author: RILEY, Judge.

text:
    Mario A. ALLEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 46A04-1203-CR-143.
    Court of Appeals of Indiana.
    Sept. 18, 2013.

      Kristina J. Jacobucci, Newby Lewis Ka-minski & Jones, LLP, La Porte, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ellen H, Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Mario A. Allen (Allen), appeals his conviction for Count I, attempted robbery, a Class B felony, Ind. Code §§ 35-42-5-1; -41-5-1; Count II, robbery, a Class B felony, I.C. § 35-42-5-1; and his adjudication as an habitual offender, I.C. § 35-50-2-8.

We affirm.

ISSUES

Allen raises three issues which we restate as follows:

(1) Whether the trial court abused its discretion when it admitted and excluded certain evidence;
(2) Whether the State presented sufficient evidence beyond a reasonable doubt to sustain his conviction for attempted robbery and robbery; and
(3) Whether Allen’s right to a speedy trial was violated.

FACTS AND PROCEDURAL HISTORY

The facts most favorable to the verdict are the following. On the evening of January 15, 2003, Cortez Crawford (Crawford) and Dennis Harmon (Harmon) were at Harmon’s house, playing videogames in his room. While there, they received a phone call from Anthony Usmanmanaga, a.k.a. Black. After Harmon spoke with Black on the phone, he informed Crawford that Black would stop by with a Mend. Later that evening, Black and Allen arrived at Harmon’s house, driving a blue four-door Honda Accord. The four men decided to go to Chicago to “just party.” (Transcript p. 11). However, Black informed Crawford and Harmon that, prior to going to Chicago, they were going to “hit a lick,” ie., commit a robbery, and asked Harmon to retrieve the gun from inside the house. (Tr. p. 12). Harmon returned with a sawed-off shotgun.

Shortly before 10:30 p.m., the four men arrived at the local Marathon gas station. After waiting a few minutes for other customers to leave, Black and Allen exited the car wearing masks. Allen wore a “Scream” mask and Crawford’s blue hood-ie, while Black wore a hockey “Jason” mask and carried the shotgun. (Tr. p. 18). Meanwhile, Harmon and Crawford moved into the front seat of the car. Marathon gas station’s clerk, Palwinder Ghotra (Gho-tra), noticed the men exit the car, got scared, and armed himself with a hammer. After Black and Allen entered the gas station, Black pointed the gun at Ghotra and demanded money, threatening to kill him. Ghotra told Black and Allen that he did not have any money. Ghotra became angry, started waving and pounding the hammer around, and chased Black and Allen out of the store. Black and Allen ran back to the car. While Black was still trying to get into the car, Harmon started to drive away. After Black managed to get into the car, Black and Allen started laughing, informing Crawford and Harmon that they had not gotten any money and had nearly been hit with a hammer.

Donnie Smith (Smith), who was stopped at the intersection near the Marathon gas station, noticed the three men inside the store: two men were facing the third, who was waving something around. He saw the two men, who were wearing masks, run out of the store while being chased by the third man. He noticed that the two masked men climbed into a blue Honda, which started to drive away while the second man was still trying to climb in.

After driving away, Black informed the three other men that he knew another place they could try to rob and he told Harmon to drive to the Easy Food Mart. After arriving at the Easy Food Mart around 10:45 p.m., Allen told Black to let him cany the gun this time. They entered the store, each wearing the same masks as before. Easy Food Mart’s owner, Zahed JaM (Jafri), was about to close the store for the night when the two masked men came into the store, one of them pointing a gun at him, and demanded money. Jafri gave them all the money from the cash register, as well as the lottery money. When Allen and Black returned to the blue Honda, they told Harmon to “pull off.” (Tr. p. 28).

When Harmon started driving, Allen and Black counted the money. Black gave everyone one hundred dollars. On their way to Chicago, they stopped at a gas station in Matteson, Illinois, to buy some snacks. After determining that they could not spend the night at Allen’s house, they drove to a hotel in Matteson.

At approximately 1 a.m., Matteson police officer Michael Zurro (Officer Zurro) encountered a blue Honda with four men inside. Officer Zurro ran the vehicle’s license plate, which came back as registered to an Oldsmobile and which had been reported as stolen. While calling for backup, Officer Zurro continued to follow the car, which drove to a Matteson hotel. After parking the car in the hotel’s parking lot, the four men exited the car and went inside the hotel lobby where they rented two rooms. When the men exited the hotel lobby, they were placed under arrest. Inside the car, the officers found the scream mask and the Jason mask. The sawed-off shotgun was located in the vehicle’s trunk.

On June 26, 2003, the State filed an Information charging Allen with Count I, attempted robbery, a Class B felony, I.C. §§ 35-42-5-1; -41-5-1; and Count II, robbery, a Class B felony, I.C. § 35-42-5-1. On November 6, 2003, the State amended the Information, adding Count III, habitual offender, I.C. § 35-50-2-8. On September 18, 2003, the trial court conducted an initial hearing during which Allen requested a speedy trial, which was granted over Allen’s counsel’s objection and a trial date was set for November 17, 2003. On October 10, 2003, Allen, by counsel, filed a motion to vacate the trial date and remove the speedy trial request because he needed more time to prepare. The trial court granted the motion and vacated the trial date. On March 29, 2004, during the pre-trial conference, the State requested a continuance, which was granted over Allen’s objection, setting a new trial date of May 24, 2004.

On May 24 through May 27, 2004, a jury trial was conducted. At the close of the evidence, the jury found Allen guilty as charged. On June 24, 2004, the trial court sentenced Allen to fifteen years on the attempted robbery conviction, ’enhanced by thirty years for the habitual offender adjudication, and a concurrent fifteen-year sentence on the robbery conviction. On July 20, 2004, Allen timely initiated a direct appeal but, after indigent counsel was never appointed for him despite an appellate court order to do so, the appeal was dismissed in September of 2005 for failure to prosecute. On December 29, 2011, after post-conviction relief proceedings, this court concluded that Allen was denied his right to the assistance of counsel during his direct appeal and ordered the reinstatement of Allen’s direct appeal. See Allen v. State, 959 N.E.2d 343 (Ind.Ct.App. 2011). On December 6, 2012, we granted Allen’s motion for a belated direct appeal.

Allen now appeals. Additional facts-will be provided as necessary.

DISCUSSION AND DECISION

I. Admission of Evidence

' Allen contends that the trial- court abused its discretion in admitting certain evidence and excluding certain other evidence. We review- a trial court’s decision to admit or exclude evidence for an abuse of discretion. Iqbal v. State, 805 N.E.2d 401, 406 (Ind.Ct.App.2004). An abuse of discretion occurs if a trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court. Id: . However, if a trial court abused its discretion by admitting the challenged evidence, we will only reverse for that error if the error is inconsistent with substantial justice or if a substantial right of the party is affected. Id. Moreover, any error caused by the admission of evidence is harmless error for which we will not reverse if the erroneously admitted evidence was cumulative of other evidence appropriately admitted. Id. Specifically, Allen claims that the trial court improperly admitted State’s Exhibit 7, Allen’s arrest report, and State’s Exhibit 16, Crawford’s handwritten statement to the police. Additionally, he alleges that the trial court abused its discretion when it excluded Allen’s proffered evidence, a receipt from the Flash Cab taxi company. We will discuss each allegation in turn.

A. State’s Exhibit 7

With respect to State’s Exhibit 7, which encompasses Allen’s arrest report, Allen asserts that the report itself was hearsay and consists of “hearsay within hearsay” prejudicial to Allen’s case. (Appellant’s Br. p. 17). Allen claims that the report must be characterized as an “investigative report by police and other law enforcement personnel” and as such should be excluded pursuant to Indiana Evidence Rule 803(8).

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted. Ind. Evidence Rule 801(c). Typically, hearsay is not admissible except when provided by law or by other court rules. Evid. R. 802. One exception to the hearsay rule is for “public records and reports,” which provides:

Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or date compilations in any form, of a public office or agency, setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule: (a) investigative reports by police and other law enforcement personnel, except when offered by an accused in a criminal case; (b) investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; (c) factual findings offered by the government in criminal cases; and (d) factual findings resulting from special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case.

Evid. R. 803(8). This hearsay exception is based on the assumption that public officials perform their duties properly without motive or interest other than to submit accurate and fair reports. Fowler v. State, 929 N.E.2d 875, 878 (Ind.Ct.App.2010), trams, denied.

As noted, the public records exception to the hearsay rule expressly excludes investigative police reports when offered against the accused in criminal trials. “The reason for this exclusion is that observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases.” Id. at 879. However, this exclusion does not bar admission of police records pertaining to “routine, ministerial, objective nonevaluative matters made in non-adversarial settings.” Id. “Due to the lack of any motivation on the part of the recording official to do other than mechanically register an unambiguous factual matter ..., such records are, like other public documents, inherently rehable.” Id. (quoting United States v. Quezada, 754 F.2d 1190, 1194 (5th Cir.1985)). Accordingly, courts have held that the public records exception permits admission of police records created in connection with routine booking procedures. Fowler, 929 N.E.2d at 879. “The rote recitation of biographical information in a booking sheet ordinarily does not implicate the same potential perception biases that a subjective narrative of an investigation or an alleged offense might.” Id. (quoting United States v. Dowdell, 595 F.3d 50, 72 (1st Cir.2010)).

Although Allen refers to State’s Exhibit 7 as an arrest report, it is more appropriately characterized as a booking report. The exhibit lists only non-adversarial information such as Allen’s age, address, height and weight, the jail where he was held, and the charge on which he was arrested. While this booking report was created by law enforcement, the biographical information on the printout was obtained and recorded in the course of a ministerial, nonevaluative booking process. In line with the foregoing, we conclude that the exhibit fell within the ambit of Evidence Rule 803(8) and was not subject to the police records exclusion. Consequently, the trial court properly admitted State’s Exhibit 7.

