author: BROWN, Judge.

text:
    Erving SANDERS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1205-CR-361.
    Court of Appeals of Indiana.
    Jan. 22, 2013.

      Ellen M. O’Connor, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Erving Sanders appeals the trial court’s denial of his motion to suppress. Sanders raises one issue, which we restate as whether the trial court erred in denying his motion to suppress. We reverse.

FACTS / COURSE OF PROCEEDINGS

At approximately 4:30 p.m. on January 28, 2011, Indianapolis Metropolitan Police Officer Keith Minch noticed the tint of the rear window of Sanders’s vehicle, a blue Chevy Suburban, and initiated a traffic stop. Officer Minch approached the driver’s side door of Sanders’s vehicle, spoke to Sanders, and Sanders identified himself. Officer Minch then noticed the smell of marijuana. After Officer Minch asked about the smell, Sanders stated that he had “just smoked a joint.” Transcript at 7. Officer Minch had Sanders exit the vehicle, conducted a search, discovered a substance which Sanders stated was cocaine, and placed Sanders under arrest.

On January 28, 2011, the State charged Sanders with possession of cocaine as a class D felony. On May 4, 2011, Sanders filed a motion to suppress the evidence obtained as a result of the traffic stop. The trial court held hearings on Sanders’s motion to suppress on May 4, June 1, and November 16, 2011.

Several photographs of the Chevy Suburban were admitted into evidence during the May 4, 2011 hearing. The photographs admitted as State’s Exhibits 1, 2, and 3 were taken by an evidence technician at approximately 5:30 p.m., about one hour after Officer Minch first observed Sanders’s vehicle. State’s Exhibits 1 and 2 show that the Suburban has side windows which are part of the front and rear doors and also side panel windows which are located over the rear wheels and cargo area of the Suburban. The photographs reveal that the rear window and side panel windows of the cargo area of the vehicle were tinted to some extent and that the front windshield and the side windows which were part of the vehicle’s front and back doors were either not tinted or tinted to a lesser extent than the side panel windows of the cargo area and the rear window. In the photograph admitted as State’s Exhibit 3, which appears to have been taken from several feet directly behind the vehicle without anyone inside, it is possible to see the outline of the front window, the top of the steering wheel, and a portion of the windshield wiper blade. Officer Minch testified that the photograph admitted as State’s Exhibit 3 reflects the view that he had when he decided to stop Sanders.

During his testimony on May 4, 2011, Officer Minch testified that he noticed Sanders’s vehicle at about 4:30 p.m. and the weather was “kind of gloomy.” Id. at 6. He testified that he noticed the window tint of Sanders’s vehicle and that “[i]t did not allow [him] to clearly recognize or identify the occupant inside.” Id. When asked why he believed that the window tinting was an infraction, Officer Minch testified “[b]ecause I could not make out the occupant inside. The three tests that I use is if I can identify approximate age, the ethnicity and the gender of the individual inside.” Id. at 7. When asked the angle from which he first observed Sanders’s vehicle and determined that he wished to pull Sanders over for the window tinting, Officer Minch testified that he “would have been behind him.” Id. at 10. Officer Minch also indicated that he “could tell that there was one occupant” in the vehicle. Id. at 12.

On cross-examination, Officer Minch testified that he had been following “[a]pprox-imately twenty or thirty feet” behind Sanders’s vehicle. Id. at 15. When asked how long he observed Sanders before he stopped him, Officer Minch indicated that he “was behind him probably half a block.” Id. Officer Minch also reiterated that he was able to see that there was an occupant in the Suburban and that the criteria he used to identify a person included age, ethnicity and gender. When asked “[h]ow many people can you determine the age, ethnicity and gender from behind their head,” Officer Minch stated “[a] lot,” and when asked “[s]o you think that you could tell if a person was twenty-one or fifty-two from the back of their head,” Officer Minch stated “Yes.” Id. at 17. When asked whether there was a significant amount of difference from the location of the sun in the sky at 4:30 and 5:30 p.m., Officer Minch stated that he could not “testify to that.” Id. at 24. Officer Minch further indicated that he did not attempt to look into the Suburban through any of the vehicle’s side windows to identify the occupant inside.

When asked if he agreed that the “tinting on the passenger window is not as tinted as the back ... based upon the photos of the vehicle and your personal observation,” Officer Minch responded “[fjrom the angle, it is not possible to determine that,” and when asked “is the tinting in the back windows, as reflected in the photographs, darker than it is on the driver’s and the passenger side,” Officer Minch stated “I cannot determine that from the photo.” Id. at 27. When asked “[y]ou have seen it, sir. You were there.... Is it lighter or not lighter,” Officer Minch testified “I believe it to be about the same.” Id. When asked “[a]re you saying that there are equal tinting on all windows of that vehicle,” Officer Minch stated “I don’t know,” and when asked “[y]ou don’t even have an opinion is that correct,” Officer Minch replied “I cannot determine from that photo.” Id. at 28.

Sanders testified that he had purchased the 1991 Suburban from his cousin four years earlier, that the rear window tint was on the vehicle when he bought it, and that his cousin had purchased the vehicle from D & S Auto.

In July 2011, Sanders filed a motion for an expert to view the automobile and the court granted the motion. On November 16, 2011, Sanders presented the testimony of Robert Rady who measured the window tint of the windows of the Suburban. Rady testified that the vehicle’s front window and side windows which were part of the vehicle’s doors were not tinted and were “clear glass.” Id. at 76. Rady testified that his measurements showed that the light transmittance of the side panel windows of the cargo area and the rear back window was thirty-eight percent. Rady also indicated that he had an opportunity to visually look into the vehicle at about 4:30 p.m. on the previous day and, when asked whether he was able to clearly see through the back window, responded “[a]bsolutely.” Id. at 81. Further, Rady testified that he had been tinting windows for twenty-four years, that he tinted windows for Butler Auto Group, Tom Wood Auto Group and several dealerships in Indianapolis, that he was familiar with the tinting regulations in Indiana, and that as a matter of course he tinted windows with a light transmittance of thirty-five percent for the car dealerships, which is higher than the thirty percent required by Indiana statute, in order that occupants of the vehicles could be identified and so that the windows complied with Indiana law.

On January 18, 2012, the court found that Sanders presented evidence showing that the tint of the windows of his vehicle was not unlawful. The court noted that Ind.Code § 9-19-ltM(e) provided that a window of a vehicle may not be tinted to the extent that the occupants of the vehicle could not be easily identified or recognized through the window, that the language was “[plretty broad,” and that “[t]hat’s why ... the statute ... shifts the burden to the defendant to prove ... that the window tint is within the prescribed limits.” Id. at 92. The court stated that “[t]he hard question for the Court is does that burden shifting, once they prove that the window tint is within the legal limits, does that affect only the driving offense or the tint charge or does that affect also, the suppression issue” and that “in other words, does it affect what the Court believes a good faith stop by the officer indicating that he believed the window tinting was not within the legal limits.... ” Id. The court noted that “during the suppression hearing, it did come out that [the officer] was able to identify or he could see someone was inside — was able to identify there was a male inside but as far as dynamics, male, black, white or what have you, ... he could not identify from the outside.” Id. at 92-93. The court found that the investigatory stop was lawful and stated “I do believe as long as there’s a good faith intent of the officer when he believes that a window tint is illegal ... because he could not see the occupants inside, I do believe that that good faith effort or that good faith reasoning on the officer’s part is enough to justify a stop.” Id. at 94. The court denied Sanders’s motion to suppress. Sanders sought and obtained permission to bring this interlocutory appeal.

ISSUE

The issue is whether the trial court erred in denying Sanders’s motion to suppress. Our standard of appellate review of a trial court’s ruling on a motion to suppress is similar to other sufficiency issues. State v. Quirk, 842 N.E.2d 334, 340 (Ind.2006). The record must disclose substantial evidence of probative value that supports the trial court’s decision. Id. We do not reweigh the evidence, and we consider conflicting evidence most favorably to the trial court’s ruling. Id. However, unlike the typical sufficiency of the evidence case, we must also consider the uncontested evidence favorable to the defendant. Ransom v. State, 741 N.E.2d 419, 421 (Ind.Ct.App.2000), trans. denied. We review de novo the ultimate determination of reasonable suspicion. Id. (citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)).

