author: WENTWORTH, J.

text:
    UTILIMASTER CORPORATION, Petitioner, v. INDIANA DEPARTMENT OF STATE REVENUE, Respondent.
    No. 71T10-1008-TA-43.
    Tax Court of Indiana.
    April 17, 2012.

      Dan R. Dunbar, Robert A. Romack, Dunbar & Romack, Greenwood, IN, Franklin, IN, Attorneys for Petitioner.
    Gregory F. Zoeller, Attorney General of Indiana, Jonathan E. Lamb, Deputy Attorney General, Indianapolis, IN, Attorneys for Respondent.
   ORDER ON RESPONDENTS MOTION TO DISQUALIFY PETITIONERS ATTORNEYS

WENTWORTH, J.

This matter comes before the Court on the Indiana Department of State Revenue's (Department) motion to disqualify Utilimaster Corporation's (Utilimaster) attorneys pursuant to Indiana Professional Conduct Rule 3.7, the Advocate-Witness Rule. In order to grant the Department's motion, the Court must find, as a preliminary matter, that Utilimaster's attorneys are likely to be necessary witnesses at trial. The Court finds they are not.

BACKGROUND

Utilimaster manufactures commercial vehicles in Elkhart County, Indiana. On February 26, 2010, it filed a claim with the Department seeking a refund of the $17,943.65 in Indiana gross retail (sales) and use tax it remitted on purchases of natural gas between June 1, 2008 and December 31, 2009 (the period at issue).

Utilimaster's refund claim explained that during the period at issue, it used several sealants and adhesives in its manufacturing process that required an ambient air temperature of between 60 and 80 degrees Fahrenheit to properly eure. Utili-master asserted that because it purchased and used natural gas to maintain that ambient air temperature, those purchases were not subject to taxation pursuant to the "predominate use exclusion" contained in Indiana Code § 6-2.5-4-5. To that end, Utilimaster's refund claim stated:

Utilimaster . with assistance from ROAR Consulting LLC [ (ROAR) ], calculated the amount of natural gas needed for use in its production process.... The attached utility study shows that production equipment uses more than fifty percent (50%) of the natural gas. Thus, Utilimaster meets the predominate use test.

(Resp't Mot. Disqualify Pet'r Att'ys (hereinafter "Resp't Disqualify Mot."), Ex. E at 1, 3 (footnote added).) The refund claim was signed by Robert A. Romack, ROAR's president who, along with Dan R. Dunbar, ROAR's vice-president, was granted power of attorney by Utilimaster to act on its behalf before the Department regarding all sales and use tax issues during the period at issue. (See Resp't Disqualify Mot., Exs. B-D.)

On June 10, 2010, the Department granted Utilimaster's refund, but for the reduced amount of $2,951.69. Consequent ly, on August 24, 2010, Utilimaster filed an appeal with this Court, stating it had conducted a utility study calculating the "ratio of heated square footage where manufacturing takes place to overall building square footage." (Pet'r Pet. M 183-14.) Utilimaster asserted that the utility study demonstrated its facility's square footage was predominately used in production and that its purchases of natural gas therefore qualified for Indiana Code § 6-2.5-4-5's sales tax exclusion. (Pet'r Pet. 115.) That same day, Romack and Dunbar entered their appearances as Utilimaster's counsel of record.

After the Department's counsel entered an appearance and filed a responsive pleading, the Court established various case management deadlines. The deadline for the parties to complete discovery was August 29, 2011. During discovery, the Department's counsel served Utilimaster with requests for production of documents, requests for admissions, and interrogatories, but did not seek to conduct any depositions.

On August 29, 2011, the day discovery closed, Utilimaster responded to the Department's discovery requests. Utilimas-ter objected to nearly all of the requests, stating generically and without explanation that the information sought was already in the Department's possession or that the requests were "oppressive," "unduly burdensome," and "ambiguous." (See generally Pet'r Gen. Objections; Pet'r Resp. Resp't First Set Interrog.; Pet'r Resp. Resp't First Req. Produc. Does.)

On October 6, 2011, the Department filed a motion to reopen discovery. The motion stated that three days earlier, the Department's counsel met with Utilimas-ter's attorneys in an attempt to resolve some of their discovery disputes and, during that meeting, "Romack and Dunbar admitted that [the utility study had been] conducted by ROARL.]" (Resp't Mot. Reopen Disc. (hereinafter "Resp't Disc. Mot.") T3.) Consequently, the Department maintained that discovery should be reopened so that it could have an opportunity to depose Romack and Dunbar as ROAR consultants. (Resp't Disc. Mot. T6.) The very next day and before the Court could rule on the motion to reopen discovery, the Department filed a motion to disqualify Romack and Dunbar as Utili-master's attorneys, pursuant to Indiana Professional Conduct Rule 3.7. The Department's motion sought to disqualify Ro-mack and Dunbar on the basis that, as drafters of the utility study, they would be necessary witnesses at trial. (See Resp't Disqualify Mot. 11 1-9.)

The Court conducted a hearing on the Department's motions on November 10, 2011. Additional facts will be supplied as necessary.

LAW

Indiana Professional Conduct Rule 3.7 provides that a lawyer shall not act as advocate at a trial in which he is likely to be a necessary witness unless:

(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(8) disqualification of the lawyer would work substantial hardship on the client.

Ind. Professional Conduct Rule 8.7(a). The official comments to the rule explain the rationale for the prohibition:

[a] witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. [Thus, ilt may not be clear [to the trier of fact] whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.

Prof. Cond. R. 3.7, Cmt. 2. Concern about confusing the trier of fact, however, is more appropriate in the context of a jury trial than in a bench trial. Indeed:

[wlhat might very well constitute prejudicial error in the form of testimony given before a jury does not necessarily constitute prejudicial error in a trial to the court. It must be remembered that a trial judge is presumed to know the intricacies and refinements of the rules of evidence and that he sifts the evidence and weighs it in the light of his legal experience and expertise. He is thus able to separate the wheat from the chaff, ignoring the extraneous, the incompetent and the irrelevant[.]

King v. State, 155 Ind.App. 361, 292 N.E.2d 843, 846-47 (1973).

Notwithstanding the purpose of Rule 3.7, courts have recognized that litigants sometimes improperly use the rule as a means to gain a tactical advantage in litigation. See Beller v. Crow, 274 Neb. 603, 742 N.W.2d 230, 234 (2007). For example, " 'the power to call opposing counsel as a witness could be employed in a manipulative way to foist upon that lawyer the role of advocate-witness and thereby drive the lawyer from the case'" LeaseAmerica Corp. v. Stewart, 19 Kan.App.2d 740, 876 P.2d 184, 191 (1994) (citation omitted). As a result,

[wlhere one party argues that an opponent's attorney is a necessary witness and moves to disqualify that attorney . courts [will] view the opponent's asserted need to call the attorney more skeptically and must be concerned about the possibility that the motion to disqualify is an abusive tactic [intended] to hurt the opponent's ability to pursue his case.

Harter v. Univ. of Indianapolis, 5 F.Supp.2d 657, 668 (S.D.Ind.1998) (citations omitted). See also Tucker v. Am. Int'l Group, Inc., No. 3:09-CV-1499, 2012 WL 314866, at *18 (D.Conn. Jan. 31, 2012) {stating that courts are " 'leery of turning trial counsel in the case before them into subpoenaed witnesses, because too often it is an effort to harass and intimidate and make trouble for a party by going after the lawyer' ") (citation omitted).

ANALYSIS

The threshold question under Rule 8.7 is whether Utilimaster's attorneys are likely to be "necessary" witnesses. See Prof. Cond. R. 3.7; Knowledge A-Z, Inc. v. Sentry Ins., 857 N.E.2d 411, 418 (Ind.Ct.App.2006), trams. denied. Accordingly, the Department must make a two-pronged showing: first, it must show that the testimony it seeks to elicit from Utilimaster's attorneys is more than marginally relevant to the issue or issues being litigated; see-ond, it must show that their testimony will result in evidence that cannot be obtained elsewhere. See Knowledge A-Z, 857 N.E.2d at 418 (citations omitted).

