author: CRONE, Judge.

text:
    Joseph MATHENY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A04-1207-CR-347.
    Court of Appeals of Indiana.
    March 7, 2013.

      Patricia Caress McMath, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Joseph Matheny appeals his conviction for class D felony auto theft. When Math-eny was being arrested, a police officer asked him where he lived, and Matheny told the officer. At trial, Matheny’s response was used as evidence against him because his residence was close to the location from which the car was stolen. On appeal, he argues that his statement was obtained in violation of his constitutional privilege against self-incrimination and that the trial court abused its discretion in admitting it. He also argues that the trial court abused its discretion in refusing his tendered jury instructions regarding the presumption of innocence. We conclude that the police officer did not violate Matheny’s constitutional rights by asking him for his address, and therefore the trial court did not err in admitting his statement at trial. We further conclude that although the trial court erred in refusing one of Matheny’s tendered jury instructions, the error was harmless. Therefore, we affirm.

Facts and Procedural History

On March 23, 2012, at approximately 6:20 p.m., Pamela Dedinsky parked her red 2004 Honda Accord near the intersection of Delaware and Ohio Streets in Indianapolis. At about 9:30 p.m., after dining at a restaurant, Dedinsky returned to the parking space and found that her car was gone. She went back to the restaurant and called the police to report that her car was missing. Earlier that day, Dedinsky had given her daughter permission to drive the car using a spare set of keys. This set of keys was later determined to be missing. Dedinsky did not know Math-eny.

On March 24, 2012, at approximately 2:20 a.m., Indianapolis Police Officer Brad Alford was on patrol near 38th Street and Audubon Road and noticed a car, later identified as Dedinsky’s Accord, with heavy front-end damage in a ditch with its lights on and a gray van backed up to it. As he drove by, Officer Alford saw a man, later identified as Matheny, sitting in the driver’s seat of the car with the door open. Officer Alford returned to the Accord because he believed that its condition indicated a property damage accident. Officer Alford shined a spotlight on the Accord and saw Matheny exit the car. Officer Alford walked toward the vehicles. He noticed that Matheny was wobbling and intoxicated. Matheny had a smell of alcohol on his breath, slurred speech, and watery eyes. Matheny also had a laceration above his right eyebrow with blood trickling down. Officer Alford asked Matheny what had happened, and Matheny said that “a friend from 30th and Emerson” had offered him $20 to get the Accord out of the ditch. Tr. at 214. Matheny later stated that he had been a passenger in the Accord after a friend “picked him up at 38th Street and Emerson and they were riding around.” Id. at 237.

Officer Marc Klonne arrived at the scene as backup. The officers observed that the van was undamaged and was tied to the Accord in order to tow it. For safety reasons, the officers asked the van driver to remove the tow rope from the Accord and called for a tow truck. Because the van driver had been acting as a “Good Samaritan” and had not been involved in an accident with the Accord, the officers told the van driver that he could leave. Id. at 242.

Officer Klonne relayed the Accord’s license plate number to dispatch and was informed that the Accord had been reported stolen. Officers Alford and Klonne then approached Matheny, who was standing by the Accord. Officer Alford saw Matheny take a step back, move his right hand behind his right leg, and drop something on the ground. Officer Alford shined his flashlight on the ground and saw a car key inscribed with an “H” logo. When the Accord was later towed, the tow truck driver inserted this key into the ignition and turned it to shift gear. The officers handcuffed Matheny. They asked Matheny to identify himself, but he refused. During the patdown safety search for weapons, Officer Klonne felt a wallet in Matheny’s pocket. Because they had been unable to identify Matheny, Officer Klonne removed an Indiana identification card (“ID”) from the wallet. Joseph Matheny was the name on the ID card. To confirm whether the ID was in fact Matheny’s, Officer Klonne asked Matheny for his address, and Matheny did not answer. Officer Klonne also asked Matheny several times if he lived at the address on the ID. Finally, Matheny said that he did not live at the address on the ID and that he lived at Wheeler Mission.

As Officer Alford was handcuffing Math-eny, Officer Kari Pennington arrived at the scene. She also saw the car key on the ground below Matheny’s hand. She read Matheny his Miranda rights. Officer Klonne called the medics and performed an initial sweep of the vehicle, observing everything in plain view. He saw that the driver’s side airbag had deployed. The passenger’s side airbag was not deployed, and there were items on the passenger seat.

On March 26, 2012, the State charged Matheny with class D felony auto theft and class B misdemeanor public intoxication. On April 12, 2012, Matheny filed a motion to suppress evidence. Following the hearing, the trial court concluded that Matheny had been too intoxicated to knowingly and voluntarily waive his Miranda rights and therefore suppressed all MathenyA statements made after he was taken into custody, except for those concerning his identifying information. Id. at 68.

At trial, Matheny objected to the admission of his statement that he lived at Wheeler Mission. Officer Klonne testified that his reason for asking Matheny to state his address was to verify the information on the ID. The trial court concluded that “routine questions for the purposes of identification, such as name, address, height, weight are not within the purview of Miranda,” overruled Matheny’s objection, and admitted the statement. Id. at 268. Officer Klonne testified that Wheeler Mission was located at 248 North Delaware Street, which is close to where De-dinsky’s car was parked.

The jury found Matheny guilty as charged. Matheny appeals his conviction for auto theft. Additional facts will be provided as necessary.

Discussion and Decision

I. Admissibility of Mat hen y’s Statement

Matheny argues that the trial court abused its discretion in admitting his statement to police that he lived at Wheeler Mission. “The admissibility of evidence is within the sound discretion of the trial court and will not be disturbed absent a showing that the trial court abused its discretion.” Furnish v. State, 779 N.E.2d 576, 578 (Ind.Ct.App.2002) trans. denied (2003) (citation and quotation marks omitted). “An abuse of discretion involves a decision that is clearly against the logic and effect of the facts and circumstances before the court.” Washington v. State, 784 N.E.2d 584, 587 (Ind.Ct.App.2003) (citation omitted). “In determining whether the trial court abused its discretion, we do not reweigh evidence and consider conflicting evidence in a light most favorable to the trial court’s ruling.” Mogg v. State, 918 N.E.2d 750, 755 (Ind.Ct.App.2009). We may affirm the trial court’s ruling if it is sustainable on any legal basis supported by the record. Scott v. State, 883 N.E.2d 147, 152 (Ind.Ct.App.2008).

Matheny contends that his statement that he lived at Wheeler Mission was obtained in violation of the Fifth Amendment to the United States Constitution, which provides that no person “shall be compelled in any criminal case to be a witness against himself.” “At its core, the [Fifth Amendment] privilege reflects our fierce ‘unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt.’ ” Pennsylvania v. Muniz, 496 U.S. 582, 596, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (quoting Doe v. United States, 487 U.S. 201, 212, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988)). The “privilege against self-incrimination protects individuals not only from the legal compulsion to testify in a criminal courtroom, but also from the informal compulsion exerted by law-enforcement officers during in-custody questioning.” Id. at 589, 110 S.Ct. 2638. Thus, when a person is in custody and is subject to interrogation, “the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.” Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); see also Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (“[T]he special procedural safeguards outlined in Miranda are not required where a suspect is simply taken into custody, but rather where a subject in custody is subjected to interrogation.”) (emphasis added). The safeguards outlined in Miranda also apply to the functional equivalent of interrogation by the police. Innis, 446 U.S. at 301-02, 100 S.Ct. 1682. “That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301,100 S.Ct. 1682 (footnotes omitted). Verbal statements that are both “testimonial” in nature and elicited during custodial interrogation are protected. Muniz, 496 U.S. at 590, 110 S.Ct. 2638. “Whenever a suspect is asked for a response requiring him to communicate an express or implied assertion of fact or belief, the suspect confronts the ‘trilemma’ of truth, falsity, or silence, and hence the response (whether based on truth or falsity) contains a testimonial component.” Id. at 596-97, 110 S.Ct. 2638 (footnote omitted). In sum, “[statements that are the product of custodial interrogation prior to the advisement of the Fifth Amendment guarantee against self-incrimination are generally inadmissible.” Bailey v. State, 763 N.E.2d 998, 1001 (Ind.2002) (citing Miranda, 384 U.S. at 444, 86 S.Ct. 1602).

Nevertheless, there are some police questions which do not fall within Miranda’s purview. Questions regarding “name, address, height, weight, eye color, date of birth, and current age” are outside the scope of Miranda’s coverage. Muniz, 496 U.S. at 601, 110 S.Ct. 2638 (citations and quotation marks omitted); Loving v. State, 647 N.E.2d 1123, 1126 (Ind.1995) (where police handcuffed defendant and took him to police station for questioning as witness to fatal shooting, police questions regarding defendant’s name, current address, date of birth, and social security number did not require Miranda warnings); Hatcher v. State, 274 Ind. 230, 232-33, 410 N.E.2d 1187, 1189 (1980) (“An officer may ask routine questions for the purpose of obtaining basic identifying information without giving Miranda warnings.”); Castillo-Aguilar v. State, 962 N.E.2d 667, 671 (Ind.Ct.App.2012) (“‘Limited and focused inquiries on the part of police normally attendant to arrest and custody do not constitute custodial interrogation.’ ”) (quoting Curry v. State, 643 N.E.2d 963, 977 (Ind.Ct.App.1994), trans. denied), trans. denied.