Sanders argues that Officer Minch’s “subjective interpretation of identity and tint did not justify the traffic stop of [his] Chevy Suburban, which objectively complied with Indiana’s Window tint statute” and that “[h]is mistaken application of the statute did not justify a good faith exception to uphold the stop.” Appellant’s Brief at 8. Sanders argues that Officer Minch mistakenly believed at the time of the stop that all of the vehicle’s windows were equally dark, that in fact the front windshield and side windows were clear, that only “[t]he side and rear windows of the back end of the Suburban were tinted,” and that the expert and the trial court concluded that these windows were in compliance with the statute. Id. at 9. Sanders maintains that Officer Minch’s “wide latitude to determine traffic violations was unreasonable” and that “[n]o good faith existed to justify the initial stop of [] Sanders which resulted in his seizure ... and the search of his person.” Id. at 10. Sanders contends that the trial court’s ruling results “in a ‘heads, you lose; tails, you lose’ situation. The officer is never wrong. The officer decides the tint is unlawful; the defendant does not meet his burden. The stop is upheld. The officer decides the tint is unlawful; the defendant does meet his burden. The stop is upheld.” Id. at 11. Sanders asserts that “[t]his result not only shift[s] the burden to the defendant on proving statutory compliance for his windows, but also shifts the burden of proof on warrantless seizures to the defendant” and that “the State bears the burden of proving that an exception to the warrant requirement existed at the time of the search.” Id. Sanders also argues that the trial court’s statement that the statutory language “could not be easily identified or recognized” was very broad and generic, that penal statutes should be construed against the State, and that any ambiguities should be resolved in favor of the accused. Id. at 12.

The State’s position is that Officer Minch had a valid basis to stop Sanders’s vehicle. The State asserts that Ind.Code § 9-19-19-4 does not require an officer to conclusively determine that a window has a light transmittance of less than thirty percent before stopping a vehicle for a suspected window tint violation. The State points to Officer Minch’s testimony that he could not identify the occupant of the vehicle in question and that therefore he had a valid basis to believe that the driver was in violation of the window tinting statute. The State argues that Ransom v. State, 741 N.E.2d 419 (Ind.Ct.App.2000), trans. denied, is not applicable here because in Ransom the officer incorrectly believed it was unlawful for the defendant to operate his vehicle in reverse and that in contrast, here the officer correctly knew that Indiana law prohibits a vehicle from being driven when the vehicle’s rear back window is tinted to the extent that the vehicle’s occupants cannot be easily identified through that window.

ANALYSIS

The Fourth Amendment to the United States Constitution protects an individual’s privacy and possessory interests by prohibiting unreasonable searches and seizures. State v. Sitts, 926 N.E.2d 1118, 1120 (Ind.Ct.App.2010) (citing State v. Roger, 883 N.E.2d 136, 139 (Ind.Ct.App.2008)). These safeguards extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. Id. The State has the burden of demonstrating that the measures it used to seize evidence were constitutional. Id.

“A police officer may stop a vehicle when he observes a minor traffic violation. A stop is lawful if there is an objectively justifiable reason for it, and the stop may be justified on less than probable cause.” Id. (citations omitted).

It is the requirement of reasonable suspicion which strikes the balance between the government’s legitimate interest in traffic safety and an individual’s reasonable expectation of privacy. Reasonable suspicion entails some minimum level of objective evidentiary justification. Due weight must be given, not to the officer’s inchoate and unparticular-ized suspicion or “hunch” but to the specific reasonable inferences which the officer is entitled to draw from the facts in light of his experience. A court sitting to determine the existence of reasonable suspicion must require the agent to articulate the factors leading to that conclusion.

Id. (citations omitted).

Whether the officer’s suspicion was reasonable is determined on a case-by-case basis by engaging in a fact-sensitive analysis of the totality of the circumstances. Id. (citing State v. Belcher, 725 N.E.2d 92, 94 (Ind.Ct.App.2000), reh’g denied, trans. denied). “Although a law enforcement officer’s good faith belief that a person has committed a violation will justify a traffic stop, Ind.Code § 34-28-5-3, an officer’s mistaken belief about what constitutes a violation does not amount to good faith. Such discretion is not constitutionally permissible.” Id. (citing Rager, 883 N.E.2d at 139-140 (quoting Ransom, 741 N.E.2d at 422 (citing Cash v. State, 593 N.E.2d 1267, 1268-1269 (Ind.Ct.App.1992) (quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-1880, 20 L.Ed.2d 889 (1968)) (holding that “simple good faith on the part of the arresting officer is not enough.... If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers and effects,’ only in the discretion of the police.”) (internal quotation marks and citation omitted)))).

Here, Officer Minch pulled Sanders over based upon the tint of the rear window of Sanders’s Suburban. Ind.Code § 9-19-19 — 4(c) provides:

A person may not drive a motor vehicle that has a:
(1) windshield;
(2) side wing;
(3) side window that is part of a front door; or
(4) rear back window;
that is covered by or treated with sun-screening material or is tinted to the extent or manufactured in a way that the occupants of the vehicle cannot be easily identified or recognized through that window from outside the vehicle. However, it is a defense if the sun-screening material applied to those windows has a total solar reflectance of visible light of not more than twenty-five percent (25%) as measured on the non-film side and light transmittance of at least thirty percent (30%) in the visible light range.

Evidence was presented at the suppression hearing that the tint of Sanders’s window was not a violation of Ind.Code § 9-19-19-4(c) and that Officer Minch mistakenly believed that Sanders’s vehicle was in violation of the statute. The State does not point to authority beyond the statute to support Officer Minch’s subjective determination that he should be able to identify the approximate age, ethnicity, and gender of the individual inside a vehicle from behind the vehicle, and that if he cannot, a stop of the vehicle is justified, and indeed we are unaware of any such authority. Further, the photographs of the Suburban admitted into evidence show the tint of the rear window and side windows, that the front windshield and side windows which were part of the vehicle’s front and back doors were either not tinted or tinted to a lesser extent than the side panel windows of the cargo area and the rear window, and that, from the photograph taken from behind the vehicle and admitted as State’s Exhibit 3, which Officer Minch testified reflected his view at the time he decided to stop Sanders, one can see the outline of the front window, the top of the steering wheel, and a portion of the windshield wiper blade.

Based upon the evidence presented at the suppression hearings, including the photographs of the Suburban which were taken one hour after the stop and depict the window tinting, we cannot say that there was an objectively justifiable reason for the stop of the vehicle. Accordingly, under the totality of the circumstances Officer Minch lacked reasonable suspicion to stop Sanders for investigatory purposes at the time he observed Sanders’s vehicle. The trial court erred in denying Sanders’s motion to suppress.

For the foregoing reasons, we reverse the trial court’s denial of Sanders’s motion to suppress.

Reversed.

BAILEY, J., and VAIDIK, J., concur.

      . Sanders cites only to the Fourth Amendment and not to Article 1, Section 11 of the indiana Constitution.

      2. Ind.Code § 34-28-5-3 provides:
      Whenever a law enforcement officer believes in good faith that a person has committed an infraction or ordinance violation, the law enforcement officer may detain that person for a time sufficient to:
      (1)inform the person of the allegation;
      (2) obtain the person’s:
      (A) name, address, and date of birth; or
      (B) driver’s license, if in the person’s possession; and
      (3) allow the person to execute a notice to appear.


source: Caselaw Access Project

author: MAY, Judge.

license: Public Domain

text:
    Robertson FOWLER, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 49A05-1202-PC-68.
    Court of Appeals of Indiana.
    Jan. 25, 2013.

      Stephen T. Owens, Public Defender of Indiana, Deidre R. Eltzroth, Assistant Chief Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION ON REHEARING

MAY, Judge.

Robertson Fowler petitions for rehearing of our decision dated August 31, 2012, affirming the denial of his petition for post-conviction relief. In that opinion, we held Fowler’s guilty plea precluded him from later challenging his sentence. We grant his petition for rehearing in order to acknowledge and address a subsequent decision by another panel of this court that reached a different result in resolving a similar allegation of error, and we reaffirm our original opinion.

Fowler agreed to plead guilty to unlawful possession of a firearm by a serious violent felon and an habitual offender enhancement. The habitual offender enhancement was based on the same prior felony as the handgun possession count. When Fowler entered into his plea agreement, Indiana law permitted the State to use the same prior felony to support a charge of unlawful possession of a firearm by a serious violent felon and an habitual offender enhancement. In exchange for Fowler’s guilty plea, two other felony charges were dismissed and his executed sentence was capped at thirty-five years.

Fowler appealed the sentence. After the State filed its Appellee’s brief, and while Fowler still could have filed a reply brief, our Indiana Supreme Court decided Mills v. State, 868 N.E.2d 446, 450 (Ind. 2007), which held 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.

Fowler’s sentence was affirmed on appeal, and his petition for post-conviction relief, which was premised on the Mills decision, was denied. We affirmed on the ground Fowler received a benefit when he entered into his plea bargain, so he could not now challenge the sentence as illegal. Fowler v. State, 977 N.E.2d 464, 468 (Ind.Ct.App.2012).

