author: MATHIAS, Judge.

text:
    Jill FINFROCK a/k/a Jill Bastone, Appellant-Petitioner, v. Mark FINFROCK, Appellee-Respondent.
    No. 64A05-1209-DR-489.
    Court of Appeals of Indiana.
    May 29, 2013.
    Rehearing Denied Aug. 16, 2013.

      John B. Steinhart, Lafayette, IN, Attorney for Appellant.
    Shana D. Levinson, Levinson & Levin-son, Merrillville, IN, Attorney for Appel-lee.
   OPINION

MATHIAS, Judge.

Jill Bastone (f/k/a Jill Finfrock) (“Mother”) requested that the Porter Superior Court issue a Qualified Domestic Relations Order (“QDRO”) ordering that funds in the retirement account of her former husband, Mark Finfrock (“Father”), be applied to satisfy Father’s substantial child support arrearage. After initially granting the request, the trial court rescinded the QDRO and ordered Mother to pay attorney fees to Father. Mother now appeals and argues: (1) that the federal Fair Debt Collection Practices Act is inapplicable to the present case; (2) that the trial court erred in refusing to issue a QDRO; and (3) that the trial court erred by ordering Father’s child support payments to be made to the Indiana State Central Collections Unit (“INSCCU”).

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

Facts and Procedural History

Mother and Father were divorced in Porter County, Indiana. Pursuant to the dissolution decree entered on October 24, 1994, Father was to pay support for the couple’s two minor children in the amount of $161.54 per week. Father paid this amount in child support for not quite seven months, until May 14, 1995, paying a total of approximately $6,500. Father then lost his job and stopped paying his support obligation. When Father attempted to find a new job, his former employer sued him for breach of a covenant not to compete. In May 1995, Mother and the children moved to Cook County, Illinois, where Mother registered the order of the Porter Superior Court. Father never made any child support payments after this point, and Mother never sought to have Father found in contempt for failing to pay. Eventually, both parties formed new families with new spouses, made new lives for themselves, and had no further contact.

Approximately sixteen years later, on July 5, 2011, Father received a telephone call from James Dunham, the founder of National Child Support, a child-support collection firm based in Ohio. According to the trial court’s findings of fact, Dunham told Father that Mother wanted him to pay all of the accrued child support, plus interest. Dunham also told Father that, if he did not immediately agree to pay this amount, Dunham could have him arrested for contempt, file a motion to revoke all of his licenses, including his drivers license and professional licenses, freeze his assets and bank accounts, and seize his property and the contents of his home.

Father immediately retained counsel, and on July 15, 2011, filed a motion to set the amount of his child support arrearage and to establish a payment plan. Father filed this motion in Cook County, Illinois because neither he nor Mother had lived in Indiana since the divorce, the Indiana divorce decree had been registered in Cook County, and he had been told that Mother still lived in Illinois. However, five days later, Mother, represented by an attorney employed by National Child Support, filed a petition to set arrearage and reduce the amount to a judgment in Porter Superior Court. At a hearing in Porter Superior Court, Mother’s attorney claimed that Father had filed his motion in Cook County, Illinois in an attempt to delay his liability. In reality, however, Father had filed his motion in Illinois before Mother filed her motion in Porter Superior Court.

Father eventually gave up his argument regarding proper venue, and on December 2, 2011, came to an agreement with Mother regarding his child support arrearage. The agreed order provided in relevant part:

1. That this Court shall maintain jurisdiction over the collection of child support unless both parties agree otherwise at some later time.
2. That [Father] was previously ordered by this Court to pay child support in the amount of $161.54/ week and has failed to pay as ordered.
3. That the arrearage to date is $135,856.74. Said amount is reduced to judgment.
4. That the children of the parties are now emancipated and no current support shall accrue.
5. That [Father] shall pay [Mother] the amount of $280.00 per week (payable every other week in the amount of $560) via the Income Withholding Order attached hereto.
6. That the address of the payee is ... Cincinnati, OH 45242.
7. That should [Father] change employment, he shall make his attorney aware of said change instanter and cause a new Income Withholding Order to issue.

Appellant’s App. pp. 40-41. Within one month, the payments started to be automatically withdrawn from Father’s paycheck, and Father never missed a payment.

Nevertheless, Mother’s counsel filed a motion for proceeding supplemental, seeking to discover if Father had any nonexempt assets that could be subject to attachment to satisfy the arrearage that had been reduced to judgment. The motion requested that the trial court, after holding a hearing, issue an appropriate order to apply any non-exempt property to satisfy the judgment against Father. In third-party discovery pursuant to the proceeding supplemental, Mother discovered that Father owned a 403(b) retirement account with his current employer that contained approximately $86,000. Then, before the proceeding supplemental hearing took place, Mother’s counsel delivered to the trial court a proposed QDRO, without serving it on Father’s counsel. The trial court, “assuming that an order presented in this fashion was approved by both parties or was an Order of the Court,” signed the QDRO. Appellant’s App. p. 6. The administrator of Father’s retirement plan then sent a check to National Child Support for the entire balance of Father’s retirement account and drafted a 1099R tax form so that Father could pay the 20% tax penalty for the early withdrawal.

Upon learning of this, Father filed an emergency petition to set aside the QDRO, which the trial court granted in time to stop the transfer of funds. Father then requested sanctions and attorney fees against Mother’s counsel and argued that the trial court should not issue a QDRO to attach his retirement account to satisfy the arrearage judgment. The trial court held a hearing on the matter on June 21, 2012, at the end of which the trial court took the matter under advisement and requested further briefing. On August 31, 2012, the trial court entered an order that rejected Mother’s request to issue a QDRO and ordered Mother’s attorney to pay $1,645 in attorney fees to Father. Mother now appeals.

I. Fair Debt Collection Practices Act

Mother first claims that the trial court erred in awarding attorney fees to Father based on alleged violation of the federal Fair Debt Collection Practices Act (“FDCPA”) by Mother’s attorney. See 15 U.S.C. § 1692 et seq. The trial court, in its order, wrote:

[Mother’s] Counsel’s motivation for surreptitiously filing an unsolicited , order is questionable given that he and the collection agency he works for stand to gain a minimum 34% of the payout. He should be held to a higher standard under the Fair Debt Collections Act. [Mother’s attorney] himself undoubtedly constitutes a “debt collector” under 15 USCA 1692(a), which .... includes lawyers who regularly collect debt. He is considered by the collection agency to be a “collection specialist,” who operates under the Federal Consumer Credit Protection Act and should know better. Counsel committed an unfair debt collection practice and should be admonished to handle these matters more prudently in the future. For this reason and based on the fees Father incurred to handle the emergency created by this hasty filing, Father[’s] requests that the Court award attorney fees as presented in Court on June 20, 2012 is granted.

Appellant’s App. pp. 7-8 (some citations omitted).

It is clear that an attorney who regularly engages in consumer debt collection activity, even when that activity consists of litigation, is a “debt collector” as defined by the FDCPA. Heintz v. Jenkins, 514 U.S. 291, 299, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995). However, Mother appears to be correct that the FDCPA is not applicable to “debt” that is the result of a child support arrearage, even if that ar-rearage has been reduced to a judgment.

As explained in Mabe v. G.C. Servs. Ltd., 32 F.3d 86, 87 (4th Cir.1994), “Congress enacted the FDCPA to protect consumers from unfair debt collection practices.” Thus, “a threshold requirement for application of the FDCPA is that the prohibited practices are used in an attempt to collect a ‘debt.’ ” Id. The term “debt” is defined by the FDCPA as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.” 15 U.S.C. § 1692a(5). “The type of transaction which creates a debt under the FDCPA is one in which a consumer is offered or extended the right to acquire ‘money, property, insurance, or services’ which are ‘primarily for household purposes’ and to defer payment[.]” Id. (quoting Zimmerman v. HBO Affiliate Group, 834 F.2d 1163, 1168-69 (3d Cir.1987)) (internal quotation marks omitted). The Mabe court concluded that the appellants’ child support obligations did not qualify as “debts” under the FDCPA because they were not incurred to receive consumer goods or services; instead the child support obligation was imposed to force the appellants to “fulfill their parental duty to support their children.” Id.

We believe that this is an accurate and reasonable distinction. Father’s arrearage judgment is based on his parental .duty to support his children. It is not a “debt” as defined in the FDCPA. See Mabe, 32 F.3d at 87; Turner v. Cook, 362 F.3d 1219, 1227 (9th Cir.2004) (holding that child support obligations are not “debts” under the FDCPA); Okoro v. Garner, 21 Fed.Appx. 486, 488 (7th Cir.2001) (holding that child support is not a debt under the FDCPA); Campbell v. Baldwin, 90 F.Supp.2d 754, 757 (E.D.Tex.2000) (noting that courts have been unanimous in holding that child support payments are not “debt” as defined by the FDCPA).

