costs. The trial court also ordered that Vaughn serve “an actual day in jail” for every eight hours of community service that she did not complete. Tr. p. 10. Vaughn’s counsel then said that Vaughn would “take the fine” instead, and the trial court ordered Vaughn to pay $165 in court costs and $10 in fines within two months. Id.

Vaughn filed a motion to reconsider the fines and court costs. Vaughn argued that the trial court did not have the authority under the plea agreement to impose community service and that the trial court’s order subjected her to possible incarceration due to her indigency. At a hearing on the motion to reconsider, Vaughn argued that the trial court should find her indigent regarding court costs and fines and impose no further obligation. Vaughn argued that the order violated her equal protection rights, that the order was not authorized under the plea agreement, and that the order amounted to a conditional plea.

The trial court vacated the order that Vaughn pay costs and fines and again ordered that Vaughn complete forty hours of community service in lieu of costs and fines. The trial court did not order that Vaughn would be sentenced to jail if she failed to complete community service. However, the trial court expressly refused to eliminate the possibility of a sanction of some kind for failing to complete the community service. Vaughn now appeals.

Analysis

Vaughn argues that the trial court abused its discretion when it ordered her to serve forty hours of community service in lieu of fines and costs. “[S]en-tencing decisions, including decisions to impose restitution, fines, costs, or fees, are generally left to the trial court’s discretion.” Berry v. State, 950 N.E.2d 798, 799 (Ind.Ct.App.2011). If the fees imposed by the trial court fall within the parameters provided by statute, we will not find an abuse of discretion. Id.

Vaughn argues that the trial court’s imposition of community service in lieu of fines and costs violated Vaughn’s plea agreement. “A plea agreement is contractual in nature, binding the defendant, the State, and the trial court.” Bennett v. State, 802 N.E.2d 919, 921 (Ind. 2004). Once the trial court accepts the plea agreement, it “is strictly bound by its sentencing provision and is precluded from imposing any sentence other than required by the plea agreement.” Id.

In support of her argument, Vaughn relies on Jackson v. State, 968 N.E.2d 328 (Ind.Ct.App.2012), for the proposition that a trial court cannot impose community service without express agreement in the plea agreement. However, in Jackson, the trial court ordered the defendant to perform fifty hours of community service as a condition of probation. Jackson relied upon our supreme court’s opinion in Freije v. State, 709 N.E.2d 323, 325 (Ind. 1999). Freije held that, if a plea agreement gives the trial court discretion to establish the conditions of probation, the trial court may “place a defendant on home detention, ... require community service work, or impose any other lawful condition.” Freije, 709 N.E.2d at 325. In the absence of a plea term giving the trial court such discretion, the trial court’s discretion is limited, but it may impose administrative, ministerial, and standard conditions of probation that do not “materially add to the punitive obligation.” Freije, 709 N.E.2d at 325. The plea agreement in Freije did not give the trial court discretion regarding the probation conditions, and our supreme court concluded that home detention and 650 hours of community service materially added to the punitive obligation and exceeded the sentence allowed by the plea agreement.

The community service here was imposed in lieu of costs and fines, not as a condition of probation, and the plea agreement gave the trial court discretion regarding those costs and fines. Because the trial court’s discretion in imposing costs and fines was not limited here by the plea agreement, we conclude that, if ordering community service in lieu of costs and fines was statutorily authorized, the imposition of community service did not violate the plea agreement. Consequently, we must determine whether community service in lieu of costs and fines is statutorily authorized.

The trial court ordered Vaughn to pay $165 in court costs and $10 in fines. Although the statutes regarding the imposition of costs and fines address how a trial court may enforce payment of the fines or costs by a non-indigent convicted person, the statutes do not address the procedure a trial court should follow if the convicted person is indigent. See Ind.Code § 33-37-4-1 (governing the amount of court costs); I.C. § 33-37-2-3 (governing the imposition of court costs); I.C. § 35-50-3-2 (governing the amount of fines associated with the conviction for a Class A misdemeanor); and I.C. § 35-38-1-18 (governing the imposition of fines). Further, none of the statutes governing costs and fines mention or permit a trial court to impose community service in lieu of costs or fines.

The State argues that “[cjommunity service is a reasonable condition in lieu of fines and costs.” Appellee’s Br. p. 6. Although community service may be a reasonable alternative to the imposition of costs or fines, the trial court must have the statutory authority to make such an order. The State cites several statutes that allow the imposition of community service, but none of them are relevant here. See, e.g., I.C. § 31-14-12-3 (authorizing the trial court to order community service in the context of contempt for failure to pay child support in a paternity action); I.C. § 31-14-15-4 (authorizing the trial court to order community service in the context of contempt for parenting time violations in a paternity action); I.C. § 31-16-12-6 (authorizing the trial court to order community service in the context of contempt for failure to pay child support); I.C. § 31-17-4-8 (authorizing the trial court to order community service in the context of contempt for parenting time violations); and I.C. § 34-28-5-1 (authorizing the trial court to order community service in lieu of a monetary judgment for an ordinance violation).

Given the lack of statutory authority for the trial court to impose a community service requirement in lieu of costs and fees, we must reverse the trial court’s order. We remand for the trial court to address the imposition of costs and fees in this case. In doing so, we note that, our supreme court has held, “when fines or costs are imposed upon an indigent defendant, such a person may not be imprisoned for failure to pay the fines or costs.” Whe-don, 765 N.E.2d at 1279.

Conclusion

The trial court erred by imposing community service in lieu of costs and fines without statutory authority to do so. We reverse and remand.

Reversed and remanded.

RILEY, J., concurs.

BAKER, J., dissents with opinion.

BAKER, Judge,

dissenting.

I respectfully dissent and part ways with the majority’s determination that the trial court erred in ordering Vaughn to serve forty hours of community service in lieu of paying fines and costs.

First, I would note that a trial court may exercise its discretion by suspending fines and costs, and “may impose any reasonable condition it deems appropriate when it does so.” Campbell v. State, 551 N.E.2d 1164, 1169 (Ind.Ct.App.1990). In my view, ordering Vaughn to perform community service in lieu of fines and costs was reasonable.

As the majority points out, the trial court did not order that Vaughn would be imprisoned if she failed to complete the ordered community service. Op. at 1073. Moreover, I cannot agree with the majority’s view that the statutes the State cites in support of the notion that community service is permissible in lieu of fines and costs are not relevant here. By analogy, I believe that the trial court had the authority to order Vaughn to perform community service in this instance. Thus, I would affirm the trial court’s judgment.

      . The trial court did not specify the statutes authorizing the costs and fines.

      . We acknowledge that differing results have been reached as to whether costs and fines are permissible where the defendant is indigent. In Whedon v. State, 765 N.E.2d 1276, 1279 (Ind.2002), our supreme court noted that fines or costs could be imposed upon an indigent defendant. Whedon, 765 N.E.2d at 1279 (noting that the legislature requires indi-gency hearing both as to the imposition of fines, Indiana Code Section 35-38-1-18, and costs, Indiana Code Section 33-19-2-3 (the predecessor to Indiana Code Section 33-37-2-3)). However, in Banks v. State, 847 N.E.2d 1050, 1052 (Ind.Ct.App.2006), trans. denied, we held that Indiana Code Section 33-37-2-3 does not permit the imposition of costs when a convicted person is indigent. However, Vaughn makes no argument regarding this issue, and we do not address it here.

      . Indiana Code Section 33-37-2-3 provides:
      (a)Except as provided in subsection (b), when the court imposes costs, it shall conduct a hearing to determine whether the convicted person is indigent. If the person is not indigent, the court shall order the person to pay:
      (1) the entire amount of the costs at the time sentence is pronounced;
      (2) the entire amount of the costs at some later date; or
      (3)specified parts of the costs at designated intervals.
      (b) A court may impose costs and suspend payment of all or part of the costs until the convicted person has completed all or part of the sentence. If the court suspends payment of the costs, the court shall conduct a hearing at the time the costs are due to determine whether the convicted person is indigent. If the convicted person is not indigent, the court shall order the convicted person to pay the costs:
      (1) at the time the costs are due; or
      (2) in a manner set forth in subsection (a)(2) through (a)(3).
      (c) If a court suspends payment of costs under subsection (b), the court retains jurisdiction over the convicted person until the convicted person has paid the entire amount of the costs.
      (d) Upon any default in the payment of the costs:
      (1) an attorney representing the county may bring an action on a debt for the unpaid amount;
      (2) the court may direct that the person, if the person is not indigent, be committed to the county jail and credited toward payment at the rate of twenty dollars ($20) for each twenty-four (24) hour period the person is confined, until the amount paid plus the amount credited equals the entire amount due; or (3) the court may institute contempt proceedings to enforce the court’s order for payment of the costs.
      (e) If, after a hearing under subsection (a) or (b), the court determines that a convicted person is able to pay part of the costs of representation, the court shall order the person to pay an amount of not more than the cost of the defense services rendered on behalf of the person. The clerk shall deposit the amount paid by a convicted person under this subsection in the county’s supplemental public defender services fund established under IC 33-40-3-1.
      (f) A person ordered to pay part of the cost of representation under subsection (e) has the same rights and protections as those of other judgment debtors under the Constitution of the State of Indiana and Indiana law.