2. State’s Exhibit 16

Next, Allen contends that the trial court improperly admitted State’s Exhibit 16, which consists of Crawford’s handwritten statement to Matteson police officers. Allen maintains that because the exhibit amounts to “an out of court statement that the [State] was offering for the truth of the matter asserted,” it should have been excluded from the evidence presented at trial. (Appellant’s Br. p. 18).

The record reflects that when the State moved to admit Exhibit 16 during Crawford’s testimony, Allen objected because “[t]his is nothing more than an attempt to bolster [Crawford’s] direct testimony to previous statements, which is improper and prejudicial.” (Tr. p. 56). At no point did Allen object to the admission of the statement based on hearsay. A defendant may not object on one ground at trial and then raise a different objection on appeal. Houser v. State, 823 N.E.2d 693, 698 (Ind.2005).' Because Allen failed to object on hearsay grounds before the trial court, he has waived his claim for our review. -

3. Allen’s Proffered Exhibit

Lastly, Allen asserts that the trial court abused its discretion when it excluded his proffered Exhibit C, which consisted of a receipt from the Flash Cab taxi company. A trial court’s ruling excluding evidence may not be challenged on appeal unless a substantial right of the party is affected and the substance of the evidence was made known by an offer of proof or apparent from the context. Evid. R. 103; Benson v. State, 762 N.E.2d 748, 753 (Ind. 2002). Here, Allen failed to make an offer of proof when the trial court excluded the receipt. Looking at the context in which the exhibit was offered, we note that Allen’s mother testified that it was a receipt from the Flash Cab taxi company, without describing the proffered exhibit in further detail. As such, we have no information indicating the date of the receipt, the time in question, or to whom the receipt was made out. Therefore, as Allen did not provide us with a record adequate for review, he has waived the argument.

Waiver notwithstanding, we cannot conclude that the trial court abused its discretion by excluding Allen’s proffered receipt. Allen offered the receipt in an attempt to bolster his theory of defense by creating a more definitive timeline of events. Allen presented to the jury the theory that he was home alone all evening until his mother returned from work and then he accompanied her, in her car, to pick up his niece from the babysitter. In this light, Allen’s mother testified that she ended her workday around- 9 p.m. and took a taxi to where her car was parked. She then drove home to pick up Allen and together, they drove to the babysitter’s. Assuming the taxi receipt was for the evening at issue, it is irrelevant to Allen’s theory of defense. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evid. R. 401. The fact that Allen’s mother took a taxi from her place of employment to where her car was parked is not relevant to determine whether Allen was home alone that evening. Therefore, the trial court properly excluded the proffered defense Exhibit C.

II. Sufficiency of the Evidence

Allen argues that the State failed to present sufficient evidence beyond a reasonable doubt to sustain his conviction for robbery and attempted robbery. When reviewing a sufficiency of the evidence claim, we neither reweigh the evidence nor assess the credibility of the witnesses. Walker v. State, 984 N.E.2d 642, 644 (Ind. Ct.App.2013). We may look only to the evidence most favorable to the judgment and reasonable inferences therefrom and will affirm if we conclude that evidence of probative value exists such that a reasonable fact finder could find the elements of the underlying crime proven beyond a reasonable doubt. Id.

1. Attempted Robbery

To convict Allen of attempted robbery, a Class B felony, the State was required to prove that Allen knowingly or intentionally engaged in a substantial step toward the taking of property of another by force or the threat of force while armed with a deadly weapon. See I.C. §§ 35-42-5-1; -41-5-1. At trial, the State called Crawford and Harmon as the State’s witnesses. Both testified that Allen, together with Black who was armed with a shotgun, entered the Marathon gas station in an attempt to rob it. Crawford and Harmon informed the jury that when Allen and Black returned to the car, they started laughing, saying that they did not get any money but instead where chased away by a hammer. Corroborating Crawford’s and Harmon’s testimony, Smith stated at trial that the two men who were inside the Marathon gas station drove away in a blue Honda. After Allen was apprehended, police officers found two masks and a gun inside the blue Honda.

Allen now argues that the State failed its burden because there was no DNA or fingerprints on the masks, linking him to the crimes. However, the State’s sole burden is to establish the elements of the charge beyond a reasonable doubt. See Walker v. State, 984 N.E.2d at 644. Although forensic evidence is helpful to prove a perpetrator’s involvement, it is not a necessary element of the charge and therefore not required to sustain a conviction. Here, the State established Allen’s participation in the crimes through the testimony of several witnesses.

In a related argument, Allen suggests that the testimony given by Crawford and Harmon was not credible as they were testifying as part of their plea agreement with the State. Rather, he maintains that only his own version of what occurred that evening — that he was home alone — is consistent with the evidence presented at trial. It is a general rule that judging the credibility of witnesses lies squarely within the province of the jury. Stephenson v. State, 742 N.E.2d 463, 497 (Ind.2001), cert. denied 534 U.S. 1105, 122 S.Ct. 905, 151 L.Ed.2d 874 (2002). Having said that, we also note that the testimony of an accomplice is subject to high scrutiny. Id. at 496. The fact that the accomplice may not be completely trustworthy goes to the weight and credibility of the witness’ testimony, something that is completely within the province of the jury and cannot be reviewed on appeal. Id. at 497. Here, the jury was apprised of Crawford’s and Harmon’s involvement and the inconsistencies within their respective declarations. It was the jury’s prerogative as to how much weight and credibility to give their testimonies. Therefore, Allen’s argument essentially amounts to a request to reweight their credibility; we decline his invitation to do so.

2. Robbery

To convict Allen of robbery, a Class B felony, the State was required to establish that Allen knowingly or intentionally took property from another person by force or the threat of force while armed with a deadly weapon. See I.C. § 35-42-5-1. Again, Crawford and Harmon testified that Allen and Black entered the Easy Food Mart, donned with masks and armed with a sawed-off shotgun with the intent to rob the store. They returned to the car with cash from the register and lottery money. Crawford testified that they used some of the proceeds to buy snacks and drinks and to rent two hotel rooms. When the four men were apprehended, the police officers found the masks in the blue Honda and the remainder of the cash on the men.

Repeating his argument that Crawford and Harmon were not credible witnesses, Allen reiterates that their testimonies should be rejected and only his version of events should be accepted. Again, this is an invitation to invade the province of the jury by reweighing the credibility of witnesses, which we refuse to do. We conclude that the State presented sufficient evidence to sustain his conviction for robbery and attempted robbery.

III. Right to a Speedy Trial

Lastly, Allen contends that his right to a speedy trial was violated because he was not brought to trial within seventy days of making the request, as required by Indiana Criminal Rule 4(B).

The Sixth Amendment to the United States Constitution and Article 1, Section 12 of the Indiana Constitution guarantee the right to a speedy trial. Wilkins v. State, 901 N.E.2d 535, 537 (Ind.Ct.App. 2009), trans. denied. The provisions of Indiana Criminal Rule 4 implement these protections and provide, in pertinent part:

If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or here there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar.

Crim. R. 4(B)(1).

1 First, we note that a defendant waives review of this issue on appeal if he does not make a motion for discharge or motion for dismissal prior to trial. Hampton v. State, 754 N.E.2d 1037, 1040 (Ind. Ct.App.2001). Such a request provides an enforcement mechanism for Indiana Criminal Rule 4(B) and a defendant’s failure to attempt to enforce his request for a speedy trial waives any issue thereon. Id. There is no indication in the record that Allen moved for discharge or dismissal prior to trial. Therefore, Allen’s claim is waived.

Waiver notwithstanding, we conclude that Allen’s right to a speedy trial was not violated. Allen bases his argument on his pro se request for a speedy trial, made at the initial hearing on September 18, 2003. However, on October 10, 2003, Allen’s counsel withdrew the request for a speedy trial and filed a motion to vacate the trial date, which the trial court granted. Allen now claims that he never agreed to his counsel’s motion to vacate the trial date. We have held that with respect to seeking a speedy trial, a defendant speaks to the court through his counsel. Underwood v. State, 722 N.E.2d 828, 832 (Ind.2000), reh’g denied. “To require the trial court to respond to both defendant and counsel would effectively create a hybrid representation to which defendant is not entitled.” Id. Thus, Allen effectively withdrew his speedy trial request on October 20, 2003 and no new request for a speedy trial was ever made. Consequently, we find that because Allen abandoned his request for an early trial, the trial court did not violate his right to a speedy trial.

CONCLUSION

Based on the foregoing, we conclude that (1) the trial court properly admitted and excluded certain evidence; (2) the State presented sufficient evidence beyond a reasonable doubt to sustain Allen’s conviction; and (3) the trial court did not violate Allen’s right to a speedy trial.

Affirmed.

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


source: Caselaw Access Project

author: BARNES, Judge.

license: Public Domain

text:
    ANONYMOUS, M.D. and Life Care Centers of America, Inc., d/b/a Lane House, Appellant-Defendant, v. Evelyn HENDRICKS, Appellee-Plaintiff.
    No. 79A04-1304-CT-185.
    Court of Appeals of Indiana.
    Sept. 18, 2013.

      Darren A. Craig, Edward L. Holloran, III, Julia Blackwell Gelinas, Frost Brown Todd, LLC, Indianapolis, IN, Attorneys for Appellant.
    Rhonda L. Wood, Harvey L. Lancaster, David W. Stewart, Kirk R. Jocham, Stewart & Stewart Attorneys, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

Anonymous, M.D., and Life Care Centers of America, Inc., d/b/a Lane House (collectively “Lane House”) appeal the trial court’s denial of their motion to compel arbitration in a lawsuit filed by Evelyn Hendricks. We reverse and remand.

Issues

The reordered and restated issues before us are:

I. whether an arbitration agreement signed by Hendricks’s health care representative, Marjorie Benge, binds Hendricks; and
II. whether the arbitration agreement is still effective despite the unavailability of the arbitrator named in the agreement.

