text:
    In the Matter of Mark J. HUGHES, Respondent.
    No. 98S00-1208-DI-477.
    Supreme Court of Indiana.
    Jan. 8, 2013.
   PUBLISHED ORDER IMPOSING RECIPROCAL DISCIPLINE

The Indiana Supreme Court Disciplinary Commission filed a “Verified Notice of Foreign Discipline and Petition for Issuance of an Order to Show Cause,” advising that Respondent was disciplined by the State of Arizona and requesting, pursuant to Indiana Admission and Discipline Rule 23(28), that reciprocal discipline be imposed in this state. On August 21, 2012, this Court issued an “Order to Show Cause,” to which Respondent has not responded.

Respondent was admitted to practice law in Indiana and in Arizona. On May 10, 2012, the presiding disciplinary judge of the Supreme Court of Arizona entered a “Judgment of Disbarment,” accepting Respondent’s consent to disbarment in which he admitted to violating that jurisdiction’s rules of professional conduct.

The Court finds that there has been no showing, pursuant to Admission and Discipline Rule 23(28)(c), of any reason why reciprocal discipline should not issue in this state.

Being duly advised, the Court orders Respondent suspended indefinitely from the practice of law in this state as of the date of this order. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26) The costs of this proceeding are assessed against Respondent.

If Respondent is reinstated to practice in Arizona, Respondent may file a “Motion for Reinstatement” pursuant to and in full compliance with Admission and Discipline Rule 23(28)(e), provided there is no other suspension order in effect. In particular, reinstatement in Indiana is contingent on the cure of Respondent’s current suspensions for noncompliance with this state’s continuing legal education requirements and for nonpayment of registration fees.

The Clerk of this Court is directed to forward notice of this Order to Respondent, to the Indiana Supreme Court Disciplinary Commission, to the Supreme Court of Arizona, to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


source: Caselaw Access Project

author: DICKSON, Chief Justice.

license: Public Domain

text:
    Andre GONZALEZ, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
    No. 45S03-1206-CR-307.
    Supreme Court of Indiana.
    Jan. 10, 2013.

      Benjamen W. Murphy, Merrillville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   DICKSON, Chief Justice.

After the defendant had fully served his sentence of imprisonment and probation for Child Solicitation, and during the ten-year period of his required registration as a sex offender, the statutory registration requirement was amended to require lifetime registration in certain circumstances. The defendant’s offense fell within these circumstances. Upon completion of his ten-year registration requirement, the defendant unsuccessfully sought his removal from the Sex Offender Registry, claiming refuge under the Indiana Constitution’s prohibition against ex post facto laws. We hold that, under the facts of this case and as applied to this defendant, the Ex Post Facto Clause of the Indiana Constitution prohibits retroactive application of the lifetime registration requirement.

In 1997, the defendant, Andre Gonzalez, pled guilty to Child Solicitation, a class D felony. Ind.Code § 35-42-4-6. The trial court imposed a three-year sentence, with eighteen months incarcerated and eighteen months on probation. Upon discharge from probation in 1999, the defendant was required to register as a sex offender for ten years pursuant to the Sex Offender Registration Act (“Act”). See Ind.Code § 5-2-12-5 (1996). In 2006, the legislature amended the Act to require certain sex offenders, based on the details of their crimes, to register with local law enforcement for life. See, e.g., Ind.Code § 11 — 8— 8 — 19(c) (requiring lifetime registration if offender over age eighteen and victim under age twelve at time of crime). In 2010, after the defendant had completed ten years of registration, he wrote the trial court, requesting the removal of his registration requirement. On January 27, 2011, the defendant, by counsel, filed a “Verified Petition to Remove Sex Offender Designation Pursuant to Ind.Code 11-8-8-22.” Appellant’s App’x at 34. The trial court denied the petition, and the defendant appealed. The Court of Appeals reversed. Gonzalez v. State, 966 N.E.2d 648 (Ind.Ct. App.2012). The State sought transfer, urging that the decision of the Court of Appeals is inconsistent with precedent. We granted transfer and thus consider the appeal and issues as originally presented to the Court of Appeals. Ind. Appellate Rule 58(A).

In his appeal the defendant contends that, as applied to him, the 2006 amendments to the Act, which belatedly extend his registration requirement from ten years to life, violate the prohibition against ex post facto laws contained in the Indiana Constitution. Ind. Const, art. 1, § 24. Important in the defendant’s claim is that there is no opportunity for review of the defendant’s future dangerousness or complete rehabilitation. The State asserts that the availability of a review process is irrelevant to the ex post facto determination.

The Indiana Constitution states “No ex post facto law ... shall ever be passed.” Id. This provision prohibits, in relevant part, the passage of any law “which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.2d 17, 22 (1981) (quoting Cummings v. Missouri, 71 (4 Wall.) U.S. 277, 325-26, 18 L.Ed. 356, 364 (1867)) (internal quotation marks omitted). The policy underlying the Ex Post Facto Clause is to give effect to the fundamental principle that “persons have a right to fair warning of that conduct which will give rise to criminal penalties.” Armstrong v. State, 848 -N.E.2d 1088, 1093 (Ind.2006) (quoting Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 992-93, 51 L.Ed.2d 260, 265 (1977)).

In evaluating an ex post facto claim under the Indiana Constitution we apply what is commonly known as the “intent-effects” test. Wallace v. State, 905 N.E.2d 371, 378 (Ind.2009). Under the first prong of this test, we determine what type of scheme the legislature intended the statute to establish. Id. (citing Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 1146-47, 155 L.Ed.2d 164, 176 (2003)). If the legislature’s intention was to impose punishment, the inquiry ends and an ex post facto violation is found. If, however, the legislature’s intention was regulatory or civil in nature, then the court must move to the second prong of the inquiry to determine whether the effects of the statute are so punitive as to transform the regulatory scheme into a criminal penalty. See id.

First, “it is difficult to determine legislative intent since there is no available legislative history and the Act does not contain a purpose statement.” Wallace, 905 N.E.2d at 383 (quoting Spencer v. O’Connor, 707 N.E.2d 1039, 1043 (Ind.Ct. App.1999)). However, we are aided by the principle that every statute stands before us clothed with the presumption of constitutionality until that presumption is clearly overcome by a contrary showing. State v. Rendleman, 603 N.E.2d 1333, 1334 (Ind. 1992). The defendant has put forth no evidence of punitive intent on the part of the legislature with respect to the 2006 amendments to the Act. Therefore, as this Court has consistently done, we assume without deciding that, in passing the Act, “the legislature’s intent was to create a civil, non-punitive, regulatory scheme.” State v. Pollard, 908 N.E.2d 1145, 1150 (Ind.2009); see also Wallace, 905 N.E.2d at 379.

Second, we consider whether the effects of the Act, as applied to the defendant, are so punitive in nature as to constitute a criminal penalty. Wallace, 905 N.E.2d at 378. In evaluating a statute’s effects we are guided by the seven factors listed in Kennedy v. Mendozar-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644, (1963).

[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment—retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.

Wallace, 905 N.E.2d at 379 (alterations in original) (quoting Mendozar-Martinez, 372 U.S. at 168-69, 83 S.Ct. at 567-68, 9 L.Ed.2d at 661). No one factor is determinative. We address each factor in turn, noting that “our task is not simply to count the factors on each side, but to weigh them.” Id. (quoting State v. Noble, 171 Ariz. 171, 829 P.2d 1217, 1224 (1992)) (internal quotation marks omitted).

1. Affirmative Disability or Restraint

The first factor is “[w]hether the sanction involves an affirmative disability or restraint.” Mendozar-Martinez, 372 U.S. at 168, 83 S.Ct. at 567, 9 L.Ed.2d at 661. We have found that the Act imposes significant affirmative obligations and a severe stigma on those to whom it applies. Lemmon v. Harris, 949 N.E.2d 803, 811 (Ind.2011) [hereinafter Harris ]; Jensen v. State, 905 N.E.2d 384,. 391 (Ind.2009); Wallace, 905 N.E.2d at 379. The duties on the defendant are significant: he must provide a wide array of personal information which is made public, Ind.Code § 11-8-8-8, must register in person with local law enforcement and have his photograph taken annually, Ind.Code § ll-8-8-14(a), must re-register upon changes in residential or employment status, Ind.Code § 11-8-8-11, and must carry valid identification at all times, Ind.Code § 11-8-8-15, among other requirements.

The State contends that, because the defendant’s offense, Child Solicitation, has always been a qualifying sex offense, and because he was already required to register as a sex offender at the time of his discharge from probation, see Ind.Code § 5-2-12-5 (1996), there is no further burden or restraint placed on the defendant aside from a change in the duration of the registration requirement. Appellee’s Br. at 7-8. However, this Court has found that an increase to a lifetime registration requirement was a particularly important additional restraint which leans in favor of treating the effects of the Act as punitive. Harris, 949 N.E.2d at 811. Here, we again find that the extension of such intrusive registration obligations to a lifetime requirement is an additional affirmative restraint which weighs in favor of treating the effects of the Act as punitive.

2. Sanctions That Have Historically Been Considered Punishment

The next factor, “whether [the sanction] has historically been regarded as a punishment,” Mendozar-Martinez, 372 U.S. at 168, 83 S.Ct. at 567, 9 L.Ed.2d at 661, which involves the dissemination and widespread availability of offenders’ personal information, has been found to resemble the historical punishment of “shaming.” See Harris, 949 N.E.2d at 811; Jensen, 905 N.E.2d at 892. By extending the duration of the registration requirement from ten years to life, the Act has the effect of increasing shame on the defendant, which weighs in favor of punitive treatment.

S. Finding of Scienter

In applying the third factor, “whether [the statute] comes into play only on a finding of scienter,” Mendoza-Martinez, 372 U.S. at 168, 83 S.Ct. at 567, 9 L.Ed.2d at 661, our focus is whether the sanction is linked to a showing of mens rea. If so, it is more likely to be considered punishment. Here, the defendant’s criminal conviction for Child Solicitation is a prerequisite for registration, and this offense requires a showing of mens rea, as do the vast majority of offenses to which the Act applies. Wallace, 905 N.E.2d at 381. Therefore, this factor also weighs in favor of treating the effects as punitive.

