author: BRADFORD, Judge.

text:
    Nathan S. BERKMAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 45A04-1111-CR-583.
    Court of Appeals of Indiana.
    Sept. 4, 2012.

      Mark A. Bates, Office of the Lake County Public Defender, Crown Point, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorney for Appellee.
   OPINION

BRADFORD, Judge.

Appellant-Defendant Nathan Berkman appeals from his conviction of and sentence for Felony Murder. Berkman raises five issues, which we restate as follows:

I. Whether the trial court abused its discretion in denying Berkman’s motion to dismiss, which was made on the basis that the instant charge was barred by prohibitions against double jeopardy;
II. Whether the trial court abused its discretion in denying Berkman’s mistrial motion, which was made on the basis that the trial court abused its discretion in admitting certain testimony from a previous trial;
III. Whether the trial court abused its discretion in admitting certain deposition testimony; and
IV. Whether Berkman’s sixty-year executed sentence is inappropriately harsh.

We affirm.

FACTS AND PROCEDURAL HISTORY

In August of 2008, Berkman owed approximately $2000 to Olen Hawkins, from whom he had frequently purchased cocaine. On August 30, 2008, Berkman telephoned Hawkins, told him that he had the money he owed him, and arranged a meeting in a supermarket parking lot. Between 4:00 and 5:00 p.m., Berkman told Arlene Timmerman, his girlfriend and with whom he lived, that was going to leave to obtain money and cocaine and that he had to go by himself. Berkman left at approximately 6:00 p.m., in Timmerman’s car.

Berkman met Hawkins in the supermarket parking lot, parked next to him, and entered Hawkins’s vehicle. When Hawkins asked Berkman if he had the money that he owed him, Berkman slit Hawkins’s throat “from ear to ear and he robbed him for a couple ounces of dope and a bunch of money.” Tr. p. 1015. Berkman kicked Hawkins’s dead body into the passenger seat and drove Hawkins’s car back to Tim-merman’s house, arriving at approximately 9:30 to 10:00 p.m.

When Berkman arrived back at Timmer-man’s, he yelled for Timmerman. Timmer-man went with Berkman to the garage, where she saw Hawkins’s dead body in the passenger seat of his car. Berkman told Timmerman that he had cut Hawkins’s throat and taken an ounce of cocaine from him. Berkman, Timmerman, and Tanya Sullivan, who was visiting, then smoked crack cocaine in the basement until approximately 1:30 or 2:00 a.m.

Late in the evening of August 31, 2008, or early in the morning of September 1, Berkman retrieved a knife from the kitchen, held it to Timmerman’s neck, and said, “Get your f* * * * * * a* * downstairs now.” Tr. p. 517. Timmerman managed to elude Berkman, leave, and go to the home of friend Meghan Johnston. At approximately 7:00 or 8:00 a.m. on September 1, 2008, Timmerman called home, Berkman apologized, and Timmerman returned home. Berkman told her later that day that he had formulated a plan to dispose of Hawkins’s body, which was still in Hawkins’s car in the garage. Early in the morning of September 2, 2008, Berkman drove Hawkins’s car to a field with Tim-merman following in her car. While Tim-merman waited, Berkman doused Hawkins’s car with gasoline and set it aflame. Hawkins’s burned-out car and remains were discovered on November 19, 2008.

On June 9, 2009, the State charged Berkman with murder and felony murder in the perpetration of robbery, both felonies. On July 27, 2011, a jury acquitted Berkman of murder but failed to reach a verdict on the felony murder count. On August 30, 2011, Berkman’s second jury trial began, in which he was charged with felony murder. During its case in chief, the State called Timmerman to testify. Soon thereafter, Timmerman indicated that she was “having an issue[,]” and trial was recessed. Tr. p. 463. When questioned by the trial court in chambers, Tim-merman said that she was “very nauseous [and] burning up” and afraid that she might be developing a migraine. Tr. p. 466. The trial court determined that Tim-merman was unable to testify and ruled that her testimony from the first trial could be read into the record.

Later in the trial, on September 7, 2011, the State indicated that it wished to introduce deposition testimony of Paul Barraza, testimony that had been read into the record in the first trial. The deposition of Barraza had been conducted by Berkman’s attorney, and the State did not question Barraza during the deposition. The prosecutor indicated that his office gave Barra-za’s address and telephone number to an investigator but were unable to serve Bar-raza with a subpoena on August 8, 2011. The prosecutor also indicated that his office had been unable to contact Barraza via telephone, Barraza was subject to at least one open Lake County arrest warrant, and he believed Barraza to be in Florida avoiding the warrant. The trial court allowed the deposition to be read into the record. The jury found Berkman guilty as charged, and on October 3, 2011, the trial court sentenced him to sixty years of incarceration for felony murder.

DISCUSSION AND DECISION

I. Whether the Trial Court Abused its Discretion in Denying Berkman’s Motion to Dismiss

“On appeal, we will review a trial court’s grant of a motion to dismiss an information for an abuse of discretion.” State v. Gill, 949 N.E.2d 848, 849 (Ind.Ct.App.2011) (citing Zitlaw v. State, 880 N.E.2d 724, 728 (Ind.Ct.App.2008), trans. denied), trans. denied. “In reviewing a trial court’s decision for an abuse of discretion, we reverse only where the decision is clearly against the logic and effect of the facts and circumstances.” Id. (citing Zitlaw, 880 N.E.2d at 728-29). Berkman contends that the trial court abused its discretion in denying his motion to dismiss, which was made on the basis that retrying him for felony murder after his acquittal for murder violated prohibitions against double jeopardy.

A. Richardson Same Actual Evidence Test

Berkman contends that his retrial for felony murder violates Indiana’s “actual evidence” test. In Richardson v. State, 717 N.E.2d 32 (Ind.1999), the Indiana Supreme Court held “that two or more offenses are the ‘same offense’ in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to ... the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” Id. at 49-50. The Richardson court stated the actual evidence test as follows:

To show that two challenged offenses constitute the “same offense” in a claim of double jeopardy, a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.

Id. at 53.

Berkman’s Richardson claim must fail for the simple reason that he has been found guilty of only one crime. See, e.g., Lee v. State, 892 N.E.2d 1231, 1235 (Ind.2008) (“Since Richardson, this Court has decided several cases where there were separate facts to support two convictions, but the case was presented in a way that left a reasonable possibility that the jury used the same facts to establish both.”) (second emphasis added). Because there is no conviction other than the felony murder conviction, there is no other conviction that could have been based on the jury’s reliance on the same actual evidence used to establish the elements of felony murder. Berkman’s reliance on Richardson is unavailing.

B. Collateral Estoppel

Berkman also contends that the State was barred from trying him again for felony murder by the doctrine of collateral estoppel.

Collateral estoppel, also known as issue-preclusion, provides that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Collateral estoppel is a component of the Fifth Amendment’s double jeopardy protections. Id. at 445, 90 S.Ct. 1189. However, collateral estoppel “ ‘will not often be available to a criminal defendant,’ for ‘it is not often possible to determine with precision how the judge or jury has decided any particular issue.’ ” 5 Wayne R. Lafave et al., Criminal Procedure § 17.4(a) (3d ed.2007) (quoting Walter V. Schaefer, Unresolved Issues in the Law of Double Jeopardy; Waller and Ashe, 58 Cal. L. Rev. 391, 394 (1970)).

Hoover v. State, 918 N.E.2d 724, 734 (Ind.Ct.App.2009), trans. denied.

Berkman contends that the issues litigated and disposed of in his favor in the first trial, i.e., that he did not murder Hawkins, preclude him from being tried subsequently for felony murder. In order to convict a person of murder, the State is required to prove that he “knowingly or intentionally kill[ed] another human being[,]” while a conviction for felony murder may rest upon proof that he “kill[ed] another human being while committing or attempting to commit ... robbery[.]” Ind. Code § 35-42-1-1(1); -1(2).

Based on the jury’s murder acquittal and failure to reach a verdict on the felony murder charge in the first trial, the only issue of fact that we can say with certainty was litigated and decided against the State was that Berkman had not knowingly or intentionally killed Hawkins. Had the first jury found that Berkman had not killed Hawkins at all, it would have acquitted him of felony murder as well, instead of deadlocking on the charge. However, the State is not required to prove a knowing or intentional killing in order to sustain a felony murder conviction, only a killing — even an accidental one. In order to prevail on his collateral estop-pel claim, Berkman must be able to firmly establish that the second jury impermissi-bly found that he had knowingly or intentionally killed Hawkins, which, on this record, he cannot do. Regardless of how the case was argued and evidence presented, we simply will not speculate regarding the jury’s deliberations; it was permitted to find Berkman guilty of felony murder without making the impermissible finding that he knowingly or intentionally killed Hawkins, and we must presume that it did so.

II. Whether the Trial Court Abused its Discretion in Denying Berkman’s Mistrial Motion

Berkman contends that the trial court abused its discretion in denying his mistrial motion, which was made on the basis that the allegedly erroneous admission of Timmerman’s testimony from his first trial placed him in grave peril to which he should not have been subjected.

We review a trial court’s decision to deny a mistrial for abuse of discretion because the trial court is in “the best position to gauge the surrounding circumstances of an event and its impact on the jury.” McManus v. State, 814 N.E.2d 253, 260 (Ind.2004). A mistrial is appropriate only when the questioned conduct is “so prejudicial and inflammatory that [the defendant] was placed in a position of grave peril to which he should not have been subjected.” Mickens v. State, 742 N.E.2d 927, 929 (Ind.2001) (quoting Gregory v. State, 540 N.E.2d 585, 589 (Ind.1989)). The gravity of the peril is measured by the conduct’s probable persuasive effect on the jury. Id.

Pittman v. State, 885 N.E.2d 1246, 1255 (Ind.2008).

When faced with a circumstance that a defendant believes might warrant mistrial,

[generally, the correct procedure is to request an admonishment. See Brown v. State, 572 N.E.2d 496, 498 (Ind.1991). However, if counsel is not satisfied with the admonishment or it is obvious that the admonishment will not be sufficient to cure the error, counsel may then move for a mistrial. See Dresser v. State, 454 N.E.2d 406, 407-08 (Ind.1988). [A] failure to request an admonishment or move for a mistrial results in waiver of the issue. See Robinson v. State, 693 N.E.2d 548, 552 (Ind.1998).

