author: RUCKER, Justice. MASSA, Justice,

text:
    Juan M. GARRETT, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
    No. 49S04-1207-PC-431.
    Supreme Court of Indiana.
    Aug. 28, 2013.

      Stephen T. Owens, Public Defender of Indiana, Randy A. Elliott, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
    Gregory P. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Andrew A. Kobe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   RUCKER, Justice.

We hold that the “actual evidence” test announced in Richardson v. State, 717 N.E.2d 32 (Ind.1999) is applicable to cases in which there has been an acquittal on one charge and retrial on another charge after a hung jury. We conclude however that the post-conviction court properly denied the petitioner’s claim that counsel rendered ineffective assistance in failing to pursue this issue at trial or on direct appeal.

Facts and Procedural History

Factual Background

This case arises out of an abduction and sexual assault and resulted in two successive trials. The underlying facts are recited in the Court of Appeals memorandum decision on direct appeal as follows:

Early in the morning of June 9, 2007, A.W. reported to the police that three men forced her into a van, took her to an apartment, and forced her to submit to multiple acts of oral sex and vaginal intercourse. One of the perpetrators gave her a piece of paper with the name “Juan” and a phone number written on it. He told her “to call him again if [she] wanted to have a good time again.” A.W. showed an officer the location of the apartment where she had been raped.
Police discovered the phone number and apartment belonged to Garrett. On June 25, 2007, Garrett went to the Sex Crimes Office and was interviewed by Detective Linda White and Sergeant Craig McCartt. Detective White gave Garrett Miranda warnings, which Garrett said he understood. She then read him an advice of rights form, which he said he understood and signed.
Garrett told the officers he had called off work on the evening of June 8 because he was sick, but he then went to the Embassy Suites for off-track betting. He claimed he returned home around 9:00 and went straight to bed. He denied that anyone was at his apartment that evening. When confronted with the note, Garrett said, “I meet a lot of people on the bus downtown. I have no idea from there.” Detective White asked Garrett if he would give a buccal swab, but Garrett refused.
Garrett’s DNA was later obtained by court order, and his DNA matched a sample from A.W.’s rape examination. Detective White showed A.W. a photographic array, and A.W. identified Garrett as one of the perpetrators.
On June 27, 2007, Garrett was charged with Count 1, Class A felony rape (alleging he raped A.W. while armed with a knife); Count 2, Class A felony rape (also alleging he raped A.W. while armed with a knife); Count 3, Class B felony criminal deviate conduct; Count 4, Class B felony criminal confinement (alleging he confined A.W. in an apartment while armed with a knife); and Count 5, Class C felony criminal confinement (alleging he forced A.W. into a vehicle).

Garrett v. State, No. 49A02-0807-CR-609, slip op. at 2-3, 2009 WL 485203, at *1 (Ind.Ct.App. Feb. 25, 2009) (citations and footnotes omitted), tram, denied.

First Trial

Garrett’s case was first tried to a jury on April 14, 2008. In addition to the foregoing facts, following are additional facts of what occurred at the first trial. During the course of her testimony, A.W. testified that her clothes were forcefully removed and that all three men forced her to perform oral sex. When asked “what happened next” A.W. testified as follows:

A. The older one made me get up, and he bent me over the bed and stuck his penis in my vagina.
Q. Okay. And you said he bent you over the bed. He was behind you?
A. Yes.
Q. Okay. And he put his penis in your vagina?
A. Yes.

Tr. 1 at 51-52. A.W. further testified that after the man was done he told her to put her clothes back on and that she could leave. Id. at 56. However, one of the younger men prevented her from leaving, pushed her back over the couch and raped her. Id. at 56-57. Thereafter, according to A.W. “the older man made me have sex with him again.” Id. at 58. The following exchange then occurred:

Q. Okay. When you said the older man made you have sex with you [sic] again, where were you when that happened?
A. I was on the bed.
Q. Back where the first one happened? A. Yes.
* * *
Q. Okay. After that happened, what did he say?
A. He told me I could put my clothes back on and leave.
Q. And did you do it?
A. I put my clothes on and I got to the door. He wrote his phone number down and told me to call him if I wanted to have a good time again.

Id. at 58-59. When asked if she saw one of the men in the courtroom who raped her A.W. identified one of the spectators who appeared to have been exchanging hand signals with the defendant during the course of trial. See id. at 76-77. After a recess, A.W. identified Garrett as the older man who raped her. See id. at 80.

The jury returned verdicts of not guilty on Count 1 (Class A felony rape), Count 3 (Class B felony criminal deviate conduct), and Count 5 (Class C felony criminal confinement). The jury was unable to reach a verdict on Count 2 (Class A felony rape) and Count 4 (Class B felony confinement). The trial court discharged the jury, declared the jury deadlocked on Counts 2 and 4, and scheduled a pretrial hearing for the following week, April 23, 2008. The record is not altogether clear on what transpired at the pretrial hearing. In any event, retrial on Counts 2 and 4 was scheduled for June 5, 2008. Garrett waived his right to trial by jury, and the case proceeded to a bench trial.

Second Trial

Prior to commencement of retrial the following colloquy between the trial court and the deputy prosecutor occurred:

The Court: Okay. We’re on the calendar for a Court trial. The trial is not scheduled to begin until 10:00 o’clock a.m. but [Deputy Prosecutor], you said you had some preliminary matter you wanted the Court to hear?
[Deputy Prosecutor]: I do, Your Honor. Just to clarify for the record before we get started and I call [A.W.] to testify in this matter. One of [sic] the Court’s guidance with regard to the direct testimony she’s going to be giving today, as the Court’s aware, we tried this case to a jury on April 14th of 2008, the jury found Mr. Garrett not guilty on [Count] 1 ... and we are here to retry [Count] 2.... My question for the Court is with regard to [C]ounts 1 and 2 which are both rape as class A felonies. The jury found Mr. Garrett not guilty on one count and hung on the other.
The Court: Not guilty on one.
[Deputy Prosecutor]: And hung on the other.
The Court: And hung on 2.
[Deputy Prosecutor]: Right.
The Court: So what’s your question?
[Deputy Prosecutor]: My question is, Your Honor—
The Court: What’s the difference between 1 and 2?
[Deputy Prosecutor]: None. They’re identical. Identical as charged and all of these incidents occurred one night. So I wanted the Court’s guidance on which incident I should question about. The Court: Whatever incident you alleged constituted [C]ount 2....
[Deputy Prosecutor]: That’s correct.

Tr. 2 at 347-49. Retrial proceeded, and as its first witness the State called A.W. to the stand. A.W. testified that on the evening of June 8, 2007, she ended up in an apartment with three men she did not know. Id. at 358. One man was older, and two were younger. Id. at 358-59. After they entered the apartment, one of the men locked the door. Id. at 359. She did not want to be there and begged them to let her go because she had a sick child at home and needed to take care of him. Id. at 361. The men refused, and said they were “going to do things to” her, and she feared they were going to hurt or kill her. Id. The apartment was a one-room studio containing a bed and couch. Id. at 359. One of the men pushed her onto the couch, and the two younger men sat down beside her. Id. at 359-60. The older man sat down on the bed. The men started drinking and smoking marijuana. She did not want to drink, but they forced her to do so. Id. at 360. After awhile, the men pulled her clothes off. A.W. was forced onto the bed:

Q. How did you get over to the bed?
A. I was pulled over to the bed and pushed down on the bed.
Q. When you were pushed down on the bed, were you on your back or on your stomach?
A. I was on — I believe on my back.
Q. All right. When you were pushed down onto the mattress, what man were you with?
A. The older one.
Q. When the older man pushed you down on the mattress, what happened?
A. He stuck his penis inside of me and had sex with me.
Q. When you say .he stuck his penis inside of you, what part of you?
A. In my vagina.

Tr. 2 at 363-64. A.W. asked him to stop, but he did not. While the older man was having sex with her, A.W. noticed a knife at the end of the bed. Id. at 364-65. When the older man finished, he told her she could get dressed and leave. Id. at 366. However, one of the younger men prevented her from leaving. Id. at 367. A.W. then testified that she was eventually allowed to leave “after he [the older man] put his penis in me again.” Id. As A.W. was leaving, the older man' gave her his telephone number, and she also took the knife when he was not paying attention. Id. at 368. A.W. identified Garrett as the older man who had raped her. Id. at 377.

A.W. ran to a gas station down the street and called 911. A.W. gave the police the note and the knife and showed them where the apartment was located. She was then taken to a hospital for an examination. The nurse testified A.W. “was tearful, upset, she was cooperative with me, but very uncomfortable, having some pain, rated I believe a 9 out of 10.” Id. at 392. A.W.’s injuries included a chipped tooth, a hemorrhage in her eye, and bruises on several parts of her body. Id. at 393-96. Over Garrett’s objection the State also introduced into evidence Garrett’s statement to police concerning the events allegedly occurring in the late evening and early morning hours of June 8 and 9, 2007. Id. at 423-25.

The trial court found Garrett guilty of rape as a Class B felony, because A.W. testified she had not seen anyone touch the knife. The trial court found Garrett not guilty of criminal confinement, because A.W. testified one of the other men had prevented her from leaving after Garrett had sex with her. The trial court sentenced Garrett to fifteen years imprisonment with five years suspended to probation accompanied by lifetime registration as a sex offender.