      . Indiana Code Section 35-38-1-18 provides:
      (a) Except as provided in subsection (b), whenever the court imposes a fine, it shall conduct a hearing to determine whether the convicted person is indigent. If the person is not indigent, the court shall order:
      (1) that the person pay the entire amount at the time sentence is pronounced;
      (2) that the person pay the entire amount at some later date;
      (3) that the person pay specified parts at designated intervals; or
      (4) at the request of the person, commitment of the person to the county jail for a period of time set by the court in lieu of a fine. If the court orders a person committed to jail under this subdivision, the person’s total confinement for the crime that resulted in the conviction must not
      exceed the maximum term of imprisonment prescribed for the crime under IC 35-50-2 or IC 35-50-3.
      (b) A court may impose a fine and suspend payment of all or part of the fine until the convicted person has completed all or part of the sentence. If the court suspends payment of the fine, the court shall conduct a hearing at the time the fine is due to determine whether the convicted person is indigent. If the convicted person is not indigent, the court shall order the convicted person to pay the fine:
      (1) at the time the fine is due; or
      (2) in a manner set forth in subsection (a)(2) through (a)(4).
      (c) If a court suspends payment of a fine under subsection (b), the court retains jurisdiction over the convicted person until the convicted person has paid the entire amount of the fine.
      (d) Upon any default in the payment of the fine:
      (1) an attorney representing the county may bring an action on a debt for the unpaid amount;
      (2) the court may direct that the person, if the person is not indigent, be committed to the county jail and credited toward payment at the rate of twenty dollars ($20) for each twenty-four (24) hour period the person is confined, until the amount paid plus the amount credited equals the entire amount due; or
      (3) the court may institute contempt proceedings or order the convicted person's wages, salary, and other income garnished in accordance with IC 24-4.5-5-105 to enforce the court’s order for payment of the fine.


source: Caselaw Access Project

author: BRADFORD, Judge.

license: Public Domain

text:
    SOUTH SHORE BASEBALL, LLC, d/b/a Gary South Shore Railcats, and Northwest Sports Venture, LLC, Appellants-Defendants, v. Juanita DeJESUS, Appellee-Plaintiff.
    No. 45A03-1205-CT-222.
    Court of Appeals of Indiana.
    Feb. 15, 2013.

      Nicholas J. Parolisi, Jr., Mitchell H. Frazen, James R. Branit, Litchfield Cavo LLP, Chicago, IL, Attorneys for Appellants.
    Duke T. Escue, Walter J. Alvarez, David A. Wilson, Walter J. Alvarez, P.C., Crown Point, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

On May 23, 2009, Juanita DeJesus was injured when she was hit on the head by a foul ball at a Gary South Shore Railcats minor league professional baseball game. DeJesus subsequently filed suit against South Shore Baseball, LLC d/b/a Gary South Shore Railcats and Northwest Sports Venture, LLC (collectively, “Appellants”), alleging that the Appellants were liable for her injuries under a theory of premises liability and for negligently failing to place protective screening continuously from first to third base. Appellants filed a motion for summary • judgment, claiming that, under both Indiana law and the nationwide majority rule, they could not be held liable for Dejesus’s injuries. The trial court denied the Appellants’ motion for summary judgment. Soon thereafter, Appellants sought and were granted permission to bring this interlocutory appeal. Concluding that, as a matter of law, Appellants cannot be held liable for Dejesus’s injuries, we reverse the judgment of the trial court and remand with instructions for the trial court to issue an order granting summary judgment in favor of the Appellants.

FACTS AND PROCEDURAL HISTORY

On May 23, 2009, DeJesus attended the Gary South Shore Railcats opening day baseball game with her fiance and two friends. The Railcats are a professional minor league baseball team. The undisputed facts indicate that DeJesus was a baseball fan, particularly a fan of the Rail-cats. DeJesus had attended numerous Railcats games before the game on May 23, 2009, and was aware of the risk of foul balls leaving the field of play and entering the stands.

DeJesus was also aware of numerous warnings provided by Appellants regarding the risk of objects leaving the playing field and entering the stands. Specifically, DeJesus was aware of the warning printed on the back of her ticket:

WARNING. By using this ticket and entering the Stadium, the ticket holder assumes all risk and danger incidental to the game of Baseball, whether such risks occur prior to, during, or subsequent to the actual playing of the game, including specifically, (but not limited to) the danger of being injured by thrown bats and thrown or batted balls. The holder further specifically agrees that SouthShore Baseball, LLC ... [is] not liable for any injuries from such causes and hereby waives and releases the same from any such causes.

Appellants’ App. pp. 76, 81, 165. DeJesus was also aware of the warning signs posted in each aisle of the seating area which read “Please Be Aware Of Objects Leaving The Playing Field.” Appellants’ App. pp. 77, 79, 81. DeJesus also arrived at the stadium early enough on the day in question to hear the following warning read by the stadium announcer:

The Gary SouthShore RailCats management would like to remind you of the risks inherent to the game of baseball. Thrown bats and batted or thrown balls may enter the seating area at a high rate of speed and, as a result, can be very dangerous. Please be alert at all times and watch out for the youngsters in attendance tonight. The Gary South-Shore RailCats and the City of Gary shall not be liable for injuries or loss of personal property or equipment.

Appellants’ App. pp. 81-82.

Shortly after the beginning of the game, the second batter hit a pop-up foul ball. DeJesus saw the batter make contact with the ball and saw the ball pop up in the air. DeJesus noticed that the people sitting around her were looking up in the air, so she looked up in the air as well. DeJesus heard someone say, “Look out,” and while DeJesus was looking for the ball, it hit her in the face. Appellants’ App. p. 63. As a result of being hit by the foul ball, DeJesus suffered serious injuries, including several fractured bones in her face and blindness in her left eye.

DeJesus filed a complaint against South Shore Baseball, LLC on November 24, 2009, alleging that South Shore was liable for her injuries under a theory of premises liability. On March 2, 2011, DeJesus filed her first amended complaint, which restated her claim against South Shore Baseball and added a claim against Northwest Sports Venture, LLC, in which DeJe-sus claimed that Northwest Sports Venture was liable for her injuries because it negligently failed to provide protective screening continuously from first to third base. Appellants filed a motion for summary judgment in which they asserted that, as a matter of law, they could not be held liable for Dejesus’s injuries. The trial court denied Appellants’ motion. Soon thereafter, Appellants requested and were granted permission to seek this interlocutory appeal.

DISCUSSION AND DECISION

Appellants contend that the trial court erroneously denied their request for summary judgment. Specifically, Appellants claim that the trial court should have granted their motion for summary judgment because, as a matter of law, they cannot be held liable for Dejesus’s injuries.

I. Standard of Review

An appellate court reviewing summary judgment analyzes the issues in the same way as would a trial court. Carie v. PSI Energy, Inc., 715 N.E.2d 853, 855 (Ind.1999). A party seeking summary judgment must establish that “the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). The party moving for summary judgment bears the initial burden to establish its entitlement to summary judgment. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 975 (Ind.2005). “Only then does the burden fall upon the non-moving party to set forth specific facts demonstrating a genuine issue for trial.” Outcalt v. Wardlaw, 750 N.E.2d 859, 862 (Ind.Ct. App.2001), trams, not sought. The reviewing court must “construe the evidence in favor of the non-movant, and resolve all doubts against the moving party.” Shambaugh & Son, Inc. v. Carlisle, 763 N.E.2d 459, 461 (Ind. 2002). Pfenning v. Lineman, 947 N.E.2d 392, 396-97 (Ind.2011).

II. Premises Liability

In filing suit against the Appellants, DeJesus claimed that the Appellants should be found liable for her injuries under a theory of premises liability. The elements of premises liability are well-established.

A landowner owes to an invitee or social guest “a duty to exercise reasonable care for his protection while he is on the landowner’s premises.” Burrell v. Meads, 569 N.E.2d 637, 639 (Ind.1991). To articulate the contours of this duty, we have adopted the Restatement (Second) of Torts § 343 (1965):

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(e) fails to exercise reasonable care to protect them against the danger.

Burrell, 569 N.E.2d at 639-40.

Pfenning, 947 N.E.2d at 406. Because Dejesus’s premises liability claim against the Appellants is predicated on their actions as operators of the baseball stadium, the above-stated requirements apply. Thus, for the Appellants to obtain summary judgment, the designated evidence must demonstrate that at least one of the elements of premises liability is not satisfied. See id.

The Appellants argue that the relevant facts are undisputed and preclude a finding that they should have expected that DeJesus would fail to discover or realize the danger of being struck by a foul ball and fail to protect herself against it. Appellants also argue that the potential for foul balls to enter the stands does not involve an unreasonable risk of harm to invitees. We agree.

