author: BRADFORD, Judge.

text:
    Lorenzo REID and Larry Blake, a/k/a Larry Reid, Appellants-Petitioners, v. STATE of Indiana, Appellee-Respondent.
    No. 89A01-1208-PC-377.
    Court of Appeals of Indiana.
    April 8, 2013.

      Stephen T, Owens, Public Defender of Indiana, Kathleen Cleary, John Pinnow, Deputy Public Defenders, Indianapolis, IN, Attorneys for Appellants.
    Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

Appellants-Petitioners Lorenzo Reid and Larry Blake seek post-conviction relief from their convictions and respective fifty-four and forty-four year sentences for murder and Class C felony attempted robbery. On September 21, 1990, Reid, Blake, and an unidentified third man were involved in an attempted robbery of a liquor store that resulted in the death of the owner of the liquor store. Following separate jury trials, both Reid and Blake were convicted of murder and Class C felony attempted robbery, and their convictions were affirmed on direct appeal. Reid and Blake subsequently requested post-conviction relief, and the instant appeal stems from the denial of these requests. Concluding that neither Reid nor Blake are entitled to post-conviction relief, we affirm the judgment of the post-conviction court.

FACTS AND PROCEDURAL HISTORY

At around 10:30 p.m. on September 21, 1990, Reid, Blake, and an unidentified male entered a liquor store in Richmond and attempted to rob the owner. Reid v. State, 719 N.E.2d 451, 453 (Ind.Ct.App.1999). “The owner exchanged gunfire with the three men and was shot three times during the encounter.” Id. “He later died.” Id.

In 1991, the State charged Reid and Blake (collectively, “Appellants”) with murder, felony murder, and Class A felony attempted robbery. Appellants were separately tried before juries in 1993, and each was convicted of murder and Class C felony attempted robbery. Reid was sentenced to an aggregate term of fifty-four years, and Blake was sentenced to an aggregate term of forty-four years. In 1994, Blake’s convictions were affirmed on direct appeal in a memorandum decision. Blake v. State, 89A01-93-10-CR-341, 643 N.E.2d 991 (Ind.Ct.App. Nov. 22, 1994). On November 17, 1999, Reid’s convictions were affirmed on direct appeal. Reid, 719 N.E.2d at 459.

Appellants separately filed pro se petitions for post-conviction relief (“PCR”) in 2000. They filed a joint motion for post-conviction DNA testing in 2006, as well as a second joint request in 2007. Both amended their PCR petitions in 2011. The post-conviction court conducted a joint hearing on Appellants’ petitions on March 6 and 7, 2012. On August 16, 2012, the post-conviction court issued written findings and conclusions in an order denying Appellants’ PCR petitions. This appeal follows.

DISCUSSION AND DECISION

Post-conviction procedures do not afford the petitioners with a super-appeal. Williams v. State, 706 N.E.2d 149, 153 (Ind.1999). Instead, they create a narrow remedy for subsequent collateral challenges to convictions, challenges which must be based on grounds enumerated in the post-conviction rules. Id. “If an issue was known and available, but not raised on direct appeal, it is waived.” Timberlake v. State, 753 N.E.2d 591, 597 (Ind.2001) (citing Rouster v. State, 705 N.E.2d 999, 1003 (Ind.1999)). Petitioners who have been denied PCR appeal from a negative judgment and, as a result, face a rigorous standard of review on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind.2001); Collier v. State, 715 N.E.2d 940, 942 (Ind.Ct.App.1999), trans. denied.

Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745 (Ind.2002). Therefore, in order to prevail, petitioners must establish their claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition, petitioners must convince this court that the evidence, taken as a whole, “leads unmistakably to a conclusion opposite that reached by the post-conviction court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that its decision will be disturbed as contrary to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind.Ct.App.2004), trans. denied. The post-conviction court is the sole judge of the weight of the evidence and the credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004). We therefore accept the post-conviction court’s findings of fact unless they are clearly erroneous but give no deference to its conclusions of law. Id.

I. Loss or Destruction of Certain Evidence Following Conviction

Appellants contend that the post-conviction court erred in denying their request for relief because the State violated their rights under the Due Process Clause by its postconviction loss or destruction of certain evidence. In making this contention, Appellants rely on the decisions of the United States Supreme Court in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), and California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). Youngblood and Trombetta stand for the proposition that a defendant’s due process rights are violated by the State’s failure to preserve, or the destruction of, evidence prior to trial if the materially exculpatory value of the evidence was apparent before the destruction or the evidence was potentially exculpatory and was destroyed in bad faith. Youngblood, 488 U.S. at 57-59, 109 S.Ct. 333; Trombetta, 467 U.S. at 488-89, 104 S.Ct. 2528. However, the United States Supreme Court’s subsequent decision in District Attorney’s Office for the Third Judicial District v. Osborne, 557 U.S. 52, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009), indicates that an individual does not have a right under the Due Process Clause to access lost or destroyed evidence during post-conviction proceedings.

In Osborne, the defendant was convicted of kidnapping, assault, and sexual assault and his convictions were affirmed on direct appeal. 557 U.S. at 58, 129 S.Ct. 2308. The defendant subsequently sought PCR. In his request for relief, the defendant requested certain postconviction DNA testing. Id. at 59, 129 S.Ct. 2308. Eventually, the Supreme Court granted certio-rari to decide whether a defendant has a right under the Due Process Clause to obtain postconviction access to the State’s evidence for additional testing. Id. at 61, 129 S.Ct. 2308. The Supreme Court determined that the defendant did not have a right to obtain post-conviction access to the State’s trial evidence for additional testing, holding that the Due Process Clause does not require that certain recognized pre-trial rights be extended to protect a defendant’s postconviction liberty interests. Id. at 72-74, 129 S.Ct. 2308. In making this holding, the Supreme Court recognized that a criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man and that a holding to the contrary would lead to a plethora of questions relating to whether there is a constitutional obligation to preserve certain evidence following trial for potential future testing, and, if so, for how long. Id. at 68, 74, 129 S.Ct. 2308.

Here, Appellants argue that their due process rights were violated as a result of the post-conviction loss or destruction of certain DNA evidence. The evidence was available for testing and was tested prior to trial. Appellants had access to the evidence as well as the test results prior to trial, and the results of these tests, which excluded Appellants as potential sources for the DNA, were admitted at trial. In light of the Supreme Court’s opinion in Osborne, we conclude that, like the defendant in Osborne, Appellants do not have a Due Process right to obtain post-conviction access to the State’s evidence for additional testing. See id. at 72-74, 129 S.Ct. 2308.

Furthermore, even if we were to assume that the State did have some obligation to save certain evidence, Appellants’ claim still fails. Appellants claim that the destroyed evidence was materially exculpatory rather than merely potentially useful evidence. We disagree. It is undisputed that prior tests on the evidence in question indicated that the DNA did not belong to either of the Appellants. Upon presenting the evidence at trial, the State conceded that the DNA did not belong to either of the Appellants, but rather argued that it likely belonged to their unknown accomplice. The triers-of-fact considered the fact that the DNA excluded Appellants as possible sources, but, in light of the other evidence presented by the State, found Appellants guilty of murder and attempted robbery.

In seeking PCR, Appellants do not claim that additional testing on the evidence could be any more exculpatory of their being potential sources of the DNA than the tests completed prior to trial. Instead, Appellants assert their innocence and claim that their rights under the Due Process Clause were violated by the loss or destruction of the evidence because they are unable to use newly developed DNA testing technology to find the individual responsible for the crimes. However, even assuming that additional testing could result in finding a match of the DNA evidence obtained at the crime scene, such a discovery would only be potentially useful as it would likely only identify Appellants’ unknown accomplice and would not, in and of itself, prove that Appellants had not committed the crimes for which they were convicted. See generally Terry v. State, 857 N.E.2d 396, 408 (Ind.Ct.App.2006) (providing that the defendant did not have a right under the Due Process Clause to complete additional tests on the evidence post-conviction because further tests on the evidence could have established, at most, that neither defendant nor anyone connected to him owned the evidence, and, while helpful to support the defense’s theory, would not exculpate the defendant), irons, denied. In addition, Appellants did not show that the State acted in bad faith in losing or destroying the evidence in question. Having concluded that the evidence in question was at most potentially exculpatory and that Appellants failed to demonstrate that the evidence was lost or destroyed in bad faith, we further conclude that Appellants would not be entitled to relief under the Supreme Court’s holdings in Youngblood and Trombetta, even if they controlled. Accordingly, Appellants’ claim relating to the loss or destruction of certain evidence fails.