Appellate History

Garrett appealed challenging the admissibility of his statements to the police and the sufficiency of the evidence. In an unpublished memorandum decision the Court of Appeals affirmed the judgment of the trial court. See Garrett, No. 49A02-0807-CR-609. Thereafter on June 16, 2009 Garrett filed a pro se petition for post-conviction relief that was amended by counsel on January 28, 2010. As amended the petition essentially alleged that Garrett was denied the effective assistance of trial counsel because, prior to retrial, counsel failed to object and/or move for a dismissal of the rape charge on federal and state double jeopardy grounds. The petition also alleged that appellate counsel rendered ineffective assistance for failing to raise the double jeopardy issues on direct appeal.

After an evidentiary hearing, the post-conviction court denied Garrett’s petition for relief. Garrett appealed raising the same claims he raised before the post-conviction court. The Court of Appeals rejected Garrett’s federal double jeopardy claim. As for Garrett’s state double jeopardy claim the Court of Appeals concluded “the actual evidence test [a component of this State’s double jeopardy analysis] does not apply to this case.” Garrett v. State, 965 N.E.2d 115, 122 (Ind.Ct.App.2012). Instead, applying the doctrine of collateral estoppel the Court of Appeals affirmed the judgment of the post-conviction court. Having previously granted transfer, thereby vacating the opinion of the Court of Appeals, see Appellate Rule 58(A), we address Garrett’s Indiana double jeopardy claim. We summarily affirm the Court of Appeals’ disposition of Garrett’s federal claim. Additional facts are set forth below.

Standard of Review for Post-Conviction Proceedings

Post-conviction proceedings do not provide criminal defendants with a “super-appeal.” State v. Hollin, 970 N.E.2d 147, 150 (Ind.2012). Rather, they provide a narrow remedy to raise issues that were not known at the time of the original trial or were unavailable on direct appeal. Id. “Issues available but not raised on direct appeal are waived....” Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind.2013) (internal quotation omitted). Further, the petitioner in a postconviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004). “When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment.” Fisher, 810 N.E.2d at 679. To prevail from the denial of post-conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993).

Standard of Review for Ineffective Assistance of Trial Counsel

To establish a post-conviction claim alleging violation of the Sixth Amendment right to effective assistance of counsel, a defendant must establish the two components set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). “First, a defendant must show that counsel’s performance was deficient.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. This requires a showing that counsel’s representation fell below an objective standard of reasonableness and that counsel made errors so serious that counsel was not functioning as “counsel” guaranteed to the defendant by the Sixth Amendment. Id. “Second, a defendant must show that the deficient performance prejudiced the defense.” Id. This requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, meaning a trial whose result is reliable. Id. To establish prejudice, a defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id.

Standard of Review for Ineffective Assistance of Appellate Counsel

The standard of review for appellate counsel is the same as for trial counsel in that the defendant must show appellate counsel was deficient in his or her performance and that the deficiency resulted in prejudice. Bieghler v. State, 690 N.E.2d 188, 192-93 (Ind.1997). To satisfy the first prong, the defendant must show deficient performance: representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the “counsel” guaranteed by the Sixth Amendment. McCary v. State, 761 N.E.2d 389, 392 (Ind.2002). To satisfy the second prong, the defendant must show prejudice: a reasonable probability (i.e.[J a probability sufficient to undermine confidence in the outcome) that, but for counsel’s errors, the result of the proceeding would have been different. Id.

Discussion

I.

Applicability of Actual Evidence Test

Garrett contends he was twice prosecuted for the same offense and thus his conviction violates the Double Jeopardy Clause of the Indiana Constitution which provides “[n]o person shall be put in jeopardy twice for the same offense.” Ind. Const. art. 1, § 14. In Richardson v. State, 717 N.E.2d 32 (Ind.1999) this Court concluded that two or more offenses are the same offense in violation of article 1, section 14 if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to obtain convictions, the essential elements of one challenged offense also establish the essential elements of another challenged offense. Under the actual evidence test, we examine the actual evidence presented at trial in order to determine whether each challenged offense was established by separate and distinct facts. Id. at 53. To find a double jeopardy violation under this test, we must conclude that there is “a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.” Id. The actual evidence test is applied to all the elements of both offenses. “In other words ... the Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense.” Spivey v. State, 761 N.E.2d 831, 833 (Ind.2002).

Our precedents “instruct that a ‘reasonable possibility’ that the jury used the same facts to reach two convictions requires substantially more than a logical possibility.” Lee v. State, 892 N.E.2d 1231, 1236 (Ind.2008) (citing cases). The reasonable possibility standard “fairly implements the protections of the Indiana Double Jeopardy Clause and also permits convictions for multiple offenses committed in a protracted criminal episode when the case is prosecuted in a manner that insures that multiple guilty verdicts are not based on the same evidentiary facts.” Richardson, 717 N.E.2d at 53 n. 46. The existence of a “ ‘reasonable possibility’ turns on a practical assessment of whether the [fact finder] may have latched on to exactly the same facts for both convictions.” Lee, 892 N.E.2d at 1236. We evaluate the evidence from the jury’s perspective and may consider the charging information, jury instructions, and arguments of counsel. Id. at 1234.

As recounted earlier the Court of Appeals declined to address Garrett’s Richardson double-jeopardy claim on grounds that the “actual evidence test does not apply to this case.” Garrett, 965 N.E.2d at 122. In support the court relied on Buggs v. State, 844 N.E.2d 195 (Ind.Ct.App.2006), trans. denied. In that case defendant Buggs was charged with murder and felony murder based on a single death. The jury acquitted Buggs of felony murder but could not reach a verdict on the murder charge. On retrial for murder Buggs was convicted. He appealed arguing among other things that his retrial violated Indiana’s prohibition on double jeopardy because the felony murder and murder charges were the same offense and violated the actual evidence test. Declining to address this issue, the Court of Appeals noted that neither party cited to any case in which an Indiana appellate court had applied the actual evidence test in cases where there is an acquittal on one charge and retrial on another charge after a hung jury. The Court then noted “[i]n fact, our Supreme Court has made no indication that the actual evidence test is even used to determine whether two offenses are the same offense when there is an acquittal on one offense and retrial on another offense. Perhaps this is because there is already a recognized doctrine that applies to this situation, namely, collateral estoppel. Because of the availability of the doctrine of collateral estoppel, we choose not to extend the Richardson actual evidence test to this situation.” Buggs, 844 N.E.2d at 201-02.

We make two observations. First, this Court has not heretofore been presented with, and thus has not had the opportunity to address, the precise question facing us today. Indeed as the Court of Appeals observed most double jeopardy claims and most Indiana reported decisions arise from defendants challenging two convictions, not retrial after an acquittal. See id. at 201 n. 5. This does not mean however that Indiana Double Jeopardy analysis is inapplicable to assess whether two offenses are the same offense when there is an acquittal on one offense and retrial on another offense. Second, we are not persuaded that the availability of the doctrine of collateral estoppel forecloses applying Indiana Double Jeopardy analysis. The doctrine of collateral estop-pel (also referred to as issue preclusion) is not the same as double jeopardy, “but rather is embodied within the protection against double jeopardy.” Coleman v. State, 946 N.E.2d 1160, 1165 (Ind.2011). “[T]he traditional bar of jeopardy prohibits the prosecution of the crime itself, whereas collateral estoppel, in a more modest fashion, simply forbids the government from relitigating certain facts in order to establish the fact of the crime.” Id. (internal quotation omitted). Essentially the doctrine of collateral estoppel “precludes the Government from relitigating any issue that was necessarily decided by a jury’s acquittal in a prior trial.” Id. (quoting Yeager v. United States, 557 U.S. 110, 119, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009)).

In this case the Court of Appeals applied the doctrine of collateral estoppel and concluded it “did not bar relitigation of the second count of rape.” Garrett, 965 N.E.2d at 123. But see Richardson, 717 N.E.2d at 68 n. 23 (Boehm, J., concurring in result) (noting that the doctrine of collateral estoppel is of limited practical value “particularly if the first result is an acquittal, [because] the basis of the jury’s ruling is often unascertainable”). Left unresolved is the question of whether Indiana Double Jeopardy is applicable to the facts before us. We answer this question in the affirmative.

First, “[t]he Double Jeopardy clause is assurance that the State will not be allowed to make repeated attempts to convict an accused for the same offense.” Thompson v. State, 259 Ind. 587, 290 N.E.2d 724, 726 (1972) (citing U.S. Const. amend. V and XIV; Ind. Const, art. 1, § 14; Benton v. Md., 395 U.S. 784, 796, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957)) (emphasis in original). Indeed, as we have recognized, the idea underlying the Double Jeopardy Clause’s prohibition against multiple prosecutions “is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby ... enhancing the possibility that even though innocent he may be found guilty.” State v. Monticello Developers, Inc., 527 N.E.2d 1111, 1112 (Ind.1988) (quoting Green, 355 U.S. at 187-88, 78 S.Ct. 221). Having had one full opportunity to convict an accused, the State should not receive a “second bite at the apple.” See Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

Second, “[t]he notion that ‘jeopardy’ is ‘risk’ is the very core of double jeopardy jurisprudence.” Bryant v. State, 660 N.E.2d 290, 299 (Ind.1995) (citing Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975)). Jeopardy is the risk of trial and conviction, not punishment. Id. (citing Price v. Ga., 398 U.S. 323, 326, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970)). In other words, double jeopardy protection prohibits twice subjecting an accused to the risk that he will be convicted of a single crime. Therefore it is not surprising that we have previously recognized a double jeopardy violation where a defendant demonstrated “that he might have been acquitted or convicted on the former trial” of the same crime for which he was convicted at the second trial. Brinkman v. State, 57 Ind. 76, 79 (1877). Finally, we see no reason why the Richardson actual evidence test would not apply any time there are multiple verdicts, not simply multiple convictions, on the same facts. In fact, the plain language of the test refers not just to convictions: “[A] defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.” Richardson, 717 N.E.2d at 53 (emphasis added).