“It is well known ... that it is not possible, at baseball games, for the ball to be kept at all times within the confines of the playing field,” Lorino v. New Orleans Baseball & Amusement Co., 16 La.App. 95, 133 So. 408 (1931), and “[a]nyone familiar with the game of baseball knows that balls are frequently fouled into the stands and bleachers.” Erickson v. Lexington Baseball Club, 233 N.C. 627, 65 S.E.2d 140, 141 (1951). “Such are common incidents of the game which necessarily involve dangers to spectators.” Id.; see also McNiel v. Fort Worth Baseball Club, 268 S.W.2d 244, 246 (Tex.Civ.App.1954) (noting that a ball being batted into the stands is a circumstance which is commonly incident to the inherent nature of the game of baseball). However, danger notwithstanding, it is widely accepted that “[w]hether baseball fans are viewed as participants in the game itself or merely passive spectators, one thing is certain: the chance to apprehend a misdirected baseball is as much a part of the game as the seventh inning stretch or peanuts and Cracker Jack.” Rudnick v. Golden West Broadcasters, 156 Cal.App.3d 793, 202 CaLRptr. 900, 905 (1984). “In other words, spectators know about the risk of being in the stands and, in fact, welcome that risk to a certain extent.” Benejam v. Detroit Tigers, Inc., 246 Mich.App. 645, 635 N.W.2d 219, 222 (2001).

Moreover, the Pennsylvania Superior Court has held that it “think[s] the frequency with which foul balls go astray, alight in the grandstand or field, and are sometimes caught and retained by onlookers at baseball games is a matter of such common everyday practical knowledge as to be a subject of judicial notice.” Schentzel v. Philadelphia Nat. League Club, 173 Pa.Super. 179, 96 A.2d 181, 188 (1953). The Supreme Court of Virginia has stated that spectators cannot watch many innings of an ordinary game without coming to a full realization that batters cannot, and do not, control the direction of the ball which they strike and that foul tips or liners may go in an entirely unexpected direction. Thurmond v. Prince William Prof 'l Baseball Club, Inc., 265 Va. 59, 574 S.E.2d 246, 250 (2003). “ ‘[One] could not hear the bat strike the ball many times without realizing that the ball was a hard object. Even the sound of the contact of the ball with the gloves or mitts of the players would soon apprize him of that.’” Thurmond, 574 S.E.2d at 250 (quoting Brisson v. Minneapolis Baseball & Athletic Ass’n, 185 Minn. 507, 240 N.W. 903, 904 (1932)). Furthermore, we agree with the observation of the Massachusetts Supreme Judicial Court that “a spectator familiar with the game assumes the reasonable risks and hazards inherent in the game ... [a]nd it is common knowledge that one of these hazards is the possibility of being hit by a foul ball.” Shaw v. Boston Am. League Baseball Co., 325 Mass. 419, 90 N.E.2d 840, 842 (1950) (citing Hudson v. Kansas City Baseball Club, Inc., 349 Mo. 1215, 164 S.W.2d 318, 323-24 (1942); Crane v. Kansas City Baseball & Exhibi tion Co., 168 Mo.App. 301, 153 S.W. 1076, 1077-78 (1913); Kavafian v. Seattle Baseball Club Ass’n, 105 Wash. 215, 181 P. 679 (1919); Brisson, 240 N.W. at 904).

For the purpose of our premises liability jurisprudence, the issue is not what risk the plaintiff subjectively incurred but whether the Appellants objectively should have expected that the plaintiff would be oblivious to the danger or fail to protect herself from it. Pfenning, 947 N.E.2d at 406. Again, “[djuring each and every baseball game, foul balls regularly careen into the grandstand and are oftentimes even caught by spectators.” Romeo v. Pittsburgh Assocs., 787 A.2d 1027, 1031 (Pa.Super.Ct.2001). “This reality is a ‘matter of such common everyday practical knowledge’ that all individuals will be deemed familiar with such ‘neighborhood knowledge.’ ” Id. (quoting Schentzel, 96 A.2d at 186).

In the instant matter, the undisputed evidence demonstrates that DeJesus was a baseball fan who was aware of the risk that a foul ball would be hit into the stands. DeJesus acknowledged that she saw the warnings about the potential for balls to enter that stands that were posted throughout the stadium, that she was aware of the similar warning printed on the back of her ticket for admission, and that she heard the verbal warning about the potential for balls to enter the stands that was read by the stadium announcer prior to the start of the game. Further, the record is devoid of any evidence that would create a genuine issue of fact as to whether the Appellants should have expected that patrons, including DeJesus, would not recognize or discover the risk of injury associated with foul balls entering the stands. Accordingly, we find no genu-iñe issue of fact to contravene the objectively reasonable expectation by the Appellants that persons attending a baseball game would realize the risk of being struck by a foul ball and take appropriate precautions.

In addition, we find the absence of a genuine issue of fact regarding the first element of premises liability — that the Appellants had actual or constructive knowledge of a condition on the premises that involved an unreasonable risk of harm to invitees. The determination of duty is one of law for the court, Pfenning, 947 N.E.2d at 407 (citing N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 466 (Ind. 2003)), and we conclude that, as a matter of law, Appellants cannot be held liable to DeJesus under a theory of premises liability because the risk of getting hit by a foul ball at a baseball game does not amount to an unreasonable risk of harm. Again, it is common knowledge that foul balls may leave the field of play and enter the stands and “one who attends a baseball game as a spectator can properly be charged with anticipating as inherent to baseball the risk of being struck by a foul ball while sitting in the stands during the course of a game.” Pakett v. The Phillies, L.P., 871 A.2d 304, 308 (Pa.Comwlth.Ct.2005). Further, we agree with our sister jurisdictions which have found that “ ‘[t]he risk of being ... hit, with a chance to catch the foul and keep the ball, is one of the exciting thrills of attendance at the game,’ ” Id. (quoting Boynton v. Ryan, 257 F.2d 70, 71 (3rd Cir.1958)), and “[fjor most fans, the everyday reality of attending a baseball game includes voluntarily subjecting oneself to the risk that a ball or bat might leave the field and cause injury.” Bene- jam, 635 N.W.2d at 224. Even knowing of this potential risk, the majority of fans “prefer unobstructed and uninsulated contact with the game.” Id., 635 N.W.2d at 224.

In Pfenning, the Indiana Supreme Court recognized that the potential to be hit by an errant shot is a risk inherent to being on a golf course and held that the risk of a person on a golf course being struck by a golf ball does not qualify as the “unreasonable risk of harm” referred to in the first two components of the Burrell three-factor test relating to liability under a theory of premises liability. 947 N.E.2d at 407. We believe the same reasoning can be applied to baseball. Again, a majority of fans prefer unobstructed and uninsulated contact with the game, and we agree with the Court of Appeals of New York’ which held that the “perils of the game of baseball ... are not so imminent that due care on the part of the owner requires that the entire playing field be screened.” Akins v. Glens Falls City Sch. Dist, 53 N.Y.2d 325, 441 N.Y.S.2d 644, 424 N.E.2d 531, 533 (1981). As such, we conclude that, like the risk associated with an individual on a golf course, the risk that a spectator at a baseball game might be hit by a foul ball does not qualify as the “unreasonable risk of harm” referred to in the first two components of the Burrell three-factor test relating to liability under a theory of premises liability. See Pfen-ning, 947 N.E.2d at 407.

III. Negligence

In filing suit against the Appellants, DeJesus also claimed that the Appellants should be held liable for her injuries under a general theory of negligence because Appellants failed to install protective screening continuously from first to third base. In support of this claim, DeJesus designated the affidavit of Alan R. Caskey, Ph.D., in which Caskey opined that he believed that there should be protective screening continuously from first to third base. DeJesus, however, did not designate any evidence suggesting that any of the generally accepted standards for construction and operation of a baseball stadium would impose a duty on Appellants to erect protective screening continuously from first to third base. Appellants argue that they were entitled to summary judgment on this point as well because, as a matter of law, no such duty exists. We agree.

The majority rule applied by our sister jurisdictions provides that, as a matter of law, operators of a baseball stadium have only a limited duty to provide protective screening in the area behind home plate where the danger of sharp foul tips is greatest. Turner v. Mandalay Sports Entm’t, LLC, 124 Nev. 213, 180 P.3d 1172, 1175 (2008); Benejam, 635 N.W.2d at 225; Lawson v. Salt Lake Trapers, Inc., 901 P.2d 1013,1015 (Utah 1995); Bellezzo v. State, 174 Ariz. 548, 851 P.2d 847, 852-53 (Ariz.Ct.App.1992); Arnold v. City of Cedar Rapids, 443 N.W.2d 332, 333 (Iowa 1989); Akins, 441 N.Y.S.2d 644, 424 N.E.2d at 533; McNiel, 268 S.W.2d at 246; Brisson, 240 N.W. at 904. The majority rule provides that management is not required, in order to free itself from negligence, to provide protected seats for all who may possibly request them. Erickson, 65 S.E.2d at 141; Brown v. San Francisco Ball Club, 99 Cal.App.2d 484, 222 P.2d 19, 21 (1950); Brisson, 240 N.W. at 904. It is enough to provide screened seats in sufficient number to accommodate as many patrons as may reasonably be expected to request screened seats on ordinary occasions. Turner, 180 P.3d at 1175; Benejam, 635 N.W.2d at 225; Lawson, 901 P.2d at 1015; Bellezzo, 851 P.2d at 852-53; Arnold, 443 N.W.2d at 333; Akins, 441 N.Y.S.2d 644, 424 N.E.2d at 533; Brown, 222 P.2d at 21; Brisson, 240 N.W. at 904. However, operators of a baseball stadium need not provide a sufficient number of protected seats for an unusually large crowd. Brown, 222 P.2d at 21.