Facts

Hendricks was a resident of Lane House, a health care institution, from December 21, 2010 through December 29, 2010. Prior to her admission to Lane House, Hendricks appointed Benge as one of her three health care representatives. The document appointing Benge as a health care representative stated, in part, that Benge had the authority to “[cjhoose, employ, consult with and discharge my attending physicians and other health care providers” and to “[ijnstitutionalize and pay for all costs for my care which my representative, based on medical advice, determines to be necessary or advisable for my well-being.” App. p. 59. The document also stated that Hendricks executed it “under the powers given me by the Indiana Health Care Consent Law, (I.C. 16-36-1-1 et seq.) and the Indiana Durable Power of Attorney Act (I.C. 30-5-5Id. at 60.

At the time of Hendricks’s admission to Lane House, her right arm and wrist were in a cast and she could not sign documents. Benge accompanied Hendricks to a meeting with Lane House’s social services director, Paulette Hornback. Among other documents, Hornback presented Hendricks and Benge with a “Voluntary Agreement for Arbitration.” Id. at 23. The agreement specifically stated that execution of the agreement was “not a precondition to receiving medical treatment at or for admission to the Facility.” Id. at 24. The agreement also provided:

By signing this agreement, the resident agrees with the Facility that any dispute regarding (1) any services rendered prior to the date of this agreement; (2) any dispute arising out of the diagnosis, treatment, or care of the resident, including the scope of this arbitration clause; or (3) the arbitrability of any claim or dispute, against whomever made ... shall be resolved by binding arbitration by the National Arbitration Forum, under the Code of Procedure then in effect. Any award of the arbitrators) may be entered as a judgment in any court having jurisdiction. Information may be obtained and claims may be filed at any office of the National Arbitration Forum, at www.adrforum. com, or at P.O. Box 50191, Minneapolis, MN 55405. If the National Arbitration Forum is unwilling or unable to serve or the parties mutually agree not to utilize the National Arbitration Forum for whatever reason, then the parties shall mutually agree on some other Alternative Dispute Resolution Service or method to administer the binding arbitration proceeding.

Id. Hendricks expressly instructed Benge to sign all of the admission documents to Lane House on her behalf, including the arbitration agreement. Hendricks did not personally sign it.

On October 26, 2012, Hendricks filed suit against Lane House, alleging she had suffered injuries as the result of negligent medical treatment. Lane House moved to stay the proceedings and compel arbitration. Hendricks responded that the arbitration agreement was ineffective and impossible to perform because in 2009, the National Arbitration Forum (“NAF”) had entered into a consent decree with the Minnesota Attorney General barring it from conducting any future arbitrations involving disputes between consumers and businesses. See Minnesota v. National Arbitration Forum, No. 27-CV-09-18550, 2009 WL 5424036 (Minn.Dist.Ct. July 17, 2009); Rivera v. American Gen. Fin. Servs., Inc., 150 N.M. 898, 259 P.3d 803, 808-09 (2011). On March 22, 2013, the trial court denied Lane House’s motion to stay the proceedings and compel arbitration. Lane House now appeals.

Analysis

7. Signature of Health Care Representative

The first issue we address is whether Benge had the authority to execute the arbitration agreement on behalf of Hendricks. Lane House contends that Hendricks waived any argument that Benge lacked such authority by not adequately raising it before the trial court. Generally, a party cannot raise an argument for the first time on appeal. Welty Bldg. Co. Ltd. v. Indy Fedreau Co., LLC, 985 N.E.2d 792, 799 (Ind.Ct.App.2013).

Even if Hendricks had not waived this argument, it would fail on the merits. The document granting Benge status as Hendricks’s health care representative explicitly invoked Indiana’s Health Care Consent Act, Indiana Code Chapter 16-36-1, and the Power of -Attorney Act, Indiana Code Chapter 30-5-5, as its bases. The Health Care Consent Act permits the appointment of a representative to act in all health care matters for the appointor. See Ind.Code § 16-36-1-7. Additionally, Indiana Code Section 30-5-5 — 16(b)(1) provides that language in a -document “conferring general authority with respect to health care powers means the principal authorizes the attorney in fact to ... [e]mploy or contract with servants, companions, or health care providers to care for the principal.” The health care representative agreement in this case did grant such general authority to Benge to act on Hendricks’s behalf in all health care matters. The arbitration agreement here was part and parcel of the contract for the provision of health care services by Lane House to Hendricks, though not a necessary part of the contract. Arguably, Benge had the authority to execute that agreement on Hendricks’s behalf.

Not all courts would agree with that conclusion, however. For example, in Life Care Centers of America v. Smith, 298 Ga.App. 739, 681 S.E.2d 182, 186 (2009), cert. denied, the court held that an arbitration agreement signed by a limited health care attorney-in-fact, and not a general attorney-in-fact, upon an incapacitated patient’s entry into a health care facility was not binding upon the patient. The arbitration agreement in Smith, as here, was not a necessary precondition to admission to the facility. The Smith court said it would not rely upon Sanford v. Castleton Health Care Center, LLC, 813 N.E.2d 411 (Ind.Ct. App.2004), trans. dismissed, in which this court held that a patient’s legal representative had waived the patient’s right to a jury trial when executing an arbitration agreement. The Smith court correctly noted that this court was not specifically asked in Sanford to decide whether the representative’s authority extended to executing arbitration agreements on the patient’s behalf. Smith, 681 S.E.2d at 185 n. 2; see also Mississippi Care Ctr. of Green-ville, LLC v. Hinyub, 975 So.2d 211, 218 (Miss.2008) (where agreement to arbitrate was not necessary part of consideration for patient to receive health care, patient’s health care representative lacked authority to bind patient to arbitration agreement); Dickerson v. Longona, 414 Md. 419, 995 A.2d 721, 739 (2010) (agreeing with Hi-nyub ).

The undisputed facts here, however, are that Hendricks expressly directed Benge to sign the arbitration agreement on her behalf. There is no argument or contention that Hendricks lacked the competency to make such a direction; the reason Hendricks herself did not sign it only appears to be that she was physically unable to do so because of her arm and wrist being injured. Even if we were to conclude that the appointment of Benge as Hendricks’s health care representative did not grant Benge the authority to execute the optional arbitration agreement with Lane House, a principal will be bound by a contract signed by an agent if a principal expressly authorized the agent to enter into a contract on behalf of the principal. See Heritage Dev. of Indiana, Inc. v. Opportunity Options, Inc., 773 N.E.2d 881, 888 (Ind.Ct. App.2002), trans. dismissed. Hendricks expressly authorized Benge to sign the arbitration agreement on her behalf. Under general agency principles, Hendricks is now bound by that signing. Cf. Dickerson, 995 A.2d at 735 (applying general agency principles in deciding appointed health care representative did not possess authority to bind patient to arbitration agreement).

II. Unavailability of NAF as Arbitrator

Next, we address whether NAF’s unavailability to arbitrate any consumer disputes, including the one between Lane House and Hendricks, invalidates the arbitration agreement. We review de novo a trial court’s ruling on a motion to compel arbitration. Welty, 985 N.E.2d at 798. Indiana public policy favors enforcement of arbitration provisions. Id. Additionally, because this case involves interstate commerce between parties from multiple states, the Federal Arbitration Act and cases decided thereunder applies here. Id. at 798-99. “Federal policy, like Indiana’s, favors arbitration when possible.” Id. at 799. “The United States Supreme Court has stated, in light of this policy, that ‘any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitra-bility.’ ” Id. (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983)).

When determining whether parties have agreed to arbitrate a dispute, we apply state law interpretation principles governing contracts. Blimpie Intern., Inc. v. Choi, 822 N.E.2d 1091, 1094 (Ind.Ct. App.2005). We must attempt to determine the intent of the parties at the time the contract was made by examining the language used to express their, rights and duties. Id. Parties are bound to arbitrate all matters not explicitly excluded that reasonably fit within the language used, although we will not extend arbitration agreements by construction or implication. Id. Furthermore, when interpreting a contract, we must read it as a whole and construe the language so as not to render any words, phrases, or terms ineffective or meaningless. Brownsburg Mun. Bldg. Corp. v. R.L. Turner Corp., 938 N.E.2d 905, 907 (Ind.Ct.App.2010). Like any other contract, arbitration agreements may be invalidated by generally applicable contract defenses such as fraud, duress, impossibility, or unconscionability. Brumley v. Commonwealth Business College Educ. Corp., 945 N.E.2d 770, 776 (Ind.Ct.App. 2011).

Hendricks argues that the outcome of this case is controlled by Genevar-Roth, Capital, Inc. v. Edwards, 956 N.E.2d 1195 (Ind.Ct.App.2011), trans. denied, cert, denied. Geneva-Roth involved a “payday loan” agreement that contained the following arbitration provision:

Arbitration: Both parties agree that any claim, dispute, or controversy between us, any claim by either party against the other or the agents, services, or assigns of the other, including the validity of this agreement to arbitrate disputes as well as claims alleging fraud or misrepresentation shall be resolved by binding arbitration by and under the Code of Procedures of the National Arbitration Forum (NAF) at the time the claim is filed. Rules and form of the NAF máy be obtained and all claims shall be filed at any NAF office on the World Wide Web at www.arbforum.com or at P.Q. Box 50131, Minneapolis, MN .55405. Any arbitration hearing, if one is held, will take place at a location near Customer’s residence. Customer’s arbitration fees will be waived by the NAF in the event you cannot afford to pay them. This arbitration agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act 9 USC Section 1-18. Judgment upon the award may be entered by any party in court having jurisdiction. Notice: Without this arbitration agreement, both parties have the right to litigate disputes through the law courts but we have agreed instead to resolve disputes through binding arbitration.