A Traditional Aims of Punishment

The fourth factor considers “whether [the statute’s] operation will promote the traditional aims of punishment— retribution and deterrence.” Mendozar-Martinez, 372 U.S. at 168, 83 S.Ct. at 567, 9 L.Ed.2d at 661. The more the Act promotes these traditional aims of punishment, the more likely it is to be punitive. Hams, 949 N.E.2d at 812 (citing Jensen, 905 N.E.2d at 393). Although lifetime registration required by the Act has a likely deterrent effect and promotes community condemnation of offenders, it also serves a valid regulatory function by providing the public with information related to community safety. As to the relative punitive or regulatory values served by this factor, we are guided by prior decisions of this Court that have not found deterrent and retributive effects as to a defendant claiming that the increased registration period violates the Ex Post Facto Clause, and that have interpreted this factor as non-punitive as to such a defendant. Compare Harris, 949 N.E.2d at 812 (offense required registration both before and after 2007 amendments to Act; factor favored non-punitive treatment), with Wallace, 905 N.E.2d at 381-82 (offense did not require registration at time committed; factor favored punitive treatment). This factor weighs in favor of treating the effects of the Act as non-punitive.

5. Applicability Only to Criminal Behavior

The fifth factor for consideration is “whether the behavior to which [the statute] applies is already a crime.” Mendoza-Martinez, 372 U.S. at 168, 83 S.Ct. at 567, 9 L.Ed.2d at 661. Although the registration requirement is triggered exclusively by criminal behavior, the defendant’s offense, Child Solicitation, was already a registration-triggering offense at the time of commission. Our prior cases, in analogous circumstances, have weighed this factor in favor of treating the enhanced registration period as non-punitive as applied. Harris, 949 N.E.2d at 812; Jensen, 905 N.E.2d at 393. We decline to depart from our precedent.

6. Advancing Non-Punitive Interest

Under the sixth factor, we determine “whether an alternative purpose to which [the statute] may rationally be connected is assignable for it.” Mendoza-Martinez, 372 U.S. at 168-69, 83 S.Ct. at 567-68, 9 L.Ed.2d at 661. Because the Act advances the legitimate regulatory purpose of protecting the public from repeat sexual crime offenders, our cases have consistently treated this factor as non-punitive. Harris, 949 N.E.2d at 812; Pollard, 908 N.E.2d at 1152-53; Jensen, 905 N.E.2d at 393; Wallace, 905 N.E.2d at 383. Likewise, here, this factor weighs in favor of treating the effects of the Act as non-punitive.

7. Excessiveness in Relation to Articulated Purpose

The seventh and final factor to be considered is “whether [the statute] appears excessive in relation to the alternative purpose assigned.” Mendoza-Martinez, 372 U.S. at 169, 83 S.Ct. at 568, 9 L.Ed.2d at 661. Our previous cases have reached differing results based on the outcome of this final factor.

In Wallace, we determined the seventh factor to be punitive for a defendant convicted and released prior to the Act’s 1994 passage. In so doing, we found it significant that “the Act provides no mechanism by which a registered sex offender can petition the court for relief from the obligation of continued registration and disclosure. Offenders cannot shorten their registration or notification period, even on the clearest proof of rehabilitation.” Wallace, 905 N.E.2d at 384. In Jensen, this Court found that the effects of the Act applied differently to Jensen than they had to Wallace. We first noted that the 2006 amendments had changed nothing with regard to Jensen’s actual disclosure requirements; they had changed only the duration of the requirement. Jensen, 905 N.E.2d at 394. Second, Jensen, unlike Wallace, was able to petition the court after ten years for reconsideration of his status as a sexually violent predator (“SVP”). Id. (citing Ind.Code § 35-38-1-7.5(g) (2006)). We thus concluded that the seventh factor weighed in favor of non-punitive treatment. Id.; see also Harris, 949 N.E.2d at 812-13 (finding seventh factor non-punitive due to availability of individualized review of SVP status under Indiana Code Section 35 — 38—1—7.5(g)).

Here, unlike defendants Jensen and Harris, the defendant is not an SVP. Under Indiana law, there are two avenues by which a sex offender may qualify as an SVP. First, a person can qualify as an SVP by reason of a “mental abnormality or personality disorder that makes the individual likely to repeatedly commit a sex offense.” Ind.Code § 35-38-l-7.5(a). This determination may be made by the court upon request by the prosecuting attorney. Ind.Code § 35-38-l-7.5(e) (providing that, if it grants the motion of the prosecuting attorney, the court shall conduct a hearing at which two court-appointed psychologists or psychiatrists with expertise in criminal behavior disorders evaluate the person and testify). Second, a person may become an SVP by virtue of the offense committed. Ind.Code § 35-38-l-7.5(b). Here, the defendant neither had a hearing to determine SVP status under subsection (a), nor committed a qualifying offense under subsection (b). Rather, his lifetime registration requirement arose under Indiana Code Section ll-8-8-19(c) due to the nature of his offense and the fact that, when committed, the defendant was at least eighteen years of age and the victim less than twelve years of age. Thus, unlike Jensen and Harris, the defendant has no available channel through which he may petition the trial court for review of his future dangerousness or complete rehabilitation. Compare Ind.Code § ll-8-8-19(b) (providing that an SVP “is required to register for life”), and Ind.Code § 35-38-1-7.5(g) (allowing an SVP to “petition the court to consider whether the person should no longer be considered a sexually violent predator”), with Ind. Code § 11-8-8-19(c) (providing that a sex offender falling under the section [i.e. a uon-SVP] “is required to register for life”), and Ind. Code § ll-8-8-22(j) (allowing a non-SVP asserting a claim of ex post facto punishment to petition the trial court to remove the designation of sex offender or to permit registration under less restrictive conditions). Future dangerousness or complete rehabilitation are not grounds upon which a non-SVP could base such a petition.

The State contends that a distinction must be made between an SVP whose registration requirement is based on his or her mental state and someone in the defendant’s position whose increased registration requirement is “based on facts admitted by him ... that do not change with the passage of time, or with rehabilitation.” Appellee’s Trans. Br. 6-7. As noted above, this seventh Mendoza-Martinez factor requires that we consider whether the retroactive application appears excessive in relation to the alternative purpose assigned. The alternative purpose is protection of the public from repeat sexual crime offenders. The degree to which a prior offender has been rehabilitated and does not present a risk to the public is thus integral to our evaluation of whether an extension of the ten-year registration requirement is reasonable in relation to such public protection. The availability of meaningful review of an offender’s future dangerousness is therefore germane to the determination of whether a statute’s effects are excessive. Under the procedures contained in Indiana Code Section 11-8-8-22, the sole avenue of relief available to a non-SVP defendant, a trial court may, if it chooses, summarily dismiss an offender’s petition without ever setting a hearing. Ind.Code § ll-8-8-22(e)(i )• Further, Indiana Code Section 11-8-8-22 may be utilized only when there is an ameliorative change in federal or state law applicable to an offender’s prior conduct, Ind.Code § 11 — 8—8—22(b), (g), or when an offender files an ex post facto claim, Ind.Code § 11— 8-8-22(j). Neither of these avenues of relief relates to an offender’s future dangerousness in relation to the alternative purpose assigned, protection of the public.

In the present case, the defendant, Gonzalez, as a non-SVP, may not predicate his request for relief on the grounds that he has been rehabilitated and presents no risk to the public. And the trial court has refused to grant a hearing despite his repeated attempts to seek the trial court’s review of his claim of ex post facto punishment. Thus, as to this defendant, we find that the retroactive imposition of a lifetime registration requirement appears excessive in relation to the purpose of protecting the public from repeat sexual crime offenders. For these reasons, we find this seventh factor weighs slightly in favor of treating the enhanced registration period as punitive rather than non-punitive.

Conclusion

We apply the seven Mendoza-Martinez factors to guide our evaluation of the defendant’s claim that, as applied to him, the retroactive imposition of a lifetime registration period violates the Ex Post Facto Clause. Our task is not merely to determine whether there are more punitive or non-punitive factors, but to consider them collectively to determine whether the application of the challenged statute’s effects upon the defendant are so punitive in nature as to constitute a criminal penalty. See Wallace, 905 N.E.2d at 378-79. The underlying conviction of the defendant for Child Solicitation was for a D felony, the lowest class of felony under Indiana’s criminal code. Although the defendant was sentenced to the maximum term of three years, eighteen months were suspended to probation. Because of the nature of the offense, the then-prevailing statutes required him to register as a sex offender for ten years, which registration he completed. As we collectively weigh the punitive and non-punitive nature of the seven factors as they apply to this defendant and his circumstances, we find that to apply the 2006 amendments so as to subject this defendant to a lifetime registration requirement violates the Ex Post Fac-to Clause of the Indiana Constitution.

We reverse the denial of the defendant’s petition to remove the lifetime registration requirement and remand for further proceedings consistent with this opinion.

DAVID, MASSA, RUSH, JJ., concur.

RUCKER, J. concurs in result.

      . At the time of the offense, the victim was the nine-year-old child of the defendant’s live-in girlfriend. Appellant's App’x at 23.

      . The defendant makes his ex post facto challenge solely on the basis of the Indiana Constitution and not the U.S. Constitution. See Appellant’s App'x 35 (referencing only the Indiana Constitution in his Petition); Appellant’s Br. at 7 ("Andre only raises a state claim which seems to offer more protection.”).

      . While Indiana courts have adopted an approach consistent with the federal standard through use of the intent-effects test, see Hev-nerv. State, 919 N.E.2d 109, 111 (Ind.2010); Wallace v. State, 905 N.E.2d 371, 378 (Ind. 2009), the defendant is correct in his assertion that "Indiana does not use the heightened standard of clearest proof ... as used by the United States Supreme Court....” Appellant’s Br. at 7; Wallace, 905 N.E.2d at 378 n. 7 (“The heightened standard of clearest proof is not consistent with this State's decisional law.”). Thus, our analysis under the intent-effects test is independent from that of the federal standard. See Wallace, 905 N.E.2d at 378.