II. Brady Claim

Appellants also contend that they are entitled to a new trial because the State failed to disclose before trial that one of its witnesses, Ronald Maiden, had a prior criminal conviction for robbery. The State, for its part, argues that Appellants are not entitled to relief because they have failed to demonstrate that Maiden had a prior robbery conviction. The State claims that the record merely demonstrates that Maiden was incarcerated after being charged with robbery, and is silent as to whether Maiden was ever convicted of the charged offense. Alternatively, the State argues that Appellants were not prejudiced by the State’s alleged failure to disclose information about Maiden’s prior criminal history.

Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) held that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady applies to evidence impeaching the credibility of State’s witnesses. See United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (citing Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)). The United States Supreme Court has recently summarized three components óf a Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (8) prejudice must have ensued. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

Carroll v. State, 740 N.E.2d 1225, 1229 (Ind.Ct.App.2000), trans. denied.

Again, the State argues that Appellants are not entitled to the requested relief because they have failed to demonstrate that Maiden was ever convicted of robbery. The evidence before the post-conviction court included the testimony of a police detective who indicated that he thought that Maiden might have been involved in a burglary or a robbery as a juvenile, but that he could not be certain. The evidence also included an Indiana State Police record that indicated that Maiden had been arrested by the Richmond Police Department for armed robbery on February 6,1969, and that Maiden was ordered to the State Reformatory at Pendleton on July 8,1969, on the charge of armed robbery. Nothing in the record indicates whether Maiden was ordered to the State Reformatory pending trial or following a criminal conviction. However, even assuming, without deciding, that the record is sufficient to establish that Maiden did have a prior robbery conviction, we conclude that Appellants’ Brady claim fails because Appellants have failed to satisfy all three components set forth by the Supreme Court in Strickler.

As for the first Strickler component, the State does not dispute that the alleged criminal conviction was an impeachable offense. Robbery was considered an impeachable conviction at the time of Appellants’ criminal trials. Ashton v. Anderson, 258 Ind. 51, 63, 279 N.E.2d 210, 217 (1972). As such, trial counsel for Appellants could have attempted to impeach Maiden by questioning him about the robbery conviction, and the conviction would fall within the ambit of Brady and its progeny. See generally Carroll, 740 N.E.2d at 1229 (providing that impeachable convictions fall within the ambit of Brady and its progeny).

As for the second Strickler component, Appellants presented evidence before the postconviction court that the State knew, or could have known, about Maiden’s criminal history but did not disclose the information to their trial counsel. “The availability of information is not measured in terms of whether the information is easy or difficult to obtain but by whether the information is in the possession of some arm of the state.” Id. (internal quotations omitted). Here, because the State could have discovered information relating to Maiden’s potential criminal history by completing a search of State Police records, we conclude that Maiden’s record was at the State’s disposal and that the State failed to disclose it. As such, the second Strickler component has been satisfied. See id.

Having determined that the first two Strickler components have been satisfied, we must determine “whether the nondisclosure was prejudicial to [Appellants], i.e., whether the suppressed evidence was material.” Id.

Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Bagley, 473 U.S. at 682, 105 S.Ct. 3375. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Id. In proving materiality, it is not necessary for the defendant to show that “after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict.” Kyles v. Whitley, 514 U.S. 419, 434-35, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Rather, the defendant must show that the “favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id. at 435, 115 S.Ct. 1555 (footnote omitted).

Id. at 1229-30.

In Carroll, we considered whether a six-year-old misdemeanor conviction for false informing or reporting was material. Id. at 1230. Upon review, we concluded that in light of all of the evidence presented at trial, the impeaching value of the six-year-old misdemeanor conviction was negligible, at best. Id. In coming to this conclusion, we noted that the testimony at trial and arguments by counsel did not portray the witness as a highly credible witness or otherwise upstanding citizen. Id. In addition, the State presented additional evidence of the defendant’s guilt and the witness in question’s testimony was cumulative of this additional evidence. Id. In light of the independent evidence of guilt, combined with the State’s presentation of the witness as a less-than-sterling witness, we concluded that the State’s nondisclosure of the six-year-old misdemeanor conviction did not satisfy the prejudice prong of Strickler. Id.

Similarly, in the instant matter, we conclude that in light of all of the evidence presented at trial, the impeaching value of the alleged robbery conviction is negligible, at best. The record demonstrates that the victim provided a statement to responding police officers before he died, in which he stated that he thought that the individuals who shot him had been in the liquor store approximately an hour before the robbery and shooting and that they had purchased a bottle of cognac. The victim told Maiden that he had sold a bottle of cognac, and Maiden testified that after checking the liquor store’s inventory, he was able to confirm that a bottle of cognac had been sold on the day in question. In addition to the victim’s and Maiden’s testimony, the testimony of two other witnesses placed Appellants at or near the liquor store at the time of the robbery and shooting, and a broken gold bracelet that was linked to one of the Appellants was found just outside the liquor store. Maiden’s testimony corroborated the victim’s statement to police that he had sold a bottle of cognac to the robbers earlier in the evening before the attempted robbery and shooting, and was merely cumulative of the other evidence linking Appellants to the crime scene on the day in question.

Moreover, the alleged conviction at issue in the instant matter was a twenty-four-year-old robbery conviction that appears to stem back to actions taken by Maiden as a teenager. Generally, the importance given to the remoteness of or the lapse of time from the witness’s prior conviction is a question for the trier of fact to determine as to the weight of the evidence and credibility of the witness. See Robinson v. State, 446 N.E.2d 1287, 1292 (Ind.1983). However, in light of the independent evidence of Appellants’ guilt, we cannot say that there is a reasonable probability that the outcome of Appellants’ trials would have been different had counsel for Appellants attempted to impeach Maiden with questions about a potential criminal act that occurred at least twenty-four years before Appellants committed the underlying criminal actions. Moreover, nothing in the record indicates that Maiden committed any other impeachable offense in the twenty-four intervening years, and we find it unlikely that a jury would find Maiden’s testimony to be incredible merely because he may have potentially committed a single criminal offense as a teenager.

In sum, the independent evidence combined with the remoteness of Maiden’s potential criminal conduct leads us to conclude that the State’s nondisclosure of a twenty-four-year-old potential robbery conviction fails to establish the prejudice prong of Strickler. Accordingly, Appellants’ Brady claim fails.

III. Ineffective Assistance of Trial Counsel

Appellants also contend that they received ineffective assistance from their trial counsel. Appellants claim that each of their respective trial counsel was ineffective for failing to elicit expert testimony during trial regarding the bracelet found at the crime scene and the DNA evidence. The right to effective counsel is rooted in the Sixth Amendment to the United States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind.2006). “ ‘The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results.’ ” Id. (quoting Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper function of the adversarial process that the trial court cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052.

A successful claim for ineffective assistance of counsel must satisfy two components. Reed v. State, 866 N.E.2d 767, 769 (Ind.2007). Under the first prong, the petitioners must establish that counsel’s performance was deficient by demonstrating that counsel’s representation “fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id. We recognize that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or most effective way to represent a client and therefore under this prong, we will assume that counsel performed adequately, and will defer to counsel’s strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585 (Ind.2002). Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. Id. Under the second prong, the petitioners must show that the deficient performance resulted in prejudice. Reed, 866 N.E.2d at 769. The petitioners may show prejudice by demonstrating that there is “a reasonable probability (ie. a probability sufficient to undermine confidence in the outcome) that, but for counsel’s errors, the result of the proceeding would have been different.” Id.

The petitioners’ failure to satisfy either prong will cause the ineffective assistance of counsel claim to fail. See Williams, 706 N.E.2d at 154. Therefore, if we can resolve a claim of ineffective assistance of counsel based on lack of prejudice, we need not address the adequacy of counsel’s performance. See Wentz v. State, 766 N.E.2d 351, 360 (Ind.2002).

A. Gold Bracelet

Appellants claim that each of their trial counsel was ineffective for failing to call John Kanable, a manager at a jewelry store, to testify at trial regarding the gold bracelet found at the crime scene. Under certain circumstances, a failure to call a useful witness can constitute deficient performance. See Brown v. State, 691 N.E.2d 438, 447 (Ind.1998). However, both the Indiana Supreme Court and this court have previously held that “a ‘decision regarding what witnesses to call is a matter of trial strategy which an appellate court will not second-guess.’ ” Johnson v. State, 832 N.E.2d 985, 1003 (Ind.Ct.App.2005) (quoting Brown, 691 N.E.2d at 447), trans. denied; see Wisehart v. State, 693 N.E.2d 23, 48 n. 26 (Ind.1998) (stating that the decision of which witnesses to call is “the epitome of a strategic decision”).