Because the trial court’s award of attorney fees to Father was based on perceived violations of the FDCPA, which is inapplicable to the present situation, we agree with Mother that the trial court erred in awarding attorney fees based on these perceived violations.

II. Appropriateness of Issuing QDRO

Mother next argues that the trial court erred in refusing to issue a QDRO attaching Father’s retirement account. As this court noted in Hogle v. Hogle, 732 N.E.2d 1278, 1281 (Ind.Ct.App.2000), “It is well established that, under certain circumstances, a pension may be attached or garnished as a means of satisfying a support arrearage.” Domestic relations orders concerning pension benefits must comply with the requirements for a QDRO, otherwise they are preempted by ERISA. Id.

Thus, pension funds may, under some circumstances, be garnished or attached by means of a QDRO in order to satisfy a past-due support obligation. Id. (citing In re Marriage of Rife, 529 N.W.2d 280, 281 (Iowa 1995)). ERISA was not intended to be “a vehicle for avoidance of family support obligations, and nothing in the ERISA statutes prohibits ‘invasion of the corpus’ of a retirement or pension plan to satisfy a child support obligation.” Id. (quoting Rife, 529 N.W.2d at 281).

In Hogle, this court agreed with those courts that had held that “attachment by means of a QDRO of a former spouse’s pension plan does not amount to an improper modification of the final adjudication of property rights even when there has been an adjudication to the effect that the creditor spouse has no interest in the debtor spouse’s pension plan.” Id. at 1288 (citing In re Marriage of Bruns, 535 N.W.2d 157, 162 (Iowa Ct.App.1995); Baird v. Baird, 843 S.W.2d 388 (Mo.Ct.App.1992)). Therefore, in Hogle, we affirmed the trial court’s decision to enter a QDRO that transferred to the mother the father’s vested benefits payable under his defined pension plan and the total balance of his defined contribution plan account in order to satisfy an arrearage judgment in excess of $375,000.

However, the fact that entry of a QDRO to attach a retirement account may be an appropriate means to satisfy an ar-rearage judgment does not mean that the trial court is required to do so whenever there is an arrearage. In fact, in Hogle, we specifically held that a pension plan or retirement account may be attached or garnished to satisfy a support arrearage. 732 N.E.2d at 1281. This decision, like all decisions on how to satisfy a judgment, is left to the sound discretion of the trial court. See Fifth Third Bank v. Peoples Nat. Bank, 929 N.E.2d 210, 214 (Ind.Ct.App.2010) (noting that trial courts have broad discretion in conducting proceedings supplemental).

Here, the trial court noted that the parties had entered into an agreed order whereby Father agreed to pay $280 per week on his support arrearage. Although Mother now claims that this is insufficient to make up for the years when Father flagrantly flouted his support obligations, $280 per week is not a trivial sum. Father claims, and Mother does not deny, that this represents almost half of Father’s weekly income. This is not a situation where Father’s weekly payment is a token sum that will never pay off the arrearage. Moreover, Mother had agreed to these terms of payment. Under these facts and circumstances, we cannot say that the trial court abused its discretion by declining Mother’s request to enter a QDRO to attach the entirety of Father’s retirement account.

III. Method of Payment

Mother also complains that the trial court erred in ordering Father to pay his agreed-to weekly payment on his ar-rearage to the Indiana State Central Collections Unit (“INSCCU”) instead of to National Child Support. The relevant portions of the trial court’s order states:

As of May 31, 2011, the federal office of Child Support Enforcement (OCSE) and the Office of Management and Business (OMB) issued new rules regarding the Federal Income Withholding Form. As such, new IWO [income withholding orders] must direct payment to INSCCU. If the IWO does not direct payment to INSCCU as required by federal law, then the employer should reject the IWO and return it to the sender. Without disturbing the withholding of Father’s payments, arguably, to comply with the new legislation, the IWO should be re-drafted to allow the payments to go to INSCCU instead of the collection agent.

Appellant’s App. p. 13 (emphasis added).

We do not read the trial court’s order as one requiring that Father’s income withholding order must be paid to INSCCU. In fact, the order specifically says that it is not disturbing Father’s current income withholding order. And it mentions that arguably Father’s payments should go to INSCCU to comply with federal rules. But since the trial court did not actually order Father’s payments to be made to INSCCU, we need not address this issue on appeal.

Conclusion

The trial court erred in determining that the FDCPA applied to the present case. Therefore, to the extent that the trial court’s award of attorney fees was based on a perceived violation of the FDCPA, this award was improper. The trial court did not abuse its discretion in denying Mother’s request for a QDRO to attach Father’s retirement account. Lastly, the trial court did not actually alter Father’s income withholding order to direct that the payments go to INSCCU, and we need not consider whether the trial court erred in opining that Father’s income withholding order should be altered to comply with new federal rules. We therefore reverse the trial court’s award of attorney fees, affirm its denial of Mother’s request for the entry of a QDRO, and remand for proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

BAKER, J., and MAY, J., concur.

      . On appeal, Mother claims that this did not occur. However, the trial court’s findings of fact indicate that Mother's attorney "stated in open court on June 20, 2012, that Father, in an effort to thwart and/or stall this action and dodge liability for his debt, responded to the Indiana action by filing his case elsewhere. The evidence shows that Father actually filed in Illinois first and had a rational basis to do so.” Appellee’s App. pp. 5-6. Mother claims that this finding is clearly erroneous. However, Mother has not provided us with a transcript of the June 20, 2012 hearing. Moreover, Mother admits that, at a hearing held on June 21, 2012, her attorney criticized Father's filing of his motion in Cook County, calling it "ridiculous.” Tr. p. 21. We will not look behind the trial court’s factual finding under these circumstances.

      . The trial court found that Mother assigned her child support arrearage judgment to National Child Support. On appeal, Mother argues that this is incorrect and that National Child Support simply represented her on a contingency fee basis. At the proceedings supplemental hearing the trial court asked whether the money from Father’s withholding order was going to Mother or to National Child Support. Father’s attorney claimed that the judgment had been assigned to National Child Support, stating, "She has assigned it." The court then repeated, "Okay. She assigned it.” Mother’s attorney then stated, "We agreed to that." Tr. p. 23. This colloquy could be understood to mean that Mother’s counsel admitted that the judgment had been assigned. But Mother’s attorney also stated that, once National Child Support receives a payment, "it's put in an escrow account and we divvy it from there.” Id. Thus, it appears that Mother still has some interest in the amount received from Father's income withholding order.
      We also note that we have held that "contingency fee contracts for any proceeding arising out of a divorce are void as against the public policy of this state." Mason v. Mason, 561 N.E.2d 809, 811 (Ind.Ct.App.1990). Because divorce, including post-decree actions, "create an emotional atmosphere in which distraught parties are especially vulnerable to agreeing to a contract which turns out to be oppressive, ... Indiana's public policy is advanced by refusing to permit an attorney to acquire a contingent financial interest in any aspect of the divorce proceeding.” Id. While this analysis may merit reconsideration, this issue is not before us.

      . Father claims that this order was hand delivered. Mother vigorously contests this. Regardless of how the QDRO was delivered to the court, it is undisputed that Mother’s counsel did deliver the QDRO to the trial court.

      .This is in contrast to those courts that have held that garnishing or attaching a retirement plan via a QDRO may be improper where it has the effect of creating an interest in an asset that did not exist at the time of the dissolution or which was disposed of by the dissolution property settlement. Id. at 1282-83 (citing DeSantis v. DeSantis, 714 So.2d 637, 638 (Fla.Dist.Ct.App.1998); Hoy v. Hoy, 29 Va.App. 115, 510 S.E.2d 253, 254 (1999)).

      . In Hogle, the father had been ordered to pay $1,000 per month in child support in 1979, and his arrearage was over $375,000 by 1999.

      . A balance of $135,856.74 would take approximately nine years and four months to pay off at $280 per week, not considering any accrued interest. This is not a short period of time, but it is not atypical of large loans.


source: Caselaw Access Project

author: BRADFORD, Judge.

license: Public Domain

text:
    Duane CROCKER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 79A04-1210-CR-542.
    Court of Appeals of Indiana.
    June 18, 2013.

      Bruce W. Graham, Graham Law Firm P.C., Lafayette, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

As Appellant-Defendant Duane Crocker drove Southbound on Interstate 65 in Tippecanoe County, Indiana State Police Trooper Joseph Winters pulled him over for speeding. Trooper Winters told Crocker to come sit in his car after he noticed, inter alia, that Crocker’s eyes were bloodshot and glassy, he was nervous, the rental car in which he was driving had been rented to another person, and his hand shook approximately two inches up and down when he produced his driver’s license. After Crocker gave inconsistent answers to Trooper Winters’s questions, Trooper Winters obtained Crocker’s consent to search his vehicle. The search uncovered ten bales of cellophane-wrapped marijuana in the trunk of Crocker’s rented vehicle. During a police interview, Crocker admitted that he had been paid to transport the marijuana from Chicago to Cincinnati.