      . See Indiana Code Section 35-42-4-6(3) (1994), the law in place at the time the defendant committed his crime:
      A person eighteen (18) years of age or older who knowingly or intentionally solicits a child under twelve (12) years of age to engage in any fondling or touching intended to arouse or satisfy the sexual desires of either the child or the older person commits child solicitation. Id. (emphasis added).

      . It is important to note that under our state constitution the primary aim of punishment is rehabilitation, not retribution or deterrence. Ind. Const, art. 1, § 18.

      . Here, as in Jensen, the effect of the 2006 amendments was to lengthen the duration of the registration requirement without adding any additional restraints or burdens. However, the defendant's situation here differs from that of Jensen in that, at the time the defendant committed his crime in 1996, the Act was less restrictive than it was at the time of Jensen’s crime in 1998. In 1996, limited information was available on offenders, the verification process was minimal, and the availability of information to the public was limited. Amendments to the Act in 1998 imposed heavy restraints on offenders related to notification requirements and verification of the disclosed information. Wallace, 905 N.E.2d at 375-76 (noting that the 1998 amendments require disclosure of an offender's fingerprints, photograph, address, complete criminal history, and information concerning treatment of mental disorders, and that the 1998 amendments require local law enforcement to verify the offender’s current residence by mailing a form to the offender once per year, which the offender must return in person).

      . While it is true that an SVP's petition under Indiana Code Section 35-38-1-7.5(g) may also be dismissed by the trial court without a hearing, id. ("A court may dismiss a petition filed under this subsection or conduct a hearing to determine if the person should no longer be considered a sexually violent predator.”), that section also expressly allows an SVP to repeatedly file such petition "not more than one (1) time per year.” Id. Thus, if an SVP’s petition is dismissed by the trial court, the SVP has the opportunity to re-petition annually. Id. But if a non-SVP’s petition is summarily dismissed by the trial court, Indiana Code Section 11-8-8-22 offers no similar express opportunity to re-petition the trial court unless or until there is a further ameliorative or punitive change in the law. The statute does not expressly permit (nor does it deny) a non-SVP the opportunity to file repeated requests for review of a lifetime registration requirement based on a claim of ex post facto punishment. We find this distinction to magnify the disparity as to the availability of meaningful review.


author: BARNES, Judge.

text:
    Stephen WILLIAMS, Special Administrator of the Estate of Roscoe Petty, et al., Appellant-Defendant, v. SAFE AUTO INSURANCE COMPANY, Appellee-Plaintiff.
    No. 11A01-1202-CT-70.
    Court of Appeals of Indiana.
    Sept. 21, 2012.
    Ordered Published Nov. 29, 2012.

      Steven V. Caplin, Caplin Sniderman, P.C., Carmel, IN, Christopher B. Gambill, Noah L. Gambill, Wagner, Crawford and Gambill, Terre Haute, IN, Attorneys for Appellant.
    Kirk A. Horn, Mandell Horn McGrath & Reynolds, P.C., Carmel, IN, Attorney for Appellee.
   OPINION

BARNES, Judge.

Case Summary

Stephen Williams, special administrator of the Estate of Roscoe Petty, (“Estate”) appeals the trial court’s grant of summary judgment to Safe Auto Insurance Co. (“Safe Auto”) in Safe Auto’s declaratory judgment action. We affirm.

Issue

The Estate raises two issues, which we consolidate and restate as whether the trial court properly determined that there was no coverage under the Safe Auto policy for the Estate’s negligent entrustment claim against Safe Auto’s insured.

Facts

In May 2008, Safe Auto issued a policy of automobile insurance (“Policy”) to David Smith, Jr., which provided, in part:

INSURING AGREEMENT

We will pay damages, other than punitive or exemplary, for bodily injury or property damage for which you become legally responsible because of an auto accident....
Liability coverage will apply to any other person driving your covered auto with your permission, provided they are not a resident of your household and do not use your covered auto on a regular basis.
:J: ⅜ ⅜ ⅜ ⅜ ⅜
PROTECTION FOR OTHERS
Anyone with a valid driver license or valid driving privileges using your covered auto with the covered auto owner’s permission, and within the scope of such permission, who is not a named insured under a valid and effective auto insurance policy, has the same rights and obligations that you have under this coverage....
⅜ ⅜ ⅜ ⅜ ⅝ ⅜:
General Provisions
Valid Driver License
No coverage is afforded under any section of this policy if the covered auto is being operated by a person who is not a qualified, licensed driver, or is without a valid driver license, or whose driver license is expired, revoked or suspended, or is in violation of any condition of their driving privileges, or is without privileges to drive for any reason.

Appellee’s App. pp. 25, 32.

On September 1, 2008, Smith allowed his friends, Roscoe Petty and Joseph Greene, to borrow his vehicle for a drive from Terre Haute to Indianapolis. Greene had been drinking alcohol that day, and there are some allegations that Petty had also been drinking. There is some dispute about whether Smith authorized Petty or Greene to drive. At some point, Ralph Rogers joined Petty and Greene. Neither Greene nor Rogers had a valid driver’s license. The vehicle was involved in a single car accident on State Road 59 in Clay County, and Petty died as a result of the accident. It is also disputed who was driving the vehicle at the time of the accident.

In January 2009, the Estate filed a wrongful death complaint against Greene and Smith. In Count I, the Estate alleged that Greene was driving at the time of the accident and that he was negligent. In Count II, the Estate alleged that Smith negligently entrusted the vehicle to Greene. In February 2009, Safe Auto filed this declaratory judgment action against the Estate, Smith, Rogers, and Greene, apparently claiming that it owed no coverage under the Policy and no duty to defend Smith due to exclusions for an unlicensed driver and lack of permission for Greene or Rogers to use the insured vehicle.

Safe Auto filed a motion for summary judgment in its declaratory judgment action. Safe Auto argued that: (1) if Greene or Rogers was driving the vehicle, there would be no coverage under the Policy because neither was a licensed driver or had permission to operate the vehicle; (2) if Petty was driving the vehicle, there would be no coverage under the Policy because he “cannot maintain an action against himself for negligent driving” and Indiana does not recognize a first-party cause of action for negligent entrustment of a motor vehicle to a voluntarily intoxicated adult, citing Bailey v. State Farm Mut. Auto. Ins. Co., 881 N.E.2d 996, 1003 (Ind.Ct.App.2008). Appellee’s App. p. 14. Safe Auto also argued that there was no evidence that Smith negligently entrusted the vehicle to Petty.

The Estate filed a response to Safe Auto’s motion for summary judgment. The Estate argued that Greene was driving at the time of the accident and that Smith negligently entrusted the vehicle to Greene. The Estate argued that the Policy covered the negligent entrustment claim even though Greene was an unlicensed driver. It also argued that there was conflicting evidence as to whether Smith was aware of Greene’s intoxication and, thus, whether Smith negligently entrusted his vehicle.

At a hearing on the matter, the Estate agreed that, if Greene was driving, the unlicensed driver exclusion would apply to prevent coverage. Further, if Petty was driving, the Estate conceded that “obviously there would not [be coverage], [bejcause you can’t sue yourself.” Tr. p. 13. However, the Estate argued that Greene was driving and that coverage for its negligent entrustment claim was not barred by the unlicensed driver exclusion. Safe Auto responded that the unlicensed driver exclusion prevented coverage for all claims, including the negligent entrustment claim.

The trial court entered an order finding no genuine issue of material fact “as it pertains to coverage under the Safe Auto insurance policy for Defendant Joseph Greene and Defendant Ralph Rogers Jr. because of the valid driver license exclusion” and granted summary judgment to Safe Auto on that issue. Appellant’s App. p. 10. However, the trial court found a genuine issue of material fact regarding the negligent entrustment claim and denied Safe Auto’s motion for summary judgment “as it pertains to coverage for [Smith].” Id. at 11.

Safe Auto requested the trial court to clarify its ruling as to whether the negligent entrustment claim was excluded under the Policy’s unlicensed driver exclusion. The trial court issued another order clarifying its summary judgment order. The trial court found that, if Petty was driving, “then Petty could not maintain an action against Smith for Petty’s own negligent driving.” Id. at 13. The trial court also concluded, “Smith is excluded from any coverage should it be determined Greene or Rogers was driving, regardless of whether (1) he negligently entrusted his vehicle to Greene and that negligent en-trustment was the responsible cause of Petty’s damages; or (2) Greene or Rog-erses] negligent driving was the responsible cause of Petty’s damages.” Id. at 14. Thus, the trial court granted Safe Auto’s motion for summary judgment. The Estate now appeals.

Analysis

The Estate argues that the trial court improperly determined that there was no coverage under the Policy for negligent entrustment. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56. We liberally construe all designated evidentiary material in a light most favorable to the non-moving party to determine whether there is a genuine issue of material fact. Bradshaw v. Chandler, 916 N.E.2d 163,166 (Ind.2009). The party that lost in the trial court has the burden of persuading the appellate court that the trial court erred. Id. Our review of a summary judgment motion is limited to those materials designated to the trial court. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind.2001).

The sole issue here is whether Smith’s Policy covers a claim by the Estate against Smith for negligent entrustment if Greene or Rogers was driving the vehicle at the time of the accident. “In order to support a claim of negligent en-trustment regarding a vehicle, a plaintiff must demonstrate that another: ‘(1) entrusted [his] car; (2) to an incapacitated person or one who is incapable of using due care; (3) with actual and specific knowledge that the person is incapacitated or incapable of using due care at the time of the entrustment; (4) proximate cause; and (5) damages.’ ” Bailey, 881 N.E.2d at 1001 (quoting Davidson v. Bailey, 826 N.E.2d 80, 88 (Ind.Ct.App.2005)).

According to the Estate, Greene was driving the vehicle at the time of the accident, and Smith’s Policy provides coverage for its negligent entrustment claim against Smith. The Estate first argues that the Policy is ambiguous regarding coverage for negligent entrustment claims. The Estate then argues that genuine issues of material fact exist as to whether Smith was negligent in letting Greene drive his vehicle.