Courts have recognized that, while baseball is not free from danger to those witnessing the game, the operator of a stadium is not an insurer of its patron’s safety and the perils are not so imminent that due care on the part of the management requires all the spectators to be screened in. See Akins, 441 N.Y.S.2d 644, 424 N.E.2d at 533; Erickson, 65 S.E.2d at 141; Lorino, 133 So. at 409. “This is in part for the reason that many patrons prefer to sit where their view is not obscured by screening.” Erickson, 65 S.E.2d at 141. The limited duty rule comports with that everyday reality and, while requiring that protected seats be provided for those who want them, “leaves the baseball stadium operator free, without fear of liability, to accommodate the majority of fans who prefer unobstructed and uninsulated contact with the game.” Benejam, 635 N.W.2d at 224. Accordingly, the limited duty rule provides that, as a matter of law, an operator of a baseball stadium who “provides screening behind home plate sufficient to meet ordinary demand for protected seating has fulfilled its duty with respect to screening and cannot be subjected to liability for injuries resulting to a spectator by an object leaving the playing field.” Id. at 225; see also Turner, 180 P.3d at 1175-76; Akins, 441 N.Y.S.2d 644, 424 N.E.2d at 534.

We agree with the reasoning set forth by our sister jurisdictions and hereby take this opportunity to expressly adopt the limited duty rule. Moreover, our research has uncovered no jurisdiction that would impose the duty suggested by DeJesus. As such, we conclude that, as a matter of law, Appellants cannot be held liable for Dejesus’s injuries so long as they met their limited duty of providing protective screening in front of an adequate number of seats behind home plate.

It is undisputed that the Appellants placed protective screening in front of the seats behind home plate. In addition, De-Jesus has designated no evidence suggesting that the number of seats behind the protective screening was insufficient to accommodate the ordinary demand for such seats from the number of patrons who may reasonably be expected to want them, and we find nothing in the record that would suggest that the number of seats available behind the protective screening was not adequate. Furthermore, we note that, with respect to DeJesus specifically, DeJe-sus has designated no evidence indicating that she and her friends would not have been able to purchase seats behind the protective screening on the day in question if they had chosen to do so. We therefore conclude that Appellants were entitled to summary judgment because, as a matter of law, Appellants satisfied their limited duty to DeJesus and, as a result, could not be held liable for her injuries.

IV. Conclusion

With respect to Dejesus’s claim that Appellants were liable for her injuries under the theory of premises liability, we apply the Indiana Supreme Court’s holding in Pfenning to the instant matter and conclude that the undisputed designated evidence conclusively establishes that crucial aspects of two of the elements of premises liability are not satisfied. Pfen-ning, 947 N.E.2d at 407. There is no showing that (a) the Appellants should have reasonably expected that their invitees would fail to discover or realize the danger of foul balls entering the stands, and (b) the risk of being struck by a foul ball involved an unreasonable risk of harm. With respect to Dejesus’s negligence claim, we adopt the majority rule that the operator of a baseball stadium does not have a duty to place protective screening continuously from first to third base, but rather only in the most dangerous area, i.e., the area directly behind home plate. For these reasons, we conclude that DeJe-sus cannot prevail on her claims against the Appellants. As such, we reverse the judgment of the trial court and remand with instructions for the trial court to grant the Appellants’ motion for summary judgment.

The judgment of the trial court is reversed and the matter remanded with instructions.

NAJAM, J., and FRIEDLANDER, J., concur.

      . Northwest Sports Venture LLC changed its name to South Shore Baseball, LLC on July 5, 2001. As such, Northwest Sports Venture LLC and South Shore Baseball, LLC are, in reality, two different names for the same entity-

        . We note that the Pennsylvania Superior Court is one of two intermediate appellate courts in the State of Pennsylvania.

      . We note that the Pennsylvania Commonwealth Court is the second intermediate appellate court in the State of Pennsylvania.

      . We note that the Court of Appeals of New York is the top appellate court in the State of New York.

      . We note that our research has uncovered no jurisdiction that has found that the operators of a baseball stadium should expect that persons attending a baseball game would fail to realize the risk of being struck by a foul ball and take appropriate precautions or that the risk of harm associated with the potential for foul balls to enter the seating area of a baseball stadium amounts to an unreasonable risk of harm to spectators.


author: BAILEY, Judge.

text:
    Ralph PIPKIN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1206-CR-447.
    Court of Appeals of Indiana.
    Feb. 20, 2013.
    Deborah Markisohn, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Ralph Pipkin (“Pipkin”) was charged with Failure to Register, as a Class D felony. See Ind.Code § 11-8-8-7. He subsequently moved to dismiss the charge as an impermissible ex post facto punishment as applied to him; the trial court denied the motion. He later moved to dismiss the charge under speedy trial rules; the trial court again denied dismissal. Pipkin then sought interlocutory review of the order denying dismissal on ex post facto grounds.

Determining sua sponte that we lack jurisdiction to hear this appeal, we dismiss.

Facts and Procedural History

In 1982, Pipkin was convicted of Rape in California. At the time of his release from imprisonment, California required Pipkin to register with local authorities. Rather than remain in California, however, Pipkin moved to Indiana in 1986 and remained a resident of the state thereafter.

In 2002, Pipkin was convicted of Forgery. After his release from imprisonment for that offense, Pipkin was instructed to register as a sex offender as a result of his 1982 conviction for Rape in California.

Pipkin complied with the registration requirements in 2002. However, on June 16, 2009, the State charged Pipkin with Failure to Register between October 17, 2008, and April 21, 2009.

On August 5, 2010, Pipkin moved to dismiss the charge against him, arguing that the registration requirement under the Indiana Sex Offender Registration and Notification Act is an ex post facto punishment under the Indiana Constitution as applied to him (“first motion to dismiss”). The trial court conducted a hearing and on September 8, 2011 denied the first motion to dismiss and entered the denial of the motion into the CCS the same day.

On April 18, 2012, Pipkin again moved to dismiss, this time under our speedy trial rules (“second motion to dismiss”). See Ind.Crim. Rule 4. On April 25, 2012, the trial court denied Pipkin’s second motion to dismiss.

On May 8, 2012, Pipkin sought the trial court’s certification of the order denying his first motion to dismiss. The trial court granted certification on May 8, 2012, and Pipkin filed his Notice of Appeal. This appeal ensued.

Discussion and Decision

Though neither party raises the issue on appeal, this Court has an obligation to determine sua sponte whether it has the requisite jurisdiction to decide cases before it. Johnson v. Estate of Brazill, 917 N.E.2d 1235, 1239 (Ind.Ct.App.2009). Our review of the record leads us to conclude that we do not have jurisdiction here.

Appellate Rule 14(B) requires that a party seeking discretionary interlocutory review of a trial court’s order must seek certification of the appealed order within thirty days of its entry by the trial court. Ind. Appellate Rule 14(B)(1)(a). Where the thirty-day period has elapsed and the trial court certifies an order for discretionary interlocutory appeal, the court must enter a finding that good cause was shown for the delay in seeking certification of the appeal. Id. Failure to timely perfect an appeal deprives this Court of jurisdiction to decide the case. Johnson, 917 N.E.2d at 1239.

Here, Pipkin sought interlocutory review in April 2012 of the September 2011 order denying his first motion to dismiss. While the trial court certified that order for interlocutory appeal, the trial court did not enter any findings under Rule 14(B)(1)(a) that there was good cause shown for belated certification of an appeal from the denial of the first motion to dismiss. Further, our review of the record reveals no evidence that would establish good cause for a belated appeal from the order denying the first motion to dismiss. Indeed, we note that the trial court told Pipkin during the September 2011 hearing, at which the court denied the first motion to dismiss, that the court “[didn’t] have a problem signing off on some sort of interlocutory appeal on this matter.” (Tr. at 11.)

Because the trial court failed to find good cause for belatedly pursuing an interlocutory appeal from the first motion to dismiss, Pipkin’s appeal was not properly perfected. We therefore lack jurisdiction over this matter, and must dismiss his appeal.

Dismissed.

VAIDIK, J., and BROWN, J., concur.


author: MAY, Judge.

text:
    Nathan Carl GILBERT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 10A05-1204-CR-220.
    Court of Appeals of Indiana.
    Feb. 22, 2013.
    Jeffrey D. Stonebraker, Clark County Chief Public Defender, Jeffersonville, IN, Attorney for Appellant.
    Gregory F..Zoeller, Attorney General of Indiana, Henry A. Flores, Jr., Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Nathan Gilbert appeals his convictions of and sentences for four counts of Class B felony burglary. He presents two issues for our review:

1. Whether the trial court erred when it denied Gilbert’s motion to dismiss based on alleged violation of his rights under the Interstate Agreement on Detainers (IAD); and
2. Whether the manner in which the trial court conducted Gilbert’s sentencing hearing violated his Fourteenth Amendment right to due process.

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

On May 5, 2009, while Gilbert was serving a sentence in Kentucky, the State of Indiana charged him with four counts of Class B felony burglary. Consistent with the IAD, Gilbert was returned to Indiana to resolve the burglary charges in accordance with the IAD, which provides:

The contracting states solemnly agree that:
Article I
The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informa-tions, or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints. The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.

