author: BAKER, Judge.

text:
    In the Matter of A.M.-K. (Minor Child), a Child in Need of Services, and A.M. (Mother), Appellant-Respondent, v. Marion County Department of Child Services, Appellee-Petitioner, and CHILD ADVOCATES, INC., Appellee-Guardian Ad Litem.
    No. 49A02-1207-JC-533.
    Court of Appeals of Indiana.
    Feb. 20, 2013.

      Amy Karozos, Greenwood, IN, Ruth Johnson, Marion County Public Defender Agency, Indianapolis, IN, Attorneys for Appellant.
    Patrick M. Rhodes, Indiana Department of Child Services, Robert J. Henke, DCS Central Administration, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

A.M. (Mother) was involuntarily committed for emergency mental health treatment, and the Indiana Department of Child Services (DCS) filed a petition alleging that each of Mother’s two children was a child in need of services (CHINS). The juvenile court determined that A.M.-K. was a CHINS, and Mother was ordered to participate in various services and to abide by the recommendations of mental health professionals, including taking all medications as prescribed.

Mother challenges the propriety of the parental participation order. More particularly, Mother claims that because the DCS failed to file a parental participation petition, the juvenile court lacked the authority to order her participation in any services or treatment. Mother also claims that the order directing her to take any medications as prescribed violates her constitutional right to decide her own mental health treatment.

We conclude that Mother was adequately notified of the DOS’s recommended plan of participation and that Mother acquiesced to the trial court’s authority to enter a parental participation order. However, we also conclude that the DCS failed to present sufficient evidence to overcome Mother’s liberty interest in deciding her own treatment when Mother objected to the order and presented evidence of her concerns. Accordingly, we affirm in part, reverse in part, and remand for additional proceedings consistent with this opinion.

FACTS

In September 2011, Mother was staying at a hotel in Indianapolis with her nine-year-old daughter S.M. when she decided to go swimming in a nearby creek. Mother left S.M. with the hotel’s owner, whom Mother knew, and walked to the creek, stripped down until she was naked, and swam until she suffered a stomach cramp and had to get out. Someone observed Mother lying in the grass naked and called the police.

When Officer Steven Jones from the Indianapolis Metropolitan Police Department (IMPD) arrived, he located Mother behind the hotel “sitting completely nude on the sidewalk.” Tr. p. 56. Officer Jones asked Mother why she was not wearing any clothes, and she replied that “she wanted to be nude and she was allowed to be nude.” Id. Although Mother initially refused to find her clothes, she allowed herself to be covered with a blanket and eventually got dressed. Officer Jones became concerned for Mother’s mental health when he observed that Mother was demonstrating odd behavior, such as “emotional swings from ... crazed laughter to yelling into the sky ... ‘in the name of Jesus Christ I have seen the light.’ ” Id. Officer Jones detained Mother to take her to a hospital for mental health evaluation and treatment.

DCS family case manager Amy Ryan (FCM Ryan) also responded to the scene after the DCS received a report that S.M. “was left alone in a hotel room while [Mother] ... swam in a drainage ditch naked.” Id. at 66. When FCM Ryan arrived, Mother was already dressed, and S.M. was sitting in the back of a police vehicle. S.M. “looked scared” and asked FCM Ryan “why her mom was cra2y.” Id. at 72. Mother told FCM Ryan that she had removed her children from school to come to Indianapolis “for a natural healing experience.” Id. at 67. She stated that she left six-year-old A.M.-K. with his father “a few weeks prior to [the incident].” Id. Mother also admitted to having attempted suicide in September 2009 by overdosing on prescription medications and alcohol. As a result of Mother’s suicide attempt in 2009, S.M. had previously been adjudicated a CHINS, but the case closed in approximately March 2010.

When FCM Ryan asked Mother about any current drug use, Mother replied, “I am clean from my sin and what I did is within.” Tr. p. 67. FCM Ryan also discussed Mother’s mental health treatment to that point. Mother told FCM Ryan that she had been diagnosed with “post-traumatic stress disorder, a pseudo seizure disease and a neuro cardio disease.” Id. at 68. Mother also told FCM Ryan that she “had stopped taking her medication a week ago.” Id. However, Mother did not indicate what disease that medication had been prescribed to treat.

FCM Ryan substantiated the allegation of neglect as to Mother because “[S.M.] was left alone in the hotel room and ... [Mother] was admitted to [a] psychiatric facility, [leaving] no one to care for [S.M. and A.M.-K.] at the time” and due to “concerns about [Mother’s] mental health and her ability to care for the children.” Id. at 68-69.

Mother was involuntarily committed for mental health treatment for several weeks. She was diagnosed with bipolar disorder and prescribed lithium. However, Mother was taken off the lithium and prescribed Geodon because the lithium had elevated her blood pressure and caused an episode with Mother’s heart condition. However, upon Mother’s discharge from commitment, Mother’s primary care physician, Dr. Charlie Williams, took her off the Geo-don and told her to schedule a follow-up appointment in a year. Mother claimed that she also had “a bad allergic reaction” to the Geodon and that it “made [her] very sick ... to where [she] couldn’t sleep and where [her] heart was puttering.” Tr. p. 142-43.

Once she was discharged, Mother began having supervised parenting time with her children, but her parenting time was suspended in December 2011. Prior to the suspension of her parenting time, Mother had asked that she be permitted to see her children individually instead of together. In March 2012, Mother participated in a psychological evaluation, which recommended in part that Mother participate in a psychiatric evaluation to determine if she would benefit from anti-psychotic medication. Mother also began individual counseling with Tatenda Mandaza, a home-based therapist referred by the DCS.

A fact-finding hearing on the CHINS petition was held over two days in April and May 2012. At the hearing in April, Mandaza testified that Mother had experienced “minimal progress” in therapy. Tr. p. 75. Mandaza noted that Mother’s “thinking patterns sometimes tend to be egocentric and ... it was hard for her to differentiate what was best for her children and what she wanted.” Id. at 83. Mother would also become “overwhelmed” regarding the need to discipline both children during visits. Id. Mandaza recommended that Mother continue therapy and participate in a psychiatric evaluation. Mandaza recommended the evaluation because Mother had been “diagnosed with different variations of a psychotic disorder by more than one professional” and because “research shows that medication sometimes is helpful in treatment.” Id. at 76. Mandaza further stated her belief that “at this point ... therapy alone is not going to be as effective.” Id. at 78.

A.M.-K.’s stepmother testified that she had previously observed Mother acting “not all there” once when Mother and S.M. dropped off items at her home for A.M.-K. Id. at 92. More specifically, Mother talked to herself and repeatedly said, “I’m just doing what God’s asking me to do.” Id. Mother also told the stepmother that “when she gets in the car she just does what God tells her to and closes her eyes and she automatically gets to her destination somehow.” Id. at 93. Additionally, Mother threatened to jump off the balcony, and she and S.M. left after Mother was convinced to come inside. However, a few minutes later, A.M.-K.’s stepmother overheard Mother and S.M. talking outside, and S.M. told Mother she was hungry. In response, Mother “gave [S.M.] some wood pieces, ... and she asked her to chew on it.” Id. When S.M. refused, Mother chased S.M. around the yard to try to get her to chew on the wood pieces.

Mother disagreed with the bipolar diagnosis, claiming that she was only diagnosed with a psychiatric condition “because [she] told a doctor who did not have [her] same religious beliefs that [she] believed in God.” Tr. p. 140. Mother also consistently stated that she is “unwilling” to get a psychiatric evaluation because the “sole purpose of seeing a psychiatrist” is for a prescription. Id. at 17, 77. Mother believes that taking medications is “against [her] religion” and that the medications could produce side effects that interfere with her heart condition. Id. at 17. And although Mother testified in April that she would participate in “any type of therapy” and that she had already been seeing another therapist weekly prior to the commencement of the CHINS case because she had been experiencing pseudo seizures, Mandaza testified that Mother “vacillates between wanting to participate and ... saying that she doesn’t want to see [Mandaza] again or would not like to be involved in services.” Id. at 17, 77. Moreover, at the May factfinding hearing on the CHINS petition, Mother’s therapy with Mandaza had been discontinued, and Mother was resistant to continuing further therapy.

After the conclusion of the fact-finding hearing, the juvenile court found that A.M.-K. was a CHINS but modified custody for S.M. to her father and consequently found that S.M. was not a CHINS. A dispositional hearing was held on the CHINS case on June 13, 2012. Prior to the dispositional hearing, the DCS submitted a pre-dispositional report but failed to submit a parental participation petition as to Mother. Nevertheless, at the hearing, the DCS recommended that Mother participate in a number of services, including a psychiatric evaluation, that Mother follow all recommendations from that evaluation, and that Mother meet all of her personal, medical, and mental health needs, including taking prescription medications as prescribed. The Guardian Ad Litem concurred in these recommendations.

Mother raised no objections to most of the DCS’s recommendations, but she specifically objected to the provision directing her to take all medications as prescribed. In response, the juvenile court stated:

I found the child to be a child in need of services.... [Q]uite a bit of the fact-finding was about your mental health issues.... I quite frankly find there’s a rational basis for a psychological evaluation and psychiatric exam and if they order medication, they order medication. Now, am I coming to your house and forcing it down your throat? No, I’m not.