Etienne v. State, 716 N.E.2d 457, 461 (Ind.1999).

At the heart of Berkman’s argument is his contention that Timmerman’s previous trial testimony should not have been admitted. The admissibility of evidence is within the sound discretion of the trial court. Curley v. State, 777 N.E.2d 58, 60 (Ind.Ct.App.2002), trans. denied. We will reverse a trial court’s decision on the admissibility of evidence only upon a showing of an abuse of that discretion. Id. An abuse of discretion may occur if the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. Id. We may affirm the trial court’s ruling if it is sustainable on any legal basis in the record, even though it was not the reason enunciated by the trial court. Moore v. State, 839 N.E.2d 178, 182 (Ind.Ct.App.2005), trans. denied. We do not reweigh the evidence and consider the evidence most favorable to the trial court’s ruling. Hirshey v. State, 852 N.E.2d 1008, 1012 (Ind.Ct.App.2006), trans. denied.

Prior testimony is hearsay, but Indiana Rule of Evidence 804 (2008) provides a hearsay exception for the prior testimony of a declarant who is “unavailable” as a witness. “ ‘Unavailability of a witness’ includes situations in which the declarant ... is unable to be present or to testify at the hearing because of death or then existing physical or mental illness of infirmity!.]” Ind. Evidence Rule 804(a)(1). If a witness is declared unavailable,

Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding [is admissible], if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

Evid. R. 804(b)(1).

The decision whether to invoke the rule allowing admission of prior recorded testimony is within the sound discretion of the trial court. Moore v. State (1982), Ind., 440 N.E.2d 1092, after remand [ (1984) ], 467 N.E.2d 720. Before a witness’ prior recorded testimony may be admitted in lieu of in court testimony, the prosecution must first show the de-clarant/witness is unavailable. Iseton v. State (1984), Ind.App., 472 N.E.2d 643, 648. It must also be determined whether there is sufficient identification of the parties and the issues between the former and present proceedings. Spence v. State (1979), 182 Ind.App. 62, 393 N.E.2d 277, 281. In Spence, this court states: “Absolute identity is not required, only sufficient identity to insure that cross-examination in the former case was directed to the issues presently relevant and that the former parties were the same in motive and interest.” Id.

Johnston v. State, 517 N.E.2d 397, 399 (Ind.1988).

A. Timmerman’s Unavailability

Berkman contends that the trial court abused its discretion in declaring Timmerman unavailable. Soon after beginning her testimony, Timmerman indicated that she was “having an issue[,]” and trial was recessed. Tr. p. 463. When questioned by the trial court in chambers, Timmerman said that she was “very nauseous [and] burning up[,]” she was afraid that she might be developing a migraine, and she had “thought [she] was going to throw up.” Tr. pp. 466-67. Timmerman also indicated that she had been hospitalized from Wednesday to Saturday of the previous week, she had undergone testing for multiple sclerosis, and hospital personnel believed that she may have had a seizure or “possibly a stroke[.]” Tr. p. 466. After observing the witness, the trial court remarked that “I don’t see how we’re going to be able to continue with this. I’ll get [Timmerman] the Turns [she requested], but it doesn’t even seem possible to me.” Tr. p.468.

Under the circumstances of this case, we cannot conclude that the trial court abused its discretion in declaring Timmerman unavailable. The trial court questioned Tim-merman, who complained of nausea and felt that she might be developing a migraine. Timmerman also indicated that she had very recently been hospitalized for four days, with medical personnel suspecting MS, seizure, or stroke as the cause of her symptoms. Most importantly, the trial court personally interviewed Timmer-man and was able to observe her behavior, demeanor, and appearance, something we cannot do. Berkman has failed to establish that the trial court abused its discretion in declaring Timmerman unavailable due to present illness.

B. Confrontation Rights

The Sixth Amendment to the United States Constitution provides, in part, that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]” Similarly, Article I, Section 13 of the Indiana Constitution provides, in part, that “In all criminal prosecutions, the accused shall have the right ... to meet the witnesses face to face[.]” Berkman argues that his right to confront witnesses against him was violated by the admission of Tim-merman’s prior testimony.

It is well-settled that the admission of prior testimony is constitutional provided certain requirements are met.

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that the Confrontation Clause of the Sixth Amendment to the Federal Constitution prohibits admission in a criminal trial of testimonial statements by a person who is absent from trial, unless the person is unavailable and the defendant had a pri- or opportunity to cross-examine the person.

Fowler v. State, 829 N.E.2d 459, 464 (Ind.2005). Moreover, the Indiana Supreme Court has held that the Indiana right to meet witnesses face-to-face “is secured where the testimony of a witness at a former hearing or trial on the same case is reproduced and admitted, where the defendant either cross-examined such witness or was afforded an opportunity to do so, and the witness cannot be brought to testify at trial again[J” Brady v. State, 575 N.E.2d 981, 987 (Ind.1991). As we have discussed, the trial court did not abuse its discretion in declaring Timmer-man unavailable, and there is no dispute that Berkman cross-examined Timmerman during her prior testimony. Berkman’s rights to confront the witnesses against him were not violated.

III. Whether the Trial Court Abused its Discretion in Admitting Barraza’s Deposition Testimony

Berkman contends that the trial court abused its discretion in admitting Barra-za’s deposition testimony. Berkman contends that the State failed to adequately show that Barraza was unavailable and that the deposition testimony should not have been admitted in any event because Berkman did not have an opportunity for cross-examination and did not have a similar motive when deposing Barraza.

A. Barraza’s Unavailability

Indiana Rule of Evidence 804(a) provides, in part, that '[unavailability as a witness’ includes situations in which the declarant ... is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance by process or other reasonable means.”

In several cases the United States Supreme Court has discussed the test for determining the unavailability of a witness. It stated a witness is not unavailable unless prosecutorial authorities make a good-faith effort to secure his presence at trial. Ohio v. Roberts (1980), 448 U.S. 56, 100 S.Ct. 2531, 2543, 65 L.Ed.2d 597; Berger v. California (1969), 393 U.S. 314, 315, 89 S.Ct. 540, 541, 21 L.Ed.2d 508; Barber v. Page (1968), 390 U.S. 719, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255. (Emphasis supplied). If no possibility of procuring the witness’s attendance exists, “good faith” demands nothing of the prosecution; however, if there is even a remote possibility affirmative measures will be successful, good faith may demand their effectuation. Ohio, supra. The extent to which the prosecution must go to produce a witness is a question of reasonableness. Id.

Bartruff v. State, 528 N.E.2d 110, 113-14 (Ind.Ct.App.1988).

As previously mentioned, the prosecutor indicated that his office had unsuccessfully attempted to serve Barraza with a subpoena on August 8, 2011, approximately one month before trial. The prosecutor also indicated that his office had been unable to contact Barraza via telephone, that Barra-za was subject to at least one open Lake County arrest warrant, and that he believed Barraza to be in Florida avoiding the warrant.

Under the circumstances of this case, we conclude that the State made a reasonable, good-faith effort to secure Barraza’s presence at trial. Barraza failed to appear for two trials and had apparently fled the jurisdiction to avoid an arrest warrant. The State subpoenaed Barraza at his last known address and gave its investigator his last known address and telephone number, to no avail.

Whether the State could have secured Barraza had it put forth considerably more effort is speculative at best. Given that Barraza was already subject to at least one Lake County arrest warrant, there was no reason for the State to request a Lake

County writ of body attachment. Moreover, resort to the Uniform Act for Securing the Presence of Witnesses from Without a State in Criminal Proceedings (“the Act”), Ind.Code ch. 35-37-5 (2008), would almost certainly have been wasted effort, as there was no known address for Barra-za. The Act provides for the subpoena or arrest of a witness in a foreign jurisdiction upon request of an Indiana trial court, but there is little point in attempting to subpoena or arrest a witness if his whereabouts are unknown, as was the case here. It should also be noted that Barraza, even if his whereabouts were known, had more incentive to ignore a subpoena than the typical reluctant witness, as he was subject to at least one arrest warrant. Finally, we cannot say that the State’s failure to send an investigator to Florida was at all unreasonable, given that the record does not reflect the State had a possible address for Barraza in Florida. Under the circumstances of this case, we cannot say that the State was required to do more than it did to secure Barraza.

B. Confrontation Rights

Berkman also contends that even if the State put forth a good faith effort to secure Barraza for trial, the admission of his deposition testimony violated his confrontation rights because he did not have an opportunity for adequate or effective cross-examination and because the deposition testimony was not developed with a similar motive. As we have already noted, Evidence Rule 804 provides that prior testimony can be admitted if the party against whom the evidence is offered “had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” Evid. R. 804(b)(1).

1. Opportunity to Cross-Examine

As previously mentioned, the confrontation requirements of both the Federal and Indiana Constitutions are met when a defendant either cross-examined the unavailable witness whose prior testimony the State seeks to admit or had the opportunity to do so. Fowler, 829 N.E.2d at 464; Brady, 575 N.E.2d at 987. Berkman notes that the State did not question Barraza during his deposition, arguing that this deprived him of the opportunity to cross-examine him. While this may be technically true, we conclude that the cross-examination requirement was nonetheless satisfied here, in spirit if not in word. As the Indiana Supreme Court has recognized, “the right to adequate and effective cross-examination is fundamental and essential to a fair trial [and] includes the right to ask pointed and relevant questions in an attempt to undermine the opposition’s case, as well as the opportunity to test a witness’s memory, perception and truthfulness.” State v. Owings, 622 N.E.2d 948, 950 (Ind.1993). At no point in Barraza’s deposition, the reading of which spanned ninety-four pages in the transcript, is there the slightest indication that Berkman was denied the opportunity to attempt to undermine Barraza or his testimony by asking any questions he saw fit. To the extent that Berkman did not do so, it was not because he was denied the opportunity. Under the circumstances, we conclude that requirement for the opportunity to cross-examine was satisfied here.

