author: Kirsch, Judge.

text:
    PICKET FENCE PROPERTY COMPANY, and Andrew Patrick, Appellant-Plaintiff, v. Chris DAVIS, Appellee-Defendant, and Madison County Auditor and Madison County Treasurer, Appellees-Intervenors.
    Court of Appeals Case No. 48A02-1710-MI-2493
    Court of Appeals of Indiana.
    Filed July 31, 2018 Rehearing denied October 5, 2018
    Appellant Pro Se: A.J. (Andrew) Patrick, Anderson, Indiana
    Attorneys for Appellees-Intervenors Madison County Auditor and Madison County Treasurer: Jeffrey K. Graham, John E. Woods, Graham, Regnier, Farrer & Wilson, P.C., Elwood, Indiana

      Andrew Patrick claims to be the successor-in-interest to original plaintiff Picket Fence Property Company, and this appears to not be in dispute.

      Defendant Chris Davis does not participate in this appeal, but we include him in the caption pursuant to Indiana Appellate Rule 17(A), which provides that a party in the trial court shall be a party on appeal.

   Kirsch, Judge.

[1] Picket Fence Property Company ("Picket Fence") successfully bid upon a certain property at a Madison County Commissioners' Certificate Sale and, thereafter, petitioned the Madison Circuit Court ("the trial court") for issuance of a tax deed for the property. The trial court issued an order that, in addition to granting the request for a tax deed, also stated that certain specified property taxes were waived - that is, not owed by the purchaser, Picket Fence. The Madison County Auditor and Madison County Treasurer intervened and sought a corrected order with regard to the property taxes owed by Picket Fence, and the trial court granted the request and issued two orders. Andrew Patrick ("Patrick"), as a successor to Picket Fence, filed a motion to compel, asserting that the Madison County Auditor needed to remove additional property taxes from his obligation, and the trial court denied Patrick's motion. Patrick appeals and raises four issues that we consolidate and restate as: whether the trial court erred when it determined that the Madison County Auditor and Madison County Treasurer were in compliance with the trial court's orders, which determined that Patrick owed taxes that accrued in 2015, the year of the Treasurer's Tax Sale, including those that accrued between the October 2015 Treasurer's Tax Sale and the April 2016 Commissioners' Certificate Sale.

[2] Asserting that Patrick's appeal is frivolous and in bad faith, the Madison County Auditor and Madison County Treasurer ask us to award appellate attorney's fees.

[3] We affirm.

Facts and Procedural History

[4] In 2015, the Madison County Treasurer compiled a list of properties that were delinquent in the payment of real estate taxes, including a parcel commonly known as 104 Morton Street, Anderson, Indiana ("the Property"), and, on October 26, 2015, Madison County conducted a Treasurer's Tax Sale ("the October 2015 Tax Sale") for various parcels, including the Property. Appellant's App. Vol. II at 11. The Property did not receive the statutory minimum bid and went unsold at the October 2015 Tax Sale. As a result, the Madison County Board of Commissioners ("Board of Commissioners") acquired a lien on the Property, pursuant to Indiana Code section 6-1.1-24-6, in the amount of the statutory minimum sale price. Thereafter, the Board of Commissioners held a Commissioners' Certificate Sale on April 8, 2016 ("the April 2016 Certificate Sale"), pursuant to Indiana Code section 6-1.1-24-6.1, and offered to sell, among other parcels, the county's interest in the Property.

[5] Picket Fence, as the successful bidder for the Property at the April 2016 Certificate Sale, purchased a certificate for the Property. After providing the required statutory notices to the property owner of record for the Property, Picket Fence filed a petition on August 22, 2016 with the trial court requesting issuance of a tax deed on the Property. Appellees' App. at 2-3. The trial court granted Picket Fence's petition and issued an order on September 26, 2016 ("the September 2016 Order"), directing the Madison County Auditor to execute and deliver a tax deed to Picket Fence. The September 2016 Order also included the following language concerning property taxes, which ultimately resulted in the present appeal:

IT IS FURTHER ORDERED that the 2015 Spring and 2015 Fall property taxes, payable Spring and Fall 2016, and the Spring 2016 property taxes, payable Spring 2017, are hereby waived.

Appellant's App. at 7.

[6] On October 26, 2016, the Madison County Auditor and Madison County Treasurer (together "Madison County") filed a motion to intervene and to correct errors, asserting that the September 2016 Order was in error in its determination of taxes because it (1) "extinguishes ... taxes and special assessments that accrued subsequent to the October 2015 Tax Sale" and (2) "also impermissibly orders Madison County to waive taxes which are not yet payable, contrary to Indiana's statutes." Appellant's App. Vol. II at 8-9. On February 21, 2017, after becoming aware of numerous other properties similarly situated to 104 Morton Street that were purchased by Picket Fence at the April 2016 Certificate Sale, Madison County filed a motion to consolidate, intervene, and for relief from orders, seeking to consolidate several cause numbers with the trial court's 104 Morton Street case and also re-asserting that relief from the September 2016 Order was appropriate because the order, which relieved Picket Fence of paying some taxes, "infringe(s) on Madison County's statutory duties" to determine and collect property taxes and "will unnecessarily burden Madison County and the taxpayers of Madison County." Id. at 4-5. Madison County asked the trial court to correct its September 2016 order and clarify that, pursuant to statute, Picket Fence was responsible for taxes accruing on and after January 2015, the year of the Treasurer's Tax Sale. Id. at 16 (arguing that "when the 2015 pay 2016 real estate property taxes became due, those amounts are due and owing by the Certificate Purchaser").

[7] Following a February 27, 2017 hearing, the trial court issued an order on March 31, 2017 ("the March 31 Order"), stating that the matter was governed by Indiana Code section 6-1.1-25-4(j) and that Madison County had complied with that statute's requirements while determining the taxes owed. More specifically, the March 31 Order stated, in relevant part:

3. The law describes what is to be removed from the tax duplicate before a deed is issued to a purchaser of a certificate of sale[.] ... [ Indiana Code section] 6-1.1-25-4 directs that the taxes, special assessments, interest[,] penalties and costs remaining due be removed from the tax duplicate and further directs that it be calculated as a mathematical number as the difference between:
a. The last minimum bid determined for the last tax sale plus any penalty associated with a delinquency not due at the tax sale but due before the certificate sale. Those two added together and
b. The amount paid for the certificate of sale subtracted therefrom.
4. The result of that mathematical problem is the amount the new owner does not have to pay. Any later taxes would be payable by the new owner.
5. The statute setting the parts of the minimum bid (6-1.1-24-5(e) ) include:
(1) The delinquent taxes and special assessments on each tract or item of real property;
(2) The taxes and special assessments on each tract or item of real property that are due and payable in the year of the sale, regardless of whether the taxes and special assessments are delinquent.
(3) All penalties which are due on the delinquencies;
(4) Three other items of cost and expenses of sale[.]
6. An order for a new deed in this case should indicate the taxes removed by the last minimum bid for the tax sale are not payable by the new owner.
7. That any tax due and payable in a year after the tax sale herein should be payable by the new owner[.]

Appellees' App. Vol. II at 11-12 (emphasis added).

[8] In April 2017, Madison County filed a Motion to Clarify Court's Order, advising the trial court that the parties were "unable to reach an agreement on the [e]ffect of the Court's March 31, 2017 Order" and asking the trial court to clarify "as the parties disagree on what effect the Court's Order has on any delinquent taxes on the parcels at issue in this action." Id. at 13-14. On April 17, 2017, the trial court conducted a hearing and thereafter issued a May 23, 2017 Clarification Order ("the May 23 Order"), which confirmed its ruling in the March 31 Order and stated in relevant part:

1. The question herein is determined by Indiana Code 6-1.1-25-4(j).
2. It states when a deed is issued to a purchaser of a certificate of sale, the auditor shall remove from the tax duplicate the taxes, special assessments, interest, penalties, and costs remaining due.
3. That section continues by removing from the tax duplicate the tax amount contained in the last minimum bid for the last tax sale as well as certain penalties.
4. Indiana Code 6-1.1-24-5(e) defines the tax parts of a minimum bid as
a) The delinquent taxes and special assessments on each tract or item of real property;
b) The taxes and special assessments on each tract or item of real property that are due and payable in the year of the sale, regardless of whether the taxes and special assessments are delinquent;
c) All penalties which are due on the delinquencies;
5. Any tax not included in the minimum bid taxes are left for the purchaser of a certificate of sale to pay.

Id. at 19 (emphasis added).

[9] Sometime in 2017, Patrick asserted a successor interest to Picket Fence, and, on June 22, 2017, Patrick filed his Motion to Compel, asking the trial court to compel the Madison County Auditor to remove all taxes, special assessments, interest, and penalties that occurred before the April 2016 Certificate Sale, including (1) Spring 2015/due Spring 2016 taxes and (2) Fall 2015/due Fall 2016 taxes. Appellees' App. at 20-22. The trial court conducted a hearing on September 11, 2017. At the hearing, counsel for Madison County argued that, pursuant to Indiana Code section 6-1.1-25-4(f), and consistent with the trial court's March 31 and May 23 Orders, Patrick was responsible for the taxes that accrued in the year of the tax sale, including those accruing after the October 2015 Tax Sale and before the April 2016 Certificate Sale, which Patrick was seeking to have removed from his tax obligation. Tr. Vol. II at 6-9, 13-14. Indiana Code section 6-1.1-25-4(f) states, in part:

(f) A tax deed executed under this chapter vests in the grantee an estate in fee simple absolute, free and clear of all liens and encumbrances created or suffered before or after the tax sale except those liens granted priority under federal law and the lien of the state or a political subdivision for taxes and special assessments which accrue subsequent to the sale [.] (Emphasis added.)

[10] Madison County's position was that the word "sale" in the statute's "subsequent to the sale" phrase refers to the Treasurer's Tax Sale, not the later Commissioners' Certificate Sale, and therefore, Patrick was responsible for the taxes that accrued after the October 2015 Tax Sale and before the April 2016 Certificate Sale. Tr. Vol. II at 6-8, 13-14. Counsel for Madison County summarized the issue:

We're arguing about ... What does sale mean? Does sale mean tax sale in the October or does it mean the April commissioner's sale and if it means the tax sale back in October then the county ... has complied with your orders. If it means what Mr. Patrick ... argued[,] then the county has not. So that in my opinion that's the stiletto by which you can solve this problem and decide whether or not the county has complied with these orders[,] by determining what sale means in 6-1.1-25-4 sub f.