Genevar-Roth, 956 N.E.2d at 1197. After the borrower instituted suit against the lender, the lender moved to compel arbitration based on the above provision. The borrower responded that the arbitration provision was impossible to perform because of NAF’s unavailability following the Minnesota consent decree.

The trial court denied the motion to compel arbitration, and we affirmed. Reviewing cases from other jurisdictions, we held that if an arbitration agreement’s naming of a specific arbitrator is “integral” to the parties’ agreement to arbitrate, then the arbitration agreement becomes null and void due to impossibility of performance if the named arbitrator is unavailable. Id. at 1203. Additionally, Section 5 of the Federal Arbitration Act, 9 U.S.C. § 5, which provides trial courts a mechanism for the appointment of a substitute arbitrator under certain circumstances, cannot be invoked when the naming of a specific arbitrator is “integral” to an arbitration agreement. Id. By contrast, if the naming of a specific arbitrator in an arbitration agreement is merely a matter of “ancillary logistical concern,” then the named arbitrator’s unavailability to arbitrate does not invalidate the agreement and a substitute arbitrator may be appointed. Id. at 1202.

Reviewing the particular arbitration agreement at issue in Genevar-Roth, we noted, “[a]n express designation of a single arbitration provider weighs in favor of a finding that the designated provider is integral to the agreement to arbitrate.” Id. Also, the arbitration agreement stated in mandatory terms that any arbitration “shall” be conducted by NAF and its rules, and that all claims “shall” be submitted to NAF. Id. at 1203. Ultimately, we held that the naming of NAF as arbitrator was “integral” to the arbitration agreement at issue and, therefore, NAF’s unavailability to arbitrate rendered the agreement null and void. Id.; see also Apex 1 Processing, Inc. v. Edwards, 962 N.E.2d 663 (Ind.Ct. App.2012) (reaching same conclusion regarding nearly identical arbitration agreement naming NAF as arbitrator), trans. denied, cert, denied.

The arbitration agreement in the present case, however, contains language that is conspicuously absent from the agreements in Geneva-Roth and Apex 1. Namely, after reciting that NAF was the preferred entity to conduct any arbitration, the agreement goes on to state: “If the National Arbitration Forum is unwilling or unable to serve or the parties mutually agree not to utilize the National Arbitration Forum for whatever reason, then the parties shall mutually agree on some other Alternative Dispute Resolution Service or method to administer the binding arbitration proceeding.” App. p. 24. Hendricks attempts to dismiss this sentence as a “passing phrase ... tacked on the end of the Agreement....” Appellee’s Br. p. 10. However, we cannot so easily dismiss the sentence; to do so would effectively render it meaningless, contrary to standard contract interpretation principles. We believe the phrase clearly was put into the agreement for a reason. That reason was to embody the parties’ intent that it was not “integral” to the arbitration agreement for NAF to conduct the arbitration and that, if NAF could not or would not conduct the arbitration, it was acceptable to find another entity who would conduct it. In other words, the naming of NAF in the arbitration agreement was only an “ancillary logistical concern” and NAF’s current unavailability as an arbitrator does not make it impossible to perform the agreement.

In Crewe v. Rich Dad Education, LLC, 884 F.Supp.2d 60 (S.D.N.Y.2012), the court was faced with an arbitration agreement stating in part that, any dispute “shall be resolved exclusively and finally by binding arbitration under the Federal Arbitration Act administered by the National Arbitration Forum (NAF) under the Code of Procedure in effect when the claim is filed/’ but which also stated, “[w]e will agree on another binding arbitration forum if NAF ceases operations.” Crewe, 884 F.Supp.2d at 67. The court held that the latter sentence “emphatically indicates that the NAF is not integral to the agreement to arbitrate.” Id. at 77. It observed, “[w]here the parties’ agreement reflects a broader intention to arbitrate even if the designated forum or for a prove unavailable, there is no ... barrier to the appointment of an alternative forum.” Id. at 76; see also In re Checking Account Overdraft Litig., 734 F.Supp.2d 1294, 1301 (S.D.Fla. 2010) (holding arbitration agreement naming either NAF or American Arbitration Association (“AAA”) as arbitrators was not rendered invalid by both NAF’s and AAA’s unavailability to arbitrate where agreement provided method for selecting alternate arbitrator).

Despite Hendricks’s arguments to the contrary, we find Crewe to be legally indistinguishable from the present case. She makes a corollary argument that because the arbitration agreement specified the use of NAF rules of procedure during arbitration, and supposedly only the NAF can utilize those procedures, the agreement is impossible to perform. However, the agreement not only provides for choosing an alternate entity or forum to conduct arbitration, but also an alternate method. This clearly contemplates the use of non-NAF rules of procedure during arbitration if, indeed, only NAF can utilize NAF rules but NAF is unavailable. In sum, we see no reason not to give effect to the plain language of the parties’ arbitration agreement, providing for an alternate forum and/or method of arbitration in the event of NAF’s unavailability. We reverse the denial of Lane House’s motion to stay proceedings and compel arbitration and remand either for the parties to select an alternate forum and/or method of arbitration or for the trial court to select an alternate arbitrator in accordance with Section 5 of the Federal Arbitration Act if the parties cannot reach agreement.

Conclusion

Benge’s signature on the arbitration agreement is binding upon Hendricks under the undisputed facts of this case, and that agreement is not rendered impossible to perform and invalid because of NAF’s unavailability to conduct the arbitration. We reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

CRONE, J., and PYLE, J., concur.

      . The document in the record before us appointing Benge a health care representative is dated August 31, 2012, or well after Hendricks’s admission to Lane . House. After briefing was completed in this case by Lane House’s filing of a reply brief, Hendricks filed a "Petition for Leave to Respond to Appellant’s Reply,” seeking to file an additional brief arguing that this document was not in effect at the time of Hendricks's admission. We have denied this petition by separate order. This is because Hendricks expressly admitted to the trial court that she had appointed Benge as her health care representative prior to her admission to Lane House and she made no argument to the trial court regarding the date of this document. Also, Lane House relied upon and cited this document in its opening brief, (not only its reply brief, contrary to Hendricks’s claim), and Hendricks thus had the opportunity to make' an argument in her appellee’s brief regarding the date of the document, but she did not. In fact, Hendricks also cited and quoted from the document in her brief in support of her arguments. Clearly, Hendricks has waived any argument regarding the effective date of Benge's appointment as a health care representative, having previously failed to make any such argument despite two opportunities to do so. See, e.g., Newland Resources, LLC v. Branham Corp., 918 N.E.2d 763, 770 (Ind.Ct. App.2009) ("a party cannot argue on appeal an issue that was not properly presented to the trial court”); Town of Chandler v. Indiana-American Water Co., 892 N.E.2d 1264, 1267 (Ind.Ct.App.2008) (noting rule that no new issues may be raised in a reply brief) (citing Ind. Appellate Rule 46(C)).

      . Life Care Centers of America, Inc., is a Tennessee corporation.

      . This statute provides in full:
      If in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed; but if no method be provided therein, or if a method be provided and any party thereto shall fail to avail himself of such method, or if for any other • reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then upon the application of either party to the controversy the court shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein; and unless otherwise provided in the agreement the arbitration shall be by a single arbitrator.

      . Also, unlike the agreements in Geneva-Roth and Apex 1, the agreement here stated in permissive terms that any dispute “may” be filed with NAF, not that any dispute "shall” be so filed. App. p. 24.


author: BAKER, Judge.

text:
    In re the PATERNITY OF N.C.G. B.G., Appellant-Respondent, v. N.G., Appellee-Petitioner.
    No. 02A04-1301-JP-21.
    Court of Appeals of Indiana.
    Sept. 19, 2013.

      Thomas C. Allen, Fort Wayne, IN, for Appellant.
    Sara L. Seibert, Eberhard & Weimer, P.C., Angola, IN, for Appellee.
   OPINION

BAKER, Judge.

In the instant case, after appellant-respondent B.G. (Father) established paternity over his son, he and appellee-petitioner N.G. (Mother), through mediation, agreed on almost every issue except N.C.G.’s surname, which was fervently contested. The issue of N.C.G.’s surname was deferred until Father filed a verified petition to change his name. After a hearing on the petition, the trial court entered findings of fact, essentially determining that the parents were in equipoise but denying Father’s petition because the child had been known by Mother’s surname for about two and one-half years, which was the approximate time that the issue had been under some form of mediation between the contentious parties.

An examination of our evolving caselaw indicates that so long as a father pays child support, exercises parenting time, and actively participates in the child’s life, then the best interests of the child may be served by giving the child the father’s surname to reinforce the bond between father and his nonmarital child, particularly if father is the noncustodial parent. Because Father has paid child support, exercised parenting time, actively participated in N.C.G’s life, and demonstrated that he wants his son to have his name to solidify the bond that Father has with his noncustodial son, we reverse the judgment of the trial court.

FACTS

N.C.G. was born on May 13, 2010. At the time of N.C.G.’s birth, he was given Mother’s surname. On August 3, 2010, the trial court issued an order establishing Father’s paternity. In the order, Mother was granted sole legal custody and primary physical custody of N.C.G., and Father was ordered to pay $155 per week in child support. Father was granted visitation to be supervised by a third party. Father and Mother were ordered to attend mediation for all other issues.

On September 23, 2010, Mother and Father attended mediation and submitted a proposed agreement to the trial court. This agreement was made an order of the trial court on October 27, 2010. Under the agreement, Mother retained sole legal custody of N.C.G. and Father was granted parenting time pursuant to the Indiana Parenting Guidelines with the following limitations:

(a) Father shall immediately enroll in a parenting class for infant care. Upon completion, he shall provide the Court and Mother with a copy of his certificate of completion.
(b) Father shall insure he has the items needed for an infant including, but not limited to, a crib, mattress, car seat, toys, and high chair. Father shall provide Mother with a picture of said items within 10 days of the date of this agreement.
(c) Until such time as Father completes his parenting class, his parenting time shall be each Monday and Wednesday from 5:30 p.m. to 8:30 p.m. at the home of Mother which shall be supervised by the maternal grandmother ... and each Sunday from 5:00 p.m. to 8:00 p.m. The Sunday parenting time shall not be supervised and will take place outside Mother’s home. Father’s parenting time shall not be supervised after he completes his parenting class.
(d) The above schedule will continue until the child is one (1) year old. At one (1) year Father shall have one (1) overnight per week on one of his scheduled days.