2. Similar Motive

Berkman contends that his deposition of Barraza was performed for discovery purposes, with the goal of helping his trial counsel understand what Barraza’s trial testimony might be so that he might better advise Berkman. Berkman argues that this difference in motive did not afford an opportunity for effective cross-examination. We cannot agree. Even if the primary motive of a discovery deposition in a criminal case is to obtain a preview of a witness’s testimony, this certainly does not exclude the need to understand how the witness’s story and credibility might be attacked. We believe that a prudent defense attorney conducting a discovery deposition in a criminal case would not only attempt to ascertain what the substance of the testimony might be but also explore avenues by which the testimony or the witness’s credibility might be attacked. Indeed, Berkman’s trial counsel did just that, spending considerable time during the deposition impeaching Barraza with prior criminal convictions and arrests and also exploring his motive for approaching the authorities regarding Berkman’s confession.

Berkman’s trial counsel questioned Bar-raza at great length regarding his criminal history, eliciting responses indicating that Barraza had been arrested thirteen times; had been first incarcerated between the ages of nine and eleven; and had “four or five” felony convictions, including for “[a] couple batteries[,]” dealing in cocaine, and theft. Tr. p. 952. It is worth noting that most, if not all, of this could have been ruled inadmissible for impeachment purposes at trial, with the possible exception of Barraza’s theft conviction. Pursuant to Evidence Rule 609, evidence of a prior conviction is only admissible for impeachment purposes if the conviction is for “murder, treason, rape, robbery, kidnapping, burglary, arson, criminal confinement or perjury; or ... a crime involving dishonesty or false statement.” Theft is considered to be a crime of dishonesty and would therefore have been admissible for impeachment purposes, assuming the other requirements of Evidence Rule 609 were met. See Rowe v. State, 704 N.E.2d 1104, 1108 (Ind.Ct.App.1999) (“Hodges’ Burglary and Theft convictions would both have been admissible as crimes which involve dishonesty and reflect upon a witness’ credibility for truth and veracity.”), trans. denied.

As for Barraza’s motive for coming forward, Berkman’s trial counsel asked him whether he hoped to receive help from the State in pending criminal cases and to explain why he “would rat out a fellow inmate like this.” Tr. p. 1032. Berkman does not explain how he was prevented from pursuing any of these lines of questioning fully or how they would have been pursued any differently at trial. We conclude that the motive for the discovery deposition, as well as how the deposition actually played out, was similar enough to that of trial testimony to satisfy the requirements of Evidence Rule 804(b)(1).

We decline to adopt the Florida rule that the use of discovery depositions during a criminal trial does not satisfy constitutional confrontation requirements. In State v. Lopez, 974 So.2d 340 (Fla.2008), the Florida Supreme Court held that

the exercise of the right to take a discovery deposition under rule 3.220 does not serve as the functional substitute of in-court confrontation of the witness because the defendant is usually prohibited from being present, the motivation for the deposition does not result in the “equivalent of significant cross-examination,” and the resulting deposition cannot be admitted as substantive evidence at trial.

Id. at 350. The first and third reasons identified simply do not apply, as Indiana law does not seem to prohibit a defendant’s attendance at discovery depositions and does not prohibit the use of depositions from unavailable persons as substantive evidence. See Ind. Trial Rule 32(A)(3). Also, we must respectfully disagree with the Florida Supreme Court’s second reason, as we have already concluded that the motive for a discovery deposition in a criminal case is close enough to that driving a defendant’s approach to trial testimony to satisfy the requirements of Evidence Rule 804(b)(1). The trial court did not abuse its discretion in admitting Barraza’s deposition testimony.

IV. Whether Berkman’s Sentence is Inappropriate

We “may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B). “Although appellate review of sentences must give due consideration to the trial court’s sentence because of the special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an authorization to revise sentences when certain broad conditions are satisfied.” Shouse v. State, 849 N.E.2d 650, 660 (Ind.Ct.App.2006), trans. denied (citations and quotation marks omitted). “[WJhether we regard a sentence as appropriate at the end of the day turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.2008). In addition to the “due consideration” we are required to give to the trial court’s sentencing decision, “we understand and recognize the unique perspective a trial court brings to its sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873 (Ind.Ct.App.2007). The trial court sentenced Berkman to sixty years of incarceration.

The nature of Berkman’s offense was quite egregious. Berkman lured Hawkins to a meeting place with a promise of paying him the money he owed him, only to kill and rob him instead. After keeping Hawkins’s decomposing corpse in Timmer-man’s garage for three days, Berkman drove Hawkins’s car to an isolated location and set it aflame. Berkman’s offense was premeditated, and Hawkins died for no better reason than Berkman owed him $2000 that he did not wish to repay. The nature of Berkman’s offense justifies a lengthy sentence]

As for Berkman’s character, it also justifies a lengthy sentence. While Berkman’s criminal history is not extensive, he has a 2006 battery conviction and a 2009 theft conviction, for which he was on probation when he committed the instant offense. In the course of three years, Berkman progressed from relatively minor crimes to felony murder, which certainly does not speak well of his character. Berkman’s actions following his offense at issue are, to be blunt, disturbing. Immediately after the killing, Berkman returned home and smoked crack cocaine for several hours, and then, over the course of the next three days, went on a binge, “* * * * * * part[ying] and s* * *, smoking crack and staying] f* * * * * up.” Tr. p. 1015. Berkman also held a knife to Timmerman’s throat and on another occasion choked her while laughing and saying, “Oh, I could kill you.” Tr. p. 573. There is also some indication that after Berkman’s arrest he made some attempts to “get her [and] make her pay” for speaking with police. Tr. p. 1021. After allowing Hawkins’s body to decompose for three days in Tim-merman’s garage, Berkman disposed of it in an isolated area by burning it, preventing Hawkins’s wife from knowing her husband’s fate for several more months. In light of the nature of his offense and his character, Berkman has failed to establish that his sixty-year sentence for felony murder is inappropriate.

We affirm the judgment of the trial court.

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

      . Ind.Code § 35-42-1-1(2) (2008).

      . "When duly subpoenaed, the attendance of all witnesses may be enforced by attachment.” Ind.Code § 35-37-5-2 (2008).

      . Bartruff, 528 N.E.2d at 110, on which Berk-man relies, is distinguishable. Bartruff addressed the adequacy of State efforts to secure the testimony of an out-of-state witness, and we stated that
      we believe the minimum required to show a good faith effort in this regard is evidence the prosecution filed a petition for the issuance of a subpoena under [the Act] and continuing reasonable attempts to procure the witness's attendance at trial before his deposition is admissible, even though the witness was subject to cross-examination when the deposition was taken.

        Id. at 115. Unlike here, however, it is clear from Bartruff that the precise whereabouts of the witness in question were known to the State. Berkman’s reliance on Bartruff is unavailing.


source: Caselaw Access Project

author: DARDEN, Senior Judge.

license: Public Domain

text:
    HOOD’S GARDENS, INC., Appellant, v. Jason YOUNG, Craig Mead d/b/a/ Discount Tree Extraction a/k/a D & E Tree Extraction, Appellees.
    No. 29A04-1201-PL-8.
    Court of Appeals of Indiana.
    Sept. 4, 2012.

      John C. Trimble, Sonia C. Das, Lewis Wagner, LLP, Indianapolis, IN, Attorneys for Appellant.
    Matthew M. Golitko, Golitko & Daly, P.C., Indianapolis, IN, Attorney for Appel-lee, Jason Young.
   OPINION

DARDEN, Senior Judge.

STATEMENT OF THE CASE

Hood’s Gardens, Inc. (“HG”) appeals the trial court’s dismissal of its declaratory judgment action involving Craig Mead D/B/A Discount Tree Extraction a/k/a D & E Tree Extraction (“D & E”) and Jason Young (“Young”).

We reverse and remand.

ISSUE

Whether the trial court erred in dismissing HG’s declaratory judgment action, thus rendering HG’s summary judgment motion moot.

FACTS

HG is a wholesale greenhouse located in Noblesville that entered into an oral contract with D & E, whereby D & E would remove an oak tree for the stated price of $600, with D & E to clear and haul away the wood and debris. Shortly thereafter, D & E sent Dennis Wyant, a subcontractor, to cut the limbs from the tree. On or about October 6, 2009, Young arrived at the property and advised HG that Mead, D & E’s owner, had sent him to remove the remainder of the tree, which stood between ten and fifteen feet high. While he was removing the tree on HG’s premises, Young sustained severe injuries resulting in paraplegia. On or about October 27, 2009, an attorney representing Young made a demand that HG pay worker’s compensation benefits to Young. HG became aware that it might be exposed to payment of Young’s worker’s compensation benefits under Indiana Code section 22-3-2-14(b), a statute that provides the following:

... [A]ny corporation ... contracting for the performance of any work exceeding one thousand dollars ($1000) in value by a contractor subject to the compensation provisions of [the Worker’s Compensation Act], without exacting from such contractor a certificate from the worker’s compensation board showing that such contractor has complied with [worker’s compensation insurance statutes] shall be liable to the same extent as the contractor for compensation, physician’s fees, hospital fees, nurse’s charges, and burial expenses on account of the injury or death of any employee of such contractor, due to an accident arising out of and in the course of the performance of the work covered by such contract.

On August 26, 2010, HG filed a complaint for declaratory judgment in the Hamilton County Superior Court. In its complaint, HG stated the following:

9. On or about October 6, 2009, [Young] and his helpers were removing the wood from [HG’s property] when Young sustained personal injuries.
10. Pursuant to Ind.Code § 34-15-1-2, [HG] is a person interested in having determined a question of construction or validity under the statute, and to obtain a declaration of rights, status or other legal relationships under the statute.
14. Upon information and belief, on October 6, 2009, [D & E] did not have in place a policy of worker’s compensation insurance, nor had [D & E] been granted a certificate of exemption by the worker’s compensation board.
15. [HG] has reason to believe that [Young] may file a worker’s compensation claim against [D & E] for the injuries he sustained.
16. To the extent [Young] may file a worker’s compensation claim against [D & E], [Young] and [D & E] may seek to hold [HG] liable for the payment of worker’s compensation benefits.
17. [HG] has no duty to pay worker’s compensation benefits on behalf of [Young] and is not liable for the injuries of [Young] under Ind.Code § 22-3-2-14 because the value of the work performed by [Young] did not exceed One Thousand Dollars ($,1000).
18. [HG] has no duty to pay worker’s compensation benefits on behalf of [Young] and is not liable for the injuries of [Young] under Ind.Code § 22-3-2-14 because the value of the work performed by [D & E] did not exceed One Thousand Dollars ($1000).