Id. at 16-17.

[11] At the hearing, Madison County called as a witness Matthew Portner ("Portner"), who was general counsel at SRI Incorporated, a company that "[per]forms tax sales across Indiana[,]" in eighty-five of Indiana's ninety-two counties Id. at 30. His responsibilities included providing guidance to counties and keeping counties in compliance with the statutes. Portner provided an overview of the general tax sale process as follows:

So when the treasurer['s tax] sale occurs[,] if nobody purchases the lien[,] then by statute the auditor issues a certificate to the county commissioner....
And then that's when the county commissioners can take that certificate and sell it at a cheaper amount that['s] below the statutory minimum bid at the original [tax] sale.... And the difference between those two amounts is what should have been removed [from the tax rolls]. That's the only portion that should be removed. If there's taxes that become due and payable the next spring installment[,] those are required by statute to be paid by the certificate purchaser .

Id. at 14-15 (emphasis added). Portner said that "starting in January 2016 and moving forward [Patrick]'s going to be responsible to pay everything that becomes due and payable." Id. at 32-33. Portner testified that he had reviewed the trial court's March 31 Order and May 23 Clarification Order, and he opined that Madison County was in compliance with those Orders. Id. at 31.

[12] Madison County also called as a witness, Todd Culp ("Culp"), the Chief Deputy Auditor of Madison County at the time. Culp said that "the last installment that would have been wiped is the one that was due and payable in November 2015[,]" meaning that the last taxes that were removed from the tax duplicate - and for which Patrick was not responsible - were those that accrued in 2014 (due and payable in November 2015). Id. at 38. Culp explained that, when a person purchases a property at a certificate sale, as Patrick did, the county auditor is directed to remove from the tax duplicate certain taxes, specifically those that are due and payable in the year of the tax sale, pursuant to another subjection of Indiana Code section 6-1.1-25-4. Culp explained:

[ Indiana Code section] 6-1.1-25-4 directs that the taxes special assessments, interests, and penalties and costs remaining due be removed from the tax duplicate and further directs that it be calculated as a mathematical number is a difference between the last minimum bid determined for the last tax sale plus any penalties associated with the delinquency not due at the tax sale but due before the certificate sale. Those two (2) added together and the amount paid for the certificate sale subtracted there from. The result of that mathematical problem is the amount that the new owner does not have to pay. So he's bought the certificate at certificate sale, it points back to the treasurer sale in October and lists that minimum bid as the taxes that he does not have to pay so we have complied with the court's order and removed those from the tax duplicate.
....
[T]he entire tax bill that's due in that year is included on the tax sale in October, including the November installment so those are all removed from the record already .

Id. at 20-22 (emphasis added). Culp testified that he had reviewed the trial court's March 31 Order and the May 23 Order, and he confirmed that Madison County had complied with the trial court's orders. Id. at 20.

[13] On October 9, 2017, the trial court issued an Order denying Patrick's Motion to Compel and finding that Madison County was in compliance with the trial court's previous orders of March 31, 2017 and May 23, 2017. Appellant's App. Vol. II at 21. Patrick now appeals.

Discussion and Decision

[14] At the outset, we observe that Patrick has chosen to proceed pro se. It is well settled that pro se litigants are held to the same legal standards as licensed attorneys. Basic v. Amouri , 58 N.E.3d 980, 983 (Ind. Ct. App. 2016). This means that pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so. Id. at 983-84. These consequences include waiver for failure to present cogent argument on appeal. Id. at 984. While we prefer to decide issues on the merits, where the appellant's noncompliance with appellate rules is so substantial as to impede our consideration of the issues, we may deem the alleged errors waived. Id. "We will not become an 'advocate for a party, or address arguments that are inappropriate or too poorly developed or expressed to be understood.' " Id. (quoting Perry v. Anonymous Physician 1, 25 N.E.3d 103, 105 n.1 (Ind. Ct. App. 2014), trans. denied , cert. denied --- U.S. ----, 136 S.Ct. 227, 193 L.Ed.2d 132 (2015) ).

[15] Initially, we note that Patrick's appeal contains a number of procedural and substantive deficiencies. Appellate Rule 50(A)(2)(b) requires that an Appellant's Appendix "shall contain the appealed judgment or Order, including any written opinion, memorandum of decision, or findings of fact and conclusions thereon relating to the issues raised on appeal." Here, Patrick includes the October 9 Order, from which he appeals, but that October 9 Order was a one-sentence order that summarily denied Patrick's request to compel Madison County to remove additional taxes from the tax duplicate. The October 9 Order was a determination that the trial court's March 31 and May 23 Orders were correct, and those March and May orders are necessary to our determination of Patrick's claim, but neither is included in Patrick's Appendix, although Madison County provided the orders in their Appellees' Appendix. There are also instances where Patrick provides only a partial document in his Appendix, and the table of contents to his Appendix also refers to one or more documents that are not in it. See Appellant's App. Vol. I at 2 (citing to Motion to Compel at 19, but that motion is not at that page or otherwise included in Appendix); Appellant's App. Vol. II at 10 (providing only part of Madison County's Motion to Consolidate, Intervene, and Relief from Orders).

[16] As for his appellate brief, Patrick's statement of the issues fails to comply with Indiana Appellate Rule 46(A)(4), as his statement is unclear, making it difficult to determine the exact issues before this court. Indiana Appellate Rule 46(A)(6) provides, in part, that the appellant's statement of facts "shall be in narrative form and shall not be a witness by witness summary of the testimony"; however, Patrick's statement of facts, for the most part, recites quotes of argument made or testimony presented at the September 11, 2017 hearing, and his facts section cites to a standard of review, which is not proper for that section of the brief. Indiana Appellate Rule 46(A)(8) addresses the requirements for the argument section of an appellant's brief and states in pertinent part that the argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning, and each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on. In his argument section, Patrick devotes significant text to restating or quoting what Madison County argued at a hearing or in pleadings before the trial court, rather than developing coherent arguments in support of his own position. Our review of Patrick's claim or claims is impeded by the fact that his arguments are, in large part, too poorly developed or expressed to be understood.

[17] All of that being said, we prefer to decide cases on their merits, and thus we attempt to resolve the pending issues concerning the trial court's determination of the property taxes for which Patrick is responsible and Madison County's compliance with the relevant trial court orders.

I. Appeal of October 9 Order

[18] Patrick challenges the trial court's October 9 Order determining that Madison County was in compliance with the trial court's March 31 and May 23 Orders concerning property taxes owed by Patrick on the Property. Here, the dispute began after the trial court's September 2016 Order, which waived - that is, found that Patrick was not responsible for - the following: (1) the 2015 spring taxes, due in May 2016; (2) the 2015 fall property taxes, due in November 2016; and (3) the 2016 spring property taxes, due in May 2017. Madison County thereafter intervened and asked the trial court to correct its September 2016 Order and clarify that, pursuant to statute, Patrick was responsible for taxes accruing in the year of the Treasurer's Tax Sale and that his obligation was reduced only by a statutory mathematical formula involving the difference between the statutory tax sale minimum bid and the price paid for the certificate at the later April 2016 Certificate Sale. The trial court then issued the March 31 Order, which determined, in sum: (1) Patrick's claim was governed by Indiana Code section 6-1.1-25-4(j) ; (2) he was responsible for taxes due and payable in the year of the Tax Sale, here 2015, reduced only by the difference between the last minimum bid and the amount paid for the certificate; (3) "the taxes removed by the last minimum bid for the tax sale are not payable by the new owner" and (4) "any tax due and payable in a year after the tax sale herein should be payable by the new owner[.]" Appellees' App. Vol. II at 11-12.

[19] At Madison County's request for clarification, the May 23 Order confirmed the March 31 Order's determination and stated in relevant part: "Any tax not included in the minimum bid taxes are left for the purchaser of a certificate of sale to pay." Id. at 19. Patrick thereafter filed his motion to compel, asking that the trial court compel the Madison County Auditor to remove additional taxes from the tax duplicate, thereby continuing to claim that he did not owe the amount of taxes as calculated by the county. Following a September 2017 hearing, the trial court denied Patrick's motion, and it is from this denial that he now appeals.

[20] The trial court's decision was based upon its interpretation of one or more statutes. The interpretation of a statute is a question of law, a matter which we review de novo. Hall v. Terry , 837 N.E.2d 1095, 1098 (Ind. 2005) (citing In re 2002 Lake Cnty. Tax Sale, 818 N.E.2d 505, 507 (Ind. Ct. App. 2004) ).

[21] Indiana Code section 6-1.1-25-4(f) ("Subsection f") addressing the issuance of tax deeds, states, in relevant part:

(f) A tax deed executed under this chapter vests in the grantee an estate in fee simple absolute, free and clear of all liens and encumbrances created or suffered before or after the tax sale except those liens granted priority under federal law and the lien of the state or a political subdivision for taxes and special assessments which accrue subsequent to the sale and which are not removed under subsection (e). However, subject to subsection (g), the estate is subject to:
(1) all easements, covenants, declarations, and other deed restrictions shown by public records;
(2) laws, ordinances, and regulations concerning governmental police powers, including zoning, building, land use, improvements on the land, land division, and environmental protection; and
(3) liens and encumbrances created or suffered by the grantee.

(emphasis added).

[22] In finding that "any tax due and payable in a year after the tax sale herein should be payable by the new owner[,]" Appellees' App. Vol. II at 11-12, the trial court implicitly determined that "sale" - as used in Subsection f's phrase, "which accrue subsequent to the sale" - referred to the Tax Sale (in this case, the October 2015 Tax Sale) and not the later-held April 2016 Commissioners' Certificate Sale. On appeal, Patrick claims that the trial court was in error because the word "sale" means the Commissioners' Certificate Sale, such that he only owes the taxes that accrued subsequent to the April 2016 Commissioners' Sale. Appellant's Br. at 28. We disagree.

[23] "When interpreting a statute, our primary goal is to fulfill the legislature's intent." Jenner v. Bloomington Cellular Servs., Inc. , 77 N.E.3d 1232, 1238 (Ind. Ct. App. 2017), trans. denied . We start with the text of the statute, giving words their plain meaning. Id. ; see also Ind. Code § 1-1-4-1(1) ("Words and phrases shall be taken in their plain, or ordinary and usual, sense."). "Indeed, '[t]he best evidence of [legislative] intent is the language of the statute itself.' " Jenner , 77 N.E.3d at 1238 (quoting State v. Oddi-Smith , 878 N.E.2d 1245, 1248 (Ind. 2008) ).