In his petition for rehearing, Fowler directs us to Dugan v. State, 976 N.E.2d 1248,1249 (Ind.Ct.App.2012), where another panel of this court held, soon after Fowler was decided, that Dugan was entitled to retroactive application of the Mills rule. That panel so held even though Du-gan, like Fowler, pled guilty.

Our Fowler decision is not inconsistent with Dugan. Dugan, like Fowler, pled guilty to being an habitual offender, but unlike Fowler, Dugan did not receive a favorable outcome from 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 ... Dugan’s guilty plea does not preclude relief in this case.” Dugan, 976 N.E.2d at 1251-52 (emphasis added.)

Fowler, by contrast, was “a case where other charges were dropped or reduced as a result of the guilty plea.” We accordingly grant Fowler’s petition for rehearing and reaffirm our original decision in all respects.

NAJAM, J., and KIRSCH, J., concur.

      . Fowler v. State, 977 N.E.2d 464 (Ind.Ct.App.2012).


author: SHARPNACK, Senior Judge.

text:
    Michael L. CURTIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1203-MI-271.
    Court of Appeals of Indiana.
    Jan. 29, 2013.

      Michael L. Curtis, Indianapolis, IN, Appellant Pro Se.
    Gregory F. Zoeller, Attorney General of Indiana, Stephanie L. Rothenberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

SHARPNACK, Senior Judge.

STATEMENT OF THE CASE

Michael Curtis appeals the denial of his Indiana Trial Rule 60(B) motion for relief from judgment following the forfeiture of his truck. We reverse.

ISSUE

Curtis raises one issue: whether the trial court abused its discretion by denying his motion for relief from judgment.

FACTS AND PROCEDURAL HISTORY

In December 2009, the State charged Curtis with four counts of Class D felony fraud for selling pirated movies out of his truck. Specifically, the State alleged that Curtis violated Indiana Code section 35-43-5-4(10)(A) (2005), which makes it a crime to “knowingly or intentionally ... sell[ ] ... a recording for commercial gain or personal financial gain that does not conspicuously display the true name and address of the manufacturer of the recording.”

Later that month, the State filed a complaint for forfeiture of Curtis’s truck under Indiana Code section 34-24-l-l(a)(l)(B) (2009), which allows the seizure of vehicles “if they are used or are intended for use by the person or persons in possession of them to transport or in any manner to facilitate the transportation of ... [a]ny stolen ... or converted property ... if the retail or repurchase value of that property is one hundred dollars ($100) or more.”

Curtis was represented by the same attorney in both proceedings. In February 2011, Curtis pleaded guilty to one count of fraud, the State dismissed the remaining charges, and the trial court entered judgment as a misdemeanor. The State then filed a motion for summary judgment in the forfeiture action. In April 2011, the trial court granted the State’s motion and ordered the truck forfeited. On the same day the forfeiture order was issued, Curtis filed a Memorandum of Law in Support of the Motion to Dismiss the State Law Claim of Forfeiture, which argued that the fraud underlying the forfeiture action was preempted by federal copyright law and was not pleaded with specificity. It is unclear whether the memorandum was filed before or after the trial court issued its order of forfeiture. In any event, the chronological case summary does not indicate that Curtis ever filed a motion to dismiss.

In January 2012, Curtis filed a pro se Motion to File a Belated Appeal in the forfeiture case. In the motion, Curtis stated that his attorney did not inform him that a final decision had been issued. He also noted that he planned to appeal on the basis that copyright infringement does not constitute theft under Dowling v. United States, 473 U.S. 207, 105 S.Ct. 3127, 87 L.Ed.2d 152 (1985). The trial court took no action on the motion.

In March 2012, Curtis filed a Motion for Relief from Judgment Pursuant to Trial Rule 60(B)(1), (3), or (8). In the motion, Curtis again stated that his attorney did not notify him of the forfeiture order and again challenged the forfeiture on grounds that the pirated movies did not constitute stolen property. Specifically, Curtis cited Dowling and argued that “I.C. 34-24-1-1 does not provide for forfeiture of a vehicle for violating I.C. 35-43-5^1(10).” Appellant’s App. p. 28. The trial court denied the motion without a hearing. Curtis now appeals.

DISCUSSION AND DECISION

Curtis contends that the trial court abused its discretion by denying his Trial Rule 60(B) motion for relief from judgment. The burden is on the movant to establish grounds for Trial Rule 60(B) relief. In re Paternity of P.S.S., 934 N.E.2d 737, 740 (Ind.2010). A 60(B) motion addresses only the procedural, equitable grounds justifying relief from the legal finality of a final judgment, not the legal merits of the judgment. Id. A 60(B) motion is addressed to the equitable discretion of the trial court, whose ruling will be disturbed only upon an abuse of that discretion. Id. at 740-41. In exercising its discretion, the trial court must balance the alleged injustice suffered by the movant against the interests of the nonmovant and society generally in the finality of litigation. Mid-West Fed. Sav. Bank v. Epperson, 579 N.E.2d 124, 129 (Ind.Ct.App.1991), trans. denied.

In his 60(B) motion, Curtis stated that his attorney' failed to inform him of the forfeiture order and argued that seizure of his truck was not authorized by the forfeiture statute because the pirated movies he sold did not constitute stolen property. Assuming the truth of his claim that his attorney did not inform him of the final judgment, Curtis may have been unable to file a timely notice of appeal. He did, however, file a motion for a belated appeal, in which he notified the trial court for the first time that his attorney did not inform him of the forfeiture order and argued that the copyright infringement was not theft, but the trial court did not rule on the motion.

Regardless, Trial Rule 60(B)(8) provides that a motion for relief from judgment may be granted for “any reason justifying relief from the operation of the judgment.” Rule 60(B)(8) allows courts to vacate judgments within the residual power of a court of equity to do justice. State ex rel. Huppert v. Paschke, 687 N.E.2d 150, 154 (Ind.Ct.App.1994). Relief under Rule 60(B)(8) may be invoked only upon a showing of exceptional circumstances justifying extraordinary relief. Id. Upon consideration of Dowling, cited in Curtis’s motion for a belated appeal and again in his motion for relief from judgment, it is apparent that such exceptional circumstances are present here.

In Dowling, the defendant was convicted in federal district court of eight counts of violating the National Stolen Property Act, which provides for the imposition of criminal penalties upon any person who transports “in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud.” 18 U.S.C. § 2314. The defendant had transported across state lines bootleg records that were manufactured and distributed without the consent of the copyright owners of the musical compositions performed on the records. The Ninth Circuit affirmed the convictions, reasoning that the rights of copyright owners in their protected property were indistinguishable from ownership interests in other types of property.

The Supreme Court of the United States disagreed, noting that “[t]he copyright owner ... holds no ordinary chattel,” Dowling, 473 U.S. at 216, 105 S.Ct. 3127, and that copyright protection does not accord the copyright owner complete control over all possible uses of his or her work. While an “infringer invades a statutorily defined province guaranteed to the copyright holder alone,” the infringer “does not assume physical control over the copyright [or] wholly deprive its owner of its use.” Id. at 217,105 S.Ct. 3127. The Court thus concluded that “infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.” Id. at 218, 105 S.Ct. 3127. After discussing the history of the National Stolen Property Act, the history of the criminal infringement provisions of the Copyright Act, and the broad consequences of equating infringement with theft, conversion, and fraud, the Court invoked the rule of lenity to reverse the Ninth Circuit. Id. at 228-29, 105 S.Ct. 3127.

Here, the forfeiture of Curtis’s truck was based on the assumption that the content of the pirated movies sold out of the truck constituted “stolen ... or converted property.” Ind.Code § 34-24-l-l(a)(1)(B). We must disagree. As noted in Dowling, “the property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple goods, wares, or merchandise.” 473 U.S. at 217, 105 S.Ct. 3127 (quotation omitted). Moreover, Section 34-24-1-1(a)(1)(B) clearly allows forfeiture in cases of theft or conversion but says nothing about copyright infringement or even fraud, the crime to which Curtis pleaded guilty. See Chan v. State, 969 N.E.2d 619, 621 (Ind.Ct.App.2012) (“[F]orfeitures are not favored in the law, and statutes authorizing forfeitures are strictly construed.”).