The Estate’s arguments require us to analyze the language of the Policy. “The construction of an insurance contract is a question of law for which summary judgment is particularly appropriate.” Illinois Farmers Ins. Co. v. Wiegand, 808 N.E.2d 180, 184 (Ind.Ct.App.2004), trans. denied. When the policy language of an insurance contract is clear and unambiguous, we will give the language its plain and ordinary meaning. Id. An insurance policy is ambiguous if reasonable persons may honestly differ as to the meaning of the policy language. Id. We interpret policy terms from the perspective of an ordinary policyholder of average intelligence. Id. Where there is ambiguity, an insurance policy must be strictly construed against the insurer. Id. This is particularly true where a policy excludes coverage. Id.

The Policy here contained the following exclusion:

Valid Driver License

No coverage is afforded under any section of this policy if the covered auto is being operated by a person who is not a qualified, licensed driver, or is without a valid driver license, or whose driver license is expired, revoked or suspended, or is in violation of any condition of their driving privileges, or is without privileges to drive for any reason.

Appellee’s App. p. 32. The Estate argues that the Policy is ambiguous because this exclusion’s language conflicts with the following provision: “We will pay damages, other than punitive or exemplary, for bodily injury or property damage for which you become legally responsible because of an auto accident.” Id. at 25.

The conflict between the two provisions does not mean that an ambiguity exists. Even if one provision of the Policy would have provided coverage to Smith for the Estate’s negligent entrustment claim, the driver’s license exclusion plainly eliminated that coverage. “Generally, insurers are free to limit liability in any manner not inconsistent with public policy, and an unambiguous exclusionary clause is ordinarily entitled to enforcement.” Am. Family Life Assur. Co. v. Russell, 700 N.E.2d 1174, 1177 (Ind.Ct.App.1998), trans. denied. The exclusion clearly states that “No .coverage is afforded wider any section of this policy if the covered auto is being operated by a person who ... is without a valid driver license....” Appel-lee’s App. p. 82 (emphasis added). Thus, if Greene or Rogers was driving the vehicle, the unlicensed driver exclusion is applicable and excludes any coverage, including coverage for the Estate’s negligent en-trustment claim.

We note that both the Estate and Safe Auto cite numerous cases to support their arguments. However, none of the cases contain this exact Policy language and involve a negligent entrustment claim. “Because we construe insurance policies as a whole in each case, prior cases that focus upon similar or identical clauses or exclusions are not necessarily determinative of later cases because the insurance policies as a whole may differ.” Masten v. AMCO Ins. Co., 953 N.E.2d 566, 569 (Ind.Ct.App. 2011), trans. denied. Our duty is to examine the language of the Policy at issue here, and we conclude that the language unambiguously excludes coverage for the negligent entrustment claim against Smith. Because we conclude that Smith is not entitled to coverage for the Estate’s negligent entrustment claim, we need not address the Estate’s argument that genuine issues of material fact exist regarding whether Smith negligently entrusted his vehicle to Greene. The trial court properly granted summary judgment to Safe Auto.

Conclusion

The trial court properly granted Safe Auto’s motion for summary judgment. We affirm.

Affirmed.

VAIDIK, J., and MATHIAS, J., concur.

      . Safe Auto argues that the Estate failed to meet its burden on appeal because it failed to include the relevant summary judgment materials in its appendix. See Ind. Appellate Rule 50(A). Safe Auto filed an appellee's appendix and the Estate filed a supplemental appendix. Thus, we were provided with the materials necessary to review the Estate's arguments and will address the issues on the merits.

      . The declaratory judgment complaint was not included in Appellant’s Appendix, Appel-lee’s Appendix, or Appellant's Supplemental Appendix.

      . Smith filed a response, but the trial court granted a motion to strike the response because it was untimely. Safe Auto also filed a reply to the Estate's response, and the Estate filed a motion to strike, which the trial court denied.

      . During the summary judgment proceedings, the Estate conceded that, if Petty was driving, the Estate had no viable claim against Smith for negligent entrustment. See Bailey, 881 N.E.2d at 1002-03 (holding that, although Indiana recognizes a third party claim for negligent entrustment against an entrustor when the third party is injured by an incapacitated driver, Indiana does not recognize a first party claim by the incapacitated driver for negligent entrustment of a motor vehicle to a voluntarily intoxicated adult).

      . Safe Auto cites one decision that involves the same policy language. See Smith v. Safe Auto Ins. Co., 179 Ohio App.3d 240, 901 N.E.2d 298 (Ohio Ct.App.2008) (holding that the unlicensed driver exclusion prevented coverage where the driver’s license had expired). However, Smith did not involve a negligent entrustment claim.


author: ROBB, Chief Judge.

text:
    STATE of Indiana, Appellant-Plaintiff, v. Christopher HOLLOWAY, Appellee-Defendant.
    No. 49A02-1203-CR-240.
    Court of Appeals of Indiana.
    Oct. 30, 2012.
    Ordered Published Nov. 27, 2012.

      Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorney for Appellant.
   OPINION

ROBB, Chief Judge.

Case Summary and Issue

Christopher Holloway pleaded guilty to dealing in cocaine, a Class A felony, and resisting law enforcement, a Class D felony, and was sentenced to six years in prison. He filed a petition to modify his sentence and the trial court changed his placement to Community Corrections for the last year of his sentence. The State raises one issue for our review, which we restate as whether the trial court had the authority to modify Holloway’s sentence in violation of his plea agreement. Concluding the court exceeded its authority as bound by Holloway’s plea agreement, we reverse and remand.

Facts and Procedural History

On April 22, 2010, the State charged Holloway with dealing in cocaine, a Class A felony; possession of cocaine, a Class B felony; resisting law enforcement, a Class D felony; and resisting law enforcement, a Class A misdemeanor. Under a plea agreement, Holloway agreed to plead guilty to dealing in cocaine and Class D felony resisting law enforcement in exchange for the State dropping the other charges, capping his executed sentence at ten years in prison, and capping his total sentence at twenty years. In part the plea agreement stated: “[i]t is further agreed that the sentence recommended and/or imposed is the appropriate sentence to be served pursuant to this agreement and the Defendant hereby waives any future request to modify the sentence under I.C. 35-38-1-17.” Appendix of Appellant at 18. Holloway’s signed initials appear next to this paragraph, and his full signature was placed at the end of the agreement.

The trial court accepted the plea agreement and sentenced Holloway to twenty years in prison, fourteen years of which were suspended. On May 12, 2011, Holloway filed a petition to modify his sentence. The trial court held a hearing and, over the State’s objection, ordered that Holloway complete the remainder of his executed sentence in Community Corrections rather than prison, beginning on October 23, 2012. The State now appeals.

Discussion and Decision

I. State’s Right to Appeal

The State’s authority to appeal criminal matters is extremely limited. “The State’s right to appeal in a criminal matter is statutory, and the State cannot appeal unless given that statutory authorization by the legislature.” State v. Coleman, 971 N.E.2d 209, 211 (Ind.Ct.App.2012) (citing State v. Brunner, 947 N.E.2d 411, 415 (Ind.2011)). “The State’s statutory right of appeal is in contravention of common law principles and is therefore strictly construed.” Id. at 211 (citing State v. Pease, 531 N.E.2d 1207, 1208 (Ind.Ct.App.1988)).

The State may appeal from orders (1) granting a motion to dismiss an indictment; (2) granting judgment for the defendant upon his motion to discharge because of delay or jeopardy; (3) granting a motion to correct errors; (4) upon question reserved the state if defendant is acquitted; (5) granting motion to suppress evidence, if the effect is to preclude further prosecution; (6) and certain interlocutory orders.

Brunner, 947 N.E.2d at 415 (citing Ind. Code § 35-38-4-2 (2008)).

In Hardley v. State, our supreme court expressed an additional circumstance when the State may appeal in criminal cases: where, as a pure matter of law, the trial court’s sentence is claimed to be illegal. 905 N.E.2d 399, 404 (Ind.2009). The court determined that Indiana Code section 35-38-1-15 implicitly grants the State authority to challenge erroneous sentences, and reasoned that “sound policy and judicial economy favor permitting the State to present claims of illegal sentence on appeal when the issue is a pure question of law that does not require resort to any evidence outside the appellate record.” Id. at 403. The court applied this additional circumstance in Brunner, allowing the State to appeal the modification of a defendant’s conviction where the trial court lacked the authority to modify the conviction. 947 N.E.2d at 416.

In this case, the State has appealed a judgment modifying a defendant’s sentence, claiming the trial court lacked authority to order the modification. The trial court’s decision does not fit into any of the categories defined by Indiana Code section 35-38-4-2. However, whether the trial court had the authority to modify Holloway’s sentence is strictly a matter of law that does not require weighing any evidence outside the record and as such the exception set out in Hardley and Brunner applies. Accordingly, we hold the State has the authority to appeal the trial court’s decision.

II. Sentence Modification

A. Standard of Review

The State argues that the trial court lacked authority to modify Holloway’s sentence as a matter of law. “Where the issue presented on appeal is a pure question of law, we review the matter de novo.” State v. Moss-Dwyer, 686 N.E.2d 109,110 (Ind.1997).

B. The Trial Court’s Authority to Modify Holloway’s Sentence

The trial court derives authority to modify a sentence from Indiana Code section 35-38-1-17. The statute states in relevant part:

[I]f in a sentencing hearing for a convicted person conducted after June 30, 2001, the court could have placed the convicted person in a community corrections program as an alternative to commitment to the department of correction, the court may modify the convicted person’s sentence under this section without the approval of the prosecuting attorney to place the convicted person in a community corrections program!.]

Ind. Code § 35-38-l-17(b). Because the trial court had the option of placing Holloway in Community Corrections at his initial sentencing, it would typically retain the right to modify his sentence and transfer him there.

In this case, the State argues that the trial court did not have the authority to modify Holloway’s sentence because it had previously accepted a plea agreement in which Holloway explicitly waived his right to request modification. All parties are bound to the terms of a plea agreement accepted by the court, Lee v. State, 816 N.E.2d 35, 38 (Ind.2004), but the plea agreement will only be valid if it was knowingly and willingly agreed to. Creech v. State, 887 N.E.2d 73, 75 (Ind.2008).