II.

Double Jeopardy Violation

In the first trial the State charged Garrett with two separate, but identically worded, counts of rape. The charges read as follows:

Count I
On or about June 9, 2007, Juan Garrett did knowingly have sexual intercourse with [A.W.], a member of the opposite sex, when [A.W.] was compelled by force or the imminent threat of force, and further said act was committed while armed with a deadly weapon, that is: a knife;
Count II
On or about June 9, 2007, Juan Garrett did knowingly have sexual intercourse with [A.W.], a member of the opposite sex, when [A.W.] was compelled by force or the imminent threat of force, and further said act was committed while armed with a deadly weapon, that is: a knife[.]

Appellant’s Direct Appeal App. at 28. At trial, evidence was presented of two separate incidents of rape, one of which preceded the other. For clarity, we will sometimes refer to the first-in-time alleged rape as “Rape A” and the second-in-time alleged rape as “Rape B.” Garrett contends (and the State does not contest) that neither the charging informations nor the parties’ evidence and argument at trial specifically linked either charged count with a particular rape event, Rape A or Rape B. In the first trial, the jury acquitted Garrett on Count I but was unable to reach a unanimous verdict on Count II. Garrett was then retried on Count II.

Garrett contends that because the State never linked the Counts to the individual rape events in the first trial, it is impossible to know whether the jury’s decision with respect to Count I acquitted him of Rape A or Rape B. The State counters it is reasonable to infer that Count I charged Rape A — the first-in-time alleged offense, and Count II charged Rape B — the second-in-time alleged offense. This is so, according to the State, because (1) both counts were Class A felonies that occurred in chronological order, (2) this is how counsel for both parties understood the charges, (8) A.W.’s testimony presented the allegations in that order, and (4) the deputy prosecutor referred to the alleged rapes in that order in closing argument. We agree with the State on this point: the record supports the conclusion that the jury found Garret not guilty of alleged Rape A — the first-in-time offense; but could not reach a unanimous verdict on alleged Rape B. Thus there was no procedural bar in conducting a retrial on alleged Rape B — the second-in-time offense. The question remains whether the evidence presented at retrial resulted in a double jeopardy violation based on the Richardson actual evidence test.

We pause here to note the record reflects that the evidence of Rape B — the second in-time alleged offense — was actually more extensive in the first trial than on retrial. The only evidence presented on retrial of Rape B was A.W.’s testimony that after the older man told her she could leave, one of the younger men prevented her from leaving; but she was eventually allowed to leave “after he [the older man] put his penis in me again.” Tr. 2 at 867. This is the sum total of the evidence presented on retrial concerning Count II — the second-in-time alleged offense and the very count that all parties agreed was at stake on retrial. In any event even if the converse were true it would make no difference in this case. That is to say even if all parties agreed that Garrett was actually acquitted of alleged Rape B, the second-in-time offense, and thus retrial was confined to alleged Rape A, the first-in-time offense, the fact remains that essentially the same evidence was presented at both trials.

Under our traditional formulation, in order to find a double-jeopardy violation pursuant to the Richardson actual evidence test, we must conclude there is “a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.” Richardson, 717 N.E.2d at 53. As slightly modified, we hold today that a double jeopardy violation under the Richardson actual evidence test may also rest on our conclusion that there is a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of the offense for which the defendant was acquitted may also have been used to establish all of the essential elements of the offense for which the defendant was convicted.

We acknowledge that in a different factual context this modified test may prove challenging in its application. But here the facts are fairly straightforward. In essence on retrial the State presented the same evidence of Rape A — the first-in-time rape — on which the State relied in the first trial and upon which the jury found Garrett not guilty. And given the relative paucity of evidence on retrial concerning Rape B — the second-in-time rape — we conclude there is reasonable possibility that the evidentiary facts used by the jury in the first trial to establish the essential elements of Rape, for which Garrett was acquitted, may also have been used on retrial to establish all of the essential elements of Rape for which Garrett was convicted. We conclude therefore that Garrett was twice prosecuted for the same offense in violation of article 1, section 14 of the Indiana Constitution.

III.

Ineffective Assistance of Counsel

Garrett contends that trial counsel rendered ineffective assistance because prior to retrial counsel failed to file a motion to dismiss or otherwise object to the rape charge on State double jeopardy grounds. He also contends appellate counsel rendered ineffective assistance for failing to raise the double jeopardy issue on direct appeal.

With respect to trial counsel, in order to prevail on a claim of ineffective assistance due to the failure to object, the defendant must show a reasonable probability that the objection would have been sustained if made. Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind.2001). Similarly, the defendant must show a reasonable probability that the motion to dismiss would have been granted if made. Here, as we earlier declared, there was no procedural bar in conducting a retrial on the second-in-time alleged rape. The record supported the conclusion that the jury found Garrett not guilty of alleged Rape A — the first-in-time alleged offense; but could not reach a unanimous verdict on alleged Rape B — the second-in-time alleged offense. Hence there was nothing to prevent retrial on this charge. As we have attempted to demonstrate, the double jeopardy violation occurred as a result of the evidence presented during retrial. Garrett cannot demonstrate that trial counsel would have prevailed had he objected to retrial or moved to dismiss.

As for appellate counsel, ineffective assistance claims “generally fall into three basic categories: (1) denial of access to an appeal, (2) waiver of issues, and (3) failure to present issues well.” Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). Here, Garrett’s claim is based upon the waiver of issues category. To show that counsel was ineffective for failing to raise an issue on appeal thus resulting in waiver for collateral review, “the defendant must overcome the strongest presumption of adequate assistance, and judicial scrutiny is highly deferential.” Ben-Yisrayl v. State, 738 N.E.2d 253, 260-61 (Ind.2000). To evaluate the performance prong when counsel waived issues upon appeal, we apply the following test: (1) whether the unraised issues are significant and obvious from the face of the record and (2) whether the unraised issues are “clearly stronger” than the raised issues. Timberlake v. State, 753 N.E.2d 591, 605-06 (Ind.2001). If the analysis under this test demonstrates deficient performance, then we evaluate the prejudice prong which requires an examination of whether “the issues which ... appellate counsel failed to raise would have been clearly more likely to result in reversal or an order for a new trial.” Bieghler, 690 N.E.2d at 194 (quotation omitted).

Assuming for the sake of argument that Garrett’s unraised double jeopardy claim was significant and obvious from the face of the record, this issue was not “clearly stronger” than the issues counsel raised on direct appeal.

On direct appeal pointing to several ambiguities and inconsistencies in A.W.’s testimony, Garrett challenged the sufficiency of the evidence. He also contended the trial court erred in admitting into evidence a statement he gave police arguing he had invoked his right to counsel, and thus the statement was obtained in violation of Miranda. The Court of Appeals rejected both claims. In his petition for post-conviction relief, with the exception of his double jeopardy claim, Garrett did not allege there were any other viable issues that appellate counsel could have raised but did not. With respect to the double jeopardy issue, just three years before Garrett initiated his direct appeal, the Court of Appeals had rejected an argument that the Richardson actual evidence test applied in cases where there is an acquittal on one charge and retrial on another charge. See Buggs, 844 N.E.2d at 201-02. The Court was unequivocal: “[W]e choose not to extend the Richardson actual evidence test to this situation.” Id. at 202. Not only was Garrett’s double jeopardy claim not “clearly stronger” than the issues counsel raised on direct appeal, but also because of then-existing case authority it was “clearly weaker.” Further, this conclusion is not altered by the fact that today this Court has changed existing law, and modified the Richardson actual evidence test to make it applicable to instances where there has been an acquittal on one charge and retrial on another. As we have declared on more than one occasion “appellate counsel cannot be held ineffective for failing to anticipate or effectuate a change in existing law.” Reed, 856 N.E.2d at 1197 (citing Fisher, 810 N.E.2d at 679); see also Trueblood v. State, 715 N.E.2d 1242, 1258 (Ind.1999). In sum, the post-conviction court did not err in denying Garrett’s petition for relief.

Conclusion

Garrett has failed to show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Therefore we affirm the postconviction court’s judgment.

DICKSON, C.J., and DAVID and RUSH, JJ., concur.

MASSA, J., concurs in result.

MASSA, Justice,

concurring in result.

I agree that, for reasons clearly stated in Part III of the Court’s opinion, the postconviction court properly denied Garrett’s ineffectiveness claim; thus, I concur in result. I do not, however, share my colleagues’ belief that “there is a reasonable possibility that the evidentiary facts used by the jury in the first trial to establish the essential elements of Rape, for which Garrett was acquitted, may also have been used on retrial,” and therefore I cannot join the Court’s conclusion “that Garrett was twice prosecuted for the same offense in violation of Article 1, Section 14 of the Indiana Constitution.” Op. at 728.