The State nonetheless asks us to affirm the trial court on two alternative grounds. First, it argues that Curtis has waived any arguments on appeal for failure to present a cogent argument. In his brief, Curtis argues that the trial court abused its discretion by denying his Rule 60(B) motion and further cites relevant portions of Dowling. This is sufficient to avoid waiver. Second, the State argues that Curtis cannot challenge the forfeiture inasmuch as he already pleaded guilty to committing the underlying crime with his truck. The crime to which Curtis pleaded guilty, however, was not theft or conversion, and the forfeiture provision here allows seizure only in cases of stolen or converted property.

As the forfeiture of the truck was not authorized by statute, we conclude that Curtis has established extraordinary circumstances justifying relief.

CONCLUSION

For the reasons stated, we reverse the trial court’s denial of Curtis’s Rule 60(B) motion for relief from judgment and remand with instructions to vacate the forfeiture order.

Reversed and remanded with instructions.

ROBB, C.J., and KIRSCH, J., concur.

      . Although the forfeiture complaint is not included in the record on appeal, the State’s subsequent motion for summary judgment establishes that the complaint was based on this provision of the forfeiture statute. See Appellant’s App. p. 11.


author: DICKSON, Chief Justice.

text:
    Kathy INMAN, Appellant (Plaintiff), v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee (Defendant).
    No. 41S01-1108-CT-515.
    Supreme Court of Indiana.
    Dec. 12, 2012.

      Nicholas C. Deets, Hovde Dassow & Deets LLC, Indianapolis, IN, Attorney for Appellant.
    Robert A. Durham, State Farm Litigation Counsel, Indianapolis, IN, Karl L. Mulvaney, Margaret M. Christensen, Bingham Greenebaum Doll LLP, Indianapolis, IN, Attorneys for Appellee.
   DICKSON, Chief Justice.

The plaintiff, Kathy Inman, challenges the trial court’s denial of her motion for prejudgment interest in the amount of $3,616.44 pursuant to Indiana Code Chapter 34-51-4. Inman’s appeal raises two questions regarding the scope of the Tort Prejudgment Interest Statute (“TPIS”), Ind.Code §§ 34-51-4-1 to -9: whether the TPIS applies to an action by an insured against an insurer to recover benefits under the insured’s underinsured motorist (“UIM”) policy; and whether prejudgment interest can be awarded in excess of the policy limits set forth in an insured’s UIM policy. Having granted transfer, we hold that the TPIS does apply to UIM coverage disputes because they are properly considered “civil actions arising out of tortious conduct” as required by Indiana Code Section 34-51-4-1. We also hold that, because prejudgment interest is a collateral litigation expense, it can be awarded in excess of an insured’s UIM policy limits. We conclude, however, that Inman is not entitled to prejudgment interest because the trial court acted within its discretion when it denied her request for prejudgment interest.

This case arises out of a motor vehicle collision wherein Inman’s vehicle was “rear-ended” by Nicholas Shinnamon’s vehicle on November 26, 2006. Inman sued Shinnamon and settled with his insurer for $50,000, the maximum of his automobile liability policy. Claiming that she had sustained more than $50,000 in damages, Inman then sought an additional $50,000 under her UIM policy with State Farm Mutual Automobile Insurance Company (“State Farm”), which promised UIM coverage in the amount of $100,000 On March 11, 2009, State Farm filed an Answer and denied that Shinnamon was at fault for the collision and that Inman’s damages exceeded $50,000. On June 14, 2009, Inman offered to settle her UIM claim against State Farm for $50,000 pursuant to Section 34-51-4-6 of the TPIS. State Farm did not respond to Inman’s offer and did not make its own offer to settle. Following trial, on March 17, 2010, the jury returned a verdict in favor of Inman in the amount of $50,000, and judgment was entered. Inman then made a motion for prejudgment interest in the amount of $3,616.44 pursuant to the TPIS. The trial court denied Inman’s motion without explaining its reasoning.

On appeal, Inman challenges the trial court’s denial of prejudgment interest as error because it is undisputed that she satisfied the statutory requirements imposed by the TPIS. Appellant’s Br. at 4-5. State Farm contends that (1) the TPIS does not apply to a contract action by an insured against an insurer for the recovery of benefits under a UIM policy, and, (2) even if the TPIS does apply to such actions, public policy prohibits an award of prejudgment interest in excess of the UIM policy limits in the absence of bad faith. Appellee’s Br. at 3, 5. The Court of Appeals rejected State Farm’s arguments and reversed the trial court’s denial of Inman’s motion for prejudgment interest. Inman v. State Farm Mut. Auto. Ins. Co., 938 N.E.2d 1276 (Ind.Ct.App.2010). The Court of Appeals also ordered the trial court to award Inman prejudgment interest in the amount of $3,616.44 plus $13.10 per day after April 12, 2010. Id. at 1283. We granted transfer.

An award of prejudgment interest under the TPIS is discretionary. See Ind.Code § 34-51-4-7 (“The court may award prejudgment interest as part of a judgment.” (emphasis added)). Accordingly, we review a trial court’s ruling on a motion for prejudgment interest under the TPIS for abuse of discretion. See Hupfer v. Miller, 890 N.E.2d 7, 9 (Ind.Ct.App.2008) (holding that an award of prejudgment interest under the TPIS is reviewed using an abuse of discretion standard), trans. not sought. The trial court abuses its discretion when its decision is “clearly against the logic and effect of the facts and circumstances before the court or if the court has misinterpreted the law.” State v. Willits, 773 N.E.2d 808, 811 (Ind.2002).

On appeal, State Farm first contends that the TPIS applies only to tort actions, which, it argues, do not include UIM actions because UIM actions derive from a contract between the insurer and the insured. Appellee’s Br. at 3. We disagree. State Farm’s interpretation reads the statute too narrowly. Section 34-51-4-1 of the TPIS declares that the statute “applies to any civil action arising out of tortious conduct.” Ind.Code § 34-51-4-1 (emphasis added). This language employs broad classifications to delimit the scope of the TPIS rather than referencing any specific causes of action. The use of the phrase “arising out of tortious conduct” implies that the General Assembly intended to sweep within the reach of the TPIS a wider array of civil actions involving tor-tious conduct than merely actions sounding directly in tort. Had the legislature intended to restrict the TPIS only to such actions, it simply could have said the TPIS “applies to tort actions” as it has done in other instances. Cf. Ind.Code § 34-51-5-1 (restricting a jury’s ability to consider tax consequences of its verdict to “a tort action for personal injuries.” (emphasis added)); Ind.Code § 34-51-2-10 (allowing a plaintiff to recover compensatory damages in a “civil action for intentional tort ” from a defendant “convicted after a prosecution based on the same evidence” (emphasis added)).

A UIM action such as Inman’s is a prototypical example of a “civil action arising out of tortious conduct.” It “arises out of’ the automobile collision between Inman and Shinnamon on November 26, 2006. This civil action was necessitated by State Farm’s refusal to pay the excess damages not covered by Shinnamon’s insurer that Inman sustained as a result of that collision. Indeed, absent that collision, Inman would have no basis for bringing this UIM action in the first place. The purpose of a UIM policy is to indemnify insureds against damages uncompensated by a tort-feasor’s insurance policy. See Alan I. Wid-iss & Jeffrey E. Thomas, Uninsured and Underinsured Motorist Insurance § 31.1 at 1 (LexisNexis, 8d ed. 2005). Thus, in essence, the UIM insurance provider steps into the shoes of the tortfeasor in order to provide the insured an alternative source of recovery for her damages. Accordingly, we hold that the TPIS can apply to civil actions, such as a UIM breach of contract action, which arise due to tortious conduct but which are not tort actions.

State Farm also contends that, even if the TPIS does apply in this case, prejudgment interest is unavailable to In-man because State Farm is not liable for any amount beyond the policy limit set forth in her UIM insurance contract. Ap-pellee’s Br. at 5. Inman responds that prejudgment interest is a collateral litigation expense and is thus not subject to the award limits established by her UIM policy. Appellant’s Reply Br. at 5. We agree with Inman that prejudgment interest can be awarded in excess of her UIM policy limit.