Appellants claim that Kanable’s testimony would have been useful because it could have rebutted the testimony of the State’s witnesses who testified about the gold bracelet and whose testimony linked the bracelet to Reid. During both criminal trials, the State presented the testimony of Kim Seals and Eugene Milliron. Seals, an employee of the J.B. Robinson jewelry store at the Salem Mall in Dayton, Ohio, testified that Reid had purchased a bracelet similar to the one found at the crime scene in 1988 or 1989, and that he had subsequently brought the bracelet in for repair. Seals further testified that the report generated prior to the repair described the bracelet as fourteen karat gold and that Reid estimated its value to be approximately $1200. In addition, Milli-ron, a subcontractor for J.B. Robinson who completed many of the Salem Mall store’s requested repairs, testified that he recognized the bracelet found at the crime scene and that he was 90% certain that it was the same one that he had previously repaired. Milliron testified that goldsmiths typically have their own techniques of doing different types of repairs, and, as a result, there is generally a little bit of difference between each goldsmith’s work, and that he recognized the repair work on the bracelet in question as his work.

Appellants claim that they were prejudiced by their respective trial counsel’s failure to call Kanable as a witness during their criminal trials because Kanable’s testimony was such that it would have likely affected the outcome of their trials. Again, Appellants claim that Kanable’s testimony would have been helpful because it could have rebutted Seals’s and Milliron’s testimony. Specifically, Appellants claim that Kanable would have testified that subsequent testing conducted in 2005 revealed that although the bracelet was marked as being made with fourteen karat gold, it actually contained gold of a lesser quality. Appellants claim that Kanable would have also testified that he estimated the bracelet’s worth as only $350 to $399 in 1990 and that he would be unable to identify the individual who completed the repair.

Upon review, we cannot say that Kana-ble’s proffered testimony is sufficient to demonstrate a reasonable probability, ie. a probability sufficient to undermine confidence in the outcome of the criminal proceedings, that, but for counsels’ alleged error, the result of the proceedings would have been different. Kanable’s proffered testimony was nothing more than his opinion as to the quality and value of the bracelet in question and his statement that he could not identify the individual who completed the repair on the bracelet. Kanable did not have any specific personal knowledge about the bracelet in question, and, as such, his testimony stating his general opinions would not likely carry more weight with the fact-finders than the testimony of those who had personal knowledge about the bracelet.

For example, while it might be difficult or even impossible for Kanable to identify Milliron’s work, we cannot say that Kana-ble’s testimony to this effect is such that would discredit Milliron’s testimony that he was able to identify his own work and that he was 90% certain that he had completed the prior repair work on the bracelet found at the crime scene. Likewise, while Kanable’s opinion regarding the value of the bracelet was substantially different than that included in Seals’s testimony, the proffered value of the bracelet stated during Seals’s testimony represented the value that was provided by Reid when he brought the bracelet in for repair and did not appear to represent her own evaluation of the bracelet’s value. We do not find it unusual that the owner of an item would value that item at a higher worth than an independent expert evaluating the item. In short, Kanable’s proffered testimony would not seem to discredit either Seals’s or Milliron’s testimony regarding their history with Reid or their familiarity with the bracelet in question. Rather, Kanable’s testimony merely provides his personal opinion regarding the bracelet’s quality and value and his claimed inability to identify the individual who completed the prior repair.

Based on our review of Kanable’s proffered testimony, we conclude that Appellants have failed to prove that they were prejudiced by their respective trial counsel’s alleged error because they have failed to demonstrate a reasonable probability that the outcome of their trials would have been different had their respective trial counsel called Kanable as a witness during trial. As such, Appellants have failed to prove that they received ineffective assistance of trial counsel in this regard.

B. DNA

Appellants also claim that they received ineffective assistance of trial counsel because each of their respective trial counsel failed to call a DNA expert at trial to testify about the DNA evidence found at the crime scene. Again, a small sample of DNA evidence was recovered from the crime scene. Testing conducted on the DNA evidence prior to trial excluded both of the Appellants as well as the victim as possible sources of the DNA evidence. The parties stipulated to these test results at trial, and the test results were admitted into evidence and were considered by the fact-finders. Appellants have failed to demonstrate what testimony an expert witness would have been able to provide in addition to the already stipulated-to fact that neither of the Appellants was a possible source for the DNA. Even assuming trial counsel would have called an expert witness to testify about this fact, such testimony would merely be cumulative of the already stipulated-to test results. As such, Appellants have failed to demonstrate that they were prejudiced by this alleged error of their respective trial counsel or that they received ineffective assistance of trial counsel in this regard.

CONCLUSION

In sum, Appellants’ due process rights were not violated by the post-conviction loss or destruction of certain evidence, Appellants were not entitled to a new trial because the State failed to disclose before trial that one of its witnesses had a possible prior criminal conviction, and Appellants did not receive ineffective assistance of trial counsel. Accordingly, we affirm the post-conviction court’s denial of Appellants’ petitions for relief.

The judgment of the post-conviction court is affirmed.

RILEY, J., and BROWN, J., concur.

      . Although not relied on by Appellants, we note that Indiana Code section 35-38-7 et seq. grants a petitioner the opportunity to seek post-conviction testing of DNA evidence. Indiana Code section 35-38-7 et seq., however, would not provide Appellants the right to conduct the requested DNA testing because they have not presented prima facie proof of each of the statutory factors set forth in Indiana Code section 35-38-7-8. Indiana Code section 35-38-7-8 requires the petitioner to present prima facie proof of the following:
      (1) That the evidence sought to be tested is material to identifying the petitioner as:
      (A) the perpetrator of; or
      (B) an accomplice to;
      the offense that resulted in the petitioner’s conviction.
      (2) That a sample of the evidence that the petitioner seeks to subject to DNA testing and analysis is in the possession or control of either:
      (A) the state or a court; or
      (B) another person, and, if this clause applies, that a sufficient chain of custody for the evidence exists to suggest that the evidence has not been substituted, tampered with, replaced, contaminated, or degraded in any material aspect.
      (3) The evidence sought to be tested:
      (A) was not previously tested; or
      (B) was tested, but the requested DNA testing and analysis will:
      (i) provide results that are reasonably more discriminating and probative of the identity of the perpetrator or accomplice; or
      (ii) have a reasonable probability of contradicting prior test results.
      (4)A reasonable probability exists that the petitioner would not have:
      (A) been:
      (i) prosecuted for; or
      (ii) convicted of; the offense; or
      (B) received as severe a sentence for the offense;
      if exculpatory results had been obtained through the requested DNA testing and analysis.
      Again, the DNA evidence at issue in the instant matter was previously tested and excluded Appellants as potential sources for the DNA. Further, while Appellants argue that additional testing is necessary to prove the identity of the perpetrator, such identification would not necessarily be exculpatory to the Appellants, but rather would likely support the State’s theory that Appellants were aided in committing the underlying crimes by an unknown accomplice. The fact-finders considered the fact that the Appellants were not possible sources of the DNA evidence found at the crime scene but, in light of the other evidence presented at trial, found the Appellants guilty of the charged offenses.

      . Indiana Rule of Evidence 609, which came into effect after the completion of Appellants’ criminal trials seems to reach the same conclusion with regard to the admissibility and relevance of Maiden's alleged criminal conviction. With respect to the admissibility and relevance of a remote criminal conviction, Indiana Rule of Evidence 609 provides as follows:
      (b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or, if the conviction resulted in confinement of the witness then the date of the release of the witness from the confinement unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.


source: Caselaw Access Project

author: NAJAM, Judge.

license: Public Domain

text:
    Kevin PERRY, Appellant, v. UNEMPLOYMENT INSURANCE REVIEW BOARD OF the INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and Indiana Department of Workforce Development UI Claims Adjudication Center, Appellees.
    No. 93A02-1208-EX-649.
    Court of Appeals of Indiana.
    April 8, 2013.