(App. 9-Í0).

On October 25, 2010, Young filed an answer to the complaint. D & E did not file a responsive pleading, and on April 6, 2011, the trial court issued an order of default judgment against D & E.

On June 20, 2011, almost a year after HG filed its complaint for declaratory judgment, Young filed an application for adjustment claim with the Indiana Worker’s Compensation Board (“the Board”), naming D & E and HG as defendants. A single hearing member of the Board issued an order staying the proceedings pending resolution of HG’s declaratory judgment action “as it pertains to those issues which are or may be outcome determinative to the present action.” (HG’s Ex. 1 at 2).

On July 29, 2011, HG filed a motion for summary judgment requesting that the trial court declare, as a matter of law, that there was no legal basis upon which HG could be found secondarily liable to pay worker’s compensation benefits to or on behalf of Young because the condition determining secondary liability — a contract exceeding $1000.00 in value — had not been met. Young timely filed a response to HG’s summary judgment motion.

On September 28, 2011, Young filed an Indiana Trial Rule 12(B)(1) motion to dismiss the declaratory judgment action on the basis that the trial court did not have subject matter jurisdiction because the Board had exclusive jurisdiction to hear the issues raised by HG. In an affidavit attached to the motion to dismiss; Young averred that he was “working for” D & E when he was injured on HG’s premises, that D & E was to keep the wood removed from the premises “[a]s part of [its] compensation”; and that the value of the wood removed from the premises “exceeded $400,” thereby making the value of the contract to be at least $1,000. (App. 54).

After hearing argument on Young’s motion to dismiss and HG’s summary judgment motion, the trial court granted the motion to dismiss. The trial court made no explicit finding of facts, instead concluding that the location of Indiana Code section 22-3-2-14(b) in the Worker’s Compensation Act deprived the trial court of its jurisdiction and placed exclusive jurisdiction with the Board. The trial court concluded that HG’s summary judgment motion was moot.

DECISION

HG contends that the trial court erred in granting Young’s motion to dismiss for lack of subject matter jurisdiction. The standard of review for motions to dismiss for lack of subject matter jurisdiction is dependent on what happened at the trial level. Hatke v. Fiddler, 868 N.E.2d 60, 63 (Ind.Ct.App.2007). Here, where the trial court ruled on a paper record without conducting an evidentiary hearing, our standard of review is de novo. GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind.2001).

A motion to dismiss for lack of subject matter jurisdiction presents a threshold question concerning the trial court’s power to act. Curry v. D.A.L.L. Anointed, Inc., 966 N.E.2d 91, 95 (Ind.Ct.App.2012), tram, denied. Actions taken by a court lacking jurisdiction are void. Id. The party challenging subject matter jurisdiction has the burden of establishing that jurisdiction does not exist. Id. In ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial court may consider not only the complaint and motion but also any affidavits or evidence submitted in support. GKN, 744 N.E.2d 397. In addition, the trial court may weigh the evidence to determine the existence of the requisite jurisdictional facts. Id.

Two legislative acts are at issue here. The first is the Worker’s Compensation Act, which provides in Indiana Code section 22-3-1-2 that the Board shall administer “the worker’s compensation law (IC 22-3-2 through IC 22-3-6).” Indiana Code section 22-3-1-3 grants and limits the authority of the Board, and it provides in part that the Board is authorized, among other things, to “hear, determine, and review all claims for compensation under IC 22-3-2 through IC 22-3-7.” The “exclusivity provision” of the Act provides that the “rights and remedies granted to an employee subject to IC 22-3-2 through 22-3-6 on account of personal injury or death by accident shall exclude all other rights and remedies of such employee” Ind.Code § 22-3-2-6. It is this exclusivity provision which may deprive a trial court of its jurisdiction. See Williams v. R.H. Marlin, Inc., 656 N.E.2d 1145, 1150 (Ind.Ct.App.1995).

Here, although Indiana Code section 22-3-2-14(b) falls within the broad provisions of the Act, the specific issue arising from the statute does not pertain to the “rights and remedies granted to an employee” that are the subject of the Act’s exclusivity provision. It is important to note that the exclusivity provision of the Act bars all other rights and remedies of the employee; it does not limit a trial court’s jurisdiction to make a threshold determination about whether an employer is subject to the Act’s rights and remedies provisions.

The second important act is the Uniform Declaratory Judgment Act, which is intended to furnish an adequate and complete remedy where none before had existed. Ember v. Ember, 720 N.E.2d 436, 439 (Ind.Ct.App.1999) (citing Madden v. Houck, 403 N.E.2d 1133, 1135 (Ind.Ct.App.1980)). The test to determine the propriety of declaratory relief is whether the issuance of a declaratory judgment will effectively solve the problem involved, whether it will serve a useful purpose, and whether or not another remedy is more effective or efficient. Boone County Area Plan Comm’n v. Kennedy, 560 N.E.2d 692, 696 (Ind.Ct.App.1990), trans. denied. The determinative factor of this test is whether the declaratory action will result in a just and more expeditious and economical determination of the entire controversy. Ferrell v. Dunescape Beach Club Condominiums Phase I, Inc., 751 N.E.2d 702, 708 (Ind.Ct.App.2001).

Young made a demand for benefits less than thirty days after he sustained his injuries, yet he took no action against HG for nearly two years. Absent the Uniform Declaratory Judgment Act, HG had no legal remedy to have its contract with Mead construed to determine whether HG was at risk of liability. Further, HG had no expeditious remedy before the Board, which has not adopted Rules 12 or 56 of the Indiana Trial Rules.

Trial courts should exercise jurisdiction under the Declaratory Judgment Act where it serves as a more judicious and economical way of resolving a controversy. In the present case, the issuance of a declaratory judgment serves the useful purpose of determining whether the value of the contract between D & E and HG is a statutory basis for changing HG’s legal status. Therefore, the Act is an appropriate vehicle for resolving the issue raised by HG in its complaint.

CONCLUSION

The exclusivity provisions of the Worker’s Compensation Act did not give the Board exclusive jurisdiction to decide the simple contract construction issue raised in the trial court by HG. Accordingly, the trial court erred in granting Young’s motion to dismiss for lack of jurisdiction and in deciding that HG’s summary judgment motion was moot.

Reversed and remanded for further proceedings consistent with our opinion.

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

      . We note that the complaint below and the Appellee’s brief refer to the plaintiff as "Hood's Gardens,” while the appellant's brief, reply brief, and appendix on appeal refer to the plaintiff as "Hoods Gardens.”

      . D & E did not file a brief in this appeal.


author: VAIDIK, Judge.

text:
    Napoleon GRACIA, Sr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 34A04-1112-CR-667.
    Court of Appeals of Indiana.
    Sept. 5, 2012.

      Derick W. Steele, Kokomo, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Monica Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Napoleon Gracia, Sr. was convicted of one felony and two misdemeanor counts stemming from a physical altercation with police officers. On appeal, Gracia contends that the State engaged in impermissible forum shopping when it filed charges against him in Howard Superior Court I. Gracia also argues that the trial court erred in refusing to give a jury instruction on excessive use of force by police and that his sentence is inappropriate. We conclude that while the filing of charges in Howard Superior Court I was error, Gra-cia did not object to the filing and must therefore show fundamental error. We find that he has failed to do so. We also conclude that Gracia was not entitled to the jury instruction at issue and that Gra-cia’s sentence is not inappropriate. We affirm.

Facts and Procedural History

In November 2010, Kokomo Police Officers Adam Martin and Chad VanCamp were investigating a report of possible drug activity at 927 South Lewis Street in Howard County, the home of the Gracia family. When the two officers arrived at the Lewis Street address, Officer Martin approached the rear of the house. Officer Martin noticed the odor of burnt marijuana emanating from an open window, which became stronger as he neared the back of the house. Officer VanCamp confirmed the odor of burnt marijuana and left the property to apply for a search warrant.

While Officer VanCamp sought a search warrant, neighbors provided Officer Martin with a telephone number for Mrs. Gra-cia. When Officer Martin reached Mrs. Gracia by phone, she told him that she would send her husband and son home to meet with the officers. At approximately 4:00 p.m., Gracia and his son arrived at the house. Sergeant Tonda Cockrell, Corporal Stacey Wines, Corporal Keith Meyers, and Officer Brian Hunt also arrived at the scene, and Officer VanCamp returned with a search warrant. Gracia and his son waited in his garage with Corporal Meyers and Officer VanCamp while the other officers executed the search warrant. During the search, the officers discovered a leafy plant substance and items associated with the smoking and sale of marijuana.

Officer VanCamp informed Gracia that he was under arrest because the officers found marijuana in the house. He asked Gracia to place his hands behind his back. Gracia refused repeated requests to do so. Officer Hunt then approached Gracia and grabbed his left wrist. Gracia pulled his hand away. Corporal Meyers warned Gracia that he would be tased if he did not place his hands behind his back. Gracia refused to comply, and Corporal Meyers deployed his taser, striking Gracia in the abdomen. Gracia pulled the taser wires from his skin and charged at Officers Meyers and Hunt. At that point, Officer Hunt sprayed Gracia in the face with mace. Gracia then punched Officer Hunt. A fistfight ensued, during which Gracia struck Officer VanCamp in the chest. Gracia also attempted to remove Officer Hunt’s gun from its holster. The officers ultimately brought Gracia to the ground and handcuffed him.

The State charged Gracia with the following counts: (I) Class C felony disarming of a law enforcement officer; (II) Class D felony dealing in marijuana; (III) Class D felony possession of marijuana; (IV) Class D felony battery resulting in bodily injury; (V) Class A misdemeanor battery; and (VI) Class A misdemeanor resisting law enforcement.