Matheny contends that the “manner in which Officer Klonne elicited the statement from [him] that he lived at Wheeler Mission shows that the inquiry was not made for recordkeeping purposes or as part of the booking process following arrest,” and “the statement was testimonial as the fact Mr. Matheny lived at Wheeler Mission was an important piece of evidence in the State’s case against [him].” Appellant’s Br. at 4. Here, Officer Klonne testified that his reason for asking Mathe-ny to state his address was to verify the information on the ID. The fact that Officer Klonne asked Matheny his addi'ess more than once does not persuade us that the questions were anything other than the officer’s attempt to obtain accurate identifying information. As such, the officer’s questions were outside the scope of Miranda. See Muniz, 496 U.S. at 601, 110 S.Ct. 2638; but of. Castillo-Aguilar, 962 N.E.2d at 671 (concluding that the information sheet defendant was asked to complete at police station after being arrested for driving without a license constituted interrogation because it included questions such as how long defendant had lived in Goshen and name of his car insurance company). The fact that Matheny’s residence was ultimately incriminating does not retroactively transform Officer’s Klonne routine identification questions into interrogation for purposes of Miranda. Accordingly, we conclude that the trial court did not abuse its discretion in admitting Matheny’s answer.

II. Jury Instructions

Matheny also argues that the trial court abused its discretion in refusing his tendered jury instructions. Instruction No. 1 read,

Under the law of this state, a person charged with a crime is presumed to be innocent. This presumption continues in favor of the accused throughout the trial of this cause. To overcome the presumption of innocence, the State must prove the accused guilty of each essential element of the crime charged, beyond a reasonable doubt.
Defendant is not required to present any evidence to prove his innocence or to prove or explain anything. You should attempt to fit the evidence to the presumption that the Defendant is innocent.
If the evidence in this case is susceptible of two constructions or interpretations, each of which appears to be reasonable, and one of which points to the guilt of the Defendant, and the other to his innocence, it is your duty, under the law, to adopt that interpretation which is consistent with his innocence and reject that which points to his guilt.

Appellant’s App. at 57 (emphasis added).

Instruction No. 6 read,

You are the exclusive judges of the evidence, the credibility of the witnesses and of the weight to be given to the testimony of each of them. In considering the testimony of any witness, you may take into account his or her ability and opportunity to observe; the manner and conduct of the witness while testifying; any interest, bias or prejudice the witness may have; any relationship with other witnesses or interested parties; and the reasonableness of the testimony of the witness considered in the light of all of the evidence in the case.
You should attempt to fit the evidence to the presumption that the accused is innocent and the theory that every witness is telling the truth. You should not disregard the testimony of any witness without a reason and without careful consideration. If you find conflicting testimony you must determine which of the witnesses you will believe and which of them you will disbelieve.
In weighing the testimony to determine what or whom you will believe, you should use your own knowledge, experience and common sense gained from day to day living. The number of witnesses who testify to a particular fact, or the quantity of evidence on a particular point need not control your determination of the truth. You should give the greatest weight to that evidence which convinces you most strongly of its truthfulness.

Id. at 62 (emphasis added).

We review a trial court’s decision to give or refuse a tendered instruction for an abuse of discretion. Dora v. State, 783 N.E.2d 322, 326 (Ind.Ct.App.2003) irons. denied. In reviewing the trial court’s decision, “ ‘we consider (1) whether the instruction correctly states the law, (2) is supported by the evidence in the record, and (3) is not covered in substance by other instructions.’” O’Connell v. State, 970 N.E.2d 168, 172 (Ind.Ct.App.2012) (quoting Munford v. State, 923 N.E.2d 11, 14 (Ind.Ct.App.2010)). A defendant is entitled to a reversal if he affirmatively demonstrates that the instructional error prejudiced his substantial rights. Buckner v. State, 857 N.E.2d 1011, 1015 (Ind.Ct.App.2006).

Both parties acknowledge our supreme court’s holding in Robey v. State, 454 N.E.2d 1221 (Ind.1983), that “[a]n instruction ... which advises the jury that the presumption of innocence prevails until the close of the trial, and that it is the duty of the jury to reconcile the evidence upon the theory of the defendant’s innocence if they could do so, must be given if requested.” Id. at 1222. Further, the State acknowledges our recent decision in Lee v. State, 964 N.E.2d 859 (Ind.Ct.App.2012), trans. denied, in which we held that the trial court’s rejection of the defendant’s tendered instruction containing the language emphasized in Matheny’s tendered instructions resulted in reversible error. Id. at 863, 865. The State, however, argues that we should not find reversible error in this case because Instruction No. 1 is an incomplete statement of the law, the substance of Instruction No. 6 was adequately covered by other instructions, and that even if it was error to refuse Matheny’s tendered instructions, the error was harmless.

We agree with the State that Instruction No. 1 is incomplete with regard to its third paragraph:

If the evidence in this case is susceptible of two constructions or interpretations, each of which appears to be reasonable, and one of which points to the guilt of the Defendant, and the other to his innocence, it is your duty, under the law, to adopt that interpretation which is consistent with his innocence and reject that which points to his guilt.

Appellant’s App. at 57. In Simpson v. State, 915 N.E.2d 511 (Ind.Ct.App.2009) trans. denied (2010), we concluded that the above language was incomplete without the following companion paragraph:

You will notice that this rule applies only when both of the two possible opposing conclusions appear to you to be reasonable. If, on the other hand, one of the possible conclusions should appear to you to be reasonable and the other to be unreasonable, it would be your duty to adhere to the reasonable deduction and to reject the unreasonable, bearing in mind, however, that even if the reasonable deduction points to defendant’s guilt, the entire proof must carry the convincing force required by law to support a verdict of guilt.

Id. at 519-20 (quoting Robey, 454 N.E.2d at 1222). Accordingly, the trial court did not abuse its discretion in refusing Instruction No. I.

As for Matheny’s tendered Instruction No. 6, the State does not argue that it is incomplete, but argues that the trial court’s Instruction No. 14 adequately expressed the concept that the jury should attempt to fit the evidence to the presumption that the accused is innocent. Instruction No. 14 read,

Direct evidence means evidence that directly proves a fact, and that, if true, conclusively establishes the fact.
Circumstantial evidence means evidence that proves a fact from which you may conclude the existence of another fact.
It is not necessary that facts be proved by direct evidence. Both direct evidence and circumstantial evidence are acceptable as a means of proof. A conviction may be based solely on circumstantial evidence. Where proof of guilt is by circumstantial evidence only, it must be so conclusive and point so convincingly to the guilt of the accused that the evidence excludes every reasonable theory of innocence.

Appellee’s Br. at 13 (quoting Appellant’s App. at 82) (emphasis Appellee’s). We disagree that the emphasized language in Instruction No. 14 adequately conveys the essential principle that the jury should attempt to fit the evidence to the presumption that the accused is innocent. Therefore, we conclude that the trial court abused its discretion in refusing Instruction No. 6.

Nevertheless, we agree with the State that the trial court’s refusal of Instruction No. 6 was harmless error. Matheny failed to respond to the State’s harmless error argument. Failure to respond to an issue is akin to failing to file a brief. Cox v. State, 780 N.E.2d 1150, 1162 (Ind.Ct.App.2002). “This failure does not relieve us of our obligation to correctly apply the law to the facts in the record.” Id. However, we are not responsible for developing an argument on behalf of the appellant. Id.

The U.S. Supreme Court has said that “the failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution.” Kentucky v. Whorton, 441 U.S. 786, 789, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979). “[S]uch a failure must be evaluated in light of the totality of the circumstances—including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors—to determine whether the defendant received a constitutionally fair trial.” Id.; see also Vaughan v. State, 446 N.E.2d 1, 3 (Ind.Ct.App.1983) (noting that Indiana followed Whorton); but cf. Lee, 964 N.E.2d at 864-65 (concluding that trial court’s refusal to give instruction on presumption of innocence was reversible error where State failed to respond to defendant’s argument that error was not harmless). Generally, “[e]rrors in the giving or refusing of instructions are harmless where a conviction is clearly sustained by the evidence and the jury could not properly have found otherwise.” Smith v. State, 755 N.E.2d 1150, 1152 (Ind.Ct.App.2001) trans. denied.

Here, the jury was instructed that Matheny was presumed innocent and was not required to prove his innocence or to prove or explain anything. Appellant’s App. at 79 (Instruction No. 11). The jury was also informed that the State bore the burden of proving that the defendant is guilty beyond a reasonable doubt. Id. at 80 (Instruction No. 12). The jury was further instructed that where proof of guilt is by circumstantial evidence only, it must be so conclusive and point so convincingly to the guilt of the accused that the evidence excludes every reasonable theory of innocence. Id. at 82 (Instruction No. 14).

During voir dire, defense counsel stated, “We presume Mr. Mathen/s innocent .... if you presume they’re guilty instead of innocent you might convict someone falsely.” Tr. at 131, 133. During final argument, defense counsel told the jury, “He’s presumed innocent. You must fit every reasonable hypothesis with his innocence and assume he’s innocent and start from that and not the other way around.” Id. at 314.