Ind.Code § 35-33-10-4. Gilbert pled guilty to all four counts on January 9, 2012. The trial court accepted Gilbert’s pleas, ordered the preparation of a pre-sentence investigation report, and scheduled Gilbert’s sentencing hearing for February 21.

At some point prior to the sentencing hearing, Gilbert was returned to Kentucky and his sentencing hearing did not occur as scheduled. On February 24, Gilbert filed a motion to dismiss the Indiana charges against him pursuant to the “anti-shuffling” provision of the IAD, which states in relevant part:

(e) If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Article 5(e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

Ind.Code § 35-33-10-4, Art. IV(e). After a hearing, the trial court denied Gilbert’s motion to dismiss and rescheduled his sentencing hearing for March 27. Gilbert’s counsel filed a motion to continue the sentencing hearing, and the trial court then rescheduled sentencing for April 16.

In the meantime, seemingly unbeknownst to counsel or the trial court, the Governors’ offices of Indiana and Kentucky were in communication about Gilbert’s situation. On March 21, the Governor of Kentucky approved a request from the Governor of Indiana to return Gilbert to Indiana for sentencing, and Kentucky returned Gilbert to Indiana on March 28 for a forty-eight hour period. The trial court immediately convened a sentencing hearing. Gilbert’s counsel of record, Niles Driskell, was on vacation March 28, so the trial court contacted another local attorney, Christopher Sturgeon, to represent Gilbert at the sentencing hearing.

At the hearing, Sturgeon objected to the timing of the proceedings, noting he had received notice of the hearing only one day before and asserting he did not have enough time to prepare. Gilbert argued he was denied certain due process protections because he was not given adequate notice of the sentencing hearing and could not present witnesses, review the statements made in the pre-sentence investigation report or prepare for the hearing.

Over Gilbert’s objections, the trial court held the sentencing hearing, saying, “I do feel constrained by the executive order that indicates that Mr. Gilbert needs to be returned to Kentucky by this afternoon and so, I am going to go forward with the sentencing today.” (Tr. at 29.) The trial court sentenced Gilbert to four consecutive ten-year sentences for each count of burglary, with ten years suspended. The trial court ruled five of the suspended years were to be served through community corrections or a similar program, and five years served on probation. The trial court then advised Gilbert he could file a motion to reconsider the sentence within two weeks. Gilbert did not do so, and this appeal ensued.

DISCUSSION AND DECISION

1. Interstate Agreement on Detainers

When indicted in Indiana for these four counts of Class B felony burglary, Gilbert was incarcerated in Kentucky. As the proceedings were subject to the provisions of the IAD, the denial of a motion to dismiss is a question of law reviewed de novo. Conn v. State, 831 N.E.2d 828, 880 (Ind.Ct.App.2005), trans. denied. Gilbert argues dismissal was required because the proceedings violated the “anti-shuffling” provision of the IAD when he was returned to Kentucky after he entered a plea of guilty to the charges against him, but before the trial court accepted that plea and sentenced him. Therefore, Gilbert asserts, the issue on appeal is “whether the term ‘trial’ in the IAD anti-shuffling-provisions includes entering judgments of convictions and sentencing.” (Br. of Appellant at 12.) This specific issue appears to be one of first impression in Indiana.

Gilbert acknowledges most jurisdictions have held the IAD’s anti-shuffling provision is not violated when a defendant is transferred back to the state of origin after pleading guilty but prior to sentencing. For example, the Maryland Court of Special Appeals held:

But the term “trial” in Article III, as well as in Article IV, does not encompass sentencing. If it did, then the anti-shuffling provision of Article III, as well as of Article IV, would have addressed, we can assume, unsentenced convictions, as it does “untried indictments, informa-tions, or complaints.” It does not, and thus we conclude that a “trial,” for the purposes of the IAD, refers to the resolution of charges and not necessarily to the imposition of sentence.

Painter v. State, 157 Md.App. 1, 848 A.2d 692, 703 (2004). See also United States v. Coffman, 905 F.2d 330, 333 (10th Cir.1990) (holding sentencing not included in the term “trial” because “[tjransferring a prisoner after trial but before sentencing does not implicate the prisoner rehabilitation concerns animating the IAD to the same degree as pre-trial transfers”). And see State v. Lewis, 422 N.W.2d 768, 772 (Minn. Ct.App.1988) (anti-shuffling provision of the IAD not violated when Lewis was returned to federal prison pending sentencing on state charge); and People ex rel. Harrist v. Dalsheim, 110 Misc.2d 734, 442 N.Y.S.2d 906, 907 (N.Y.Sup.Ct.1981) (anti-shuffling provision of the IAD not violated when Harrist returned to" Massachusetts prison after pleading guilty to New York charge but before sentencing).

The instant case is similar to People v. Barnes, 93 MichApp. 509, 287 N.W.2d 282 (1980). Barnes was simultaneously charged in federal and state jurisdictions with delivery of heroin. He entered a plea of guilty in federal court prior to his trial in state court, and he was incarcerated in the . federal penitentiary in Michigan. Barnes was later returned to state court, where he pled guilty, but then was returned to the federal penitentiary prior to being sentenced for the state charge. Barnes appealed his conviction and sentence, claiming his return to the federal penitentiary prior to his sentencing hearing on the state charge violated the anti-shuffling provision of the IAD. The Michigan Court of Appeals rejected his argument:

The penalty set forth in Article IV(e) for violation of the statute is that “such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” This language suggests that Congress only intended to include pre-conviction proceedings. Otherwise Congress would have included in the penalty clause language that the conviction or the sentence be vacated. Once a guilty verdict is returned or a guilty plea accepted, the instruments referred to in Article IV(e), (“indictment, information or complaint”) are no longer viable functioning documents. Realistically, the conviction discharges the instrument. Thus, we believe Congress intended the “trial” to end when a conviction was entered or a plea was accepted and did not intend to include post-conviction proceedings within the detainer statute.

Id.

Gilbert argues his case is distinguishable from those decisions that hold the IAD’s anti-shuffling provision is not violated when a defendant is transferred back to the state of origin after pleading guilty but prior to sentencing, because the alleged violations of the IAD occurred after his guilty plea, but before the trial court entered a judgment of conviction. At the guilty plea hearing, the trial court took the pleas under advisement, ordered a Presen-tence Investigation, and set sentencing for February 21, 2012. It entered a judgment of conviction on March 28, 2012, the same day as the rescheduled sentencing hearing. Gilbert argues because the trial court did not accept his guilty pleas and enter a judgment of conviction at the time of his guilty plea hearing, the proceedings were still subject to the anti-shuffling provision of the IAD and the charges against him should have been dismissed.

However, as Gilbert himself points out, while a judge may reject a guilty plea, see Snyder v. State, 500 N.E.2d 154, 157 (Ind. 1986) (trial court may reject defendant’s guilty plea in the exercise of sound discretion), “this is not as likely when a defendant enters blind pleas compared to a plea agreement whose terms the court might not wish to accept.” (Reply Br. of Appellant at 6) (footnote added). Ind. Code § 35-35-1-2 requires:

(a) The court shall not accept a plea of guilty or guilty but mentally ill at the time of the crime without first determining that the defendant:
(1) understands the nature of the charge against the defendant;
(2) has been informed that by the defendant’s plea the defendant waives the defendant’s rights to:
(A) a public and speedy trial by jury;
(B) confront and cross-examine the witnesses against the defendant;
(C) have compulsory process for obtaining witnesses in the defendant’s favor; and
(D) require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant may not be compelled to testify against himself or herself;
(3) has been informed of the maximum possible sentence and minimum sentence for the crime charged and any possible increased sentence by reason of the fact of a prior conviction or convictions, and any possibility of the imposition of consecutive sentences;
(4) has been informed that the person will lose the right to possess a firearm if the person is convicted of a crime of domestic violence (IC 35-31.5-2-78); and
(5)has been informed that if:
(A) there is a plea agreement as defined by IC 35-31.5-2-236; and
(B) the court accepts the plea; the court is bound by the terms of the plea agreement.

The record indicates the trial court advised Gilbert of the rights he waived by pleading guilty. Gilbert pled guilty without the benefit of a plea agreement, and the trial court indicated at the hearing that it accepted Gilbert’s pleas. Therefore, there was nothing left to do in the case except to sentence Gilbert.

We adopt the reasoning followed by a majority of state and federal jurisdictions and hold Gilbert was no longer subject to an “untried indictment” because he had pled guilty. As the only matter left for the trial court to decide was Gilbert’s sentence, the IAD’s anti-shuffling provision was not violated when Gilbert was returned to Kentucky after his guilty plea but before sentencing.

2. Sentencing

Gilbert also argues he should be resentenced because his due process rights were violated when he was not given adequate notice of his sentencing hearing and could not adequately review his pre-sen-tence investigation report. “Before sen-fencing a person for a felony, the court must conduct a hearing to consider the facts and circumstances relevant to sentencing. The person is entitled to subpoena and call witnesses and to present information in his own behalf.” Ind.Code § 85-38-1-8.