[24] Here, Subsection f provides that the recipient of a tax deed receives an estate in fee simple, free and clear of all liens and encumbrances "created or suffered before or after the tax sale except ... the lien of the state or a political subdivision for taxes and special assessments which accrue subsequent to the sale [.] " The second reference in the same sentence to "the sale" clearly refers back to the prior-mentioned "tax sale." Based on the plain language of the statute, we find no support for Patrick's view that the second-referenced "sale" in the sentence means a Commissioners' Certificate Sale.

[25] A later subsection of the same statute further supports our determination. Indiana Code section 6-1.1-25-4(j) ("Subjection j") addresses the situation "[w]hen a deed is issued to a purchaser of a certificate of sale," as occurred in this case, and it directs the county auditor to remove some taxes from the tax duplicate. Subjection j states:

(j) When a deed is issued to a purchaser of a certificate of sale sold under IC 6-1.1-24-6.1, the county auditor shall, in the same manner that taxes are removed by certificate of error, remove from the tax duplicate the taxes, special assessments, interest, penalties, and costs remaining due as the difference between:
(1) the amount of:
(A) the last minimum bid under IC 6-1.1-24-5 ; plus
(B) any penalty associated with a delinquency that was not due until after the date of the sale under IC 6-1.1-24-5 but is due before the issuance of the certificate of sale, with respect to taxes included in the minimum bid that were not due at the time of the sale under IC 6-1.1-24-5 ; and
(2) the amount paid for the certificate of sale.

Subsection (j)(1)(B) of this statute discusses the delinquency that was "not due until after the date of the sale " but is due "before the issuance of the certificate of sale ." This language, which we note is used in the same sentence, purposefully distinguishes "the date of sale" from the "issuance of the certificate of sale," and, we find, reflects that "the date of sale" refers to the Tax Sale.

[26] Accordingly, we find that "subsequent to the sale" as used in Indiana Code section 6-1.1-25-4(f) means subsequent to the Tax Sale, not the later-held Certificate Sale; our determination is consistent with the trial court's March 31, May 23, and October 9 Orders, which found that "the taxes removed by the last minimum bid for the tax sale are not payable by [Patrick]" and "any tax due and payable in a year after the tax sale herein should be payable by [Patrick.]" Appellees' App. Vol. II at 11-12. The testimony of Culp and Portner further supports our statutory interpretation.

[27] Here, at the September 2017 hearing, Culp testified that "[i]n the last minimum bid[,] we've already taken off the tax bill between the tax sale and the commissioner's sale[,]" Tr. Vol. II at 24, such that the last tax installment that was "wiped is the one that was due and payable in November 2015" which would have been the taxes accruing in 2014 and payable in 2015. Id. at 38. This testimony reflects that taxes due and payable in 2015, the year of the Tax Sale, have been removed from the tax duplicates, and Patrick is not responsible for those taxes. Id. at 21-22 ("[T]he entire tax bill that's due in that year is included on the tax sale in October, including the November installment so those are all removed from the [tax] record already."). However, with regard to what accrues in 2015, Portner testified that "[a]nything [that] becomes due and payable after [January 1, 2016] is on the certificate purchaser to pay[,]" which means taxes accruing in Spring and Fall 2015, payable in 2016. That includes the taxes accruing after the October 2015 Tax Sale and before the April 2016 Certificate Sale. Both Culp and Portner testified that Madison County was in compliance with the trial court's March 31 and May 23 Orders. Tr. Vol. II at 20, 31.

[28] Given the record before us and our de novo review of the trial court's interpretation of the statutes in question, we find no error with the trial court's decision to deny Patrick's motion to compel.

II. Appellate Attorney's Fees

[29] Madison County asserts that Patrick's appeal was frivolous and in bad faith and asks us to award appellate attorney's fees. Indiana Appellate Rule 66(E) provides, in pertinent part: "The Court may assess damages if an appeal ... is frivolous or in bad faith. Damages shall be in the Court's discretion and may include attorney['s] fees." Our discretion to award attorney fees under Indiana Appellate Rule 66(E) is limited to instances when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay. Manous v. Manousogianakis , 824 N.E.2d 756, 767 (Ind. Ct. App. 2005) (citing Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003) ). Additionally, while Indiana Appellate Rule 66(E) provides this court with discretionary authority to award damages on appeal, we must use extreme restraint when exercising this power because of the potential chilling effect upon the exercise of the right to appeal. Id. A strong showing is required to justify an award of appellate damages, and the sanction is not imposed to punish mere lack of merit, but something more egregious. Id. at 767-68.

[30] Indiana appellate courts have formally categorized claims for appellate attorney fees into "procedural" and "substantive" bad faith claims. Id. at 768. Here, Madison County argues that an award of appellate attorney's fees is warranted based on both procedural and substantive failures. "Procedural bad faith occurs when a party flagrantly disregards the form and content requirements of the rules of appellate procedure, omits and misstates relevant facts appearing in the record, and files briefs written in a manner calculated to require the maximum expenditure of time both by the opposing party and the reviewing court." Id. "To prevail on a substantive bad faith claim, the party must show that the appellant's contentions and arguments are utterly devoid of all plausibility." Id.

[31] While we agree with Madison County that Patrick did not strictly comply with our procedural rules, and that his appeal arguably "require[d] the maximum expenditure of time both by the opposing party and this reviewing court," we nonetheless find that the flaws "do not rise to the level of egregiousness punishable under Appellate Rule 66(E)." Id. With regard to the claims of substantive bad faith, we cannot say that Patrick's claim is utterly devoid of all plausibility. After the trial court issued the September 2016 Order that waived certain taxes, Madison County intervened and requested a corrected order, which was issued on March 31, but the parties were unable to agree on the effect of the March 31 Order and requested an order of clarification, which was issued on May 23. There was continued disagreement and yet another order was issued on October 9. At least two hearings were held during the course of the proceedings. At the September 11, 2017 hearing, counsel for Madison County acknowledged, "The word sale [in Indiana Code section 6-1.1-25-4(f) ] appears to be the confusing part[,]" Tr. Vol. II at 6, and "[T]here's trying to be a statutory change to clear this up so hopefully we're not back here forever doing it again because this is clearly vexed us from very knowledgeable people on these laws[.]" Id. at 16. Given the statutes, claims, as well as the record before us, we conclude that an award of appellate attorney's fees is not warranted in this case.

[32] Affirmed.

[33] Baker, J., and Bradford, J., concur.

      Indiana Code section 6-1.1-24-5(e) provides, in relevant part, that a tract of real property may not be sold for an amount which is less than the sum of:
      (1) the delinquent taxes and special assessments on each tract or item of real property;
      (2) the taxes and special assessments on each tract or item of real property that are due and payable in the year of the sale, regardless of whether the taxes and special assessments are delinquent;
      (3) all penalties which are due on the delinquencies;
      (4) the amount prescribed by section 2(b)(3)(D) of this chapter reflecting the costs incurred by the county due to the sale;
      (5) any unpaid costs which are due under section 2(c) of this chapter from a prior tax sale; and
      (6) other reasonable expenses of collection, including title search expenses, uniform commercial code expenses, and reasonable attorney's fees incurred by the date of the sale. (Emphasis added).

      Picket Fence requested a tax deed pursuant to Indiana Code section 6-1.1-25-4.6, which provides that if the property owner of record does not redeem the property within the required time, the purchaser may petition the trial court for issuance of a tax deed.

      We observe the general principle that in Indiana real estate taxes are assessed for a year and are paid in two installments, on May 10 and November 10, of the following year. Ind. Code § 6-1.1-22-9(a).

      We note that, from the record before us, there appears to be no dispute between the parties that Patrick is entitled to a tax deed on the property.

      The "tax duplicate" refers to the county's roll of property taxes. See Ind. Code § 6-1.1-22-3 (directing the auditor of each county to prepare a roll of property taxes payable in that year for the county, and "This roll shall be known as the 'tax duplicate' " and shall show, among other things, the value of all the assessed property in the county and the person liable for the taxes on the assessed property).

      It is not clear from the record as to exactly when Patrick obtained a successor interest in Picket Fence.

      We note that Patrick did not challenge other aspects of the March 31 Order that determined that (1) Madison County was entitled to intervene and (2) Madison County's request to consolidate should be granted.

      Portner, like Culp, provided testimony about the specific taxes that were properly removed by the auditor, explaining that "everything due and payable within the year of the sale ... is part of the minimum bid" and gets removed, and that the Madison County Auditor did so in this case. Id. at 35-36.

      By way of example, the following is a paragraph from Patrick's Argument section, Appellant's Br. at 16:
      The original order could be interoperated [sic] as "sale" to mean execution of tax deed, and accrue to mean accrue, not due and payable; waving (Spring 15/pay16), (Fall 15/Pay16), and (Spring 16/Pay17). The final order essentially declared "sale" to mean the initial offering of sale, and accrue to mean due and payable , subsequent to the initial offering. Ordering, at its simplest, that (Spring 2015/pay 2016) taxes are to have accrue after October 2015; waving (Fall 2014/pay15), and prior. "Something is only worth what someone is willing to pay for it." (Publilius Syrus, 1st century BC).

      We note that, on appeal, Patrick does not appear to dispute that he owes the taxes that accrued after he purchased the certificate at the April 2016 Commissioners' Certificate Sale.

      Although we provided the statutory definition of "minimum bid" in Footnote 3, above, we note our agreement with Madison County's description: The minimum bid "is, effectively, the sum of all delinquent taxes, taxes due and payable in the year of the tax sale, and all penalties and costs associated with the sale." Appellees' Br. at 10.