We examined the nature of post- and prejudgment interest awarded under Indiana’s Post-Judgment Interest Statute, Ind.Code § 24-4.6-1-101 to -104, and the TPIS, respectively, in a series of cases addressing the interplay between the statute and the liability limits imposed by the Medical Malpractice Act (“MMA”). Cahoon v. Cummings, 734 N.E.2d 535 (Ind.2000); Emergency Physicians of Indianapolis v. Pettit, 718 N.E.2d 753 (Ind.1999); Poehlman v. Feferman, 717 N.E.2d 578 (Ind.1999). In Poehlman, we were faced with the question of whether post-judgment interest and court costs could be awarded in excess of the liability limits on the recovery of medical malpractice damages imposed by the MMA. Poehlman, 717 N.E.2d at 579. We held that interest and costs are “collateral financial obligations associated with litigation generally,” reasoning that “[tjhese collateral litigation expenses arise separately by operation of law and are regulated under distinct statutes, which guide parties’ decisions in nearly every stage of either pursuing or defending medical malpractice claims under the Act.” Id. at 581 (footnote omitted). As such, we concluded that the liability limits imposed by the MMA do not apply to collateral litigation expenses because the actions covered by the act “remain essentially tort suits notwithstanding the [MMA]” and thus are not entitled to a “separate set of rules for the allocation of these expenses.” Id. We extended this rationale to prejudgment interest awarded under the TPIS in Cahoon and Pettit, concluding that prejudgment interest is also a collateral litigation expense not subject to the MMA’s liability limits. Cahoon, 734 N.E.2d at 547; Pettit, 718 N.E.2d at 757.

State Farm argues that an award of prejudgment interest in a UIM action is “totally unlike an injured patient’s situation under the [MMA]” because “[t]he injured patient’s cap on damages was not selected by the patient, but rather was set by the legislature.” Appellee’s Br. at 8. This argument is misplaced. An award of prejudgment interest under the TPIS is permitted in excess of the health care provider’s limits under the MMA, not because the plaintiff does not have the opportunity to bargain for the amount of the statutory liability limit, but because prejudgment interest is a collateral litigation expense imposed at the discretion of the trial court as a penalty for the defendant’s failure to conduct litigation consistent with the legislatively ordained policy of expediency. That a prejudgment interest award also compensates the plaintiff for the lost time-value of an eventual damage award is an incidental benefit; it is secondary to the TPIS’s primary purpose of achieving amicable settlement and conservation of resources by encouraging speedy resolution of disputes through negotiation. As such, it is not within the parties’ power to contractually preclude a prejudgment interest award made under the TPIS. The statute does not authorize the parties to avoid its application except by making qualifying settlement offers. See generally Ind.Code §§ 34-51-4-1 to -9.

These principles likewise apply in the UIM insurance context. At its core, the TPIS is a tool given to the trial court to expedite the amicable settlement of litigation without trial, and to permit compensation to a party who is unreasonably deprived of proceeds as a result of settlement delay. See Cahoon, 734 N.E.2d at 547 (“If a defendant has the option to terminate the dispute at a known dollar cost, and chooses not to do so, that defendant and not the plaintiff should bear the cost of the time value of money in the intervening period if the ultimate result is within the parameters set by the legislature.”). Two aspects of the statutory language evidence this legislative intent. First, the TPIS only makes prejudgment interest available when the plaintiff makes, and the defendant fails to make, a qualifying settlement offer pursuant to the conditions of the TPIS. Ind.Code §§ 34-51-4-5, -6. Second, the TPIS grants the trial court broad discretion to determine when an award of prejudgment interest is warranted even when qualifying settlement offers have been made. See id. §§ 34-51^1-7 (“The court may award prejudgment interest as part of a judgment.”), -8 (“If the court awards prejudgment interest, the court shall determine the period during which prejudgment interest accrues.”), -9 (authorizing the court to set the interest rate for purposes of prejudgment interest under the TPIS).

State Farm also contends that the TPIS’s purpose of incentivizing speedy resolution of disputes is “adequately served by the insurer’s obligation to deal in good faith with its insured.” Appellee’s Trans. Br. at 9. The duty to deal in good faith “includes the obligation to refrain from (1) making an unfounded refusal to pay policy proceeds; (2) causing an unfounded delay in making payment; (3) deceiving the insured; and (4) exercising any unfair advantage to pressure an insured into a settlement of his claim.” Erie Ins. Co. v. Hickman, 622 N.E.2d 515, 519 (Ind.1993). “To prove bad faith, the plaintiff must establish, with clear and convincing evidence, that the insurer had knowledge that there was no legitimate basis for denying liability.” Freidline v. Shelby Ins. Co., 774 N.E.2d 37, 40 (Ind.2002). There is little question that it is difficult for the insured plaintiff to prove bad faith. It is a fact-intensive inquiry providing little certainty as to a plaintiffs probability of success. See, e.g., id. at 42-43; Erie, 622 N.E.2d at 520-23; Colley v. Ind. Farmers Mut. Ins. Grp., 691 N.E.2d 1259, 1260-61 (Ind.Ct.App.1998), trans. denied; see also Schimizzi v. III. Farmers Ins. Co., 928 F.Supp. 760, 772-775 (N.D.Ind.1996). Given the high hurdle imposed by a bad faith claim, the legislature very well might have preferred the reasonable, bright-line approach afforded by the TPIS for accomplishing its policy objectives. We defer to the public policy choices made by our legislature. Accordingly, we hold that prejudgment interest can be awarded in excess of an insured’s UIM policy coverage limit in an action by the insured to recover under a UIM policy.

In seeking to overturn the trial court’s denial of her Motion for Prejudgment Interest, Inman argues that she is entitled to prejudgment interest because it is undisputed that she made a qualifying settlement offer to State Farm in compliance with Indiana Code Section 34-51-4-6 and that State Farm failed to make a qualifying settlement offer as required by Indiana Code Section 84-51-4-5 to avoid application of the TPIS. Appellant’s Br. at 10. While, under these circumstances, the TPIS permits the trial court to award prejudgment interest, the TPIS does not require an award of prejudgment interest. See Ind.Code §§ 34-51-4-7 (“The court may award prejudgment interest as part of a judgment.” (emphasis added)), -8 (“If the court awards prejudgment interest, the court shall determine the period during which prejudgment interest accrues.” (emphasis added)). Under the plain language of the statute, an award of prejudgment interest is committed solely to the discretion of the trial court once the statutory prerequisites are satisfied. Indeed, this understanding of the TPIS is consistent with the statute’s function as a tool for the trial court to encourage settlement and incentivize expeditious resolution of disputes, see Van Winkle v. Nash, 761 N.E.2d 856, 860-61 (Ind.Ct.App.2002) (rejecting an invitation to limit the trial court’s discretion to award prejudgment interest under the TPIS where there are disputed issues of liability and damages because to do so would contravene the purpose of the TPIS by incentivizing defendants “to manufacture token disputes of liability or damages in order to avoid prejudgment interest”), trans. not sought, and we must tread carefully to uphold these legislative policy choices.

Here, the trial court’s order denying Inman’s request for prejudgment interest stated only: “Request for interest denied,” and did not articulate a basis for the decision. Appellant’s Br. at 12. We find no basis to conclude that the trial court abused its discretion. There is no indication that the trial court’s denial of prejudgment interest was predicated on a belief either that the TPIS did not apply to a UIM action or that prejudgment interest could not be awarded in excess of the UIM policy limit. The trial court could simply have believed that prejudgment interest was inappropriate given the particularities of the case. Absent a persuasive showing to the contrary, we will assume that the trial court acted in compliance with the law and thus properly exercised its discretion.

Conclusion

Through its passage of the TPIS, the legislature has enacted a scheme which affords trial courts wide-ranging discretion to award prejudgment interest in civil actions arising out of tortious conduct, a broad category of cases which includes UIM coverage disputes. The trial court alone has discretion to determine whether to award prejudgment interest and what time period and interest rate to use in its computation. This discretion is not limited by insurance policy limits, the good-faith conduct of the parties, or the common law. Rather, it is limited only by the statutory requirements enumerated in Indiana Code Sections 34-51-4-1 to -9. Because the trial court here acted within its statutory discretion in denying Inman’s request for prejudgment interest, the judgment of the trial court is affirmed.

RUCKER, DAVID, MASSA, RUSH, JJ., concur.

      . Inman and State Farm agree that Inman could only recover a maximum of $50,000 under her $100,000 UIM policy.

      . Inman urges us to apply a de novo standard when reviewing an award of prejudgment interest. Appellant's Br. at 4 (relying on INS Investigations Bureau, Inc. v. Lee, 784 N.E.2d 566 (Ind.Ct.App.2003), trans, denied; Harlan Sprague Dawley, Inc. v. S.E. Lab Grp., Inc., 644 N.E.2d 615 (Ind.Ct.App.1994), trans. denied; and Dale Bland Trucking., Inc. v. Kiger, 598 N.E.2d 1103 (Ind.Ct.App.1992), trans. denied). The cases offered by Inman do not support her proposition because they do not contemplate an award of prejudgment interest under the TPIS. Likewise, our own research has not revealed any other precedent that supports her contention. Moreover, reviewing an award of prejudgment interest for abuse of discretion is consistent with the permissive language of Indiana Code Section 34-51-4-7. Employing a de novo standard of review would abrogate this express delegation of discretion to the trial court by the statute.