Gilbert was returned to Indiana for a forty-eight hour period and had less than twenty-four hours notice of his sentencing hearing. During the forty-eight hours before the hearing, Gilbert submitted to the pre-sentence investigation. Neither Gilbert nor his counsel saw the pre-sentence investigation report until the day of the sentencing hearing. They had only a few minutes during the hearing to review the report. Ind.Code § 35-38-l-12(b) states in relevant part, “The court shall furnish the factual contents of the presentence investigation or a copy of the presentence report sufficiently in advance of sentencing so that the defendant will be afforded a fair opportunity to controvert the material included.”

Because Gilbert’s stay in Indiana was so short, his due process rights were violated because he did not have enough time to prepare for his sentencing hearing or to properly examine his pre-sentence investigation report. Therefore, we remand to the trial court for resentencing.

CONCLUSION

Gilbert’s return to Kentucky following his guilty plea hearing but before his sentencing hearing did not violate the IAD anti-shuffling provision because sentencing is not included in those parts of criminal proceedings protected as part of the IAD; we therefore affirm Gilbert’s convictions of four counts of Class B felony burglary. However, Gilbert’s due process rights were violated because he did not have enough time to examine his presentence investigation report, call witnesses, or otherwise prepare for his sentencing hearing. We accordingly reverse his sentences and remand to the trial court for resentencing.

Affirmed in part, reversed in part, and remanded.

BAKER, J., and NAJAM, J., concur.

      . Ind.Code § 35-43-2-1(1).

      . We heard an oral argument on December 12, 2012, at the Ivy Tech campus in Sellers-burg, Indiana. We thank Ivy Tech for hosting the oral argument and commend counsel on their presentations.

      . A "blind plea" is a "guilty plea made without the promise of a concession from either the judge or the prosecutor.” Black’s Law Dictionary 1171 (7th ed. 1999).

      . In adopting the position of the majority of jurisdictions, we reject the holding in Tinghitella v. California, 718 F.2d 308, 311 (9th Cir.1983), in which the Ninth Circuit Court of Appeals held sentencing to be part of the defendant’s trial and subject to the provisions of the IAD.

      .Gilbert also asserts he was denied his constitutional right to counsel at sentencing when the trial court required a new lawyer assist him at sentencing with less than forty-eight hours notice. Because we reverse his sentencing for due process violations, we need not determine whether he also was denied his right to counsel at sentencing. See Sheron v.

        State, 682 N.E.2d 552, 553 (Ind.Ct.App.1997) ("As a matter of jurisprudence, courts will not decide constitutional issues when a case can be decided on other grounds.”).

      . While we remand for resentencing, we acknowledge the constraints the trial court faced by virtue of the actions of the Kentucky and Indiana executive branches independent of the litigation. The record reflects the trial court performed to the best of its ability under the circumstances, and our decision is not a reflection on the trial court's fairness or capability. It is instead meant to right a procedural wrong that was beyond the trial court’s control.


author: RUCKER, Justice,

text:
    Quanardel WELLS, Appellant, v. STATE of Indiana, Appellee.
    No. 49S05-1202-CR-68.
    Supreme Court of Indiana.
    Feb. 21, 2013.
   PUBLISHED ORDER

By order dated February 2, 2012, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals. After further review, including consideration of the points presented by counsel in supplemental briefs and at oral argument, and 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 not-for-publication memorandum decision, Wells v. State, No. 49A05-1012-CR-731, 2011 WL 4402623 (Ind.Ct.App. Sept. 22, 2011), should be reinstated as a memorandum decision. See Appellate Rule 65(D). 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 a copy of this Order for publication on-line and in the bound volumes of this Court’s decisions.

DAVID, MASSA, and RUSH, JJ„ concur.

RUCKER, J., dissents with separate opinion in which DICKSON, C.J., concurs.

RUCKER, Justice,

dissenting from the denial of transfer.

Defendant seeks interlocutory review of the trial court’s order denying his motion for severance of offenses pursuant to Indiana Code section 35-34-1-11. Passing on the opportunity to provide guidance and clarity on an area of the law in need of both, the majority declines to address the defendant’s arguments. I would grant transfer and do so. Therefore I dissent from today’s order denying the defendant’s Petition to Transfer.

The essential facts are these. In August 2009 Quanardel Wells was charged in an eleven-count information with various offenses arising out of his alleged sexual assault against four different victims on four separate occasions. In pertinent part he was accused of the following:

(1) On June 10, 2009, driving what was described as a silver-colored two-door car with a sunroof, Wells approached L.H. who was walking along a street in Indianapolis, Indiana. Wells offered L.H. twenty dollars to perform fellatio to which she agreed and entered the car. Wells proceeded to drive away from the location. While L.H. performed fellatio Wells was smoking crack cocaine. After announcing that he intended to drive to one location and then another in order to buy more cocaine, L.H. stopped performing fellatio. Wells threatened to hurt L.H. if she did not continue and instructed L.H. to keep her eyes closed. L.H. attempted to escape from the car and a struggle ensued during which Wells placed his hands around L.H.’s neck. L.H. eventually managed to escape through the passenger window. Wells was charged with criminal deviate conduct, criminal confinement, and strangulation.

(2) On June 24, 2009, driving what was described as a small, black car with a sunroof, Wells spoke to M.M. as she was walking along a street in Indianapolis, Indiana. M.M. could not hear what Wells was saying, so she walked to the passenger door. When M.M. leaned into the car, Wells grabbed her hair and pulled her inside. Holding M.M. by the hair, Wells told her if she did exactly as he instructed then she would not get hurt. Wells began driving and smoking a crack pipe. As he drove, he instructed M.M. to perform fellatio to which M.M. complied. At some point a struggle ensued during which Wells pushed M.M. out of the car. Wells was charged with criminal deviate conduct and criminal confinement.

(3) On July 4, 2009, driving what was described as a small, sporty, dark-colored car with a sunroof, Wells approached L.B. as she was walking along a street in Indianapolis, Indiana. Wells asked L.B. if she was “dating,” to which she replied affirmatively. Appellant’s App. at 130. L.B. then got into the car and agreed to go to the American Inn in Speedway, Indiana where Wells rented a room. Once the two entered the room, Wells produced a knife and told L.B. to get on the bed where he forced L.B. to engage in oral, anal, and vaginal sex. After checking out of the motel the next morning Wells drove L.B. near the area the two had met the night before. Wells was charged with rape and two counts of criminal deviate conduct.

(4) On July 8, 2009, driving what was described as a small, two-door, shiny, black sports car, Wells approached N.M. as she was walking along a street in Indianapolis, Indiana. N.M. entered the car for a “date” and Wells drove to an area behind the American Inn in Speedway, Indiana. At that point, Wells produced a knife and told N.M. that she was going to do what he wanted. Wells then pulled out a pipe and began smoking crack cocaine. While he was smoking, he ordered N.M. to perform fellatio and not to let his penis leave her mouth or he would kill her. N.M. managed to grab the knife, and throw it out the window. She eventually jumped from the car and escaped. Wells was charged with criminal deviate conduct, criminal confinement, and intimidation.

In July 2010, Wells filed a motion to sever the counts requesting separate trials for each alleged victim. After a hearing the trial court denied the motion. Wells sought interlocutory review which the Court of Appeals granted. In an unpublished memorandum decision the Court of Appeals affirmed the judgment of the trial court. See Wells v. State, No. 49A05-1012-CR-731, 2011 WL 4402623 (Ind.Ct.App. Sept. 22, 2011). Wells petitioned to transfer which after reconsideration this Court denies today.

Overview

The joinder of like offenses fulfills important policy objectives such as convenience and economy of judicial and prosecu-torial resources. 5 Wayne R. LaFave, et al., Criminal Procedure § 17.1(b), at 8 (3d ed.2007). Moreover, a defendant may prefer joinder to the harassment, delay, trauma, and expense of multiple prosecutions. Id. (quotation omitted). But joinder of offenses carries with it significant risks, including that a jury may convict the defendant “upon the weight of the accusations or ... the accumulated effect of the evidence.” 2 American Bar Association Standards for Criminal Justice, Standard 13-2.1 cmt. at 13 • 13 (2d ed. 1980) [hereinafter “Standards” or “ABA Standards”] (footnotes omitted). To address these competing concerns states as well as the federal government employ various joinder and severance rules.

For example the Federal Rules of Criminal Procedure permit joinder of offenses against a single defendant under three circumstances: (1) based upon the same act or transaction; (2) based upon two or more acts or transactions connected together or constituting parts of a common scheme or plan; or (3) based upon two or more acts or transactions of the same or similar character. See Fed.R.Crim.P. (8)a, 13. Under the federal scheme, even though offenses may have been properly joined, the court nonetheless may order separate trials if joinder would prejudice the defendant. Fed.R.Crim.P. 14(a). And prejudice can be found where: (1) the defendant may become embarrassed or confounded by presenting separate defenses; (2) the jury may use the evidence of one of the crimes to infer criminal disposition on the part of the defendant from which the defendant’s guilt of the other crime or crimes charged may be found; or (3) the jury may cumulate the evidence of the various crimes charged and find guilt when if considered separately, it would not so find. LaFave, supra § 17.1(b), at 9. The federal courts have devised different tests to determine whether offenses are of the “same or similar character” and thus may be joined. For example, the First Circuit Court of Appeals examines factors such as “whether the charges are laid under the same statute, whether they involve similar victims, locations, or modes of operation, and the time frame in which the charged conduct occurred.” United States v. Edgar, 82 F.3d 499, 503 (1st Cir.1996)(quotation omitted). But in the Second Circuit, crimes are “similar” if they are “somewhat alike” or share “a general likeness.” United States v. Werner, 620 F.2d 922, 926 (2d Cir.1980)(quotation omitted).