Our supreme court has recognized that “[m]ost waivers [in plea agreements] are effective when set out in writing and signed.” Id. at 76 (quoting United States v. Wenger, 58 F.3d 280, 282 (7th Cir.1995)). Accordingly, the court held that, so long as he does so knowingly and willingly, “a defendant may waive the right to appellate review of his sentence as part of a written plea agreement.” Id. at 75. Applying this standard in Ivy v. State, 947 N.E.2d 496 (Ind.Ct.App.2011), this court held that by signing the plea agreement, the defendant had knowingly and willingly waived “any future request to modify his sentence under I.C. 35-38-1-17,” and we affirmed the trial court’s denial of his motion to modify. Id. at 499; see also Schippers v. State, 622 N.E.2d 993, 995 (Ind.Ct.App.1993) (holding that defendant was bound by a similar sentence modification waiver in a plea agreement, despite the subsequent enactment of a statute allowing a sentence reduction for completing certain educational programs).

Holloway’s plea agreement contains language nearly identical to that upheld by this court in Ivy. Holloway not only signed the plea agreement, his initials appear next to the specific provision that waives his right to seek modification. At the hearing on Holloway’s motion to modify his sentence, he made no claim that the waiver was made unknowingly or unwillingly. Accordingly, we hold that his waiver was valid.

[A] plea agreement is contractual in nature, binding the defendant, the state and the trial court. The prosecutor and the defendant are the contracting parties, and the trial courts [sic] role with respect to their agreement is described by statute: If the court accepts a plea agreement, it shall be bound by its terms.

Lee, 816 N.E.2d at 38 (quoting Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind.1994)). The court is not only bound to the specific charges and sentencing guidelines of a plea agreement; “[o]nce a plea is accepted, a court is bound by all the terms in the plea agreement which are within its legal power to control.” Reffett v. State, 571 N.E.2d 1227, 1230 (Ind.1991) (emphasis added); see also Ind. Code § 35-35-3-3(e) (“If the court accepts a plea agreement, it shall be bound by its terms.”).

The State enters into plea agreements to avoid costly litigation, not to postpone it. Accordingly, part of the reason for binding plea agreements is the State’s “legitimate interest in the finality of judgments.... ” Beanblossom v. State, 637 N.E.2d 1345, 1348 (Ind.Ct.App.1994), trans. denied. The court’s obligation to abide by the agreement does not ebb with time or circumstance. “Once it has accepted a plea agreement, the sentencing court possesses only that degree of discretion provided in the plea agreement with regard to imposing an initial sentence or altering it later.” Pannarale, 638 N.E.2d at 1248 (emphasis added). Considering the plea agreement as a contract, “[t]o permit reduction or modification of [the defendant’s] sentence would deprive the State of its end of the bargain.” Schip-pers, 622 N.E.2d at 995.

The trial court accepted the plea agreement entered into by Holloway and the State, and it was therefore bound by the terms of the agreement and should not have modified Holloway’s sentence.

Conclusion

In his plea agreement with the State, Holloway knowingly and willingly waived his right to seek sentence modification. The trial court accepted the plea agreement and is bound by its terms. Therefore, we reverse the sentence modification and remand with instructions to reinstate Holloway’s original sentence.

Reversed and remanded.

BAKER, J., and BRADFORD, J., concur.

      . "If the convicted person is erroneously sentenced, the mistake does not render the sentence void. The sentence shall be corrected after written notice is given to the convicted person.” Ind. Code § 35-38-1-15.


author: PYLE, Judge.

text:
    Joshua A. BOSTIC, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 12A02-1202-CR-154.
    Court of Appeals of Indiana.
    Nov. 2, 2012.

      Mark Small, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

Joshua A. Bostic (“Bostic”) appeals his convictions for class C felony attempted battery by means of a deadly weapon, class C felony criminal recklessness, class D felony arson, class A misdemeanor criminal mischief, and class B misdemean- or criminal mischief as well as his adjudication of being an habitual offender. He raises only procedural issues relating to: (1) his right to discharge due to the scheduling of his jury trial more than one year after the date he was charged and arrested; and (2) the rules for appointing a special judge to preside over his jury trial. We affirm and remand.

ISSUES

1. Whether Bostic waived his argument regarding discharge under Indiana Criminal Rule 4(C).
2. Whether Bostic waived his argument challenging the appointment of a senior judge as special judge during his jury trial.

FACTS

On February 17, 2010, the State initially charged Bostic, under cause 12D01-1002-FA-28 (“Cause 28”), with class A felony attempted murder. At the time the charges were filed, Bostic was incarcerated in the Tippecanoe County Jail for a charge from that county.

On March 5, 2010, the trial court held Bostic’s initial hearing. Bostic was transported from the Tippecanoe County Jail to Clinton County for the hearing and then returned to the Tippecanoe County Jail. During the initial hearing, the trial court appointed Scott Stuard as Bostic’s pauper counsel and set Bostic’s jury trial for June 1, 2010.

On March 15, 2010, the State charged Bostic with the following additional charges: Count 2, class C felony attempted battery by means of a deadly weapon; Count 3, class C felony criminal recklessness; Count 4, class D felony arson; Count 5, class A misdemeanor criminal mischief; and Count 6, class B misdemean- or criminal mischief. The State also filed an information alleging that Bostic was an habitual offender. The trial court ordered Bostic to be transported from the Tippecanoe County Jail for an initial hearing on these additional charges on March 16, 2010, and kept the June 1st trial date setting.

During an April 22, 2010 pretrial conference, the parties informed the trial court that they were negotiating but needed another pretrial conference. The trial court set another pretrial conference for July and reset the jury trial for August 17, 2010.

On August 13, 2010, the trial noted that Bostic’s jury trial needed to be rescheduled to November 16, 2010 due to court “congestion” caused by another case before the court. (App. 7).

Thereafter, Bostic sent a letter to and filed some pro se motions with the trial court. In response to this correspondence, the trial court issued orders, indicating that it would not consider ex parte communications from Bostic who was represented by counsel.

On November 12, 2010, the trial court held a pretrial conference and reset Bostic’s trial for January 18, 2011. Again, the trial court rescheduled the trial date due to court “congestion” with another cause before the court. (App. 9, 81).

On January 18, 2011, the trial court again continued Bostic’s trial due to “congestion” with another cause before the court. (App. 10, 91). The trial court reset Bostic’s trial date for March 7, 2011. Bostic’s counsel did not object to the trial date.

On January 31, 2011, the trial court appointed attorney James Knight as Bostic’s pauper counsel to replace attorney Scott Stuard. Thereafter, on February 18, 2011, Bostic, via his new counsel, filed a motion for continuance, seeking time to conduct discovery. The continuance specifically noted that Bostic had “no objection to a continuance to the trial in this matter[.]” (App. 106). The trial court granted Bostic’s motion for continuance and reset the jury trial for May 16, 2011.

On May 4, 2011, Bostic filed another motion for continuance, again pointing out that Bostic had “no objection to the continuance.” (App. 111). The trial court granted Bostic’s motion for continuance and reset the jury trial for September 13, 2011.

On June 15, 2011, Bostic filed a motion for reduction of his bond. The trial court held a hearing on the motion on June 22, 2011. The trial court took the matter under advisement and allowed the parties to submit supplemental evidence. The State submitted certified documents from Tippecanoe County, showing that Bostic was arrested in Tippecanoe County for class D felony possession of a controlled substance on February 17, 2010; that he pled guilty to that charge; and that, on July 9, 2010, the trial court imposed a sentence of two (2) years in the Department of Correction with one (1) year and seventy-nine (79) days suspended to probation. Thereafter, the trial court denied Bostic’s motion for bond reduction.

On August 24, 2011, Bostic filed a motion to exclude testimony of one of the State’s witnesses due to the witness’s failure to appear for a deposition. On August 31, 2011, the trial court granted Bostic’s motion to exclude. That same day, the State moved to dismiss the charges against Bostic due to the unavailability of and lack of cooperation from that same State’s witness. The trial court granted the State’s motion that same day.

Two weeks later, on September 15, 2011, the State refiled, under cause 12D01-1109-FA-144 (“Cause 144”), the same six charges and the habitual offender allegation against Bostic. On September 16, 2011, the trial court held an initial hearing, appointed Patrick Manahan as pauper counsel for Bostic, and scheduled a jury trial for January 3, 2012. Bostic did not object to the trial date.

On October 14, 2011, Bostic filed a motion to reduce his bond, and the trial court held a hearing on October 28, 2011. The trial court took the motion under advisement and instructed the parties to submit memoranda on the applicability of Criminal Rule 4(A) to the bond issue. Thereafter, the trial court entered an order denying Bostic’s motion and concluding that Bostic had been detained in jail for less than the six months allowed under Criminal Rule 4(A).

On October 28, 2011, Bostic filed a motion for early trial under Criminal Rule 4(B), which provides, in part, that a defendant “shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion.... ” Thus, the State had until January 6, 2012, to bring Bostic to trial. The trial date remained set for January 3, 2012.

On January 3, 2012, through January 6, 2012, the trial court held a jury trial. Senior Judge Thomas Milligan presided over the trial as special judge. Bostic did not object to Senior Judge Milligan serving as judge. The jury found Bostic not guilty of Count 1 but guilty of Counts 2 through 6. Thereafter, Bostic admitted to being an habitual offender.

On February 2, 2012, Senior Judge Milligan presided over Bostic’s sentencing hearing. Bostic did not object to Judge Milligan serving as judge at the sentencing hearing. The trial court imposed an aggregate twenty (20) year sentence, ordering Bostic to serve sixteen (16) years executed at the Department of Correction followed by two (2) years suspended to community corrections and two (2) years suspended to probation.

DECISION

1. Criminal Rule U(C)

Bostic first argues that he was entitled to discharge under Criminal Rule 4(C) because his trial date occurred more than one year after he was charged and arrested.

A defendant’s right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and Article 1, Section 12 of the Indiana Constitution. Todisco v. State, 965 N.E.2d 753, 755 (Ind. Ct.App.2012), trans. denied. Criminal Rule 4(C) sets forth the time limits for which a defendant must be brought to trial and provides:

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.