      Madison County filed with this court a Motion to Strike, asking us to strike a portion of Patrick's Appellant's Brief, specifically the "Relief; unappealable taxes" section, which (1) refers to purported tax payments that Patrick had made following the trial court's October 9 Order and (2) asserts, without factual or record support, that SRI, the private company involved in tax sales, including this one, has "unclean hands." Appellant's Br. at 26. As the section addresses matters occurring in the trial court after the date of the appealed order, and also makes unsupported allegations, we grant Madison County's Motion to Strike by separate order.


source: Caselaw Access Project

author: Crone, Judge.

license: Public Domain

text:
    A.M., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner
    Court of Appeals Case No. 18A-JV-618
    Court of Appeals of Indiana.
    FILED August 20, 2018 Rehearing denied October 19, 2018
    Attorney for Appellant: Cara Schaefer Wieneke, Wieneke Law Office, LLC, Brooklyn, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General, Lee M. Stoy, Jr., Deputy Attorney General, Indianapolis, Indiana
   Crone, Judge.

Case Summary

[1] Fifteen-year-old A.M. was adjudicated a juvenile delinquent for conduct amounting to class B misdemeanor battery if committed by an adult. He was placed on parental supervision/probation. He subsequently committed criminal acts and violated other probation rules, and the State moved to modify his placement. The trial court held a dispositional hearing and modified his placement to the Department of Correction ("DOC"). A.M. now appeals, claiming that the trial court abused its discretion by relying on insufficient information and by failing to explain its reasons for modifying his placement to the DOC. He also contends that he was denied his constitutional right to the effective assistance of counsel during the modification hearing. Finding that the trial court acted within its discretion in modifying A.M.'s placement and concluding that A.M. was not denied his right to the effective assistance of counsel, we affirm.

Facts and Procedural History

[2] A.M., born in June 2002, is a teenager with a history of emotional and behavioral issues. At age eight, he began counseling to address his issues and was enrolled at an alternative school. In his seven years of attendance at the school, he was frequently truant and/or tardy and had multiple suspensions for fighting, "explosive rage," property destruction, e.g., throwing chairs and flipping desks, and violent acts against school personnel. Appellant's App. Vol. 2 at 65. At age ten, he had three true findings for acts amounting to class D felony battery with bodily injury if committed by an adult. He was put in parental placement under the supervision of the probation department. In the ensuing years, he had several suspensions from school and several referrals to the juvenile court, which were dismissed.

[3] In 2017, A.M. beat up a fellow teenager at the fairgrounds, and the victim required emergency room treatment for cuts on his face. This incident resulted in a true finding for acts amounting to class B misdemeanor disorderly conduct if committed by an adult. Again, A.M. was placed on supervised probation in his mother and stepfather's home. He was ordered to avoid all criminal activity, avoid possession and use of controlled substances, alcohol, and tobacco, attend school regularly, obey school rules and teachers, study for one hour per school night, obey his parents, abide by an 8:00 p.m. curfew, assist in meal preparation and clean up at home, prepare a list of long- and short-term goals, participate in mental health services and anger management counseling, submit a written apology to his victim, complete community service, and avoid all direct and indirect contact with a certain named individual. Id. at 77.

[4] Within two months of the supervised probation order, A.M. was a suspect in a burglary involving the residence of one of his classmates. Shortly thereafter, he was arrested for acts amounting to class B misdemeanor battery if committed by an adult, stemming from a physical altercation at the bus stop. He was suspected of alcohol use, expelled from his alternative school, and wanted by police for theft of a firearm. These developments prompted the State to seek a modification of A.M.'s placement to the DOC. At the hearing on the motion to modify, the parties stipulated to the redaction of the burglary- and alcohol-related allegations. A.M. admitted to the remaining allegations in the motion to modify, which included the battery allegation as well as the violation of several rules, including those related to his conduct and attendance at school, conduct at home, curfew, participation in counseling, and the no-contact order. The parties also stipulated to the admission of a police report in which A.M. admitted to stealing a handgun. The trial court issued a dispositional order finding that A.M. had committed criminal acts and violated several of the rules of his placement. The court modified his placement to the juvenile division of the DOC. A.M. now appeals the trial court's order. Additional facts will be provided as necessary.

Discussion and Decision

Section 1 - The trial court acted within its discretion in modifying A.M.'s placement.

[5] A.M. asserts that the trial court abused its discretion in modifying his placement. The disposition of a juvenile adjudicated a delinquent is a matter committed to the trial court's discretion, subject to the statutory considerations of the child's welfare, community safety, and the policy favoring the least harsh disposition. R.H. v. State , 937 N.E.2d 386, 388 (Ind. Ct. App. 2010). We review the trial court's dispositions and modification thereof for an abuse of discretion, which occurs if its decision is clearly against the logic and effect of the facts and circumstances before it or the reasonable inferences that may be drawn therefrom. Id. ; see also K.A. v. State , 775 N.E.2d 382, 386 (Ind. Ct. App. 2002) (applying abuse of discretion standard where juvenile challenged modification of placement to DOC following her violation of terms of suspended commitment), trans. denied . In determining whether a trial court has abused its discretion, we neither reweigh evidence nor judge witness credibility. Ripps v. State , 968 N.E.2d 323, 326 (Ind. Ct. App. 2012).

[6] The crux of A.M.'s argument is that the trial court modified his placement to the harshest option - the DOC - without sufficient information concerning his circumstances and without adequately explaining its reasons for doing so. Juvenile court proceedings are civil, not criminal, in nature. T.K. v. State , 899 N.E.2d 686, 687-88 (Ind. Ct. App. 2009). "[T]he goal of the juvenile process is rehabilitation so that the youth will not become a criminal as an adult." Id. As such, juvenile courts have a variety of placement choices. Id. Indiana Code Section 31-37-18-6 reads,

If consistent with the safety of the community and the best interest of the child, the juvenile court shall enter a dispositional decree that:
(1) is:
(A) in the least restrictive (most family like) and most appropriate setting available; and
(B) close to the parents' home, consistent with the best interest and special needs of the child;
(2) least interferes with family autonomy;
(3) is least disruptive of family life;
(4) imposes the least restraint on the freedom of the child and the child's parent, guardian, or custodian; and
(5) provides a reasonable opportunity for participation by the child's parent, guardian, or custodian.

[7] Indiana Code Section 31-37-18-9(a)(5) requires the trial court to state its reasons for the disposition chosen. This involves the trial court's issuance of written findings and conclusions concerning the child's care, treatment, rehabilitation, or placement; parental participation in the plan; efforts made to prevent the child's removal from the parent; family services offered; and the court's reasons for its disposition. Ind. Code § 31-37-18-9(a)(1)-(5).

[8] With respect to the sufficiency of the information to support the trial court's decision, we note that the trial court specifically incorporated by reference all the pleadings and papers of the service providers and probation department. Appellant's App. Vol. 2 at 137. These documents include probation department reports and correspondence, A.M.'s lengthy school disciplinary record, his juvenile criminal history, including victim incident reports, his records from the counseling center, and the police report in which he admitted to having recently stolen a handgun. In short, there is no dearth of information in the record to support the trial court's modification order. A.M.'s claims to the contrary amount to invitations to reweigh evidence, which we may not do. See Ripps , 968 N.E.2d at 326.

[9] A.M. also claims that the trial court committed reversible error in failing to adequately explain its reasons for modifying his placement. We disagree. The trial court specified several reasons in its dispositional order, including that A.M. committed battery while in his current placement, left home without permission, made verbal threats to his family, was expelled from school, failed to abide by the court-ordered curfew, failed to comply with counseling services, and continued to have contact with the named individual with whom all contact was prohibited. Appellant's App. Vol. 2 at 134, 136-37. The court concluded, in relevant part,

That by reason of the foregoing facts the Court finds respondent child has not behaved well, is effectively beyond the control of his parent(s).
The Court further finds that reasonable efforts were made to prevent the child's removal from the child's parent(s) by placing subject on formal supervision on October 30, 2017, and [he] has failed to abide by and comply with Rules of Supervision set forth by the Court on that date, and as more fully outlined in the Modification Report and Request for Modification of Dispositional Decree filed herein.
The child needs further family preservation services of care, treatment, and rehabilitation that the parent cannot offer at this time. The removal of the child was authorized and necessary as remaining in the home would be contrary to the best interests and safety and welfare of the child. Reasonable efforts to prevent the removal of the child from his home have been made and as set forth in the pleadings and papers of the Probation and or all other service providers filed herein are incorporated by reference. It is in the best interests and safety and welfare of the child to remain outside of the parent's custody.
This disposition is consistent with the safety and the best interest of the child and is the least restrictive and most appropriate setting available close to the parent's home, least interferes with the family autonomy, is least disruptive of family life, and imposes the least restraint on the freedom of the child and the child's parents.

Id. at 137.

[10] The record indicates that A.M.'s expulsion from his alternative school was a significant factor in evaluating his best interest. Probation officer reports and testimony show that due to excessive absences, tardies, suspensions, and eventual expulsion, A.M. was receiving only three to four hours of education each week and that his best interest would be to attend school while in the DOC. See Tr. Vol. 2 at 6. The trial court expressed its concern not only about A.M.'s continued rule-breaking and criminal conduct but also about the impact on his education and his prospects for resuming a full-time education, a critical piece of his rehabilitation:

[A.M.], back at the end of October of last year you were here for disposition and you were placed upon supervision with certain rules. One of those basic rules was to quit taking actions which would be crimes if committed by an adult. It looks like you chose not to abide by that rule. You were to abide by the rules of your parent. You chose not to abide by that rule. You're not getting an education. You're committing acts which would be crimes, felonies, major crimes. I'm going to adopt the recommendation from my Probation Department and direct that your wardship be placed with the Indiana Department of Corrections, Juvenile Division, for completion of that program. How long you are there is largely determined by your attitude and the effort you place to complete that program. It is my hope that you will be successful in that program, and that you take a good attitude to that.

Id. at 7-8.

[11] Loss of parental control was also a critical factor in the trial court's decision. For the preceding eight years, A.M. was placed in less restrictive placements with parental supervision. These simply did not work. He continued to commit violent acts both in and out of school. He demonstrated no respect for the rules of his supervised placement, disregarded his court-imposed curfew, and disobeyed his mother and stepfather. His family relationships declined to the point where he left home for extended periods and threatened his family when they reported him to probation officers. These circumstances do not bode well concerning A.M.'s prospects for success with less restrictive options such as electronic monitoring or in-home detention.