Gracia’s three-day jury trial ended in June 2011. At the close of evidence, Gra-cia tendered the following jury instruction:

The law does not allow a peace officer to use more force than necessary to effect an arrest, and if he does use such unnecessary force, he thereby becomes a trespasser, and an arrestee therefore may resist the arrester’s use of excessive force by the use of reasonable force to protect himself against great bodily harm or death. If you find that Officer VanCamp, Officer Hunt, Corporal Myers, Deputy Wines, Officer Martin[,] or Sergeant Cockrell used more force than necessary to effectuate the arrest, then the accused was permitted to resist the arrest to such an extent as necessary to protect himself from great bodily harm or death, and you must find him not guilty of resisting law enforcement. Authority: Wilson v. State, 842 N.E.2d 443, 446 (Ind.Ct.App.2006)[, trans. denied ].

Appellant’s App. p. 158. The trial court refused the instruction, stating that it was no longer good law under our Supreme Court’s decision in Barnes v. State, 946 N.E.2d 572 (Ind.2011), clarified on reh’g, 953 N.E.2d 473 (Ind.2011). The jury found Gracia guilty of Counts I, V, and VI.

At the sentencing hearing, the trial court discussed aggravating factors, including Gracia’s criminal history, which included convictions for dealing in marijuana, resisting law enforcement, and just a few months earlier, battery with bodily injury. The trial court explained that Gra-cia’s criminal history indicated a pattern of violent behavior. Tr. p. 437. The trial court also expressed concern about the facts of the current case:

[Gracia] admitted that he, quote, may have grabbed Officer Hunt’s gun belt and service weapon, end quote, but if he did it wasn’t intentional. That is all well and good except for Officer Hunt’s testimony wherein he testified that [Gracia] grabbed the gun and pulled on it hard enough to actually lift Officer Hunt up off his feet. He felt that that was a deliberate, intentional attempt to gain possession of his service weapon. The jury agreed and I think that is absolutely what happened. The fact that nobody was hurt is simply because of the nature of the design of the officer’s holster. Because of that design[,] the gun did not come out and so nobody was involved in gun play.

Id. at 438.

The trial court sentenced Gracia to eight years in the Department of Correction on Count I, one year on Count V, and one year on Count VI. The trial court suspended the sentences on Counts V and VI to supervised probation and ordered Gracia to serve that probationary period consecutive to the sentence on Count I.

Gracia now appeals.

Discussion and Decision

On appeal, Gracia argues that: (1) the State engaged in impermissible forum shopping when it filed charges in Howard Superior Court I; (2) the trial court erred in refusing to give Gracia’s jury instruction on excessive use of force by police; and (3) his sentence is inappropriate.

I. Howard County Local Court Rules

Gracia contends that the State engaged in impermissible forum shopping when it filed charges against him in Howard Superior Court I. Gracia’s argument involves the Howard County local court rules governing the assignment of cases, which our Supreme Court recently discussed in Harris v. State:

[T]he Howard Circuit and Superior Courts adopted a rule providing for a weekly rotation among the Circuit Court, Superior Court II, and Superior Court IV. Howard LR34-CR2.2 Rule 29(A). In general, a Howard County prosecutor must file a felony criminal charge in the court designated by the weekly rotation, on the basis of the date the offense occurred, subject to several exceptions. Local Rule 29(B).

963 N.E.2d 505, 506 (Ind.2012). Howard Superior Court I is not included in this rotating system. According to the local rules, the State may file charges in Howard Superior Court I if the charges are drawn under Indiana Code Title 35, Article 48. Howard LR34-CR2.2 Rule 29(B)(3). When there are multiple charges, as here, filing is based upon the highest charged class of felony. The highest class of felony charged here was Class C felony disarming of a law enforcement officer. As the State acknowledges, this charge does not fall under Title 35, Article 48, and for this reason, Howard Superior Court I was not the proper forum for Gracia’s case.

The State contends, however, that because Gracia did not object to the filing of charges in Howard Superior Court I, he may only prevail if the improper filing amounts to fundamental error. Notably, in Harris, the Court held that a defendant is not required to show prejudice to prevail on a claim that the State engaged in forum shopping. 963 N.E.2d at 507. In that case, however, the defendant objected to the filing of charges in Howard Superior Court I and filed a pre-trial motion to transfer the case pursuant to the local rules. Here, Gracia did not object to the case being filed in Howard Superior Court I; therefore, he did not give the trial court the opportunity to correct the filing error. For this reason, we conclude that Gracia must show prejudice; that is, he must show that fundamental error occurred.

“The fundamental error doctrine is an exception to the general rule that the failure to object at trial constitutes a procedural default precluding consideration of an issue on appeal.” Jewell v. State, 887 N.E.2d 939, 940 n. 1 (Ind.2008). The fundamental error exception is extremely narrow. McQueen v. State, 862 N.E.2d 1237, 1241 (Ind.Ct.App.2007). To qualify as fundamental error, the error must be “so prejudicial to the rights of the defendant as to make a fair trial impossible.” Carden v. State, 873 N.E.2d 160, 164 (Ind.Ct.App.2007). The fundamental error exception “applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” McQueen, 862 N.E.2d at 1241.

Gracia does not argue that the trial court was biased or that he was otherwise denied a fair trial, see Appellant’s Br. p. 14-16, and his argument that the prosecutor disregarded local rules is no substitute for this showing. Gracia has failed to establish fundamental error.

II. Jury Instruction

Gracia also contends that the trial court erred in refusing his jury instruction on excessive use of force by police. In reviewing a trial court’s decision to give or refuse tendered jury instructions, we consider: (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions that are given. Chambers v. State, 734 N.E.2d 578, 580 (Ind.2000), reh’g denied. A defendant is only entitled to reversal if he affirmatively demonstrates that the instructional error prejudiced his substantial rights. Hero v. State, 765 N.E.2d 599, 602 (Ind.Ct.App.2002), trans. denied.

Gracia tendered a jury instruction on the use of excessive force by police. The trial court refused Gracia’s tendered instruction, stating that it did not believe the instruction was a “good statement of the law” in light of the Supreme Court’s decision in Barnes v. State. We agree.

In Barnes, the Court held “there is no right to reasonably resist unlawful entry by police officers.” 946 N.E.2d at 574. The instruction tendered by Gracia provided a defense to the charges against him by converting the police officers to trespassers or unlawful enterers in his home by arguing that they used unnecessary force. See Appellant’s App. p. 153 (“[I]f [a police officer] does use such unnecessary force, he thereby becomes a trespasser, and an arrestee therefore may resist the arres-ter’s use of excessive force by the use of reasonable force ....”) (emphasis added). In this way, Gracia argued that he was permitted to use reasonable force against the police officers in his garage. This was not permitted at the time under Barnes. We conclude that the trial court did not abuse its discretion in refusing this instruction.

III. Inappropriate Sentence

Finally, Gracia contends that his eight-year sentence for Class C felony disarming of a law enforcement officer is inappropriate in light of the nature of the offense and his character.

Although a trial court may have acted within its lawful discretion in imposing a sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent appellate review and revision of sentences through Indiana Appellate Rule 7(B), which provides that a court “may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind.2007) (citing Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.2007), clarified on reh’g, 875 N.E.2d 218 (Ind.2007)). The defendant has the burden of persuading us that his sentence is inappropriate. Id. (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006)).

The principal role of Rule 7(B) review “should be to attempt to leaven the outliers, and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.2008). We “should focus on the forest — the aggregate sentence — rather than the trees — consecutive or concurrent, number of counts, or length of the sentence on any individual count.” Id. Whether a sentence is inappropriate ultimately turns on the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad of other factors that come to light in a given case. Id. at 1224.

The sentencing range for a Class C felony is two to eight years, with four years being the advisory term. Ind.Code § 35-50-2-6. Here, the trial court sentenced Gracia to eight years, the maximum sentence for this offense.

Regarding the nature of the offense, there is nothing in the record that indicates that this sentence is inappropriate. Gracia refused to allow law enforcement officers to handcuff him and initiated a physical altercation with the officers in his garage. During that altercation, Gra-cia charged at the officers, punching and kicking them. Despite the use of a taser and mace, Gracia continued to physically threaten the officers. Most importantly, as the altercation escalated, Gracia attempted to remove a handgun from one of the officers’ belts. The trial court noted that the only thing that had prevented “gunplay” during the altercation was the design of the officer’s holster. The nature of this offense was serious.

Regarding his character, Gracia has a criminal history that includes violence directed at law enforcement. In 2002, Gra-cia was convicted of dealing in marijuana and resisting law enforcement. In February 2010, Gracia was convicted of battery with bodily injury. When sentencing Gra-cia in this case, the trial court noted, as we do on appeal, Gracia’s pattern of violent behavior toward others, including law enforcement. Gracia has failed to persuade us that his sentence is inappropriate in light of the nature of the offense and his character.

Affirmed.

MATHIAS, J., and BARNES, J., concur.

      . There is some confusion regarding whether the defendant is Napoleon Gracia, Jr., or Napoleon Gracia, Sr. While the defendant’s appellate materials and some trial exhibits list his name as Napoleon Gracia, Jr., the remaining appellate materials refer to him as Napoleon Gracia, Sr. In addition, a Department of Correction inmate search shows that the defendant is listed as Napoleon Gracia, Sr. We therefore use the senior designation.

      . There is an exception for cases with multiple counts where the highest-charged felonies are of the same class. In that instance, the case is to be filed in Superior Court I. See Howard LR34-CR2.2 Rule 29(B)(3).

      . We note, however, that Gracia was charged with battery with bodily injury as a misdemeanor in February 2010 in another case. This charge was filed in Howard Superior Court I, and after Gracia pled guilty in June 2010, he was placed on unsupervised probation for one year. Gracia was still on unsupervised probation when the charges were filed in this case. As in Harris, this may have led to some confusion regarding where the underlying charges were to be filed. 963 N.E.2d at 507. In Harris, the Court noted that the filing rules had "shades of grey” and urged the Howard County judiciary to amend them. Id. The judiciary has done so, and these amendments will take effect in January 2013. See http://co.howard.in.us/clerkl/docs/ 2012_08_07_14_29_48.pdf (last visited Aug. 20, 2012). However, because the State admits that the charges in this case were improperly filed in Howard Superior Court I, we proceed in our analysis accordingly.