Appellant’s App. p. 14.

Father’s child support was modified to $120 per week effective September 24, 2010, and he was ordered to provide health insurance for the child. Father was also ordered to pay 61% of the uninsured medical expenses. The determination of N.C.G.’s surname was deferred.

On May 29, 2012, Father filed his verified petition for change of name of minor child. On September 17, 2012, Mother filed a verified petition for contempt for nonpayment of uninsured medical expenses.

On December 14, 2012, the trial court held a hearing on Father’s petition for change of name. At the beginning of the hearing, Father was served in open court with Mother’s petition for contempt along with copies of medical bills allegedly owed by Father. A hearing on Mother’s petition was scheduled for February 11, 2012.

During the hearing, Father testified that he had been paying child support and visiting with N.C.G. Tr. p. 8. Additionally, Father stated that he wanted N.C.G. to have his surname because it would “help cement in [N.C.G’s] mind who his biological father is.” Id.

Mother testified that because she had “full and physical custody,” of the child, she thought that the child’s surname should remain the same. Id. The trial court then asked if N.C.G.’s name was the name that he was given in the hospital, to which Mother replied that it was. Father explained that there were questions surrounding the child’s paternity and that he had been waiting on the results of a DNA test before establishing paternity. Id. at 9.

Further, Father explained that he had been trying to work with Mother for the past two years to get N.C.G.’s name changed but that the relationship was very contentious. Instead of refuting this claim, Mother immediately tried to negate Father’s attempt to establish that he is involved in the child’s life. She pointed out that Father had gotten married and had not requested the child’s presence at the wedding.

After hearing testimony from Mother and Father, the trial court observed that

I totally understand the father’s position regarding wanting his first-born son to carry his name. However, I think in light of the fact that I need to look at it for what’s best for the child, not what’s best for you or the mother, and since the child is 2 and a half years old and has gone by the name [N.C.G.], I think I’m going to deny, I’m going to deny the Petition for Change of Name and leave his name as [N.C.G.]

Tr. p. 12.

In the trial court’s written order, it made the following findings:

C. The Court finds that the minor child is Father’s first-born and only son.
D. The Court finds that Father has been paying child support since 2010.
E. The Court finds that Father has exercised regular parenting time with the minor child.
F. The Court finds that the minor child is two (2) years of age and is Mother’s first born and her only son.
G. The Court finds that Mother is not in agreement that the minor child’s surname be changed.

Appellant’s App. p. 11.

As in open court, the trial court denied Father’s petition in the written order. Father now appeals.

DISCUSSION AND DECISION

Father’s sole argument on appeal is that although “the court’s findings of fact were adequately supported by evidence[,] ... the conclusions derived from the findings of fact are clearly erroneous” such that the trial court erred by not changing N.C.G.’s name. Appellant’s Br. p. 6. We review a trial court’s order granting or denying a biological father’s request to change the name of a nonmarital child for an abuse of discretion. In re Paternity of M.O.B., 627 N.E.2d 1317, 1318 (Ind.Ct. App.1994). An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances before the court. In re Paternity of Tibbitts, 668 N.E.2d 1266, 1268 (Ind.Ct. App.1997). Additionally, a biological father seeking to change the name of a non-marital child has the burden of persuading the court that the change is in the best interests of the child. M.O.B., 627 N.E.2d at 1318.

Here, the trial court entered findings of fact pursuant to Trial Rule 52(A), which we may not set aside unless they are clearly erroneous. Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind.2000). Findings of fact are clearly erroneous when the record contains no evidence to support them directly or indirectly. Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind.1996). A judgment is clearly erroneous when the findings of fact do not support the conclusions of law or the conclusions of law do not support the judgment. Id.

Indiana Code section 16-37-2-13 provides, in relevant part, that “[a] child born out of wedlock shall be recorded ... under the name of the mother.” Nevertheless, “a biological father seeking to obtain [a] name change of his non-marital child bears the burden of persuading the court that the change is in the child’s best interests. Absent evidence of the child’s best interests, the father is not entitled to obtain a name change.” MOB, 627 N.E.2d at 1318.

In M.O.B., paternity was established when the child was about five months old, but a hearing was not scheduled until one year later on the contested issue of the child’s surname. 627 N.E.2d at 1318. The mother presented evidence that United States Savings Bonds, health insurance coverage, and a social security card had all been obtained under her surname. Id. at 1319. The mother also stated that the child was identified in the community, by his family, and by certain organizations by her surname. Id. Finally, the mother asserted that she would be the parent to enroll him in school and obtain medical treatment on his behalf and a written recommendation from a doctor stated that the child should retain the mother’s surname. Id.

The father, on the other hand, testified that the child was his only son and that his surname was an honorable one that he truly wanted to have carried on. Id. On appeal, a panel of this Court concluded:

Father clearly failed to sustain his burden of persuasion that a name change was in the best interests of M.O.B. Therefore, the trial court abused its discretion as a matter of law when it erroneously ordered that M.O.B. assume Father’s surname.

Id. at 1319. Thus, the M.O.B. Panel reversed the trial court’s order changing the child’s name to Father’s surname. Id.

In what appears to be an effort to encourage a paternal connection with a father’s nonmarital and noncustodial child, recent cases have concluded that it is in the child’s best interest to give the child the father’s surname when certain indicators are present such as the father pays child support, exercises parenting time, and participates in the child’s life. See C.B. v. B.W., 985 N.E.2d 340, 348 (Ind.Ct. App.2013) (stating that “Father’s surname will connect the child with his non-custodial parent and is a tangible reminder to the child that the child has two parents who care for him, which is in the child’s best interests”); see also Petersen v. Burton, 871 N.E.2d 1025, 1029 (Ind.Ct.App.2007) (opining that “the indicators that complying with Father’s request [for a name change] is in the child’s best interest are that he does pay support, has visitation and participates in the life of his child”).

This Court has noted that this is conduct that society wants to encourage. Petersen, 871 N.E.2d at 1029. More particularly, The Petersen Panel reasoned that as applied to that case, the father’s testimony reflected his belief that his son would feel a greater connection to him as his father by sharing his name. Id. at 1031. Thus, the panel affirmed the trial court’s decision to change the child’s surname to that of the father. Id.

In the instant case, even though N.C.G. was given Mother’s name at the hospital, Father explained that he had been trying to effect a name change almost since the child’s birth. Tr. p. 11. Likewise, although the trial court reasoned that N.C.G. had been using his mother’s surname for over two years, it also recognized that the issue of the child’s surname had to be taken through a lengthy mediation process. Tr. p. 7. These facts highlight the contentious relationship between Father and Mother rather than the best interests of the child.

Furthermore, Father testified that giving N.C.G. his surname would cement the parental bond between himself, as the noncustodial parent, and the child. Tr. p. 8. This is unlike the father in M.O.B. who merely wanted to change his child’s surname because it was an honorable one that he wanted to pass on. 627 N.E.2d at 1319. The distinction is that the latter has nothing to do with the child’s best interest, but rather, concerns only the father’s interest. Id.

Similarly, as observed in C.B., having a father’s surname under circumstances such as those presented in the instant case is in a child’s best interest because it is a tangible reminder that the child has two parents. 985 N.E.2d at 348. This is particularly true when the father is the noncustodial parent. Id. Accordingly, we conclude that the trial court erred by not granting Father’s petition to change N.C.G.’s surname. Thus, we reverse the trial court’s order and remand with instructions to the trial court to enter an order changing N.C.G’s surname to Father’s surname.

The judgment of the trial court is reversed.

FRIEDLANDER, and YAIDIK, JJ., concur.


author: CRONE, Judge.

text:
    Linda M. NEESE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 41A01-1303-CR-138.
    Court of Appeals of Indiana.
    Sept. 20, 2013.

      John B. Norris, Hass Vandivier & Norris, Franklin, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Linda M. Neese appeals her conviction for one count of class A misdemeanor check deception. Neese asserts that the State presented insufficient evidence to support her conviction. Neese also asserts that the State presented insufficient evidence to rebut her statutory affirmative defense beyond a reasonable doubt. Finding the evidence sufficient to support the conviction and that Neese failed to meet her initial burden to establish her affirmative defense by a preponderance of the evidence, we affirm.

Facts and Procedural History

The facts most favorable to the conviction indicate that Neese and Thomas Reed had known each other for a long time and had even lived together for approximately fourteen or fifteen years at some point. On January 6, 2011, Neese wrote Reed a personal check, dated that same date, in the amount of $2500. Neese issued the check to Reed in exchange for Reed giving Neese $2500 cash in order to bail her son out of jail. Reed assumed that Neese did not have the money in her account to cover the check because otherwise, she would have just gone to the bank and gotten the money herself. Neese told Reed that she would have the money by April 15, 2011, because her son’s girlfriend would get a tax refund and give Neese the money to put in her account.

On February 25, 2011, Reed took the cheek to the bank and attempted to cash it. The bank rejected the check because Neese’s account was closed. Reed immediately contacted the local prosecutor’s office. On March 25, 2011, Rebecca Garland, the check deception coordinator for the Johnson County Prosecutor’s Office, sent a notice to Neese informing her regarding the unpaid check, the crime of check deception, and Neese’s ability to avoid prosecution by paying the amount owed plus fees within ten days of the notice. Neese contacted Garland within ten days and tried to make arrangements to pay the check. However, Neese failed to make any payment, claiming that she did not have the money to do so. To date, Neese has never repaid Reed.