As the Court notes, Garrett was retried to the bench, not to a jury. The record is clear that, in this second trial, the trial court, prosecution, and defense all understood that the two separate rapes were charged in chronological order and that Garrett was being retried for the alleged “Rape B” only. Op. at 722. This does not mean that the victim had to confíne her testimony in the second trial solely to Rape B, omitting all details of what transpired earlier in the evening; our jurisprudence does not require such a stilted, redacted and devoid-of-eontext presentation. (How, for instance, could she testify she was raped “again” without mentioning the first rape?) We trust trial judges to separate wheat from chaff, permitting them, for instance, to render a verdict even after being exposed to inadmissible evidence that would irreparably taint a lay jury. See Birdsong v. State, 685 N.E.2d 42, 47 (Ind.1997) (“when a trial is before a bench and not a jury, we generally presume that the trial judge considers only relevant and probative evidence in reaching its decision ... Unless the defendant presents evidence to the contrary, we presume no prejudice.” (citing Coleman v. State, 558 N.E.2d 1059, 1062 (Ind.1990))); see also Misenheimer v. State, 268 Ind. 274, 280, 374 N.E.2d 523, 528 (1978) (“It can be presumed that a trial judge is not swayed by evidence which is considered prejudicial before a jury ... [and] that he disregarded inadmissible evidence.”).

I am confident that the experienced trial judge in this case performed just such a threshing here. Although the judge heard a fuller account of the victim’s terrible ordeal, I presume — as our precedent requires I presume, where, as here, there is no evidence to the contrary — that she deliberated only on the evidence supporting Rape B. Thus, the defendant was not “put in jeopardy twice for the same offense” as we have interpreted that language from our Indiana Constitution in Richardson and its evolving progeny.

      . Although the transcripts from trials one and two are presented to us consecutively paginated, for clarity we refer to the transcript from the first trial as "Tr. 1” and the transcript from the second trial as "Tr. 2."

      . The foreman informed the court that the jury was "virtually split seven to five.” Tr. 1 at 334.

      . Justice Massa’s separate opinion invokes what is commonly referred to as the “judicial-temperance presumption,” under which "[w]e generally presume that in a proceeding tried to the bench a court renders its decision solely on the basis of relevant and probative evidence.” Konopasek v. State, 946 N.E.2d 23, 28 (Ind.2011) (quoting Coleman v. State, 558 N.E.2d 1059, 1062 (Ind.1990)). In this case that presumption has been rebutted because of the ambiguity on the question of whether the State presented probative evidence that Garrett committed the second-in-time alleged rape. The question under Richardson is whether there is a "reasonable possibility” that the facts the trial judge relied on to convict Garrett were the same facts the jury relied on in its acquittal. See Richardson, 717 N.E.2d at 53. If we were to accept Justice Massa's position, then that would mean there could never be a Richardson violation where the second trial after an acquittal is before the bench rather than a jury. In our view this goes beyond “judicial temperance” and borders on judicial infallibility. It is "reasonab[ly] possible” that even an experienced trial judge can make a mistake. That is not to say that a mistake was in fact made in this case; but there is a reasonable possibility that is so. This is all Richardson requires.


source: Caselaw Access Project

author: MATHIAS, Judge.

license: Public Domain

text:
    Victor PONCE, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 20A04-1208-PC-396.
    Court of Appeals of Indiana.
    March 7, 2013.
    Ordered Published May 10, 2013.

      Stephen T. Owens, Public Defender of Indiana, James T. Acklin, Chief Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Joseph Y. Ho, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MATHIAS, Judge.

Victor Ponce (“Ponce”) appeals the Elk-hart Circuit Court’s denial of his petition for post-conviction relief, claiming that the court erred in rejecting Ponce’s claim that he was not properly advised of his constitutional rights before pleading guilty and that he therefore did not knowingly and voluntarily waive these rights. Concluding that the postconviction court could have properly concluded that Ponce did not present evidence sufficient to support his claims, we affirm.

Facts and Procedural History

On March 31, 1999, the State charged Ponce with two counts of Class A felony dealing in cocaine within 1,000 feet of a school. On September 9, 1999, Ponce entered into a plea agreement with the State. Pursuant to the terms of the agreement, Ponce agreed to plead guilty to one count of Class A felony dealing in cocaine, and the State agreed to dismiss the other count.

The written plea agreement, which was signed by Ponce and his counsel, stated in part:

I understand that by pleading guilty I will be giving up and waiving my right to a public and speedy trial by jury, to confront and cross-examine the witnesses against me, to have compulsory process for obtaining witnesses in my favor, and to require the State to prove my guilt beyond a reasonable doubt at trial at which I may not be compelled to testify against myself.

Appellant’s App. p. 181.

The trial court held a guilty plea hearing on September 9, at which the court used the services of Monica Castillo (“Castillo”) to act as an interpreter to and from the English and Spanish languages. Before advising Ponce of his rights, the trial court asked him, through Castillo, whether he could, “read, write, and understand the English language.” Castillo translated this into Spanish as, “¿Escribes, hablas y entiendes el ingles?” Castillo replied in Spanish, “Lo entiendo, y lo hablo un poco.” Ex. Vol., Defendant’s Ex. G, p. 5. Castillo translated this as “He understands a little and speaks a little English.” But according to Ponce’s own expert witness, a more accurate translation of Ponce’s statement is, “/ understand it, and I speak it a little.” Id. (emphasis added).

The trial court then orally advised Ponce of his Boykin rights: the right against self-incrimination, the right to a jury trial, and the right to confront witnesses. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (holding that a guilty plea is invalid under the Fourteenth Amendment unless the defendant knew or was told that he was giving up the right against self-incrimination, the right to trial by jury, and the right to confront his accusers). Castillo relayed these advisements to Ponce in Spanish. The trial court then accepted the plea and sentenced Ponce to forty years executed.

On October 29, 2009, Ponce filed a pro se petition for post-conviction relief. After counsel was appointed to represent Ponce, he filed an amended petition for postcon-viction relief on October 17, 2011. The post-conviction court held a hearing on this petition on May 15, 2012. At the post-conviction hearing, Ponce presented evidence from Christina Courtright (“Court-right”), an interpreter certified by the Indiana Supreme Court. Courtright had listened to the audio recording of Ponce’s guilty plea hearing and compared what the trial court stated in English to what Castillo had told Ponce in Spanish. In so doing, Courtright found several translation errors. Courtright prepared a chart, which was admitted into evidence at the hearing, which outlined what was said in English, what Castillo told Ponce, and what Court-right determined was a more accurate translation of what the trial court had said. Courtright testified that Castillo had translated certain legal terms inaccurately and that each of the three Boykin advise-ments had been mistranslated. The trial court took the matter under advisement, and directed the parties to submit proposed findings of fact and conclusions of law.

On August 1, 2012, the trial court entered findings of fact and conclusions of law denying Ponce’s petition, which provided in relevant part:

13. Petitioner also contends that his plea was involuntary because he did not understand the terms and that he was not properly advised of his Boykin rights: 1) his right to a trial by jury, 2) his right to confront witnesses against him, and 3) his right against self incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). It is significant to note that Petitioner does not contend that the court failed to advise him of his Boykin rights. Rather, Petitioner alleges that the poor quality of the Spanish language interpretation during the plea hearing was tantamount to the failure to properly advise him.
15. In the instant case, [Ponce’s trial counsel] testified that he met with Petitioner several times, communicated the terms of the Plea Agreement with Petitioner using a Spanish interpreter, and that he believed that Petitioner understood the terms of the Plea Agreement. Petitioner did not testify in these post conviction proceedings that he did not understand his rights or the terms of his plea agreement. Rather, Petitioner relies entirely upon the testimony of Spanish language interpreter/translator Christina Courtright. Ms. Courtright testified using a chart she prepared listing her opinion regarding alleged infirmities in the English-Spanish interpretation of the plea hearing. Although qualified as an expert, Mr. Courtright cannot speculate on what Petitioner did and did not understand. Moreover, Ms. Courtright prepared the subject chart after listening to the audio recordings of the plea hearing, and acknowledged that there were portions of the recordings that were unintelligible.
16. Furthermore, the court notes that the Plea Agreement that Petitioner initialed and signed contained all the rights required by Boykin. While a signed waiver of rights may not be sufficient to satisfy Boykin advisement requirements when a trial court asks only a few perfunctory questions, none of which specifically address the rights being waived, [State v.] Lime, supra, 619 N.E.2d [601] at 605 [ (Ind.Ct.App.1993) ], such was not the case here. During the plea hearing, the court advised Petitioner, “If you do not understand the words or questions that I use, please let me know.” (Plea Hearing Transcript, p. 7). According to Ms. Courtright’s chart, Exhibit “G”, that portion of the hearing was accurately interpreted. The court also asked Petitioner, “Are you able to understand the conversation we’re having through the translator?” (Tr., p. 7). This inquiry was also interpreted accurately. At no time did Petitioner indicate that he did not understand the court through the translator. In fact, Petitioner was asked by the court if he read, wrote, and understood the English language, and Petitioner responded, “I understand it, and I speak it a little.” (Tr., p. 7).
17. For all these reasons, ... the evidence does not establish that Petitioner did not understand his rights or the terms of the Plea Agreement. Therefore, Petitioner did not enter the plea involuntarily.
18. In sum, although there is some evidence that the interpretation at issue was poor, there is no evidence that Petitioner did not understand his Boykin rights. Unlike the court in Lime, this court intently advised Petitioner and Petitioner never once indicated that he did not understand what he was being-told. Petitioner acknowledged his Boykin rights in the Plea Agreement, and he is no stranger to the legal system. See, Pre-Sentence Investigation Report. For these reasons, the court concludes that in light of the totality of the circumstances, Petitioner has failed to prove by a preponderance of the evidence that he did not understand the Boykin rights advisement.

Appellant’s App. pp. 159-161. Ponce now appeals.