Crocker contends that the trial court abused its discretion in admitting evidence obtained during his traffic stop, arguing that Trooper Winters violated his rights pursuant to the United States and Indiana Constitutions. We conclude that, under the circumstances of this case, Crocker was subjected to an illegal custodial interrogation without being advised of his rights beforehand and therefore hold that the incriminating statements made to police should have been suppressed. We also conclude, however, that this error is harmless, as Crocker’s consent to the search of his vehicle was valid and the physical evidence obtained therein was sufficient to sustain his convictions. We affirm.

FACTS AND PROCEDURAL HISTORY

At approximately 11:00 a.m. on March 12, 2011, Trooper Winters was driving an unmarked police vehicle and was “running traffic” from a cross-over at the 181 mile marker on 1-65 in Tippecanoe County. Trial Tr. p. 15. Trooper Winters noticed a vehicle traveling Southbound in the left-hand lane and activated his front antenna speed time device, which indicated the vehicle was travelling seventy-five miles per hour (“mph”) in a seventy mph zone. By the time the vehicle had passed Trooper Winters’s position, it had decelerated to sixty mph and shifted to the right-hand lane.

Trooper Winters pulled out behind the vehicle and followed it for approximately two and one-half to three miles, not pulling it over because the grade of the road in that stretch gave him officer safety concerns. As Trooper Winters followed the vehicle, he observed it cross over the fog line at least twice. The vehicle maintained a speed of sixty mph. Finally, Trooper Winters activated his emergency lights and stopped the vehicle. As Trooper Winters approached the vehicle on the passenger side, he noticed fresh fingerprints on the trunk lid and a bar code in the rear passenger-side window, an indication that the car was a rental. Trooper Winters made contact with the driver, Crocker, through the front passenger-side window and noticed that he had a “heightened level of nervousness [and] blood shot glossy eyes[.]” Trial Tr. p. 21. When asked for his driver’s license, Crocker initially produced a Fraternal Order of Police card. When Crocker did produce his Ohio driver’s license, his hands were “[fjlicker-ing up and down ... approximately two inches.” Supp. Tr. p. 17. The Ohio rental agreement Crocker handed to Trooper Winters was in another person’s name. Crocker claimed that his girlfriend’s mother had rented the vehicle and that he had picked it up in front of his girlfriend’s house in Ohio. Trooper Winters told Crocker to exit his vehicle and asked him to have a seat in the front seat of his police vehicle.

Once in the police vehicle, Trooper Winters administered the horizontal gaze nys-tagmus (“HGN”) field sobriety test (“FST”) to Crocker, which indicated no signs of alcohol intoxication. At 11:09 a.m., Trooper Winters activated his electronic citation and warning system and began entering Crocker’s information into the system. While entering Crocker’s information, Trooper Winters questioned Crocker further.

Trooper Winters asked Crocker his origin and destination, and Crocker replied that he was coming from his girlfriend’s house in Chicago. Trooper Winters said, “you mean your girlfriend in Ohio and [Crocker] recanted [and] said my other girlfriend in Chicago.” Trial Tr. p. 22. Trooper Winters asked the Chicago girlfriend’s name, and Crocker. replied, “Alicia.” Trial Tr. p. 22. When asked for her last name, Crocker, stuttering and stammering, said “Keys.” Trial Tr. p. 22. Trooper Winters laughed because Alicia Keys is the name of a popular musical entertainer, and Crocker then said that his Chicago girlfriend’s name was actually Alicia Smith. When asked about luggage, Crocker denied having any.

At 11:13 a.m., Trooper Winters produced a “Consent to Search,” or “Pirtle,” form for Crocker to read, which provided, in relevant part, as follows:

YOUR RIGHTS
You have the following constitutional rights.
You have the right to require that a search warrant be obtained before any search of your property.
You have the right to refuse to consent to warrantless search.
You have the right to talk to a lawyer before giving consent to such a search. If you cannot afford a lawyer, one will be appointed for you.
WAIVER AND CONSENT
I have read the statement of my rights and understand what my rights are. I do not want a lawyer at this time. I consent to a warrantless search by officers of the Indiana State Police of the following described property: SB 165 NEAR 181 M MRKR DODGE CENTURY 276 LHN located at SB 165 NEAR 181 M. I authorize these officers to seize any article of property which they consider evidence. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.

State’s Ex. 2. As Crocker was reviewing the form and shaking uncontrollably, he asked Trooper Winters what the warnings were for. Trooper Winters replied that he believed “that there were at least 80 pounds of marijuana in his trunk.” Trial Tr. p. 49. At the time, Trooper Winters admittedly did not know what was in the trunk. Crocker did not respond and signed the consent form.

Trooper Winters asked Crocker how much marijuana was in the trunk, and Crocker responded that he did not know. Trooper Winters read Crocker his Miranda warnings, which Crocker stated that he understood. Crocker indicated that he knew that there were “pounds” of marijuana in the trunk, but did not know how many. Trial Tr. p. 52.

After a Tippecanoe County Sherriffs Deputy arrived, Trooper Winters opened the trunk and found ten bales of marijuana wrapped in cellophane. The total weight of the marijuana was approximately 215 pounds. Crocker was transported to a State Police Post and again read his Miranda rights, which he again indicated that he understood. Crocker admitted that he was being paid $5000.00 to drive the marijuana from Chicago to Cincinnati.

On March 16, 2011, the State charged Crocker with Class C felony dealing in marijuana, Class D felony marijuana possession, and Class D felony maintaining a common nuisance. On March 5, 2012, the trial court denied Crocker’s motion to suppress evidence. After a bench trial, the trial court found Crocker guilty as charged. The trial court sentenced Crock-er to an aggregate sentence of three years of incarceration to be followed by one year served in community corrections.

DISCUSSION AND DECISION

Whether the Trial Court Abused its Discretion in Admitting Evidence Obtained Following the Traffic Stop

Although Crocker frames the issue as a challenge to the denial of his pretrial motion to suppress evidence, he actually appeals from the allegedly erroneous admission of evidence at trial. The admissibility of evidence is within the sound discretion of the trial court. Curley v. State, 777 N.E.2d 58, 60 (Ind.Ct.App.2002), trans. denied. We will only reverse a trial court’s decision on the admissibility of evidence upon a showing of an abuse of that discretion. Id. An abuse of discretion may occur if the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. Id. The Court of Appeals may affirm the trial court’s ruling if it is sustainable on any legal basis in the record, even though it was not the reason enunciated by the trial court. Moore v. State, 839 N.E.2d 178, 182 (Ind.Ct.App.2005), trans. denied. We do not reweigh the evidence and consider the evidence most favorable to the trial court’s ruling. Hirshey v. State, 852 N.E.2d 1008, 1012 (Ind.Ct.App.2006), trans. denied.

A. Miranda

Crocker argues that Trooper Winters’s questioning of him was improper because it constituted a custodial interrogation and he had not yet been read his Miranda rights. “Miranda and its progeny have ruled that the [Fifth Amendment] right to counsel ... accrues upon ‘custodial interrogation.’ ” Zook v. State, 513 N.E.2d 1217, 1220 (Ind.1987) (quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602). This is because the right is “meant to overcome [that] inherently coercive and police dominated atmosphere[.]” Davies v. State, 730 N.E.2d 726, 733 (Ind.Ct.App.2000) (citing Miranda, 384 U.S. at 444, 86 S.Ct. 1602), trans. denied. “ ‘Custodial interrogation’ ” has been explained to mean “ ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ ” Zook, 513 N.E.2d at 1220 (quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602).

The State contends that Crocker was not’in custody when sitting in Trooper Winters’s vehicle and that the requirement to give him his Miranda rights was therefore not triggered. While it is true that “[o]rdinarily, persons detained for traffic stops are not ‘in custody’ for purposes of Miranda[,] [t]his is not to say a traffic stop may not turn into a custodial situation based upon the conduct of the officer.” Lockett v. State, 747 N.E.2d 539, 543 (Ind.2001) (quoting Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)).

The law enforcement officer’s duty to give Miranda warnings does not attach unless there has been such a restriction on a person’s freedom as to render him in custody. A person is deemed to be in custody if a reasonable person in the same circumstances would not feel free to leave. Whether a person was in custody depends upon objective circumstances, not upon the subjective views of the interrogating officers or the subject being questioned. In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.
Courts have identified the following factors to be significant in determining whether a person is in custody: whether and to what extent the person has been made aware that he is free to refrain from answering questions; whether there has been prolonged coercive, and accusatory questioning, or whether police have employed subterfuge in order to induce self-incrimination; the degree of police control over the environment in which the interrogation takes place, and in particular whether the suspect’s freedom of movement is physically restrained or otherwise significantly curtailed; and whether the suspect could reasonably believe that he has the right to interrupt prolonged questioning by leaving the scene.