On August 30, 2012, the State charged Neese with class A misdemeanor check deception. A bench trial was held on February 28, 2013. At the close of the State’s evidence, Neese moved for a directed verdict arguing that the State failed to meet its burden of proof because, pursuant to Indiana Code Section 35-43-5-5(f), she did not commit the crime of check deception because Reed knew that she did not have sufficient funds in her account to cover the check. The State responded that subsection (f) of the check deception statute operates as an affirmative defense and not an element of the offense, and therefore a directed verdict was inappropriate. The trial court denied Neese’s motion for directed verdict and proceeded with the trial. In presenting her case in defense, Neese did not testify but only recalled Reed to the witness stand. Reed testified that, at the time Neese gave him the check, he knew that Neese did not have sufficient funds to cover the check. Thereafter, the trial court found Neese guilty as charged. Additional facts will be provided as necessary.

Discussion and Decision

We first address Neese’s challenge to the sufficiency of the State’s evidence to sustain her conviction. When a defendant challenges the sufficiency of the evidence supporting a conviction, we do not reweigh the evidence or judge the credibility of the witnesses. Joslyn v. State, 942 N.E.2d 809, 811 (Ind.2011). We consider only the probative evidence and reasonable inferences drawn therefrom that support the finding of guilt. Gray v. State, 957 N.E.2d 171, 174 (Ind.2011). We likewise consider conflicting inferences in the light most favorable to the conviction. Id. We will affirm the conviction unless no reasonable trier of fact could have found the elements of the crime proven beyond a reasonable doubt. Id. '

To establish that Neese committed class A misdemeanor check deception, the State was required to prove that she “knowingly or intentionally issue[d] or delivered] a check, draft, or an order on a credit institution for the payment of or to acquire money or other property, knowing that it will not be paid or honored by the credit institution upon presentment in the usual course of business[.]” Ind.Code § 35^3-5-5(a). Indiana Code Section 35-43-5-5(c) specifically provides that “[t]he fact that a person issued or delivered a check, a draft, or an order, payment of which was refused by the drawee, constitutes prima facie evidence that the person knew that it would not be paid or honored.” Additionally, “evidence that a person had insufficient funds in or no account with a drawee credit institution constitutes prima facie evidence that the person knew that the check, draft, or order would not be paid or honored.” Id.

The uncontroverted evidence establishes that Neese wrote a personal check to Reed, dated January 6, 2011, in the amount of $2500. Neese gave the check to Reed in exchange for $2500 in cash. When Reed subsequently presented the check to the bank for payment on February 25, 2011, payment was refused by the bank because Neese’s account was closed. Contrary to Neese’s arguments, this evidence alone is sufficient to support a reasonable inference that Neese acted with the requisite intent to commit check deception. A person engages in conduct knowingly if, while engaging in the conduct, she is aware of a high probability that she is engaging in such conduct. Ind.Code § 35-41-2-2. The trier of fact here could reasonably infer from the evidence that, when issuing the check to Reed, Neese was aware of a high probability that she was issuing a bad check. Indeed, as noted above, the mere fact that Neese issued a check, payment of which was refused by the drawee bank constitutes prima facie evidence that Neese knew the check would not be honored upon presentment. See Ind.Code § 35 — 43—5—5(c); see also Cooper v. State, 181 Ind.App. 275, 278-79, 391 N.E.2d 841, 843-44 (1979) (discussing prior version of check deception statute and statutory inference of knowledge). Accordingly, the State presented sufficient evidence to establish that Neese knowingly issued a check for the payment of money knowing that it would not be paid or honored upon presentment in the usual course of business.

Having concluded that the State presented sufficient evidence to sustain Neese’s conviction, we now turn to Neese’s purported affirmative defense. Specifically, our legislature has provided that a person does not commit a crime under subsection (a) of the check deception statute when “the payee or holder knows that the person has insufficient funds to ensure payment or that the check, draft, or order is postdated.” Ind.Code § 35 — 43—5—5(f). In determining whether a statutory exception, such as the one provided here, constitutes a material element of the offense or an affirmative defense to the crime, our courts assess the location of the exception relative to the location of the definition of the principal offense. Lyles v. State, 970 N.E.2d 140, 143 n. 3 (Ind.2012). “If the exception is closely connected with the clause creating the offense, the exception is a material element of that offense and must be proven by the State.” Id. If, however, the “exception is contained in a subsequent clause or statute, the exception is an affirmative defense and must be raised by the defendant.” Id. Here, the knowledge of the payee exception is contained in a clause subsequent to the definition of the principal offense. Therefore, although not specifically designated as such, we agree with the parties that the exception listed in subsection (f) should be properly considered an affirmative defense to the crime of check deception. See Gu-nashekar v. Grose, 915 N.E.2d 953, 956-57 (Ind.2009) (referring to same subsection under prior version of the statute as a “defense” to the crime of check deception).

A defendant bears the initial burden to prove any affirmative defense by a preponderance of the evidence. Harrison v. State, 901 N.E.2d 635, 640 (Ind.Ct.App. 2009), trans. denied. If the defendant meets this initial burden, the State is then required to rebut the defense. Id. Here, in finding her guilty of the crime of check deception, the trial court concluded that Neese failed to meet her burden of proof on her affirmative defense. Consequently, Neese appeals from a negative judgment. A party appealing from a negative judgment must demonstrate that the evidence points unerringly to a conclusion different than that reached by the trial court. Newson v. State, 785 N.E.2d 1155, 1157-58 (Ind.Ct.App.2003). We will reverse a negative judgment only if the decision of the trial court is contrary to law. Id. That is to say, we must determine if the undisputed evidence and all reasonable inferences to be drawn therefrom lead to but one conclusion and the trial court has reached a different one. Id.

Viewing the facts in the proper light of appellate review, we agree with the trial court that Neese failed to meet her initial burden to prove her affirmative defense by a preponderance of the evidence. Subsection (f) of the check deception statute excuses culpability of the person delivering or issuing a bad check if the payee or holder knows that the person has insufficient funds to ensure payment or that the check was postdated. In essence, our legislature has decided that the crime of check deception does not occur when the payor can establish shared knowledge between payor and payee, namely that the payor has shared a particular knowledge with the payee that the check will not be paid upon presentment in the usual course of business due to insufficient funds or postdating. In accepting the check under those circumstances, the payee has not been misled, deceived, or defrauded. At trial here, testimony was elicited from Reed, the payee of the check, which indicated that at the time Neese issued the check, she informed Reed that she did not have sufficient funds in her account to ensure payment. Reed testified that he assumed that if Neese had the money, “she’d went down and. cashed it herself. Got the money out of the bank herself.” Tr. at 6. Reed stated that Neese told him she would have sufficient funds by “tax season” or around April 15, 2011. Id. This evidence indicates that Reed believed that if he tried to cash the check prior to April 15, 2011, the check would be denied for insufficient funds.

However, the inquiry does not end there. We believe that our legislature intended that, in order for the affirmative defense in subsection (f) of the check deception statute to apply, the knowledge shared by the payor with the payee, i.e., insufficient funds to ensure payment, must match the reason that the check is not honored by the bank upon presentment, hence excusing culpability of the payor because the payor shared that particular knowledge with the payee. When Reed went to cash Neese’s check on February 25, 2011, the bank did not refuse to negotiate the check due to insufficient funds as Reed could have expected based upon the knowledge that Neese shared with him. Rather, the bank refused to negotiate the check because Neese’s bank account was closed. It was reasonable for the trier of fact to infer from those facts that Neese knowingly issued a check to Reed written on a closed account, knowing that it would never be honored by the bank no matter when presented. Neese has failed to show that she shared knowledge with Reed such that he was not, in fact, misled, deceived, or defrauded by her when she issued the check. Where; as here, the payor cannot establish by -a preponderance of the evidence that the payee knows that the payor has insufficient funds to ensure payment of the check and that the check was not honored upon presentment for that reason, the affirmative defense has not been proven.. The trial court properly concluded that Neese failed to meet her burden to prove her affirmative defense, and we cannot say that the evidence points unerringly to a different conclusion.

In sum, the State presented sufficient evidence to prove that Neese knowingly or intentionally issued a check to Reed knowing that it would not be paid or honored by the bank upon presentment in the usual course of business. Moreover, Neese failed to meet her burden to prove her affirmative defense by a preponderance of the evidence. We therefore affirm her conviction for class A misdemeanor check deception.

Affirmed.

BARNES, J., and PYLE, J., concur.

      . As noted by the State, this Court has issued some conflicting holdings in the civil context as to whether subsection (f) constitutes an element of the offense of check deception or an affirmative defense. Compare Parrish v. Anne Selig Marek, P.C., 537 N.E.2d 39, 42 (Ind.Ct.App.1989) (referring to subsection (f) as a legal defense to the criminal act of check deception), trans. denied, with Lemert Eng’g Co., v. Monroe Auto Equip. Co., 444 N.E.2d 859, 862 (Ind.Ct.App.1983) (concluding that subsection (f) states an element of the offense rather than an affirmative defense). However, in light of our supreme court’s recent explanation of statutory exceptions in Lyles as well as the court’s reference to subsection (f) as a defense in Gunashekar, subsection (f) should be considered an affirmative defense.

      . Neese erroneously asserts that her only burden was to place her statutory affirmative defense "at issue” before the burden shifted to the State to then rebut her defense beyond a reasonable doubt. Appellant's Br. at 19, 24. However, there is a difference between an affirmative defense that negates an element of the crime and a factor in mitigation of culpability that is separate and distinct from the elements of the crime. A defendant bears no burden of proof with respect to a mitigating factor, only the burden of placing the issue in question where the State’s evidence has not done so. Abbott v. State, 961 N.E.2d 1016, 1018 (Ind.2012) (citing Harrison, 901 N.E.2d at 642). Here, subsection (f) of the check deception statute serves as an affirmative defense to the crime of check deception rather than a mitigating factor in that it wholly excuses culpability rather than merely reducing culpability. See, e.g., Harrison, 901 N.E.2d at 641-42 (fact that a gun is unloaded is a mitigating factor in pointing a firearm prosecution similar to mitigating factor of sudden heat in murder prosecution because fact reduces, but does not wholly excuse, culpability). Therefore, Neese bore the initial burden of proving her affirmative defense by a preponderance of the evidence.


author: KIRSCH, Judge.

text:
    Jerome MILIAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 79A02-1302-CR-197.
    Court of Appeals of Indiana.
    Sept. 24, 2013.