The issue to be litigated in this case is whether Utilimaster's purchases of natural gas are excluded from sales tax under Indiana Code § 6-2.5-4-5. The parties agree that the facts central to this inquiry are: 1) the square footage of Utilimaster's facility; 2) how much of that square footage was used in its manufacturing process; and 3) the temperature at which that square footage was kept. (See Resp't Mot. Compel, Ex. A at 2; Mot. Disqualify Hr'g Tr. (hereinafter "Hr'g Tr.") at 46.)

In its motion to disqualify, the Department argues that the validity of Utili-master's utility study is at issue, and therefore, it is necessary to call Romack and Dunbar, the drafters of the study, as expert witnesses during trial. (See, eg., Resp't Disc. Mot. T4.) In calling them, the Department explains that it intends to elicit testimony regarding their "subjective mindset" in conducting the utility study:

As consultants, when they went out to Utilimaster's plants, what questions were asked of Utilimaster, what was the interactive process between the two? ROAR [] holds itself out as an expert consulting firm that does natural gas utility studies.... [What] were th[eir] methodologies-did they diverge [from their methodologies] for Utilimaster[?] ... For instance, when they discussed square footage, did ROAR [] ever consider cubic square footage? ... [With the temperatures, did they consider where the plants already would've been, so if the minimum temperature threshold was 60 degrees ... did [ROAR] consider the temperature that was raised from 60 to let's say T2[?]

(Hrg Tr. at 9-11.) The Department states "it would be hard to argue" that this subjective mindset testimony is not relevant to the issue being litigated because it "is important to proving [the Department's] case and disproving Utilimaster's case." (Hr'g Tr. at 5, 9.) The Department further claims that because only Romack and Dunbar can testify about their subjective mindset, their testimonial evidence cannot be obtained from any other source. (See Hr'g Tr. at 11-14, 37.) The Department's argument, however, misses the mark..

Testimony from Utilimaster's attorneys about what their "subjective mindset" was when they conducted the utility study is irrelevant to determining whether Utili-master's natural gas purchases are entitled to the predominate use exclusion. Utili-master's utility study does nothing more than provide the total square footage of Utilimaster's facility and the portion of that square footage that is used in Utili-master's manufacturing process. (See Resp't Resp. Pet'r Mot. Deny Resp't Mot. Disqualify Pet'r Atf'ys, Ex. A at 5 (the utility study).) Because this information is readily ascertainable, objective numbers, the only relevant testimony from Utilimas-ter's attorneys would concern the accuracy of those numbers. See, e.g., State v. Int'l Bus. Machines Corp., 964 N.E.2d 206, 212-13 (Ind.2012) (Sullivan, J., concurring (explaining that "state of mind" testimony should not be compelled when it bears no relevance to the issue being litigated)). Such testimonial evidence could be elicited, however, from other sources, such as Utili-master employees knowledgeable about its manufacturing process, the size of its facility, and the use of its space. In fact, Utilimaster explains that it did not list the utility study on its pre-trial exhibit list because it intended to prove the facts doe-umented in it by its own employees' testimony. (See Hr'g Tr. at 49.) Therefore, Utilimaster's attorneys are not necessary witnesses pursuant to Professional Conduct Rule 3.7.

The Court further notes that the Department's motion to disqualify must fail because Professional Conduct Rule 3.7 has not been used for its intended purpose of preventing the Court from being misled or confused about Utilimaster's attorneys' role. Indeed, during the Court's hearing, no concern was ever expressed that the Court could or would be confused about whether Utilimaster's attorneys, if called to testify, were acting as witnesses or as advocates. (See generally Hr'g Tr.) Instead, throughout the proceeding, the argument focused exclusively on why additional discovery was needed. (See Hr'g Tr. at 9, 16, 19-20, 25-26, 29-30, 70.) More specifically, the Department claimed that it had been "ambushed" by Utilimas-ter's attorneys when they revealed that ROAR conducted the utility study after discovery was closed and their depositions could no longer be taken. (See Hr'g Tr. at 11-19, 29-80.) Without an opportunity to depose them now, the Department argues that it will be "unfairly prejudiced" because it will not be able "to learn about and attack their consulting work." (See Hr'g Tr. at 4.) The facts do not support this claim.

Utilimaster filed its refund claim with the Department on February 26, 2010, along with a copy of the power of attorney granting Romack and Dunbar the authority to act on its behalf before the Department. Utilimaster's refund claim proclaimed that "with assistance from ROAR," it conducted a utility study to support its position. (Resp't Disqualify Mot., Ex. E at 1, 3.) Moreover, the refund claim was signed by Romack as ROAR's president. Thus, from that date, the Department should have known that ROAR, Romack, and Dunbar played a role in formulating the utility study and refund claim.

The Department's current counsel came into possession of these documents when he entered his appearance in this case on June 1, 2011, nearly three months before discovery closed. While he may not have had a complete understanding of the role of Utilimaster's attorneys in formulating the utility study and refund claim at that time, he had ample evidence to alert him that he may want to conduct depositions to know more. Nonetheless, he never requested depositions from Romack, Dunbar, or anyone on Utilimaster's witness list. Instead, he filed a motion to reopen discovery to obtain evidence he had not timely sought before discovery closed, including evidence to assist him in determining whether Romack and Dunbar were necessary witnesses. (See Hr'g Tr. at 24-26, 70.) On the very next day, however, the Department sought to disqualify Utilimas-ter's attorneys altogether.

The Department has invoked Professional Conduct Rule 3.7 in an attempt to conceal its failure to timely pursue discovery as well as to remove Utilimaster's attorneys from the case, calling their professionalism into question. The Court will not countenance the Rule's abuse as a procedural weapon by invading Utilimas-ter's right to counsel of its choice. See Harter, 5 F.Supp.2d at 663 (citation omitted); LeaseAmerica Corp., 876 P2d at 192.

CONCLUSION

For the foregoing reasons, the Department's motion to disqualify Utilimaster's attorneys is DENIED. The Court will schedule this matter for a case management conference in a separate order.

SO ORDERED.

      . Indiana Code § 6-2.5-4-5 provides that a public utility's sales of natural gas to customers that use it in their manufacturing process are excluded from sales tax. See Inp.CopE § 6-2.5-4-5(a)-(c) (2009). "However, th{e] exclusion ... only applies if the [natural gas is] consumed as an essential and integral part of an integrated process that produces tangible personal property and those sales are separately metered ... or{,] if those sales are not separately metered{, the natural gas is] predominately used by the purchaser for [manufacturing]." IC. § 6-2.5-4-5(c).

      . The website for ROAR Consulting, LLC (ROAR) states that it is an Indiana firm that provides "federal and multistate tax consulting and compliance services, including, but not limited to, compliance, audit defense, reverse audits, projection agreements, and utility studies." (See Resp't Mot. Disqualify Pet'r Att'ys (hereinafter "Resp't Disqualify Mot."), Ex. B at 1.)

      . In addition to their consulting practice, Ro-mack and Dunbar are attorneys licensed to practice law in Indiana and have their own law firm, "Dunbar & Romack."

      . As indicated earlier, the Department also filed a motion to reopen discovery for the limited purpose of deposing both Romack and Dunbar in their capacity as ROAR consultants. (See Resp't Mot. Reopen Disc, (hereinafter "Resp't Disc. Mot.") 16.) Given the Court's rationale in denying the Department's motion to disqualify (i.e., that the Department failed to effectively use the discovery time it had in the first place), the Court also DENIES the Department's motion to reopen discovery.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Conditional Admission of Applicant No. E03070, Harlan L. VONDERSAAR.
    No. 94S00-1203-BL-183.
    Supreme Court of Indiana.
    May 16, 2012.
   PUBLISHED ORDER SUSPENDING ATTORNEY AND EXTENDING PERIOD OF CONDITIONAL ADMISSION

Respondent Harlan Vondersaar, II, was conditionally admitted to the bar of the Indiana Supreme Court on May 16, 2011, pursuant to a consent agreement with the State Board of Law Examiners ("Board"). See Indiana Admission and Discipline Rule 12 § 6(c). The agreement required, among other things, that Respondent refrain from the use of alcohol, have no arrest for any criminal offense, and have "no alcohol related incidents" for a period of three years from the date of his admission. On October 3, 2011, Respondent notified the Board that he had been arrested the previous day for Operating a Vehicle While Intoxicated and had registered a blood aleohol content of .31 at the time of his arrest. On December 1, 2011, Respondent entered a plea of guilty to Operating a Vehicle While Intoxicated with endangerment, a Class A misdemeanor.