Tr. p. 167. The juvenile court then ordered Mother to comply with the DCS’s recommended plan of participation in its entirety. Mother now appeals.

DISCUSSION AND DECISION

We first observe that Mother is not challenging the juvenile court’s determination that A.M.-K. is a CHINS. Rather, Mother only challenges the authority of the juvenile court to enter a parental participation order generally when the DCS failed to file a parental participation petition and specifically one that directs Mother to take any medications as prescribed.

I. Failure to File Parental Participation Petition

We first examine Mother’s contention that because the DCS failed to submit a parental participation petition prior to the dispositional hearing, the trial court was without authority to enter a parental participation order at all. Indiana Code section 31-34-16-3 provides:

A petition seeking participation of a parent, guardian, or custodian must be entitled “In the Matter of the Participation of _ the Parent, Guardian, or Custodian of_” The petition must allege the following:
(1) That the respondent is the child’s parent, guardian, or custodian.
(2) That the child has been adjudicated a child in need of services.
(3) That the parent, guardian, or custodian should:
(A) obtain assistance in fulfilling obligations as a parent, guardian, or custodian;
(B) provide specified care, treatment, or supervision for the child;
(C) work with a person providing care, treatment, or rehabilitation for the child; or
(D) refrain from direct or indirect contact with the child.

Once such a petition is filed, the juvenile court is to hold a hearing on the petition concurrently with either a dispositional hearing or a hearing to modify the disposi-tional decree. Ind.Code § 31-34-16-4. One of the purposes of a dispositional hearing is to consider “the necessity, nature, and extent of the participation by a parent, a guardian, or a custodian in the program of care, treatment, or rehabilitation of the child.” I.C. § 31-34-19-l(a)(2).

As Mother suggests, a few cases from different panels of this Court have held that the filing of a parental participation petition is jurisdictional and that, without it, the juvenile court has no authority to order parental action. See, e.g., Mikel v. Elkhart Cnty. Dep’t of Public Welfare, 622 N.E.2d 225, 229 (Ind.Ct.App.1993); In re M.R., 934 N.E.2d 1253, 1256 (Ind.Ct.App.2010). However, we find these cases distinguishable from the present case.

In Mikel, this Court reversed a juvenile court’s finding that a father was in contempt for failing to abide by previous orders of the juvenile court entered at the initial hearing and at the time the children were adjudicated as CHINS. 622 N.E.2d at 229. A separate dispositional hearing was not held. Brief of Appellant at 9, Mikel v. Elkhart Cnty. Dep’t of Public Welfare, 934 N.E.2d 1253 (1993) (No. 20A03-9303-CV-105). And in M.R., we vacated a parental participation order as to an alleged father in part because a parental participation petition had not been filed but also because the man had not yet been adjudicated as a parent to one of the children involved in the CHINS proceedings. 934 N.E.2d at 1255-56.

In the instant case, although the DCS failed to file a formal parental participation petition as described in Indiana Code section 31-34-16-3, it did file a predispositional report that included all of its recommendations for the proposed plan of care, treatment, rehabilitation, and placement of A.M.-K. Appellant’s App. p. 146-47. The predispositional report also summarized these recommendations for how Mother should obtain assistance in fulfilling her obligations as a parent, guardian, or custodian and explained why such assistance was necessary. Id. at 147. The DCS family ease manager who prepared the predispositional report was present at the dispositional hearing and available for cross-examination about the recommendations contained within the report. Tr. p. 163. Finally, Mother specifically agreed to almost all of the recommendations, objecting only to the provision of one of the recommendations that required Mother to take any medications as prescribed. Id. at 164-65.

Based on these circumstances, we cannot say that the juvenile court erred when it entered the parental participation order. It appears that the DOS’s predispositional report, although it did not have the statutorily-required title for a parental participation petition, nonetheless substantially complied with the requirements of Indiana Code section 31-34-16-3. Additionally, Mother acquiesced in the procedures utilized by the juvenile court in ordering her to complete various services and treatments. Thus, we conclude that the DOS’s failure to file a parental participation petition does not require that we vacate the participation order in this case.

II. The Order to Take Medications as Prescribed

Mother next contends that the juvenile court’s order that she take all medications as prescribed violates her constitutional right to direct her own medical treatment. Indeed, our Supreme Court has recognized that competent adults are entitled to make informed decisions about their medical care and that of their children. In re Lawrance, 579 N.E.2d 32, 38-39 (Ind.1991). However, this right is not without limitation. For example, a parent may not refuse life-saving treatment for one’s child, and a court may order that an adult be compelled to take medications in certain instances. See Schmidt v. Mut. Hosp. Servs., Inc., 832 N.E.2d 977, 981-82 (Ind.App.2005) (recognizing that parents can generally refuse their own medical treatment but cannot make martyrs out of their children); In re Mental Commitment of M.P., 510 N.E.2d 645, 647-48 (Ind.1987) (setting out the requirements for a forced medication order in an involuntary commitment case).

A juvenile court generally has broad discretion in determining the programs and services in which a parent should participate in order to pursue reunification with the parent’s child. In re A.C., 905 N.E.2d 456, 464 (Ind.Ct.App.2009). Nevertheless, we have held that “the requirements must relate to some behavior or circumstance that was revealed by the evidence.” Id. For the vast majority of provisions in parental participation orders, this is all that is required. However, where, as here, a parent objects to an order directing the parent to take all medications as prescribed and presents evidence of side effects and religious beliefs supporting that objection, we believe that additional evidence is necessary to overcome the parent’s constitutionally protected liberty interest in remaining free of unwarranted intrusions into the mind and body. See M.P., 510 N.E.2d at 646.

In the instant case, the evidence demonstrated that Mother suffers from serious mental health issues for which she has received various diagnoses and that, as a result, A.M.-K. was a CHINS. Tr. p. 38, 68, 87; Appellant’s App. p. 135-39. However, Mother offered uncontradicted evidence that the anti-psychotic medications she was prescribed had serious side effects that interfered with her heart condition, and she also raised a religious objection to the medications. Tr. p. 142, 165, 168, 173. On the other hand, the DCS presented no testimony from a psychiatrist that suggested, let alone proved, that an order directing Mother to take any particular medication was necessary in order for Mother to be stable enough to adequately parent A.M.-K.

The consequences for failing to abide by a parental participation order are indeed harsh; such a failure could potentially lead to the termination of Mother’s parental rights. A.C., 905 N.E.2d at 464-65. In light of the possible consequences and Mother’s protected liberty interest in directing her own mental health treatment, we cannot say that the DCS presented sufficient evidence to support the trial court’s order with regard to Mother taking all medications as prescribed. Moreover, we believe that there is an inherent problem where, as here, the parental participation order does not direct Mother to take a specifically recommended medication on the basis of a doctor’s evaluation of Mother’s mental health but requires Mother to take any and all medications without regard to her objections and the possible side effects.

That being said, we also conclude that the DCS presented sufficient evidence to support the juvenile court’s remaining orders, including the requirement that Mother participate in a psychiatric evaluation. Such an evaluation does not raise the same constitutional concerns as an order to take all medications as prescribed, and we find that this order was reasonably related to the evidence presented at the fact-finding and dispositional hearings. And once such an evaluation takes place, the DCS may well have sufficient information to move for a modification of the dispositional order to require that Mother take specifically recommended medications deemed necessary at that time for her reunification with A.M.-K.

The judgment of the juvenile court is affirmed in part, reversed in part, and remanded.

RILEY, J., and BARNES, J., concur.

      . Mother may have been diagnosed with schizophrenia as a result of the psychological evaluation.

      . The juvenile court also heard evidence on the custody modification petition that S.M.'s father had filed.

      .Mother told Mandaza that she had been "misdiagnosed with schizophrenia.” Tr. p. 84. Mandaza also learned through documentation provided to her from the DCS that Mother had been diagnosed "as bipolar with psychotic features.” Tr. p. 84.

      . The DCS had previously submitted a parental participation petition with regard to A.M.K.’s father.

      . To obtain a forced medication order in an involuntary commitment case, the State must prove by clear and convincing evidence that:
      1) a current and individual medical assessment of the patient’s condition has been made; 2) that it resulted in the honest belief of the psychiatrist that the medication will be of substantial benefit in treating the condition suffered, and not just in controlling the behavior of the individual; 3) and that the probable benefits from the proposed treatment outweigh the risk of harm to, and personal concerns of, the patient.

        M.P., 510 N.E.2d at 647. Moreover, the trial court must determine that the treating physician has evaluated and rejected every alternative form of treatment because no less restrictive treatment exists and that the proposed treatment is reasonably related to the reason for the individual's commitment. Id. at 647-48. Finally, the order may not be indefinite. Id. at 648.


source: Caselaw Access Project

author: SHEPARD, Senior Judge.

license: Public Domain

text:
    Curtis Tyrell CUTLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 71A05-1206-CR-339.
    Court of Appeals of Indiana.
    Feb. 21, 2013.

      Ernest P. Galos, South Bend, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

SHEPARD, Senior Judge.

A few weeks after the effective date of Indiana’s new rule requiring that custodial interrogations be recorded as a condition of admissibility, appellant Curtis Tyrell Cutler broke into Tymesha Coleman’s home and stole her television, her computer, and the like.