Our Indiana Supreme Court has explained that “when a trial court, acting within the one-year time limit of Criminal Rule 4(C), schedules trial to begin beyond the one-year limit, the defendant must make a timely objection to the trial date or waive his right to a speedy trial under that rule.” State ex rel. Bramley v. Tipton Circuit Court, 835 N.E.2d 479, 481 (Ind.2005) (citing Vermillion v. State, 719 N.E.2d 1201, 1204 (Ind.1999), reh’g denied). See also Todisco, 965 N.E.2d at 755 (“a defendant waives his right to a speedy trial if he is aware or should be aware of the fact that the trial court has set a trial date beyond the applicable time limitation, and he does not object to the trial date”). As our Indiana Supreme Court has explained:

The purpose of [Criminal Rule 4] is to assure early trials and not to discharge defendants.... [Wjhen a ruling is made that is incorrect, and the offended party is aware of it, or reasonably should be presumed to be aware of it, it is his obligation to call it to the court’s attention in time to permit a correction. If he fails to do so, he should not be heard to complain. The courts are under legal and moral mandate to protect the constitutional rights of accused persons, but this should not entirely relieve them from acting reasonably in their own behalf. We will vigorously enforce the right to a speedy trial, but we do not intend that accused persons should escape trial by abuse of the means that we have designed for their protection.

Brown v. State, 725 N.E.2d 823, 825 (Ind. 2000) (quoting Utterback v. State, 261 Ind. 685, 687-88, 310 N.E.2d 552, 553-54 (1974)).

Here, the State initially charged Bostic on February 17, 2010. After various delays — including rescheduling by the trial court for court congestion, continuances by Bostic, and refiling of the charges — the trial- court ultimately scheduled Bostic’s jury trial for January 3, 2012. We need not calculate the number of days chargeable to each party, because here, at no point during his proceedings, did Bostic file a motion for discharge under Criminal Rule 4(C) or object to the trial court’s setting of any of his trial dates. Accordingly, he has waived his claim that Criminal Rule 4(C) was violated. See, e.g., Brown, 725 N.E.2d at 825 (holding that defendant waived his Criminal Rule 4(C) claim by neither objecting to the setting of the trial date nor moving the trial court for discharge); Heinzman v. State, 970 N.E.2d 214, 219-20 (Ind.Ct.App.2012) (holding that a defendant, who was tried approximately five years after he was initially charged, waived his Criminal Rule 4(C) claim by failing to object when the trial court reset the trial date for a date beyond the one-year limit), reh’g denied.

Our Supreme Court has held that the waiver rules for Criminal Rule 4 do not impermissibly shift the burden of enforcement to the defendant or are ‘uncalled-for burdens’ on the defendant’s right to a speedy trial. To the contrary, the requirement that a defendant object to a trial date set after a Criminal Rule 4 deadline and move for discharge facilitates compliance by trial courts with the speedy trial requirement. 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. Accordingly, if the time period provided by the rule has not expired and a trial date is set for a date beyond that period, a timely objection must be made. The issue may not be raised for the first time on appeal when it is too late to do anything but discharge the defendant.

Brown, 725 N.E.2d at 825 (emphasis added). Since Bostic did not object or file a motion for discharge, his Criminal Rule 4(C) claim is waived.

2. Special Judge

Finally, Bostic argues that his judgment of conviction is void because the procedures for appointing Senior Judge Milligan as the special judge over his trial and sentencing were not followed.

We need not address the propriety of the appointment of Senior Judge Milligan because Bostic has waived the issue. It is well established that “where a defendant does not object to an irregularity in the appointment of a special judge, he accepts the appointment, submits to the jurisdiction, and waives the irregularity.” Catt v. State, 749 N.E.2d 633, 644 (Ind.Ct. App.2001) (citing Bivins v. State, 485 N.E.2d 89, 92 (Ind.1985)), reh’g denied, trans. denied. See also Floyd v. State, 650 N.E.2d 28, 32 (Ind.1994) (“[T]he failure of a party to object at trial to the authority of a court officer to enter a final appealable order waives the issue for appeal.”). To be sure, “a party may not submit matters to and await rulings by a special judge before objecting to the special judge’s presence in the action.” Thomas v. State, 656 N.E.2d 819, 821 (Ind.Ct.App.1995), reh’g denied.

Here, Bostic did not object — either at the jury trial or the sentencing hearing — to Senior Judge Milligan presiding as special judge in his cause. Accordingly, Bostic has waived review of any challenge to the appointment of Senior Judge Milli-gan as special judge. See, e.g., Floyd, 650 N.E.2d at 32; Bivins, 485 N.E.2d at 92; Henderson v. State, 647 N.E.2d 7, 10 (Ind. Ct.App.1995) (“When no objection has been timely raised in the proceeding, any objection to the special judge’s authority is deemed waived.”), reh’g denied, trans. denied.

Affirmed and Remanded.

FRIEDLANDER J., and BROWN, J., concur.

      . Ind.Code§§ 35-42-2-1 (a)(3); 35-41-5-1.

      . I.C. § 35-42-2-2.

      . I.C. § 35 — 43—1—1(d).

      . I.C. § 35 — 43—1—2(a)( 1 )(A)(i).

      . I.C. § 35 — 43—1—2(a)(1).

      . I.C. § 35-50-2-8.

      . The trial court also advised Bostic of violations of probation filed against him in cause numbers 12D01-9710-CF-127 and 12D01-9711-CF-151 and set a probation hearing for those causes.

      . In his letter and three of his motions, Bostic referenced Criminal Rule 4(A) and sought to be released from jail on his own recognizance. He also sought to have the attempted murder charge dismissed.

      .When granting Stuard’s motion to withdraw his appearance, the trial court noted that Stuard was “unable to participate” at Bostic's scheduled jury trial “due to an order of the Indiana Supreme Court in Cause 12S00-1006-DI-324.” (App. 12, 105).

      . The transcript from the October 28, 2011 hearing has not been transmitted to this Court as part of this appeal. Indeed, this hearing occurred in Cause 28, and Bostic's appellate counsel did not request transcription of hearings from Cause 28 when he filed Bostic’s notice of appeal from Cause 144. Curiously, however, Bostic’s counsel quotes to statements made by the trial court and by Bostic's trial counsel during the October 28, 2011 hearing.

      . Criminal Rule 4(A) provides, in part, that ”[n]o defendant shall be detained in jail on a charge, without a trial, for a period in aggregate embracing more than six (6) months from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge (whichever is later). ...”

      .Specifically, the trial court determined that the following time was attributable to Bostic: February 17, 2010 (date of arrest) to July 11, 2010 because Bostic was incarcerated in Tippecanoe County on a possession of controlled substance charge; July 11, 2010 to April 11, 2011 because Bostic was incarcerated on a sentence for violation of probation in cause 12D01-971 l-CF-151; and April 11, 2011 to August 30, 2011 (date of dismissal of original charges) because he had requested two continuances of the trial date.

      . Senior Judge Milligan also presided over a pretrial conference held on December 13, 2011.

      . At the sentencing hearing, the trial court ordered that Bostic’s sentence on Count 3, class C felony criminal recklessness was to be enhanced by twelve (12) years for his habitual offender determination. However, the sentencing order, abstract of judgment, and chronological case summary indicate that the trial court imposed a separate twelve (12) year sentence for Bostic’s habitual offender finding and ordered that it be served consecutively to Bostic's sentence on Count 3, class C felony criminal recklessness. It is well settled that an “habitual offender finding does not constitute a separate crime nor does it result in a separate sentence, rather it results in a sentence enhancement imposed upon the conviction of a subsequent felony.” Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind.2001) (citing Greer v. State, 680 N.E.2d 526, 527 (Ind. 1997); Pinkston v. State, 436 N.E.2d 306, 307-08 (Ind. 1982)). Therefore, we remand to the trial court with instructions to correct the sentencing order, abstract of judgment, and chronological case summary to reflect that the twelve (12) year habitual offender enhancement serves as an enhancement of Bostic’s sentence for class C felony criminal recklessness.

      . Indeed, Bostic admits that he did not object to Senior Judge Milligan sitting as special judge and acknowledges that, pursuant to the Indiana Supreme Court’s opinion in Floyd, he has waived review of this claim. Nevertheless, Bostic invites this Court to "reconsider” the precedent set forth by the ■ Indiana Supreme Court in Floyd. Bostic’s Br. at 25. We, however, decline Bostic’s invitation. See Meeks v. State, 759 N.E.2d 1126, 1128 (Ind.Ct. App.2001) (explaining that the Indiana Court of Appeals is bound by decisions of the Indiana Supreme Court and is without authority to overrule Indiana Supreme Court decisions), trans. denied.


author: CRONE, Judge. RILEY, Judge,

text:
    T.B., Appellant-Petitioner, v. REVIEW BOARD OF the INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and A.R., Appellees-Respondents.
    No. 93A02-1112-EX-1143.
    Court of Appeals of Indiana.
    Nov. 8, 2012.
    Ordered Published Dec. 17, 2012.

      T.B., Granger, IN, Appellant pro se.
    Gregory F. Zoeller, Attorney General of Indiana, Stephanie L. Rothenberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee Review Board.
   OPINION

CRONE, Judge.

Case Summary

The Indiana Department of Workforce Development (“DWD”) determined that T.B. was ineligible for unemployment benefits, and she appealed. A DWD administrative law judge (“ALJ”) set a telephone hearing for her appeal, but T.B. failed to provide a phone number where she could be reached for the hearing, and the ALJ dismissed her appeal. T.B. requested reinstatement of her appeal, but the DWD director of unemployment insurance appeals denied her request, finding that she failed to show good cause for reinstatement. She appealed the denial of her request for reinstatement to the DWD Review Board (“Review Board”), but it affirmed the denial. T.B. now appeals the Review Board’s decision. Concluding that the Review Board properly found that T.B. failed to show good cause, we affirm.