Finally, the evidence does not support a reasonable theory of innocence. Matheny was found in possession of Dedinsky’s car at 2:20 a.m., between five and eight hours after the theft. He was seen sitting in the driver’s seat. The car was in a ditch with substantial front-end damage, the airbag in the driver’s side had deployed, and Matheny had a bloody cut above his right eyebrow. Matheny had the key to the car but surreptitiously dropped it on the ground. He gave conflicting stories about his involvement with the car to the police. Based on the totality of the circumstances, we conclude that the trial court’s refusal to give Instruction No. 6 was harmless error.

Affirmed.

MATHIAS, J., and KIRSCH, J., concur.

      . The State asserts that this key was "used to start the car when it was towed away.” Appellee's Br. at 4 n. 2 (citing Tr. at 272-73, 278). Our review of the transcript reveals that Officer Klonne testified that he did not remember whether the car actually started and that he did not put the key in the ignition or try to turn it. Tr. at 272, 278.

      . "In determining whether a person was in custody or deprived of freedom such that Miranda warnings are required, 'the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest,’ " based on "whether a reasonable person in similar circumstances would believe he is not free to leave.” State v. Hicks, 882 N.E.2d 238, 241 (Ind.Ct.App.2008) (quoting Luna v. State, 788 N.E.2d 832, 833 (Ind.2003)). Here, the parties do not dispute that Matheny was in custody for purposes of Miranda when the police asked him questions regarding his address.

      ." 'Miranda requires defendants to be adequately informed of their right to remain silent, that their statements could be used against them at trial, of their right to an attorney, and that the state will appoint an attorney for the defendant if he cannot afford one.' ” Furnish, 779 N.E.2d at 578 (quoting Allen v. State, 686 N.E.2d 760, 769 (Ind.1997)).

      .These questions are exempt either because they "fall within a routine booking question exception which exempts from Miranda's, coverage questions to secure the biographical data necessary to complete booking or pretrial services” or because they are considered not "testimonial.” Muniz, 496 U.S. at 601, 110 S.Ct. 2638 (Brennan. J., joined by O'Connor, Scalia, and Kennedy, JJ.); id. at 608, 110 S.Ct. 2638 (Rehnquist, C.J., joined by White, Blackmun, and Stevens, JJ.). See Loving v. State, 647 N.E.2d 1123, 1126 n. 2 (Ind.1995) (noting the U.S. Supreme Court's divide regarding rationale for excluding identification questions from Miranda's, coverage).

      . Matheny asserts that the record is unclear as to whether he made the statement before or after he received Miranda warnings. The major thrust of Matheny’s argument is that if he had not been given his Miranda warnings, then the statement was inadmissible because it was given while he was in custody. Mathe-ny also asserts that if he made the statement after he had been given Miranda warnings, then the statement was inadmissible because the trial court found that any statements he gave after receiving Miranda warnings were not admissible. However, at trial, the court specifically stated that Matheny’s "motion to suppress the question regarding his address ... is overruled.” Tr. at 263.

      . Matheny contends that the Simpson court did not affirm the trial court’s refusal of the tendered instruction because it was incomplete. Appellant’s Reply Br. at 1. Matheny misreads Simpson. Incompleteness was one of two reasons that the Simpson court affirmed the trial court's refusal of the tendered instruction. The Simpson Court explained,
      The State contends that Simpson's tendered instruction was incomplete because it failed to inform the jury that they could in fact conclude that one of the two opposing conclusions was unreasonable. The State further contends that our Supreme Court's holding in Robey simply required an instruction that the jury should fit the evidence to the presumption that a defendant is innocent and that the trial court’s instruction informed the jury as required by Robey. We agree with the State.
      915 N.E.2d at 520 (citations and quotation marks omitted).

      . In Lee, another panel of this court reversed the trial court’s refusal of a jury instruction that was identical to Matheny’s Instruction No. 1, except that it did not contain the companion paragraph from Robey. In Lee, the State did not argue that Lee's tendered instruction was missing the companion paragraph nor was Simpson’s, holding discussed. 964 N.E.2d at 862-65.

      . The Simpson court held that a jury instruction identical to Instruction No. 6 satisfied our supreme court’s holding in Robey. 915 N.E.2d at 520. See also Smith v. State, 981 N.E.2d 1262, 1266 (Ind.Ct.App.2013) (citing Simpson ).


source: Caselaw Access Project

author: DAVID, Justice.

license: Public Domain

text:
    Curtis A. BETHEA, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
    No. 18S05-1206-PC-304.
    Supreme Court of Indiana.
    March 12, 2013.

      Stephen T. Owens, Public Defender of Indiana, Rodney Pol, Jr., Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   DAVID, Justice.

In his Petition for Post-Conviction Relief, Curtis Bethea argues he received ineffective assistance of counsel for failure to challenge the aggravating factors used by the trial court in determining his sentence. Specifically, he claims a trial court cannot aggravate a defendant’s sentence with an essential element of a charge that was dismissed pursuant to a plea agreement. We hold that the trial court finding that the injury suffered by the victim to be an aggravating factor was proper despite the plea agreement that dismissed that count.

Facts and Procedural History

In December 2005, Curtis Bethea, Jerry Gore, Eddie Wilson, and Tyler Seaton went to the home of Angela Dailey and Jason Gates. Bethea and Gore entered the home wielding guns. Gates was “pistol whipped” and Dailey was pulled out of bed and thrown to the floor. Bethea bound Gates’ arms with tape. Gore and Bethea ransacked the house looking for money and drugs.

Bethea was arrested and charged with nine counts which included: Count I, Class A felony Burglary Resulting in Bodily Injury; Count II, Class B felony Armed Robbery of Gates; Count III, Class B felony Armed Robbery of Dailey; Count IV, Class B felony Criminal Confinement of Gates; Count V, Class B felony Criminal Confinement of Dailey; Count VI, Class C felony Intimidation of Gates; Class VII, Class C felony Intimidation of Dailey; Count VIII, Class D felony Auto Theft of Dailey’s vehicle; and Count IX, Class B felony Criminal Confinement of Dailey.

In February 2007, Curtis Bethea pled guilty to two counts, Count II, Class B felony Armed Robbery of Gates, and Count V, Class B felony Criminal Confinement of Dailey. His plea agreement left the sentences open to the discretion of the trial court. At the sentencing hearing, Bethea testified that his father was an alcoholic and drug user who was physically, mentally, and sexually abusive to Be-thea, his mother, and his siblings. Bethea lived in various foster homes from the age of six, and in juvenile facilities in New York and Virginia. Bethea further testified that he used drugs and alcohol since the age of nine, including PCP, marijuana, cocaine, embalming fluid, heroin, inhalants, and acid. To counter the mitigating evidence, the State presented evidence of Be-thea’s extensive criminal history and testimony of one of the victims. The trial court noted the harm, injury, and loss suffered by the victims was significant.

The trial court determined that the aggravating circumstances outweighed the mitigating circumstances and imposed the maximum sentence of twenty years on each count. The court ordered the sentences served consecutively which resulted in an aggregate sentence of forty years, the maximum allowed by the plea.

Bethea appealed his sentence, but the Court of Appeals affirmed the trial court. Bethea v. State, No. 18A02-0703-CR-247, 2007 WL 3378461 (Ind.Ct.App.2007) (memorandum decision). Bethea then filed for post-conviction relief, arguing ineffective assistance of counsel by both trial counsel and appellate counsel. Following a hearing, the trial court denied Bethea relief. On appeal to the Court of Appeals, Bethea argued the post-conviction court erred in finding that appellate counsel’s failure to raise an Indiana Appellate Rule 7(B) claim and a challenge to the improper factors did not result in ineffective assistance of counsel. Secondly, Bethea argued the post-conviction court erred in finding that trial counsel’s failure to object to and tender evidence negating an unsupported aggravating factor did not result in ineffective assistance of counsel. The Court of Appeals issued a split decision affirming the trial court.

I. Discussion

In the petition for post-conviction relief, the petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004). “When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment.” Id. To prevail, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993). We do not defer to a post-conviction court’s legal conclusions; however, “[a] post-conviction court’s findings and judgment will be reversed only upon a showing of clear error — ‘that which leaves us with a definite and firm conviction that a mistake has been made.’ ” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (quoting State v. Moore, 678 N.E.2d 1258, 1261 (Ind.1997), cert. denied, 523 U.S. 1079, 118 S.Ct. 1528, 140 L.Ed.2d 678 (1998)).

To prevail on a claim of ineffective assistance of counsel, the petitioner must show that counsel’s performance fell below an objective standard of reasonableness and that the deficient performance so prejudiced him. Coleman v. State, 694 N.E.2d 269, 272 (Ind.1998) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To satisfy the first prong, the defendant must show deficient performance: “representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” McCary v. State, 761 N.E.2d 389, 392 (Ind.2002) (citing Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052). To satisfy the second prong, the defendant must show prejudice: a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Id. There is a strong presumption that counsel rendered adequate service. Coleman at 272. There is nothing in the record that rebuts this presumption.