The question Cutler’s appeal presents is whether the State may impeach a testifying defendant by using a prior custodial statement that was indeed recorded but was not “available at trial” as required by Evidence Rule 617 because neither defense counsel nor the prosecutor knew of its existence until trial was under way.

We conclude that the trial court did not err in permitting use of the statement for impeachment, and affirm the conviction.

FACTS AND PROCEDURAL HISTORY

When Tymesha Coleman returned home on January 23, 2011, she discovered that someone had pried open her back door and rummaged through the house, absconding with various electronics, her checkbook, her Social Security card, and so on. She called the South Bend Police Department, whose responding officers recorded the scene and took samples of blood found on a freezer just inside the back door and on the cable cord that had been unscrewed from the missing television. There was also blood on parts of the pried door and on its handle and lock. The police sent some of these samples for DNA analysis, which later indicated that the blood belonged to Cutler.

After receiving these results, the police questioned Cutler, who said he did not know Tymesha Coleman and had no idea how his DNA could have been found in her home. Tr. pp. 97-98.

The State charged Cutler with burglary, a class B felony, Ind.Code § 35-43-2-1 (1999). A jury found him guilty as charged. Judge Jane Woodward Miller sentenced Cutler to twelve years executed time, it being his second burglary conviction.

ISSUES

Cutler presents two issues on appeal: (1) whether the trial court erred by permitting the State to impeach him with evidence from his interrogation, and (2) whether the evidence was sufficient to sustain the conviction.

DISCUSSION AND DECISION

I. Does Evidence Rule 617 Require Reversal?

Cutler’s appeal presents an issue of first impression concerning Indiana’s new rule about the admissibility of custodial statements. The rule provides, in part: “In a felony criminal prosecution, evidence of a statement made by a person during a Custodial Interrogation in a Place of Detention shall not be admitted against the person unless an Electronic Recording of the statement was made, preserved, and is available at trial-” Ind. Evidence Rule 617(a).

The applicability of Rule 617 arose at trial not during the State’s case in chief, but rather after Cutler took the witness stand in his own defense. As will be described in more detail later, the thrust of Cutler’s trial testimony was that he had once visited Coleman’s home and thus come to touch various objects, leaving his blood behind. He explained, for example, that he had exited the house as the result of an'.argument, then forced his way back inside through the kitchen door, cutting himself in the process. “That’s how your blood got there?” asked his lawyer. “Right,” he answered. Tr. p. 75.

In the course of the State’s cross-examination, the prosecutor sought to confront Cutler with the statement he had given in July 2011, during which he denied knowing Coleman, denied knowing where she lived, and said he could not explain how his DNA came to be in the residence. Defense counsel objected, saying that he had not received any electronic recording of the interview, only a written police report describing it, and thought there had not been a recording. Id. at 90.

The trial court invited the jury to depart the courtroom, upon which the judge and counsel examined Rule 617 and other resources such as Robert L. Miller’s Indiana Evidence. Counsel made inquiry of the South Bend Police Department, which promptly reported that there was in fact a recording made of the Cutler interview. The prosecutor appears to have had in his file only the same thing defense counsel had — a written report of the interrogating officer. Tr. pp. 90, 95.

Though the prosecutor and defense counsel parried over whether the defense should have demanded production of any recording in advance of trial, the court correctly observed that Rule 617 does not impose any such burden on a defendant. Id. at 91. The Attorney General acknowledges on appeal that the local rule on discovery obliged the prosecution to disclose to the defense any written or recorded statement by the defendant. Appellee’s Br. p. 8.

The trial court overruled Cutler’s objection, noting that even a statement taken in violation of Miranda v. Arizona may be used at trial against a testifying defendant. “The theory being,” said the trial judge, “that if a defendant chooses to take the stand he can’t be insulated from his prior statements and that those statements can be used for impeachment purposes only.” Tr. p. 96. The Indiana Supreme Court has recognized this principle, citing the U.S. Supreme Court. Page v. State, 689 N.E.2d 707, 710 (Ind.1997) (citing Harris v. New York, 401 U.S. 222, 225-26, 91 S.Ct. 643, 645-46, 28 L.Ed.2d 1, 4-5 (1971)) (“The shield provided by Miranda cannot be perverted into a license to use perjury by way of defense, free from the risk of confrontation with prior inconsistent utterances.”). In accord with these authorities, the trial court promptly instructed the jury that the statements from Cutler’s interrogation could be considered “if at all, solely in evaluating his credibility as a witness.” Tr. p. 99.

Had the State attempted to use Cutler’s statement from July as substantive evidence, Rule 617 would surely have required the prosecution to produce the recording before evidence of the statement could be admitted. Indeed, it seems that under the spirit of Rule 617, the defense, would have been within its rights to insist on hearing the recording before the prosecutor could confront Cutler with his statements, even given the late moment at which counsel and the court became aware of its existence.

Still, it is difficult to see defense counsel’s failure to make such a request as constituting waiver. To the State’s credit, the Attorney General has not argued that it was.

Thus, on the main point at issue, we conclude that the principle recognized in Page and Harris v. New York applies. There appear not to have been any appellate decisions elsewhere in the country on the precise issue raised by Cutler. We do note that courts and legislatures in several states have enacted recording requirements. Some of these explicitly authorize use of custodial statements in circumstances similar to Cutler’s, and others are silent on the point.

The court did not err in overruling Cutler’s objection.

II. Was There Sufficient Evidence to Convict?

The evidence favorable to the jury’s verdict indicated that Cutler had been in Tymesha Coleman’s home during an evening in early January 2011. Coleman testified that her friend Natasha Winston was present that evening and that Cutler came to the house to visit Natasha for “no longer than maybe an hour to two hours.” Tr. pp. 35-36. Winston testified that she had asked ahead of time whether it was all right to invite Cutler and Coleman had agreed. “We just watched a couple of movies and hung out,” said Winston. Id. at 45-46. She said Cutler was there for about two hours and then left. Id. at 47.

As indicated above, the State’s evidence about Cutler’s participation in the January 23rd burglary centered on DNA results indicating that the blood on the freezer in the kitchen and on the television cables belonged to Cutler. The parties stipulated to these test results. Id. at 11-12.

Cutler testified that he and his friend James Felix had been in the house on that evening in January. He explained his response in July by saying he had been introduced to Coleman only as “Tee Tee” or “Tee” and thus did not know who the interrogating officer was referring to. He also said he had been asked whether he had been to a particular address, and did not know the actual address he had visited. Id. at 100.

He said that during his visit to Coleman’s he and Natasha Winston fell to arguing, that he and Felix went outside through the kitchen to cool off, and that Winston had locked the door behind them. Id. at 71-78. Cutler said that in seeking to re-enter, he broke the screen door, pushed open the back door with his body, cut himself in the process, and brushed up against the kitchen freezer on his way back in. Id. at 75. He said his blood came to be on the television cable when he went over to unscrew it, being disturbed that Natasha Winston was paying more attention to the television than to him. Id. at 76. He denied committing the burglary.

Counsel for Cutler urges that Cutler presented a plausible explanation for having been once present in Coleman’s home, adding that none of the items stolen on January 23rd were ever recovered from him or traced to him. Appellant’s Br. p. 16.

Of course, it is not for a court on appeal to determine what elements of the evidence warrant acceptance. Rather, we affirm the verdict if there was before the jury substantial evidence of probative value to support it. Minter v. State, 653 N.E.2d 1382 (Ind.1995). We conclude there was sufficient evidence to warrant a jury in finding beyond a reasonable doubt that Cutler committed the burglary.

CONCLUSION

We affirm the judgment of the trial court.

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

      . See 725 Ill. Comp. Stat. 5/103-2.1(e) (2005) (mandating recording of custodial interrogations as a condition for admissibility of statements resulting from interrogation but nonetheless permitting admission of a voluntary, unrecorded statement if it "has a bearing on the credibility of the accused as a witness”); Tex. Criminal Code Ann. Art. 38.22(5) (2001) (same).

      . New Jersey Court Rule 3:17.


author: ROBB, Chief Judge.

text:
    Paul SPARKS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1207-CR-593.
    Court of Appeals of Indiana.
    Feb. 26, 2013.

      Jay Rodia, Indianapolis, IN, .Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michelle Bumgarner, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issue

Paul B. Sparks’s probation was revoked and he was ordered to serve the entirety of his previously-suspended sentence at the Department of Correction after he admitted to violating a condition of his probation. He now appeals, raising two issues, one of which we restate and find disposi-tive: whether the trial court violated Sparks’s due process rights in its handling of his probation revocation hearing. Concluding that Sparks’s due process rights were violated, we reverse and remand for a new probation revocation hearing.

Facts and Procedural History

Sparks was convicted of battery, a Class C felony, and invasion of privacy, a Class A misdemeanor, following a guilty plea entered on May 2, 2012. On May 9, 2012, he was sentenced to concurrent, suspended terms of five years for the battery and one year for the invasion of privacy. The trial court placed Sparks on probation for two years with the condition that he would participate in an inpatient treatment program for alcohol abuse in the Hebron Center in Bloomington, Indiana, for one year followed by a second year of treatment in a program approved by the probation department and the Hebron Center. On May 22, 2012, the State filed a notice of probation violation, alleging that Sparks left the Hebron Center on May 17, 2012, without notice.