Gauvin v. State, 878 N.E.2d 515, 520-21 (Ind.Ct.App.2007) (citations omitted, formatting altered).

We conclude that Crocker was in custody when Trooper Winters was questioning him in Trooper Winters’s vehicle. Although Crocker was not handcuffed or physically restrained, Trooper Winters had a high degree of control over the environment. The first thing Trooper Winters did after Crocker was in his vehicle was administer an FST. Crocker was never told that he did not have to answer Trooper Winters’s questions or that he was free to go about his business. Although the questioning was neither prolonged nor aggressive, Trooper Winters did employ subterfuge, stating that he believed Crocker had at least eighty pounds of marijuana in his trunk when he admittedly did not know what was in the trunk. We believe that a reasonable person who is told to sit in a police vehicle and then immediately subjected to an FST would not feel free to leave.

Given Crocker’s nervous behavior and his bloodshot and “glossy” eyes, it does not strike us as unreasonable that Trooper Winters would investigate the. possibility that Crocker might be impaired or that some other criminal activity might be afoot. Consequently, we conclude that it was reasonable to ask Crocker to exit his vehicle and then to question him further. The record does not reveal any reason, however, that Trooper Winters could not have continued his investigation on the roadside. While there are certain circumstances that might justify an officer having the subject of a traffic stop sit in his police vehicle, the record reveals no such circumstances in this case. See Wilson v. State, 745 N.E.2d 789, 793 (Ind.2001) (“[W]e can envision various particularized circumstances (including, for example and without limitation, inclement weather, the lack of available lighting for paperwork, the need to access equipment with the detained motorist, etc.) that may make it reasonably necessary for police to require a stopped motorist to enter a police vehicle.”). Here, there is no indication of inclement weather, unsafe conditions, or any other compelling reason to have Crocker in the vehicle. Although Trooper Winters did testify that he was entering Crocker’s information into his computer as they spoke, the first thing Trooper Winters did was administer an HGN test, which certainly could have been done on the roadside. In any event, Trooper Winters never explained why Crocker had to be in the vehicle while his information was entered.

We do not wish to be understood as holding that a person is in custody whenever he is in a police vehicle. Under the totality of the circumstances of this case, however, we conclude that Crocker was in custody as soon as he was in Trooper Winters’s police vehicle. Consequently, Trooper Winters was required to read him his Miranda rights at that point, but did not. Any statements made after Crocker entered Trooper Winters’s vehicle should have been suppressed. See Miranda, 384 U.S. at 444, 86 S.Ct. 1602 (“[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”). This is not the end of our analysis, however, as the physical evidence seized from Crocker’s vehicle was also incriminating, and Miranda only applies to statements. See Hirshey, 852 N.E.2d at 1015 (Ind.Ct.App.2006) (“However, Miranda only requires suppression of statements, not physical evidence.”).

B. Fourth Amendment

The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” “The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). “In Wolf [v. People of State of Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949) (overruled on other grounds by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)) ] we recognized ‘(t)he security of one’s privacy against arbitrary intrusion by the police’ as being ‘at the core of the Fourth Amendment’ and ‘basic to a free society.’ ” Id.

Crocker argues that his consent to the search of his rental vehicle was not valid. “When a search is conducted without a warrant, the State has the burden of proving that an exception to the warrant requirement existed at the time of the search.” Krise v. State, 746 N.E.2d 957, 961 (Ind.2001). “One well-recognized exception to the warrant requirement is a voluntary and knowing consent to search.” Id.

When the State seeks to rely upon consent to justify a warrantless search, it has the burden of proving that the consent was, in fact, freely and voluntarily given. Thurman v. State, 602 N.E.2d 548, 552 (Ind.Ct.App.1992), trans. denied. The voluntariness of a consent to search is a question of fact to be determined from the totality of the circumstances. Id. A consent to search is valid except where it is procured by fraud, duress, fear, intimidation, or where it is merely a submission to the supremacy of the law. Id. To constitute a valid waiver of Fourth Amendment rights, a consent must be the intelligent relinquishment of a known right or privilege. Id. (quoting United States v. Payne, 429 F.2d 169 (9th Cir.1970)). Such a waiver cannot be conclusively presumed from a verbal expression of assent unless the court determines, from the totality of the circumstances, that the verbal assent reflected an understanding, uncoerced, and unequivocal election to grant the officers a license which the person knows may be freely and effectively withheld. Id. Knowledge of the right to refuse a search is one factor which indicates voluntariness. Id.
The “totality of the circumstances” from which the voluntariness of a detainee’s consent is to be determined includes, but is not limited to, the following considerations: (1) whether the defendant was advised of his Miranda rights prior to the request to search; (2) the defendant’s degree of education and intelligence; (3) whether the defendant was advised of his right not to consent; (4) whether the detainee has previous encounters with law enforcement; (5) whether the officer made any express or implied claims of authority to search without consent; (6) whether the officer was engaged in any illegal action prior to the request; (7) whether the defendant was cooperative previously; and (8) whether the officer was deceptive as to his true identity or the purpose of the search. State v. Scheibelhut, 673 N.E.2d 821, 824 (Ind.Ct.App.1996).

Callahan v. State, 719 N.E.2d 430, 435 (Ind.Ct.App.1999).

Although Crocker was not “Mir-andized ” before consenting to the search, he was given a written advisement of his Pirtle rights, which included explicit statements that he had the right to (1) refuse his consent, (2) force the State to obtain a warrant if Crocker so desired, and (3) speak to an attorney before consenting. Trooper Winters testified that Crocker looked at and reviewed the Pirtle form before signing it. The record indicates that Crocker is a college graduate who once worked at a bank, a background that gives no indication that Crocker would have difficulty understanding the Pirtle advisements. Trooper Winters did not claim the authority to search without Crocker’s consent. Trooper Winters was forthright about the reason for wanting to search Crocker’s vehicle, telling him that he expected to find marijuana. Trooper Winters was the only officer on the scene before Crocker consented to the search, making it less likely that Crocker’s consent was a result of police intimidation. Although Trooper Winters did obtain incriminating statements from Crocker in violation of Miranda, Trooper Winters’s misconduct was not particularly egregious, and it is significant that none of the incriminating statements was made until after Crocker consented to the search of his vehicle. Specifically, Crocker did not admit to knowing that he was transporting marijuana until after he consented to the search of his vehicle.

Crocker points to his testimony at the suppression hearing that he was asked multiple times to consent to the search of his vehicle and that he did not read the Pirtle warnings before signing the waiver. Crocker is inviting us to reweigh the evidence, which we will not do. The State has established that Crocker’s consent to the search of his vehicle was valid. As such, and even though we have concluded that Crocker’s incriminating statements should have been suppressed, we conclude that the trial court did not abuse its discretion in determining that the physical evidence found in Crocker’s vehicle was admissible pursuant to the Fourth Amendment. See Hirshey, 852 N.E.2d at 1011, 1015(in case where statements made in violation of Miranda led to discovery of physical evidence, concluding that Miranda violation did not require suppression of physical evidence).

C. Harmless Error

Having determined that Crocker’s incriminating statements were erroneously admitted, we must now determine if that error was harmless.

Errors in the admission of evidence ... are to be disregarded as harmless unless they affect the substantial rights of a party. Ind. Trial Rule 61; Sparkman v. State, 722 N.E.2d 1259, 1263 (Ind.Ct.App.2000). In determining whether error in the introduction of evidence affected a defendant’s substantial rights, we must assess the probable impact of the improperly admitted evidence upon the jury. Id. When there is substantial independent evidence of guilt such that it is unlikely that the erroneously admitted evidence played a role in the conviction or where the offending evidence is merely cumulative of other properly admitted evidence, the substantial rights of the party have not been affected, and we deem the error harmless. Smith v. State, 839 N.E.2d 780, 784 (Ind.Ct.App.2005).

Robertson v. State, 877 N.E.2d 507, 514 (Ind.Ct.App.2007).

We conclude that the admission of Crocker’s statements can only be considered harmless error. Under the facts of this case, in order to convict Crocker of (1) Class C felony dealing in marijuana, the State was required to prove that he possessed, with intent to deliver, marijuana in an amount greater than ten pounds, Ind.Code § 35-48 — 4—10; (2) Class D felony marijuana possession, the State was required to prove that he knowingly or intentionally possessed more than thirty grams of marijuana, Ind.Code § 35-48-4-11; and (3) Class D felony maintaining a common nuisance, the State was required to prove that he knowingly or intentionally maintained a vehicle that was used one or more times to unlawfully keep or deliver controlled substances. Ind.Code § 35-48-4 — 13(b).