      . The Court of Appeals has held on several occasions that the TPIS, Ind.Code §§ 34-51-4-1 to -9, applies only to tort actions. See, e.g., Hanson v. Valma M. Hanson Revocable Trust, 855 N.E.2d 655, 665 (Ind.Ct.App.2006), trans. not sought; Thor Electric, Inc. v. Oberle & Assocs., Inc., 741 N.E.2d 373, 380 (Ind.Ct.App.2000), trans. not sought; Ind. Erectors, Inc. v. Trs. of Ind. Univ., 686 N.E.2d 878, 882 (Ind.Ct.App.1997), trans. not sought. To the extent that these cases are inconsistent with our opinion today, they are disapproved.

      . To be eligible for an award of prejudgment interest, the TPIS requires the plaintiff to make a qualifying settlement offer:
      This chapter does not apply if:
      (1) within one (1) year after a claim is filed in the court, or any longer period determined by the court to be necessary upon a showing of good cause, the party who filed the claim fails to make a written offer of settlement to the party or parties against whom the claim is filed;
      (2) the terms of the offer fail to provide for payment of the settlement offer within sixty (60) days after the offer is accepted; or
      (3) the amount of the offer exceeds one and one-third (1 1/3) of the amount of the judgment awarded.
      Ind.Code § 34-51-4-6. The TPIS also enables a defendant to avoid prejudgment interest by making a qualifying settlement offer:
      This chapter does not apply if:
      (1) within nine (9) months after a claim is filed in the court, or any longer period determined by the court to be necessary upon a showing of good cause, one (1) or more of the parties against whom the claim is filed makes a written offer of settlement to the party receiving a judgment;
      (2) the terms of the offer include payment within sixty (60) days after the offer is accepted; and
      (3) the amount of the offer is at least two-thirds (2/3) of the amount of the judgment award.
      Ind.Code § 34-51-4-5.

      . State Farm points to cases from other jurisdictions holding that prejudgment interest cannot be awarded in excess of the insured's policy limits. Appellee’s Trans. Br. at 7 (citing Guin v. Ha, 591 P.2d 1281 (Alaska 1979); Nunez v. Nationwide Mut. Ins. Co., 472 A.2d 1383 (Me.1984); Watlington v. N.C. Farm Bureau Mut. Ins. Co., 116 N.C.App. 110, 446 S.E.2d 614 (1994); Factory Mut. Ins. Co. of Am. v. Cooper, 106 R.I. 632, 262 A.2d 370 (1970); Buckhannon-Upshur Cnty. Airport Auth. v. R & R Coal Contracting, Inc., 186 W.Va. 583, 413 S.E.2d 404 (1991)). We do not find these cases persuasive because they address a wholly different issue than the one before us here. In each of these cases, the insured was held personally liable for prejudgment interest to a third-party, and thus the issue was whether the insurance contract indemnified the insured for prejudgment interest in excess of the policy limits. Guin, 591 P.2d at 1283; Nunez, 472 A.2d at 1384; Watlington, 446 S.E.2d at 615; Cooper, 262 A.2d at 371; Buckhannon-Upshur, 413 S.E.2d at 406. By contrast, the issue before us here is whether the insurer, who has been held directly liable for prejudgment interest to the insured, should be obligated to pay such interest in excess of the insured’s UIM policy limit. Under the TPIS, as we hold today, prejudgment interest is imposed on the insurer not by reason of its contract with the insured, but because the insurer has failed to make a qualifying settlement offer and the trial court believes such interest is warranted. In addition, none of these cases involve a prejudgment interest statute akin to the TPIS that conditions prejudgment interest on whether the parties have made qualifying settlement offers. State Farm also points to J.C. Penney Cas. Ins. Co. v. Woodard, 190 Ga.App. 727, 380 S.E.2d 282 (1989), to support its argument. Appellee’s Trans. Br. at 7. J.C. Penney involves a dispute between the insured and the insurer under an uninsured motorist policy, which provides coverage similar to an underinsured (UIM) policy, and involves a prejudgment interest statute relatively similar to the TPIS. See id. at 283, 286. In concluding that the insurer was not entitled to prejudgment interest in excess of the uninsured motorist policy limit, the court in J.C. Penney simply assumed that "the extent of liability is governed by the insurance contract,” but offered no explanation to support this conclusion. Id. at 286. We are not persuaded by this assertion.

      . Inman asserts that "[t]he logical inference of the use of the general term ‘court’ rather than ‘trial court' [in Indiana Code Sections 34-51-4 — 1 to -9] is that the Court of Appeals is free to compute prejudgment interest to promote judicial economy when the trial court erroneously refuses to do so.” Appellant’s Trans. Br. at 12. However, the term "court” for purposes of the TPIS is defined as "the court awarding a judgment.” Ind.Code § 34-6-2-31. The judgment on which prejudgment interest is sought was that determined and entered by the trial court, not by a reviewing appellate court. We thus look to the trial court here to consider and rule on the plaintiff’s motion for prejudgment interest in accord with the TPIS.

      . In another case handed down today, Kosarko v. Padula, 979 N.E.2d 144, 147 (Ind.2012), we hold that the TPIS "abrogates and supplants the common law rules governing the availability of prejudgment interest in cases covered by the statute.” Kosarko, 979 N.E.2d at 147-48. Thus, in cases where prejudgment interest is requested under the TPIS, the common law Roper standard, requiring damages to be complete and readily ascertainable in order for prejudgment interest to be awarded, N.Y., Chi. & St. Louis Ry. Co. v. Roper, 176 Ind. 497, 507, 96 N.E. 468, 472 (1911), is irrelevant to the trial court’s determination.


text:
    In the Matter of Michael C. KENDALL, Respondent.
    No. 82S00-1301-DI-74.
    Supreme Court of Indiana.
    Jan. 28, 2013.
   PUBLISHED ORDER ACCEPTING RESIGNATION AND CONCLUDING PROCEEDING

Respondent has tendered to this Court a resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 23(17).

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately. The Clerk of this Court is directed to record Respondent’s resignation on the Roll of Attorneys. Respondent shall fulfill all the applicable duties under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED that all attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent’s resignation from the bar of this State, subject to consideration of pending allegations in the event there is a petition for reinstatement.

Respondent shall be ineligible to petition for reinstatement to the practice of law for five years from the date of this order. See Admis. Disc. R. 23(4)(a). Approval of a petition for reinstatement is discretionary and requires clear and convincing evidence of the petitioner’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 Clerk is directed to forward a copy of this Order 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 Kristin D. MILLER, Respondent.
    No. 49S00-1202-DI-96.
    Supreme Court of Indiana.
    Feb. 1, 2013.
   PUBLISHED ORDER CONVERTING SUSPENSION FOR NONCOOPERATION WITH THE DISCIPLINARY PROCESS TO INDEFINITE SUSPENSION

On June 6, 2012, pursuant to Indiana Admission and Discipline Rule 2S(10)(f), this Court suspended Respondent from the practice of law in this State for failing to cooperate with the Disciplinary Commission concerning a grievance filed against Respondent. The Disciplinary Commission has now moved to convert Respondent’s suspension to an indefinite suspension from the practice of law pursuant to Admission and Discipline Rule 23(10)(f)(4). Respondent has not responded to the Commission’s motion to convert the current suspension.

The Court finds that more than six months have passed since Respondent was suspended due to noncooperation with the disciplinary process. Accordingly, the Court concludes that Respondent’s suspension should be converted to an indefinite suspension from the practice of law pursuant to Admission and Discipline Rule 23(10X0(4).

IT IS THEREFORE ORDERED that Respondent’s current suspension from the practice of law for failure to cooperate with the disciplinary process is converted to an indefinite suspension, effective immediately. Respondent is ordered to fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26). To be readmitted to the practice of law in this State, Respondent must cure the causes of all suspensions in effect and successfully petition this Court for reinstatement pursuant to Admission and Discipline Rule 23(4) and (18).

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

All Justices concur.


text:
    Dennis Jack HORNER, Appellant (Petitioner), v. Marcia (Horner) CARTER, Appellee (Respondent).
    No. 34S02-1210-DR-582.
    Supreme Court of Indiana.
    Feb. 12, 2013.

      David W. Stone IV, Stone Law Office & Legal Research, Anderson, IN, Attorney for Appellant.
    Brent R. Dechert, Kokomo, IN, Attorney for Appellee.
    Indiana State Bar Assoc., Alternative Dispute Resolution Section and Indiana Assoc, of Mediators, Andrea L. Ciobanu, Ciobanu Law P.C., Indianapolis, IN, Attorney for Amici Curiae.
   DICKSON, Chief Justice.