The parties appeared before the trial court on June 29, 2012, for a probation violation hearing. At the hearing, during a short conversation with the court, the State explained that Sparks had left the Hebron Center after only a few days of attendance. The court responded: “Right. So he left after three days. If he is willing to accept responsibility for his actions ... I was thinking of giving him a four year sentence if he’ll do that. Otherwise, if you want to have a hearing, we can have a hearing.” Transcript at 5. The State informed the court that it would rather have a hearing, but after a recess, the attorneys informed the court that Sparks had decided to admit to the violation. Under oath, Sparks admitted that he left the Hebron Center on May 17. The court then reminded Sparks of the sentencing hearing at which the court had informed him that he had been given “the deal of a lifetime.” Id. at 7. When Sparks was given the opportunity to address the court, he indicated that he wanted to return to the Hebron Center and that he wanted to continue addressing his drinking problem. The trial court revoked Sparks’s probation and ordered him to serve the entirety of his five year suspended sentence. Sparks now appeals.

Discussion and Decision

I. Standard of Review

Probation is a favor granted by the State and is not a right to which a criminal defendant is entitled. Cooper v. State, 917 N.E.2d 667, 671 (Ind.2009). The decision to revoke probation lies within the sound discretion of the trial court. Id. Thus, a trial court’s decision to revoke probation and its subsequent sentencing decision is reviewed for an abuse of discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind.2007). However, because probation revocation implicates the probationer’s conditional liberty interest, the probationer is entitled to some procedural due process. Cooper, 917 N.E.2d at 671-72. Thus, if a reviewing court finds that a violation of due process took place, it must reverse and remand with instructions to conduct a revocation hearing consistent with due process requirements. Id. at 672.

II. Probation Revocation

Probation revocation is a two-step process. Woods v. State, 892 N.E.2d 637, 640 (Ind.2008). First, the court must make a factual determination that a violation of a condition of probation has taken place. Id. Second, if a violation is proven, the trial court must determine whether the violation warrants revocation of the probation. Id. While a defendant is not entitled to full due process rights for a probation revocation, due process requires the following:

(a) written notice of the claimed violations of [probation]; (b) disclosure to the [probationer] of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body ...; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation].

Parker v. State, 676 N.E.2d 1083, 1085 (Ind.Ct.App.1997) (quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). Indiana has.codified the due process requirements and requires that an evidentiary hearing be held to determine whether the State has proven the probation violation by a preponderance of the evidence. Ind.Code § 35-38-2-3(d), (f). Failure to hold an evidentiary hearing is a fundamental error and requires reversal. Eckes v. State, 562 N.E.2d 443, 445 (Ind.Ct.App.1990). If a probationer admits to the violation, an evidentiary hearing is not required. Ind.Code § 35-38-2-8(e). But if the probationer is unrepresented, the court must advise him of his right to counsel even if he or she decides to admit the probation violation. Eaton v. State, 894 N.E.2d 213, 217 (Ind.Ct.App.2008), trans. denied. If there is an admission, the court can go to the second step of the process to determine whether the violation warrants revocation, but the probationer must be given an opportunity to provide mitigating evidence suggesting that the violation does not warrant revocation. Woods, 892 N.E.2d at 640.

An evidentiary hearing did not take place in this case. And while Sparks admitted to violating a term of his probation, this admission came following the trial court’s comment that it was inclined to give him four years if he accepted responsibility for his actions. The trial court’s comment at the outset of the hearing overlooks the fact that the probationer has a constitutional and statutory right to an evidentiary hearing in which the State proves the probation violation by a preponderance of the evidence before the trial court decides whether a condition of probation was violated. A trial court’s failure to hold an evidentiary hearing prior to revoking probation requires reversal even if there is sufficient evidence in the record to support the revocation of the probation. See Eckes, 562 N.E.2d at 445. Also, an informal conversation between the court and the parties does not constitute an evi-dentiary hearing and does not comport with a probationer’s due process rights. See Dalton v. State, 560 N.E.2d 558, 560 (Ind.Ct.App.1990).

Sparks argues that his admission was not made voluntarily and knowingly in light of the trial court’s comment. He contends that the trial court’s comment “actually misled” him to believe that he would receive a four year sentence, but the court later ordered him to serve his full five year term. The State argues that while Sparks may have formed a mistaken belief as to the sentence he would receive if he admitted to the probation violation, he was not actually misled by the court.

In support of his argument, Sparks cites Sims v. State, 547 N.E.2d 895 (Ind.Ct.App.1989), trans. denied. In Sims, the defendant argued in a post-conviction relief petition that his probation violation admission was not voluntary, knowing, and intelligent and that he had been “actually misled” by his attorney and an agent of his substance abuse program as to the consequences of admitting to the probation violation. Id. at 897. The post-conviction court denied his petition. This court noted that a defendant must be “actually misled” and not just form a mistaken belief, id. at 898 (citing White v. State, 497 N.E.2d 893 (Ind.1986)), but, ultimately, refused to reweigh the evidence and affirmed the post-conviction court’s holding that the admission was voluntary, knowing, and intelligent. Id. at 898.

In this case, unlike Sims, there was no finding by a factfinder regarding whether Sparks’s admission was voluntary and knowing. The record is not clear as to whether Sparks was “actually misled” regarding the consequences of his admission, though there appears to be some evidence that he did not understand the consequences of his admission. For example, after Sparks admitted that he had left the Hebron Center on May 17, 2012, the following exchange took place between the court and Sparks:

The court: And you understand as a result of that that makes you in violation of your probation?
The defendant: I do, Your Honor.
The court: You understand I’m going to revoke your probation?
The defendant: No, I didn’t understand that — I was going to — I wanted to talk to you.

Tr. at 7. Moreover, the nature of the trial court’s comment at the outset of the hearing lends support to the contention that Sparks’s admission was not voluntary and knowing.

We note that even though both parties have advanced their arguments regarding whether Sparks’s admission was voluntary and knowing, it is not settled in Indiana that a probation violation admission must be made knowingly and voluntarily akin to a guilty plea. Cf. Eaton, 894 N.E.2d at 216-17 (a waiver of counsel during a probation revocation hearing must be made knowingly and voluntarily). In Sims, the court, in a footnote, stated that “[w]e do not actually decide whether an admission to a probation violation must be voluntary, knowing and intelligent, but discuss the issue in those terms since both parties have argued in that manner.” 547 N.E.2d at 897 n. 4. The court went on to note that many federal courts have held that many of the requirements that apply to guilty pleas do not apply to probation revocation proceedings. Id.

Like the court in Sims, we do not decide the issue of whether a probation violation admission must be made voluntarily, knowingly, and intelligently in Indiana. Rather, we base our decision on the cumulative effect of the lack of an evidentiary hearing, the unknowing nature of Sparks’s admission, and the trial court’s comment. Thus, while an evidentiary hearing is not required if the defendant admits to the probation violation, the lack of an evidentiary hearing in this case in light of the trial court’s comment and the suspect quality of Sparks’s admission constitutes fundamental error. Accordingly, we reverse and remand for a new probation revocation hearing consistent with the requirements of due process.

Conclusion

The trial court did not handle the probation revocation hearing in a way that comports with Sparks’s due process rights. Therefore, we reverse and remand for a new probation revocation hearing.

Reversed.

MAY, J., and PYLE, J., concur.

      . Sparks did not file a post-conviction relief petition prior to filing this direct appeal. A panel of this court has held that an alleged error during a guilty plea in a probation revocation hearing must be challenged by a post-conviction relief petition. Huffman v. State, 822 N.E.2d 656, 660 (Ind.Ct.App.2005). The court in Huffman based its decision on our supreme court's decision in Tumulty v. State, 666 N.E.2d 394, 396 (Ind.1996), in which the court held that a guilty plea leading to a criminal conviction must be challenged by a postconviction relief petition and not a direct appeal. The issue of whether the rule in Tumulty should be extended to probation revocation hearings remains unsettled, We have chosen to address the probation revocation issue in this case on the merits.

      . Sparks also argues that the five-year sentence ordered by the trial court was an abuse of discretion in light of the court’s comment that it would likely give him four years if he was willing to accept responsibility for his actions. Because we find a violation of due process, we do not decide this issue, but note that a trial court has "considerable leeway” when making sentencing decisions for probation violations. Prewitt, 878 N.E.2d at 188.


text:
    Dennis Ray SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 82A01-1204-CR-175.
    Court of Appeals of Indiana.
    Feb. 26, 2013.

      Matthew J. McGovern, Anderson, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

In the instant case, appellant-defendant Dennis Smith claims that his recorded statement to police, during which he admitted to inappropriately touching his stepdaughter, who was about five years old at the time, should not have been admitted into evidence at trial because it was obtained in violation of the Fifth Amendment to the United States Constitution. Accordingly, Smith requests that we reverse his four convictions for class A felony Child Molesting.

Additionally, both the State and Smith maintain that Smith’s convictions violate the prohibition against double jeopardy found in Article I, Section 14 of the Indiana Constitution. Insofar as the State was pleading in the alternative in Counts III and IV, rather than alleging four separate counts of child molesting, but finding no other error, we affirm in part, reverse in part, and remand with instructions to the trial court to vacate Smith’s convictions on Counts III and IV.