We agree with the Court of Appeals and summarily affirm their analysis that “Bethea has not persuaded us that trial counsel’s [strategy] was not an acceptable strategy.” Bethea v. State, 964 N.E.2d 255, 264 (Ind.Ct.App.2012). We turn our focus to the adequacy of representation Bethea received from appellate counsel.

II. Appellate Counsel

There are three categories of ineffective assistance of appellate counsel: (1) denial of access to appeal; (2) failure to raise issues that should have been raised; and (3) failure to present issues well. Wrinkles v. State, 749 N.E.2d 1179, 1203 (Ind.2001). We have previously stated that

[w]hen a petitioner claims the denial of effective assistance of appellate counsel because counsel did not raise issues the petitioner argues should have been raised, reviewing courts should be particularly deferential to counsel’s strategic decision to exclude certain issues in favor of others, unless such a decision was unquestionably unreasonable. But this does not end our analysis. Even if we determine that counsel’s choice of issues was not reasonable, a petitioner must demonstrate a reasonable probability that the outcome of the direct appeal would have been different in order to prevail.

Taylor v. State, 840 N.E.2d 324, 338 (Ind.2006) (internal citations omitted). We must determine “(1) whether the unraised issues are significant and obvious from the face of the record; and (2) whether the unraised issues are clearly stronger than the raised issues.” Gray v. State, 841 N.E.2d 1210, 1214 (Ind.Ct.App.2006).

The issue before us is whether Bethea was prejudiced by appellate counsel’s failure to cogently challenge the aggravating factors in the underlying sentence. Sentencing decisions are reviewed for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007). An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the court. Id. If the trial court has used improper aggravating factors, we will remand for resentencing “if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.” Id. at 491.

The trial court found the following circumstances supporting sentence enhancement:

(1) Defendant has the following convictions in Virginia: Obstruction of Justice, March 14, 2001 (# 810GC010075700); and Petit Larceny, March 21, 2001 (# 710CR0100457900). The Court gives these two convictions minimal weight as they appear similar to misdemeanor offenses in Indiana, and they are not similar to the offenses involved in this case.
(2) Defendant was convicted of two counts of Accessory after the Fact in a felony, and Defendant was sentenced as a misdemeanor in both counts, in Norfolk, Virginia, # 711GC0101928900, on December 11, 2001. The Court gives these convictions some weight; although they were entered as misdemeanor convictions, the charges involved two counts of Robbery, and Defendant is convicted of Robbery in this case.
(3) Defendant has a conviction for Possession with Intent to Distribute Cocaine as a felony, in Norfolk, Virginia (# CR01004579 and CR 02000494); on May 31, 2002, Defendant received a three year suspended sentence and was placed on probation. The Court gives this conviction significant weight, as it relates to a crime that could have been a significant felony in Indiana, and the conviction reflects a pattern developing of Defendant’s continuing involvement in criminal activity.
(4) Defendant has two adjudicated probation violations related to # CR01004579, in Norfolk, Virginia. The Court gives these violations (to which Defendant admitted in the Virginia proceedings) significant weight, as Defendant’s actions show a pattern of unwillingness to follow rules and directions from lawful authority. (These probation violations were filed on April 22, 2003, and August 6, 2004.)
(5) Defendant has an active warrant from the State of Virginia in # CR01004579, involving a probation violation (the third) in that case. The Court gives this factor some weight, as Defendant’s failure to appear in Virginia and answer to the allegations demonstrates disdain for legal authority and his unwillingness to follow court orders. Defendant was on probation in this Virginia case when he committed the offenses in this case.
(6) Defendant has several pending warrants from the State of New York. Although the cases are not convictions, the Court gives these warrants some weight, as they show Defendant’s continued pattern of involvement in the criminal justice system, through March 2, 2005, and they further demonstrate Defendant’s disdain for legal authority and unwillingness to follow court orders.
(7) Defendant knowingly committed these offenses in the presence of a person under 18 years old; Defendant used [T.S.], then 17 years old, to gain access to the victims’ residence. The Court gives this factor substantial weight, as Defendant involved a juvenile in the crimes, and this could lead to even more criminal activity on her part in the future. Defendant knew he could not gain access to the victims’ residence without the assistance of the juvenile.
(8) The harm, injury, and loss suffered by the victims was significant and greater than the otherwise anticipated by the offenses; in addition to being armed at gunpoint, the male victim was beaten and “pistol whipped” and reports the beating has resulted in his seizure disorder causing more seizures; in addition to being confined at gunpoint, the female victim was injured by being pulled out of bed and thrown to the floor, resulting in medical treatment. Defendant committed the offenses inside the victims’ residence. The Court gives this factor very significant weight, as Defendant acted in a manner more violent than required for the offenses and caused significant injuries to the victims.

Ex. 266-68.

The court also considered factors supporting a reduction in the sentence:

(1) Defendant stated he is remorseful, but the Court gives this factor minimal to no weight, as Defendant has had numerous opportunities to rehabilitate himself and has not taken advantage of them. Further, Defendant denied having a gun; denied knowing what was going to happen when he went to the victims’ house; and does not want to admit what actually happened.
(2) Defendant assumed responsibility for his actions and pleaded guilty; however, the Court gives this factor minimal to no weight, as Defendant received a significant benefit from the plea agreement, i.e., the State’s agreeing to dismiss seven other counts, including a Class A felony charge.
(3) Defendant does have some history of ADHD, substance abuse, and emotional problems related to being abused; however, the Court gives this factor minimal to no weight, as Defendant had numerous opportunities to seek treatment for these problems and never voluntarily sought treatment on his own or while he was on probation. Further, the Court notes Defendant was fully involved in these offenses as a principal, and his alleged mental and emotional problems did not affect his understanding of what he was doing or his ability to control his behavior. His alleged mental and emotional problems do not limit his ability to function. The Court finds no nexus between the alleged illnesses and the offenses in this case.
(4) Long-term incarceration could cause an undue hardship to his dependents; however, the Court gives this factor no weight. Defendant had little to no contact with his dependents after he moved to Indiana, and there is no evidence he was providing them any financial support.
(5) Defendant does have some history of maintaining gainful employment; however, the Court gives this factor no weight, as Defendant’s criminal history suggests he is able to maintain employment and violate the law at the same time.

Ex. 266-68.

Bethea challenges several of the trial court’s findings of aggravators which enhanced his sentence. Bethea first challenges the trial court’s finding that he knowingly used a juvenile in the commission of the crime. The State concedes that the evidence does not show Bethea knew T.S. was a minor; however, as the Court of Appeals noted, “Bethea knew that he was using a young woman to trick the victims into opening their home to two armed robbers, and this could properly be considered as part of the nature and circumstances of the offense.” Bethea at 265. As the post-conviction court pointed out, it was proper for the trial court to conclude that Bethea used a juvenile to help him commit a violent crime, which could lead the juvenile to become involved in more criminal activity in the future.

The trial court erred in stating Bethea’s criminal history by finding that he had been convicted of possession of cocaine with intent to distribute, when in fact he had pled guilty to the lesser included offense of possession of cocaine. However, we find this error is not significant as possession of cocaine is still a Class D felony in Indiana, which can be elevated to an A, B, or C felony with certain facts. In the context of Bethea’s extensive criminal history, we do not believe this is a significant factor. The trial court’s error did not change the fact that Bethea had in fact been convicted of a felony for possessing cocaine, which was also part of a pattern of Bethea’s involvement in criminal activity.

Bethea also argues that the record does not support that he received “extensive services” as a juvenile. We have previously held that evidence of a difficult childhood is entitled to little, if any, mitigating weight. Coleman v. State, 741 N.E.2d 697, 700 (Ind.2000); Blanche v. State, 690 N.E.2d 709, 715 (Ind.1998); Peterson v. State, 674 N.E.2d 528, 543 (Ind. 1996); Loveless v. State, 642 N.E.2d 974, 976-77 (Ind.1994). The trial court was correct in pointing out that Bethea has been in and out of jail most of his adult life. While the record is inconclusive on any mental health conditions Bethea may have, the Court of Appeals wrote, “Be-thea’s adult years show a disdain for the law, failure to benefit when shown leniency, failure to take proactive steps to address his addictions, and a tendency to move from state to state rather than answer to pending criminal charges or probation violations.” Bethea at 266.

III. Guilty pleas and aggravating factors

The critical issue before us is whether the trial court erred by treating the victim’s injury as an aggravating factor when the injury was an element of the burglary charge that was dismissed pursuant to his plea agreement. Bethea cites Farmer v. State, 772 N.E.2d 1025 (Ind.Ct.App.2002), and Roney v. State, 872 N.E.2d 192 (Ind.Ct.App.2007) in support of his argument that the injury to the victim can’t be used as an aggravating factor, since it is an essential element of a dismissed charge.

The legal basis for this line of case law begins with Hammons v. State, 493 N.E.2d 1250 (Ind.1986). Hammons was tried for murder, but found guilty by jury for the lesser included offense of voluntary manslaughter. During sentencing, the trial court repeatedly declared the error of the jury verdict, and that Hammons had in fact committed murder. The trial court imposed the maximum penalty for manslaughter. We reversed, holding the trial court’s sentencing was not merely an act of skepticism with the jury verdict, but was more like an act of compensation to make up for the jury verdict, which was tantamount to sentencing the defendant for the crime for which he was acquitted. Id. at 1253.