When the parties’ marriage was dissolved in 2005, the trial court approved a settlement agreement reached by the parties following mediation. Appellant’s App’x at 19. In 2011, the husband initiated the present proceeding, seeking in part “to modify the maintenance provision in the Settlement Agreement,” id. at 27, in order to terminate his liability for monthly housing payments to the wife after her remarriage. At the evidentiary hearing the trial court excluded from evidence the husband’s testimony regarding statements he claimed to have made to the mediator during the mediation process, and thereafter denied the husband’s request for modification of his monthly housing payment obligation. The Court of Appeals affirmed the denial of relief, but opined that the trial court’s exclusion of the husband’s testimony was in error, albeit harmless error. Horner v. Carter, 969 N.E.2d 111, 118 (Ind.Ct.App.2012). We granted transfer thereby vacating the Court of Appeals opinion, except for those portions that are summarily affirmed herein. Ind. Appellate Rule 58(A)(2).

1. Exclusion of Husband’s Statements to Mediator During Mediation.

Indiana policy strongly favors the confidentiality of all matters that occur during mediation.

Alternative Dispute Resolution Rule 2.11 Confidentiality
Mediation shall be regarded as settlement negotiations as governed by Ind. Evidence Rule 408. For purposes of reference, Evid. R. 408 provides as follows:
Rule 408. Compromise and Offers to Compromise
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept a valuable consideration in compromising or attempting to com promise a claim, which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. Compromise negotiations encompass alternative dispute resolution.
Mediation sessions shall be closed to all persons other than the parties of record, their legal representatives, and other invited persons.
Mediators shall not be subject to process requiring the disclosure of any matter discussed during the mediation, but rather, such matter shall be considered confidential and privileged in nature. The confidentiality requirement may not be waived by the parties, and an objection to the obtaining of testimony or physical evidence from mediation may be made by any party or by the mediators.

Ind. Alternative Dispute Resolution Rule 2.11.

In Vernon v. Acton, we held that the mediation confidentiality provisions of our ADR Rules “extend to and include oral settlement agreements undertaken or reached in mediation. Until reduced to writing and signed by the parties, mediation settlement agreements must be considered as compromise settlement negotiations. ...” 732 N.E.2d 805, 810 (Ind.2000). Evidence of conduct or statements made in compromise negotiations or mediation is not admissible except when offered for a purpose other than “to prove liability for or invalidity of the claim or its amount.” A.D.R. 2.11 (incorporating Evid. R. 408); see also Gast v. Hall, 858 N.E.2d 154, 161 (Ind.Ct.App.2006), trans. denied. The admissibility provided for mediation evidence “offered for another purpose” pertains to the use of such evidence only in collateral matters unrelated to the dispute that is the subject of the mediation. See A.D.R. 2.11 (incorporating Evid. R. 408).

During the hearing on the husband’s petition to modify the mediated settlement agreement, the trial court refused to allow the husband to testify as to his statements to the mediator during the mediation session. The husband sought admission of this evidence to avoid liability under the agreed settlement on grounds that it reflected neither his intent, nor his oral agreement during the mediation.

The Court of Appeals concluded that the husband’s statements during the mediation could be admitted as extrinsic evidence to aid in the construction of an ambiguous agreement. We disagree. Indiana judicial policy strongly urges the amicable resolution of disputes and thus embraces a robust policy of confidentiality of conduct and statements made during negotiation and mediation. The benefits of compromise settlement agreements outweigh the risks that such policy may on occasion impede access to otherwise admissible evidence on an issue.

In the present case, the husband s purported oral statements made to the mediator during mediation clearly fall within the express inadmissibility of mediation evidence akin to the offer or acceptance of a compromise on a claim of disputed liability or validity. A.D.R. 2.11 (incorporating Evid. R. 408). Furthermore, applying Vernon, the husband’s testimony, seeking to establish and enforce an oral agreement allegedly reached in mediation, must likewise be treated as confidential and inadmissible. The trial court was correct to exclude the husband’s mediation statements from evidence on his petition to modify the parties’ settlement agreement.

2. Denial of Husband’s Petition to Modify Agreement.

With respect to the husband’s petition to modify the Property Settlement Agreement s provisions obligating him to make house payments, we summarily affirm that portion of the decision of the Court of the Appeals that affirms the trial court’s rejection of the husband’s claim. Horner, 969 N.E.2d at 118-19; App. R. 58(A)(2).

Conclusion

The judgment of the trial court is affirmed.

RUCKER, DAVID, MASSA, and RUSH, JJ., concur.

      . The decision of the Court of Appeals, which we have vacated, expressed approval of a different approach presented in the Uniform Mediation Act (“UMA”) drafted by the National Conference of Commissioners on Uniform State Laws. For the purpose of preserving traditional contract defenses, the UMA would permit disclosure and discovery of conduct and statements during mediation if not otherwise available, and subject to a cautious balancing to ascertain whether the need for such evidence substantially outweighs the interest in protecting confidentiality. See Uniform Mediation Act § 6(b) ("There is no privilege under Section 4 if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in: ... except as otherwise provided in subsection (c), a proceeding to prove a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation. ). Indiana has not adopted the UMA, and we decline to follow its approach to mediation confidentiality at this time. The Court acknowledges that efforts are presently underway by the Alternative Dispute Resolution Section of the Indiana State Bar Association and the Alternative Dispute Resolution Committee of the Judicial Conference of Indiana to review and possibly propose modifications to the Indiana Rules for Alternative Dispute Resolution.


author: MATHIAS, Judge.

text:
    Diano L. GORDON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1205-CR-242.
    Court of Appeals of Indiana.
    Jan. 24, 2013.

      David Becsey, Zeigler Cohen & Koch, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MATHIAS, Judge.

Diano Gordon (“Gordon”) was convicted in Marion Superior Court of Class D felony attempted residential entry and Class D felony escape. Gordon appeals his convictions and raises two issues, which we restate as:

I. Whether the admission of an eyewitness’s identification testimony constituted fundamental error where the in-court identification arose from a show-up identification on the date of the crime; and,
II. Whether Gordon’s escape conviction should be reduced to unauthorized absence from home detention by application of the rule of lenity.
We affirm.

Facts and Procedural History

On December 28, 2011, at approximately 12:00 p.m., Jodi Pearce (“Pearce”) heard a loud banging sound coming from an adjacent home owned by Brandon Switzer (“Switzer”). When Pearce looked out her window towards Switzer’s home, she saw two men hiding around the corner at the back of Switzer’s home. The men then returned to the back door of Switzer’s home and began kicking the door.

Pearce called 911 to report an attempted break-in at her neighbor’s home. Pearce watched as the men walked away from Switzer’s home and down the driveway. At that point, she got a good look at their faces for several seconds. She then ran outside to observe which direction they were walking and yelled, “I saw you.” Tr. p. 17. One man replied, “we didn’t do nothing” and the other said “let’s go.” Id.

Pearce got into her vehicle to follow the men, but encountered a responding police officer shortly thereafter. As officers began to search for suspects, the responding officer went to Switzer’s home with Pearce and observed damage to the back door and the window beside the door.

Within an hour, officers obtained information that led them to conclude that Gordon was a suspect in the attempted break-in. A detective asked Pearce to accompany him and participate in a “show up” identification. Tr. p. 71. The detective transported Pearce to Gordon’s residence where Gordon was standing outside. Pearce immediately identified Gordon as the shorter of the two men that she saw attempting to enter Switzer’s home.

At the time, Gordon had an electronic monitoring bracelet on his ankle as a condition of home detention. Records from the device established that Gordon left his home at 12:00 p.m. and returned at 12:10 p.m.

Gordon was subsequently charged with Class D felony attempted residential entry and Class D felony escape. He waived his right to a jury trial, and a bench trial commenced on March 14, 2012, and continued on March 21, 2012. At trial, Pearce testified that when she saw Gordon standing outside his home, she knew “immediately” that Gordon was one of the two men that attempted to break into Switzer’s home, and there “was no question in [her] mind.” Tr. p. 26. Gordon did not object to Pearce’s identification testimony.

Gordon was convicted as charged and ordered to serve concurrent terms of two years for each conviction. Gordon now appeals. Additional facts will be provided as necessary.

I. Identification Testimony

Gordon argues that the “show up” identification procedure was unduly suggestive, and therefore, admission of Pearce’s testimony identifying Gordon constitutes fundamental error. The admission or exclusion of evidence falls within the sound discretion of the trial court, and its determination regarding the admissibility of evidence is reviewed on appeal only for an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.2002). An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court. Doolin v. State, 970 N.E.2d 785, 787 (Ind.Ct.App.2012), trams, denied.