Respondent appeared before the Board on January 20, 2012. Although he admitted regularly consuming alcohol from the time of his admission to the time of his arrest, he asserted he had been sober since his arrest, was participating in an intensive outpatient treatment program, was regularly attending Alcoholies Anonymous meetings, and was meeting regularly with an Indiana Judges and Lawyers Assistance Program ("JLAP") monitor. A report tendered to the Board from JLAP stated that Respondent "is currently focused on his recovery and seems sincere in doing so."

Our rules provide that "[if ... the Board determines that a conditional admit-tee has violated any of the conditions of the admission, ... the Board may impose additional conditions, including without limitation, an additional term of conditional admission for up to five (5) years, or the Board may certify such findings to the Supreme Court of Indiana with the recommendation that the Court revoke such admission." Admis. Disc. R. 12 § 10. The Board has asked us to suspend Respondent's law license for 90 days and thereafter reinstate him to conditional admission for a period of five years, with his conditional admission being dependent upon his compliance with supervision and monitoring by JLAP.

Having considered the Board's Petition and Applicant's Response thereto and being duly advised, the Court hereby GRANTS the Board's Petition. Respondent shall be SUSPENDED from the practice of law for a period of ninety (90) days, beginning on the 20th day from the date of this order. The purpose of this 20-day delay is to allow Respondent to make appropriate arrangements for any existing legal matters in which he may be currently involved-he may not take on any new clients, nor assume any new matters for existing clients, during this 20-day period. Before the expiration of this 20-day period, Respondent SHALL comply with the requirements of suspended attorneys set forth in Admission and Discipline Rule 23, section 26. Following his suspension, Respondent SHALL automatically be reinstated to conditional admission for a period of five (5) years from the date of reinstatement pursuant to the terms of the consent agreement he signed on May 5, 2011, and shall comply in all respects with any monitoring and/or treatment program(s) required by JLAP during the conditional admission period.

The Clerk is directed to send a copy of this order to Harlan Vondersaar, II; to Bradley Skolnik, Executive Director of the State Board of Law Examiners; to Terry Harrell, Executive Director of the Indiana Judges and Lawyers Assistance Program; to all counsel of record; to LexisNexis; and to Thomson/West for publication in the bound volumes of this Court's decisions. The Clerk shall also provide the notice of suspension required by Indiana Admission and Discipline Rule 28, section 3(d), and shall post this order to the Court's website.

SULLIVAN, DAVID, and MASSA, JJ., concur.

DICKSON, C.J., and RUCKER, J., dissent, believing the Board should not deviate from Admission and Discipline Rule 12, section 10.


author: NAJAM, Judge.

text:
    Lawane CHANEY on Behalf of Himself and All Others Similarly Situated, Appellants-Plaintiffs, v. CLARIAN HEALTH PARTNERS, INC., Appellee-Defendant.
    No. 49A05-0905-CV-263.
    Court of Appeals of Indiana.
    March 22, 2012.

      Ronald E. Weldy, Weldy & Associates, Indianapolis, IN, Attorney for Appellants.
    Kim F. Ebert, Bonnie L. Martin, Ogle-tree Deakins Nash Smoak & Stewart P.C., Indianapolis, IN, Attorneys for Appellee.
   ON REHEARING FROM ORDER ON MOTION FOR APPELLATE FEES AND COSTS

NAJAM, Judge.

Ron Weldy petitions for rehearing, asserting five alleged errors in our Order on Motion for Appellate Fees and Costs, published at 954 N.E.2d 1063 (Ind.Ct.App. 2011) ("Order"). Generally, Weldy argues that we erred in finding that:

1. Weldy did not clearly indicate to the trial court that his motion to compel was actually a request to lift a stay on discovery;
2. Weldy did not inform the trial court of the stay in his motion to compel or afterwards;
3. Weldy ignored the context of Clari-an's response to his motion to compel in Clarian's request for an extension of time to respond to discovery request; and
4. Weldy "persisted in the theory ... that Clarian had agreed to provide the requested discovery[.]"

Weldy also argues that this court "misinterpreted" case law he relied on regarding Chaney's purported right to class-wide discovery. Having given thorough consideration due each of Weldy's contentions on rehearing, we conclude that he is correct on two points. But, considering all of the record, those errors are insignificant and do not alter our ultimate determination in the Order.

First, Weldy is correct that the record does not support our finding that Weldy did not inform the trial court of the stay in his motion to compel. The record shows that Weldy did mention the stay in a numbered paragraph in the body of the motion to compel. But the relief requested was not directed at the stay, and the trial court clearly did not understand that Weldy had requested for the stay to be lifted. Thus, to the extent we found that Weldy did not "mention" the stay, the Order of this court erred.

Second, Weldy also correctly points out that the record does not support our statement in the Order that he persisted in the theory that Clarian had agreed to provide the discovery at issue after the trial court had vacated its motion to compel and denied the same. But the record does show that even on appeal Weldy persisted in the argument that his "Motion to Compel" was not, in fact, a motion to compel but rather a request asking the court to life a stay on certain discovery. A review of the record belies that argument.

Despite these minor errors, after reviewing the record yet again on rehearing, we re-affirm our conclusion that Weldy's argument that the motion to compel was one to liff the stay is not well taken. Weldy ignored the plain language and context of correspondence with opposing counsel on discovery issues, filed a motion to compel only to recast it later as a request to lift a stay, later refused to acknowledge the context of opposing counsel's earlier correspondence even when threatened with a Trial Rule 37 motion for sanctions, and then at all times thereafter persisted in the theory that he had always intended to request the lifting of the stay. Giving Weldy the benefit of doubt, we could find that he had initially misunderstood opposing counsel's correspondence. But his tenacious persistence in a line of argument clearly debunked by the written record amounts to bad faith. Thus, despite the errors Weldy has brought to our attention on rehearing, with the minor corrections noted below, we re-affirm the Order on Motion for Appellate Fees and Costs.

Corrected paragraphs at 954 N.E.2d at 1067:

At trial, Weldy filed a pleading titled "Plaintiff's Motion to Compel Discovery Responses," seeking discovery responses regarding additional members of the purported eclass. Appellant's App. at 78. The motion did not include a statement regarding any reasonable efforts to reach an agreement with Clarian about discovery, as required by Trial Rule 26(F), nor did it mention clearly identify that he was requesting the trial court's to lift the staying regarding any discovery of that nature. After receiving the motion to compel, Clarian corresponded with Weldy, pointing out that the discovery at issue in the motion was subject to a stay, and informed him that Clarian would seek sanctions under Trial Rule 37 if Weldy did not withdraw the motion. Weldy refused to withdraw the motion to compel, arguing that it had not been filed under Rule 37 and that Clarian had already agreed to provide the discovery requested in the motion when Clarian had asked for an extension of time to provide discovery. In fact, the discovery for which Clarian had sought an extension of time was not subject to the stay, as was clear in the extension request when Clarian referenced the due date for such discovery. Weldy's argument that his motion was one to lift the stay is not well taken. Significantly, Weldy did not mention stay make clear, in his motion to the trial court that he was seeking an order lifting the stay or-after-recciving-Clari-an's-eorrespondenee. He also ignored the plain context of Clarian's correspondence asking for an extension of time to respond to discovery that was not subject to the stay. By refusing to ae-knowledge identify the stay as the subject of his motion in the first instance and by persisting in the theory on appeal and in his petition to transfer that Clarian had 1 ide-t] quested-diseovery he had merely misunderstood the correspondence with Clari-an, despite all evidence to the contrary, Weldy pursued the motion to compel in bad faith. As such, Clarian is entitled to attorney's fees under Appellate Rule 66(E) and costs under Appellate Rule 67 regarding his appeal of the Trial Rule 37 sanction.