      Robert A. Hicks, Macey Swanson and Allman, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Stephanie Rothenberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellees.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Kevin Perry appeals the order of the Review Board (“Review Board”) of the Indiana Department of Workforce Development, affirming the findings and conclusions of the Administrative Law Judge (“ALJ”) and terminating Perry from the Trade Adjustment Assistance (“TAA”) training program. Perry presents three issues for review, which we consolidate into a single issue, namely, whether the Review Board’s decision affirming the termination of Perry’s participation in the TAA training program is erroneous.

We affirm.

FACTS AND PROCEDURAL HISTORY

The relevant facts as found by the ALJ and adopted by the Review Board are as follows:

FINDINGS OF FACT: The Administrative Law Judge makes the following findings of fact: The Claimant worked for Columbus Components. The Claimant separated from the job on June 30, 2009. On September 1, 2009, the Department of Labor certified workers for federal benefits in the form of Trade Adjustment Assistance (TAA) and Trade Readjustment Allowance (TRA) in certification # 70779. Workers were potentially eligible for job search allowance, relocation allowance, training benefits, and an income support in the form of TRA.
The Claimant submitted an application and the Dislocated Worker Unit[] subsequently approved [Perryj’s application to participate in the TAA program. The training program [that Perry] participated in was the Accounting program within the Accounting and Business Administration Department at Ivy Tech Community College. [Perry] attended courses at the Columbus, IN campus that is nineteen (19) miles from [Perry]’s home. The start date of the training was May 24, 2010[,] and scheduled to end on December 21, 2012. The approved training application makes no mention of [Perry]’s ability to take online courses. [Perry] also signed a Participant Agreement. Part five (5) of the agreement obligates [Perry ] not to deviate from the program or curriculum without the written consent of any Work-One representative.
On November 7, 2011, [Perry] requested, through his assigned Case Worker, Nancy Steinkamp, a modification in the training program. [Perry] requested to attend all courses online during the Spring 2012, Summer 2012, and Fall 2012 semesters. The Dislocated Worker Unit handles modification requests on a case-by-case basis. In making its decision, the Dislocated Worker Unit defers [to] and considers the University’s opinion on whether a claimant who applies for such modification will be successful in completing the program.
Marian Canada chairs the Accounting and Business Administration department. On November 9, 2011, Ms. Stein-kamp emailed Ms. Canada to obtain Ms. Canada’s opinion on whether [Perry] could be successful with online class attendance. Ms. Canada did not feel comfortable agreeing to allow [Perry] to take classes online.
Prior to [Perry] and Ms. Steinkamp submitting the modification request, [Perry] registered for the spring 2012 semester with all online courses. Ms. Steinkamp informed [Perry] on October 25, 2011[,] that [he] could not register for online classes until the Dislocated Worker Unit made a final decision on the request. However, [Perry] did not change the courses. On January 25, 2012, the Department issued a warning letter informing [Perry] that his TAA benefits were at risk and under review. The letter informed [Perry] that [he] modified the training plan without authorization and that any non-approved deviation from the original plan may place Trade-related benefits at risk. By this time, the class offerings for the Spring Semester 2012 were filling up at the Columbus campus. Course offerings were available at the locations greater than fifty (50) miles from [Perry]’s home. [K.P.] could have enrolled in those courses at other campuses and apply for travel assistance to cover associated costs to travel to various campuses. However, [he] remained enrolled in the online courses.
The Department issued a Request for TAA Exit on February 21, 2012. The Department exited [Perry] from the TAA program for deviating from the approved training plan in violation of the criteria set forth in 20 CFR 617.
CONCLUSIONS OF LAW: This case is not about whether the Department and the Dislocated Worker Unit allows funding for [a] TAA participant who choose[s] to complete the training program through online education. The Dept, of Labor Training and Employment Guidance Letter (TEGL) 09-05 provides:
Under the TAA program, the Department [of Labor] has determined that distance learning may be considered “classroom training” when the degree of certificate received is equivalent to what would have been received if the training had been conducted on campus. This interpretation expands the types of approvable classroom training to include distance learning, where a participant completes all or part of an educational or vocational program in a location far away from the institution hosting the training program. For distance learning, the final degree or certificate conferred must be equivalent in the content and standard of achievement to the same program completed on campus or at an institutional training location. When the above condition is met, the Department will recognize that the training is of the type that normally takes place in an interactive classroom setting; therefore, it satisfies the requirement of the regulations and statutes. This is a new standard that replaces the four conditions in TEGL 7-00.
In addition, in order for distance learning to be approved, all criteria for training approval found at 20 DFR 617.22 must be met in the same way as in any other training program.

(Emphasis added). TEGL 0905, December 12, 2005.

The issue in this case is whether [Perry] is eligible to continue to participate in the TAA program after a modification request was submitted and subsequently denied by the Dislocated Worker Unit, and [Perry] deviated from the approved training plan.
Eligibility for Federal Trade Adjustment Assistance (TAA) funding is governed by 20 C.F.R. § 617.22. 20 C.F.R. § 617.22 confers discretion to the state agency to determine how the program will be administered. [Perry] signed a Participant Agreement form issued by the Department agreeing to not deviate from the program or curriculum without the written consent of any WorkOne representative. The participant agreement is clear that failure to fully participate as outlined in the participant agreement might result in the loss of benefits or repayment of the benefits received. [K.P.] did not receive permission to take all online courses. Further, Ms. Steinkamp specifically informed [Perry that] he was to wait to register for online courses until after the Dislocated Worker Unit approved [Perry]’s modification request. In fact, the Department denied the request, and [Perry] failed to make the necessary changes to stay in compliance with the original training plan.
Accordingly, the Department properly exited [Perry] from the .training program due to [his] unauthorized modification to the training program and failing to meet the criteria contained in 20 CFR § 617.22.

Appellant’s App. at 1-3 (some emphasis in original, citations omitted). Perry now appeals.

DISCUSSION AND DECISION

“Reviews of trade adjustment assistance determinations are ‘subject to review in the same manner and to the same extent as determinations and redetermina-tions under the applicable State law, and only in that manner and to that extent.’ ” R.D. v. Review Bd. of Ind. Dep’t of Workforce Dev., 941 N.E.2d 1063, 1067 (Ind.Ct.App.2010) (quoting 20 C.F.R. § 617.51(a)). “In other words, a denial of training benefits is reviewable in state court as if it had been a denial of conventional unemployment benefits.” Id. (citing 19 U.S.C. § 2311(d) (1988)). Our supreme court has explained the standard of review in conventional unemployment benefit cases:

The Indiana Unemployment Compensation Act provides that “[a]ny decision of the review board shall be conclusive and binding as to all questions of fact.” However, the statute also includes explicit provision for judicial review in language virtually identical to that found in provisions for review of other administrative agency actions. Indiana Code § 22-4-17-12(f) provides that when the Board’s decision is challenged as contrary to law, the reviewing court is limited to a two part inquiry into: (1) “the sufficiency of the facts found to sustain the decision”; and (2) “the sufficiency of the evidence to sustain the findings of facts.” Under this standard courts are called upon to review (1) determinations of specific or “basic” underlying facts, (2) conclusions or inferences from those facts, sometimes called “ultimate facts,” and (3) conclusions of law. Courts uniformly recognize that propositions of law, such as the construction of the statute, are for the court to determine....
Review of the Board’s findings of basic fact are subject to a “substantial evidence” standard of review. In this analysis the appellate court neither reweighs the evidence nor assesses the credibility of witnesses and considers only the evidence most favorable to the Board’s findings.
The Board’s conclusions as to ultimate facts involve an inference or deduction based on the findings of basic fact. These questions of ultimate fact are sometimes described as “questions of law.” They are, however, more appropriately characterized as mixed questions of law and fact. As such, they are typically reviewed to ensure that the Board’s inference is “reasonable” or “reasonable in light of [the Board’s] findings.”

Tiller v. Review Bd. of the Ind. Dep’t of Workforce Dev., 974 N.E.2d 478, 481 (Ind.Ct.App.2012) (quoting McClain v. Review Bd. of the Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314, 1316-17 (Ind.1998) (citations omitted; alterations original)).