FACTS

Smith* was married to Gina, M.A.’s mother, for fourteen years. When M.A. was four or five years old, Smith sexually molested her on two occasions after Gina had left the house. M.A. did not have complete recollection of the second occasion but stated that she could “remember the pain ... [i]n [her] vagina.” Tr. p. 41. M.A. did not tell anyone about the molestation for several years because she was afraid of Smith.

On March 22, 2011, M.A. told Kelly Schwent, her mother’s best friend, and Kelly’s husband, Dan, about the molestations. Kelly took M.A. back to her home to inform Gina of the molestations. At the age of seventeen, M.A. had finally decided to reveal the fact that Smith had sexually molested her because she believed that she could handle the situation. Moreover, Smith and Gina had recently separated, and Smith was no longer staying in the family residence.

After Gina was informed that her daughter had been sexually molested by Smith, Gina, Kelly, and M.A., drove to Berry Plastics in Evansville, where Smith was employed, and confronted him in the parking lot. Smith denied the allegations while asking what he could do to make this go away. At some point, Gina hit Smith. Gina looked at Smith and gave him an ultimatum: Smith could either confront Gina’s father or follow the three women to the police station. Smith chose the latter.

After contacting the police, M.A., Gina, and Kelly went to Holly’s House, where they were interviewed by Detective Nathan Schroer of the Evansville Police Department. Later that night, and into the next morning, Detective Schroer advised Smith of his Miranda rights, and Smith signed a waiver of those rights that was dated March 23, 2011.

Detective Schroer conducted a recorded interview with Smith. Relevant portions of that interview follow:

Q ... I’m going to bury you underneath this case because I have no choice, I mean if you put yourself in my shoes, you would have to, you know, because you would leave here thinking, that guy doesn’t care, why shouldn’t I, or we talk it out and we go from there.
A Okay, but what happens tonight, I mean what happens if I say I want a lawyer, do I get one in here now then we talk about it?
Q No, we wouldn’t get one in here now, I mean they don’t come out at this time of the night, I’ll tell you exactly what happens, if you were to go down that route they would go, and you’ve got to remember, here’s what I’m telling you, if you went away for the rest of your life, he would say, oh don’t talk to them, don’t talk to them, that’s what he would say, I’m being honest with you, you know, and I’d say that that’s absolutely fine, I’ve sent a lot of people away for a lot of time because I was able to show a jury that they were guilty and then the jury wants to know, well what did they have to say about it, ...
A Am I looking at life or something?
Q No, you’re not looking at life, no you’re not looking at life, you have no criminal history, I don’t, I don’t see anything like that....
Q ... She said that it didn’t happen more than two times, did it happen more than two times?
A (inaudible)
Q Okay, how many different locations? A One.
⅜ * *
Q ... are you saying it was your finger that touched her vagina?
A It was my finger.

Tr. p. 138-39; 146; 149; 165.

On March 28, 2011, the State charged Smith with: Count I, class A felony child molesting by sexual intercourse and Count II, class A felony child molesting by sexual intercourse. On June 7, 2011, the State added Count III, class A felony child molesting by sexual deviate conduct and Count IV, class A felony child molesting by sexual deviate conduct. On February 8, 2012, the State added Count V, class A felony child molesting by sexual deviate conduct.

On February 22, 2012, Smith filed a motion to suppress “a portion of the statement of the Defendant taken by audio/video recording by Detective Nathan Schoer.” Appellant’s App. p. 29. Smith alleged that his statement was acquired in violation of his right to counsel under the Fifth Amendment to the United States Constitution and the Indiana Constitution. A hearing on the motion to suppress was held on the same date, and the trial court denied the motion.

Smith’s jury trial commenced the next day, February 23, 2012. At trial, when the State offered the recorded interview between Smith and Detective Schroer into evidence as State’s Exhibit D, Defense Counsel stated that there was no objection, and the trial court admitted the exhibit. However, immediately after the exhibit was admitted without objection, Defense Counsel stated in a bench conference that he was objecting to the exhibit on grounds that the motion to suppress “should have been granted, however, the Court denied that Motion.” Tr. p. 106. The trial court overruled the objection.

The interview was played for the jury. Following deliberations, the jury returned a verdict of guilty on Counts I-IV and not guilty on Count V.

The trial court held a sentencing hearing on March 23, 2012, where it sentenced Smith to thirty years imprisonment on each of the four counts to be served concurrently, for a total executed term of thirty years. Smith now appeals, and the State cross-appeals.

DISCUSSION AND DECISION

I. Cross Appeal — Waiver

At the outset, the State contends that Smith has waived any claim concerning his recorded statement, inasmuch as he failed to make a contemporaneous objection at trial when it was offered into evidence. Although Smith filed a motion to suppress, that motion was denied following a hearing on February 22, 2012. Appellant’s App. p. 6. Smith’s jury trial commenced the next day. And this Court has opined that , “once the matter proceeds to trial, the denial of a motion to suppress is insufficient to preserve an issue for appeal. Rather, the defendant must make a contemporaneous objection to the admission of evidence at trial.” Kelley v. State, 825 N.E.2d 420, 424 (Ind.Ct.App.2005). Accordingly, Smith was required to object when the State offered his recorded statement into evidence.

Here, when the State offered Smith’s recorded testimony, Defense Counsel stated, “No objection, Judge.” Tr. p. 105. A few moments later, Defense Counsel requested to approach the bench, and during a bench conference stated: “I’m objecting to the admission of [Smith’s recorded statement] for violation of the Constitutional Rights of the defendant and in fact the suppression should have been granted, however, the Court denied that Motion, it’s the Court’s ruling [;] I don’t want to make an objection in front of the jury.” Id. at 106. The trial court overruled the objection.

While this is certainly not the typical way to object to evidence, it was sufficient to alert the trial court that the defense was objecting to the admission of the recorded statement and the grounds on which it was objecting. Indeed, the trial court ruled on the objection. Consequently, we decline to find waiver.

II. The Fifth Amendment— Coerced Statement

Smith argues that the trial court erred by admitting his recorded statement to Detective Schroer during trial, insofar as it was coerced in violation of the Fifth Amendment to the United States Constitution. A trial court has broad discretion in ruling on the admission of evidence, and we will not disturb its ruling on appeal absent an abuse of that discretion. Palilonis v. State, 970 N.E.2d 713, 731 (Ind.Ct.App.2012). An abuse of discretion occurs where the trial court’s ruling is clearly against the logic and effect of the facts and circumstances before the court. Id. “The admissibility of a defendant’s statements to the police is determined by consideration of the totality of the circumstances.” Laster v. State, 918 N.E.2d 428, 432 (Ind.Ct.App.2009).

The Fifth Amendment to the United States Constitution grants a privilege against self-incrimination during custodial interrogation. Palilonis, 970 N.E.2d at 732; see also Miranda v. Arizona, 384 U.S. 436, 461, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda warnings are used to secure a criminal defendant’s right against self-incrimination. Kelley, 825 N.E.2d at 427. However, an individual is entitled to the protections afforded by Miranda only when he is subjected to custodial interrogation. Palilonis, 970 N.E.2d at 732.

Custodial interrogation is “ ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ ” Morales v. State, 749 N.E.2d 1260, 1265 (Ind.Ct.App.2001) (quoting Bishop v. State, 700 N.E.2d 473, 476 (Ind.Ct.App.1998)). Whether a criminal defendant is in custody turns on whether a reasonable person in the same circumstances would not feel free to leave. Id. This inquiry depends upon the “objective circumstances” as opposed to the subjective views of the interrogating officers or the subject being questioned. Id.

In this case, after Smith was confronted by Gina regarding M.A.’s accusations that he had molested her, Smith voluntarily went to the police station. Tr. p. 49-50. Further, Smith voluntarily waited at the police station while Detective Schroer interviewed M.A., Gina, and Kelly at Holly’s House. Id. at 171. Moreover, during the interview, Smith was not under arrest, remained unrestrained, and was allowed to leave during the interview to get a drink of water. State’s Ex. D. Under these circumstances, we cannot say that Smith was in formal custody when he made his recorded statement to police.

Even assuming solely for argument’s sake that Smith was in custody when he gave his recorded statement, the statement was not coerced. Contrary to Smith’s assertions, he did not make a request for counsel such that Detective Schroer was required to stop questioning him. Although, under Miranda, police questioning must cease when a defendant requests counsel, a defendant’s request for counsel must be unambiguous and unequivocal. Carr v. State, 934 N.E.2d 1096, 1102 (Ind.2010).

In the instant case, Smith made two references to an attorney during the interview:

Okay, but what happens tonight, I mean what happens if I say I want a lawyer, do I get one in here now then we talk about it?

Tr. p. 139

If I ask for a lawyer and what’s it going to be, what’s it going to be?

Id. at 143.

We cannot conclude that either of these statements is an unambiguous and unequivocal request for legal representation. See Bailey v. State, 763 N.E.2d 998, 1003 (Ind.2002) (concluding that defendant’s statement that “I may need a what do you call it ... a appointed ... oh appointed attorney,” did not amount to an unequivocal invocation of his right to an attorney).