Although the marijuana was not found in Crocker’s actual possession, it was found in the trunk of a car Crocker was driving and over which he had exclusive control, which is sufficient to establish constructive possession. “In the absence of actual possession of drugs, our court has consistently held that ‘constructive’ possession may support a conviction for a drug offense.” Lampkins v. State, 685 N.E.2d 698, 699 (Ind.1997). “In order to prove constructive possession, the State must show that the defendant has both (1) the intent to maintain dominion and control and (2) the capability to maintain dominion and control over the contraband.” Goliday v. State, 708 N.E.2d 4, 6 (Ind.1999) (citing Lampkins, 685 N.E.2d at 699). “To prove the intent element, the State must demonstrate the defendant’s knowledge of the presence of the contraband.” Id. “ ‘This knowledge may be inferred from either the exclusive dominion and control over the premise containing the contraband or, if the control is non-exclusive, evidence of additional circumstances pointing to the defendant’s knowledge of the presence of the contraband.’” Taylor v. State, 482 N.E.2d 259, 261 (Ind.1985) (quoting Woods v. State, 471 N.E.2d 691, 694 (Ind.1984)). Crocker’s exclusive control over the vehicle he was driving is sufficient to establish constructive possession. See Goliday, 708 N.E.2d at 5, 7 (concluding that constructive possession was established where cocaine was found in trunk of vehicle defendant was driving where he was only person in vehicle).

As for Crocker’s intent to deliver, we have held that “[ijllegal possession of large quantities of narcotics does not create a presumption of intent to deliver, but may support an inference of intent.” Romack v. State, 446 N.E.2d 1346, 1351 (Ind.Ct.App.1983) recognized, as being superseded on other grounds by statute in Adams v. State, 968 N.E.2d 281, 285-86 (Ind.Ct.App.2012), trans. denied. In Romack, the defendant was found in possession of 215 or 216 methaqualone tablets. Id. at 1349. Despite noting the lack of expert testimony regarding quantity and personal use, the Romack court nonetheless concluded that the large quantity of tablets was evidence tending to show the intent to deliver. Id. at 1351. The same is true here. As in Romack, the State produced no expert testimony that 215 pounds of marijuana is a “large” amount or inconsistent with personal use. We believe, however, that as much can be inferred from the facts that 215 pounds is an amount over twenty times greater than necessary to support Crocker’s Class C felony dealing charge and over 3000 times greater than necessary to support his Class D felony possession charge. We conclude that the illegal possession of drugs in an amount so far above the statutory thresholds supports a reasonable inference that the possessor had the intent to deliver. In light of Crocker’s possession of 215 pounds of marijuana, we conclude that any error in the admission of incriminating statements can only be considered harmless.

The judgment of the trial court is affirmed.

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

      . Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975). See Clarke v. State, 868 N.E.2d 1114, 1119 (Ind.2007) ("Pirtle v. State ... established that Article I, section 11 of the Indiana Constitution requires that a person in custody explicitly waive the right to counsel before giving a valid consent to a search.”).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Crocker argues that the nature of Trooper Winters's questions violated both the United States and Indiana Constitutions because they were unrelated to the reason for the traffic stop. Because we conclude that incriminating statements made by Crocker in response to Trooper Winters's questions in Trooper Winters’s vehicle should have been suppressed pursuant to Miranda, these arguments could only apply to statements made before Crocker entered the vehicle. While some of those statements were somewhat suspicious and contradictory, however, none of them was incriminating. See Black’s Law Dictionary 782 (8th ed. 2004) (defining "incriminating” as "Demonstrating or indicating involvement in criminal activity.”). Consequently, we need not address Crocker’s arguments related to the nature of Trooper Winters's questioning.


author: MAY, Judge.

text:
    Constance ANDERSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 02A03-1211-CR-495.
    Court of Appeals of Indiana.
    June 21, 2013.

      Michelle F. Kraus, Fort Wayne, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Chandra K. Hein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Constance Anderson appeals following her convictions of two counts of Class D felony criminal mischief and five counts of Class A misdemeanor animal cruelty. She presents two issues for review:

1. Whether her three-year sentence was an abuse of discretion; and
2. Whether Anderson’s sentence is inappropriate in light of her character and offenses.

We affirm.

FACTS AND PROCEDURAL HISTORY

On March 1, 2012, a neighborhood resident contacted the City of Fort Wayne’s Animal Care and Control Department (“FWACC”) to report abandoned cats living inside a residence at 908 Elmer Street. FWACC dispatched Officer J. Schmeling to investigate. He smelled cat urine from fifteen feet away from the house. He saw multiple cats and a large amount of feces in the house, and contacted the Fort Wayne Police Department.

Anderson indicated to officers she rented the property and admitted responsibility for the cats. She allowed officers into the property and surrendered custody of the cats to the FWACC. When police and Animal Care officers entered the residence, they could walk only a few feet into the home before the overwhelming smell of cat urine forced them to leave.

The Fort Wayne Fire Department was contacted to test the air quality in the home because of the high levels of ammonia from the cat urine. Normal air quality contains thirty-five parts per million of ammonia; the test here revealed levels in excess of four times that amount. The property had to be ventilated for two weeks before officers could enter to recover the cats. They removed and then had to euthanize between sixty-six and eighty-five cats.

The only water Anderson provided for the cats was from a faucet that dripped into a sink contaminated with dirt or feces. Anderson claims she dumped a bag of cat food on the floor inside the house every few days to be divided among upwards of eighty-five cats. That amount was inadequate, as evidenced by the cats cannibalizing their young. Anderson knew the cats were desperate for food, because cat skulls were visible on the floor and Anderson wrapped kitten remains and stored them in the refrigerator and freezer. Every surface in the house was covered with cat feces and urine. Urine had soaked into the walls of the first floor and seeped into the floorboards that divided the first floor and basement. The property had been valued at $45,000 before Anderson rented it. Following the removal of the cats, the property was condemned and slated for demolition.

On March 13, Lynn Scrogham, who owned the property where Anderson lived on St. Mary’s Avenue, contacted FWACC because of a strong smell of cat urine outside that residence. FWACC conducted a consensual search of that residence and recovered twenty-three live cats and twenty-one deceased cats and kittens. The St. Mary’s property required $13,000 in renovations due to damage caused by the cats. In total, 108 live cats were discovered at the two properties. All but five of them had to be euthanized. Thirty-seven dead cats were discovered in freezers.

The State charged Anderson with two counts of Class D felony criminal mischief and five counts of Class A misdemeanor animal cruelty. Anderson pled guilty without the benefit of a plea agreement. After a sentencing hearing, the court pronounced five concurrent one-year sentences for animal cruelty, to be served concurrent with three-year sentences for criminal mischief, with eighteen months executed, eighteen months suspended, and eighteen months on probation.

DISCUSSION AND DECISION

1. Abuse of Discretion

Anderson argues the trial court abused its discretion when it sentenced her because it did not consider all mitigating factors. Sentencing decisions rest within the sound discretion of the trial court and will be disturbed only on a showing of abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007), modified on other grounds on reh’g 875 N.E.2d 218 (Ind.2007). An abuse of discretion occurs when the decision is clearly against the logic and effect of the evidence before the court or the reasonable inferences to be drawn therefrom. Id. at 482. In the context of an assertion the trial court failed to find a mitigating factor, an appellant has the burden of showing the alleged factor was offered to the trial court and is both significant and clearly supported by the record. Id. at 493. A trial court’s consideration of factors may be evidenced in either the written order or in an oral sentencing statement. Gleason v. State, 965 N.E.2d 702, 711 (Ind.Ct.App.2012).

Anderson contends the court should have considered her education and employment history, lack of criminal history, cooperation with the investigation, her remorse, and her mental state as mitigators. The record reflects the court considered each factor, but found none significant.

The trial court found Anderson’s education and employment history were not mitigating factors, but instead should have enabled her to appreciate the wrongfulness of her acts. It noted evidence of her good character in the form of reference letters, but determined it was not a significant mitigating factor. The court found a mitigator in Anderson’s lack of criminal history. It considered Anderson’s cooperation and remorse, but found her remorse attributable to being apprehended, rather than regret for her conduct; Anderson was still attempting to deflect blame from herself to a roommate, rather than fully accepting responsibility for her actions.

2. Nature of the Offense and the Character of the Offender

Ind. Appellate Rule 7(B) empowers us to independently review and revise sentences authorized by statute if, after due consideration, we find the trial court’s decision inappropriate in light of the nature of the offense and the character of the offender. Reid v. State, 876 N.E.2d 1114, 1116 (Ind.2007). The “nature of offense” compares the defendant’s actions with the required showing to sustain a conviction under the charged offense, Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.2008), while the “character of the offender” permits for a broader consideration of the defendant’s character. Douglas v. State, 878 N.E.2d 873, 881 (Ind.Ct.App.2007). An appellant bears the burden of showing both prongs of the inquiry favor revision of her sentence. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006).