[12] A.M. argues that the trial court should have conducted a more thorough inquiry into various issues such as the effect of his emotional disability on his conduct and his prospects for successful rehabilitation through less restrictive placement options. The court considered the school's expulsion report, which stated that the expulsion committee found no connection between A.M.'s conduct and his emotional disability. Moreover, the counseling center reports indicate that A.M. made little to no progress during his supervised placement in this case. The probation department found him to be a danger to himself and others and concluded that the DOC would provide him with the best chance of receiving an education and the services he needs to reform. Simply put, A.M.'s lengthy record of criminal and behavioral issues spans several years, and time after time, he has been afforded less restrictive placements and has failed to respond positively. The trial court found that given the loss of parental control and A.M.'s expulsion from school, these failed placement options are no longer viable. The trial court acted within its discretion in modifying A.M.'s placement to the DOC.

Section 2 - A.M. was not denied his constitutional right to effective assistance of counsel.

[13] Finally, A.M. maintains that he was denied his constitutional right to the effective assistance of counsel at the disposition modification hearing. Raising ineffectiveness of counsel on direct appeal is permissible, but in doing so, the defendant proceeds without the benefit of a developed record and will be barred by res judicata from raising the issue in subsequent proceedings. Brewington v. State , 7 N.E.3d 946, 978 (Ind. 2014), cert. denied (2015).

[14] The Sixth Amendment to the U.S. Constitution and Article 1, Section 13 of the Indiana Constitution guarantee a criminal defendant the right to counsel. The Supreme Court of the United States "has recognized that 'the right to counsel is the right to the effective assistance of counsel.' " Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (quoting McMann v. Richardson , 397 U.S. 759, 771, n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) ). The parties do not dispute that juveniles also have a constitutional right to counsel. See also Ind. Code §§ 31-32-2-2, 31-32-4-1 (expressing juvenile's statutory right to counsel). However, the parties disagree concerning the appropriate standard to be applied to an ineffective assistance claim in the context of juvenile delinquency disposition modification proceedings. A.M. maintains that his attorney's performance must be assessed according to the two-pronged test found in Strickland . 466 U.S. at 687, 104 S.Ct. 2052. The Strickland test, rooted in the Sixth Amendment, requires the defendant to demonstrate both deficient performance and prejudice resulting from it. Id. ; Ritchie v. State , 875 N.E.2d 706, 714 (Ind. 2007). A.M. relies on S.T. v. State , 764 N.E.2d 632, 634-35 (Ind. 2002), which applied the Strickland test in evaluating counsel's performance during a juvenile delinquency adjudication. The State relies on In re Gault , 387 U.S. 1, 35-41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), where the United States Supreme Court held that a juvenile has a right to counsel during delinquency proceedings and that this right is rooted in the Due Process Clause of the Fourteenth Amendment rather than in the Sixth Amendment. There is a lack of clarity and consistency among and even within jurisdictions concerning the source and applicability of the constitutional right to counsel enjoyed by juveniles in delinquency proceedings.

[15] Under a due process analysis, the reviewing court applies a less stringent standard in reviewing counsel's performance: "If counsel appeared and represented the petitioner in a procedurally fair setting which resulted in a judgment of the court, it is not necessary to judge his performance by rigorous standards." Jordan v. State , 60 N.E.3d 1062, 1068 (Ind. Ct. App. 2016) (quoting Childers v. State , 656 N.E.2d 514, 517 (Ind. Ct. App. 1995), trans. denied (1996) ). This less stringent standard has been applied to assess counsel's performance in post-conviction proceedings, Baum v. State , 533 N.E.2d 1200, 1201 (Ind. 1989), and in probation revocation proceedings, Jordan , 60 N.E.3d at 1069.

[16] Indiana courts have not squarely addressed whether the two-pronged Strickland test or the due process test is the proper test to be used in analyzing the effectiveness of juvenile's counsel during the various phases of delinquency proceedings, and we encourage our supreme court to provide guidance in this area. A.M. correctly observes that the S.T. court applied the Strickland test in assessing counsel's performance during his juvenile delinquency adjudication. 764 N.E.2d at 634-35. However, there is no indication that the court considered or mandated that standard for pre- or post-adjudicative phases. Id. S.T.'s ineffective assistance claim pertained to counsel's performance during the delinquency adjudication phase, not the pre-adjudicative or post-adjudicative phases. Id. at 634. The Gault court noted a distinction between the various phases of juvenile proceedings:

We do not in this opinion consider the impact of these constitutional provisions upon the totality of the relationship of the juvenile and the state. We do not even consider the entire process relating to juvenile "delinquents." For example, we are not here concerned with the procedures or constitutional rights applicable to the pre-judicial stages of the juvenile process, nor do we direct our attention to the post-adjudicative or dispositional process. We consider only the problems presented to us by this case. These relate to the proceedings by which a determination is made as to whether a juvenile is a "delinquent" as a result of alleged misconduct on his part, with the consequence that he may be committed to a state institution. As to these proceedings, there appears to be little current dissent from the proposition that the Due Process Clause has a role to play. The problem is to ascertain the precise impact of the due process requirement upon such proceedings.

387 U.S. at 13-14, 87 S.Ct. 1428 (citation omitted).

[17] We believe that these proceedings - not for the delinquency adjudication itself but for a modification of the disposition - are most akin to probation revocation proceedings, which are quasi-civil in nature and involve the factual determination that the probationer has violated a term of his probation followed by the entry of a disposition modification or revocation. See Woods v. State , 892 N.E.2d 637, 640 (Ind. 2008) (in probation revocation proceedings, trial court first determines whether a violation occurred and then determines whether the violation warrants revocation). As such, much like in the case of a probationer, counsel's appearance for and representation of a juvenile in a procedurally fair setting resulting in judgment would make it unnecessary to judge his performance by Strickland 's more rigorous standards. See Jordan , 60 N.E.3d at 1068.

[18] A.M. claims that counsel did nothing to promote his interests, and thus he essentially received no assistance from counsel. We disagree. The record shows that counsel negotiated a stipulation with the State whereby three of the allegations in support of modification were redacted; these allegations were that A.M. possessed an alcoholic beverage, consumed an alcoholic beverage on a school bus, and committed burglary. These alleged acts were not only violations of A.M.'s supervised probation rules but also criminal conduct that could have resulted in additional true findings. As such, the negotiation of the stipulation was neither insignificant nor against A.M.'s best interest. In this respect, we note that even under the Strickland test, this evidence supports a finding of effective, not deficient, performance. To the extent that A.M. focuses on the result, "the harshest disposition available," as evidence of ineffective assistance, this argument improperly presupposes that any client who ultimately receives the maximum sentence or harshest penalty otherwise allowed by law necessarily received ineffective assistance of counsel. Appellant's Reply Br. at 13. As discussed, it was A.M.'s continued failure to adhere to the law and the rules of his placement that caused his placement to be modified to the most restrictive option.

[19] A.M. also cites counsel's closing remarks as evidence that counsel essentially had given up and failed to advocate for his best interest:

[Counsel]: I am befuddled by the actions of [A.M.]. I think he's a good kid. I think he's got a bright future ahead of him. He's smart, has some real opportunities, but the path he's going down is leading him to prison and he's just going to end up wallowing away there, probably spend most of his life there. You don't break into people's houses, you don't steal guns, don't follow the rules, get kicked out of school. You don't get an education and that's going to end up being his downfall. I think except for being kicked out of [school], he could have had an opportunity here. He could have been on home detention and shown everybody that he could do right. Instead he's going to go to the DOC, go to Logansport for an evaluation, do his six months, eight months or a year, as long as he does right, and hopefully will come back and have learned a lesson. I have a lot of hope for [A.M.]. I hope he understands that what's going to happen here is not a punishment but rather a chance to get a leg up in life and to try to do the right thing. I hope he does good, and when he comes back he can really grow and be a good kid.

Tr. Vol. 2 at 6-7.

[20] Counsel's closing remarks do not amount to a violation of A.M.'s right to the effective assistance of counsel, whether under a due process analysis or a Strickland analysis. Under a due process analysis, counsel appeared at a procedurally fair modification hearing and negotiated a redaction of three allegations against A.M., all involving criminal conduct. Based on the foregoing, we conclude that A.M. has failed to meet his burden of establishing that he was denied his constitutional right to counsel during his disposition modification proceedings. Consequently, we affirm.

[21] Affirmed.

Bailey, J., and Brown, J., concur.

      In his reply brief, A.M. claims that the trial court erred in failing to advise him of his right to appeal the modification order. Because he did not raise the issue in his primary brief, it is waived. See French v. State , 778 N.E.2d 816, 825-26 (Ind. 2002) (issues raised for the first time in appellant's reply brief are waived).

      See , e.g. , People v. Austin M. , 363 Ill.Dec. 220, 975 N.E.2d 22, 39 (2012) (holding that minors in delinquency proceedings have right to a defense attorney, and in particular, the effective assistance of counsel as recognized in Gault ); State in Interest of W.B. , 206 So.3d 974, 985 (La. Ct. App. 2016) (applying two-pronged Strickland test in assessing counsel's performance during juvenile delinquency adjudication hearing); State ex rel. K.M.T. , 18 So.3d 183, 192 (La. Ct. App. 2009) (noting Gault 's distinction between adjudication phase and disposition phase in juvenile proceedings and then applying Strickland 's two-pronged test and concluding that minor failed to establish ineffective assistance of counsel during either phase); In re Parris W. , 363 Md. 717, 770 A.2d 202, 206-07 (Md. Ct. Spec. App. 2001) (citing Gault concerning source of juvenile's right to counsel as due process clause and applying Strickland 's two-pronged test for assessing counsel's performance); In re C.S. , 115 Ohio St.3d 267, 874 N.E.2d 1177, 1187-88 (2007) (adopting Gault analysis, finding that juvenile's right to counsel arises from due process); In re C.R. , No. 13CA3411, 2014 WL 1875787, at *5 (Ohio Ct. App. Apr. 30, 2014) (applying Strickland 's two-pronged test to ineffective assistance claim in juvenile proceeding to determine juvenile's offender classification); In re K.J.O. , 27 S.W.3d 340, 342-43 (Tex. Ct. App. 2000) (concluding that although juvenile delinquency trial is civil proceeding, it is quasi-criminal, thus guaranteeing juvenile the right to effective assistance of counsel per Strickland ); and In Interest of LDO , 858 P.2d 553, 556 (Wyo. 1993) (applying Strickland 's two-pronged analysis for evaluating counsel's performance during juvenile delinquency adjudication hearing). Essentially, it appears that the courts that are applying Gault 's holding that a juvenile has a due process right to counsel during delinquency proceedings per the Fifth and Fourteenth Amendments are often applying a Strickland analysis, rooted in the Sixth Amendment, when analyzing the effectiveness of the juvenile's counsel during the adjudication phase, or in the case of C.R. , to the juvenile offender classification phase. See C.R. , 2014 WL 1875787, at *5. Whether the various courts have intentionally considered and rejected an alternate analysis or simply defaulted to a Strickland analysis is not apparent.