      John S. Antalis, Lafayette, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Andrew R. Falk, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

KIRSCH, Judge.

Jerome Milian (“Milian”) appeals the trial court’s denial of his pro se motion to withdraw his guilty plea contending that the trial court abused its discretion by allowing him to proceed pro se in arguing the motion and denying his motion to withdraw his guilty plea.

We affirm.

FACTS AND PROCEDURAL HISTORY

Milian pleaded guilty to dealing in cocaine as a Class A felony and to his status as an habitual substance offender. The factual basis supporting his guilty plea establishes the following: On July 16, 2012, Milian was arrested by police officers after the completion of the last of six controlled buys of cocaine from him dating from May 10, 2012. On the date of his arrest, Milian knowingly or intentionally delivered pure or adulterated cocaine to a person later revealed to be a detective with the Lafayette Police Department, and the transaction was within one thousand feet of a family housing complex. The detective gave Milian money for the cocaine, and Milian was still in possession of that money when he was arrested later that night.

Prior to this conviction for dealing in cocaine, Milian was convicted of delivery of a controlled substance in 2003 and in Illinois in 2008. Milian was also convicted of possession of marijuana in Tippecanoe County in 2008.

The State charged Milian with multiple counts related to this activity, and at the conclusion of negotiations, Milian pleaded guilty as described above. After entering his guilty plea, but prior to sentencing, Milian, who was represented by counsel, made several attempts, pro se, to withdraw his guilty plea. The trial court set Milian’s motions for a status conference on January 4, 2013, at which hearing the trial court informed the parties that it would allow Milian to argue his motion pro se at a hearing on January 8, 2013, with his court-appointed counsel present as standby counsel.

After hearing the arguments on Milian’s motion, and reviewing the guilty plea hearing, the trial court issued its order denying Milian’s motion to withdraw his guilty plea. The matter proceeded to sentencing on January 29, 2013, at which time the trial court imposed a cumulative sentence of thirty-three years, twenty-six of which were to be executed at the Department of Correction. Milian now appeals. Additional facts will be supplied below.

DISCUSSION AND DECISION

Milian contends that the trial court abused its discretion by denying his motion to withdraw his guilty plea and allowing him to proceed pro se at the hearing on that motion. Generally, an appellant is not allowed to challenge his guilty plea on direct appeal once judgment is entered, but must pursue post-conviction relief instead. Tumulty v. State, 666 N.E.2d 394, 395-96 (Ind.1996). However, where a defendant has sought to withdraw his guilty plea prior to sentencing, and the trial court hears evidence on the motion, reviewed the claim, and rejected it, the defendant may present the challenge on direct appeal. Brightman v. State, 758 N.E.2d 41, 44 (Ind.2001). The Supreme Court’s opinion in Brightman includes the following discussion of the standard of review in such challenges:

Indiana Code § 35-35-l-4(b) governs motions to withdraw guilty pleas. After a defendant pleads guilty but before a sentence is imposed, a defendant may motion to withdraw a plea of guilty. The court must allow a defendant to withdraw a guilty plea if “necessary to correct a manifest injustice.”
By contrast, the court must deny the motion if withdrawal of the plea would “substantially prejudice[ ]” the State. In all other cases, the court may grant the defendant’s motion to withdraw a guilty plea “for any fair and just reason.”
A trial court’s ruling on a motion to withdraw a guilty plea “arrives in this Court with a presumption in favor of the ruling.” We will reverse the trial court only for an abuse of discretion. In determining whether a trial court has abused its discretion in denying a motion to withdraw a guilty plea, we examine the statements made by the defendant at his guilty plea hearing to decide whether his plea was offered “freely and knowingly.”

758 N.E.2d at 44.

Milian advances two arguments in support of his contention that his guilty plea should have been withdrawn. He argues that the State admitted that it would suffer no prejudice from such withdrawal and that his plea was not entered into freely and voluntarily. He also contends that he was insufficiently advised and admonished about the dangers involved in self-representation.

At Milian’s initial hearing, the magistrate informed Milian as follows:

If you are here for an initial hearing on a criminal case you do have the right to an attorney. If you intend to hire a private attorney you must do so within twenty days after this hearing if charged with a felony or within 10 days after this hearing if you’re charged with misdemeanors. I say this because there are deadlines for filing certain motions and raising defenses. If these deadlines are missed, then the issues and defenses that could have been raised may be waived, or given up. You do have the right to represent yourself. However, if you represent yourself you must follow all the rules of evidence and proper legal procedures. The Judge and the court staff are not allowed to give you legal advice or tell you what to do or how to do it. As our Supreme Court has repeatedly explained, attorneys often have skills and experience that are helpful in preparing defenses, or negotiating plea agreements. An attorney can fully explain the charges to you, including any lesser offenses, the effect of any mitigating or aggravating circumstances, whether a portion of any sentence can be suspended, or whether a charge may be reduced. An attorney can explain the impact a conviction will have on your status with the Bureau of Motor Vehicles or U.S. Immigrations; and an attorney can advise you as to whether a conviction may be used against you in the future if you are convicted of a new, related offense. If you want a lawyer but are indigent and financially unable to retain one, then I will appoint a lawyer to represent you.

Appellant’s App. at 44. The State then filed a formal habitual substance offender charge against Milian on September 6, 2012. At the trial court’s direction, the clerk of the court forwarded a copy of the information to the magistrate for the purpose of scheduling an initial hearing on the additional charge. That same day the magistrate held a hearing at which Milian was once again advised of his rights, including the right to be represented by an attorney, his right to represent himself, and the numerous advantages to being represented by an attorney.

After - determining that the magistrate had erroneously set Milian’s trial for October 28, 2012, the trial court rescheduled the trial for October 16, 2012, and notified Milian’s counsel of the change. On October 3, 2012, Milian’s counsel filed a notice of alibi defense in the matter.

Milian and the State negotiated a plea agreement. Among the terms of the agreement Milian acknowledged that he was satisfied with his attorney’s service and the legal representation provided by that attorney. At the plea hearing Milian testified under oath that he had reviewed the plea agreement with counsel before he signed it. The trial court reviewed the terms of the plea agreement with Milian including the provision that he was pleading guilty to dealing in cocaine as a Class A felony and to the habitual substance offender enhancement. The trial court informed Milian that he was free to speak with his attorney at any time, and that the proceedings would go off record in order to accommodate Milian. Milian testified that he had never been diagnosed with any mental illness, did not currently suffer from any mental or emotional instability, and was not under the influence of alcohol or drugs.

The trial court advised Milian of his rights to 1) a speedy trial, 2) confront witnesses, 3) hold the State to its burden of proof in order to convict him, and 4) not be compelled to testify at his trial. In addition, the trial court advised Milian that he had “the right to be represented by an attorney at all times including during a trial or for an appeal” and that if he “could not afford an attorney the Court would appoint one for [him].” Guilty Plea Tr. at 6.

Milian affirmed that he understood his rights and knew that he was giving up those rights by pleading guilty. He acknowledged his understanding that if the matter proceeded to trial, the State would be required to establish the elements of each of the offenses, and that by pleading guilty he was admitting the crimes with which he was charged. Milian also affirmed his understanding of the possible penalties for his crimes.

Further, Milian avowed that no one had forced or threatened him or placed him in fear in order to persuade him to plead guilty. He stated that his plea of guilty was made of his own free choice and decision. Milian pleaded guilty as agreed under the terms of his plea agreement and testified that he committed the crimes as charged.

On November 7, 2012, Milian moved pro se to dismiss the case against him. The trial court denied Milian’s motion on the basis that he was represented by counsel at the time. Approximately six weeks after entering into his plea agreement, on November 20, 2012, Milian moved, pro se, to withdraw his guilty plea. On December 17 and 19, 2012, Milian filed, in letter form, additional pro se arguments with the court in support of his motion to withdraw his plea. Later, on December 27, he filed a motion requesting the removal of his court-appointed counsel and expressing his desire to be allowed to proceed pro se. Milian filed a second, pro se motion to withdraw his plea on December 28, 2012 and filed another letter with the trial court on January 7, 2013.

As mentioned above, the trial court set Milian’s motions for a status conference on January 4, 2013. At that conference, the trial court announced its decision to allow Milian to argue his own motion to withdraw his guilty plea at a hearing set for January 8, 2013, with his court-appointed attorney serving as standby counsel.

Prior to hearing the matter, the trial court stated the following about the status of Milian’s representation:

We’re here today on the defendant’s pro se motion to withdraw guilty plea. When we were here last Friday with Mr. Freeman setting it for today what I decided was to permit [Defendant] to proceed on his pro se filing, with Mr. Freeman sitting as stand by counsel for this purpose. But Mr. Freeman continues to be [Defendant’s] attorney for all other matters.

Guilty Plea Tr. at 17 (hesitations and repetitions omitted). Although the State lodged the objection that none of Milian’s motions was verified, it acknowledged that the verification requirement could be met by Milian during the course of the hearing.