Similarly, we do find that Smith’s statements were voluntary. As stated above, Smith voluntarily went to the police station where he was interviewed unrestrained. Smith was fully and completely advised of his Miranda rights, and he knowingly, intelligently, and voluntarily waived those rights. Tr. p. 108-09. Nevertheless, Smith attempts to challenge the voluntariness of his statement by arguing that Detective Schroer used coercive tactics by repeatedly telling Smith that that he would “bury him.” Appellant’s Br. p. 9.

For example, during the interview, Detective Schroer stated:

I’m going to bury you underneath this case because I have no choice, I mean if you put yourself in my shoes, you would have to, you know, because you would leave here thinking, that guy doesn’t care, why shouldn’t I, or we talk it out and we go from there.

Tr. p. 138-89. These statements were made in reference to the amount of evidence that Detective Schroer had against Smith if the case went to trial. Indeed, Detective Schroer was confronting Smith with the circumstances that he was facing rather than issuing a physical threat. Consequently, Smith’s arguments attacking the voluntariness of his recorded statement fail.

II. Double Jeopardy

Smith maintains that two of his convictions must be vacated, inasmuch as they violate Indiana’s prohibition against double jeopardy. A defendant is protected against double jeopardy by Article I, Section 14 of the Indiana Constitution. Two or more offenses constitute the same offense “if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind.1999) (emphasis in original).

Here, M.A. alleged that Smith molested her by engaging in sexual intercourse with her on two separate occasions. Tr. p. 37-41. In Smith’s statement to Detective Schroer, he denied engaging in sexual intercourse with M.A. but admitted that he may have used his finger. Id. at 164-65. Accordingly, the State concedes that it was pleading in the alternative when it charged Smith under Counts I and II with engaging in sexual intercourse with M.A. on two separate occasions and under Counts III and IV with inserting his finger into M.A.’s vagina on two separate occasions. The State did not intend to charge Smith with four separate acts of child molestation. Consequently, we remand this case to the trial court to vacate Counts III and IV.

The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions to the trial court to vacate Counts III and IV.

RILEY, J., and BARNES, J., concur.

      . Ind.Code § 35-42-4-3.

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


author: PYLE, Judge.

text:
    James E. MEFFORD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 15A04-1208-CR-394.
    Court of Appeals of Indiana.
    Feb. 28, 2013.

      Leanna Weissmann, Lawreneeburg, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Joseph Y. Ho, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

James E. Mefford (“Mefford”) appeals his sentence for Class A felony child molesting and Class B felony dealing in a schedule II controlled substance (hydroco-done).

We affirm.

ISSUE

Whether Mefford’s sentence is inappropriate pursuant to Indiana Appellate Rule 7(B).

FACTS

In 2004, Mefford was convicted of Class B felony sexual misconduct with a minor and was sentenced to twenty (20) years, with ten (10) years executed in the Department of Correction and ten (10) year suspended to probation.

While on probation, Mefford committed the offenses that are the subject of this appeal. Specifically, on December 1, 2010, and on January 31, 2011, Mefford delivered hydrocodone to another individual. Additionally, in February 2011, Mefford had sexual intercourse with his thirteen-year-old stepdaughter, S.F., who became pregnant and later got an abortion. DNA tests conducted on the aborted fetus revealed that Mefford was the father of the baby.

On April 1, 2011, the State charged Mef-ford with Class A felony child molesting under cause number 15D02-1104-FA-7 (“FA-7”). On April 4, 2011, the State charged Mefford with Class B felony dealing in a schedule II controlled substance, which it later amended to Class A felony dealing in three grams or more of a Schedule II narcotic drug under cause number 15D02-1109-FA-21 (“FA-21”). In June 2011, the State also filed an allegation, under both FA-7 and FA-21, that Mefford was an habitual offender.

On January 10, 2012, Mefford entered into a written plea agreement with the State in both FA-7 and FA-21. Under FA-7, Mefford agreed to plead guilty to the Class A felony child molesting charge and the habitual offender allegation. Under FA-21, Mefford agreed to plead guilty to an amended charge of Class B felony dealing in a Schedule II controlled substance, and the State agreed to dismiss the habitual offender allegation. Mefford also agreed to admit that he violated his probation from his sexual misconduct with a minor conviction. The plea agreement left sentencing open to the trial court’s discretion. That same day, the trial court held a combined guilty plea hearing, and Mefford pled guilty in both causes as set forth above.

The trial court held a combined sentencing hearing on June 6, 2012. During this hearing, Mefford introduced a report from a psychologist he had hired to perform a psychological evaluation for sentencing. The report revealed that Mefford had reported that he had been sexually abused as a child and that he had abused drugs and alcohol.

Also during the sentencing hearing, the State asked the trial court to take judicial notice of the probable cause affidavits and the record from FA-7 and FA-21. The State also presented testimony from the two investigating officers in both causes. The officers revealed additional information about the facts surrounding Mefford’s offenses, including the fact that S.F. is mentally handicapped and has a learning disability. One of the officers also testified that Mefford told S.F. to lie about her pregnancy and tried to take her out of state to have an abortion.

When sentencing Mefford, the trial court determined that Mefford’s extensive criminal history was an aggravating cir-cumstanee. Mefford’s criminal history includes the following convictions: (1) Class B felony sexual misconduct with a minor in 2004; (2) two Class A misdemeanor convictions for deception in 1999; (3) presenting a false name in 1994; (4) passing a bad check in 1994; (5) a felony receiving stolen property conviction and two forgery convictions in 1994, in which his probation was revoked seven months later; (6) domestic violence in 1994; (7) disorderly conduct in 1993; (8) passing bad checks in 1993; (9) four felony convictions for passing bad checks in 1993; (10) passing bad checks with insufficient funds in 1993; (11) domestic violence in 1993; (12) disorderly conduct in 1993; (13) passing bad checks in 1994, in which his probation was revoked in 1996; (14) receiving stolen property in 1992; and (15) theft in 1991. Additionally, Mefford has two juvenile adjudications for gross sexual imposition and a juvenile adjudication for aggravated burglary.

The trial court also considered the following additional aggravating circumstances:

The Court finds the circumstances of the child molesting to be aggravated and demonstrate that the Defendant is a risk to children and that the Defendant requires incarceration to protect society. Further, the impact of the crime on the victim is of grave concern. The victim of the child molesting is a mentally challenged child who is noted by the attorney and caseworker for the Department of Child Services to be “feeling the trauma” of what occurred and continues in counseling. The Defendant was in a position of trust with the victim who was thirteen (13) years old and the Defendant was thirty-two (32) years old.[] The Defendant was a “father” figure and was married to the victim’s mother. The Defendant knew of the victim’s mental challenges. The victim in an interview at the child advocacy center stated her “dad” (the Defendant) had taken her into the bathroom and had her “pee on a stick” and that is how they found out she was pregnant and then advised “they went to a place where they made her ‘pee’ in a cup and watch a movie about babies”. The Defendant was seeking to have the victim have an abortion out of State. The actions of the Defendant combined with the fact that the thirteen (13) year old victim became pregnant as a result of the molestation with the resulting additional emotional trauma are additional serious aggrava-tors of the crime.
The Court considers the lack of remorse and actions of the Defendant after committing the child molestation. The testimony provided that the Defendant told the young victim to lie after it was discovered she was pregnant and the Defendant assisted in looking into an abortion in another state. The DNA of the fetus confirmed that the Defendant was the father. The Defendant after first denying the allegation then attempted to state he mistakenly thought the child was his wife and has never assumed responsibility for his criminal actions. The Court finds these actions and lack of remorse to be an aggravating circumstance.
The Defendant admitted to delivering hydrocodone in Cause No. [FA-21] and the evidence provides that the Defendant sold twenty-one (21) tablets of hy-drocodone at a Laundromat to a confidential informant and then subsequently sold ten (10) tablets of hydroeodone at his residence. The Defendant has a history of substance abuse and had previously received treatment for substance abuse at Bethesda Oak in the late 1980’s and attended treatment while confined in the Indiana Department of Correction in 2008 to 2010. The Court considers that the Defendant has had the opportunity to receive treatment prior to committing the offense of delivering controlled substances and has continued to commit serious substance abuse offenses despite treatment.
The Court finds it a further aggravating factor that the Defendant committed the offenses while on felony probation for sexual misconduct with a minor....

(App. 131-32). The trial court acknowledged Mefford’s proffered mitigator that he had been molested as a child but determined that it was not a mitigating circumstance in this case.

For Mefford’s Class A felony child molesting conviction in FA-7, the trial court imposed a fifty (50) year sentence enhanced by thirty (30) years for his habitual offender determination. Additionally, the trial court imposed a twenty (20) year sentence for Mefford’s Class B felony dealing a controlled substance conviction in FA-21. The trial court ordered that the sentences be served consecutively and executed at the Department of Correction and determined Mefford to be a sexually violent offender.

DECISION

Mefford argues that his aggregate one hundred (100) year sentence is inappropriate. Specifically, Mefford makes no argument regarding his habitual offender enhancement, but he argues that his sentences for his child molesting and dealing a controlled substance convictions are inappropriate because the trial court imposed the maximum sentence on these two convictions and ordered them to be served consecutively. Mefford suggests that an appropriate sentence for his two convictions would be presumptive, concurrent terms.