Post-Conviction Standard of Review

Post-conviction proceedings are not “super appeals” through which convicted persons can raise issues they failed to raise at trial or on direct appeal. McCary v. State, 761 N.E.2d 389, 391 (Ind.2002). Post-conviction proceedings instead afford petitioners a limited opportunity to raise issues that were unavailable or unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind.2002). A post-conviction petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind.2008). On appeal from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. Thus, to prevail on appeal from the denial of post-conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. at 643-44.

Where, as here, the post-conviction court makes findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we cannot affirm the judgment on any legal basis but instead must determine if the court’s findings are sufficient to support its judgment. Graham v. State, 941 N.E.2d 1091, 1096 (Ind.Ct.App.2011), aff'd on reh’g, 947 N.E.2d 962. Although we do not defer to the post-conviction court’s legal conclusions, we review the post-conviction court’s factual findings under a clearly erroneous standard. IcL Accordingly, we will not reweigh the evidence or judge the' credibility of witnesses, and we will consider only the probative evidence and reasonable inferences flowing therefrom that support the post-conviction court’s decision. Id.

Discussion and Decision

In Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court held that it was reversible error for a trial judge to accept a guilty plea without an affirmative showing that it was intelligent and voluntary. Boykin requires that the record must show, or there must be an allegation and evidence which show, that the defendant was informed of and waived three specific federal constitutional rights: the privilege against compulsory self-incrimination, right to trial by jury, and the right to confront one’s accusers. Id. at 243, 89 S.Ct. 1709; accord Hall v. State, 849 N.E.2d 466, 469 (Ind.2006).

Nevertheless, it has since been held that “Boykin ‘does not require that the record of the guilty plea proceeding show that the accused was formally advised that entry of his guilty plea waives certain constitutional rights[,]’ nor does Boykin require that the record contain a formal waiver of these rights by the accused.” Dewitt v. State, 755 N.E.2d 167, 171 (Ind.2001) (quoting State v. Eiland, 707 N.E.2d 314, 318 (Ind.Ct.App.1999), opinion adopted by 723 N.E.2d 863 (Ind.2000)). Instead, Boykin requires a conviction to be vacated only if the defendant did not know or was not advised at the time of his plea that he was waiving his Boykin rights. Id. (citing Davis v. State, 675 N.E.2d 1097, 1103 (Ind.1996); United States ex rel. Miller v. McGinnis, 774 F.2d 819, 824 (7th Cir.1985)). As then-Chief Justice Shepard explained in Youngblood v. State, 542 N.E.2d 188 (Ind.1989), “knowledge of rights may be reflected either in the original record or through allegation and proof.” Id. at 189 (citations omitted).

Here, Ponce presented evidence at the post-conviction hearing that Castillo’s Spanish translation of the trial court’s proper English language Boykin advisement was defective. According to Ponce’s witness Courtright, when the trial court advised Ponce, “you have the right to a public and speedy trial by jury,” Castillo translated this into Spanish as, “He’s — he’s advising you that you have the right to another — another judging [unintelligible] speedier.” Ex. Vol. Defendant’s Ex. G, p. 7. When the trial court told Ponce in English, ‘You also have the right to face all witnesses against you and to see, hear, question, and cross-examine these witnesses,” Castillo told Ponce in Spanish, “And you also have the right to see those who have the witnesses and ... to ask if it’s all right [unintelligible].” Id. at 8. When the trial court explained to Ponce in English, ‘You also have the right to require witnesses to be present at any hearing or trial and to testify in your behalf,” Castillo told Ponce in Spanish, “And you can also require witnesses to come for your ease so that, in case you have some ... to help you.” Id. And when the trial court advised Ponce in English, “Further, you cannot be compelled to make any statement or testify against yourself at any hearing or trial ... but you may remain silent,” Castillo translated this into Spanish as, “And until that date you cannot make other oaths against yourself ... but you can remain silent.” Id.

The post-conviction court did not cast doubt on the accuracy of Courtright’s testimony. Instead, the post-conviction court properly observed that, even if Ponce was not properly advised in Spanish of his Boy-kin rights, the conviction need not be vacated if Ponce nevertheless knew at the time of his plea that he was waiving his Boykin rights. See Dewitt, 755 N.E.2d at 171. The post-conviction court also noted that Ponce had indicated to the trial court that he did, in fact, understand English and could even speak “a little” English. Moreover, Ponce never testified at the post-conviction hearing; thus, there was no evidence to counter Ponce’s earlier statement that he understood English, and it is uncontroverted that the trial court’s Boykin advisement in English was accurate.

Nor was there any evidence from Ponce that he did not, in fact, know that he was waiving his rights. To the contrary, Ponce’s trial counsel testified at the post-conviction hearing that he explained the terms of the plea agreement, which included the Boykin advisements, to Ponce several times using a Spanish interpreter and that, in his opinion, Ponce understood the terms of the plea agreement.

We reiterate that Ponce faces a substantial burden on appeal from the denial of his post-conviction petition. See Henley, 881 N.E.2d at 643-44. Considering only the evidence favorable to the post-conviction court’s decision, and the reasonable inferences to be drawn therefrom, we cannot say that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Accordingly, we must affirm the decision of the post-conviction court.

Affirmed.

KIRSCH, J., and CRONE, J., concur.

      . Ponce had entered into another plea agreement on August 5, 1999, under the terms of which he agreed to plead guilty to dealing in cocaine as a Class B felony. For reasons that are not entirely clear on the record, this plea agreement was not accepted by the trial court.

      . As the United States Supreme Court recently explained, "interpreter” ordinarily means one who translates orally from one language to another, but it does not include those who translate writings. Taniguchi v. Kan Pac. Saipan, Ltd., - U.S. -, 132 S.Ct. 1997, 2000-03, 182 L.Ed.2d 903 (2012).

      . Ponce’s expert witness was a certified court interpreter. Although Castillo was not a certified court interpreter, there were no procedures in Indiana for such certification at the time of the guilty plea hearing. The Indiana Court Interpreter Program Advisory Board was created in 2003, and the Indiana Interpreter Code of Conduct and Procedure Rules were adopted in 2008.

      .As noted in detail below, Ponce presented evidence at the post-conviction hearing that this translation was less than accurate.

      . As noted in Weatherford v. State, 697 N.E.2d 32, 35 n. 8 (Ind.1998), Indiana has codified this requirement in Indiana Code section 35-35-1-2, which provides that a trial court shall not accept a guilty plea unless the defendant has been advised, among other things, that by pleading guilty he waives his right to:
      (A) a public and speedy trial by jury;
      (B) confront and cross-examine the witnesses against the defendant;
      (C) have compulsory process for obtaining witnesses in the defendant’s favor; and
      (D) require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant may not be compelled to testify against himself or herself....
      I.C. § 35 — 35—1—2(a)(2).

      . Thus, Ponce’s citation to Turman v. State, 271 Ind. 332, 392 N.E.2d 483 (1979), is unavailing. In that case, the court held that the trial judge’s erroneous statement in open court outweighed the impact of the correct statement of law contained in the plea agreement. Id. at 332, 392 N.E.2d at 488. In contrast, here, the trial judge's advisement was completely correct.

      . In Youngblood, our supreme court held that if the defendant has demonstrated that the plea hearing was not conducted in accordance with Boykin, the State may affirmatively prove in a post-conviction hearing that the plea was voluntary and intelligent in order to obviate the necessity of vacating the plea. 542 N.E.2d at 189. Here, however, Ponce never even established that the plea hearing was deficient under Boykin, and the burden of proving the voluntariness of Ponce’s plea never shifted to the State.

      . Ponce’s trial counsel testified that, to his recollection, he did not use Castillo as his interpreter when discussing the terms of the plea agreement with Ponce.


author: PYLE, Judge.

text:
    Anthony J. IEMMA, et al., Appellants/Defendants, v. JP MORGAN CHASE BANK, N.A. Successor by Merger with Bank One, N.A., Appellees/Defendants.
    No. 20A03-1207-MF-326.
    Court of Appeals of Indiana.
    June 13, 2013.

      Jon L. Orlosky, Muncie, IN, Nancy A. McCaslin, McCaslin & McCaslin, Elkhart, IN, Attorneys for Appellants.
    Theodore J. Nowacki, David J. Jurkiew-icz, Emily M. Slaten, Curtis T. Jones, Bose McKinney & Evans LLP, Dean T. Barn-hard, Paul L. Jefferson, Barnes & Thorn-burg, LLP, Indianapolis, IN, Attorneys for Appellees.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

LRB Holdings, Inc. (“LRB”) appeals from the Elkhart Circuit Court’s orders in Cause No. 20C01-0911-MI-41 (“Cause No. 41”) granting the setting aside of tax deeds purchased by LRB on two lots with a common address of 1034 East Jackson Boulevard, Elkhart, IN 46516 and denying LRB’s motion to correct error. JP Morgan Chase Bank, N.A. (“Chase Bank”), as mortgagee-by-merger of the two lots with a common address of 1034 East Jackson Boulevard, Elkhart, IN 46516, filed the motion to set aside the tax deeds on the common property. Other named parties are Anthony J. lemma (“Anthony”); Sandra lemma (“Sandra”) (collectively, “the lemmas”); Roswell Properties, LLC LTD (“Roswell”); Samuel J. lemma; and Lillian lemma.

Anthony and Sandra appeal from the Elkhart Circuit Court’s partial summary judgment and decree of foreclosure in Cause No. 20C01-0611-MF-188 (“Cause No. 188”), wherein the Court granted Chase Bank’s motion for partial summary judgment and foreclosure on the common property consisting of two lots with a common address of 1034 East Jackson Boulevard, Elkhart, IN 46516.