With the modifications noted above, the Order on Motion for Appellate Fees and Costs is affirmed.

Clarian requests additional fees and costs for responding to the petition for rehearing. We deny that request.

DARDEN, J., and BRADFORD, J., concur.


author: MAY, Judge.

text:
    Nathan ABERNATHY, Appellant-Plaintiff, v. Larry BERTRAM and Keith Broyles, Appellees-Defendants.
    No. 33A04-1106-CC-317.
    Court of Appeals of Indiana.
    April 23, 2012.

      Matthew C. Moore, Fechtman Law Firm, Indianapolis, IN, Attorney for Appellant.
    Jon D. Madison, DeFur Voran LLP, New Castle, IN, Attorney for Appellees.
   OPINION

MAY, Judge.

Nathan Abernathy appeals some of the trial court's findings in his action against Keith Broyles and Larry Bertram for breach of contract, quantum meruit, unjust enrichment, and conversion. He presents two issues for our review:

1. Whether the trial court abused its discretion when it denied him a damages award equal to an expected payment from Abernathy's erop insurance policy; and
2. Whether the trial court erred when it determined Abernathy was not entitled to damages for conversion.

We affirm.

FACTS AND PROCEDURAL HISTORY

In the late spring of 2007, Broyles and Abernathy entered into an oral agreement whereby Abernathy would pay cash to rent farm land from Broyles Abernathy cleared the land and planted winter wheat for harvest in the summer of 2008. At some point during the summer of 2008, Broyles and Abernathy spoke regarding Abernathy's failure to pay rent. After that conversation, Broyles hired Bertram to harvest the wheat Abernathy planted, and Broyles sold it to a grain mill for $3,293.74.

On June 4, 2009, Abernathy filed a complaint against Broyles for breach of contract and quantum meruit. Abernathy stated a claim against Broyles and Bertram for unjust enrichment and damages for conversion pursuant to Ind.Code § 34-24-3-1. On March 25, 2011, the trial court awarded Abernathy $3,950.00. That amount was based on the amount for which Broyles sold it the crop and the value of lost hay or straw, minus $2,000.00 in rent Abernathy owed Broyles. The trial court found Abernathy proved his breach of contract, unjust enrichment, and quantum meruit elaims, but it denied his conversion claim.

DISCUSSION AND DECISION

When, as is the case here, a trial court enters findings of fact and conclusions of law sua sponte, the findings "control only as to the issues they cover and a general judgment will control as to the issues upon which there are no findings." Tracy v. Morell, 948 N.E.2d 855, 862 (Ind.Ct.App.2011). We review findings for clear error and we review conclusions of law de movo. Bowyer v. Ind. Dept. of Natural Res., 944 N.E.2d 972, 983 (Ind.Ct.App.2011). A judgment is clearly erroneous if no evidence supports the findings, the findings do not support the judgment, or the trial court applied the wrong legal standard. Id. at 983-84.

Our review of a challenge to a trial court's award of damages is limited. Prime Mort. USA, Inc. v. Nichols, 885 N.E.2d 628, 656 (Ind.Ct.App.2008). We affirm if the amount of damages is supported by evidence on the record, and we do not reweigh the evidence or judge the credibility of witnesses. Id. We consider only the evidence favorable to the award, and affirm if the award is "within the scope of the evidence before the finder of fact." Id.

1. Damages for Breach of Contract

The trial court awarded $3,950.00 in damages for Broyles' breach of the parties' oral contract. Abernathy argues the trial court should have awarded him an additional $9,223.00, which was the value of a crop insurance policy he allegedly was due. The trial court found, regarding Abernathy's crop insurance policy:

[Abernathy] purchased erop insurance. [Broyles] was not a party to this crop insurance contract. [Abernathy] never paid the crop insurance premium and [Abernathy] is unable to make a claim under the policy. The crop insurance policy does not guarantee a minimum price for the crop unless the crop is a total loss. There is no evidence as to what the loss on this crop would have been, only the full amount that was possible under the policy.

(App. at 8.)

That finding was supported by the evidence. Abernathy and his insurance agent, Chely Broerman, testified Abernathy applied for insurance. Broerman testified the application "made [Abernathy's] insurance valid." (Tr. at 55.) Abernathy and Broerman testified Abernathy did not pay the premium. Broerman testified Abernathy was not required to pay his premium until after he harvested the crop, and Abernathy would receive $9,223.00 minus his premium "if he had had a total loss." (Id. at 57.) Thus, she said, "if he's had a total loss on that, the amount due to him would have been Eight Thousand, Seven Hundred, and Sixty-five Dollars ($8,765.00)." (Id.)

However, there was no such "total loss": the wheat Abernathy planted was harvest, ed and sold. Evidence presented at trial indicated there would be a partial payout of the policy even if the wheat crop was not a total loss, but Abernathy did not present evidence indicating what that amount would be. Therefore, the trial court would have been required to "indulge in speculation in fixing the amount to be awarded," Greives v. Greenwood, 550 N.E.2d 334, 337 (Ind.Ct.App.1990), if it based damages on the value of the insurance policy.

Thus, the court's finding regarding the crop insurance was supported by evidence, and Abernathy's argument to the contrary is an invitation to reweigh the evidence, which we may not do. See Prime Mort. USA, Inc., 885 N.E.2d at 656 (appellate court may not reweigh the evidence when trial court makes findings of fact). Accordingly, we hold the trial court did not err when it determined the amount to award Abernathy as damages for breach of contract.

2. Damages for Conversion

In his complaint, Abernathy assert ed, "Pursuant to Indiana Code 34-24-3-1, Abernathy is entitled to treble damages and attorney's fees as a result of Defendants' conversion." (App. at 16.) Ind. Code § 34-24-3-1 states, in relevant part:

If a person ... suffers a pecuniary loss as a result of a violation of IC 35-43, IC 85-42-3-3, IC 35-42-3-4, or IC 85-45-9, the person may bring a civil action against the person who caused the loss for the following:
(1) An amount not to exceed three (8) times:
(A) the actual damages of the person suffering the loss
* *# *
(2) The costs of the action.
(3) A reasonable attorney's fee.

The statute also allows the plaintiff to receive damages for travel expenses, compensation for loss of time, compensation for plaintiffs employees and agents used to pursue the action, and "[alll other reasonable costs of collection." (Id.) A person commits criminal conversion when he "knowingly or intentionally exerts unauthorized control over property of another person[.]" Ind.Code § 35-48-4-3.

The trial court denied Abernathy's conversion complaint, finding:

1. [Abernathy] first contacted Defendant Broyles in 2007 in an attempt to negotiate a farming agreement with [Broyles].
2. The parties agree that [Abernathy] could plant a crop and that cash rent would be paid to [Broyles].
3. [Abernathy] planted the crop with the consent of [Broyles].
4. The parties hotly dispute the nature of their conversation in the summer of 2008 which caused Broyles to hire Bertram to harvest the crop. Broyles claims that Abernathy told him to harvest the crop because there would not be sufficient proceeds to pay cash rent. Abernathy denies this claim and asserts that he informed Broyles that the cash rent could be paid from the harvested crop and/or crop insurance proceeds, if necessary. Broyles denies knowledge of the crop insurance.
5. The Court finds that these assertions cannot be reconciled sufficiently for [Abernathy] to establish the elements of conversion.
6. The Court finds that the Plaintiff shall take nothing under Count IV of the complaint and the Court declines to award treble damages and attorney fees pursuant to 1.C. 34-24-38.

(App. at 10.) Abernathy argues the trial court erred when it denied his claim for damages for conversion because he presented all the necessary elements for conversion. We disagree.