      . We note that the legislature amended Indiana Code section 35-41-3-2, effective March 20, 2012, to restore a citizen’s right to use reasonable force to protect themselves against unlawful entry by police officers. Ind.Code § 35-41-3-2(0(2).


author: KIRSCH, Judge. BROWN, Judge, VAIDIK, Judge,

text:
    Ann L. MILLER and Richard A. Miller, Appellants-Plaintiffs, v. Glenn L. DOBBS, D.O., and Partners in Health, Appellees-Defendants.
    No. 15A05-1108-CT-431.
    Court of Appeals of Indiana.
    Sept. 13, 2012.

      F. Harrison Green, Cincinnati, OH, Attorney for Appellants.
    Karl L. Mulvaney, Nana Quay-Smith Bingham Greenebaum Doll, LLP, Indianapolis, IN, Attorneys for Appellees.
   OPINION

KIRSCH, Judge.

Ann L. Miller (“Ann”) and her husband Richard A. Miller (“Richard”) (collectively, “the Millers”) appeal the trial court’s grant of summary judgment in favor of Dr. Glenn L. Dobbs, D.O. (“Dr. Dobbs”), and Partners in Health (collectively, “the Defendants”). The Millers raise several issues, of which we find the following to be dispositive: whether the trial court erred in granting summary judgment in favor of the Defendants based on a finding that the Millers’ proposed complaint was not timely filed.

We reverse and remand.

FACTS AND PROCEDURAL HISTORY

In 2005, Ann was referred to Dr. Dobbs for obstetrical care. Dr. Dobbs practices at Partners in Health in Lawrenceburg, Indiana. During her pregnancy, Ann was diagnosed with gestational hypertension and gestational diabetes, but she was never diagnosed with preeclampsia. On March 20, 2006, Ann gave birth to her fourth child at Dearborn County Hospital. Dr. Dobbs delivered the baby via cesarean section and performed a tubal ligation. Ann’s blood pressure was high during early labor, but it normalized once she was given an epidural. Ann’s blood pressure postpartum was “stable” and ranged from 180/80 to 165/85. Appellants’ App. at 17; see also id. at 191 (BP ranging from 189/78 to 162/85). Dr. Dobbs discharged Ann “with suspected gestational diabetes not preeelampsia,” gave her precautions, but no antihypertensive medications, and instructed her to return for a follow up. Id. at 17.

Ann was scheduled to return to Dr. Dobbs’s office on Monday, March 27, 2006, for her follow up. However, Dr. Dobbs was out of the office that day attending another delivery, so Ann’s appointment was rescheduled for Friday, March 31. This appointment was then rescheduled for Monday, April 3. The record, however, does not reflect who rescheduled this appointment or the reason for the rescheduling.

On the morning of her rescheduled appointment, Richard found Ann unconscious in the bathroom. When the paramedics arrived, Ann was awake but disoriented and had a blood pressure of 220/108. On the way to Dearborn County Hospital, Ann had a seizure. Once at the hospital, a CT scan revealed that Ann had suffered bilateral infarcts, that is, a stroke involving both hemispheres of her brain. According to Ann’s medical records, the stroke was “devastating.” Id. at 17. Ann was transferred to University of Cincinnati Hospital. She suffered permanent injuries from the stroke.

The Millers retained an Indiana-licensed Cincinnati attorney to represent them and obtained Ann’s medical records from Dr. Dobbs sometime in March 2007. Approximately one year later, on March 18, 2008, the Millers’ attorney mailed a proposed medical-malpractice complaint against the Defendants to the Indiana Department of Insurance (“the Department”) via certified mail. This certified mailing occurred approximately two weeks before the statute of limitations was due to expire on April 4, 2008. See Ind.Code § 34-18-7-l(b) (“A claim, whether in contract or tort, may not be- brought against a health care provider based upon professional services or health care that was provided or that should have been provided unless the claim is filed within two (2) years after the date of the alleged act, omission, or neglect-”). The mailing included a cover letter, the proposed complaint, and a return envelope, which the Department then used to return a copy of the proposed complaint bearing a file-stamp date of March 18, 2008. The mailing, however, did not include the filing or processing fees that are required for proposed complaints. See Ind.Code § 34-18-8-2 (“The following fees must accompany each proposed complaint filed: (1) A filing fee of five dollars ($5). (2) A processing fee of two dollars ($2) for each additional defendant after the first defendant.” (emphasis added)).

Apparently later discovering the fee error, on March 31, 2008, Stephanie Mosley (“Mosley”), a claims processor at the Department, sent the Millers’ attorney a letter stating that the mandatory fees needed to be forwarded within thirty days. The letter instructed, in bold, that “[a] proposed complaint will not be considered filed with the Department until the filing fees stated in IC 34-18-8-2 are received by the Department.” Appellees’ App. at 37. The letter also included a copy of the Department’s proposed-complaint procedures, which also warned that “[a] proposed complaint is considered filed when a copy of the proposed complaint is delivered or mailed by registered or certified mail to the Department with the required filing and processing fees. (LG. 34-18-8-2; I.C. 34-18-9-1).” Id. at 38 (emphasis added). The Department’s website contains a similar warning. See Ind. Dep’t of Ins., Medical Malpractice: Filing a Complaint, http://www.in.gov/idoi/2614.htm (last visited Aug. 2, 2012) (“A proposed complaint is filed when a copy is delivered or mailed by registered or certified mail to the Department with the required filing and processing fees. If an insufficient filing fee is submitted, the proposed/amended complaint will not be considered filed until the date the appropriate fees are received.”).

The Millers’ attorney received Mosley’s letter on Friday, April 4, the very day that the statute of limitations expired. That same day, the Millers’ attorney mailed a $7.00 check for the filing and processing fees to the Department via first-class mail, not registered or certified mail. On Monday, April 7, the Department received the Millers’ fees and file-stamped the proposed complaint as of that date. The Department then sent a copy of the April 7 file-stamped proposed complaint to the Millers’ attorney, which was received on April 9. The Millers’ attorney took no action to dispute or otherwise challenge the new April 7 filing date.

Meanwhile, on March 31, 2008, the Millers filed a complaint against the Defendants in Dearborn Superior Court. Ap-pellees’ App. at 113. Specifically, the Millers alleged that Dr. Dobbs was negligent in failing to treat and care for Ann “in accordance with standards of care and treatment generally accepted in the community,” which resulted in Ann suffering a bilateral stroke and Richard’s loss of consortium. Id. at 117. Because the Millers filed their complaint with the trial court before the Medical Review Panel rendered its opinion, the trial court action was stayed until the panel proceedings were completed. Id. at 1 (motion), 3 (trial-court order); see also Ind.Code § 34-18-8-7 (providing that “a claimant may commence an action in court for malpractice at the same time the claimant’s proposed complaint is being considered by a medical review panel,” subject to several requirements).

The Medical Review Panel issued its opinion in July 2010, and the Defendants filed their answer and affirmative defenses in the trial court in October 2010. Specifically, they argued that the Millers’ “cause of action herein is barred for the reason that [them] Proposed Complaint was filed with the Indiana Department of Insurance after the expiration of the Indiana statute of limitations applicable to this claim.” Appellees’ App. at 8.

The Defendants followed up in November 2010 with a motion for summary judgment “on the basis that the [Millers] filed their proposed complaint with the Indiana Department of Insurance after the period of time allowable under the Indiana Medical Malpractice Act, ... and that [their] action is, therefore, barred.” Id. at 10. The Millers filed a motion in opposition.

Approximately five months later, in May 2011, the Millers filed a motion to strike the Defendants’ motion for summary judgment. The Millers alleged, for the first time, that the Defendants waived their statute-of-limitations defense by not raising the issue before the Medical Review Panel issued its opinion. Id. at 161. The Defendants responded that they properly raised their statute-of-limitations defense in the trial court after the Medical Review Panel issued its opinion pursuant to Indiana Code section 34-18-11-1 (d).

The trial court granted summary judgment in favor of the Defendants as follows:

1. Plaintiff Ann L. Miller suffered a stroke on April 3rd, 2006 allegedly due to the negligence of the Defendants.
2. Plaintiff filed its complaint in this Court on March 31, 2008.
3. Plaintiff did not file a Complaint with the Indiana Department of Insurance until April 7, 2008.
5. Defendants have not waived their right to raise the affirmative defense of the statute of limitations. I.C. 34-18-1-1(d).
6. There exists no genuine issue of material fact and Defendant’s [sic] are entitled to judgment as a matter of law.

Appellants’ App. at 295-96. The Millers now appeal.

DISCUSSION AND DECISION

The Millers contend that the trial court erred in granting summary judgment to the Defendants on grounds that they filed their proposed complaint with the Department after the two-year statute of limitations for medical-malpractice actions expired. The defense of a statute of limitations is peculiarly suitable as a basis for summary judgment. McGill v. Ling, 801 N.E.2d 678, 682 (Ind.Ct.App.2004), trans. denied. The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law. Id. The burden is on the moving party to show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. The trial court’s decision on a motion for summary judgment enters the process of appellate review clothed with a presumption of validity. Id. Nevertheless, the reviewing court faces the same issues that were before the trial court and must carefully scrutinize the trial court’s determination to assure that the non-prevailing party was not improperly prevented from having his or her day in court. Id.

A medical-malpractice action may not be brought against a health care provider unless the claim is filed within two years after the occurrence of the alleged malpractice. Id. Indiana Code section 34-18-7-1 instructs:

(b) A claim, whether in contract or tort, may not be brought against a health care provider based upon professional services or health care that was provided or that should have been provided unless the claim is filed within two (2) years after the date of the alleged act, omission, or neglect....