At the hearing, Milian asserted that he was not “stating here that my actions as far as this crime right here, that it was correct, because it wasn’t. I did have some parts into this crime.” Id. at 20. He continued his argument by stating that he sought to withdraw the plea “due to the fact that I was misled” by appointed counsel, who allegedly

... told me that I was going to be signing a B felony which she had gave me, she had shown me the paper and said sign this. Once we got to Court it all came out that it was an amended to an A and there was an HSO and a thousand feet and etcetera, etcetera. Uh, right there, alone, right there, that was wrong. That was wrong to me as far as I felt right there. Because I was, I was misled to think that I was signing, signing something else that I didn’t, that I didn’t sign.

Id. at 20-21. Milian further contended that the State had withheld information from him by delaying discovery. He also argued that he should have pleaded to and been convicted of a Class B felony offense and not a Class A felony offense.

The State responded briefly to Milian’s contentions. At the conclusion of the State’s argument, the trial court stated:

[The court] asked if the defendant if he had a chance to go through the plea agreement to which he said yes. Asked if he had any questions for his attorney to which he said no. And indicated that the plea was to two counts, amended count six, the A felony, which the defendant signed as the affiant and then the HSO, the sentencing enhancement, count thirteen. Reading through the plea agreement, setting out also that it was, the range of penalty of twenty-five to thirty-five years, which could include the Department of Correction and could include, if, eligible, Community Corrections, a portion of that time could be served on Community Corrections. Plea agreement further indicated that the defendant acknowledged that he was satisfied with the services of his attorney. I also asked whether or not— whether the terms of the agreement were those has he understood them to be, to which he said yes. Proceeded on, going, whether it was his intent to enter a plea of guilty on that date, which he said yes. Went through the various rights, waivers, read the charges, range of penalties for the A felony and the HSO. Indicated that' he, he did plead guilty, he was. sworn, admitted that he delivered cocaine within one thousand feet of Union Square Apartments. As well as the dates of the arrests and convictions, the arrests and convictions of those offenses set out in count thirteen. Further, on that day the Court did accept the plea of guilty and plea agreement and entered judgment of conviction on that date. And revoked the bond previously ordered in this cause.

Id. at 27-28. Milian’s motion was denied the next day.

Because the State had acknowledged that it would suffer no prejudice should the trial court grant Milian’s motion to withdraw his guilty plea, the trial court reviewed Milian’s motion to determine whether a manifest injustice had occurred or if there was some other ground for granting Milian the requested relief. A defendant has the burden of establishing the grounds for relief by a preponderance of the evidence. Ind.Code § 35-35-l-4(e). Milian failed to meet that burden.

Our Supreme Court has stated:

“Manifest injustice” and “substantial prejudice” ’ are necessarily imprecise standards, and an appellant seeking to overturn a trial court’s decision has faced a high hurdle under the current statute and its predecessors. The trial court’s ruling on a motion to withdraw a guilty plea arrives in this Court with a presumption in favor of the ruling. Still, concerns about injustice carry greater weight- when accompanied by credible evidence of involuntariness, or when the circumstances of the plea reveal that the rights of the accused were violated. Did the defendant understand the allegations to which he was pleading guilty? Did the defendant know about the right to trial? Was the decision to plead made with the benefit of counsel? Did the defendant appreciate the sentencing ramifications of admitting guilt? What was the defendant’s understanding of the bargain struck with the prosecutor? A court must examine questions of this sort to confirm that a defendant is acting freely and knowingly before accepting a guilty plea.

Coomer v. State, 652 N.E.2d 60, 62 (Ind. 1995) (internal citations and parentheticals omitted).

Here, Milian admitted that he did “have some parts to this crime,” but asserted that his counsel misled him as to what the plea agreement provided and his belief as to which class of felony was involved. Guilty Plea Tr. at 20-21. The trial court reviewed the terms of the plea agreement with Milian including the provision that he was pleading guilty t dealing in cocaine as a Class A felony and to the habitual substance offender enhancement. Milian stated he had read the plea agreement, an agreement which specifically involves a Class A felony offense and a habitual substance offender enhancement, prior to signing it. Milian assured the trial court that he had read the plea agreement and reviewed it with counsel.

Further, Milian stated for the record that he was happy with his legal representation and the services his attorney had provided. Milian affirmed that the plea agreement contained the terms he understood were to be included. The description of the offense that was read to Milian at the guilty plea hearing included the element that the crime occurred within 1000 feet of a housing complex, and the probable cause affidavit for that count, which also includes that allegation, was sworn to by Milian. In sum, all three veins along which Milian sought to withdraw his guilty plea, were rebutted by verified evidence in the record, and Milian failed to show manifest injustice.

In the absence of a manifest injustice, the decision to grant or deny Milian’s motion rested within the trial court’s discretion. The trial court chose to deny the motion. Milian has failed to establish an abuse of discretion.

Milian claims that the trial court abused its discretion by allowing him to argue his pro se motion, contending that he was insufficiently advised of the consequences of doing so. “The Sixth Amendment, applicable to the states through the Fourteenth Amendment, guarantees a criminal defendant the right to counsel before he may be tried, convicted, and punished.” Hopper v. State, 957 N.E.2d 613, 617 (Ind.2011) (citing Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). A defendant also has the affirmative right to represent himself in a criminal case. Id. However, in most criminal prosecutions, defendants “could better defend with counsel’s guidance than by their own unskilled efforts.” Id. at 617-18. A defendant who waives the right to counsel and proceeds to trial unrepresented, must knowingly and intelligently forgo the relinquished, traditional benefits associated with the right to counsel. Id. at 618.

Moreover, a defendant’s right to counsel arises at any point during a criminal proceeding “in which the absence of counsel would erode the defendant’s right to a fair trial.” Id. at 616 (citing Hernandez v. State, 761 N.E.2d 845 (Ind.2002)). As such, this includes any critical stage in which “ ‘(1) incrimination may occur or (2) where the opportunity for effective defense must be seized or be foregone.’ ” Hernandez, 761 N.E.2d at 850 (quoting Casada v. State, 544 N.E.2d 189, 198 (Ind.Ct.App. 1989)). The task of determining what constitutes a critical stage at which a defendant’s right to counsel arises is not an easy task. For example, the initial hearing is not a critical stage requiring the presence of counsel. Hopper, 957 N.E.2d at 616-17 (citing Benner v. State, 580 N.E.2d 210 (Ind.1991)). Further, though plea bargaining is not a critical stage, the entry of a guilty plea is a critical stage. Id. Although a court-ordered mental evaluation following an insanity plea is not a critical stage giving rise to the right to counsel, a hearing at which a defendant is questioned regarding his absence from trial may be a critical stage entitling the defendant to legal representation. See Williams v. State, 555 N.E.2d 138, 136 (Ind.1990) (mental evaluation following insanity plea); Ellis v. State, 525 N.E.2d 610, 612 (Ind.Ct. App.1987) (questioning regarding absence from trial).

Milian argues that based on the holdings cited above, a hearing on a motion to withdraw a guilty plea is a critical stage deserving of legal representation, even more so than a guilty plea hearing itself. Appellant’s Br. at 11-12. Although Milian cites to Hopper in support of this position, we have previously concluded that a hearing on the defendant’s motion to withdraw his guilty plea was a critical stage of the proceedings requiring assistance of counsel. Martin v. State, 588 N.E.2d 1291, 1293 (Ind.Ct.App.1992).

In Martin, we acknowledged that a proceeding is a critical stage if the defendant is “confronted with the intricacies of the law or the advocacy of the public prosecutor or prosecuting authorities.” 588 N.E.2d at 1293. We concluded that “a motion to withdraw guilty plea involves both intricacies of law and advocacy by the prosecutor, thus entitling a defendant to the assistance of counsel.” Id.

Martin is distinguishable. In Martin, the defendant wished to be represented by counsel, but after dismissing his first appointed counsel, refused to discuss his ability to pay for a public defender. The trial court declined to appoint additional counsel for the defendant, a decision which we found to be erroneous. In his motion to withdraw his guilty plea, the defendant raised issues of law and fact, including his competency to evaluate his motion to withdraw the plea and new alibi witnesses. Martin made repeated requests for the appointment of counsel, but the trial court declined. Martin was forced to proceed pro se against his wishes. Therefore, he was faced with defending a motion implicating his substantial rights, without counsel, when he desired representation. Unlike the defendant in Martin, Milian made repeated requests to proceed pro se when he was represented by counsel, and the motion to withdraw his guilty plea did not raise substantial questions of law or issues of fact requiring an evidentiary hearing, legal arguments or briefing.

Similar to our concern for defendants confronted with the “intricacies of law,” other jurisdictions have focused on whether the motion to withdraw a guilty plea raises substantial questions of law. See e.g., Green v. Arkansas, 362 Ark. 459, 209 S.W.3d 339, 344 (2005) (no right to counsel in hearing for guilty plea withdrawal); State v. Jackson, 255 Kan. 455, 874 P.2d 1138, 1142 (1994) (no right to counsel where motion to withdraw plea fails to raise substantial questions of law or triable issues of fact involving legal arguments).

Additionally, in the present case, Milian was not unrepresented. The trial court proceeded with the hearing on Milian’s motion with standby counsel at the ready to assist Milian. In this regard, Milian’s appeal presents one similar to that presented in Rhode Island v. Eason, 786 A.2d 365 (R.I.2001). In Eason, the Rhode Island Supreme Court declined to inquire whether the defendant had waived his right to counsel, where the defendant had been represented by counsel for some time, and counsel was present at the hearing during which the defendant argued his motion pro se. In Eason, appointed counsel represented the defendant both prior to and after the hearing on the motion, and was present during the hearing serving as standby counsel.

Milian received multiple advisements and admonishments from the trial court regarding his rights, and in particular, his right to representation by counsel. Milian has failed to meet his burden of establishing that the trial court abused its discretion. Consequently, we find no error here.

Affirmed.

ROBB, C.J., and RILEY, J., concur.

      . See Ind.Code § 35 — 48—4—1 (b).

      . See Ind.Code § 35-50-2-10 (this code section was repealed by Pub.L. No. 158-2013, § 664, effective July 1, 2014).