Abernathy claimed damages pursuant to Ind.Code § 34-24-3-1, alleging Broyles and Bertram committed conversion. That statute requires the elements of eriminal conversion be proven by a preponderance of the evidence. McKeighen v. Daviess County Fair Board, 918 N.E.2d 717, 723 (Ind.Ct.App.2009). Thus, Abernathy had to prove Broyles and Bertram "knowingly or intentionally" exercised unauthorized control over his property. Ind. Code § 35-48-4-3. The court found he did not prove mens rea because Broyles presented testimony Abernathy told him to harvest the crop. We decline Abernathy's invitation to reweigh the evidence. See Prime Mort. USA, Inc. 885 N.E.2d at 656 (appellate court may not reweigh the evidence when trial court makes findings of fact). The trial court did not err when it denied Abernathy's conversion claim.

CONCLUSION

The trial court's findings regarding the value of Abernathy's crop insurance policy were supported by evidence, and the trial court did not err when it did not include the value of the crop insurance policy in the amount of damages it ordered Broyles to pay. The trial court did not err when it denied Abernathy's conversion claim because Abernathy did not prove by a preponderance of the evidence Broyles and Bertram intended to exercise unauthorized control over Abernathy's property. Accordingly, we affirm the decision of the trial court.

Affirmed.

CRONE, J., and BROWN, J., concur.


text:
    Ashanti CLEMONS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 49A02-1108-PC-737.
    Court of Appeals of Indiana.
    May 9, 2012.

      Stephen T. Owens, Public Defender of Indiana, John Pinnow, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ann L. Goodwin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Ashanti Clemons appeals the post-conviction court's denial of his amended petition for post-conviction relief. Clemons raises two issues for our review:

1. Whether he received ineffective assistance of trial counsel.
2. Whether he received ineffective assistance of appellate counsel.

We affirm.

FACTS AND PROCEDURAL HISTORY

The facts underlying Clemons' amended petition for post-conviction relief were set out in his appeal from his conviction for voluntary manslaughter:

On August 30, 2005, Clemons, who lived with his mother, Letiate Tate ("Tate"), argued with Prentice Webster ("Webster") in the upstairs hallway of Tate's apartment building. Shortly thereafter, Webster died from multiple gunshot wounds. Police searched the apartment complex for witnesses and were told that Webster was heard saying to Clemons "get off of me," Tr. p. 98, and that someone had been entering and exiting Tate's apartment. A witness saw a man run into an apartment wearing a white t-shirt and leave a few minutes later wearing a black shirt, Police knocked on Tate's door, and when she opened it, they observed bullets, a box full of live ammunition rounds, and several live rounds scattered on Tate's living room floor, all of which were consistent in caliber, brand, and composition to the fired casings The police also observed a white t-shirt on Tate's living room couch. Tate informed the police where they could find Clemons. When the police located Clemons, he was wearing a black shirt and agreed to go to the police station for questioning.
Once there, the police conducted a videotaped interview of Clemons. A police officer read aloud the advisement of each Miranda right to Clemons and then handed him the Advice of Rights/Waiver of Rights form ("the form") for him to initial by each right if he understood it. Clemons wrote his initials next to each right. The officer then read aloud to Clemons the waiver of rights portion of the form and again handed him the form and requested that he initial by each statement to indicate his understanding. Clemons wrote his initials next to each statement and signed the waiver. During this process, the officer explained certain words and concepts from the form that he feared Clemons might not understand. For example, the officer explained the meaning of the word "coercion" and what it meant to say that he would "make a statement." Ex. p. 37-38. Clemons gave no indication that he did not understand what these rights meant after they were explained to him. During his interview with the officer, Clemons made certain comments indicating to the officer that he understood and was fully aware of his rights. For instance, Clemons stated, "You see what I'm saying, I mean I, like you read, read my rights, you see what I'm saying, I don't have to, I've got the right, you see what I'm saying to stop talking at any time or whatever." Id. at 57. Clemons also admitted to carrying a gun without a license and that he fired the gun.
The State charged Clemons with Count I, Voluntary Manslaughter as a Class A felony," and Count II, Carrying A Handgun Without A License as a Class A misdemeanor," which was later enhanced to a Class C felony due to a previous conviction. On June 1, 2005, Clemons filed a Motion To Suppress the videotaped statements, which was denied following a hearing. At the conclusion of his trial, a jury found Clemons guilty of carrying a handgun without a license but was hung as to the voluntary manslaughter charge. Clemons pursued a direct appeal of his handgun convietion. On appeal, Clemons argued that the trial court abused its discretion when it admitted the videotape and transcript of statements he gave to police, claiming that the police violated his Fifth Amendment right to counsel when they failed to stop the interview after he requested counsel. Concluding that Clemons' procedural questions and comments about attorneys did not constitute an unequivocal request for an attorney, a panel of this Court held that the police did not violate his Fifth Amendment right to counsel and that therefore the trial court did not abuse its discretion when it admitted the evidence. See Clemons v. State, No. 49A02-0608-CR-722 [2007 WL 1364654] (Ind.Ct.App. May 10, 2007), trans. denied ["Clemons I"].
During Clemons' retrial on the voluntary manslaughter charge, Clemons again objected to the admission of his videotaped statements on the basis that he did not knowingly and voluntarily waive his right to counsel. The trial court denied Clemons' objection, stating that the totality of the cireumstances indicated that Clemons "freely and voluntarily waived his rights and that he did have sufficient comprehension and understanding to knowingly waive his rights." Tr. p. 168. At the conclusion of his retrial, the jury found Clemons guilty of voluntary manslaughter.

Clemons v. State, No. 49A02-0708-CR-319, at *1-*2, 2007 WL 4563957 (Ind.Ct.App. Dec. 31, 2007) ("Clemons II"). We affirmed Clemons' voluntary manslaughter conviction, id. at *6, and Clemons did not seek transfer.

On July 15, 2008, Clemons filed a pro se petition for post-conviction relief. On October 3, appointed counsel filed an amended petition for post-conviction relief. On September 14 and November 16, 2010, the post-conviction court held a hearing on the amended petition. And on July 20, 2011, the trial court denied post-conviction relief. Clemons now appeals.

DISCUSSION AND DECISION

Standard of Review

In post-conviction appeals, our standard of review is well established:

[TJhe petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Henley v. State, 881 N.E.2d 639, 643 (Ind.2008). When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Henley, 881 NE.2d at 643. The reviewing court will not reverse the judgment unless the petitioner shows that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court,. Id. at 648-44. Further, the post-conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). We will reverse a post-conviction court's findings and judgment only upon a showing of clear error, which is that which leaves us with a definite and firm conviction that a mistake has been made. Id. at 644. The post-conviction court is the sole judge of the weight of the evidence and the credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004). We accept findings of fact unless clearly erroneous, but we accord no deference to conclusions of law. Id.

Taylor v. State, 929 N.E.2d 912, 917 (Ind.Ct.App.2010), trans. denied.

Clemons' request for post-conviction relief is premised on his contentions that he was denied the effective assistance of trial and appellate counsel in violation of the Sixth Amendment to the United States Constitution. A claim of ineffective assistance of counsel must satisfy two components. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show deficient performance: representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the "counsel" guaranteed by the Sixth Amendment. Id. at 687-88, 104 S.Ct. 2052. Second, the defendant must show prejudice: a reasonable probability (ie., a probability sufficient to undermine confidence in the outcome) that, but for counsel's errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052.

Issue One: Effective Assistance of Trial Counsel

Clemons first contends that he was denied the effective assistance of trial counsel, Brian Lamar, because Lamar conceded that Clemons' request for counsel during interrogation was equivocal and because counsel did not obtain school records before the first trial as proof of Clemons' low intellect and inability to waive his Miranda rights. We address each contention in turn.