Ind.Code § 34 — 18—7—1 (b). Moreover, a medical-malpractice action may not be brought against a health care provider until the claimant’s proposed complaint has been filed with the Department and an opinion has been issued by a medical review panel. McGill, 801 N.E.2d at 682. To that end, Indiana Code section 34-18-8-4 provides:

Notwithstanding section 1 of this chapter, and except as provided in sections 5 and 6 of this chapter, an action against a health care provider may not be commenced in a court in Indiana before:
(1) the claimant’s proposed complaint has been presented to a medical review panel established under IC 34-18-10 (or IC 27-12-10 before its repeal); and
(2) an opinion is given by the panel.

Ind.Code § 34-18-8-4 (emphasis added). Accordingly, the failure to file a proposed complaint with the Department within two years from the date of the alleged malpractice is ordinarily fatal to a medical-malpractice action. McGill, 801 N.E.2d at 682.

The filing of a proposed complaint tolls the applicable statute of limitations to and including a period of ninety days following the claimant’s receipt of the Medical Review Panel’s opinion. Ind.Code § 34-18-7-3(a). A proposed complaint is considered filed when “a copy of the proposed complaint is delivered or mailed by registered or certified mail to the commissioner.” I.C. § 34 — 18—7—3(b). A filing fee of $5.00 plus a processing fee of $2.00 for each additional defendant after the first defendant “must accompany each proposed complaint filed.” Ind.Code § 34-18-8-2.

Here, the Millers filed their proposed complaint with the Department on March 18, 2008, approximately two weeks before the statute of limitations expired; however, they did not include the mandatory filing and processing fees with their proposed complaint. The Millers later mailed these fees via first-class mail, and the Department received them on April 7, 2008 — three days after the statute of limitations expired. The Millers, however, filed a complaint in Dearborn Superior Court before the statute of limitations expired.

The Millers argue that they substantially complied with the Medical Malpractice Act because they timely mailed the proposed complaint, albeit without the mandatory fees. They contend that, in providing the proposed complaint to the Department and to the Defendants, they substantially complied with the dictate of the statutory process. The Millers further claim that the process was completed when the fees were mailed on April 4, 2008.

The Defendants rely on several cases to support their position that the Millers failed to timely submit their proposed complaint. In Boostrom v. Bach, 622 N.E.2d 175 (Ind.1993), cert. denied, 513 U.S. 928, 115 S.Ct. 318, 130 L.Ed.2d 279 (1994), the plaintiff mailed a small-claims complaint by certified mail on the day that the statute of limitations expired. However, the plaintiff did not include the filing fee. The clerk received the complaint but did not file it until the fee was paid. According to Indiana Small Claims Rule 2(A) at that time, a small-claims action was commenced “by the filing of an unverified notice of claim in a court of competent jurisdiction.” Id. at 175. The Indiana Supreme Court ruled that the complaint was not filed until the fee was paid, noting that payment of the filing fee “is wholly in the hands of the plaintiff.” Id. at 176-77. The Court also noted that the court’s “desire to dispose of appeals on the merits whenever possible does not displace the legislative policy which undergirds the statute of limitations,” that is, to spare courts from stale claims and ensure that parties are given seasonable notice that a claim is being asserted against them. Id. at 176. The Court found that “[tjendering the prescribed court costs fee is relevant” to this objective. Id.

In Fort Wayne International Airport v. Wilburn, 723 N.E.2d 967 (Ind.Ct.App.2000), trans. denied, this court applied the holding from Boostrom and found the plaintiffs complaint to be untimely filed when the plaintiff timely mailed the complaint, which was file-marked before the statute of limitations expired, but failed to tender the summons until after the statute of limitations had expired. Id. at 968. This court noted that the plaintiff controls presentation of all documents necessary to commence suit — the complaint, the summons, and the fee; accordingly, although the plaintiff submitted two of three items necessary, it was found not to be adequate. Id.

Later, in Ray-Hayes v. Heinamann, 760 N.E.2d 172 (Ind.2002), reh’g granted, 768 N.E.2d 899 (2002), our Supreme Court approved the holding of Wilburn and affirmed the trial court’s dismissal of the plaintiffs amended complaint as being untimely where, although an amended complaint adding new defendants and the filing fee were timely filed, the plaintiff did not tender the summons for the new defendants until after the statute of limitations had run. Id. at 174. The Supreme Court determined that Wilburn had been correctly decided not only because of sound policy reasons, but also because Indiana Trial Rule 3 had recently been amended to specify that an action is commenced by filing the complaint, paying the filing fee, and furnishing sufficient copies of the complaint and summons. Id. at 174-75.

The Defendants contend that the Millers had a specific obligation imposed by Indiana Code section 34-18-8-2 to tender the filing and processing fees with their proposed complaint, and that the Department correctly determined that the Millers’ proposed complaint was filed on April 7, 2008, the date the Department actually received the filing and processing fees. We disagree. Because the matter before us arises from a proposed complaint filed before a medical review panel, and not from a complaint filed in our trial courts, we do not believe our decision here is controlled by existing precedent from our Supreme Court or this court. The present ease does not involve any trial or small claims rules, and the rationale from cases interpreting such does not equally apply to cases under the Medical Malpractice Act.

It has long been the preferred policy of this State, .this court and our Supreme Court to decide cases upon their merits. “We prefer to decide a case on the merits whenever possible.” Omni Ins. Grp. v. Poage, 966 N.E.2d 750, 753 (Ind.Ct.App.2012) (citing United Farm Family Mut. Ins. Co. v. Michalski, 814 N.E.2d 1060, 1067 (Ind.Ct.App.2004)). Indiana Code section 34-18-7-3(b) provides that, “A proposed complaint under IC 34-18-8 is considered filed when a copy of the proposed complaint is delivered or mailed by registered or certified mail to the commissioner.” Indiana Code section 34-18-8-2 provides that the filing fees “must accompany each proposed complaint filed.”

We believe that there are two ways to proceed when, as here, a proposed complaint is delivered or mailed by registered or certified mail to the Department and does not contain the filing fees. On the one hand, we could, as the trial court did here, treat the proposed complaint as unfilled until the filing fees are paid. Or, we could treat the complaint as filed and issue a show cause notice to the plaintiffs that the filing fee had not been paid and that their proposed complaint would be dismissed unless the filing fee were paid in short order. In the first instance, we dismiss what may prove to be a meritorious complaint on procedural grounds for a small delay in the payment of a small sum, here a mere seven dollars. In the second, we provide the parties with the opportunity to rectify their error and proceed to determine the complaint on its merits.

We often write of our desire to determine disputes on them merits. If that be so, our jurisprudence should be brought in line with this desire. The statute of limitations exists not only to spare courts from stale claims, but also “to insure that parties are given formal and seasonable notice that a claim is being asserted against them.” Boostrom, 622 N.E.2d at 176 (citing State ex rel. Young v. Noble Circuit Court, 263 Ind. 353, 359, 332 N.E.2d 99, 103 (1975)). Where, as here, the proposed complaint was delivered or mailed by registered or certified mail to the Department within the statute of limitations, but did not contain the filing and processing fees, and the fees were paid shortly after the plaintiffs were informed of their inadvertent failure to pay the fees, such complaints should be determined on their merits. This is particularly true, when, as occurred in the present case, such minimal delay in paying the fees did not prejudice the defendant in its ability to proceed in its defense of such a claim. The Defendants received seasonable notice of the Millers’ claim against them as they were aware of the proposed complaint when it was originally sent on March 18, 2008 and, believing that the proposed complaint was timely filed, they participated in normal preparation for the submission of evidence to the Medical Review Panel. We therefore conclude that the Millers rectified their error in failing to send the fees with the proposed complaint in a prompt fashion, and their proposed complaint should have been deemed timely filed. The trial court erred in granting summary judgment in favor of the Defendants.

Reversed and remanded.

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

VAIDIK, J., dissents with separate opinion.

BROWN, Judge,

concurring in result.

I concur in the result reached by Judge Kirsch that the court’s grant of summary judgment should be reversed, but I do so for different reasons. As Judge Kirsch notes, this case arises from a proposed complaint filed before a medical review panel, rather than from a complaint filed in a trial court, and thus the outcome is dictated by the Medical Malpractice Act (“MMA”). Chapter 7 of the MMA, titled “Statute of Limitations,” contains three sections including Ind.Code § 34-18-7-3, titled “Tolling of statute of limitations; filing of proposed complaint,” which provides in relevant part that “[a] proposed complaint under IC 34-18-8 is considered filed when a copy of the proposed complaint is delivered or mailed by registered or certified mail to the commissioner.” I.C. 34-18 — 7—3(b) (emphasis added). Thus, for purposes of the statute of limitations, a proposed complaint under the MMA is filed when it has been delivered or mailed by registered or certified mail to the commissioner.

Indeed, a plain reading of the relevant sections of the MMA demonstrate that, although paying filing and processing fees is necessary to bring an action under the MMA, it does not bear on the tolling statute under Chapter 7. Ind.Code § 34-18-8-2, the fees section, is contained in Chapter 8 of the MMA, titled “Commencement of a Medical Malpractice Action,” and states that “[t]he following fees must accompany each proposed complaint filed.” (Emphasis added). Thus, in harmonizing Section 2 with Ind.Code § 34-18-7-3(b), one can only conclude that a proposed complaint is filed when it has been delivered or mailed by registered or certified mail to the commissioner, and that there are fees which must accompany the proposed complaint in order to commence the action. See Burd Mgmt., LLC v. State, 831 N.E.2d 104, 108 (Ind.2005) (“So long as two statutes can be read in harmony with one another, we presume that the Legislature intended for them both to have effect.”).

Although I agree with Judge Kirsch that existing precedent governing statutes of limitation is not controlling with regard to a proposed complaint filed under the MMA, an examination of the Indiana Supreme Court’s decision in Boostrom v. Bach, 622 N.E.2d 175 (Ind.1993), illustrates how the statute of limitations under the MMA is different. In Boostrom, the applicable statute of limitations, Ind.Code § 34-1-2-2, dictated that “after a cause of action has accrued, an action must be commenced within the period therein prescribed and not afterwards.” 622 N.E.2d at 175 (emphasis added). Boostrom argued that Ind. Trial Rule 5(E), which provided “that the ‘filing of pleadings, motions, and other papers with the court as required by these rules’ may be made by mailing to the clerk via registered or certified mail return receipt requested, [ ] that filings so made ‘shall be complete upon mailing,’ ” and that “this rule, read in conjunction with S.C.R. 2(A), leads to the conclusion that a small claims action is commenced when a notice of claim is mailed to the clerk.” Id. at 176. The Court held that “[t]his view misapprehends the significance of T.R. 5(E), which only defines how a required filing may be made” and that “it does not necessarily follow that an action is commenced by mailing only the notice.” Id. (emphasis added).