Out of Hammons arose a line of Court of Appeals cases which attempted to interpret and apply Hammons, the first being Conwell v. State, 542 N.E.2d 1024 (Ind.Ct.App.1989). Conwell had been charged with burglary as a Class B felony, but pled guilty, pursuant to a plea agreement, to burglary as a Class C felony, and left sentencing to be decided by the court. [Conwell Record p. 50.] The trial court sentenced Conwell to a term of eight years in the Indiana Department of Correction, with five years executed and three years suspended to probation. [Conwell Record p. 54.] Conwell argued the trial court improperly considered as an aggravator that Conwell burglarized a dwelling, the distinguishing element between the Class C and Class B felony burglary. [Conwell Record p. 54.] The Court of Appeals held that the sentencing judge could not find as an aggravator the fact that the burglary had occurred at a residence because that was the distinguishing element between the Class B and Class C offenses of burglary. Id. at 1025. In other words, the Court of Appeals found that since defendant did not plead guilty to the offense which included that element, the element could not be utilized to enhance the sentence of the lesser included offense.

Carlson v. State, 716 N.E.2d 469 (Ind.Ct.App.1999) is the next case in this progeny. Carlson is yet another case involving a plea agreement, and involves a defendant charged with dealing in cocaine. Carlson was charged in Count I with Class A felony dealing in cocaine, alleging possession with intent to deliver cocaine. Count II was charged as a Class B felony alleging actual delivery. Id. at 470. Pursuant to a plea agreement, the State dismissed the Class A felony and agreed to a sentence cap of fifteen years. Id. At sentencing, the trial court identified the amount of cocaine that Carlson possessed as an aggravating factor. The presentence investigation conducted by probation was entered into evidence, as was a sentencing memo prepared by defendant’s counsel. [Carlson Record p. 410-12.] The State presented evidence in the form of calling one of the investigative police officers to testify about his investigation. [Carlson Record p. 415-458.] The Court of Appeals held that the trial court may not attempt to sentence a defendant as if he had pled guilty to the greater offense by using the distinguishing fact as an aggravating factor. Id. at 473. The Court of Appeals analysis did not so much as discuss the Hammons case, merely citing to it in a string cite of the Conwell opinion it relied upon for its holding.

Farmer was the next case considered, and it involved a defendant who was charged with attempted murder, burglary resulting in bodily injury, intimidation, and resisting law enforcement. Farmer, 772 N.E.2d at 1026. The factual basis Farmer pled guilty to included the facts that Farmer entered the victim’s home and got into an argument. Farmer struck the victim from behind in the head several times and then began to strangle the victim to the point the victim turned blue in the face. Officers arrived, and ordered Farmer to stop choking the victim, but he did not until he was kicked twice in the face by officers. As Farmer was being restrained, he twice said he was still going to get the victim, and that this was not over. [Farmer Record p. 18-14.] Farmer pled guilty to attempted murder, and the State dismissed the remaining charges. At sentencing, the trial court considered the pre-sentence investigation report, as well as testimony from the victim and the defendant, each of whom testified about the incident. In sentencing Farmer, the trial court found as aggravators that the offense occurred in the victim’s home, that he threatened the victim, and that he disobeyed an officer’s command. The Court of Appeals held the facts that Farmer entered the victim’s home without permission, disobeyed the officer’s command to stop choking the victim, and threatened the victim are facts comprising the dismissed charges. The Court of Appeals held that if Farmer “were sentenced more harshly in reliance upon these facts, he would not receive the full benefit of his plea agreement.” Farmer, 772 N.E.2d at 1027.

Roney is the most recent case that traces its roots back to Hammons. It involved a robbery and murder. Roney pled guilty to murder, and the State agreed to dismiss the felony murder charge and not to file any additional charges relating to the incident. Roney, 872 N.E.2d at 197. The factual basis establishing Roney’s convictions included himself and three other friends driving to the victim’s apartment and waiting for him to return. They broke into the victim’s apartment and broke into his safe. Later, the victim came home and after wrestling, a gun went off, striking the victim. The victim was eventually tied up, and Roney hit the victim in the head with a fire extinguisher, leading to his death. [Roney Record p. 1-30.] At sentencing, the Court heard evidence from the Presentence Investigation Report, the victim’s mother, multiple statements from family, and finally a statement from Roney. [Roney Record p. 30-40.] Among the aggravating factors the trial court found were that Roney could have been charged with several additional offenses, such as robbery and criminal confinement. The Court of Appeals held that the trial court had effectively circumvented the plea agreement by considering uncharged conduct when the State had agreed to not file additional charges. Roney, 872 N.E.2d at 201. Again, Hammons was not cited, but Farmer and Carlson, relying on Ham-mons, were cited for this proposition.

The time has come for us to review this historical application of Hammons and determine whether or not Hammons was intended to apply or should apply in guilty plea cases.

“A criminal defendant has no constitutional right to engage in plea bargaining.” Coker v. State, 499 N.E.2d 1135, 1138 (Ind.1986). The State has no duty to plea bargain. Id. Furthermore, a defendant’s acceptance of a proposed plea bargain does not create a constitutional right to have the plea bargain specifically enforced. Id. However, a plea agreement is a contract, “an explicit agreement between the State and defendant,” which, if accepted by the trial court, is binding upon all parties. Griffin v. State, 756 N.E.2d 572, 574 (Ind.Ct.App.2001) (citing Smith v. State, 717 N.E.2d 239, 241 (Ind.Ct.App.1999)).

Each party bargains to include or exclude certain terms and each party receives substantial benefits by arriving at an agreement. Wright v. State, 700 N.E.2d 1153, 1155 (Ind.Ct.App.1998). “When a plea agreement rests in any significant degree on a promise by the prosecutor, so that the promise can be said to be part of the inducement or consideration for the plea, such promise must be fulfilled.” Id. “Because important due process rights are involved, plea negotiations must accord a defendant requisite fairness and be attended by adequate safeguards which insure the defendant what is reasonably due in the circumstances.” Epperson v. State, 530 N.E.2d 743, 745 (Ind.Ct.App.1988). “Promises which induce guilty pleas must be fulfilled in order to satisfy the volun-tariness of the guilty plea standard.” Ryan v. State, 479 N.E.2d 517, 519 (Ind.1985). The State’s failure to adhere to a promise that induced a guilty plea would constitute a breach of the plea agreement. Epperson, 530 N.E.2d at 745.

Bethea bargained for the dismissal of seven of the nine counts with which he was charged. He bargained to avoid a trial and the risk of seven potential guilty convictions on his record. Bethea, together with his counsel, made a risk assessment, balancing the evidence likely to be presented as well as the possibility of being found guilty on all nine charges with the sentencing possibilities accompanying such convictions. This included a Class A felony count of burglary resulting in bodily injury, three Class B felonies, two Class C felonies, and one Class D felony. The State bargained to ensure a certain conviction on two Class B felonies, Armed Robbery and Criminal Confinement. Once this plea agreement was accepted by the trial court, the four corners of this plea agreement encapsulated the defendant’s degree of criminal liability for which he could be convicted. This particular bargain set forth the crimes for which Bethea could be convicted and the maximum sentence he could receive. The written plea agreement did not limit what the State could offer as aggravating factors or what the defendant could submit as mitigating factors. In other words, it did not limit the sentencing evidence, only the maximum sentence.

The State could have bargained for a conviction on the Class A felony of burglary resulting in bodily injury and dismissed the remaining eight counts. The term of imprisonment for such a conviction would have been between twenty and fifty years, with an advisory sentence of thirty years. Ind.Code § 35-50-2-4. Instead, the Defendant received the benefit of pleading guilty to two Class B felonies with dismissal of the remaining seven counts. The Class B felony sentence has a range of between six and twenty years, with an advisory term of ten years. Id. § 35-50-2-5.

As Senior Judge Shepard wrote recently, “a defendant receives the full benefit of his bargain when multiple charges are dismissed in accordance with the agreement.” Sexton v. State, 968 N.E.2d 837, 841 (Ind.Ct.App.2012). Our opinion today seeks to clarify this issue for trial courts, and to eliminate the application to guilty pleas with plea agreements. Hammons was uniquely different than the cases decided by the Court of Appeals that followed in that Hammons did not involve a guilty plea. Our opinion today does not foreclose the possibility of the Defendant bargaining as to what can and cannot be potential aggravating and mitigating factors. It is well within the purview of contract law, and consequentially, as mentioned above, the law as it relates to plea bargains, for the Defendant to bargain and the State to accept a plea bargain that forecloses the possibility of the trial court using enhancements from the underlying charges that were dismissed, or from the original charges from which a lesser included plea is taken. However, if a plea bargain lacks such language, we hold it is not necessary for a trial court to turn a blind eye to the facts of the incident that brought the defendant before them. As we stated in Anglemyer v. State, “the nature and circumstances of the crime as well as the manner in which the crime is committed” is a valid aggravating factor. Anglemyer v. State, 868 N.E.2d at 492.