We may revise a sentence if it is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B). The defendant has the burden of persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006). The principal role of a 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). 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.

When determining whether a sentence is inappropriate, we acknowledge that the advisory sentence “is the starting point the Legislature has selected as an appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081. The sentencing range for a class A felony is between twenty (20) and fifty (50) years, with the advisory sentence being thirty (30) years. I.C. § 35-50-2-4. The sentencing range for a class B felony is between six (6) and twenty (20) years, with the advisory sentence being ten (10) years. I.C. § 35-50-2-5. When a person is determined to be an habitual offender, the trial court “shall sentence a person ... to an additional fixed term that is not less than the advisory sentence for the underlying offense nor more than three (3) times the advisory sentence for the underlying offense.” I.C. § 35-50-2-8(h). This additional sentence, however, may not exceed thirty (30) years. Id. For Mefford’s Class A felony child molesting conviction in FA-7, the trial court imposed a fifty (50) year sentence enhanced by thirty (30) years for his habitual offender determination. For Mefford’s Class B felony dealing a controlled substance conviction in FA-21, the trial court imposed a twenty (20) year sentence to be served consecutively to his sentence in FA-7.

Regarding the nature of Mefford’s offense of dealing a controlled substance, the record reveals that Mefford sold a total of thirty-one tablets of hydrocodone on two separate occasions. According to the pre-sentence investigation report (“PSI”), Mef-ford sold the hydrocodone because he was trying to get money to buy heroin.

Turning next to the nature of Mefford’s child molestation offense, the record reveals that Mefford had sex with his thirteen-year-old stepdaughter, S.F., who is mentally handicapped. As a result of the molestation, his stepdaughter became pregnant. Mefford told S.F. to lie and say that she became pregnant by a fictional person named Mike, and Mefford tried to arrange for her to have an abortion out of state. When confronted by police about S.F.’s pregnancy, Mefford lied and blamed the pregnancy on the fictional person. After the police told Mefford that they were going to get DNA from the fetus to determine paternity, Mefford continued to lie and deny involvement. Mefford admitted that he had sex with S.F. only after he failed a polygraph exam. Mefford then claimed that he was under the influence of alcohol and pain medication and that he thought he was having sex with his wife when he was having sex with S.F. DNA testing of the fetus confirmed that Mefford was the father of the baby. The nature of Mefford’s child molesting offense is further exacerbated by the fact that he has a prior conviction for sexual misconduct with a minor and two juvenile adjudications for gross sexual imposition.

As to Mefford’s character, the record reveals that Mefford — who was forty-one years old at the time of his offenses — has amassed a long criminal history that includes, among other things, sexual offenses committed while an adult and as a juvenile as well as crimes involving dishonesty. Furthermore, during the sentencing hearing, Mefford admitted that he had lied to the probation officer who compiled his PSI for his 2004 sexual misconduct with a minor conviction. Even more troubling, Mef-ford was on probation from this sexual misconduct conviction when he committed the child molestation and dealing offenses at issue in this case. He admitted to violating his probation in that sexual misconduct with a minor case and had his probation revoked. Additionally, he had his probation revoked in two other cases, one in 1994 and the other in 1996.

In support of his character, Mefford points to his history of being molested as a child. The trial court acknowledged Mef-ford’s history of molestation but determined that it was not a mitigating circumstance in this case. Indeed, Mefford’s own psychological evaluation indicates that the psychologist acknowledged that Mefford’s history may not be a mitigating factor “from a legal standpoint.” (Mefford’s Ex. A at 2) (emphasis in original). The psychological report also indicates that Mef-ford’s history of molestation “certainly does not negate the level of criminal responsibility that [Mefford] has for his offense.” (Mefford’s Ex. A at 3) (emphasis in original).

Additionally, Mefford’s extensive and prolonged history of alcohol and drug use despite prior treatment does not reflect positively on his character. The PSI reveals that Mefford admitted to the use of alcohol since the age of fourteen and to being an alcoholic. Mefford stated that he was drinking daily at the time of his offenses, which was done despite the fact he was on probation. Mefford also admitted to first smoking marijuana at the age of fourteen and then progressing to cocaine and heroin, which he stated he used “off and on for thirty years.” (App. 159). To be sure, Mefford’s history of criminal activity, multiple probation violations and revocations, and admitted illegal drug use reflect poorly on his character and indicate nothing but a disregard for the law.

Finally, we reject Mefford’s argument that his sentence is inappropriate because he received consecutive sentences. “It is a well established principle that the fact of multiple crimes or victims constitutes a valid aggravating circumstance that a trial court may consider in imposing consecutive or enhanced sentences.” O’Connell v. State, 742 N.E.2d 943, 952 (Ind.2001). Here, Mefford committed two separate crimes of child molesting and dealing a controlled substance that were committed on different days and tried in separate causes.

Mefford has not persuaded us that that his sentence is inappropriate. Therefore, we affirm the trial court’s sentence.

Affirmed.

ROBB, C.J., and MAY, J., concur.

      . Ind.Code § 35-42-4-3(a)(l).

      . I.C. § 35-48-4-2(a)(l)(C).

      . The Class B felony charge was originally filed under a different cause number that was then changed to FA-21 upon the amendment of the A felony charge.

      . Mefford did not include a copy of the plea agreement in his Appellant’s Appendix. The details of his plea agreement are contained in the transcript from the guilty plea hearing.

      . Based on Mefford's date of birth provided in the presentence investigation report and in the child molesting charging information, he would have been forty-one (41) at the time of the offenses.


author: DICKSON, Chief Justice.

text:
    Michael DODD and Katherine Dodd, Appellants (Plaintiffs), v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Appellee (Defendant).
    No. 12S02-1203-CT-170.
    Supreme Court of Indiana.
    March 5, 2013.

      C. David Little, Power, Little & Little, Frankfort, IN, Attorney for Appellants.
    Robert S. O’Dell, O’Dell & Associates, P.C., Carmel, IN, Attorney for Appellee.
   DICKSON, Chief Justice.

After a fire at a home resulted in an insurance claim, the insurance company denied coverage on grounds that the insureds had failed to disclose prior fire losses on their insurance application. In the ensuing litigation, the trial court granted the insurance company’s motion for summary judgment and the Court of Appeals affirmed the trial court in part, reversed in part, and remanded for further proceedings. Dodd v. Am. Family Mutual Ins. Co., 956 N.E.2d 769 (Ind.Ct.App.2011). We granted transfer and now affirm the trial court’s grant of summary judgment.

In 1998, Michael Dodd and Katherine Salmons were living together in Frankfort, Indiana, in a home owned by Katherine and insured by Farm Bureau Insurance (“Farm Bureau”). On March 24, 1998, that home was destroyed by a fire. Farm Bureau paid a settlement for the loss in September 1998, but disputed certain aspects of the claim. Seeking to rebuild their home, in December 1998, Michael and Katherine completed an application for property insurance with American Family Mutual Insurance Company (“American Family”). The application indicated that Michael was the titleholder of the property and listed Katherine (then his “girlfriend/fiancé [sic]”) as an unrelated person in the household. Appellants’ App’x. at 109. The application also asked if the “[ajpplicant or any member of household ... had any past / current losses at any locations?” Id. This question was answered in the negative. Id. Michael signed the application, and American Family issued the policy. Michael and Katherine were married in the summer of 2000. On September 19, 2003, their garage was destroyed in a fire and the Dodds filed a claim with American Family. During follow-up investigations to determine the cause and origin of the fire, Michael disclosed the 1998 fire to American Family. American Family, treating the prior fire loss nondisclosure as a misrepresentation, voided the insurance policy ab initio and denied the Dodds’ claims for the 2003 garage fire losses.

The Dodds filed suit against American Family claiming breach of contract and intentional infliction of emotional distress. The trial court granted American Family’s motion for summary judgment as to both claims, finding that American Family owed no insurance coverage or compensatory damages to the Dodds due to misrepresentations in the insurance application, and that American Family owed the Dodds neither punitive nor other damages on the Dodds’ claim for intentional infliction of emotional distress. The Dodds brought this appeal, challenging the grant of summary judgment on grounds that American Family failed to return the premiums paid by the Dodds. Approximately five months after the entry of final judgment, and three-and-a-half months after the Dodds filed their notice of appeal, American Family filed a motion with the trial court to interplead all of the premiums it had collected from the Dodds, totaling $2,079.80. The trial court agreed to hold the funds until the conclusion of the Dodds’ appeal.

The Court of Appeals affirmed the trial court in part, reversed in part, and remanded for further proceedings on the plaintiffs’ breach of contract claim. Dodd, 956 N.E.2d at 770. We granted transfer, thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A), and we now affirm the trial court.

The Dodds’ appellate briefs describe these proceedings as an appeal from summary judgment. Appellants’ Br. at 8, 20; Appellants’ Reply Br. at 4. Their challenge to the grant of summary judgment is predicated upon the contention that American Family was not entitled to void or rescind the policy because it had not first returned all paid premium amounts to the Dodds.