Perry contends that the Review Board erred when it affirmed the ALJ’s findings and conclusions regarding his termination from the TAA training program. The facts are not in dispute. K.P. was approved for the TAA training program and executed a participant agreement. The TAA program was administered through the Indiana Department of Workforce Development (“DWD”) and the Columbus WorkOne office. Perry was approved to obtain an “Associate of Applied Science” degree from Ivy Tech, specifically in “Accounting.” Exhibits at 41A. The Participant Agreement provides, in relevant part:

The above training program [of “31 weeks + WP week”] has been approved, and a contract is being executed on your behalf with the training provider. As the beneficiary of this agreement and contract, you agree to the following:
1. I agree to undertake this program in good faith with the intention of successfully completing the specified training program.
4. I agree to meet with my local Work-One Staff monthly during school to report progress and/or difficulties. I agree to provide a schedule during the first week of each semester and a grade report within two weeks of the completion of each semester.
5. I agree not to deviate from the program or curriculum without the written consent of any WorkOne representative. I am not permitted to drop classes. I must be enrolled as a full[-]time student.
* * ⅜
8. I have received a copy of the student handbook and [Trade Readjustment Allowance] benefit rights overview and agree to comply with all program rules as outlined.

Exh. at 42. Perry was also given a TAA Student Handbook (“Handbook”). The Handbook distinguished classroom training from employer-based training. With regard to Classroom training, which “may include Remedial Trainingf,]” Exh. at 89, the Handbook provides, in relevant part:

Classroom Training
Classroom training is instruetor[-]led •training. Approved Classroom training includes the costs of tuition, course fees, required books and supplies, and other items/services mandated/itemized by the training institution for all/any student (not just your instructor)....
Distance (Learning) Training
The U.S. Department of Labor (US-DOL) permits distance learning (e.g. online) when the degree or certificate received is equivalent to traditional classroom training.
When considering Distance (Learning) Training, as an option, keep in mind your responsibility to coordinate with your distance learning providers and your WorkOne Counselor to ensure that all parties understand the specific requirements or milestones of the distance learning program with respect to “attendance” and grading — including maintaining full-time status (when mandated), monthly reporting and validation of plan’s completion date. Failure to do so may place all related benefits at risk.

Exh. at 89-90.

The ALJ found that Perry’s WorkOne Case Manager, Steinkamp, had informed him on October 25, 2012, that he could not register for online courses until after he had filed a request to modify his training plan and he had received approval for that modification request. However, at that time, Perry had already registered for online courses for the Spring semester of 2012. And he did not change his registration to classroom courses after talking with Steinkamp in October. On January 25, 2012, the Department sent a letter to Perry, notifying him that his TAA benefits were “at-risk and under review” because, as he had been informed by telephone, he had, “without authorization, ... modified [his] training plan.” Exh. at 45. Classroom courses on campuses greater than fifty miles from Perry’s home were still available, and Perry could have applied for travel assistance to cover travel costs, but he remained enrolled in the online courses. On February 21, 2012, the Department issued a Request for TAA Exit on the ground that Perry had “[mjodified [his] program without authorization” by enrolling in online courses without prior authorization. Exh. at 76. The evidence in the record supports these findings, and the findings support the determination that Perry modified his training program without prior authorization and that such was a proper basis for termination from the TAA program.

Perry disputes the conclusion that his enrollment in online training courses constituted a modification of his training plan so as to require prior authorization. In support he cites Training and Employment Guidance Letter (“TEGL”) 9-05. That directive, issued in 2005 by the Department of Labor, provides in part:

Under the TAA program, the Department [of Labor] has determined that distance learning may be considered “classroom training” when the degree of certificate received is equivalent to what would have been received if the training had been conducted on campus. This interpretation expands the types of ap-provable classroom training to include distance learning, where a participant completes all or part of an educational or vocational program in a location far away from the institution hosting the training program. For distance learning, the final degree or certificate conferred must be equivalent in the content and standard of achievement to the same program completed on campus or at an institutional training location. When the above condition is met, the Department will recognize that the training is of the type that normally takes place in an interactive classroom setting; therefore, it satisfies the requirement of the regulations and statutes. This is a new standard that replaces the four conditions in TEGL 7-00.
In addition, in order for distance learning to be approved, all criteria for training approval found at 20 DFR 617.22 must be met in the same way as in any other training program.

Appellant’s App. at 2 (citing TEGL 9-05) (emphasis in original); see also http://wdr. doleta.gov/directives/artach/TEGL09-05. pdf (last visited March 19, 2013).

The directive issued by the Department of Labor in TEGL 09-05 provides that online instruction may be considered classroom training. However, the language in TEGL 09-05 is in terms of “distance learning, where a participant completes all or part of an educational or vocational program in a location far away from the institution hosting the training program.” Appellant’s App. at 2 (citing TEGL 9-05) (emphasis in original); see also http://wdr. doleta.gov/directives/attach/TEGL09-05. pdf (last visited March 19, 2013). Here, there is evidence that Perry could have participated in interactive classroom training within an easy distance from his home had he timely registered for such classes. And even after he had been notified that his TAA benefits were at risk, classroom courses were still available within a reasonable distance from his home, but Perry maintained his enrollment in the online courses. As noted by the ALJ and affirmed by the Review Board, the issue presented is not whether online coursework is permissible under certain circumstances in the TAA program. Rather, the issue is “whether Perry was eligible to continue to participate in the TAA program after a modification request was submitted and subsequently denied by the Dislocated Worker Unit and [Perry had] deviated from the approved training plan.” Appellant’s App. at 2. Here, the evidence supports the findings, and the findings support the conclusion, that Perry deviated from his approved training program without prior authorization. Thus, we cannot say that the Review Board erred when it affirmed his termination from the TAA program.

Perry also contends that the DWD erred when it denied his request to deviate from his approved TAA training program. But, as explained above, Perry modified his training plan without prior authorization and made no attempt to revise his registration to be in compliance with the approved plan even after Steinkamp advised him to do so well before the semester started. On these facts, and as explained above, we cannot say that the Department of Workforce Development erred when it denied his modification request.

Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.

      . Although the parties used Perry’s initials in their briefs, the parties used full names in the administrative proceedings below. And there is no evidence in the record that any party to this appeal made an "affirmative request pursuant to Administrative Rule 9(G)(1.2)” to exclude from public access the identities and information confidential under Indiana Code Section 22-4-19-6 and the rule. Recker v. Review Board, 958 N.E.2d 1136, 1138 n. 4 (Ind.2011). Thus, we use the parties’ names.

      . The Dislocated Worker Unit is the state agency administering the TAA program.

      . In its brief, the Review Board bases its argument in part on TEGL 07-00. That directive was rescinded and replaced by TEGL 09-05. See http://wdr.doleta.gov/directives/ attadvTEGL09-05.pdf (last visited March 19, 2013).


author: VAIDIK, Judge.

text:
    Halden MARTIN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 73A01-1207-CR-300.
    Court of Appeals of Indiana.
    April 8, 2013.
    Rehearing Denied June 19, 2013.

      John D. Fierek, Voyles, Zahn & Paul, P.A., Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Halden Martin appeals his conviction for Class A misdemeanor dangerous operating a vehicle while intoxicated. He appeals arguing that the trial court erred in denying his Criminal Rule 4(C) motion for discharge because his trial occurred more than one year after he was charged and arrested. Because the days that count toward the Rule 4(C) period exceed 365, we conclude that the trial court should have granted Martin’s motion for discharge. We therefore reverse the trial court and remand for vacation of his conviction.

Facts and Procedural History

In the early morning hours of July 17, 2010, Shelbyville Police Department Officer Jamie Rolls pulled over Martin, who lived in Knoxville, Tennessee, on 1-74 in Shelby County after Martin left Indiana Live Casino. Martin tailgated a semi, crossed over the centerline several times, and crossed the fog line. Martin, who admitted to the officer that he had been at the casino for several hours and had been drinking, failed three field-sobriety tests. Martin, however, refused to submit to a chemical breath test. Martin was arrested and transported to the Shelby County Jail, where a search warrant was obtained for his blood. As it turned out, the State Department of Toxicology did not return Martin’s blood-test results for nearly eight months.

On the same day as his arrest, the State charged Martin with Class A misdemeanor dangerous operating a vehicle while intoxicated. Appellant’s App. p. 12. An initial hearing was held on July 19, 2010, and Martin appeared in custody and without counsel.

Martin hired a Shelbyville attorney and filed motions to continue the pretrial conferences that had been set for October 6, 2010, and then November 17, 2010, both of which the trial court granted. Id. at 2, 23, 24, 25, 26. Martin moved to continue the October 6 pretrial conference because an offer was just received and he needed to discuss it with counsel and he was unable to travel to Indiana due to a work emergency. Martin moved to continue the November 17 pretrial conference because additional time was needed to get his blood-test results and he was unable to find transportation to Indiana.