Facts and Procedural History

T.B. was terminated from her employment with A.R. T.B. filed a claim for unemployment benefits with the DWD. A claims deputy found that T.B. was ineligible for unemployment benefits because she was discharged for just cause. T.B. timely appealed. An ALJ set her appeal for a hearing on November 1, 2011, and sent T.B. a “Notice of Hearing,” an “U.I. Appeals Hearing Instructions” sheet (“Instruction Sheet”), and an “Acknowledgment Sheet.” Exs. 3-6.

The Notice of Hearing provided in relevant part,

Place of Hearing: BY TELEPHONE (you will receive a call from the Judge at the number you provide on the Acknowledgment Sheet)
IMPORTANT INFORMATION
ABOUT THIS PROCESS
• To participate in this hearing, you MUST deliver the enclosed Acknowledgment Sheet to the Appeals office by mail, fax, or in person.
• List only ONE telephone number on the Acknowledgment Sheet. At the scheduled date and time of your hearing the judge will call YOU at THIS telephone number.
• ....
• Other IMPORTANT INFORMATION is provided in the enclosed U.I. APPEALS HEARING INSTRUCTIONS sheet.
• If you have any questions, contact the Appeals office by telephone at (260) 745-XXXX Ext XXX

Ex.4.

The Instruction Sheet read in relevant part:

BEFORE THE DATE OF THE HEARING
Contact Number: Provide the judge ONE contact telephone number to reach you for the hearing on the enclosed Acknowledgment Sheet. Deliver this sheet by mail, fax, or in person AT LEAST 24 hours prior to the hearing.

Ex.5.

The Acknowledgement Sheet was labeled at the top as follows:

Please return this Acknowledgment Sheet

Ex. 6. The Acknowledgment Sheet included boxes for the claimant to check whether he or she would participate in the hearing, would not participate in the hearing, or wished to withdraw the appeal. Below the boxes, it read: “Note: This page must be returned in the enclosed self-addressed envelope, or faxed to (260) 446-XXXX.” In the middle of the page was a line for the claimant’s name and a line for the “Telephone Number for Hearing.” Id. At the bottom of the page, a large, bolded box read,

IMPORTANT

If you do not appear at the hearing, the administrative law judge could issue a decision that would be unfavorable to you.
FOR THE CLAIMANT: You may have to pay back benefits you have received.

Id.

T.B. did not return the Acknowledgment Sheet. The November 1 docket entry for the ALJ provides, “No return slip in file prior to hearing for [claimantj/appellant. Per instruction searched file and no telephone] # found for cl/app as of 11:30.” Ex. 8. For that reason, no hearing was held, and the ALJ dismissed T.B.’s appeal. T.B. received a notice of dismissal, informing her that she had failed to participate in the appeal hearing, and therefore her appeal was dismissed. The notice of dismissal informed T.B. that she could request reinstatement, and that such a request “must show good cause why the appeal should be reinstated.” Ex. 10.

T.B. timely submitted her request for reinstatement, in which she wrote,

I got confused on what the procedure was. I waited all day Tuesday November 1st for the phone call for the trial. Then I got this letter. I did not realize I had to confirm the meeting for it to happen. Can you please reconsider another appeal date. I misunderstood what to do. I did not mean to mess it up. So if I can have another chance I would be grateful.

Ex. 11.

The director of unemployment insurance denied T.B.’s request for reinstatement, concluding as follows: “It is the responsibility of the appealing party to submit a contact number. The appealing party did not submit a contact number and that does not constitute good cause for reinstatement.” Ex. 13.

T.B. timely appealed the denial of reinstatement to the Review Board, writing,

I am asking for another chance for a hearing. My life depends on this. I really did misunderstand on what to do. I got a letter saying the hearing was Nov. 1st so I sent my information in once already. So I guess to send it again made no sence [sic] and that[’s] where the mix up happened. Please give me another chance I beg you guys. I didn’t just not do it. I didn’t realize what I was suppose[d] to do. And thatfs] why you never got my phone number sent in. I am looking so hard to find a job and I[’m] not having any luck. So please I[’m] a single mom of 3 kids and X Mas is close. I just beg for one more chance at a hearing. I got let go for my car overheating and did a[n] awesome, job for my company. They should of never let me go. So I need to fight that. It was wrong what they did to me.

Appellee’s App. at 1-2. The Review Board affirmed the denial of T.B.’s request for reinstatement.

Discussion and Decision

This is an appeal from the Review Board’s denial of T.B.’s request to reinstate her appeal of the denial of her claim for unemployment benefits. T.B.’s claim is governed by the Indiana Unemployment Compensation Act (“the Act”). The Act provides unemployment benefits to individuals who are “unemployed through no fault of their own.” Ind. Code § 22-4-1-1. Under the Act, an individual is disqualified for unemployment benefits if he or she is discharged for “just cause.” Ind. Code § 22-4-15-l(a).

The Act provides that any decision of the Review Board shall be conclusive and binding as to all questions of fact. Ind. Code § 22-4-17-12(a). When the Review Board’s decision is challenged as being contrary to law, our review 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.” McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314, 1317 (Ind.1998) (quoting Ind. Code § 22-4-17-12(f)). Applying this standard, we 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.” Id. The Review Board’s findings of basic fact are subject to a “substantial evidence” standard of review. Id. In conducting our analysis, we neither reweigh evidence nor judge witness credibility; rather, we consider only the evidence most favorable to the Review Board’s findings. Id. The Review Board’s conclusions regarding ultimate facts involve an inference or deduction based on the findings of basic fact, and we typically review them to ensure that the Review Board’s inference is “reasonable” or “reasonable in light of its findings.” Id. at 1317-18 (citation and quotation marks omitted). We review the Review Board’s conclusions of law using a de novo standard. Ind. State Univ. v. LaFief 888 N.E.2d 184, 186 (Ind.2008).

We observe that T.B. appeals pro se, and we stress that we hold pro se litigants to the same standard as trained attorneys. T.R. v. Review Bd. of Ind. Dep’t of Workforce Dev., 950 N.E.2d 792, 795 (Ind.Ct.App.2011), ajfd on reh’g, 956 N.E.2d 741. Although T.B. is appealing from the denial of her request for reinstatement of her appeal, she fails to present any argument that the Review Board erred in denying her request. Instead, she argues that she was not discharged for just cause. However, that issue is not properly before us. By failing to address the denial of her request for reinstatement, T.B. has waived her appeal. See Ind. Appellate Rule 46(A)(8)(a) (“The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with Rule 22.”); Loomis v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind. Ct.App.2002) (failure to present a cogent argument waives that issue for appellate review), trans. denied.

Waiver notwithstanding, an argument that the Review Board erred in denying her request for reinstatement would fail. A request for reinstatement will be granted or denied at the discretion of the director of unemployment insurance appeals, or the director’s designee. 646 Ind. Admin. Code 5-10-6. The party requesting reinstatement “must show good cause for the appealing party’s failure to appear for the hearing.” Id.

The unemployment insurance appeals director concluded that T.B. “did not submit a contact number and that failure does not constitute good cause for reinstatement.” Ex. 13. T.B. claimed that she did not understand that she needed to confirm the hearing and provide her phone number. However, she does not contend that she did not receive the Notice of Hearing and the accompanying documents. The Notice of Hearing clearly stated that to participate in the hearing, she was required to send the appeals office the Ac-knowledgement Sheet with one telephone number where she could be reached. The Instruction Sheet directed T.B. to put a telephone number on the Acknowledgement Sheet and send it to the appeals office. The Acknowledgment Sheet read, “Please return this Acknowledgment Sheet.” Ex. 6. The importance of returning the Acknowledgment Sheet was clearly emphasized with the use of capital letters, underlining, and holding. In addition, a self-addressed envelope for the Ac-knowledgement Sheet was enclosed. Accordingly, we conclude that the Review Board properly denied T.B.’s request for reinstatement.

Affirmed.

BAILEY, J., concurs.

RILEY, J., concurs in result with separate opinion.

RILEY, Judge,

concurring in result.

While I agree with the majority’s decision to affirm the Review Board’s decision, I write separately to address the majority’s refusal to identify the respective parties by their complete names. In support of its use of initials, the majority relies on a footnote included in the recent supreme court’s opinion of J.M. v. Review Bd. of Ind. Dep’t of Workforce Dev., 975 N.E.2d 1283, n. 1 (Ind.2012). In its footnote, the court noted that this method of identification is a confidentiality requirement which “is expressly implemented as to judicial proceedings by Indiana Administrative Rule 9(G)(l)(b)(xviii).” However, as is well established “our supreme court does not decide important questions of law in footnotes.” See, e.g., Molden v. State, 750 N.E.2d 448 (Ind.Ct.App.2001). As such, this footnote does not invalidate the thoughtful on-point analysis by Judge Baker in Moore v. Review Bd. of Ind. Dep’t of Workforce Dev., 951 N.E.2d 301, 304-06 (Ind.Ct.App.2011) about the use of initials to identify the respective parties in cases involving the Review Board. In Moore, this court held that the amendment to Administrative Rule 9(G), which incorporates by reference I.C. § 22-4-19-6, does not prohibit the use of full names of parties in routine appeals from the Review Board. See Id. at 306. With this proviso in mind, I agree with the majority that Tori Balog failed to show good cause for reinstatement of her employment at Arg Resources, LLC.

      . "Identities of the claimant and employing unit are generally subject to the confidentiality requirements prescribed in Indiana Code section 22-4-19-6(b) (2007). This confidentiality requirement is expressly implemented as to judicial proceedings by Indiana Administrative Rule 9(G)(lXb)(xviii).” J.M. v. Review Bd. of Ind. Dep’t of Workforce Dev., 975 N.E.2d 1283, 1285 n. 1 (Ind.2012).


author: BRADFORD, Judge.

text:
    Sharmain J. SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 02A03-1204-CR-174.
    Court of Appeals of Indiana.
    Nov. 16, 2012.
    Ordered Published Dec. 12, 2012.