      Under Strickland , counsel's remarks do not amount to deficient performance, especially when considered together with the negotiated redactions. Nor does the mere fact that A.M. received the harshest available placement amount to a showing of prejudice under Strickland . See Strickland , 466 U.S. at 694, 104 S.Ct. 2052 (prejudice prong necessitates showing of reasonable probability that but for counsel's deficient performance, the outcome would have been different).


author: Robb, Judge.

text:
    Nathan HEALEY, Appellant-Petitioner, v. Robert CARTER, Commissioner of the Indiana Department of Corrections, et al., Appellees-Respondents.
    Court of Appeals Case No. 76A03-1711-MI-2681
    Court of Appeals of Indiana.
    FILED August 21, 2018
    Attorney for Appellant: Michael D. Dean, Gibson Law Office, Lafayette, Indiana
    Attorneys for Appellee Robert Carter: Curtis T. Hill, Jr., Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, Indiana
   Robb, Judge.

Case Summary and Issue

[1] Nathan Healey pleaded guilty to criminal confinement, a Class D felony. Following his release from the Indiana Department of Correction ("DOC"), the DOC required Healey to register as a sex offender, even though Healey did not plead to the circumstances in which criminal confinement constitutes a sex offense. Having registered as a sex offender in the years since his release, Healey brought this declaratory judgment action seeking relief from the DOC's determination that he must register as a sex offender. The trial court denied Healey's petition along with a subsequent motion to correct errors. Healey now appeals raising the sole issue of whether the trial court erred in denying his petition for declaratory relief. Concluding the trial court did not err, we affirm.

Facts and Procedural History

[2] On July 4, 2007, Healey was charged with criminal confinement against a child, a Class C felony, and battery against a child resulting in bodily injury, a Class D felony. Seventeen months later, an additional count was added to the information charging Healey with criminal confinement, a Class D felony. In May 2009, Healey pleaded guilty to criminal confinement, a Class D felony, and, pursuant to the written plea agreement, the remaining charges were dismissed. Healey was sentenced to three years with all but 270 days suspended.

[3] After Healey served his executed sentence, the DOC required him to register as a sex offender for life because the victim of Healey's offense was less than "twelve (12) years of age at the time of the crime." Ind. Code § 11-8-8-19(c) (2007) ; see Appellant's Second Amended Appendix, Volume 2 at 16. Healey registered on June 16, 2009.

[4] On May 3, 2017, Healey filed a verified petition for declaratory relief, asking to be relieved of his duty to register as a sex offender because he never pleaded to the age of the victim. Healey named the commissioner of the DOC, Robert Carter; the Steuben County prosecutor; and the Steuben County sheriff as respondents. Carter responded to Healey's petition through counsel, the Indiana Attorney General, seeking dismissal, or in the alternative, denial of relief.

[5] The parties waived a formal evidentiary hearing and instead submitted a joint stipulation of facts to the trial court. On September 6, 2017, the trial court issued its Order:

1. On December 30, 2008 Healey was charged with having committed the offense of criminal confinement as set forth at Ind. Code 35-42-3-3(a)(1), a Class D Felony.
2. The crime for which Healey was charged with having committed [sic] occurred on July 4, 2007.
3. On July 4, 2007, Ind. Code 35-42-3-3(a)(1) provided as follows:
"(a) A person who knowingly or intentionally: (1) confines another person without the other person's consent; ...commits criminal confinement. Except as provided in subsection (b), the offense of criminal confinement is a Class D Felony."
4. The criminal charge identified the victim as "Z.M." The age of Z.M. was not set forth in the criminal charge.
5. On July 4, 2007, Ind. Code 11-8-8-4.5 set forth those crimes for which if a person should be convicted of having committed [sic] would mandate the person to register as a sex offender.
6. Ind. Code 11-8-8-4.5(12) provided as follows:
"(12) Criminal confinement ( IC 35-42-3-3 ), if the victim is less than eighteen (18) years of age, and the person who confined or removed the victim is not the victim's parent or guardian."
7. On May 9, 2009, Healey entered a plea of guilty to having committed the offense of criminal confinement as charged under the provisions of Ind. Code 35-42-3-3(a)(1), and thereafter was sentenced in accordance with his Plea Agreement.
8. Healey does not contend that he was unaware of the fact that the victim of his crime was under the age of eighteen (18) years. Further, Healey does not contend that he was the parent or guardian of Z.M.
9. Healey argues that requiring him to register as a sex offender is a penalty or punishment that is based upon a fact to which he did not plead guilty.
10. It is true that the State's charging information regarding Count III was silent as to the age of Z.M., and to his relationship to Z.M.
11. Ind. Code 35-42-3-3(a)(1) does not set forth the age of the victim as an element of the offense which must be proven by the State by proof beyond a reasonable doubt.
12. Ind. Code 35-42-3-3(a)(1) does not set forth the relationship of the Defendant to the victim as being an element of the offense of criminal confinement which must be proven by the State by proof beyond a reasonable doubt.
13. In the case of Nichols v. State , 947 N.E.2d 1011 (Ind. [Ct.] App. 2011) the Court at page 1017 held:
"The Sex Offender Registration Act requires that the DOC maintain a registry of sex offenders, and requires that offenders register with the Department. Placement on the Registry is mandatory, and the Act affords neither the trial court nor the DOC any discretion in the matter of the registration requirement....Plea agreements have no effect on operation of the Act..." (Citations omitted) (Quotation marks omitted)
14. In accordance with existing Indiana Law the moment the trial court entered judgment upon Healey's plea of guilty to the crime of criminal confinement his fate was sealed regarding whether he was or was not required to register as a sex offender all in accordance with law barring any constitutional infirmities with the enacted legislation.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED as follows:
1. [Carter's] Motion to Dismiss shall be denied.
2. Healey's Petition for Declaratory Relief shall be denied.

Appellant's Second Amended App., Vol, 2 at 39-42. Healey filed a motion to correct error which was similarly denied. Healey now appeals.

Discussion and Decision

[6] Healey contends the trial court abused its discretion by denying his petition for declaratory judgment because the trial court may review the constitutionality of agency decisions and because the DOC's registration requirement violated his Sixth Amendment right to a trial by jury.

I. Standard of Review

[7] We review a trial court's ruling on a motion to correct error for an abuse of discretion. Kashman v. Haas , 766 N.E.2d 417, 419 (Ind. Ct. App. 2002). And where, as here, the issues involve matters of law, we review the trial court's decision de novo. City of Indianapolis v. Hicks , 932 N.E.2d 227, 230 (Ind. Ct. App. 2010), trans. denied.

II. Judicial Review

[8] Healey claims the trial court erred in concluding "that it did not have authority to rule on the constitutionality of a sex offender registration decision made by the [DOC]." Appellant's Brief at 11. Specifically, the trial court concluded:

14. In accordance with existing Indiana Law the moment the trial court entered judgment upon Healey's plea of guilty to the crime of criminal confinement his fate was sealed regarding whether he was or was not required to register as a sex offender all in accordance with law barring any constitutional infirmities with the enacted legislation.

Appellant's Second Amended App., Vol. 2 at 42. Viewed in the context of Healey's Sixth Amendment claim, the trial court's order could be read as concluding it lacked subject-matter jurisdiction to review a DOC action, "barring any constitutional infirmities with the enacted legislation." Id.

[9] In 1994, Congress adopted the Jacob Wetterling Crimes Against Children and Sexually Violent Offenders Registration Act to encourage individual states to adopt sex offender registration statutes. Wallace v. State , 905 N.E.2d 371, 374 (Ind. 2009). Soon thereafter, the Indiana General Assembly adopted the Sex Offender Registration Act ("SORA"), also known as "Zachary's Law," which required persons convicted of certain sex crimes to register as "sex offender[s]." Id. at 375 (citing Act of March 2, 1994, Pub.L. No. 11-1994, § 7). SORA originally applied to eight crimes and included both registration and notification provisions. Id. Since then, SORA has been amended several times, and actively expanded "in both breadth and scope." Id.

[10] The General Assembly delegated administrative authority over SORA to the DOC. See Ind. Code § 11-8-2-12.4.

As an administrative agency, the DOC is governed generally by the Indiana Administrative Orders and Procedures Act ("IAOPA"). Pierce v. State Dep't of Correction , 885 N.E.2d 77, 88 (Ind. Ct. App. 2008). IAOPA provides the "exclusive means for judicial review of an agency action." Ind. Code § 4-21.5-5-1. The burden of demonstrating the invalidity of agency action is on the party asserting its invalidity. Ind. Code § 4-21.5-5-14(a). And, a reviewing court shall grant relief only if it determines that a person seeking judicial relief has been prejudiced by an agency action that is:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) contrary to constitutional right, power, privilege, or immunity;
(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(4) without observance of procedure required by law; or
(5) unsupported by substantial evidence.

Ind. Code § 4-21.5-5-14(d).

[11] The IAOPA expressly exempts "certain agency actions" of the DOC from administrative judicial review. Ind. Code § 4-21.5-2-5(6) (exempting "[a]n agency action related to an offender within the jurisdiction of the department of correction."). However, nothing in this provision prevents judicial review over alleged violations of constitutional protections and thus courts retain subject-matter jurisdiction to resolve controversies alleging DOC interference with a constitutional right, privilege, or immunity. Ratliff v. Cohn , 693 N.E.2d 530, 548 (Ind. 1998).

[12] Applied here, these statutes mean the trial court retained subject-matter jurisdiction to resolve Healey's constitutional claim alleging a violation of his Sixth Amendment right to a jury trial. Kirby v. State , 95 N.E.3d 518, 521 (Ind. 2018) (noting declaratory judgment actions are appropriate vehicle for a constitutional challenge of sex offender registration requirements); Greer v. Buss, 918 N.E.2d 607, 615 (Ind. Ct. App. 2009) (concluding declaratory judgment action was appropriate where defendants challenged sex offender registration requirement on constitutional grounds). Therefore, to the extent the trial court's order can be read to the contrary, it is erroneous.