Anderson argues on appeal only the “character” prong and not the “nature of offense” prong. She has therefore waived any “nature of the offense” argument. See Day v. State, 898 N.E.2d 471, 472 (Ind.Ct.App.2008). Waiver notwithstanding, Anderson’s argument fails.

In reviewing the first prong of the inquiry, Anderson’s conduct clearly exceeds the elements necessary under the charged offenses. Anderson was convicted of criminal mischief, which required the State to prove she recklessly, knowingly, or intentionally damaged the property of LAEK, LLC and Lynn Scrogham, without consent and caused pecuniary loss of at least $2,500.00. See Ind.Code § 35-43-1-2. Anderson was aware of the state of the property, as she went there to feed the cats. Neither landlord consented to Anderson’s method of housing and maintaining the cats. Anderson caused $45,000 damage to the property of LAEK, LLC, and $13,358.11 in damage to the property of Lynn Scrogham.

Anderson’s convictions of animal cruelty required the State to prove that Anderson recklessly, knowingly, or intentionally abandoned or neglected an animal by restraining it in a manner that seriously endangered the animal’s life or health. See Ind.Code § 35-46-3-7. Anderson and her roommate resided at the Elmer Street property in 2006, but left the property around 2010 due to its dilapidated state. They left upwards of eighty-five cats in that dwelling with inadequate nourishment. The air quality test showed ammonia levels four times higher than normally expected for a living space. Anderson kept upwards of thirty-seven dead cats in her refrigerators and freezers. As a consequence of Anderson’s actions another 103 cats had to be euthanized. Anderson’s conduct far exceeded the necessary showing under these counts, and permitted an enhanced sentence.

As to Anderson’s character, she knew the state of affairs in the two properties and ignored the problem. Despite her education and occupation in the mental health profession, Anderson exhibited a lack of concern for the well-being of the cats. Nor did she exhibit concern for the welfare of her neighbors when she permitted the Elmer Street property to become an environmental hazard.

We cannot find Anderson’s sentence inappropriate based on her offense or character.

CONCLUSION

Anderson has not demonstrated the trial court abused its discretion in its consideration of mitigating factors. Additionally, we decline to exercise our authority to revise a sentence under App. R. 7(B) as Anderson’s sentence cannot be said to be inappropriate in light of her character and the nature of her offense.

Affirmed.

BAKER, J., and MATHIAS, J., concur.

      . Ind.Code § 35-43-1-2.

      . Ind.Code § 35-46-3-7.

      . Anderson rented the Elmer Street property wherein she maintains upwards of eighty-five cats, but does not reside there due to the property’s dilapidated state. Anderson also rented the St. Mary’s Avenue property wherein she and Tourney reside.

      . Anderson claims the court should have found a mitigator in her mental illness, but she did not assert this mitigator at the sentencing hearing. See Koch v. State, 952 N.E.2d 359, 374-75 (Ind.Ct.App.2011) (waiving mitigator that had not been raised at sentencing).


author: BARTEAU, Senior Judge.

text:
    George COLE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 29A02-1301-CR-4.
    Court of Appeals of Indiana.
    June 25, 2013.

      James D. Crum, Coots, Henke & Wheeler, P.C., Carmel, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARTEAU, Senior Judge.

STATEMENT OF THE CASE

George Cole appeals the denial of his petition for permission to file a belated notice of appeal following his 1963 murder conviction and life sentence. We affirm.

ISSUE

The sole issue in this appeal is whether the trial court abused its discretion by denying Cole’s petition for permission to file a belated notice of appeal.

FACTS AND PROCEDURAL HISTORY

In 1961, a cab driver was shot at the corner of 23rd and North Illinois Streets in Indianapolis. Cole was later charged with first degree murder and murder in attempt to perpetrate a robbery. In 1963, on the day of trial, Cole pleaded guilty to the lesser included offense of second degree murder. The trial court accepted the plea, entered a judgment of conviction, and dismissed the second count on the State’s request. At his sentencing hearing, Cole asked to withdraw his guilty plea, stating only that he had changed his mind and would rather be tried. The court denied the request and imposed the then-statutorily-mandated sentence of life imprisonment. Cole did not file a direct appeal.

In 1969, six years after sentencing, Cole filed a petition for post-conviction relief. The court appointed counsel for Cole and later heard evidence at a hearing. The petition was denied on March 22, 1971.

On April 2, 1971, Cole escaped from prison. Thirty years later in April 2001, he was apprehended and returned to prison. During his thirty-year period of escape, Cole neither talked to an attorney about his case nor tried to challenge his conviction or sentence. Upon being returned to prison, he filed several items, including the following:

— In May 2001, Cole filed a second petition for post-conviction relief, which was later dismissed.
— In November 2001, Cole filed a motion for jail time credit, which was later denied.
— In March 2002, an attorney entered an appearance for Cole. In January 2004, that attorney filed a request with this Court to file a successive petition for post conviction relief, which was later denied.
— In April 2003, Cole filed a clemency petition, which was apparently denied.
— In July 2007, Cole filed a motion for modification of sentence, which was later denied.
— In October 2008, Cole filed a motion to correct erroneous sentence, which was denied on December 8, 2008. Cole filed a notice of appeal on January 12, 2009, but this Court dismissed his appeal with prejudice.
— In February 2011, Cole filed a petition for jail time credit, which was later denied.

It was not until April 2012, nearly forty-nine years after his conviction and eleven years after he was returned to prison, that Cole filed a motion asking the court to appoint counsel to pursue a belated appeal. The court appointed counsel the same month, and counsel subsequently filed a petition for permission to file a belated notice of appeal. The State responded to the petition. At a hearing, Cole claimed he was unaware he could seek permission to file a belated appeal until April 2012. He also claimed he had proceeded pro se on everything he had filed from the time after his conviction up until the appointment of counsel in April 2012.

The court issued an order after taking the matter under advisement. In the order, the court determined that Cole was not credible in claiming he had just learned of the possibility of filing a belated notice of appeal. It further noted that a fact in favor of Cole was that he had not been advised of his right to appeal the denial of his request to withdraw his guilty plea, but it weighed that fact against his escape. The court then concluded:

When this Court considers the factors outlined above with the facts established at the hearing, considers the inconsistent statements of the Defendant[ ], and his escape from prison for thirty (30) years, and his eleven year delay after returning to prison in filing this Petition for Permission for Belated Notice of Appeal, the Court finds that the Defendant was not completely without fault nor was he diligent with this filing.

Appellant’s App. p. 10. The court thus denied the petition for permission to file a belated notice of appeal. Cole now appeals.

DISCUSSION AND DECISION

Belated notices of appeal are governed by Indiana Post-Conviction Rule 2(1), which provides:

(a) Required Showings. An eligible defendant convicted after a trial or plea of guilty may petition the trial court for permission to file a belated notice of appeal of the conviction or sentence ¾
(1) the defendant failed to file a timely notice of appeal;
(2) the failure to file a timely notice of appeal was not due to the fault of the defendant; and
(3) the defendant has been diligent in requesting permission to file a belated notice of appeal under this rule.

We review a trial court’s ruling on a petition for permission to file a belated notice of appeal for an abuse of discretion. Moshenek v. State, 868 N.E.2d 419, 422, 423-24 (Ind.2007). The defendant bears the burden of proving by a preponderance of the evidence that he was without fault in the delay of filing and was diligent in pursuing permission to file a belated notice of appeal. Id. at 422-23.

Cole contends he was both without fault in failing to file a timely notice of appeal and diligent in pursuing permission to file a belated notice of appeal. The State does not concede the lack of fault component but addresses only Cole’s lack of diligence. We agree that this case may be resolved on the diligence component alone. As to the diligence inquiry in this context, relevant considerations include the overall passage of time, the extent to which the defendant was aware of relevant facts, and the degree to which delays are attributable to other parties. Id. at 424.

The essence of Cole’s argument is that he was diligent because he pursued a belated appeal as soon as he learned from a fellow inmate in April 2012 that he could do so. He says his numerous filings since he was returned to prison are evidence he would have already pursued a belated appeal had he known of that option.

However, the trial court explicitly found that Cole was not credible in claiming he had just learned of the possibility of filing a belated notice of appeal. We may not disturb that credibility determination on appeal. See id. at 424 (“The trial court is in a better position to weigh evidence, assess the credibility of witnesses, and draw inferences.”).

In any event, Cole claimed he had never had counsel at any time after his conviction up until the appointment of counsel in April 2012. But the record shows he had the assistance of counsel in his proceedings for post-conviction relief and in filing a request with this Court to file a successive petition for post-conviction relief. This contradiction may well have reflected on Cole’s credibility. That he had counsel in those proceedings may also have led the trial court to believe that at least one of his attorneys would have discussed with him the possibility of a belated appeal. Regardless of the basis of the court’s credibility determination, it was well within its discretion to disbelieve Cole’s claim that he had just learned about belated appeals.