We first consider Clemons' claim regarding Lamar's decision to concede at the first trial's suppression hearing that Clemons' request for counsel during his post-arrest interrogation was equivocal. During his post-arrest interrogation, Clemons stated:

[Detective]: You're 27 years old. I want to express how much of a man you were here to us today. How truthful and honest you were here to us today, I want to be able to express that.
[Clemons]: Oh you're going to be able to express it, only thing I, I just want my momma sitting right here, you know what I'm saying can I have somebody sitting here with me though?
[Detective]: I, I understand that ...
[Clemons]: That, that's all I'm asking, I mean I ain't asking saying [sic] I want, I want to talk to my lawyer. I ain't said none of that.
[Detective]: I know.
[Clemons]: You see what I'm saying, I mean I, like you read, read my rights, you see what I'm saying, I don't have to, I've got the right, you see what I'm saying to stop talking at any time or whatever.
[Detective]: Exactly.
[Clemons]: You see what I'm saying, ask for a lawyer or something like that, you see what I'm saying. Hey look could I still have a lawyer? Sit here and talk to me right now?
[Detective]: I'm sorry what?
[Clemons]: If, you know what I'm saying I don't have a paid lawyer could I still have a, you all said I could have a lawyer or somebody come talk to me right now, sit here while I ...
[Detective]: As I stated at any time you can have a lawyer present when talking to us. Okay. Now ...
[Clemons]: even when it's paid or not?
[Detective]: A lawyer is not going to let you talk to us. But if you want one, we'll walk out of here right now and it's all yours. You know. If you do, but what you think you need to do [sic]. I will not violate your civil rights. I've made a promise to your mother and I'm going to stand up to the promise. I mean it looks like this guy got shot through the leg and shot through the arm and got hit in the neck.
[Clemons]: Let me see.

Clemons I Exhibits at 203, Clemons II Exhibits at 56-57. Again, Clemons argues that his trial counsel's performance was ineffective because Lamar conceded that Clemons' request for counsel was equivocal during his post-arrest interview.

We initially consider the State's brief argument that, under the law of the case doctrine, we are bound by the prior determination that Clemons "did not [unequivocally] invoke his right to counsel." Appellee's Brief at 14. The law of the case doctrine "is a discretionary tool by which appellate courts decline to revisit legal issues already determined on appeal in the same case and on substantially the same facts." Godby v. Whitehead, 837 N.E.2d 146, 152 (Ind.Ct.App.2005) (citation omitted), trans. demied. To invoke the law of the case doctrine, the matters decided in the prior appeal clearly must appear to be the only possible construction of an opinion, and questions not conclusively decided in the prior appeal do not become the law of the case. Id. (citation omitted). The doctrine is based upon the sound policy that once an issue is litigated and decided, that should be the end of the matter. Id. (citation omitted).

Here, the State asserts only that Clemons "may not make a claim of prejudice that contravenes" our prior determinations in the two direct appeals that Clemons request for an attorney was equivocal. Appellee's Brief at 14. The State is correct that we determined in Clemons' direct appeal from his handgun conviction that his request for counsel was equivocal. See Clemons I, No. 49A02-0608-CR-722, slip op. at *2.

In his petition for post-conviction relief and here, Clemons argues that his trial counsel was ineffective for conceding that his post-arrest request for an attorney was equivocal. But a review of the transeript of Clemons' post-arrest interview with the detectives shows that Clemons did not clearly and unequivocally request the assistance of counsel. We agree with this court's conclusion in the direct appeal from the handgun charge that

his statements indicate he understood he had signed the waiver of rights form prior to speaking with the officers and he understood the police had to stop questioning him if he requested counsel. His questions regarding whether he could obtain counsel were procedural questions that were not an unequivocal request for counsel.

Id. at *2. As such, Clemons cannot show that his trial counsel performed deficiently when he correctly conceded this point.

Clemons next contends that his trial counsel was ineffective for failing to introduce certain evidence at the first suppression hearing in order to show that Clemons' waiver of Miranda rights was not knowing and voluntary. Specifically, trial counsel did not offer into evidence at the first suppression hearing school records showing that Clemons has a low IQ. Clemons has not shown that he was prejudiced by trial counsel's failure to obtain and offer Clemons' childhood school ree-ords.

At the post-conviction hearing, Lamar testified that he had attempted to obtain Clemons' school records before the first trial but was unsuccessful. In particular, Clemons' mother had claimed to have the records but was unable to find them. Lamar then instructed one of his investigators to obtain the records from the school but was finally able to get them shortly before the second trial when Clemons mother personally delivered a consent form to the school. Lamar then offered the school records into evidence at the voluntary manslaughter retrial. The ree-ords showed that Clemons, who was twenty-seven years old at the time of his arrest, had an IQ of 74 when he was eleven years old.

The evidence shows that Lamar took steps to obtain Clemons' school records in advance of the first trial and was unsue-cessful through no fault of his own. Further, the same trial judge presided over both trials, and even after the trial court reviewed such records at the second trial's suppression hearing, the court found that Clemons' waiver of his Fifth Amendment rights was knowing and voluntary. On these facts, Clemons has not shown that Lamar's performance was deficient.

Issue Two: Appellate Counsel

Clemons also contends that he was denied effective assistance of appellate counsel, Julie Slaughter. Specifically, he asserts that Slaughter was ineffective because she failed to petition for transfer from this court's decision in Clemons II affirming his voluntary manslaughter conviction and thereby procedurally defaulted him from seeking habeas corpus relief. He maintains that the post-conviction court erroneously relied on Yerden v. State, 682 N.E.2d 1283 (Ind.1997), in finding that Clemons had not shown ineffective assistance of appellate counsel. We must agree.

In Yerden, a direct appeal, our supreme court considered a claim that interlocutory appellate counsel was ineffective for having failed to make a particular argument, to show how prejudice would result by newly passed rules of evidence, and to seek transfer to the supreme court. Applying the Strickland test, the court noted that the defendant had "literally provided no argument, much less any cogent argument, explaining how the lawyer who took the interlocutory appeal performed below prevailing norms." Id. at 1286. Only then did the court note in dictum that a "healthy majority of lawyers who lose before the Indiana Court of Appeals, for example, elect not to seek transfer. On the face of it, without any explanation, a lawyer who does not petition for transfer has simply performed according to the statistical norm." Id. As a result, Yerden's claim of ineffective assistance failed. Id.

The opinion in Yerden is distinguishable. There the defendant did not explain how failing to petition for transfer constituted representation below an objective standard of reasonableness. On that ground, our supreme court held that the defendant had failed to show ineffective assistance of counsel. Id. Conversely, and as discussed in more detail below, Clemons has shown that, under O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999), the failure to seek review from the highest appellate court of the state may result in procedural default of a federal habeas claim and, therefore, could constitute performance below that standard. Thus, Yerden is inapposite, and we are left to determine whether Clemons has shown that his appellate counsel was ineffective in this case.

Clemons correctly observes that a defendant must exhaust all state court remedies, including a request for discretionary review by a state court of last resort, in order to preserve his right to request federal habeas corpus relief. The Supreme Court has held that,

[blefore a federal court may grant habe-as relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition. The exhaustion doctrine, first announced in Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), is now codified at 28 U.S.C. § 2254(b)(1) 1994 ed., Supp. III.

Boerckel, 526 U.S. at 842, 119 S.Ct. 1728. The exhaustion doctrine, codified at 28 U.S.C. § 2254 provides in part that an

application for writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the court of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) cireumstances exist that render such process ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b)(1). A habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). "The exhaustion requirement is satisfied if the federal issue has been properly presented to the highest state court, either by direct review of the conviction or in a post-conviction attack." Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir.1994).

Here, again, following the direct appeal of Clemons' voluntary manslaughter conviction, his appellate counsel did not petition for transfer. Clemons argues that, as a result, he is prevented from exhausting his state remedies by having the supreme court consider whether his Fifth Amendment right to counsel was violated during his post-arrest interrogation. Clemons is incorrect.

A petitioner's failure to exhaust his claims properly ripens into a procedural default onee state remedies are no longer available. Miller v. Danforth, 2012 U.S. Dist. LEXIS 30017, at *16 n. 6 (S.D.Ga. March 6, 2012) (citing McNair v. Campbell, 416 F.3d 1291, 1305 (11th Cir.2005)). But state remedies are yet available to Clemons regarding his Fifth Amendment claim. Specifically, if Clemons were to petition for transfer from the present post-conviction decision, the alleged denial of his Fifth Amendment right to counsel would be before the Indiana Supreme Court when it considers the issues Clemons has raised in this appeal. Therefore, Clemons has not been denied the opportunity to exhaust his state remedies regarding his alleged denial of the Fifth Amendment right to counsel. As such, his right to seek habeas review has not been procedurally defaulted, and, therefore, Clemons has not shown ineffective assistance by his appellate counsel.