II. The Sixth Amendment

[13] Having established the trial court retained subject-matter jurisdiction over Healey's claim, we proceed to its merits. Again, Healey alleges his registration requirement violates his Sixth Amendment right to a trial by jury. Healey's petition for declaratory judgment alleged:

[Healey] is entitled to declaratory judgment that he not be required to register as a sex offender. This is because his registration requirement constitutes a punishment or penalty that is based on a fact that he did not plead guilty to, and that was not found by a jury beyond a reasonable doubt.

Appellant's Second Amended App., Vol. 2 at 12, ¶ 9.

[14] In support of his request for a declaratory judgment, Healey cited Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Appellant's Second Amended App., Vol. 2 at 11, ¶ 7. In Apprendi , the Supreme Court declared that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. 2348. Four years later, Blakely v. Washington clarified that the statutory maximum referred to in Apprendi is "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 542 U.S. at 303, 124 S.Ct. 2531 (emphasis omitted). And, most recently, the Supreme Court made clear that "[i]n stating Apprendi 's rule, [it had] never distinguished one form of punishment from another. Instead, [the Supreme Court's] decisions broadly prohibit judicial factfinding that increases maximum criminal sentence[s], penalties, or punishment[s.]" S. Union Co. v. United States , 567 U.S. 343, 350, 132 S.Ct. 2344, 183 L.Ed.2d 318 (2012) (quotation marks omitted).

[15] Pursuant to Apprendi and its progeny, Healey argues the registration requirement imposes a penalty or punishment for the purposes of the Sixth Amendment and thus the underlying facts supporting the registration requirement-a determination the victim was under eighteen years old and that Healey was not the victim's parent or guardian-must have been admitted by him as part of his plea agreement. In turn, the State argues Healey's registration requirement is not part of Healey's sentence but a collateral consequence and Healey's registration requirement was therefore an operation of SORA itself. We agree with the State.

[16] First, we note Healey has failed to provide authority, or cogent argument, for the proposition that Apprendi and its progeny extend beyond judicial factfinding. After all, it was "judicial fact-finding that concerned the [Supreme] Court in Blakely. " Smylie v. State , 823 N.E.2d 679, 683 (Ind. 2005), cert. denied , 546 U.S. 976, 126 S.Ct. 545, 163 L.Ed.2d 459 (2005) ; see also S. Union Co. , 567 U.S. at 350, 132 S.Ct. 2344 (noting Apprendi and its progeny "broadly prohibit judicial factfinding that increases maximum criminal sentence[s], penalties, or punishment[s.]"). The issue presented here is not one of judicial fact-finding but rather a determination of the DOC pursuant to SORA.

[17] Secondly, we are unconvinced Healey's registration requirement constitutes a penalty or punishment for the purposes of the Sixth Amendment. When the legislature imposes restrictions on people convicted of certain crimes, those restrictions are not part of a sentence, but are collateral consequences. Kirby , 95 N.E.3d at 520. Indeed, "[a] criminal sentence is the punishment ordered by the trial court after conviction-nothing more." Id. (citing Black's Law Dictionary 1569 (10th ed. 2014) (defining "sentence" as "[t]he judgment that a court formally pronounces after finding a criminal defendant guilty") ). "Sex-offender registration itself is thus a collateral consequence." Id. (citing Chaidez v. United States , 568 U.S. 342, 349 n.5, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013) ). Therefore, we conclude Healey's registration requirement was a collateral consequence of his conviction for criminal confinement and not a penalty or punishment for the purposes of the Sixth Amendment.

[18] Healey pleaded guilty to criminal confinement pursuant to Indiana Code section 35-42-3-3(a)(1) (2007). The underlying charging information provided:

The undersigned says that on or about July 4, 2007 at and in Steuben County, State of Indiana. Nathan James Healey did knowingly or intentionally confine another person, to-wit: Z.M., without the consent of said person, all of which is contrary to the form of the statutes in such cases made and provided by I.C. 35-42-3-3(a)(1) and against the peace and dignity of the State of Indiana.

Appellant's Second Amended App., Vol. 2 at 27. At the time of Healey's offense, Indiana Code section 35-42-3-3 (2006) provided:

(a) A person who knowingly or intentionally:
(1) confines another person without the other person's consent;
...
commits criminal confinement. Except as provided in subsection (b), the offense of criminal confinement is a Class D felony.

[19] Although the criminal confinement statute provided for an enhancement from a Class D felony to a Class C felony where the victim of the crime was "less than fourteen (14) years of age and is not the confining or removing person's child," Ind. Code § 35-42-3-3(b)(1)(A) (2006), the legislature included the entire criminal confinement statute when defining both "sex offender" and "sex or violent offender." Ind. Code § 11-8-8-4.5(a)(12) (2007) ; Ind. Code § 11-8-8-5(a)(12) (2007). As discussed above, our legislature delegated administrative authority over SORA to the DOC, see Ind. Code § 11-8-2-12.4 (listing duties of the DOC), and the DOC is required to maintain the sex offender registry, Ind. Code §§ 11-8-2-12.4(1) - (2), (5) ; 11-8-2-13. Having included the requirements that criminal confinement constitutes a sex offense for purposes of the registry only when the "victim is less than eighteen (18) years of age, and the person who confined or removed the victim is not the victim's parent or guardian," under Title 11 of the Indiana Code, our legislature delegated the authority to make the necessary factual determination to the DOC. Ind. Code § 11-8-8-4.5(a)(12) (2007) ; Ind. Code § 11-8-8-5(a)(12) (2007). Quite simply, Healey pleaded guilty to criminal confinement, his victim was less than eighteen years old, and Healey was not the victim's parent or guardian; therefore, "[p]lacement on the Registry is mandatory, and the Act affords neither the trial court nor the DOC any discretion in the matter of the registration requirements." Nichols v. State , 947 N.E.2d 1011, 1017 (Ind. Ct. App. 2011).

III. Healey's Plea Agreement

[20] Comingled with his Sixth Amendment claim, Healey argues there were insufficient facts to warrant his registration requirement where the underlying charging information only provided the initials of the victim without providing the victim's age or relationship to Healey. As concluded above, because Healey's registration requirement was a collateral consequence to his conviction without Sixth Amendment implications, there was no constitutional requirement that he plead guilty to every fact warranting his registration requirement. Even in the absence of a constitutional requirement, however, the DOC cannot arbitrarily and capriciously designate sex offenders, and Healey contends the record is insufficient to support his designation. We conclude the record contained sufficient information for the DOC to determine Healey's registration requirement.

[21] When a person is convicted and sentenced to a term of imprisonment, as Healey was here, the trial court is obliged to provide certain documents to the DOC. Ind. Code § 35-38-1-14. Among these documents, the trial court must provide "any record made under IC 35-35-2," Ind. Code § 35-38-1-14(a)(4), which includes charging informations, Ind. Code § 35-35-2-1(a)(2). Moreover, Indiana Code section 11-8-8-9(d)(2) provides that for any sex or violent offender who is not committed to the DOC, the probation office of the sentencing court must provide the DOC with the sentencing order and presentence investigation, as well as "any other information required by the [DOC] to make a determination concerning sex or violent offender registration." (Emphasis added.) Having utilized such broad language, we conclude the legislature intended the DOC to look to any facts having a basis in the record to determine the offender's registration requirement.

[22] Healey was charged with criminal confinement against a child, a Class C felony, but pleaded guilty to the charge of criminal confinement, a Class D felony, naming "Z.M." as the victim of the offense. Appellant's Second Amended App., Vol. 2 at 27. In the charge of criminal confinement against a child, a Class C felony, the State alleged:

... Healey, did then and there recklessly, knowingly, or intentionally confine or remove another person, to-wit [redacted] a person less than fourteen (14) years of age, to-wit: 4 months old, whose date of birth is 02/07/2007, and is not the confining or removing person's child, by force from one place to another.

Id. at 25. Although the victim's name is redacted, considering the nature of the charge and amended information, it appears the victim was also Z.M. Moreover, Healey does not contend the victim was over eighteen years old, that he was the victim's parent or guardian, or that Z.M. was not the same victim for both charges. Although we do not view this as tantamount to a factual concession, we see no reason to question the DOC's determination. See Ind. Code § 4-21.5-5-14(a) ("The burden of demonstrating the invalidity of agency action is on the party to the judicial review proceeding asserting invalidity."). Accordingly, we conclude the record contained sufficient information to warrant Healey's registration requirement where he pleaded guilty to criminal confinement of Z.M.

[23] In his petition for declaratory relief, Healey also argued "it was part of the benefit of [Healey's] bargain to receive the less serious sentencing implications associated with the general confinement statute." Appellant's Second Amended App., Vol. 2 at 11, ¶ 4. Despite Healey abandoning such argument on appeal, we nevertheless find it relevant to the foregoing discussion and instructive regarding the operation of SORA. "[A] defendant receives the full benefit of his bargain when multiple charges are dismissed in accordance with the [plea] agreement." Sexton v. State , 968 N.E.2d 837, 841 (Ind. Ct. App. 2012), trans. denied. Here, pursuant to the plea agreement, Healey pleaded guilty to criminal confinement, a Class D felony, and the State dismissed the charges of criminal confinement against a child, a Class C felony, and battery against a child resulting in bodily injury, a Class D felony. See Appellant's Second Amended App., Vol. 2 at 28, 25-26. In Bethea v. State , our supreme court explained that where a plea bargain does not foreclose "the possibility of the trial court using enhancements from the underlying charges that were dismissed, or from the original charges from which a lesser included plea is taken[,] we hold it is not necessary for a trial court to turn a blind eye to the facts of the incident that brought the defendant before them." 983 N.E.2d 1134, 1145 (Ind. 2013). Here, of course, it was not the trial court looking to the underlying facts of Healey's conviction for a "sentencing implication[ ]," Appellant's Second Amended App., Vol. 2 at 11, ¶ 4, but rather the DOC making a determination as to Healey's registration requirement as a collateral consequence of his conviction, see supra ¶ 17. More importantly, however, while defendants remain free to bargain with the State regarding sentencing, the same is not true for registration requirements.