Given that the trial court did not believe Cole’s claim as well as the fact that nearly five decades had passed from the time of his conviction until he finally sought an appeal under Post-Conviction Rule 2, we cannot say the court abused its discretion by concluding Cole was not diligent in pursuing permission to file a belated notice of appeal and by thus denying his petition for permission to file a belated notice of appeal.

CONCLUSION

We therefore affirm.

ROBB, C.J., and BROWN, J., concur.

      . The trial court here held a hearing. Had there been no hearing, we would review the ruling on the petition for permission to file a belated notice of appeal de novo. See Bosley v. State, 871 N.E.2d 999, 1002 (Ind.Ct.App.2007).

        . Moshenek also noted that ‘‘[w]hen the overall time stretches into decades, a belated appeal becomes particularly problematic because of the risk that significant problems will be encountered in any retrial due to unavailable evidence or witnesses or failing memories:" 868 N.E.2d at 424.


author: VAIDIK, Judge.

text:
    Timothy W. PARISH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 64A03-1210-CR-438.
    Court of Appeals of Indiana.
    June 27, 2013.

      Alison L. Benjamin, James N. Thiros, Thiros & Stracci, P.C., Merrillville, IN, Attorneys for Appellant.

      Gregory F. Zoeller, Attorney General of Indiana, Chandra K Hein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Timothy W. Parish represented himself at trial and was convicted of two counts of Class D felony strangulation and one count of Class D felony domestic battery. Parish now appeals arguing that the trial court abused its discretion in denying him counsel at public expense and that he did not knowingly, intelligently, and voluntarily waive his right to counsel. We find that the trial court properly denied Parish’s request for counsel at public expense because he had $130,000 in equity in his house. However, we find that the facts and circumstances of this case do not warrant a knowing and intelligent waiver of Parish’s right to counsel because the trial court did not advise him of the dangers and disadvantages of self-representation. We therefore reverse and remand for a new trial.

Facts and Procedural History

In July 2011, R.S. and her nine-year-old son B.H. lived with twenty-five-year-old Parish and his mother in Portage, Indiana. R.S. and Parish were engaged. On the evening of July 10, B.H. was in his room when R.S. and Parish began arguing. After a few minutes, B.H. went downstairs and saw Parish choking his mother. When Parish pinned R.S. against the wall, B.H. kicked Parish in the groin. As B.H. ran away, Parish grabbed him and choked him to the point that he “couldn’t breathe that much.” 5-22-12 Tr. p. 29. B.H. eventually escaped to a neighbor’s house, and the neighbor called 911. When police arrived, R.S. told them that Parish had punched her all over, causing her pain. The police observed scratches on R.S.’s neck. However, R.S. requested that charges not be filed because she and B.H. needed a place to stay.

On July 11, the State charged Parish with two counts of Class D felony strangulation (one for R.S. and one for B.H.) and one count of Class D felony domestic battery related to R.S., which had been elevated to a felony because it was committed in the presence of a child less than sixteen years old.

On July 12, the trial court held an initial hearing on Parish’s charges and informed him of his right to counsel:

Your rights are granted to you by the Indiana [Constitution as well as the Constitution of the United States, and you do have the right to be represented by an attorney in this case. You may hire your own attorney if you choose. If you are indigent you may have an attorney assigned to represent you at little or no cost.

7-12-2011 Tr. p. 4. After advising Parish of his other rights, the trial court set Parish’s bond “at $3000 surety, which is $300 to a bondsman” or “$1000 in cash” and entered a no-contact order which prohibited Parish from having contact with either R.S. or B.H. Id. at 8. Parish posted a surety bond of $300 through a bondsper-son later that day.

The trial court held an omnibus hearing on September 8. The trial court asked Parish if he intended to maintain his not-guilty plea, and Parish said yes. 9-8-11 Tr. p. 3. The court then asked Parish if he planned to hire a lawyer, and Parish said no. Id. When the court asked Parish if he was going to represent himself, Parish said yes. Id. Notably, the court made no further inquiry into Parish’s decision to represent himself. The court confirmed that the pretrial conference was set for Decern-ber 2 and the jury trial was set for January 10, and the hearing ended. Id.

The pretrial conference was held on December 2, at which time the trial court asked Parish if he expected to proceed to trial on January 10. Parish said yes. When the court asked Parish if he was still going to represent himself, Parish said, “I’d like to see if I can get a public defender.” 12-2-11 Tr. p. 3. The trial court then placed Parish under oath in order to inquire into his financial status:

Q Where do you live, Tim?
A 6676 Liberty Ave., Portage, Indiana.
Q Do you live in a house, an apartment?
A House.
Q Who do you live with?
A Um, my girlfriend and now my mom.
Q And who’s your girlfriend?
A [R.SJ.
Q I beg your pardon?
A [R.S.].
Q Okay. Well, I’m not saying anything, Tim, but I’m just saying, you know, there’s a no-contact order that you’re not supposed to have any contact with [R.SJ.
A No, I don’t live there — I’m not—
Q Okay.
A —staying there now. No, I know that.
Q All right. So, where do you live?
A Um, pretty much with the one buddy. I jump around from two houses—
Q Okay.
A —until they allow me back in my house.
Q So, do you work?
A Yes.
Q Where do you work?
A I do security out of Chicago.
Q How much — how many hours a week do you work?
A Uh, 50. About — give or take 50.
Q What do you make per hour?
A Um, 11 — 11 something an hour.
Q What do you bring home every paycheck?
A I wanna say — like I said, the hours, but give or take 600.
Q Okay. And how many — is that every week?
A Every other week.
Q Every other week? You make 11 dollars an hour?
A Yeah.
Q And you work 50 hours every pay or every week?
A Every week.
Q Every week?
A By the time they take taxes out, I don’t know why but they take a lot of taxes out of my check.
Q All right. What do you do with your money you bring home?
A Bills.
Q What do you pay?
A Everything. I own — I own that house on Liberty Street.
Q Okay. Do you make a mortgage payment on it?
A No, I’m done paying it off.
Q So you own it?
A I own it.
Q Okay. How much is it worth?
AI would say 180.
Q Okay, and you don’t owe anything on it?
A One thirty to 150. No.
Q Well, you don’t qualify for a public defender, Tim. You’ve got an asset of $130,000.
A I tried.
Q Good point.

Id. at 4-6. At the end of the pretrial conference, the trial court told Parish that “if you’re planning to hire a lawyer, you might want to do that as soon as you can so they can get involved in this case.” Id. at 6-7.

On January 4, 2012, the State filed a motion to continue the jury trial. The trial court granted the motion and reset the jury trial to April 10. On January 19, Parish filed a motion for a speedy trial because the case had been “going on for too long.” Appellant’s App. p. 32. Parish was specifically concerned about his house: “I own it and my name is the only one on the deed and for some reason I’m the only one not allowed in the house. I’m struggling to pay the bills and live in another house.” Id. The State filed another motion to continue the trial, and the trial was reset to May 22.

A jury trial was held on May 22, and Parish represented himself. B.H. did not testify. R.S. testified, but she said that if she had her choice, she would still be living with Parish and the charges would never have been filed in the first place. R.H. also denied telling the police that Parish hit her, and she said that their fight was verbal only. The jury found Parish guilty of all three counts.

On June 7, private counsel entered an appearance on behalf of Parish. Parish was sentenced on September 27 to concurrent terms of three years, with six months served in the Porter County Jail and the remainder suspended to probation.

Parish now appeals.

Discussion and Decision

Parish raises two issues on appeal. First, Parish contends that the trial court abused its discretion in denying him counsel at public expense. Second, Parish contends that he did not knowingly, intelligently, and voluntarily waive his right to counsel.

I. Right to Appointed Counsel at Public Expense

Parish contends that the trial court abused its discretion in denying him counsel at public expense. It is within the trial court’s discretion to determine whether counsel shall be appointed at public expense. Shively v. State, 912 N.E.2d 427, 430 (Ind.Ct.App.2009). The court does not, however, have discretion to deny counsel to an indigent defendant. Id. The court’s duty to appoint competent counsel arises at any stage of the proceedings when the defendant’s indigency causes him to be without the assistance of counsel. Id. A failure to permit a defendant to have counsel amounts to a denial of due process, and there can be no valid criminal trial unless a defendant is represented by counsel if he desires representation. Id. There is no set specific financial guideline for the determination of indigency. Id. It is clear, however, that a defendant does not have to be totally without means in order to be entitled to counsel at public expense. Id. Counsel must be appointed if a defendant cannot employ an attorney without imposing substantial hardship on himself or his family. Id. The fact that a defendant is able to post a bail bond is a factor to be considered but is not sufficient in itself to preclude a defendant from being found to be indigent. See Graves v. State, 503 N.E.2d 1258, 1262 (Ind.Ct.App.1987). An indigency determination cannot be made “on a superficial examination of income and ownership of property but must be based on as thorough an examination of the defendant’s total financial picture as is practical.” Shively, 912 N.E.2d at 430-31 (quotation omitted). A determination of ability to pay must include a balancing of assets against liabilities and a consideration of the amount of the defendant’s disposable income or other resources reasonably available to him after the payment of fixed or certain obligations. Id. at 431. Moreover, because the right to counsel is a fundamental constitutional right, the record in each ease must show that careful consideration of indigency, commensurate with the right at stake, has been given to the defendant. Id.