The ABA Standards also provide guidance on joinder and severance. The Standards differ from the Federal Rules in that they categorize offenses as either “related” or “unrelated.” “Related offenses” are those “based upon the same conduct, upon a single criminal episode, or upon a common plan.” ABA Standard 13-1.2. “Unrelated offenses” are those that are not “related.” ABA Standard 13-1.3. The Standards permit unlimited joinder of related and unrelated offenses, but “neither requires nor recommends the joint trial of offenses.” ABA Standard 13-2.1 cmt. at 13 • 12. Severance of related offenses is discretionary, see ABA Standard 13 — 3.1(b), but ABA Standard 13-3.1(a) grants the prosecution and the defense an absolute right to sever unrelated charges. Offenses that are of the “same or similar character” are considered unrelated offenses. ABA Standard 13-1.3 cmt. at 13 • 11. The severance Standard explains that “[i]n most cases ... joint trials of unrelated offenses are difficult to justify because the defendant suffers all of the disadvantages of a joint trial while the prosecutor achieves few if any of the benefits of a joint trial....” ABA Standard 13-3.1(a) cmt. at 13 • 30 (footnote omitted). Where offenses are unrelated, “the benefits to the government are substantially reduced and the benefits to the defendant are outweighed by substantial disadvantages.” ABA Standard 13-2.1 cmt. at 13 • 13 (footnote omitted).

A plurality of jurisdictions has adopted the language of the Federal Rules of Criminal Procedure or language similar to it. Fewer states have adopted the ABA related-unrelated approach or endorse a broadly permissive approach. Regardless of the approach followed, a fair number of states provide a right of severance when the offenses are unrelated and have been joined because they are of the same or similar character. In the end the underlying thrust of these various approaches is an attempt to strike a balance between a defendant’s right to a fair trial and the government’s interest in securing swift and efficient justice.

Discussion

In Indiana, two or more offenses may be joined in the same indictment or information when the offenses are either: “of the same or similar character, even if not part of a single scheme or plan,” or “based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.” Ind.Code § 35-34-l-9(a). “Whenever two (2) or more offenses have been joined for trial in the same indictment or information solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses.” 1.C. § 35-34-l-ll(a). On the other hand, the trial court has discretionary authority to sever offenses “whenever the court determines that severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense ....” Id. In such instances the trial court is required to consider “(1) the number of offenses charged; (2) the complexity of the evidence to be offered; and (3) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.” Id.

Interpreting Indiana Code sections 35-34-l-9(a) and 35-34-1-11(a) this Court has declared that severance of offenses is a matter of right under subsection 11(a) only when the offenses are joined solely because they are of the same or similar character. See Ben-Yisrayl v. State, 690 N.E.2d 1141, 1145 (Ind.1997). However when the offenses are joined under subsection 9(a)(2) — that is, offenses based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan — “the court must grant a severance only if it determines that it is appropriate to promote a fair determination of the defendant’s guilt or innocence, based on subsections 11(a)(1) through (3).” Id. (internal quotation omitted). Here, in denying Wells’ motion to sever, the trial court rested its decision on three grounds: “[t]he charged offenses are remarkably similar in character,” App. at 110; “[t]he offenses are connected by a distinctive nature and/or a common modus operandi,” and the offenses “appear to be a series of acts connected together.” Appellant’s App. at 111.

Seeking separate trials for each alleged victim, Wells contends he is entitled to severance as a matter of right because the offenses were joined together solely because they are of the same or similar character. According to Wells the offenses do not satisfy the test for “common plan or scheme.” See Penley v. State, 506 N.E.2d 806, 809 (Ind.1987) (“The test to bring evidence of other offenses within the common plan or scheme exception is not whether the other offenses have certain elements in common with the charged crime, but whether the other offenses tend to establish a preconceived plan by which the charged crime was committed.”) (quotation omitted). In like fashion, according to Wells, the charged offenses are not sufficiently connected together. See Craig v. State, 730 N.E.2d 1262, 1265 (Ind.2000) (“Offenses may be sufficiently ‘connected together’ to justify joinder under subsection 9(a)(2) if the State can establish that a common modus operandi linked the crimes and that the same motive induced that criminal behavior.”) (quotation omitted). Wells acknowledges that the separate offenses at issue share similarities, but insists they “are not so unique or distinctive that they must be the work of a single wrongdoer.” Br. of Appellant at 15. The State counters that the offenses were not joined together solely because they are of the same or similar character. And thus Wells is not entitled to severance as a matter of right. Relying essentially on the same case authority cited by Wells, the State argues the “acts were connected temporally and by a common modus oper-andi, shared a common motive, and were not joined solely on the ground that they were of the same or similar character.” Br. of Appellee at 7.

The parties’ respective positions highlight the challenges posed in resolving claims of severance as a matter of right. For the most part our traditional approach has been to look at the facts in a given case, compare them to another case, and then reach a conclusion based on the comparison. See, e.g., Jester v. State, 724 N.E.2d 235, 239-40 (Ind.2000) (comparing facts in similar case and concluding trial court properly denied motion to sever as of right charges of murder and conspiracy because “the charges arose out of several acts driven by a single motive”); see also Philson v. State, 899 N.E.2d 14, 17 (Ind.Ct.App.2008), trans. denied (reviewing the facts and concluding trial court properly denied motion to sever multiple counts of child molesting of one victim and two counts of rape of another victim because “these crimes are sufficiently linked together such that severance was not mandated”); but see, e.g., Clark v. State, 695 N.E.2d 999, 1003 (Ind.Ct.App.1998) (reviewing the facts and concluding counsel rendered deficient performance in not moving to sever as of right one count of child molesting of one victim and one count of rape of another victim because the counts were joined solely on grounds they were similar in character). And it is rarely the case that one cannot analyze a given set of facts and reach the conclusion that offenses are either a “series of acts connected together,” “based on the same conduct,” or based on conduct “constituting parts of a single scheme or plan.” See, e.g., Henson v. State, 707 N.E.2d 792, 796 (Ind.1999); Jameison v. State, 268 Ind. 599, 377 N.E.2d 404, 406 (1978); Ben-Yisrayl, 690 N.E.2d at 1145, Moore v. State, 545 N.E.2d 828, 830 (Ind.1989); Kahlenbeck v. State, 719 N.E.2d 1213, 1215 (Ind.1999); Abner v. State, 479 N.E.2d 1254, 1261 (Ind.1985).

In essence our traditional approach in resolving claims of severance fails to provide meaningful guidance to either the bench or the bar, and thus lends itself to inconsistent results, even where the facts are very similar. Just as important, our interpretation of Indiana Code section 35-34-1-1 makes it virtually impossible for a defendant to obtain a severance as a matter of right. This could not have been what the Legislature intended.

I am of the view that those States which recognize the interplay between severance and joinder rules and those States’ equivalent to Indiana Evidence Rule 404(b) offer a more useful model in determining whether a defendant is entitled to severance as a matter of right. The Rule provides in relevant part: “[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....” Ind. Evid. R. 404(b).

The following cases are instructive. In State v. Ives, 187 Ariz. 102, 927 P.2d 762 (1996), the issue before the Arizona Supreme Court was whether the defendant, who had been convicted of multiple counts of child molesting, was entitled to severance as a matter of right. Similar to Indiana’s joinder and severance statutes, Arizona procedural rules allow joinder of offenses “alleged to have been a part of a common scheme or plan” but grant to defendants the automatic right to sever “if offenses are joined only because they are of the same or similar character.” Id. at 766 (quotations omitted). In addressing this issue the Court observed “analysis of [the procedural rules] is related in part to Rule 404(b) ...; if a defendant’s motion to sever is denied and joinder was based only on the similarity between the offenses, defendant only has a remedy if the prior act evidence would not have been admissible under Rule 404(b).” Id. Ultimately the Court determined the trial court erred in denying the defendant’s motion to sever because “there [was] no basis for admitting the evidence under Rule 404(b)” Id. at 772; cf. State v. LaBounty, 168 Vt. 129, 716 A.2d 1, 6 (1998) (finding no error in denying severance of two counts of aggravated assault against two different victims because “[ejvidence relating to both offenses would have been admissible in separate trials to show a common scheme or plan under [Vermont Rule of Evidence] 404(b)”); State v. Profit, 591 N.W.2d 451, 461 (Minn.1999)(denial of motion to sever three counts of murder and two counts of criminal sexual assault was not “prejudi-cially erroneous” because other crimes evidence was admissible under Minnesota Evidence Rules 403 and 404(b)).