On December 11, 2012, Chase Bank filed a motion requesting that the same panel of this Court decide both appeals. On January 11, 2013, this Court consolidated the appeals pursuant to Indiana Appellate Rule 38(B).

We reverse and remand.

ISSUES

1. Whether the trial court erred in determining that the tax deeds should be set aside in Cause No. 41 because LRB failed to comply with statutory notice requirements.

2. Whether the trial court erred in determining that the tax deeds should be set aside in Cause No. 41 because LRB failed to comply with due process requirements.

3. Whether the trial court erred in determining that the tax deeds should be set aside in Cause No. 41 because LRB failed to comply with statutory property description requirements.

4. Whether the trial court’s entry of partial summary judgment and decree of foreclosure in Cause No. 188 is of no effect because of our resolution of the issues presented in Cause No. 41.

FACTS AND PROCEDURAL HISTORY

On February 10, 1997, the lemmas entered into a $250,000 Home Equity Line of Credit Agreement (the “Note”) with Bank One-Merrillville. The Note was secured by a mortgage agreement (the “Mortgage”) with Bank One-Merrillville on real property with a common address of 1034 East Jackson Boulevard, Elkhart, IN 46516. The Mortgage was recorded on February 20, 1997, by the Elkhart County Recorder.

The legal description under the Mortgage for the common address 1034 East Jackson Boulevard, Elkhart, IN 46516, which actually contains two lots, is:

The East Fifty-seven and eighty-four hundredths (57.84) feet of Lot Number Three (3) and Lot Number (4) exception six (6) feet by parallel lines from off the East Side thereof, as the said Lots are known and designated on the recorded Plat of KENYON ADDITION to the City of Elkhart, Indiana; said Plat being recorded in Deed Record 60, page 502 of the record in the Office of the Recorder of Elkhart County, State of Indiana. SUBJECT to the overflow rights of the Indiana and Michigan Electric Company.

(lemmas’ App. 33).

The Mortgage on the two lots with a common address of 1034 East Jackson Boulevard, Elkhart, IN 46516 designates the lemmas collectively as the “Grantor” and Bank One-Merrillville, 1000 East 80th Place, Merrillville, IN 46410 as “Lender.” (lemmas’ App. 106). Two addresses with notations, one for Bank One-Merrillville and the other for Bank One, Indianapolis, NA (“Bank One-Indianapolis”), are listed at the top of the recorded mortgage above a line stating, “SPACE ABOVE THIS LINE IS FOR RECORDER’S USE ONLY.” (lemmas’ App. 106). The addresses and notations state the following:

RECORDATION REQUESTED BY:
[Bank One-Merrillville] 1000 East 80th Place Merrillville, IN 46410
WHEN RECORDED MAIL TO:
[Bank One-Indianapolis] 1111 Monument Circle, Suite 431 Indianapolis, IN 46277

Id.

The Note and the Mortgage provide that the entire indebtedness may be accelerated by Bank One-Merrillville upon the lemmas’ default. The Mortgage further provides that Bank-One Merrillville has the right to foreclose its mortgage.

On July 1, 2004, Chase Bank became the successor-by-merger to Bank One-Merrill-ville and Bank One-Indianapolis through mergers with both entities, and on November 10, 2006, Chase Bank filed its “Complaint on Note and To Foreclose Mortgage” in the Elkhart Circuit Court under Cause No. 188 to foreclose the Mortgage for the two lots with a common address of East Jackson Boulevard, Elkhart, IN 46516. The complaint sought personal judgment against Sandra and an in rem judgment against Anthony on account of a bankruptcy filed by him.

Chase Bank moved for summary judgment on March 26, 2007. In their response to the motion, the lemmas designated Sandra’s affidavit, wherein she argued that the signatures on the Note and Mortgage were not hers. Thereafter, Chase Bank engaged in discovery as to the validity of Sandra’s signatures. However, Chase Bank waited until April of 2010 to depose the lemmas.

Meanwhile, the taxes on the two lots with a common address of 1034 East Jackson Boulevard, Elkhart, IN 46516 were not paid. On November 30, 2009, LRB was the successful bidder for the tax sale certificates that cover the two lots — Lots Number Three (“Lot 3”) and Number Four (“Lot 4”) — as described by the legal description in the Mortgage. The tax sale was the result of an order by the Elkhart Circuit Court in Cause No. 41.

LRB hired a title corporation to conduct a lien search, and the title corporation’s report indicated an unreleased mortgage for the two lots with a common address of 1034 East Jackson Boulevard, Elkhart, IN 46516 in favor of Bank One-Merrillville with an address of 1000 East 80th Place, Merrillville, IN 46410; an unreleased mortgage in favor of Roswell with an Ohio address; and a mortgage in favor of Lillian M. lemma. The report also indicated that Chase Bank had filed a pending suit on November 10, 2006, and that the “judgment creditor’s attorney of record is Mercer Belanger, c/o Jennifer R. Fitzwater ... [and] Bose McKinney & Evans, LLP, c/o Theodore J. Nowacki, Peyton L. Berg, 111 Monument Circle, Suite 2700, Indianapolis, IN 46204.” (LRB’s App. 253).

In August, 2010, LRB sent notices of sales and dates of expiration of the period of redemption to various parties pursuant to the tax sale certificates for the two lots at the common address of 1034 East Jackson Boulevard, Elkhart, IN 46516. Specifically, LRB sent notices by certified and regular mail to the lemmas and to Bank One-Merrillville at its Merrillville office. The lemmas received the notice; however, the notices sent to Bank One-Merrillville were returned as undeliverable. The returned certified mail envelope read “Return to Sender, attempted-not known, unable to forward.” (App. 320). LRB did not send notice to the Bank One-Indianapolis address listed on the Mortgage.

Because LRB knew of Chase Bank’s interests in Lots 3 and 4 of the common property of 1034 East Jackson Boulevard, Elkhart, IN 46516 as asserted in Elkhart Circuit Court Cause No. 188, it sent notices in August, 2011 to Chase Bank through its counsel of record at 111 Monument Circle, Suite 2700, Indianapolis, IN 46204. These notices were delivered and received by Chase Bank’s Cause No. 188 counsel, who communicated the notices to Chase Bank.

On December 13, 2010, LRB filed its verified petition for an order directing the Elkhart County Auditor to issue the tax deeds for Lots 3 and 4 of the common property of 1034 East Jackson Boulevard, Elkhart, IN 46516. LRB sent notices of filing the aforementioned petitions to the lemmas and Bank One-Merrillville at its Merrillville address. The notices sent to Bank One-Merrillville were returned as undeliverable. The returned notices contained the same notation as the original notices. LRB did not send notice to the Bank One-Indianapolis address listed on the Mortgage.

LRB also sent notices to Chase Bank through its counsel of record from the foreclosure case filed in Cause No. 188 involving Lots 3 and 4 of the common property of 1034 East Jackson Boulevard, Elkhart, IN 46516. These notices were delivered and received by Chase Bank’s Cause No. 188 counsel, who communicated the notices to Chase Bank.

Thereafter, the Elkhart Circuit Court issued orders directing the issuance of the tax deeds to LRB for both lots of the common property of 1034 East Jackson Boulevard, Elkhart, IN 46516. Chase Bank challenged the issuance of the tax deeds for both lots of the common property of 1034 East Jackson Boulevard, Elk-hart, IN 46516 in the Elkhart Circuit Court under Cause No. 41. Chase Bank alleged that LRB failed to provide adequate notice to Chase and to adequately describe the lots under the pertinent statutes. After a hearing on Chase Bank’s challenge, the Elkhart Circuit Court, on September 19, 2011, ruled in favor of Chase Bank and effectively set aside the tax deeds. In doing so, the Elkhart Circuit Court ruled that LRB failed to comply with pertinent statutes when it did not (1) send the redemption and petition notices to both addresses listed on the Mortgage, and (2) accurately describe the property. On May 21, 2012, the Elkhart Circuit Court denied LRB’s motion to correct error in Cause No. 41.

While the tax deed case was proceeding in the Elkhart Circuit Court under Cause No. 41, the mortgage foreclosure case was also proceeding in the same court under Cause No. 188. During Sandra’s deposition in April of 2010, she stated that all of the signatures on the Note, the Mortgage, and other loan documents either looked like hers or were hers. On January 24, 2012, Chase Bank filed an amended motion for summary judgment and designated Sandra’s deposition statements as evidence. After a March 28, 2012 hearing on the motion, the Elkhart Circuit Court issued a June 18, 2012 “Partial Summary Judgment Entry and Decree of Foreclosure.” (lemmas’ App. 12). In its order, the Elkhart Circuit Court entered summary judgment “in favor of Chase and against Defendants, Anthony J. lemma in rem and Sandra S. lemma in personam as to fewer than all the issues, claims, or parties pursuant to Indiana Trial Rule 56(C).” (lemmas’ App. 12-13). The Court explained that “[t]his entry is partial because the lemmas’ Cross-claim against [Roswell] remains pending....” (lemmas’ App. 13). The Court determined that the lemmas were in default and that Chase Bank’s lien “is superior to all liens, claims or interests asserted by the lemmas’, and [Chase Bank’s] Mortgage should be foreclosed and the Property sold in the manner provided by law.” (lemmas’ App. 14-15).

LRB and the lemmas now appeal.