Here, as explained above, Ind.Code § 34-18-7-3(b) contains no such language about having “commenced” an action in order to toll the statute of limitations and instead provides that “[a] proposed complaint under IC 34-18-8 is considered filed when a copy of the proposed complaint is delivered or mailed by registered or certified mail to the commissioner.” (Emphasis added). Thus, under the MMA, filing the proposed complaint by delivering or mailing by registered or certified mail, by itself, tolls the statute of limitations. To that end, there is no dispute that on March 18, 2008, over two weeks prior to the limitations period expiring, the Millers’ attorney mailed the proposed complaint by certified mail to the Department. Thus, under Ind.Code § 34-18-7-3(b), the limitations period was tolled beginning on that date. Also, pursuant to Ind.Code § 34-18-8-2 the Millers still owed $7 in filing and processing fees in order to commence their medical malpractice action which they satisfied in short order. To the extent that the Department changed the filing date to April 7, 2008, following the receipt of the $7 filing fee, I find that such a change is immaterial for statute of limitations purposes.

VAIDIK, Judge,

dissenting.

I respectfully dissent from both Judge Kirsch’s and Judge Brown’s interpretations of the Medical Malpractice Act. I believe that the statute is clear and that a proposed medical malpractice complaint is not considered filed until the filing and processing fees are paid. Our Supreme Court precedent also requires such a result. Because the Millers’ filing and processing fees were paid after the statute of limitation expired, I would affirm the trial court’s grant of summary judgment in favor of the Defendants.

Our Supreme Court has created several bright lines in the law. Statutes of limitation and filing fees are two of them. That is, filing a complaint outside the applicable statute of limitation, even by one day, or failing to include the filing fee with a complaint can lead to the dismissal of the complaint. Statutes of limitation exist to spare courts from stale claims and to ensure that parties are given formal and seasonable notice that a claim is being asserted against them. Boostrom v. Bach, 622 N.E.2d 175, 176 (Ind.1993), reh’g denied. Tendering court costs is also relevant to this objective. Id. Failing to include sufficient postage on an envelope can lead to the dismissal of the complaint as well. Webster v. Walgreen Co., 966 N.E.2d 689 (Ind.Ct.App.2012), trans. denied; see also Comer v. Gohil, 664 N.E.2d 389, 391-92 (Ind.Ct.App.1996) (the plaintiff did not include sufficient postage for her proposed medical malpractice complaint, and by the time the plaintiff resent it, the statute of limitation had expired; this Court held that the plaintiffs action was “time-barred”), trans. denied. I believe that the same bright line applies to filing and processing fees for a proposed complaint in the context of the Medical Malpractice Act.

Indiana Code section 34 — 18—T—3(b) provides that a proposed complaint is considered filed when “a copy of the proposed complaint is delivered or mailed by registered or certified mail to the commissioner.” Indiana Code section 34-18-8-2 provides that a filing fee of $5.00 plus a processing fee of $2.00 for each additional defendant after the first defendant “must accompany each proposed complaint filed.” Despite the straightforward language used by our legislature, both of my colleagues strain to interpret the statute.

Judge Kirsch creates a new test. That is, he finds that if a plaintiff delivers or mails a proposed complaint to the Department but the proposed complaint does not contain the required filing and processing fees, the court can treat the proposed complaint as filed and issue a show-cause notice to the plaintiff that the proposed complaint will be dismissed unless the fees are paid “in short order.” Op. at 98. I believe that this in-short-order test is too subjective and fraught with problems. Although in this case the $7.00 fee was received 3 days after the statute of limitation expired, where is the line drawn in other cases? 10 days? 30 days? $17.00? $105.00? Additionally, Judge Kirsch places the burden of ensuring that filing and processing fees are paid not on the plaintiff but on the Department and the trial court. That is, he requires the Department to file the complaint and advise the trial court that costs have not been paid so the trial court can issue a show-cause order. To be sure, to a certain extent, the Department, as every clerk’s office does, serves as the gatekeeper or enforcer of filing and processing fees by not allowing a case to be filed before fees are paid. But to require trial courts and the Department to file show-cause orders to ensure that filing and processing fees are paid goes too far in my opinion. Instead, the burden of timely paying such fees should remain on attorneys.

Likewise, I respectfully disagree with Judge Brown’s concurring-in-result opinion. She distinguishes tolling a statute of limitation from commencing an action and believes that a statute of limitation can be tolled before an action is commenced. The purpose of a statute of limitation is to notify a party that a claim has been asserted. It is axiomatic that a claim not commenced is a claim not asserted. Thus, an action must be commenced before the statute of limitation is tolled. Additionally, if filing and processing fees are not paid, then there is no processing, including no notice to the party sued. Under Judge Brown’s interpretation, a complaint could sit dormant in the Department’s office for years “not commenced” and yet the statute of limitation would be tolled. Since notice to the sued party and sparing courts from stale claims are the reasoning behind statutes of limitation, this interpretation of the statute would defeat the very purpose of the limitations period.

The Medical Malpractice Act spells out that a proposed complaint must be accompanied by filing and processing fees, and so does the Department’s website. See Ind. Dep’t of Ins., Medical Malpractice: Filing a Complaint, http://www.in.gov/idoi/ 2614.htm (last visited Aug. 21, 2012) (“A proposed complaint is filed when a copy is delivered or mailed by registered or certified mail to the Department with the required filing and processing fees. If an insufficient filing fee is submitted, the proposed/amended complaint will not be considered filed until the date the appropriate fees are received.”). We should expect a minimum level of competence from the attorneys who practice in this State, and this minimum level of competence includes knowing that the filing and processing fees must be included with a proposed complaint in order for it to be considered filed.

I get it. It is hard to punish the plaintiff for the errors of her attorney. But, although the remedy is less than perfect, the plaintiff is not without one. This is the quintessential case of bad facts that create bad law. Our Supreme Court and legislature have created a bright line with regard to statutes of limitation and payment of filing and processing fees. We have bright lines in the law for a reason: they bring certainty to the law. Because a proposed complaint is not considered filed until the filing and processing fees are paid and the Millers’ filing and processing fees were paid after the statute of limitation expired, I would affirm the trial court’s grant of summary judgment in favor of the Defendants.

      . Preeclampsia, a condition pregnant women are susceptible to, is marked by three important signs: hypertension (high blood pressure), edema (fluid retention), and proteinuria (protein in the urine). See Brinkman v. Bueter, 879 N.E.2d 549, 550 n. 1 (Ind.2008). If preeclampsia is not treated, it may evolve into a more serious condition called eclampsia, which is characterized by convulsions. Id. at 551 n. 3.

      . Ann was later diagnosed with PRES, or posterior reversal encephalopathy syndrome, a late and very rare complication associated with preeclampsia and eclampsia. Appellants’ App. at 16.

      . Both sides agree that the two-year statute of limitations expired on Friday, April 4, 2008. See Appellees’ Br. at 22. Dr. Dobbs and Partners in Health explain that, because the day of Ann's stroke, April 3, 2006, does not count when calculating the two-year period, the statute of limitations expired on April 4 and not April 3, 2008. Id. (citing Indiana Trial Rule 6(A), which provides that the day of the event from which a designated period of time begins to run is not included in the computation of any statutory time period). We therefore proceed as if the statute of limitations expired on April 4, 2008. We note that the Millers argued before the trial court that the statute of limitations was extended because Ann's stroke prevented her from recognizing that she had suffered an injury. Appellees’ App. at 60-73. The trial court rejected this argument, finding that the Millers obtained Ann's medical records approximately thirteen months before the statute of limitations expired, which was a reasonable amount of time to file a complaint. The Millers do not renew this argument in their appellants' brief. To the extent that the Millers attempt to raise this issue (including fraudulent concealment) in their reply brief, they cannot do so. See Ind. Appellate Rule 46(C) ("No new issues shall be raised in the reply brief”).

      . The Department’s file in this case includes a handwritten notation on Mosley’s March 31 letter from a "S.M.,” presumably Stephanie Mosley, that she “[l]eft message for call back Ext 103.” Appellees'App. at 44.

      . The Department’s file also contains a handwritten notation on Mosley’s March 31 letter that is dated April 9 and provides, "File date was stamp[ed] for March 18, 2008 but filing fee was not rec[ei]ved until April 7, 2008 so file date was changed to [reflect] day [that] filing fee was received.” Appellees’ App. at 44.

      . We note that one of those requirements is that the complaint filed in court "may not contain any information that would allow a third party to identify the defendant.” Ind. Code § 34-18-8-7(a). Notably, the complaint the Millers filed in court identified both the Defendants by name. See Appellees' App. at 113.

      . Small Claims Rule 2(A) now provides, "An action under these rules shall be commenced by the filing of an unverified notice of claim in a court of competent jurisdiction and by payment of the prescribed filing fee or filing an order waiving the filing fee.”

      . The Supreme Court’s opinion on rehearing concluded that the rule announced in its original opinion would be applied prospectively only based upon “very specific circumstances.” Ray-Hayes v. Heinamann, 768 N.E.2d 899, 901 (Ind.2002).

      . Here, the sum involved was $7.00 which was paid three days after the statute of limitations expired. It is ironic that the parties have now spent more than four years in litigation and countless sums of money in a dispute over seven dollars and three days.

      . Ind.Code § 34-1-2-2 was repealed by-Pub.L. No. 1-1998, § 221.2

      . Here, the Department sent a letter to the Millers’ attorney that the fees needed to be sent before the statute of limitation expired, giving the attorney an opportunity to correct his error. He did not do so.

      . To toll is to stop the running of a time period. Black’s Law Dictionary 1525 (8th ed. 1999).