The State of Tennessee takes an approach similar to that of Arizona. In State v. Denton, 149 S.W.3d 1 (Tenn.2004), one of the issues before the Court was whether the defendant, who had been convicted of twenty sexual offenses involving eleven different victims, was entitled to severance of the offenses. As with Arizona, joinder and severance in Tennessee are also governed by procedural rules. The rules allow join-der of offenses “if the offenses constitute parts of a common scheme or plan or if they are of the same or similar character.” Id. at 12 (internal quotation omitted). However, where “two or more offenses have been joined or consolidated for trial pursuant to [the rule], the defendant shall have a right to a severance of the offenses unless the offenses are part of a common scheme or plan and the evidence of one would be admissible upon the trial of the others.” Id. at 12-13 (emphasis in original) (quotation omitted). Noting there is a “question of evidentiary admissibility that must be addressed,” the Court explained that in order for joinder to survive, “the trial court must conclude that[ ] ... the offenses are part of a common scheme or plan; ... [that] evidence of each offense is relevant to some material issue in the trial of all the other offenses” under Rule 404(b)(2); and that “the probative value of the evidence of other offenses is not outweighed by the prejudicial effect that admission would have on the defendant” under Rule 404(b)(4). Denton, 149 S.W.3d at 13. Ultimately, on various grounds the Court vacated the defendant’s convictions and remanded the case for separate trials. Id. at 17.

“[Indiana Evidence Rule 404(b) ] is designed to prevent the jury from making the ‘forbidden inference’ that prior wrongful conduct suggests present guilt.” Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind.1999); see also Thompson v. State, 690 N.E.2d 224, 233 (Ind.1997)(“The well established rationale behind ... Rule 404(b) is that the jury is precluded from making the ‘forbidden inference’ that the defendant had a criminal propensity and therefore engaged in the charged conduct.”) (citation omitted); Bassett v. State, 795 N.E.2d 1050, 1053 (Ind.2003)(noting the purpose behind Rule 404(b) is to “prevent[ ] the State from punishing people for their character, and evidence of extrinsic offenses poses the danger that the jury will convict the defendant because ... he has a tendency to commit other crimes”) (quotation omitted). A typical example of inadmissible evidence under 404(b) is a crime committed on another day in another place, and the only apparent purpose of the evidence is to prove that the defendant is a person who commits crimes. Swanson v. State, 666 N.E.2d 397, 398 (Ind.1996). As we have observed:

If a court were to indiscriminately admit proof of criminal activity beyond that specifically charged, then the burden on the defense would be intolerably enlarged and the court would effectively negate the due process presumption of innocence that our system of justice accords to every accused.

Hardin v. State, 611 N.E.2d 123, 128 (Ind.1993) (citations omitted). But the same “forbidden inference” danger is also at stake when two or more offenses are joined for trial. That is, in a joint trial the jury hears all of the evidence concerning all of the offenses and could very well make the “forbidden inference” based on the weight of the accusations or the cumulative effect of the evidence.

To avoid this problem I would take guidance from our sister jurisdictions and factor Indiana Evidence Rule 404(b) into the equation of determining whether two or more offenses are joined solely because they are of the same or similar character. Thus, I would hold that if under Rule 404(b) relating to other crimes, the evidence of the crimes on trial would be inadmissible in a separate trial for the other, then the defendant is entitled to severance as of right under Indiana Code section 35-34-l-ll(a).

Although evidence of other crimes is inadmissible to show the defendant’s propensity to commit the charged act, “[i]t may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....” Evid. Rule 404(b). In assessing admissibility the trial court must (1) determine that the evidence of other crimes is relevant to a matter at issue, and (2) balance the probative value of the evidence against its prejudicial impact pursuant to Indiana Evidence Rule 403. Wilson v. State, 765 N.E.2d 1265, 1270 (Ind.2002) (citations omitted). So, for example, if two or more crimes arose out of a continuing transaction or the same set of events then, depending on its prejudicial impact, the evidence may be independently admissible in separate trials. See, e.g., Smoote v. State, 708 N.E.2d 1, 3 (Ind.1999) (finding no error in refusing to sever separate charges of robbery and murder because the two offences were intricately related and evidence of the robbery charge would have been admissible during the murder trial to establish that defendant’s motive was to ensure that the victim did not implicate defendant in the robbery). Similarly, where identity is at issue, if the facts surrounding two or more crimes are so strikingly similar and unique in such a way as to attribute the crime to a single person, and again depending on its prejudicial impact, the evidence of one may be admissible in the trial of the other to prove identity. See, e.g., Penley v. State, 506 N.E.2d at 809 (noting, in charges of rape and burglary, “[t]he State may prove identity by showing that the similarities between the two crimes are so strong and the method so clearly unique that it is highly probable that the perpetrator of both is the same person”). Under either example a defendant would not be entitled to severance as a matter of right.

Applying this jurisdiction’s present case authority to such matters, the trial court denied Wells’ motion to sever. However, as explained above our traditional approach is in need of reconsideration. Therefore, based on the foregoing discussion of the interplay between statutory severance and the Indiana Rules of Evidence I would grant transfer and remand this cause to the trial court for a hearing to determine (1) whether the offenses with respect to each alleged victim are of the same or similar character; (2) whether evidence of each of the offenses is relevant to some material issue at trial of all the other offenses under Indiana Evidence Rule 404(b); and (3) whether the evidence of the other offenses even though relevant should be excluded under Indiana Evidence Rule 403. If the hearing reveals that evidence of the offenses for which Wells is charged would be inadmissible in separate trials of the same offenses, then he would be entitled to severance as a matter of right under Indiana Code section 35-34-1-1. Otherwise Wells would not be so entitled.

DICKSON, C.J., concurs.

      . By Order dated February 2, 2012, the Court originally granted transfer in this case and specifically directed the parties to "file supplemental briefs with expanded argument on whether the appellant is entitled to separate trials for each of the charged sexual assaults.” Order, No. 49S05-1202-CR-68, (Feb. 2, 2012). The Order continued, "[t]he Court is interested in severance in other states with statutes similar to Indiana's, under any model or uniform codes, in federal courts, and an expanded discussion of the jurisprudence of severance in Indiana state appellate decisions.” Id. The parties complied accordingly and we held oral argument on March 22, 2012.

      . See, e.g., Ala. R.Crim. P. 13.3(a); Ariz. R.Crim. P. 13.3(a); Ark. R.Crim. P. 21.1; Del.Super. Ct. R.Crim. P. 8(a); Haw. Penal P.R. 8(a); Kan. Stat. Ann. § 22-3202(1); Ky. R.Crim. P. 6.18; La.Code Crim. Proc. Ann. Art. 493; Me. R. Crim P. 8(a); Md. R.Crim. P. 4-203(a); Mo. S.Ct. R. 23.05; Mont.Code Ann. § 46-11-404(1); Neb.Rev.Stat. § 29-2002(1); N.J. R.Crim. P. 3:7-6; N.M. Dist. Ct. R.Crim. P. 5-203(A); N.D. R.Crim. P. 8(a); Or.Rev.Stat. § 132.560(Z )(b); R.I. Sup.Ct. R.Crim. P. 8(a); S.D. Codified Laws § 23A-6-23; Vt. R.Crim. P. 8(a); Wash. Sup.Ct.Crim. R. 4.3(a); Wis. Stat. Ann. § 971.12(1); Wyo. R.Crim. 8(a).

      . See, e.g., Mass. R.Crim. P. 9(a); N.H.Super. Ct. R. 97-A(I).

      . See, e.g., Mich. R.Crim. P. 6.120(A); Minn. R.Crim. P. 17.03(1).

      . See, e.g., Ariz. R.Crim. P. 13.4(b); Ark. R.Crim. P. 22.2(a); Mich. R.Crim. P. 6.120(C); Minn. R.Crim. P. 17.03 subd. 3(l)(a); Tenn. R.Crim. P. 14(b); Vt. R.Crim. P. 14(b)(1)(A). See also, e.g., Tex. Penal Code Ann. § 3.04 (providing for severance by right of all joined offenses except in limited circumstances); of. Ala. R.Crim. P. 13.4(a); Colo. R.Crim. P. 14; Pa. R.Crim. P. 583 (permitting a court to sever any counts when joint trial would result in prejudice to the defendant).

      . Modus operandi has been defined as "a pattern of criminal behavior so distinctive that separate crimes are recognizable as the handiwork of the same wrongdoer.” Penley, 506 N.E.2d at 810 (quoting People v. Barbour, 106 Ill.App.3d 993, 62 Ill.Dec. 641, 436 N.E.2d 667, 672 (1982)).

      . Similar to the Indiana Rule, the Arizona Rule provides:
      [e]xcept as provided in Rule 404(c) [character evidence in sexual misconduct cases] evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
      Ariz. Evid. R. 404(b).

      . The Tennessee Rules of Evidence provide:
      [ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity with the character trait. It may, however, be admissible for other purposes. The conditions which must be satisfied before allowing such evidence are:

      (2) The court must determine that a material issue exists other than conduct conforming with a character trait and must upon request state on the record the material issue, the ruling, and the reasons for admitting the evidence;

      (4) The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice.
      Tenn. Evid. R. 404(b)

      . Indiana Evidence Rule 403 provides: "[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.”

      . I note in passing such a hearing would be little different from that now anticipated by Rule 404(b) which dictates in part, "upon request by the accused, the prosecution in a criminal case shall provide reasonable notice ... of the general nature of [evidence of other crimes, wrongs, or acts] it intends to introduce at trial.'' See Hatcher v. State, 735 N.E.2d 1155, 1159 (Ind.2000)(noting the trial court conducted a hearing on defendant's objections and arguments regarding the reasonableness of the State's notice and the admissibility evidence contained in the notice).