      John C. Bohdan, Deputy Public Defender, Fort Wayne, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Henry A. Flores, Jr., Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

While conducting a traffic stop, an officer discovered that Sharmain J. Smith was driving while intoxicated. The officer placed Smith under arrest and then conducted a search of Smith’s vehicle. During this search, the officer discovered open beer bottles and a handgun. Smith was charged with numerous crimes, including illegal possession of a firearm by a serious violent felon. Both prior to and at trial, Smith moved to suppress the evidence of the handgun, contending that the search violated his rights under the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution. The trial court denied Smith’s request, and Smith was convicted of illegal possession of the firearm. On appeal, we conclude that because the officer had probable cause to arrest Smith, the search was a valid search incident to arrest, and, as such, Smith’s constitutional rights were not violated. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

During the early morning of June 20, 2010, Fort Wayne Police Officer Larry Tague initiated a traffic stop of Smith’s vehicle after observing the vehicle make erratic and unsafe lane changes. After initiating the traffic stop, Officer Tague observed Smith lean forward and to the right as if to conceal something before stopping his vehicle. Upon approaching the vehicle, Officer Tague observed that Smith, the sole occupant of the vehicle, displayed signs of intoxication, including exceptional nervousness, a strong odor of alcohol on his breath, and watery and bloodshot eyes.

Officer Tague placed Smith under arrest for operating a vehicle while intoxicated. After placing Smith under arrest, Officer Tague conducted a search of Smith’s vehicle for the purpose of discovering evidence of operating while intoxicated. During this search, Officer Tague discovered open beer bottles and a handgun. One open bottle of beer was found wedged between the passenger seat and the center console. The handgun was found under the driver’s seat.

On June 24, 2010, the State charged Smith with Count I-Class B felony unlawful possession of firearm by a serious violent felon, Count II-Class D felony operating while intoxicated, and Count Ill-Class D felony operating a vehicle with .08 or more alcohol concentration equivalent in blood or breath. On July 27, 2010, the State amended the charging information to include Count IV, which alleged that Smith was a habitual offender. On October 15, 2010, Smith pled guilty to Counts II through IV, with sentencing to be conducted after disposition of Count I.

With respect to Count I, on January 27, 2012, Smith filed a motion to suppress the evidence obtained during the search incident to his arrest. The trial court conducted a hearing on Smith’s motion to suppress on February 10, 2012, after which it denied Smith’s motion. At trial, Smith again objected to the admission of the evidence obtained as a result of the search incident to his arrest, incorporating the reasons presented in his motion to suppress. The evidence was admitted over Smith’s objection. At the conclusion of trial, the jury found Smith guilty as charged. On March 19, 2012, the trial court sentenced Smith to an aggregate sentence of twenty-one and one half years. The trial court further ordered that Count III be merged into Count II. This appeal follows.

DISCUSSION AND DECISION

Smith contends that the trial court erred in denying his motion to suppress the evidence obtained following his arrest for operating a vehicle while intoxicated. Although Smith originally challenged the admission of the evidence through a motion to suppress, he appeals following a completed trial and thus challenges the admission of the evidence at trial. “Accordingly, ‘the issue is more appropriately framed as whether the trial court abused its discretion by admitting the evidence at trial.’ ” Cole v. State, 878 N.E.2d 882, 885 (Ind.Ct.App.2007) (quoting Washington v. State, 784 N.E.2d 584, 587 (Ind.Ct.App. 2003)).

Our standard of review for rulings on the admissibility of evidence is essentially the same whether the challenge is made by a pre-trial motion to suppress or by an objection at trial. Ackerman v. State, 774 N.E.2d 970, 974-75 (Ind.Ct. App.2002), reh’g denied, trans. denied. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind.Ct. App.2005), trans. denied. We also consider uncontroverted evidence in the defendant’s favor. Id.

Id.

A trial court has broad discretion in ruling on the admissibility of evidence. Washington, 784 N.E.2d at 587 (citing Bradshaw v. State, 759 N.E.2d 271, 273 (Ind.Ct.App.2001)). Accordingly, we will reverse a trial court’s ruling on the admissibility of evidence only when the trial court abused its discretion. Id. (citing Bradshaw, 759 N.E.2d at 273). An abuse of discretion involves a decision that is clearly against the logic and effect of the facts and circumstances before the court. Id. (citing Huffines v. State, 739 N.E.2d 1093, 1095 (Ind.Ct.App.2000)). In the instant matter, Smith argues that the trial court abused its discretion in admitting the handgun recovered during the search incident to his arrest because the handgun was discovered in violation of his constitutional rights under both the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution.

A. The Fourth Amendment

Smith argues that the trial court abused its discretion because the handgun was discovered during an illegal warrant-less search. The Fourth Amendment provides “[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches or seizures shall not be violated.” The Fourth Amendment prohibits unreasonable searches and seizures. Burkes v. State, 842 N.E.2d 426, 429 (Ind.Ct.App. 2006), trans. denied. Because the Fourth Amendment generally prohibits warrant-less searches and seizures, the State has the burden of proving that an exception to warrant requirement existed at the time of the search when the search is conducted without a warrant. Edmond v. State, 951 N.E.2d 585, 588 (Ind.Ct.App.2011) (citing Ratliff v. State, 770 N.E.2d 807, 809 (Ind. 2002)).

The United States Supreme Court has held that one exception to the warrant requirement is a search incident to a lawful arrest. See Arizona v. Gant, 556 U.S. 382, 838, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). “The exception derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.” Id. However, police may search a vehicle incident to arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or if it is reasonable to believe the vehicle contains evidence of the offense of the arrest. Id. at 346-47, 129 S.Ct. 1710.

Here, the record demonstrates that Officer Tague conducted a search of Smith’s vehicle after Smith was arrested for operating a vehicle while intoxicated. Smith does not claim that the search was illegal because Officer Tague did not have probable cause to validly place him under arrest for the above-stated offense, but rather that the search of his vehicle went beyond that permitted following a valid arrest. Specifically, Smith asserts that “[w]hile the vehicle did contain evidence in support of the arrest for operating while intoxicated, there was insufficient support in the record to justify the more expansive search ultimately undertaken by Officer Tague after his observation of two beer bottles in the car.” Appellant’s Br. p. 15. For its part, the State argues that the continued search was proper because it was reasonable for Officer Tague to believe that he might find additional evidence of intoxication in the remaining unsearched parts of the passenger compartment of the vehicle, including under the driver’s seat. We agree.

After initiating the traffic stop, Officer Tague observed Smith lean forward and to the right as if trying to conceal something before pulling over. Upon approaching the vehicle, Officer Tague further observed that Smith, the sole occupant of the vehicle, displayed multiple signs of intoxication. Smith was placed under arrest for operating a vehicle while intoxicated.

Officer Tague testified that he searched the entire passenger compartment after placing Smith under arrest because, in his experience as a police officer, one can often find evidence of operating while intoxicated “everywhere” within the passenger compartment, including under the driver’s seat, in the center console, on the passenger’s side of the vehicle, hidden in the back seat, and in the pockets on the back of the driver’s and front passenger’s seats. Sup. Hr. Tr. p. 10. Officer Tague further testified that during this search of Smith’s vehicle, he was looking for beer bottles, beer caps, pills, and other evidence of Smith’s intoxication, all of which, again based on his experience as a police officer, he believed could possibly be found under the driver’s seat. As a result of his search, Officer Tague ultimately discovered two open beer bottles and a handgun. Under the circumstances, we conclude that Officer Tague reasonably believed that his search of the passenger compartment of Smith’s vehicle, including under the driver’s seat, could turn up evidence of the offense for which Smith was arrested. As a result, Officer Tague conducted a lawful search of Smith’s vehicle incident to Smith’s arrest. Smith’s rights under the Fourth Amendment were not violated.

B. Article I, Section 11

Smith also argues that the search incident to his arrest violated his rights under Article I, Section 11.

Article I, Section 11 provides, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated....” The purpose of this article is to protect from unreasonable police activity those areas of life that Hoosiers regard as private. Moran v. State, 644 N.E.2d 536, 540 (Ind.1994). The provision must receive a liberal construction in its application to guarantee the people against unreasonable search and seizure. Brown v. State, 653 N.E.2d 77, 79 (Ind.1995).

State v. Quirk, 842 N.E.2d 334, 339-40 (Ind.2006).

“While almost identical to the wording in the search and seizure clause of the federal constitution, Indiana’s search and seizure clause is independently interpreted and applied.” Baniaga v. State, 891 N.E.2d 615, 618 (Ind.Ct.App. 2008). Under the Indiana Constitution, the legality of a governmental search turns on an evaluation of the reasonableness of the police conduct under the totality of the circumstances. Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005).... The burden is on the State to show that under the totality of the circumstances, the intrusion was reasonable. Id.

Hathaway v. State, 906 N.E.2d 941, 945 (Ind.Ct.App.2009).

For the reasons stated in our analysis relating to the Fourth Amendment, we conclude that Officer Tague’s search of Smith’s vehicle was reasonable under the totality of the circumstances and did not violate Article I, Section 11. Officer Ta-gue, who had observed furtive movements by Smith suggesting that Smith was trying to conceal evidence, reasonably believed that the search could, and in fact did, result in the discovery of evidence relating to the offense for which Smith was arrested, ie., operating a vehicle while intoxicated. During the search, Officer Tague found at least two open beer bottles in addition to the handgun. Officer Tague found the handgun while searching under the driver’s seat for additional evidence of intoxication including beer bottles, beer bottle caps, and pills. Officer Tague testified that these items are small enough that each could have been found under the driver’s seat. Because Smith’s arrest was valid and Officer Tague reasonably believed that a search of the vehicle could lead to discovery of evidence relating to Smith’s arrest, we conclude that Officer Tague had probable cause to search the vehicle for evidence relating to the offense for which Smith was arrested. We further conclude that the search conducted by Officer Tague was reasonable under the totality of the circumstances, and, as such, Smith’s rights under Article I, Section 11 were not violated.

Because Smith’s rights under the Fourth Amendment and Article I, Section 11 were not violated, the trial court acted within its discretion in admitting into evidence the handgun found during the search of Smith’s vehicle following his arrest. Therefore, we affirm his conviction.

The judgment of the trial court is affirmed.

ROBB, C.J., and BAKER, J., concur.

      . Ind.Code § 35-47-4-5 (2009).