[24] In denying Healey's petition the trial court cited Nichols v. State , 947 N.E.2d 1011 ; we too find Nichols controlling. Nichols was charged with numerous counts of child molesting in separate cases arising in different counties. Nichols entered into plea agreements whereby he would plead guilty to two counts of child molesting as Class C felonies in the Hamilton County case, and to one count of child molesting as a Class C felony in the Tipton County case, and the remaining charges were dismissed. The plea agreement also recited each of the statutory requirements for sex offender registration for a ten-year period or for life. The trial court accepted the plea agreement and sentenced Nichols in an order stating that Nichols would be required to register as a sex offender for a period of ten years. Soon thereafter, the DOC notified the trial court that its order appeared in error because Nichols had committed unrelated offenses and was therefore required to register as a sex offender for life. Nichols filed a motion for correction of the sex offender registry, pointing to the terms of his plea agreement and requesting the trial court order the DOC to revise his registration obligation to a ten-year period. The trial court denied Nichols' motion and his subsequent motion to correct error.

[25] Nichols appealed, arguing, inter alia , the DOC improperly overruled the trial court's sentencing order and the lifetime registration requirement violated the terms of his plea agreement. The State argued the registration decision, "like decisions on prison placement, is within the discretion of the DOC and courts have no role in such decisions." Id. at 1016-17. On review, a panel of this court rejected both parties' arguments and reasoned the DOC did not "overrule[ ]" the trial court because the registration requirement is "a consequence of the operation of the Act itself." Id. at 1017 (quotation omitted). In so holding, the court looked to precedent establishing that "[p]lea agreements have no effect on the operation of the Act." Id. (citing In re G.B. , 709 N.E.2d 352, 356 (Ind. Ct. App. 1999) ). The court therefore concluded,

The DOC ... made a determination required by law as to the length of Nichols's reporting period in order to properly track information in the Registry. This period is determined by the statute itself-not by the plea agreement, not by the trial court, and not-contrary to the State's argument in its brief-by the DOC.

Id.

[26] We agree with the reasoning of the Nichols court. Healey pleaded guilty to the requisite crime of criminal confinement and admitted that Z.M. was the victim of the crime. Accordingly, Healey's registration requirement was "a consequence of the operation of the Act itself," id. at 1017, and the trial court did not abuse its discretion in denying Healey's motion to correct error seeking to have declaratory judgment granted in his favor.

Conclusion

[27] For the reasons set forth above, the trial court retained subject-matter jurisdiction to resolve Healey's constitutional claim and the trial court did not abuse its discretion in denying Healey's petition for declaratory judgment.

[28] Affirmed.

Najam, J., and Altice, J., concur.

      The other named respondents, Jeremy T. Musser, Steuben County Prosecuting Attorney, and Tim R. Troyer, Steuben County Sheriff, do not participate in this appeal.

      Although the Indiana Constitution Article 1, section 19 also confers the "right to have a jury determine the law and the facts," Healey made no separate argument based on the Indiana Constitution. Thus, Healey has forfeited any such claim. Klein v. State , 698 N.E.2d 296, 299 (Ind. 1998).
      We also note, and Healey concedes, criminal confinement became a "sex offense" when Indiana Code section 11-8-8-4.5 was amended effective July 1, 2007, to define a sex offender as a person who was convicted of criminal confinement "if the victim is less than eighteen (18) years of age, and the person who confined or removed the victim is not the victim's parent or guardian." See Appellant's Second Amended App., Vol. 2 at 11, ¶ 3. Healey's offense occurred July 4, 2007. Therefore, Healey's claim does not implicate constitutional prohibitions against ex post facto laws.


author: Vaidik, Chief Judge.

text:
    Crystal M. POWERS, Appellant-Petitioner, v. Bryan A. BLUNCK, Appellee-Respondent
    Court of Appeals Case No. 18A-DR-105
    Court of Appeals of Indiana.
    FILED August 22, 2018
    Appellant Pro Se: Crystal M. Powers, Jacksonville, Florida
    Case Summary
   Vaidik, Chief Judge.

[1] Crystal Powers ("Mother") appeals the trial court's denial of her motion to continue a custody-modification hearing. After the hearing, the court issued a written order in which it found Mother to be in default and granted sole legal custody and primary physical custody to Bryan Blunck ("Father"). Because Mother provided good cause for continuing the hearing and default is generally disfavored in custody disputes, we reverse and remand.

Facts and Procedural History

[2] Mother and Father are the parents of a daughter, T.B. ("Child"). In March 2012, Father was arrested and charged with multiple drug-related offenses. Because Father was incarcerated, the Gibson County Department of Child Services (DCS) placed Child in Mother's custody. As a result, Mother and Father filed an agreed entry with the Gibson Circuit Court granting Mother full custody of Child; the agreed entry was approved by the court. Mother then moved to Florida with Child.

[3] In April 2017, Father was no longer incarcerated, and Mother thought it was in Child's best interests to live with Father. Mother drafted and signed a document that "grant[ed] guardianship" of Child to Father; Mother indicated that her intent was for T.B. "to live with [Father] in Indiana and for [Father] to gain joint legal custody as soon as possible." Emergency Petition to Modify, Ex. B, In re T.B. , No. 26C01-1204-DR-068 (Gibson Cir. Ct. Nov. 20, 2017). Child was then returned to Indiana. In September, Child wrote an essay for school wherein she stated that, while living in Florida, she was abused by Mother's husband, and, as a result, she started cutting herself and making suicidal comments. She also wrote that she was relieved to move back to Indiana and not have to worry about Mother's husband.

[4] On November 1, DCS received a report that Father was using methamphetamine. DCS investigated the claim, and Father admitted that the allegation was true. Child was removed from Father's home and placed with his sister. The next day, Mother, who still had custody of Child according to the 2012 agreed entry that was approved by the Gibson Circuit Court, traveled from Florida to Indiana. She took custody of Child, and the pair returned to Florida.

[5] On November 20, Father filed in the Gibson Circuit Court an emergency petition to modify custody and a petition to have Child returned to Indiana. He alleged that Child had resumed making threats of suicide and feared that if Child stayed in Florida she would either seriously hurt herself or commit suicide. The court ordered Mother to appear for a custody hearing on Monday, December 11 and to return Child to Indiana. Mother was served with a copy of the court's orders and Father's motion to modify custody on Wednesday, December 6 at 7:53 p.m. On Friday, December 8, Mother, proceeding pro se, filed a motion to continue the hearing. Mother provided several reasons for why she needed a continuance, including that her family was on a tight budget and that she could not take off from work. Mother further stated that she had recently undergone surgery and could not travel due to medical reasons. In support of her motion, she attached a letter from her doctor stating that she could not attend the December 11 hearing.

[6] The trial court denied Mother's motion and held the custody hearing as scheduled on December 11. The court found "that the Mother should be defaulted" and then took "additional testimony from the Father." Appellant's Br. p. 15. That same day, the court issued its order and granted Father sole legal and primary physical custody of Child, who was thirteen. Four days later, Child was returned to Indiana.

[7] Mother now appeals.

Discussion and Decision

[8] Father did not file an appellee's brief. When the appellee fails to submit a brief, we will not develop an argument on his behalf but, instead, we may reverse the trial court's judgment if the appellant's brief presents a case of prima facie error. GEICO Ins. Co. v. Graham , 14 N.E.3d 854, 857 (Ind. Ct. App. 2014).

[9] Mother contends that the trial court should have granted her motion to continue. Indiana Trial Rule 53.5 provides in part that a motion to continue "shall be allowed upon a showing of good cause established by affidavit or other evidence." We review a trial court's decision to grant or deny a motion to continue for an abuse of discretion. J.P. v. G.M. , 14 N.E.3d 786, 789 (Ind. Ct. App. 2014). "An abuse of discretion may be found in the denial of a motion for a continuance when the moving party has shown good cause for granting the motion." Rowlett v. Vanderburgh Cty. Office of Family & Children , 841 N.E.2d 615, 619 (Ind. Ct. App. 2006), trans. denied.

[10] Whether good cause existed is a fact-specific inquiry that requires us to review the circumstances at the time of the motion and the reasons presented to the trial court. Blackford v. Boone Cty. Area Plan Comm'n , 43 N.E.3d 655, 664 (Ind. Ct. App. 2015). Here, Mother, who was living in Florida, was served with a copy of Father's motion to modify custody and the court's order to appear less than five days before the custody-modification hearing was to take place. She promptly requested a continuance and stated multiple reasons for why she could not attend the hearing, including financial constraints, inability to take off work, and medical reasons. Attached to the motion was a letter from her doctor stating that Mother could not travel and would not be able to attend the December 11 hearing. Even if Mother was physically able to travel, she was given a very short amount of time to travel from Florida to Indiana. Not to mention, she had traveled to Indiana the month before to take custody of Child because Father was using methamphetamine. Regardless, Mother was physically unable to travel and attend the hearing because of medical reasons, and she supported her claim with a letter from her doctor. Mother showed good cause for a continuance.

[11] Despite Mother showing good cause for a continuance, the trial court denied the request and entered a default judgment against her for failing to appear. Generally, Indiana does not favor default judgments in custody proceedings "because of the grave importance of the matters decided therein." Young v. Elkhart Cty. Office of Family & Children , 704 N.E.2d 1065, 1068 (Ind. Ct. App. 1999). "[W]e do not see how the best interests of the children could be ascertained without a hearing that affords both parents the opportunity to present evidence and cross-examine witnesses ...." Walker v. Kelley , 819 N.E.2d 832, 837 (Ind. Ct. App. 2004) (emphasis added). We stress that trial courts should be wary of finding a parent to be in default in a child-custody proceeding, because the trial court is always going to be able to make a better decision regarding the health, education, and welfare of children when both parents are heard.

[12] We conclude that the trial court abused its discretion when it denied Mother's motion to continue. We reverse the trial court's order modifying custody and remand for further proceedings.

[13] Reversed and remanded.

Pyle, J., and Barnes, Sr. J., concur.

      It is not clear from the record when Mother was married.

      The trial court's order is attached to Mother's brief on appeal. See Appellant's Br. pp. 15-17.

      The trial court also ordered that Father's sister ("Aunt") was "authorized to act as the Child's legal custodian for the purposes of medical, schooling, and other legal decisions." Appellant's Br. p. 16. Child was also permitted to reside with Aunt should Father "be under the influence of any illegal substances." Id. Because we conclude that the trial court abused its discretion in denying Mother's motion to continue, we do not discuss the propriety of these provisions in the court's order.