The Fourteenth Amendment’s guarantee of due process of law requires the suppression of evidence when the procedure used during a pretrial identification is impermissibly suggestive. Harris v. State, 716 N.E.2d 406, 410 (Ind.1999). But the claim may be waived for the purposes of appeal where the defendant fails to object on the grounds that the evidence was improperly admitted. Brown v. State, 783 N.E.2d 1121,1126 (Ind.2003).

Gordon failed to object to the admission of the evidence concerning the show-up identification but attempts to avoid waiver by invoking the fundamental error doctrine. The fundamental error doctrine is extremely narrow. Mathews v. State, 849 N.E.2d 578, 587 (Ind.2006). The doctrine “applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” McQueen v. State, 862 N.E.2d 1237, 1241 (Ind.Ct.App.2007).

“The United States Supreme Court and the Indiana Supreme Court have both condemned the practice of conducting a one-on-one show-up because of its inherent suggestiveness,” but “identification evidence gathered via a show-up procedure is not subject to a per se rule of exclusion.” Mitchell v. State, 690 N.E.2d 1200, 1203 (Ind.Ct.App.1998) (citations omitted), trans. denied. Rather, the admissibility of a show-up identification turns on an evaluation of the totality of the circumstances and whether they lead to the conclusion that the confrontation was conducted in a manner that could guide a witness into making a mistaken identification. Id. Our courts consider the following factors in evaluating the admissibility of a show-up identification:

(1) the opportunity of the witness to view the criminal at the time of the crime,
(2) the length of initial observation of the criminal,
(3) lighting conditions,
(4) distance between the witness and the criminal,
(5) the witness’s degree of attention,
(6) the accuracy of the witness’s prior description of the criminal,
(7) the level of certainty demonstrated by the witness, and
(8) any identifications of another person.

Id. at 1204 (citations omitted). The length of time between the commission of the crime and the show-up procedure should also be considered because our supreme court has recognized “ ‘the value of permitting a witness to view a suspect while the image of the perpetrator is fresh in the witness’s mind.’ ” Id. (quoting Wethington v. State, 560 N.E.2d 496, 501 (Ind.1990)).

At trial, Pearce testified that at approximately 12:00 p.m., she heard loud noises coming from the house next door and looked out of her window to determine the cause. Pearce observed two men standing underneath the carport of her neighbor’s home. Pearce continued to watch as the two men walked up to her neighbor’s home and began kicking the door. Pearce called 911 and continued to watch as the men walked toward the front of her neighbor’s house. The men then walked down her neighbor’s driveway and into the street. Pearce ran outside to report to the 911 operator which direction the men were walking. She yelled at them “I saw you.” Tr. p. 17. One shouted back that they had not done anything and the other said “hey let’s go.” Id. Pearce lost sight of the men after they crossed the street and walked behind a home on the opposite side of the street.

Pearce’s description of the suspects to the police was two black men wearing sweatshirts with hoods covering their heads. One was tall and very thin, and the other man was shorter and his hair was in dreadlocks. Approximately one hour after Pearce called 911, a detective asked Pearce if she could identify the person kicking the door. Pearce stated that she could, and the detective transported Pearce to a nearby home in her neighborhood. The detective parked his car at the end of the driveway, and Pearce saw a man, later identified as Gordon, standing outside the home. She stated that she recognized him because he had the same build as the person kicking the door and his hair “stands out very well.” Tr. p. 25. Pearce also stated that “he stared in a way of such arrogance and I mean he stood out from the other kid.... I saw the man with the hair and the same build ... I knew immediately that it was him. There was no question in my mind.” Tr. p. 26.

Pearce observed Gordon for several minutes in the middle of the day at a fairly close distance. Furthermore, her attention was focused solely on Gordon and his companion for that length of time. And Pearce was absolutely certain that Gordon was the man kicking her neighbor’s door. Under these facts and circumstances, we cannot conclude that the show-up identification was unduly suggestive.

Gordon also failed to object to Pearce’s in-court identification of him. See Tr. p. 23. “It is well-settled that when a witness had an opportunity to observe the perpetrator during the crime, a basis for an in-court identification exists, independent of the propriety of pretrial identification.” Hale v. State, 976 N.E.2d 119, 124 (Ind.Ct.App.2012) (citations omitted). Pearce watched Gordon attempt to break into her neighbor’s home and observed him as he left the scene; therefore, there was an independent basis for the in-court identification. Thus, even if we were to conclude that the trial court erred by admitting evidence of the show-up identification, Gordon’s claim of fundamental error would fail under these circumstances.

II. The Escape Conviction

Gordon notes that he was serving home detention as a condition of probation, and therefore, under the rule of lenity, his escape conviction should be reversed and reduced to Class A misdemeanor unauthorized absence from home detention. In support of his argument, Gordon relies on Brown v. State, 894 N.E.2d 598 (Ind.Ct.App.2008), which addressed the relationship between the escape statute and unauthorized absence from home detention statute.

Initially, we observe that “[t]he rule of lenity requires that penal statutes be construed strictly against the State and any ambiguities resolved in favor of the accused, ... but statutes ‘are not to be overly narrowed so as to exclude cases they fairly cover[.]’ ” Meredith v. State, 906 N.E.2d 867, 872 (Ind.2009) (citations omitted). However, the rule of lenity does not apply when the court is faced with “two specific statutes, which are not ambiguous.” Schnepp v. State, 768 N.E.2d 1002, 1007 (Ind.Ct.App.2002), trans. denied. That is the situation before this court.

Indiana Code section 35-44.1-3-4 defines the offense of Class D felony escape in part as: “[a] person who knowingly or intentionally violates a home detention order or intentionally removes an electronic monitoring device or GPS tracking device[.]” Indiana Code section 35-38-2.5-13 provides that an offender who

(1) leaves the offender’s home in violation of section 6(1) of this chapter or without documented permission from the supervising entity;
(2) remains outside the offender’s home in violation of section 6(1) of this chapter or without documented permission from the supervising entity; or
(3) travels to a location not authorized under section 6(1) of this chapter or not authorized in writing by the supervising entity; commits unauthorized absence from home detention, a Class A misdemean- or,

In Brown, the defendant who was charged with escape, argued the jury should have been instructed on the offense of unauthorized absence from home detention. Our court concluded that section 35-38-2.5-13 applies only in cases where the offender has been placed on home detention as a condition of probation, and therefore, we rejected Brown’s claim because he was not serving home detention as a condition of probation. Instead, Brown was serving an executed sentence on home detention through Marion County Community Corrections. See Brown, 894 N.E.2d at 600-01 (quoting Hildebrcmdt v. State, 770 N.E.2d 355, 360 (Ind.Ct.App.2002), trans. denied) (“An ‘executed sentence’ is one that is actually served in a correctional facility, or other alternative correctional program, such as work release or home detention as opposed to a suspended sentence or sentence of probation.”).

Gordon observes that unlike the offender in Brown, he was serving home detention as a condition of probation, and therefore, he argues, the rule of lenity requires that his conviction be reversed and reduced to Class A misdemeanor unauthorized absence from home detention. But as noted by Judge Baker in his separate concurring opinion in Brown: “the General Assembly crafted this legislative scheme in an effort to provide flexibility to prosecutors in charging the crime and to juries in crafting a verdict.” Id. at 601. Furthermore, Judge Baker specifically addressed Brown’s rule of lenity argument and concluded that the escape and unauthorized absence from home detention statutes “at issue herein are specific and unambiguous; consequently, the rule of lenity does not apply.” Id.

In the instant case, the two statutes are unambiguous. Both statutes put the offender on notice of the conduct that will result in a Class D felony escape conviction or a Class A misdemeanor unauthorized absence from home detention conviction. It was within the prosecutor’s discretion to determine which charge was warranted by Gordon’s conduct. For all of these reasons, we reject Gordon’s argument that his escape conviction should be reversed by application of the rule of lenity.

Conclusion

The admission of Pearce’s show-up and subsequent in-court identifications of Gordon did not amount to fundamental error because the show-up procedure was not unduly suggestive. We also conclude that the rule of lenity does not apply in this case, and therefore, we affirm Gordon’s Class D felony escape conviction.

Affirmed.

KIRSCH, J., and CRONE, J., concur.

      . In 2012, Indiana Code section 35-44.1-3-4 replaced former Indiana Code section 35-44-3-5, but the text of the escape statute at issue in this appeal was not changed.

      . Indiana Code section 35-38-2.5-6(1) requires offenders to remain confined in their home at all times but does provide for certain exceptions. For example, an offender may leave home to work if the employment is approved by the court.