On December 15, 2010, the trial court continued Martin’s pretrial conference due to court congestion. Id. at 2 (a jury trial was scheduled in another case). On February 3, 2011, the trial court continued Martin’s pretrial conference because the courthouse was closed for “inclement weather.” Id. The trial court reset Martin’s pretrial conference for March 2. Id.

On March 2, 2011, the blood-test results still were not in. So, Martin filed his third motion to continue because additional time was needed to get his blood-test results, he would miss two days of work and have to seek lodging in a hotel room, and it would be a hardship for him to reappear until his blood-test results were available for review. Id. at 27. The trial court granted Martin’s continuance and reset the pretrial conference for April 6. Id. at 2, 28.

In the meantime, the State Department of Toxicology sent Martin’s blood-test results to the prosecutor’s office on March 9, 2011. Martin’s results were 0.09 gram of alcohol per 100 milliliters of blood. Id. at 29. Accordingly, on March 22, the State filed an additional count, Count II, Class C misdemeanor operating a vehicle with an alcohol concentration equivalent to at least 0.08 gram of alcohol but less than 0.15 gram of alcohol per 100 milliliters of blood. Id. at 30-82. The trial court scheduled an initial hearing on Count II for April 6. Id. at 33.

But on April 6, 2011, Martin’s attorney appeared in court and requested his fourth continuance, which the trial court granted, thereby resetting the initial hearing on Count II to May 4. Id. at 3. The reason for this continuance does not appear in the record.

The initial hearing was held on May 4, 2011, at which time a pretrial conference was scheduled for June 1. Id. Martin, however, failed to appear at the June 1 pretrial conference, and a warrant was issued for his arrest. Id. On July 25, Martin’s Shel-byville attorney withdrew, with Indianapolis attorney John Fierek having entered his appearance the week before. Id. at 3, 34, 35. Martin appeared in custody and with his new counsel before the trial court on August 10, at which time the trial court released him on the bond previously posted. Id. at 4. The trial court set the matter for a jury trial on September 27, with the final pretrial conference on September 7. Id.

Immediately following the August 10, 2011, hearing, the State filed a motion to convert the jury trial to a bench trial, since Martin had not requested a jury trial. Id. at 38-39. The trial court converted the jury trial to a bench trial and set it for September 13. Id. at 4.

The pretrial conference was held on September 7, 2011, at which time Martin filed his jury demand. Id. at 5, 49-50. The trial court vacated the bench trial and reset the jury trial for September 27. Id. at 5.

The following day, September 8, 2011, the State filed its Supplemental Notice of Discovery Compliance in which it notified the trial court that it had learned of “additional items subject to discovery and has provided defense counsel” with a copy of the State Department of Toxicology’s amended toxicology report dated August 24, 2011. Id. at 51. In this same filing, the State notified the trial court and defense counsel that it had learned of an additional witness from the State Department of Toxicology, Cheryl Anderson. Id.

Because he needed additional time to depose Anderson, Martin filed his fifth motion to continue the September 27, 2011, trial. Id. at 53. Anderson reanalyzed Martin’s blood sample and issued an amended toxicology report dated August 24, 2011, because the original employee who analyzed Martin’s blood sample and issued the March 2011 toxicology report left her job at the Department. Martin explained that the State just added Anderson to its witness list on September 8 (even though he did not receive the list until September 12). Id. at 51. However, on September 7, the day before the State added Anderson to its list, the trial court held a pretrial conference at which the parties agreed to a deposition date of September 13 for three of the State’s witnesses. Id. at 53-54. But now, Martin alleged, it was too late to schedule Anderson’s deposition for that date. The trial court granted Martin’s motion to continue and reset the jury trial for November 15, with the final pretrial conference on November 4. Id. at 61.

When Anderson did not appear for her October 28 scheduled deposition in Marion County even though a “Subpoena Ad Testificandum ” was sent to her via certified mail, Martin filed his sixth motion to continue the November 15, 2011, trial. Id. at 63. Martin said that the State Department of Toxicology notified him that Anderson was “unavailable with work commitments” on October 28. Id. Accordingly, Martin said that due to Anderson not appearing for the scheduled deposition it was “not now possible for [him] to properly prepare for the current Jury Trial setting. [He] will need additional time to reschedule[ ] the deposition o[f] the State’s witness who analy[z]ed [his] blood sample.” Id. at 64. The trial court granted Martin’s motion and reset the jury trial for January 24, 2012, with the final pretrial conference on January 13. Id. at 65.

When Anderson did not appear for her December 27 scheduled deposition in Marion County even though a “Subpoena Ad Testificandum ” was sent to her via certified mail, Martin filed his seventh motion to continue the January 24, 2012, trial. Id. at 66. Again, Martin said that the State Department of Toxicology notified him that Anderson was “unavailable.” Id. Accordingly, Martin said that due to Anderson not appearing for the scheduled deposition it was “not now possible for [him] to properly prepare for the current Jury Trial setting. [He] will need additional time to reschedulef ] the deposition o[f] the State’s witness who analy[z]ed [his] blood sample.” Id. at 67. He noted that a deposition had been rescheduled for February 15 at 10:00 a.m. and Anderson had been served with a Subpoena Ad Tes-tificandum via certified mail. Id. The trial court granted Martin’s motion and reset the jury trial for March 27 with the final pretrial conference on March 16. Id. at 68.

At the March 16, 2012, pretrial conference, Martin filed a motion for discharge pursuant to Indiana Criminal Rule 4(C) asserting that 608 days had passed since his July 17, 2010, arrest and “at least (365) days are chargeable to the State of Indiana.” Id. at 69. Martin also requested his eighth and final continuance, which the trial court granted, resetting the jury trial to April 24, 2012. Id. at 7. The trial court gave the State seven days to file a response to Martin’s motion for discharge, and the State timely filed a response. See id. at 79-87. On March 26, the trial court issued an order denying Martin’s motion for discharge. See id. at 88-92. The trial court found numerous delays attributable to Martin because of his “pattern” of asking for continuances, his failure to appear, and his failure to actively prepare his case. Id. at 91.

On April 18, 2012, the State requested a continuance, and the trial court reset the jury trial to June 12. Martin objected “in order to preserve his rights under Indiana Criminal Rule Rule 4(C)” but was “aware that by the State’s and the Court’s calculation!; ] [that] this trial setting is within the time limits of Criminal Rule 4(C).” Id. at 93.

Thereafter, Martin waived his right to a jury trial, and the trial court held a bench trial on June 12, 2012. The State presented Officer Rolls as its sole witness. The State’s exhibits consisted of the search warrant for Martin’s blood draw (State’s Ex. 1) and the amended August 2011 toxicology report from the State Department of Toxicology issued by Anderson (State’s Ex. 2). Martin stipulated to the admission of the amended toxicology report. Tr. p. 11. Martin presented no evidence and did not cross-examine Officer Rolls.

The trial court found Martin guilty of Count I and dismissed Count II as a “related count.” Appellant’s App. p. 95. The trial court sentenced Martin to 365 days, with all but 30 days suspended to probation. Martin was immediately taken into custody.

Martin now appeals.

Discussion and Decision

Martin contends that the trial court erred in denying his Criminal Rule 4(C) motion for discharge because his trial occurred more than one year after he was charged and arrested. In relevant part, the Rule provides:

(C) Defendant Discharged. No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule. Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time. Any defendant so held shall, on motion, be discharged.
(F) Time periods extended. When a continuance is had on motion of the defendant, or delay in trial is caused by his act, any time limitation contained in this rule shall be extended by the amount of the resulting period of such delay caused thereby.

We review a trial court’s ruling on a Criminal Rule 4(C) motion for abuse of discretion. Curtis v. State, 948 N.E.2d 1143, 1149 (Ind.2011).

Criminal Rule 4(C) “places an affirmative duty on the State to bring a defendant to trial within one year of being charged or arrested, but allows for extensions of that time for various reasons.” Cook v. State, 810 N.E.2d 1064, 1065 (Ind.2004). The one-year period is extended by any delay due to: (1) a defendant’s motion for a continuance; (2) a delay caused by the defendant’s act; or (3) congestion of the court calendar or emergency. Curtis, 948 N.E.2d at 1149; Cook, 810 N.E.2d at 1065; Isaacs v. State, 673 N.E.2d 757, 762 (Ind.1996). “[W]hen a defendant takes action which delays the proceeding, that time is chargeable to the defendant and extends the one-year time limit, regardless of whether a trial date has been set at the time or not.” Cook, 810 N.E.2d at 1066-67. “A defendant extends the one-year period by seeking or acquiescing in delay resulting in a later trial date.” Pelley v. State, 901 N.E.2d 494, 498 (Ind.2009), reh’g denied. “The objective of the rule is to move cases along and to provide the defendant with a timely trial, not to create a mechanism to avoid trial.” Brown v. State, 725 N.E.2d 828, 825 (Ind.2000).