Conclusion

Clemons has not shown that his trial counsel was ineffective for conceding at his first trial that his post-arrest request for counsel was equivocal. Nor has he shown ineffectiveness when his trial counsel, despite investigation, was unable to secure and offer into evidence Clemons' sixteen-year-old schools records as evidence of his low IQ and, therefore, his purported inability to knowingly waive his right to counsel. Finally, Clemons has not demonstrated that his appellate counsel was ineffective for failing to file a petition to transfer from his voluntary manslaughter conviction. Because he may still seek review by the Indiana Supreme Court by appealing the instant decision, Clemons has not been procedurally defaulted. As such, he has not demonstrated that his appellate counsel's representation was deficient. We affirm the denial of Clemons' amended petition for post-conviction relief.

Affirmed.

ROBB, C.J., and VAIDIK, J., concur.


author: DARDEN, Judge.

text:
    Allison RIGGLE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1109-CR-472.
    Court of Appeals of Indiana.
    May 10, 2012.

      Barbara J. Simmons, Oldenburg, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Allison Riggle appeals her conviction following a bench trial for class A misdemeanor possession of marijuana.

We reverse and remand.

ISSUE

Whether the trial court abused its discretion in admitting evidence.

FACTS

On January 29, 2011, Indianapolis Metropolitan Police Officer Philip Bulfer observed Riggle turn left from the eastbound lane of Eugene Street into the outer northbound lane of Martin Luther King Avenue, a four-lane road with two lanes in each direction. Believing that Riggle had committed a traffic violation by not turning into the lane closest to the center line, Officer Bulfer initiated a traffic stop.

Soon thereafter, other officers arrived on the seene to assist Officer Bulfer. As one of the officers approached the driver's side of Riggle's vehicle, he noticed "the smell of burnt marijuana" emanating from the vehicle and relayed that information to Officer Bulfer. (Tr. 28). Another officer told Officer Bulfer that he had observed Riggle "shovel ] something inside her right boot." (Tr. 35).

After Officer Bulfer had Riggle step out of the vehicle, she admitted that she had hidden some marijuana in her boot. A search of the boot revealed 1.04 grams of marijuana.

On January 30, 2011, the State charged Riggle with class A misdemeanor possession of marijuana. Riggle moved to suppress the marijuana, which the trial court denied. Following a bench trial on August 15, 2011, the trial court found Riggle guilty as charged and sentenced Riggle to 365 days with 361 days suspended.

DECISION

Riggle asserts that the trial court abused its discretion in admitting any evidence that she possessed marijuana. Specifically, she argues that the traf-fie stop violated her rights under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution.

Both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution protect the privacy and possessory interests of individuals by prohibiting unreasonable searches and seizures. Barfield v. State, 776 N.E.2d 404, 406 (Ind.Ct.App.2002). This protection also governs " 'seizures' of the person." Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A traffic stop is a seizure under the Fourth Amendment. Meredith v. State, 906 N.E.2d 867, 869-70 (Ind.2009) {internal citations omitted).

An officer may stop a vehicle when he or she observes a minor traffic violation. A stop is lawful if there is an objectively justifiable reason for it, and the stop may be justified on less than probable cause. An officer's decision to stop a vehicle is valid so long as his or her on-the-spot evaluation reasonably suggests that lawbreaking occurred. This discretion, however, does not extend to an officer's mistaken belief about what constitutes a violation as a matter of law.

Gunn v. State, 956 N.E.2d 136, 139 (Ind.Ct.App.2011) (internal citations omitted).

Citing to Gunn, Riggle argues that the traffic stop was invalid because she did not commit a traffic violation when she turned left onto Martin Luther King Avenue. See id. at 140 (finding that the statute governing turns at intersections does not require drivers making a left turn to enter the second road in the closest left lane). The State concedes this issue, and we agree. Accordingly, we reverse and remand with instructions that the trial court vacate Rig-gle's conviction.

Reversed and remanded.

NAJAM, J., and RILEY, J., concur.

      . Ind.Code § 35-48-4-11.

      . Riggle poses the issue as whether the trial court improperly denied her motion to suppress. She, however, did not seek an interlocutory appeal after the trial court denied her motion to suppress. Rather, she proceeded to trial. "Once the matter proceeds to trial, the question of whether the trial court erred in denying a motion to suppress is no longer viable." Kelley v. State, 825 N.E.2d 420, 424 (Ind.Ct.App.2005). The issue therefore is "'more appropriately framed' as whether the evidence was admissible at trial." Brown v. State, 929 N.E.2d 204, 206 n. 1 (Ind.2010) (quoting Washington v. State, 784 N.E.2d 584, 587 (Ind.Ct.App.2003)), reh'g denied.


author: BRADFORD, Judge.

text:
    Timothy HAMMERLUND, Appellant-Cross-Appellee-Defendant, v. STATE of Indiana, Appellee-Cross-Appellant-Plaintiff.
    No. 338A05-1110-CR-562.
    Court of Appeals of Indiana.
    May 17, 2012.
    John T. Wilson, Anderson, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

Appellant-Cross-Appellee-Defendant Timothy Hammerlund appeals following the trial court's revocation of his probation, contending that his waiver of counsel was not knowing and voluntary. We affirm.

FACTS AND PROCEDURAL HISTORY

On August 2, 2010, Hammerlund agreed to plead guilty to Class D felony possession of a controlled substance in exchange for the dismissal of three other charges. That day, the trial court sentenced Ham-merlund to one and one-half years of incarceration, all suspended and with one year and forty-six days suspended to probation. On August 11, 2011, the State filed a See-ond Amended Verified Petition to Revoke Suspended Sentence, on the basis that Hammerlund had failed a drug sereen.

On September 19, 2011, at the initial hearing on the petition to revoke, the following exchange took place:

THE COURT: You do have the right to counsel to represent you. If you want an attorney, but cannot afford one, I'll consider appointment of counsel. You cannot be compelled to make any statement or to testify against yourself at the hearing, but anything you say could be used against you. You have a right to have a hearing on the allegations made in the Petition to Revoke. At that hearing, the State would have to prove the allegations by a preponderance of the evidence from evidence presented in open court at a final hearing. You would also have the right to confront the witnesses against you and to see, hear and cross examine those witnesses. You'd also have the right to call witnesses in your own behalf and I would assist you in that matter by issuing subpoenas at no cost to you. If the Court revokes your probation after conducting a final hearing, you would be entitled to appeal the Court's decision. If you admit the allegations made in the Petition to Revoke today, you would give up and waive each of these rights. If the Court finds that you have violated a condition of your probation, the Court could continue you on probation, modify the conditions of that probation or order the revocation of your suspended sentence. If the Court orders the revocation of your suspended sentence, you would be entitled to credit for any time served on these charges. Do you understand these rights?
MR. HAMMERLUND: Yes, Your Honor.
THE COURT: Any questions on any of these rights?
MR. HAMMERLUND: No, Your Honor.
THE COURT: The Second Amended Petition, in pertinent part state, the matters set forth in the original Petition and prior petitions are incorporated by reference. This alleges you further violated the terms and conditions o[f] probation in the following manner: on July 27, 2011, you submitted to a random urinalysis through the Probation Department. The results of that sereen were return[ed] by AIT Laboratories. They indicated positive for the presence of Benzodiazepine, specifically Alprazo-lam, and also the Court notes, or Probation noted you have had a prior hearing set on violation for today's date at 10:30 am. That's the allegation that is contained in this petition. Do you understand the allegation?
MR. HAMMERLUND: Yes, Your Honor.
THE COURT: Do you have any questions on that allegation?
MR. HAMMERLUND: I have spoken with the probation officer and she asked me and I was honest with her. The reason why I had that, I'm not on my prescription Paxil. I had an interview with the two, two district attorney, or the two people, the prosecutors in Madison County for the capital case, the murder of Steven Rogers and I just, I don't have the (Inaudible-stamping) with the depression. I just don't have the coping skills. I haven't been able to start the [intensive outpatient treatment].
THE COURT: So, if I understand what you're saying is, when you met with Officer Klenke, you admitted that you took some type of a Benzodiazepine that you weren't prescribed. That's what you're telling me?
MR. HAMMERLUND: I wasn't prescribed it, but when she asked me if I was to take a drug sereen, what would the outcome be and I told her and then I wanted to explain to her the reason why, because I didn't want to have any anxiety attacks and I have really bad anxiety attacks in a meeting with Prosecutors about what happened to me and ...
THE COURT: All right. So, from what you're saying, are you telling me that you are admitting to violating the terms and conditions of probation by testing positive for that substance?
MKR. HAMMERLUND: Yes, Your Honor.
THE COURT: Has anyone threatened or forced you to admit to that?
MR. HAMMERLUND: No, Your Honor.
THE COURT: Any promises been made about what will happen if you admit?
MR. HAMMERLUND: No, Your Honor.
THE COURT: You understand that by admitting you're admitting the truth that you did test positive for that substance? Is that correct?
MR. HAMMERLUND: Yes, Your Honor.
THE COURT: And you also understand that if you admit, you're giving up and waiving all those rights I went through earlier. You understand that?
MR. HAMMERLUND: Yes, Your Honor.