In this case, the court did not err by giving significant weight to the facts presented to it relating to the burglary and other dismissed charges. Although these facts share a relation with the elements of the dismissed Class A felony Burglary Resulting in Bodily Injury, the State’s obligations under the plea agreement were fulfilled upon dismissal of the seven remaining counts and it owed the Defendant no further duty to omit these facts from the aggravating circumstances consideration. Both the State and Defendant agreed to this plea bargain.

“[Sentencing is principally a discretionary function in which the trial court’s judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.2008) (citing Morgan v. State, 675 N.E.2d 1067, 1072 (Ind.1996)). “Indiana has never adopted a mechanical approach to sentencing.” Id. at 1224. Our holding today is in line with our history, and the spirit of Hammons. It has always been the case that

[W]hether we regard a sentence as appropriate at the end of the day turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case. Individual judgments as to the proper balance to be struck among these considerations will necessarily vary from person to person, and judges, whether they sit on trial or appellate benches, are no exception. There is thus no right answer as to the proper sentence in any given case.

Cardwell, 895 N.E.2d at 1224.

We therefore do not find ineffective assistance of appellate counsel. Bethea has not demonstrated clear error, and we are not left with a firm conviction that a mistake has been made. Bem-Yisrayl, 729 N.E.2d at 106.

Conclusion

A plea agreement is voluntarily entered into between the State and the Defendant. It is a contract and when accepted by the trial court is binding. The parties are free to negotiate the terms and conditions of the plea agreement, and can agree to limit or otherwise exclude what may be considered by the trial court judge. Unless the evidence is forbidden by terms of the plea agreement, the trial court judge may consider all evidence properly before him. Therefore, we hold that Hammons does not apply to cases involving plea agreements. The post-conviction court is affirmed.

DICKSON, C.J., and RUCKER, MASSA, and RUSH, JJ., concur.

      . At the first sentencing hearing in Hammons, the trial court made the following statement:
      As indicated, I was the trial Judge on this matter and while the jury did return a verdict of a lesser included on Count One, Manslaughter, rather than the Murder count, I feel there is ample evidence to justify a finding on the murder count itself. Therefore, Mr. Hammons, the Court is going to sentence you at this time to the custody of the Indiana Department of Correction on Count One, finding aggravation by reason that a reduced or the presumptive sentence would depreciate the seriousness of this particular offense, a period of twenty years.

        Hammons, 493 N.E.2d at 1251

      . We also summarily affirm the Court of Appeals resolution of Bethea's Appellate Rule 7(B) challenge to the appropriateness of the sentence. The Court of Appeals was correct in writing "Bethea’s arguments concerning Appellate Rule 7(B) review essentially mirror the arguments already addressed.” Bethea, 964 N.E.2d at 269. We conclude, as did the Court of Appeals, that "Bethea was not prejudiced by appellate counsel's failure to challenge his sentence pursuant to Appellate Rule 7(B).” Id.


author: MASSA, Justice.

text:
    Brandy L. WALCZAK, Individually and on Behalf of Those Similarly Situated, Appellant (Plaintiff below), v. LABOR WORKS-FORT WAYNE LLC, d/b/a Labor Works, Appellee (Defendant below).
    No. 02S04-1208-PL-497.
    Supreme Court of Indiana.
    March 13, 2013.

      Philip J. Gibbons, Jr., Andrew G. Jones, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Thomas M. Fisher, Solicitor General of Indiana, Heather Hagan McVeigh, Deputy Attorney General, Indianapolis, IN, Rick J. Ruble, Deputy Commissioner of Labor & General Counsel, Indianapolis, IN, Attorneys for Amicus Curiae the State of Indiana.
    Michael T. Yates, Ryan S. Ross, Fort Wayne, IN, F. Larkin Fore, Louisville, KY, Attorneys for Appellee.
   MASSA, Justice.

James Whitcomb Riley (1849-1916), our celebrated “Hoosier Poet,” is widely credited with the origination of the Duck Test; as he expressed it, “[w]hen I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.” Brandy Walczak successfully applied for employment at Labor Works, received job assignments and paychecks, and was never fired or laid off. Nevertheless, when she filed a class action lawsuit against Labor Works under the Indiana Wage Payment Act, Labor Works argued that day laborers like Walczak are involuntarily separated from the payroll at the end of every shift and thus required to proceed under the Wage Claims Act. Because we conclude Walczak had a reasonable expectation of continuing to receive job assignments from Labor Works on the day she filed her claim — in short, that Walczak passes the Duck Test — we hold she was not separated from the payroll for the purpose of the Wage Claims Act and may proceed with her claim as she filed it, under the Wage Payment Act.

Facts and Procedural History

A. Statutory Background

In 1933, the Indiana General Assembly enacted the Wage Payment Act, which required all Indiana employers to “pay each employee ... at least twice each month ... all wages earned to a date not more than ten days prior to the date of such payment.” 1933 Ind. Acts ch. 47, § 1. The statute applied to current employees as well as to employees who, either “permanently or temporarily,” “voluntarily leave [their] employment.” Id. Violations of the statute were punishable by liquidated damages, and employees who brought lawsuits to vindicate their claims could recover attorney’s fees. Id. at § 2. Although it has been subject to minor amendments, the Wage Payment Act exists in substantially this same form today. See Ind.Code § 22-2-5-1 et seq. (2007).

Six years later, the General Assembly created a similar remedy for employees who had been “separate[d] ... from the pay roll” or whose work had been “suspended] ... as the result of an industrial dispute.” 1939 Ind. Acts ch. 95, § 2. The Wage Claims Act required all Indiana employers to remit all unpaid wages to the former employee “within twenty-four hours of the time of separation,” or, “[i]n the event of the suspension of work, as the result of an industrial dispute,” “at the next regular pay day.” Id. Unlike the Wage Payment Act, however, the Wage Claims Act did not create a private right of action; rather, it created an administrative process. It imposed a duty upon the Commissioner of the Department of Labor “to enforce and to insure compliance with the provisions of this act, to investigate any violations of any of the provisions of this act, and to institute or cause to be instituted actions for penalties and forfeitures provided hereunder.” Id. at § 4. It also “authorized” the Commissioner “to take assignments of wage claims of less than one hundred dollars” and empowered him “to prosecute actions for the collection of such claims of persons ... who, in his judgment, have claims which are valid and enforceable in the courts.” Id. at § 5. Like the Wage Payment Act, the Wage Claims Act has been amended several times since its enactment, but these amendments have been largely cosmetic. See Ind.Code § 22-2-9-1 et seq. (2007).

So to summarize in shorthand, it fairly can be said that the Wage Payment Act applies to, among others, those who keep or quit their jobs, while the Wage Claims Act applies to those who are fired, laid off, or on strike. J Squared, Inc. v. Herndon, 822 N.E.2d 633, 640 n. 4 (Ind.Ct.App.2005).

B. Labor Works and Brandy Walc-zak’s Claim

Labor Works is a day labor service that maintains an office in Fort Wayne, Indiana. Its day labor employees are not required to report to work on any regular schedule. Rather, they receive job assignments on a day-to-day basis by coming into the Labor Works office and signing up to work. Assignments are not guaranteed, and if there is not enough available work, an employee may not receive an assignment even if she signed up for one.

Labor Works hired Brandy Walczak to work as a day labor employee on December 20, 2009. Walczak worked on various jobs as she was assigned to them, including packaging at a potato chip factory and general labor at a refractory contractor, a hospital laundry, and a hotel. She was paid by check at the end of each work day. Labor Works took deductions from Walc-zak’s gross pay for taxes, Social Security and Medicare, and any transportation and equipment that she used. Walczak worked on January 27, 2010, but did not sign up for work on January 28. On January 29, she signed up but did not receive a job assignment. Walczak did not work another job for Labor Works until February 2, when she signed up and received a job assignment. She continued periodically to accept job assignments from Labor Works until early March 2010.

Meanwhile, on February 1, 2010 — a day when she neither sought nor obtained a work assignment — Walczak filed a class action lawsuit under the Wage Payment Act against Labor Works seeking to recover unpaid wages. About nine months later, Labor Works moved for summary judgment, arguing Walczak’s claim properly arose under the Wage Claims Act because she was “separated from the payroll” within the meaning of Indiana Code § 22-2-9-2 at the time her complaint was filed. Thus, Labor Works contended, the trial court lacked jurisdiction to hear her claim; rather, she was required first to submit it to the Department of Labor. Walczak demurred, arguing the Wage Claims Act did not apply to her because she was never “fired.”

Labor Works submitted several affidavits in support of its motion. One, executed by Fort Wayne Branch Manager Carolyn Burton, describes the Labor Works employment and job assignment process in pertinent part as follows:

When a person who signs in for work is hired, he/she is hired to work for that day only. If the person seeking work with Labor Works comes back the next day seeking to be hired, that person may be hired to work doing the same or a different job, the person may be hired to work at a different client site altogether, or the person may not be hired at all depending on numerous factors, including without limitation the number of persons signing up for work at the Labor Works office, the number and type of assignments available that day, the requirements of the job (e.g. some jobs require certain skills or experience), and how the person performed on earlier assignments, to name some factors.