Here, the record shows that Martin moved for seven continuances before filing his Criminal Rule 4(C) motion for discharge on March 16, 2012, and then moved for his eighth continuance in that same hearing. In denying Martin’s motion for discharge, the trial court found that 230 days counted toward the Rule 4(C) period; the State does not challenge this calculation on appeal. Appellant’s App. p. 90. The trial court then charged four periods of delay to Martin: (1) October 6, 2010, to December 15, 2010, because Martin caused the delay by continuing pretrial conferences; (2) March 2, 2011, to May 4, 2011, because Martin caused the delay by continuing pretrial conferences; (8) June 1, 2011, to August 10, 2011, because of Martin’s failure to appear; and (4) September 27, 2011, to March 26, 2012, because Martin’s motions to continue based on his asserted difficulties in scheduling Anderson’s deposition resulted from his failure to actively prepare his ease. In order to determine whether the trial court erred in denying Martin’s motion for discharge, we decide whether the time not attributable to Martin’s delays, court congestion, or emergency exceeds 365 days. See Curtis, 948 N.E.2d at 1150 (“Thus, for ease of analysis, we decide whether the time not attributable to defendant’s delays, court congestion, or emergency exceeds 365 days.”). We start with the 230 days the trial court counted toward the Rule 4(C) period, which the State does not challenge on appeal.

A. October 6, 2010, to December 15, 2010

Martin filed a motion to continue the October 6 pretrial conference because (1) “[a]n offer was just received in this matter and additional time is needed in which to discuss it with the defendant” and (2) Martin was “unable to travel to Indiana today for a hearing due to an emergency at work.” Appellant’s App. p. 23. The trial court continued the pretrial conference to November 17. The trial court charged the delay from October 6 to November 17 to Martin because he requested the continuance. Id. at 89-90.

Martin claims it was error for the trial court to charge him with the delay because a defendant does not abandon his right to be tried within one year simply because he engages in informal plea negotiations with the State. Martin relies on Leek v. State, 878 N.E.2d 276 (Ind.Ct.App.2007). But Leek does not hold that if a defendant bases his motion to continue on plea negotiations, the resulting delay cannot be charged to him. In Leek, there was an eleven-month delay that was unexplained by any CCS entries. Id. at 278. The defendant did not file a motion to continue; rather, he requested a change-of-plea hearing and then took no action to delay the trial during the eleven-month delay. Id. at 279. This case is different. Martin filed a motion to continue because (1) an offer “was just received” and counsel needed to discuss it with Martin (not the State) and (2) Martin had a work “emergency” and could not travel to Indiana. Appellant’s App. p. 23 (emphasis added). Given these circumstances, the trial court properly charged the 43-day delay from October 6 to November 17 to Martin. Thus, the 230 days not challenged by the State still count toward the Rule 4(C) period.

Martin then filed a motion to continue the November 17 pretrial conference because (1) “additional time is needed in which to get the blood results back” and (2) Martin “resides in Tennessee and is unable to find a ride to bring him to Court this court date.” Id. at 25. The trial court continued the pretrial conference to December 15, a date requested by Martin. The trial court charged the delay to Martin because he requested the continuance. Id. at 89-90.

Martin argues that pursuant to Biggs v. State, 546 N.E.2d 1271 (Ind.Ct.App.1989), and its progeny, this time period cannot be charged to him because the State did not have the blood-test results. Biggs and the cases that rely on Biggs hold that even if the defendant is the one who files the motion to continue, the delay can still be charged to the State. In Biggs, the defendants, who were charged with dealing in cocaine and marijuana, filed a motion to continue because the State’s confidential informant failed to appear for a scheduled deposition. The defendants asked that the trial be delayed until such time as the defendants’ discovery requests were complied with by the State so that they would be adequately prepared for trial. Id. at 1275. This Court held:

To put the defendants in a position whereby they must either go to trial unprepared due to the State’s failure to respond to discovery requests or be prepared to waive their rights to a speedy trial, is to put the defendants in an untenable situation. Therefore, we will not charge the defendants with any delay that may appear to have resulted from the ... motion for a continuance.

Id; see also State v. Black, 947 N.E.2d 503, 507-08 (Ind.Ct.App.2011) (The defendant requested a continuance due to the State’s failure to comply with discovery requests; in an effort to hold the State accountable for the late production of the laboratory results, the trial court granted the defendant’s request for a continuance and charged the delay to the State); Marshall v. State, 759 N.E.2d 665, 669 (Ind.Ct.App.2001) (“Generally, a defendant is responsible for any delay caused by his action including seeking or acquiescing in any continuance. However, a defendant cannot be charged with the delay if the defendant made his motion because the State failed to comply with a discovery request. In this instance, Marshall filed his motion for a continuance on August 2, 2000, because he could not prepare for trial without the DNA evidence from the State. The trial court granted this request and reset the trial to October 5. Thus, the State’s failure to respond to his discovery request caused this delay and as such, Marshall is not accountable for the delay of the August 30, 2000 trial date.” (citations omitted)).

When Martin filed the November 17 motion to continue, which was four months after his arrest, the blood-test results were not back from the State Department of Toxicology. Although as the State points out a trial date had not been set (implying that there was no hurry for the results), the results were nevertheless critical to preparing for and defending Martin’s case. Because Martin could not adequately prepare for trial without the blood-test results, the 28 days from November 18 to December 15 count toward the Rule 4(C) period, bringing the total to 258 days.

B. March 2, 2011, to May lp, 2011

Martin filed a motion to continue the March 2 pretrial conference because (1) “[additional time is needed in which to obtain the blood test results in this matter,” (2) he “resides out of State in Knoxville, Tennessee and has to rely on someone else to drive him since he is without a driver’s license,” (3) an “appearance in Court would require him to miss nearly 2 days of work and a 1 night stay in a hotel,” and (4) it “would be a hardship on [him] to re-appear until such time as the blood test results are available for review.” Appellant’s App. p. 27. The trial court reset the hearing for April 6. For the same reason as above — Martin could not adequately prepare for trial without the blood-test results — the 36 days from March 2 to April 6 count toward the Rule 4(C) period, bringing the total to 294 days.

In the meantime, Martin’s blood-test results came in, and the State added Count II. The trial court scheduled an initial hearing on Count II for April 6. On April 6, Martin’s attorney appeared in court and requested his fourth continuance. See Appellant’s App. p. 3 (CCS entry provides, “Defendant appears by counsel, Mark McNeely. Counsel requests hearing be reset. Granted.”). The trial court granted this continuance, resetting the initial hearing to May 4. Martin says the record is “silent” as to why he requested this continuance, and where the record is silent or ambiguous about the reason for the delay, it is not attributable to the defendant. Appellant’s Br. p. 9 (citing Nance v. State, 630 N.E.2d 218, 221 (Ind.Ct.App.1994), overruled on other grounds by Cook v. State, 810 N.E.2d 1064 (Ind.2004)). But here the record is clear about the reason for the delay — Martin requested the continuance. The trial court properly charged Martin with the 28-day delay from April 7 to May 4, leaving the total at 294 days toward the Rule 4(C) period.

C. June 1, 2011, to August 10, 2011

At the May 4 initial hearing, the trial court scheduled a pretrial conference for June 1. Martin, however, failed to appear at the June 1 pretrial conference, and a warrant was issued for his arrest. The State requested a trial date at the June 1 pretrial conference, but the trial court refused to set one because of Martin’s absence. Martin appeared in custody and with his new counsel before the trial court on August 10, at which time the trial court released him on the bond previously posted. The trial court set the matter for a jury trial on September 27, with the final pretrial conference on September 7. The trial court charged the delay from June 1 to August 10 to Martin because of his failure to appear. Appellant’s App. p. 90.