DISCUSSION AND DECISION

LRB’s contentions turn on questions of law. Whether we review a trial court’s original order or its order on a motion to correct error, we decide questions of law de novo. See Cash in a Flash, Inc. v. Hoffman, 841 N.E.2d 644, 647 (Ind.Ct.App.2006) (original order); Kornelik v. Mittal Steel USA, Inc., 952 N.E.2d 320, 324 (Ind.Ct.App.2011) (order on motion to correct error), trans. denied.

1. Statutory Notice Requirements

LRB contends that the trial court erred in determining that the tax deeds should be set aside because LRB did not comply with statutory notice requirements. LRB’s contention is divided into two parts. First, LRB argues that Chase Bank is not entitled to notice because its status as a mortgagee is not recorded. Second, LRB argues that its mailing of notice to Bank One-Merrillville complies with the relevant notice statutes. We address each argument in turn.

a. Right to Notice

Even though LRB believes that Chase Bank is not entitled to notice because its status as mortgagee is not recorded, LRB concedes that Chase Bank has standing to challenge the issuance of the tax deeds. (LRB’s Br. 13). It is important to note that Chase Bank is not arguing that LRB was required to look outside the chain of title; rather, it is arguing that as the surviving bank in a long line of mergers it can assert Bank One-Merrillville’s right to require that notice be given in accordance with the requirements of pertinent statutes and due process. Under federal law pertaining to bank mergers, Chase Bank was not required to file anything or to give public notice of its interest in the two lots with a common address of 1034 East Jackson Boulevard, Elkhart, IN 46516 because Bank One-Merrillville had already done so, and Chase Bank acquired Bank One-Merrillville’s interest as a matter of law. See CFS, LLC v. Bank of America, 962 N.E.2d 151, 154 (Ind.Ct.App.2012) (citing 12 U.S.C. § 215a(e)).

b. Relevant Notice Statutes

“A tax sale is purely a statutory creation, and material compliance with each step of the statute is required.” Nieto v. Kezy, 846 N.E.2d 327, 337 (Ind.Ct.App.2006) (citing Porter v. Bankers Trust Co. of California, N.A., 773 N.E.2d 901, 906 (Ind.Ct.App.2002)). “While a tax deed creates a presumption that a tax sale and all of the steps leading to the issuance of the tax deed are proper, the presumption may be rebutted by affirmative evidence to the contrary.” Id. An order to issue a tax deed will be given if the court finds that the notices have been provided pursuant to the statutes. Diversified Invs., LLC v. U.S. Bank, N.A., 838 N.E.2d 536, 542 (Ind.Ct.App.2005), trans. denied. However, “title conveyed by a tax deed may be defeated if the notices were not in substantial compliance with the manner prescribed” by the pertinent statutes. Porter, 773 N.E.2d at 906.

The Indiana Supreme Court summarized the procedures for obtaining a tax deed in Tax Certificate Investments, Inc. v. Smethers:

A purchaser of Indiana real property that is sold for delinquent taxes initially receives a certificate of sale. A one-year redemption period ensues. If the owners fail to redeem the property during that year, a purchaser who has complied with the statutory requirements is enti-tied to a tax deed. The property owner and any person with a “substantial property interest of public record” must each be given two notices.
The first notice announces the fact of the sale, the date the redemption period will expire, and the date on or after which a tax deed will be filed (i.e., redemption notice). The second notice announces that the purchaser has petitioned for a tax deed (i.e., notice of petition for tax deed).

714 N.E.2d 131, 133 (Ind.1999) (internal citations omitted).

With regard to the redemption notice, Indiana Code § 6-l.l-25-4.5(a) requires that a tax sale purchaser is entitled to a tax deed to the property that was sold only if the purchaser “gives notice of the sale to the owner of record at the time of sale and any person with a substantial property interest of public record in the tract or real property.” The person shall give notice by sending a copy of the notice by certified mail to “any person with a substantial property interest of public record at the address for the person included in the public record that indicates the interest.” Ind.Code § 6-l.l-25-4.5(d). With regard to the notice of petition for tax deed, Indiana Code § 6-l.l-25-4.6(a) requires that the purchaser give the notice required by section 4.5(d). The “substantial property interest of the public record” requirement under sections 4.5 and 4.6 refers to “title to or interest in a tract possessed by a person and recorded in the office of a county recorder or available for public inspection in the office of a circuit court clerk no later than the hour and date the sale is scheduled to commence under [IC 6-1.1-24].” I.C. § 6-1.1-24-1.9.

The trial court concluded that sections 4.5 and 4.6 required LRB to send notices not only to the mortgagee named in the Mortgage — Bank One-Merrillville— but also to Bank One-Indianapolis. As noted in the statement of the facts above, the Mortgage states in capital letters that the address to Bank One-Indianapolis was given solely for the recorder’s use; it did not establish that Bank One-Indianapolis had an interest in the two lots with a common address of 1034 East Jackson Boulevard, Elkhart, IN 46516. Indeed, the first paragraph of the Mortgage unequivocally established that the interest holder was Bank One-Merrillville, 1000 East 80th Place, Merrillville, IN 46410.

The trial court further concluded that the address to Bank One-Indianapolis was in actuality an address for Chase Bank because it is an address for “Chase Tower.” (LRB’s App. 232). There is no indication in the recorded document that the address for the non-mortgagee Bank One-Indianapolis is an address for “Chase Tower,” and even if the address did specifically refer to the “Chase Tower,” there is no indication in the recorded mortgage that “Chase Tower” is or could be mortgagee of the property. Indeed, there are many entities who have their offices in the Chase Tower, including the legal counsel representing Chase Bank’s property interests in the two lots of the common property of 1034 East Jackson Boulevard, Elkhart, IN 46516.

LRB was required by sections 4.5 and 4.6 to give notice to “any person with a substantial property interest of public record” in the two lots with a common address of 1034 East Jackson Boulevard, Elkhart, IN 46516. The Mortgage did not indicate that Bank One-Indianapolis was such a person; thus, LRB had no responsibility under the statute to give notice to Bank One-Indianapolis. The trial court erred in determining that the statute gave notice rights to Chase Bank as the merging entity that exceed those owed to Bank One-Merrillville, the original mortgagee and/or lender. Thus, the trial court erred in setting aside the tax deeds on the basis that LRB failed to comply with the notice provisions of the pertinent statutes.

2. Due Process

LRB contends that the trial court erred in concluding that its notices did not comply with due process requirements. Initially, we must determine whether the due process clause applies to a non-governmental entity like LRB. See Tulsa Professional Collection Servs., Inc. v. Pope, 485 U.S. 478, 485, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988) (holding that the “Fourteenth Amendment protects [property interests], however, only from a deprivation by state action”). However, “when private parties make use of state procedures with the overt, significant assistance of state officials, state action may be found.” Id. at 486, 108 S.Ct. 1340. The government is significantly involved in tax sale proceedings as the taxing authority that files an application for judgment and order for sale; indeed, it is the county government that takes the property and sells it for unpaid taxes. See Marion County Auditor v. Sawmill Creek, LLC, 964 N.E.2d 213, 217 (Ind.2012). Furthermore, in some counties, the county auditor is responsible for giving notice to the property owners and/or persons with interest in the property. See I.C. 6-1.1-24-4; I.C. § 6-l.l-25-4.5(a)(3)(B). Without discussing the issue of state action by a nongovernmental entity, both our Supreme Court and this Court have held that a nongovernmental tax purchaser must comply with the notice requirements of the due process clause. See Smethers, 714 N.E.2d at 133-34; Combs v. Tolle, 816 N.E.2d 432, 438-39 (Ind.Ct.App.2004). We will follow precedent and evaluate whether LRB’s notices comply with due process requirements.

In Sawmill, our Supreme Court reiterated the federal standard that when notice is due ‘[t]he means must be such as one desirous of actually informing the absentee might clearly adopt to accomplish it.’ ” 964 N.E.2d at 218 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 315, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). Thus, the notice must be “reasonably calculated under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id.‘But if with due regard for the practicalities and peculiarities of the case these [notice] conditions are reasonably met, the constitutional requirements are satisfied.’” Id. at 219 (quoting Mullane, 339 U.S. at 314-15, 70 S.Ct. 652).

In the present case, LRB sent notice by both registered and regular mail to the recorded address for the mortgagee/lender holding a recorded interest in the two lots with a common address of 1034 East Jackson Boulevard, Elkhart, IN 46516. The mail was returned undeliverable. because the mortgagee/lender of record — Bank One-Merrillville — no longer exists. However, LRB, anticipated the notice problem after engaging a title company to conduct a lien search, and because of the search, it sent notice to Chase Bank through its counsel actively engaged in asking the Elkhart Circuit Court to foreclose upon the two lots with a common address of 1034 East Jackson Boulevard, Elkhart, IN 46516. LRB gave notice to Chase Bank’s counsel, counsel received the notice and passed it along to Chase Bank, and Chase Bank thereafter sat on its rights until after the tax deeds were issued.

As it did in its argument under Issue 1, Chase Bank makes much of LRB’s decision not to send notice to Bank One-Indianapolis. However, LRB proceeded one step farther by giving notice to Chase Bank (the Bank with the current interest in the property) through its attorneys who were pursuing foreclosure in the Elkhart Circuit Court of the two lots with a common address of 1034 East Jackson Boulevard, Elkhart, IN 46516 at all times relevant to the tax sale involving the same property. LRB should not be punished for failing to anticipate that Chase Bank would not act upon this notice in a timely manner.