App. at 172. Nine other Labor Works employees executed affidavits reiterating Ms. Burton’s description of the employment relationship:

At the end of each day I work, I am paid by Labor Works for that day’s services. If I want to return the next day, I again have to go through the sign-up process and there is no guarantee that I will receive an assignment ... At the end of each work day, I know I no longer have a job and I know I have no obligation to show up for work the next day. I understand my employment is for one day and that is it.

App. at 186-203. In response, Walczak submitted excerpts from Ms. Burton’s deposition and various Labor Works employment documents, including a “Temporary Employee Application” App. at 114. On the application, Labor Works refers to itself as “Employer” and includes a “Certification and Agreement” that provides in pertinent part:

I understand that if I become an employee of Employer’s, only I, or Employer can terminate my employment. When my assignment ends, I must report to my Employer’s office for my next job assignment. Failure to accept my next job assignment will indicate that I have refused available work. Failure to report to Employer’s office and sign in early on the next working day following last completed job assignment, may affect my rights to any future unemployment claims.

App. at 123. On a document entitled “Employer Work Rules,” Labor Works warns employees that if they leave a job assignment early, “[their] services may no longer be needed.” App. at 126. Ms. Burton testified that in order to be eligible to go out on an assignment, Labor Works employees must pass a breath alcohol test, and an employee who fails the test three days in a row “would not be eligible to accept assignments.” App. at 117.

The trial court agreed with Labor Works and granted its motion. Walczak appealed, and the Court of Appeals reversed. Walczak v. Labor Works-Fort Wayne, LLC, 966 N.E.2d 642, 643 (Ind.Ct.App.2012). Citing Johnson v. Celebration Fireworks, Inc., 829 N.E.2d 979 (Ind.2005), the court held that “[t]he determination of whether, when she filed her complaint in the instant action, Walczak was separated from the payroll by Labor Works within the meaning of the Wage Claims [Act] is a question of fact.” Walczak, 966 N.E.2d at 647. That question, the court said, “is precisely the type of fact-sensitive inquiry that should be resolved in the first instance by the administrative agency”— meaning, in this case, the Department of Labor. Id. at 647. Accordingly, it remanded the case to the trial court “with instructions to dismiss Walczak’s complaint.” Id. at 648.

We granted transfer, thereby vacating the opinion below. Walczak v. Labor Works-Fort Wayne LLC, 974 N.E.2d 475 (Ind.2012) (table); Ind. Appellate Rule 58(A).

Standard of Review

It is well-established that we review a trial court’s grant of summary judgment de novo. Freidline v. Shelby Ins. Co., 774 N.E.2d 37, 39 (Ind.2002). Although Labor Works styled its motion as one for summary judgment, that style does not match the substance of Labor Works’s argument. As in other aspects of this case, it is the substance rather than the style that must control.

Labor Works asserted it was “entitled to summary judgment as a matter of law based on lack of subject matter jurisdiction.” App. at 47. The trial court agreed and stated in its order that “,[p]laintiff was separated from payroll by Labor Works” and “[t]he law of Indiana is clear that the Trial Court does not have jurisdiction over a Plaintiff who has separated from the employer’s payroll.” App. at 23. In substance, therefore, Labor Works’ motion was not a motion for summary judgment pursuant to Trial Rule 56(C), but rather a motion to dismiss for lack of subject matter jurisdiction pursuant to Trial Rule 12(B)(1), and we review it accordingly.

To determine the appropriate standard of review for a trial court’s grant of a pretrial motion to dismiss under Trial Rule 12(B)(1), we must begin by asking (1) “whether the trial court resolved disputed facts,” and if so, (2) whether it conducted an evidentiary hearing or instead ruled on a paper record. GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind.2001). We answer the first question in the affirmative, noting that the parties have presented conflicting accounts of various Labor Works policies and employment practices. Indeed, as in Magness, “several facts before the trial court were in dispute and just as important even for those facts not in dispute, the parties disagree about the inferences to be drawn from those undisputed facts.” Id. As to the second question, we note that the trial court did conduct a hearing in this case, but that it was apparently an “oral argument,” App. at 10, rather than an “evidentiary hearing” in which “the court typically engages in its classic fact-finding function, often evaluating the character and credibility of witnesses.” Magness, 744 N.E.2d at 401. Thus, we conclude the trial court ruled on a paper record. As such, we are no less able than the trial court to determine whether it has subject matter jurisdiction, and we review its factual findings as well as its legal conclusions de novo. Id.

The Court Must Determine Which Statutory Scheme Applies

As a threshold matter, Labor Works urges us to conclude that the Department of Labor, rather than the trial court, must determine whether Walczak voluntarily left her employment and thus is entitled to bring her claim under the Wage Payment Act or was involuntary separated from the payroll and thus is required to bring her claim under the Wage Claims Act. Both Walczak and the State, writing on the Department’s behalf, argue the trial court is the proper forum for the resolution of that question.

“To the extent the issue turns on statutory construction, whether an agency possesses jurisdiction over a matter is a question of law for the courts.” hid. Dep’t of Env. Mgmt. v. Twin Eagle LLC, 798 N.E.2d 839, 844 (Ind.2003). In Twin Eagle, we found that a real estate developer could bring a declaratory judgment action against the Indiana Department of Environmental Management without exhausting his administrative remedies because the issue he raised — whether IDEM had the authority to regulate “waters of the state” — -was jurisdictional. Id. at 849. Just so here;. the issue — -whether Walczak is covered by the Wage Payment Act and thus may bring her case directly to court or by the Wage Claims Act and thus must first exhaust the administrative process available to her through the Department of Labor — is jurisdictional. The resolution of that issue depends on what the drafters of the two statutes meant when they used the language “voluntarily leaves employment,” Ind.Code § 22 — 2—5—1 Ob), and “separates any employee from the pay-roll,” Ind.Code § 22-2-9-2(a). That is an issue of statutory construction dispositive on the question of jurisdiction, and it therefore lies squarely within the judicial bailiwick. Indeed, trial courts have ably resolved this very question in the past — even when it presented itself as a mixed question of fact and law rather than a pure question of law. See, e.g., J Squared, Inc. v. Herndon, 822 N.E.2d 633, 640 n. 4 (Ind.Ct.App.2005) (noting that “[although there was conflicting evidence regarding whether [the claimant] left [his employment] voluntarily or involuntarily, the trial court found, and [the employer] does not dispute on appeal, that [the employer] fired [the claimant].”).

The primary case Labor Works cites in support of its argument, Johnson v. Celebration Fireworks, Inc., 829 N.E.2d 979 (Ind.2005), is readily distinguishable. In Johnson, a dispute arose between the State Fire Marshal and a seller of fireworks that operated one Indiana warehouse and ninety-six retail locations. Id. at 981. The seller maintained certain wholesaler requirements applied only to its warehouse and not to each of its retail locations, and it sued for a declaratory judgment to that effect. Holding that the trial court had no jurisdiction over the seller’s claim, we said

[u]nlike the state agency in Twin Eagle, there is absolutely no question in the present case of the Fire Marshal’s legal authority to license fireworks wholesalers; the question here is at most a mixed question of law and fact — and, quite likely in our view, a pure question of fact — as to whether each of the individual outlets selling fireworks is itself a wholesaler.

Id. at 988. If the outlets were not wholesalers but instead retailers, they still would have fallen within the Fire Marshal’s jurisdiction. Id. at 981 (citing Ind. Code § 22-11-14-7 (2007), which requires fireworks retailers to obtain a permit from the Fire Marshal); see also Ind.Code § 22-ll-14-5(a) (2007) (“The state fire marshal shall remove at the expense of the owner, all stocks of fireworks or combustibles possessed, transported, or delivered in violation of this chapter.”). Johnson was not really about jurisdiction at all, but about exhaustion. Here, in contrast, the issue is truly jurisdictional; if Walczak was involuntarily separated from the payroll, the trial court has no jurisdiction over her claim, but if she voluntarily left her employment, the trial court does have jurisdiction. Johnson, thus, does not apply.

Finally, if we held otherwise, we effectively would add an exhaustion requirement to the Wage Payment Act — an exhaustion requirement that, as our Court of Appeals has noted, is wholly absent from the statutory text. E & L Rental Equip., Inc. v. Gifford, 744 N.E.2d 1007,1010 (Ind.Ct.App.2001) (“[A] plaintiff bringing a claim under I.C. § 22-2-5-2 is not required to first exhaust any available administrative remedies prior to filing suit.”). Claimants covered by the Wage Payment Act thus would be unable to invoke their statutory right to proceed directly to court. That is not what the General Assembly intended, and even if we wished to do so, we have no authority to modify its statutory scheme.

Walczak May Bring Her Claim Under the Wage Payment Act

Labor Works predicated its motion to dismiss on the theory that the trial court lacked subject matter jurisdiction because Walczak failed to exhaust available administrative remedies before filing her claim. “As a general proposition, the party challenging subject matter jurisdiction carries the burden of establishing that jurisdiction does not exist.” GKN Co. v. Magness, 744 N.E.2d 397, 404 (Ind.2001). A plaintiff is only required to exhaust her administrative remedies under the Wage Claims Act if, at the time she filed her complaint, she had been involuntarily separated from her employment. Hollis v. Defender Sec. Co., 941 N.E.2d 536, 540 (Ind.Ct.App.2011). This case therefore turns on the meaning of “separate[d] from the pay-roll” as it is used in the Wage Claims Act. That is a question of statutory interpretation, and we will answer it now.