Tr. pp. 40-483.

The trial court found that Hammerilund had violated the terms of his probation and ordered that one year of his previously-suspended sentence be served.

DISCUSSION AND DECISION

Whether Hammerlund's Waiver of Counsel was Knowing and Voluntary

Hammerlund contends that the waiver of counsel at his probation revocation hearing was not knowing and voluntary be-ecause the trial court did not question him regarding whether he was aware of the nature, extent, and importance of the right to counsel or the pitfalls of waiving it.

Probation is a favor granted by the State, not a right to which a defendant is entitled. Cooper v. State, 900 N.E.2d 64, 66 (Ind.Ct.App.2009). A probationer faced with a petition to revoke his probation is not entitled to the full panoply of rights he enjoyed before the conviction. Id. For instance, the rules of evidence do not apply in a revocation proceeding, and the State need prove an alleged violation of probation by only a preponderance of the evidence. Id.
A defendant is entitled to certain due process protections before the revocation of his probation. Id. One of these protections is the right to counsel. Id.; see also Ind.Code § 35-38-2-3(e) ("The person [in a revocation proceeding] is entitled to confrontation, cross-examination, and representation by counsel."). When a defendant proceeds without the benefit of counsel, the record must reflect that he knowingly, intelligently, and voluntarily waived his right to counsel. Cooper v. State, 900 N.E.2d at 66. That is, the trial court must determine the defendant's competency to represent himself and establish a record of the waiver. Id. "There are no magie words a judge must utter to ensure a defendant adequately appreciates the nature of the situation." Kubsch v. State, 866 N.E.2d 726, 736 (Ind.2007), reh'g denied. "Rather, determining if a defendant's waiver was knowing and intelligent depends on the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused." Id. (quotations omitted).
Moreover, when a probationer proceeds pro se and chooses to admit rather than to challenge his alleged probation violation, his knowing, intelligent, and voluntary waiver of counsel may be established even if the record does not show that he was warned of the pitfalls of self-representation. Greer v. State, 690 N.E.2d 1214, 1217 (Ind.Ct.App.1998), trans. denied, abrogated by Hopper v. State, 934 N.E.2d 1086 (Ind.2010), reh'g granted.
We review de novo a trial court's finding that a defendant waived his right to counsel. Cooper, 900 N.E.2d at 67.

Butler v. State, 951 N.E.2d 255, 259-60 (Ind.Ct.App.2011).

In Greer, we stated the following regarding waiving the right to counsel in cases where a probationer admits to violating the terms of his probation:

We believe that a probationer who chooses to admit his probation violation places himself in a situation similar to that of a defendant who chooses to plead guilty to eriminal charges. Neither person is in danger of "conviction" at the hands of the State. It is unnecessary to warn such a person of the pitfalls of self-representation, for those pitfalls exist only when he is confronted with prose-cutorial activity which is designed to establish his culpability.

Greer, 690 N.E.2d at 1217.

This is an appropriate place to say a few words regarding the precedential effect of Greer. It is true that the original opinion in Hopper v. State, 934 N.E.2d 1086, 1088 (Ind.2010) on reh'g, 957 N.E.2d 613 (Ind.2011) ("Hopper I"), arguably abrogated Greer by requiring, without carving out exceptions for guilty pleas or admissions to allegations of probation violations, that

in the future a defendant expressing a desire to proceed without counsel is to be advised of the dangers of going to trial ... and also be informed that an attorney is usually more experienced in plea negotiations and better able to identify and evaluate any potential defenses and evidentiary or procedural problems in the prosecution's case.

Hopper I, 934 N.E.2d at 1088. On rehearing, however, the Indiana Supreme Court adopted a more flexible, case-specific approach to such matters and cited (Greer and other cases with approval, saying that "Itlhese cases and others like them may serve as helpful comparative guideposts to trial and appellate courts." Hopper v. State, 957 N.E.2d 613, 619 (Ind.2011) ("Hopper II"). Under the cireumstances, it seems clear that Greer, while perhaps once abrogated, is again good law and may serve as guidance to trial courts and practitioners.

Returning to the facts of the instant case, the trial court advised Hammerlund that he had the right to be represented by an attorney, that he might have an attorney appointed if he could not afford one, and of the potential consequences of admitting the allegations leveled against him. Hammerlund indicated that he understood his rights and that he had no questions regarding them. After Hammerlund admitted to violating the terms of his probation, the trial court again asked him if he understood that he was waiving the rights it had advised him of earlier, and Ham-merlund indicated that he did.

These facts relating to Hammer-lund's waiver of counsel are essentially identical to those in Greer, in which we concluded that Greer's waiver of counsel was valid. "At his initial hearing, Greer was advised of many things, including the following: that he had the right to be represented by an attorney; that an attorney might be appointed to represent him; and that certain consequences would or might result if he admitted the alleged violation of probation." Id. "This record, which also indicates that Greer understood the trial judge's advisements, establishes Greer's knowing, intelligent, and voluntary waiver of counsel." Id. Hammerlund was given essentially the same advisements cited by the Greer court and indicated on the record that he understood them. We conclude, therefore, that the record here establishes Hammerlund's knowing, intelligent, and voluntary waiver of counsel.

Moreover, we note that Hammer Tund does not contend, much less establish, that he suffered any prejudice whatsoever. The Indiana Supreme Court recently emphasized the importance of this factor in the totality-of-the-cireumstances approach that it has adopted:

Hopper himself may be the best illustration of why the totality of the cireum-stances approach serves better than the per se rule. He elaims only a lack of an advisement. He does not articulate any negative impact or particularized prejudice. He makes no argument of injustice or innocence. He certainly never says, "I didn't do it." ... Hopper never offers evidence that he would have received a better deal with advice of counsel or that he would have accepted counsel if the judge had told him that lawyers were so much better at plea bargaining.

Hopper II, 957 N.E.2d at 623.

Like the defendant in Hopper II, Ham-merlund simply claims he was inadequately advised without saying how it harmed him. Hammerlund does not claim that the State's evidence was weak, he would have received a better deal had he been represented, or he would have accepted counsel had he been differently advised. Taken as a whole, the record fails to establish that Hammerlund's waiver of counsel was anything other than knowing, intelligent, and voluntary.

The judgment of the trial court is affirmed.

VAIDIK, J., and CRONE, J., concur.

      . The State cross-appeals, arguing that Ham-merlund should not be able to challenge the revocation of his probation on direct appeal, having admitted to violating its terms. In the interests of deciding cases on the narrowest possible grounds and of avoiding additional and unnecessary litigation in this case, we leave this broader question for another day.