Parish argues that the trial court abused its discretion because it failed to consider his “complete financial picture.” Appellant’s Br. p. 20. Parish concedes that the trial court inquired about where he lived, who he lived with, where he worked, how much he earned per paycheck, what he did with the money he brought home, and how much equity he had in his home. However, Parish claims that the trial court failed to inquire into his monthly expenses, such as food, clothing, transportation, utilities, and medical/dental expenses. When the trial court asked Parish what he did with the money he brought home, Parish responded, “Bills.” And when the court followed up by asking what he paid, Parish generically responded, “Everything.” The trial court’s inquiry into Parish’s monthly expenses was sidetracked when Parish told the court that he owned his home free and clear of any mortgage. When the trial court asked Parish how much his home was worth, Parish said $130,000-$150,000. At this point, the trial court told Parish that he did not qualify for a public defender, to which Parish cutely responded, “I tried.”

Here, the record shows that Parish had substantial equity in his home and despite the opportunity to list his monthly bills Parish did not do so. Parish also posted bond on the same day that the trial court set it and obtained an attorney to represent him at sentencing without any financial assistance from the court. Parish should have been required to use the equity in his home before being appointed counsel at public expense. Accordingly, the trial court properly denied Parish’s request for counsel at public expense. See Redmond v. State, 518 N.E.2d 1095, 1096 (Ind.1988) (distinguishing facts in Red mond from facts in Moore v. State, 273 Ind. 3, 401 N.E.2d 676 (1980), where the defendant had equity in real estate as well as equipment in a well-drilling business, and the dissent found that the defendant should be required to make use of those assets before being appointed pauper counsel; the defendant in Redmond had no such assets).

II. Waiver of Right to Counsel

Parish next contends that he did not knowingly, intelligently, and voluntarily waive his right to counsel. The Sixth Amendment, applicable to the states through the Fourteenth Amendment, guarantees a criminal defendant the right to counsel before he may be tried, convicted, and punished. Hopper v. State, 957 N.E.2d 613, 617 (Ind.2011) (citing Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). This protection also encompasses an affirmative right for a defendant to represent himself in a criminal case. Id. However, “ ‘[i]t is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts.’ ” Id. at 617-18 (quoting Faretta, 422 U.S. at 834, 95 S.Ct. 2525). The defendant who waives his right to counsel and proceeds to trial unpresented is forgoing “many of the traditional benefits associated with the right to counsel,” and in order to represent himself the accused must “knowingly and intelligently forgo those relinquished benefits.” Faretta, 422 U.S. at 835, 95 S.Ct. 2525. “[H]e should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” Id. (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942)).

There is no particular formula or script that must be read to the defendant. Hopper, 957 N.E.2d at 618. “The information that must be given ‘will depend on a range of case-specific factors, including the defendant’s education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding.’ ” Id. (quoting Iowa v. Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004)).

Courts determining whether a waiver of counsel for trial was made voluntarily and intelligently must consider (1) the extent of the court’s inquiry into the defendant’s decision, (2) other evidence in the record that establishes whether the defendant understood the dangers and disadvantages of self-representation, (3) the background and experience of the defendant, and (4) the context of the defendant’s decision to proceed pro se. Id. These factors are taken from case law from the Seventh Circuit, see United States v. Hoskins, 243 F.3d 407 (7th Cir.2001), and applied to situations as diverse as trial for battery, Poynter v. State, 749 N.E.2d 1122 (Ind.2001), and for capital murder, Kubsch v. State, 866 N.E.2d 726 (Ind.2007), reh’g denied. Hopper, 957 N.E.2d at 618.

Here, the State concedes that the trial court did not advise Parish of the dangers and disadvantages of self-representation. Nevertheless, the State argues that Parish was independently aware of the dangers and disadvantages of self-representation. Applying the first factor from Hopper, the trial court made no inquiry into Parish’s decision to proceed pro se. When Parish told the trial court that he was going to represent himself, the court did not ask any questions, and the hearing simply ended.

Applying the second factor — whether there is other evidence in the record that establishes that the defendant understood the dangers and disadvantages of self-representation — Parish was advised during his initial hearing of his right to an attorney. But other than this advisement— which was given to all the defendants present in the courtroom for their initial hearing — the trial court made only one other reference about Parish’s “right” to counsel. That is, after Parish was denied a public defender at his pretrial conference, the trial court told him that “if you’re planning to hire a lawyer, you might want to do that as soon as you can so they can get involved in this case.” 12-2-12 Tr. p. 6-7.

As for the third factor, the record does not reveal the educational background and legal experience of Parish, who was twenty-five years old and employed at the time of the offenses in this case, because the trial court failed to conduct any inquiry. And because the record on appeal does not contain any information regarding Parish’s sentence, we do not know whether he has a criminal history.

Finally, as for the context of Parish’s decision to proceed pro se, it appears that Parish ultimately represented himself based on the trial court’s denial of his request for a public defender.

When a defendant asserts the right of self-representation, the court should tell the defendant of the “dangers and disadvantages of self-representation.” Faretta, 422 U.S. at 835, 95 S.Ct. 2525. Here, as the State concedes, the trial court did not advise Parish of the dangers and disadvantages of self-representation. This lack of advisement weighs heavily against finding a knowing and intelligent waiver. And the record does not demonstrate that Parish independently understood the dangers and disadvantages of self-representation. Although the trial court told Parish at his pretrial conference that if he was planning to hire a lawyer he should do so soon, this was not enough. The facts and circumstances of this case do not warrant a knowing and intelligent waiver. The importance of the right to counsel cautions that trial courts should at a minimum reasonably inform defendants of the dangers and disadvantages of proceeding without counsel. Poynter, 749 N.E.2d at 1128. That was not done here. Accordingly, the judgment is reversed, and this case is remanded for a new trial.

Affirmed in part, reversed in part, and remanded.

KIRSCH, and PYLE, JJ., concur.

      . Although not raised as a separate issue, Parish points out several instances of vouching at trial, which he did not object to. For example, B.H. did not testify at trial. But Corporal Lisa Duncan did. The prosecutor questioned Corporal Duncan as follows:
      Q Uh, Corporal Duncan, in your off-duty life you have several children?
      A I do, three boys.
      Q So beyond your professional training you do have extensive personal experience dealing with young children, especially boys, and observing how they act in response to emotional situations?
      A Yes, I do.
      Q In your training and experience did you feel that [B.H.j's reactions were genuine, or at some point did you come to suspect that he was exaggerating or lying about what happened that night?
      A No, I completely believed him. I— There’s no way he would have been faking the nervousness that he was displaying or eyes darting around the room, the shakiness in his voice. He was genuinely scared.
      5-22-12 Tr. p. 27. Corporal Duncan also spoke with the neighbor who called 911. Corporal Duncan testified that the neighbor told her that B.H. was “a good kid” and "she believed what he was saying. He appeared truthful.” Id. at 29; see abo id. at 30 ("Q Did you feel he was exaggerating what had happened ... ? A No, no. He appeared truthful.”). On retrial, we caution against such vouching, which was exacerbated by the fact that B.H. did not testify at trial.

      . Parish makes a passing remark that he had to maintain two residences because of the no-contact order. At a pretrial conference, Parish said that he mainly lived with one buddy but would jump around between two houses. However, Parish never presented any evidence that he was required to pay rent or incurred further debt as a result of these living arrangements.

      . The State’s argument is based on the sequence of events that after telling the trial court that he wanted to proceed pro se, Parish filed a motion for speedy trial. Then, after filing this motion, Parish requested a public defender. Thus, the State’s argument continues, "It is reasonable to infer that after Parish attempted to proceed pro se by, for example, filing his Motion for a Speedy Trial and responding to the State’s discovery request, he realized the dangers and disadvantages of proceeding pro se and then requested counsel.” Appellee's Br. p. 12. The problem with the State’s argument is that Parish told the trial court that he wanted to proceed pro se at the September 8, 2011, omnibus hearing but then changed his mind and requested a public defender at the December 2, 2011, pretrial conference. Parish did not file his motion for speedy trial until January 19, 2012, and the State did not request discovery from Parish until April 12, 2012 — both dates well after Parish was denied a public defender. Thus, the timing does not support the State’s argument, and we will not consider this argument.