Martin argues that the trial court erred in charging the delay to him by comparing his case to Schwartz v. State, 708 N.E.2d 34 (Ind.Ct.App.1999). In Schwartz, the defendant appeared in court on July 29, 1996, and a pretrial conference was scheduled for October 16, 1996, at which time his trial would be set. However, the record did not show whether the pretrial conference was ever held. Rather, the record revealed that nearly a year later, on September 8, 1997, the State asked the trial court to set the case for trial. The defendant moved for discharge, but the trial court denied it, stating “Based on what I can see the key to this is you didn’t appear for the pretrial conference.” Id. at 36. On appeal, this Court held that the trial court erred by denying the defendant’s motion for discharge because “[t]he record is completely silent on whether a pretrial conference was ever held.” Id. at 37. And where the record is silent concerning the reason for a delay, the delay is not attributable to the defendant. Id. But even assuming that the pretrial conference was held, we noted that we “fail[ed] to see why a trial date could not have been set in his absence.” Id.

Here, unlike Schwartz, the record is not silent concerning the reason for the delay. The CCS entries for June 1 provide,

State appears by Deputy Prosecutor Ed Zych. Defendant appears by counsel, Mark McNeely, but fails to appear in person. Warrant to be issued for the Defendant for FTA. Bond to be set by the Court ....
Warrant or Writ of Attaint for the Body of a Person Issued
Pretrial Conference (2:00 PM) ...
Commenced and Concluded

Appellant’s App. p. 3. Martin was present in court on May 4 when the June 1 pretrial conference was scheduled, yet he failed to appear on June 1. The record is clear that the pretrial conference was held, at which time a warrant was issued for Martin’s arrest. Although the State requested a trial date at the June 1 hearing, the trial court refused to set one because of Martin’s absence. This was within the trial court’s discretion given that Martin was an out-of-state defendant who failed to appear and had demonstrated prior difficulties getting to Indiana because he did not have a driver’s license. The next time Martin appeared before the court was August 10. Id. at 4. Accordingly, the trial court properly charged the delay resulting from Martin’s failure to appear to him, leaving the total days toward the Rule 4(C) period at 294.

D. September 27, 2011, to March 26, 2012

We now reach the largest period of delay in this case, which will be disposi-tive of this. case. Martin moved to continue the September 27 trial because he needed additional time to depose Anderson from the State Department of Toxicology. The State just added Anderson to its witness list on September 8 (even though Martin did not receive the list until September 12). On September 7, the trial court held a pretrial conference at which the parties agreed to a deposition date of September 13 for three of the State’s witnesses; therefore, there was not enough time for Martin to schedule Anderson’s deposition for September 13. The State did not oppose the continuance. The trial court granted Martin’s motion to continue and reset the jury trial for November 15, with the final pretrial conference on November 4.

When Anderson did not appear for her October 28 scheduled deposition in Marion County even though a “Subpoena Ad Tes-tificandum ” was sent to her via certified mail, Martin moved to continue the November 15 trial. Id. at 63. Martin said that the State Department of Toxicology notified him that Anderson was “unavailable with work commitments” on October 28. Id. Martin said that as a result of Anderson’s failure to appear, it was not possible for him to properly prepare for trial. The State did not oppose the continuance. The trial court granted Martin’s motion to continue and reset the jury trial for January 24, 2012, with the final pretrial conference on January 13. Id. at 65.

When Anderson did not appear for her December 27, 2011, scheduled deposition in Marion County even though a “Subpoena Ad Testificandum ” was sent to her via certified mail, Martin moved to continue the January 24, 2012, trial. Id. at 66. Martin said that the State Department of Toxicology again notified him that Anderson was “unavailable.” Id. Martin said that as a result of Anderson’s failure to appear, it was not possible for him to properly prepare for trial. He noted that a deposition had been rescheduled for February 15 at 10:00 a.m. and Anderson had been served with a Subpoena Ad Testifi-candum via certified mail. The State did not oppose the continuance. The trial court granted Martin’s motion and reset the jury trial for March 27 with the final pretrial conference on March 16. Id. at 68.

At the March 16 pretrial conference, Martin moved for discharge pursuant to Criminal Rule 4(C), and the trial court denied the motion on March 26. The trial court attributed the delay from September 27, 2011, to March 26, 2012, to Martin. The trial court reasoned:

The Defendant attempted to schedule the deposition of Ms. Anderson on October 28, 2011 and December 27, 2011 without success. The parties do not agree on why Ms. Anderson’s deposition did not occur. The Court agrees with the Defendant that the general principle of law is that he should not be forced to [choose between] being prepared for trial or waiving his speedy trial rights. However, a criminal defendant is expected to actively prepare his defense and is not allowed to protract his preparation and then complain of violation of his speedy trial rights.
The Defendant did not depose known witnesses until approximately fourteen months after charges were filed. Ms. Anderson had to be substituted as a witness because the original Department of Toxicology witness left the agency’s employ. Presumably, if the Defendant had more promptly ... deposed the original Department of Toxicology witness, the issue with Ms. Anderson would not have [arisen]. The Court notes the Defendant has never asked [for] the Court’s assistance with the issue of Ms. Anderson’s deposition. The parties have simply agreed to continue the trial date until Ms. Anderson’s deposition can be taken. The Court is unclear as to whether Ms. Anderson’s deposition has occurred or if it is still being sought by the Defendant.
The Court finds that the Defendant should not benefit by not actively preparing his defense and then complaining that his speedy trial rights have been violated. The Court holds the period of continued trial dates of September 27, 2011 through the present against the Defendant for Criminal Rule 4(c) purposes.

Id. at 91-92.

The trial court did not explain why the parties did not agree on why Anderson’s depositions did not occur, and notably on appeal the State does not challenge Martin’s account that Anderson was simply “unavailable” for the depositions. As for the trial court’s explanation that Martin did not depose known witnesses until approximately fourteen months after he was charged, the witness at issue on appeal, Anderson, was not added to the list until September 8, 2011 — which was over a year after Martin was charged. Deposing Anderson’s predecessor at the State Department of Toxicology would have done little good to Martin because Anderson’s predecessor would not have been a witness at trial. Finally, as for the trial court’s explanation that Martin did not seek the trial court’s assistance in getting an order requiring Anderson to appear at a deposition at which Martin had already issued subpoenas, we note that Criminal Rule 4 puts the onus on the State to bring the defendant to trial within one year. See Black, 947 N.E.2d at 507 (“A defendant has no obligation to remind the trial court of the State’s duty, nor is he required to take any affirmative action to see that he is brought to trial within the statutory time period.”). The State did not object when Martin sought two continuances based on Anderson’s failures to appear; it should have.

What this boils down to is what party should bear the responsibility of a State’s witness not showing up to two scheduled depositions at which the witness was subpoenaed both times. Martin says the State Department of Toxicology told him that Anderson was “unavailable” both times, and the State does not offer a contrary explanation on appeal. Moreover, the State does not allege that Martin did not provide Anderson with reasonable notice of the depositions, which is required by Trial Rule 30(B)(1) (“A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined.... ”). We find that the balance tips in favor of Martin and therefore conclude that the trial court abused its discretion in charging the delay to him. Thus, the 182 days from September 27, 2011, to March 26, 2012, count toward the Rule 4(C) period, bringing the total to 476 days. Because the days that count toward the Rule 4(C) period exceed 365, the trial court should have granted Martin’s motion for discharge. We therefore reverse the trial court and remand for vacation of his conviction.

Reversed and remanded.

BAILEY, J., and BROWN, J., concur.

      . It is now called Indiana Grand Casino.

      . The trial court's order denying Martin's motion for discharge says August 16, 2011, but the CCS shows that Martin appeared before the trial court on August 10. Both parties agree that Martin appeared before the trial court on August 10.

      . There is no copy of a discovery order in the record. However, we assume there is one based on this filing by the State.

      . According to Indiana Trial Rule 45(D)(2), the deposition must occur in the county where the person lives or works.

      . According to Martin, this deposition finally occurred on February 15, 2012. Appellant's Br. p. 13.

      . The trial court calculated the 230 days as follows:
      • July 16, 2010, to October 5, 2010, for 82 days
      • December 16, 2010, to March 2, 2011, for 77 days
      • May 4, 2011, to June 1, 2011, for 29 days
      • August 17, 2011, to September 27, 2011, for 42 days
      Appellant’s App. p. 89-90. The State does not challenge the calculation of any of these periods on appeal, even though one of these periods appears to be due to court congestion and court closure due to weather.

      . We already counted November 17 in the previous period; therefore, we start with November 18 so we do not count the day twice.

      . We already counted April 6 in the previous period; therefore, we start with April 7 so we do not count the day twice.

      . Because the days that count toward the Rule 4(C) period exceed 365 at this point in time, we do not need to address the State’s motion to continue the April 24, 2012, trial.