As when we construe any statute, our primary goal is to effectuate legislative intent. Shepherd Props. Co. v. Int’l Union of Painters & Allied Trades. Dist. Council 91, 972 N.E.2d 845, 852 (Ind.2012). We presume the General Assembly intended the statutory language to be applied logically and consistently with the statute’s underlying policy and goals, id., and we avoid construing a statute so as to create an absurd result. St. Vincent Hosp. & Health Care Ctr. Inc. v. Steele, 766 N.E.2d 699, 704 (Ind.2002).

Although the precise question before us — what the drafters of the Wage Claims Act meant by “separate[d] from the payroll” — is one of first impression for us, other federal and state courts have frequently assumed without deciding that the answer is “fired.” See, e.g., Treat v. Tom Kelley Buick Pontiac GMC, Inc., 646 F.3d 487, 490 (7th Cir.2011) (“The language of the Indiana Code suggests, and the Indiana state courts have repeatedly confirmed, that the Payment Statute provides an avenue for relief to employees seeking unpaid wages who voluntarily leave their employment or who remain employed and whose wages are overdue. The Claims Statute, on the other hand, applies to employees seeking unpaid wages after their employer has fired them.” (citing Steele, 766 N.E.2d at 705)); J Squared, Inc. v. Herndon, 822 N.E.2d 633, 640 n. 4 (Ind.Ct.App.2005) (“There is some confusion among the parties whether the Wage Claims Statute or the Wage Payment Statute applies. The former applies where, as here, an employee is fired, and the latter applies where an employee quits”); see also Thomas v. H & R Block E. Enters., Inc., 1:08-CV-00667-DFH-DML, 2009 WL 2856485 (S.D.Ind. Aug. 28, 2009) aff'd, 630 F.3d 659 (7th Cir.2011) (noting the Wage Claims Statute “applies when an employee is fired.”); Gavin v. Calcars AB, Inc., 938 N.E.2d 1270, 1271 (Ind.Ct.App.2010) (same).

We find the reasoning in these opinions persuasive, and our holding today is a modest extension of it. When an employee who did not leave her job on her own terms makes a claim for wages, it makes sense to subject her claim to administrative review before it may proceed directly to court. See Quimby v. Becovic Mgmt. Grp., Inc., 962 N.E.2d 1199, 1201 (Ind.2012) (Sullivan, J., dissenting from denial of trans. (“I note that the purpose (or at least the effect) of the administrative exhaustion requirement under the Wage Claims Statute is to create a barrier to court.”)). Such claims are more likely to be motivated by animus than claims made by current employees or former employees who left by choice. On the other hand, an employee who knows that she may soon resume her employment presumably would have less reason to feel animus. Thus, in order to properly effectuate legislative intent as best we can discern it, we hold that a day labor employee is not “separate[d] from the pay-roll” for the purpose of the Wage Claims Act unless that employee has no immediate expectation of possible future employment with the same employer.

Here, Walczak clearly did have such an immediate expectation. Indeed, although she did not seek a job assignment from Labor Works on the day she filed her complaint, she successfully sought assignments on the following four days, and she continued to work for Labor Works on a sporadic basis for the next four weeks. We also note that the Labor Works employment agreement clearly distinguishes between termination (“I understand that if I become an employee of Employer’s, only I, or Employer can terminate my employment.”) and reassignment (‘When my assignment ends, I must report to my Employer’s office for my next job assignment.”).

Taken together, all of these circumstances lead us to conclude Walczak was not “separate[d] from the pay-roll” and need not comply with the requirements of the Wage Claims Act. Labor Works may say that all its employees are terminated after every shift and rehired the next day, like phoenixes rising daily from the ashes, but its employees, unlike those who have really been “separate[d] from the pay-poll,” have a realistic expectation that if they show up the next day, they may receive a job assignment. In other words, Walczak is more duck than phoenix.

What is more, Labor Works asks us to adopt a rule that would permit Walczak to bring her claim straight to court if she had filed it on January 27 or February 2, when she worked shifts at Labor Works, but not on February 1, when she did not work a shift. Such a rule might conceivably operate to strip any employee working on a temporary, on-call, or as-needed basis — a substitute teacher, for instance — of her right to proceed directly to court. The General Assembly surely did not intend that result.

Ultimately, we believe the drafters of the Wage Payment Act intended the statute to benefit the entire Indiana workforce, including day labor employees. Day labor is not a newcomer to Indiana’s economy, and the drafters of the Wage Payment and Wage Claims Acts were likely aware of its role in the state’s employment landscape. See, e.g., Indiana Bridges Historic Context Study, 1830s-1965 INDOT CC No. 050108, M & H Architecture, Inc. (Feb. 2007) (citing “Report of the Indiana State Highway Commission,” in Year Book of the State of Indiana for the Year 1931 1076-1077 (Indianapolis, Ind.: William B. Burford, 1932)) (stating that in 1932, the ISHC “employed 8,000 men on an hourly basis for day-labor”). Therefore, day labor employees are no less entitled to the statutory protections that the General Assembly has provided than any other Hoosier employees.

Conclusion

We hold that Brandy Walczak, on the day she filed her complaint, had not been separated from the Labor Works payroll. She may thus proceed in the trial court with her claim under the Wage Payment Act. We therefore reverse the trial court’s dismissal of Walczak’s claim and remand this case for further proceedings consistent with this opinion.

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

      . Michael Heim, Exploring Indiana Highways: Trip Trivia 68 (2007). Others attribute the Duck Test to labor leader and noted anticommunist James B. Carey. See The Yale Book of Quotations 131 (Fred R. Shapiro, ed., 2006) (quoting Carey as saying, in the September 3, 1948 New York Times, "A door-opener for the Communist party is worse than a member of the Communist party. When someone walks like a duck, swims like a duck, and quacks like a duck, he’s a duck.”).
      All questions of origination aside, the Duck Test is a classic example of Hoosier pragmatism, and it enjoys wide judicial acceptance. See, e.g., Lake v. Neal, 585 F.3d 1059, 1059 (7th Cir.2009) (“Joseph Lake, the plaintiff in this suit, flunks the Duck Test. He says, in effect, that if it walks like a duck, swims like a duck, and quacks like a duck, it sure as heck isn't a duck.” (emphasis in original)).

      . See also P.L. 350-1971, § 1, 1971 Ind. Acts 1352; P.L. 144-1986, § 8-9, 1986 Ind. Acts 1267-68; P.L. 143-1988, § 1, 1988 Ind. Acts 1805; P.L. 216-1989, § 2, 1989 Ind. Acts 1598; P.L. 8-1993, § 273-74, 1993 Ind. Acts 1942-43; P.L. 51-2007; §§ 1-4, 2007 Ind. Acts 1235-36; P.L. 220-2011, § 360, 2011 Ind. Acts 3094.

      . See also 1965 Ind. Acts ch. 68, § 1; 1969 Ind. Acts ch. 62, § 1; P.L. 351-1971, § 1, 1971 Ind. Acts 1353; P.L. 127-1984, § 1, 1984 Ind. Acts 1116; P.L. 144-1986, §§ 13-16, 1986 Ind. Acts 1268-69; P.L. 8-1993, § 276, 1993 Ind. Acts 1943; P.L. 165-2007, § 2-3, 2007 Ind. Acts 2443-44; P.L. 220-2011, § 361, 2011 Ind. Acts 3095.

      . Ms. Button described this document as a "preemployment application.” App. at 114.

      . The precise content of the hearing remains a mystery to us because Walczak did not request a transcript in her Notice of Appeal. In her case summary, she stated that she did not request a transcript “because no eviden-tiary record was made in regards to the motion for summary judgment.” Appellant’s Case Summary at 3. The trial court’s description of the hearing as "oral argument” comports with Walczak's assessment, App. at 10, and although Labor Works apparently disagrees that the trial court decided the case "without the benefit of an evidentiary hearing,” it does not point to any evidence presented at the hearing beyond that contained in the Appellant’s Appendix. Br. in Resp. to Pet. to Trans, at 3-4. Thus, we find the hearing was not an "evidentiary hearing” as we used the term in Magness.

      Our record on appeal consists of "the Clerk’s Record and all proceedings before the trial court ... whether or not transcribed or transmitted to the Court of Appeal.” Ind. Appellate Rule 27. We encourage parties to present the fullest possible record for our consideration.

      . The Department of Labor — an administrative agency that comes before us arguing for less authority rather than more — is an "odd duck” indeed, under the circumstances. We commend the Department on its respect for the constitutionally mandated separation of powers, and we find its assessment of its own jurisdiction very persuasive.

      . Indeed, day labor employment significantly predates the founding of our nation. See, e.g., 8 The Original Catholic Encyclopedia 189 (describing the life of St. Isidore the Labourer (c. 1070-1130), "the patron of peasants and day-labourers.”).

      . As we discussed in the body of our opinion, the trial court styled its dismissal as a grant of summary judgment in Labor Works’s favor. Because it operated as a dismissal pursuant to Trial Rule 12(B)(1), however, we name it accordingly; we, like Mr. Riley, call this bird a duck.