On summary judgment, we review an appeal through the same lens as that used by the trial court. Hardy v. Hardy, 963 N.E .2d 470, 473 (Ind.2012). Summary judgment is proper only when the moving party demonstrates that there is no genuine issue of material fact with respect to a claim or its elements. Woodruff v. Ind. Family & Soc. Servs. Admin., 964 N.E.2d 784, 790 (Ind.2012). Once this prima facie case is made, the non-moving party bears the burden of coming forward with designated evidence to demonstrate the existence of a genuine issue of material fact. Id. All evidence, and the reasonable inferences drawn from it, must be construed in favor of the non-moving party. Id. If the facts are undisputed, we reverse only if the law has been incorrectly applied to those facts; but in all cases we may affirm on any theory supported by the evidence in the record. Id.

It is correct that an insurer must first offer to return the premiums it has collected from the insured within a reasonable time after the discovery of the alleged breach. Grand Lodge of Bhd. of R.R. Trainmen v. Clark, 189 Ind. 373, 380, 127 N.E. 280, 282 (1920). Failure to offer such return of premiums, or if refused, to pay it into court, constitutes a waiver of the alleged fraud. Id. at 379, 127 N.E. 280; Prudential Ins. Co. v. Smith, 231 Ind. 403, 412-13, 108 N.E.2d 61, 65 (1952). However, in response to American Family’s motion for summary judgment, the Dodds did not assert any claim that American Family had failed to tender the premiums paid or that such failure was a prerequisite to the voiding of an insurance policy on grounds of material misrepresentations in the policy application. Further, the Dodds did not identify any designated evidence showing any failure by American Family to tender the paid premiums. This issue was thus not before the trial court when it granted summary judgment. The issue was first raised by the Dodds in their subsequent motion to correct error.

Even if this argument had been made and supported on summary judgment, the law provides an exception to the requirement that an insurer tender a return of the premiums in order to rescind a contract. Under this exception, “such a tender is not necessary where ... the insurer has paid a claim thereon which is greater in amount than the premiums paid.” Am. Standard Ins. Co. v. Durham, 403 N.E.2d 879, 881 (Ind.Ct.App.1980) (alteration in original) (quoting 6 Couch on Insurance 779, §§ 34-35 (2d ed. 1961)); see also Great E. Cas. Co. v. Collins, 73 Ind.App. 207, 211, 126 N.E. 86, 87 (1920) (“The law, as well as equity and good conscience, does not require appellant to return the premiums where appellee was appellant’s debtor for more than the amount thereof”). The designated evidence shows that American Family had previously paid a claim to the Dodds, under the policy in question, for hail damage. Appellants’ App’x at 106; Tr. at 85-86. The Dodds dispute neither the claim nor the payment amount of $5,500. Appellants’ Br. at 5; Appellants’ App’x at 30; Appellee’s App’x at 240. Given that the amount of premiums at issue is $2,079.80, Appellee’s App’x at 1351, the Dodds could not prevail on their claim of failure to tender premiums — the premise upon which all of their appellate arguments are predicated.

Conclusion

We affirm the trial court’s grant of American Family’s motion for summary judgment, and the final judgment entered thereon. We further direct the trial court to release and return the tender of premiums to American Family.

RUCKER, DAVID, MASSA, and RUSH, JJ., concur.

      . In the Summary of the Argument section of their appellants' brief, the Dodds assert that, because the failure to return premiums precludes American Family from voiding or rescinding the insurance contract, American Family intentionally violated its continuing duty of coverage by failing to pay the Dodds' insurance claim, and is thus subject to liability for bad faith punitive damages. In their Argument section, the Dodds explain this contention, stating that the trial court erred in granting summary judgment on the question of punitive damages because the judge "did not see that where [American Family] did not return the policy premiums to the Dodds, [American Family] failed to void the policy as a matter of law.” Appellants' Br. at 19. The Dodds' claim of summary judgment error related to their claim for punitive damages is thus subsumed within their challenge to the summary judgment on grounds of the failure to tender or return premiums, which we reject.


text:
    In the Matter of Louis W. DENNEY, Respondent.
    No. 18S00-1104-DI-193.
    Supreme Court of Indiana.
    March 5, 2013.
   PUBLISHED ORDER FINDING MISCONDUCT AND IMPOSING DISCIPLINE

Upon review of the report of the hearing officer, the Honorable Jeffrey D. Todd, who was appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission’s “Verified Complaint for Disciplinary Action,” and the briefs of the parties, the Court finds that Respondent engaged in professional misconduct and imposes discipline on Respondent.

Facts: The Commission’s complaint consists of nine counts alleging misconduct occurring from 2003 through 2010. After a hearing that lasted more than two days, the hearing officer filed a 56-page report. The Court adopts by reference the hearing officer’s findings of fact regarding the charged misconduct. Briefly summarized, that misconduct includes:

• Neglecting clients’ cases, failing to do the work for which he was hired, failing to communicate with clients, failing to inform clients of the status of their cases, failing to inform clients of when hearings had been set or continued, failing to appear at a hearing, failing to inform clients of their appellate rights, and taking unilateral action in cases without his clients’ authorization.
• Charging unreasonable fees and failing to refund unearned fees, sharing fees with a non-lawyer, and failing to withdraw after termination of employment.
• Disobeying court orders to file an accounting and to provide a copy of a client’s file to the client, making scandalous and irrelevant accusations against a judge and others in support of a motion for a change of judge, and failing to cooperate with the Commission’s investigation into three grievances.

Some of the more egregious counts of misconduct include:

• Count 2: Respondent charged a criminal defendant $20,000, did minimal work, and refused to refund any of the fee, despite telling the Commission that he would refund $3,500 of it.
• Count 5: Respondent was paid $10,000 to represent a college student charged with several crimes, including two felonies. Conviction of a felony would disqualify him from his chosen profession as a special education teacher. Time was of the essence because the client could not take certain required classes until the matter was resolved. After about a year without resolution, the client hired another attorney for $8,500, requested his file, and demanded a refund of his fee. Two months after firing Respondent, the case was resolved by a plea agreement to two misdemeanors. Respondent did minimal work, failed to inform the client of a plea offer, failed to turn over the client’s papers to the client, and refused to refund any of the fee.
• Count 7: A client paid Respondent $5,500 to represent him in a pending divorce action. After a partially successful appeal and remand, Respondent failed to inform the client about nearly everything that happened in the case, including hearings; took a number of unilateral actions that affected the division of the marital property without consulting his client, including signing stipulations and filing an accounting; failed to obey a court order to submit a proposed amended decree; and failed to inform the client of court orders to take certain actions.
• Count 9: In a criminal case, Respondent obtained appointment of a special judge, who indicated a disinclination to grant further continuances of the trial. Respondent then filed a motion for change or disqualification of the judge based on personal bias against the client, supported by an affidavit of the client and a purported transcript of recorded conversations between the client and others. The transcript included excerpts of no relevance to the judge’s alleged personal bias on such topics as the judge’s alleged sexual relationships and the character of his former wife.

The Court finds the following facts in aggravation: (1) Respondent engaged in a pattern of misconduct over a period of years and committed multiple offenses; (2) Respondent obstructed the disciplinary proceedings by intentional failure to cooperate with the Commission’s investigation; (3) Respondent has substantial experience in the practice of law and his misconduct was easily avoidable; (4) Respondent has displayed indifference to making restitution or returning unearned fees to his clients; (5) Respondent’s misconduct was due in part to a selfish motive; (6) some of Respondent’s clients were vulnerable and reliant on Respondent; and (7) Respondent lacks insight into his misconduct and has shown little or no remorse. The Court accepts the hearing officer’s findings regarding facts in mitigation.

Violations: The Court finds that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

1.2(a): Failure to consult with a client about the means of achieving an objective.
1.3: Failure to act with reasonable diligence and promptness.
1.4(a): Failure to keep a client reasonably informed about the status of a matter and respond promptly to reasonable requests for information.
1.4(b): Failure to explain a matter to the extent reasonably necessary to permit a client to make informed decisions.
1.5(a): Making an agreement for, charging, or collecting an unreasonable fee.
1.15(d): Failure to deliver promptly to a client funds the client is entitled to receive and failure to render a full accounting regarding a chent’s property upon request by the client.
1.16(a)(3): Failure to withdraw from representation after being discharged.
1.16(d): After the termination of representation, failure to protect a client’s interests, failure to refund an unearned fee, and failure promptly to return to a client case file materials to which the client is entitled.
3.1: Asserting a position for which there is no non-frivolous basis in law or fact.
3.2: Failure to expedite litigation consistent with the interests of a client.
3.4(c): Knowingly disobeying an obligation under the rules of a tribunal.
4.4(a): Using means in representing a client that have no substantial purpose other than to embarrass, delay, or burden a third person.
5.4(a): Improperly sharing legal fees with a nonlawyer.
8.1(b): Failure to respond in a timely manner to the Commission’s demands for information.
8.4(d): Engaging in conduct prejudicial to the administration of justice.

Discipline: For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than three years, without automatic reinstatement, beginning April 15, 2013. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4). Reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur, except RUCKER, J., who dissents in part and would impose a one-year suspension without automatic reinstatement, as recommended by the hearing officer; and DAVID, J., who dissents in part and would disbar Respondent.

      . This reflect the current numbering of the rules. The content of some of the rules were numbered differently in prior versions in effect during some of the alleged misconduct.