Chase Bank also argues that LRB did not satisfy due process when it gave notice to Chase Bank through counsel hired by Chase Bank to actively pursue foreclosure in the Elkhart Circuit Court of the two lots with a common address of 1034 East Jackson Boulevard, Elkhart, IN 46516. In support of its argument, Chase Bank first cites Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 817 (Ind.2012). In Citimort-gage, our Supreme Court held that due process is not satisfied when a second mortgagee involved in an Indiana state court gives notice of a foreclosure to the first mortgagee’s bankruptcy counsel involved in a federal court proceeding. Id. In other words, due process requires more than the mere possibility of notice to the intended party through an attorney hired to represent that party in another action. Here, however, LRB gave notice to counsel actively engaged in foreclosing on property that their clients were in imminent danger of losing through the tax sale. The tax sale and the foreclosure actions in the Elkhart Circuit Court were inextricably linked as counsel on both sides were actively engaged in preserving the rights to the two lots with a common address of 1034 East Jackson Boulevard, Elkhart, IN 46516.

Chase Bank also cites several other cases in support of its due process argument. The first case is Bennett v. Circus U.S.A., 108 F.R.D. 142, 147-49 (N.D.Ind.1985). This case is inapposite as it does not discuss due process requirements, and it involves an attempt to personally serve a defendant through his corporate agent. The second case is Hardy v. Maldonado, 632 N.E.2d 381, 382 (Ind.Ct.App.1994), which discusses the relationship between due process and service of process under the Indiana Trial Rules. In the case, the plaintiff served Mrs. Hardy but failed to serve her husband and son. This Court, citing Washington v. Allison, 593 N.E.2d 1273, 1275 (Ind.Ct.App.1992), held that “actual knowledge derived from a source other than service of process does not satisfy the due process requirement” contemplated under Indiana Trial Rule 4.1. The case is inapposite as it deals with service of process where notice is left to the chance and guesswork. The final case is Washington, wherein the court held that “actual knowledge of a pending lawsuit derived from sources other than service is not relevant to the question whether the manner of service satisfies due process.” While the court’s statement is true, it must be read in the context of the preceding sentence which states that due process “requires service of notice in a manner reasonably calculated to inform the defendant of the pending lawsuit.” Id.

Here, notice was required under the tax sale statutes, not the trial rules. Such notice can be achieved by yard signs, newspaper notices, and notices on doors; certainly, notice through counsel representing Chase Bank’s property rights on the property is sufficient. More importantly, the issue is not Chase Bank’s actual knowledge; rather, the issue is whether LRB gave notice under the circumstances of this case in a manner reasonably calculated to inform Chase Bank of the pending loss of its interest in the two lots with a common address of 1034 East Jackson Boulevard, Elkhart, IN 46516. Under the particularities and peculiarities of this case, LRB has done so. Accordingly, the trial court erred as a matter of law in determining that LRB’s notices did not comply with due process requirements.

3. Description of Property

LRB contends that the trial court erred in concluding that the content of its redemption notices did not substantially comply with subsection 4.5(e)(3), which provides that the notice shall contain a description of the tract or real property shown on the certificate of sale. LRB also contends that the trial court erred in concluding that the notices did not substantially comply with subsection 4.5(e)(14), which provides that the redemption notice must include “[t]he street address, if any, or a common description of the tract or real property.” LRB further contends that the trial court erred in determining that the notices of petition for tax deeds did not comply with section 4.6, which provides that notices under the section must be given in the same manner as under section 4.5.

Indiana Code § 6-1.1-25-16(6) provides that a person may, upon appeal, defeat the title conveyed by a tax deed “only if ... the description of the tract or real property was so imperfect as to fail to describe it with reasonable certainty.” Additionally, Indiana Code § 6-1.1-25-16(7) provides that a person may, upon appeal, defeat the title conveyed by a tax deed “only if notices required by ... sections 4.5 and 4.6 were not in substantial compliance with the manner prescribed in those sections.”

Chase Bank argued below, and the trial court found, that the description of Lot 3 in the notices refers to the property’s address as 1034 E. Jackson St, Elk-hart, IN 46516 instead of 1034 E. Jackson Blvd., Elkhart, IN 46516. The trial court concluded as a matter of law that the use of “Street” rather than “Boulevard” “violate[d] Indiana Code § 6-1.1-25^1.5(e)(3).” (LRB’s App. 234). The trial court does not give a reason why this mistake preceded by an accurate legal description of the property as found on the tax deeds does not constitute substantial compliance with section 4.5. We agree with the trial court that a mistake was made, but we find as a matter of law that the tax deed was in substantial compliance with section 4.5.

Chase Bank argued below, and the trial court found, that the “Verified Petition For Order Directing the Auditor of Elkhart County, Indiana To Issue A Tax Deed” (LRB’s App. 297; 299) and the “Affidavit and Proof of Service” (LRB’s App. 301; 338) contained legal descriptions that was “exactly the same for both [Lot 3] and [Lot 4] and are not correct.” (LRB’s App. 234). The trial court again found that this “discrepancy” violated “Ind.Code § 6-1.1-25-4.5” Id. The trial court failed to give a reason why the legal description did not comply with section 4.5.

First, we note that the documents referred to by the trial court are not the notices described under section 4.5. Second, we observe that the legal description given on these documents is the exact description used by Chase Bank’s successor in the Mortgage to describe its interest as mortgageefiender in the two lots with a common address of 1034 East Jackson Boulevard, Elkhart, IN 46516. Finally, we observe that the legal descriptions in the notices to Chase Bank through its counsel are the same descriptions given in the tax sale certificates. Given these circumstances, we must conclude that the trial court erred as a matter of law in concluding that the notices were not in substantial compliance with section 4.5.

4. Effect of the Resolution of Tax Sale Issues on the Grant of Partial Summary Judgment In the Foreclosure Case

At the time that the Elkhart Circuit Court granted partial summary judgment in Cause No. 188 ordering foreclosure and the subsequent sale of the two lots with a common address of 1034 East Jackson Boulevard, Elkhart, IN 46516, the Elkhart Circuit Court’s order under Cause No. 41 setting aside the tax sale deeds of the two lots with a common address of 1034 East Jackson Boulevard, Elkhart, IN 46516 was a matter that was subject to appeal. In this opinion, we have decided the Cause No. 41 tax sale deed issues in favor of LRB and against Chase Bank. LRB is the owner of the two lots with a common address of 1034 East Jackson Boulevard, Elkhart, IN 46516, and there is no longer any basis for the trial court’s grant of summary judgment and foreclosure in Cause No. 188. Accordingly, the trial court’s order should be set aside.

CONCLUSION

We reverse and remand with instructions that Elkhart Circuit Court vacate its order setting aside the tax deeds in Cause No. 41 and its grant of summary judgment and decree of foreclosure in Cause No. 188.

Reversed and remanded.

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

      . Indiana Appellate Rule 38(B) provides that where "two (2) or more appeals involve a common question of law or fact, the Court on Appeal may order a consolidation of the appeals upon its own motion, or upon the motion of any party.”

      . The Honorable David Ready, Special Judge presided over Cause No. 188.

      . The Honorable Terry C. Shewmaker presided over Cause No. 41.

      . Indiana Code § 6-1.1-25-4.6 was amended effective March 14, 2012. See Pub.L. No. 56-2012, § 15. The amendment does not apply in this case.


author: PANEL PER CURIAM.

text:
    Frederick L. KING, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 02A03-1212-CR-515.
    Court of Appeals of Indiana.
    July 2, 2013.
    Anthony S. Churchward, Deputy Public Defender, Fort Wayne, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Andrew Falk, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

      . In per curiam opinions, judges serving on the panel are listed in order of seniority. Each member of the panel has considered the briefs submitted on appeal, and as in every appeal the record submitted has been available for further review by members of the panel as may be needed. Each member of the panel has voted on the appeal, and where as here, the opinion is unanimous, the per curiam opinion is the opinion of all panel members.

   OPINION

PANEL PER CURIAM.

Frederick L. King (“King”) pled guilty to Robbery, as a Class B felony, after taking a $14.99 shirt from a Fort Wayne retailer; as he left the store, King pushed a loss prevention officer to the floor, causing injury. The sentencing range for a Class B felony is from five years to twenty years imprisonment, with an advisory sentence of ten years. See Ind.Code § 35-50-2-5.

The trial court sentenced King to ten years imprisonment, with six years of the sentence suspended to probation. As aggravating circumstances, the trial court noted that King had three prior juvenile delinquency adjudications and, at the time of the instant offense, had been released on bond in another case involving the use of a firearm, resulting in a Class C felony charge. As mitigating circumstances, the trial court noted that King had pled guilty and expressed remorse.

The authority granted to this Court by Article 7, § 6 of the Indiana Constitution permitting appellate review and revision of criminal sentences is implemented through Appellate Rule 7(B), which provides: “The Court may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Under this rule, and as interpreted by case law, appellate courts may revise sentences after due consideration of the trial court’s decision, if the sentence is found to be inappropriate in light of the nature of the offense and the character of the offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind.2008); Serino v. State, 798 N.E.2d 852, 856-57 (Ind.2003). The principal role of such review is to attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.

Having reviewed the matter, we conclude that the trial court did not impose an inappropriate sentence under Appellate Rule 7(B), and the sentence does not warrant appellate revision. Accordingly, we decline to disturb the sentence imposed by the trial court. See Chambers v. State, 989 N.E.2d 1257 (Ind.2013); Merida v. State, 987 N.E.2d 1091 (Ind.2013); Lynch v. State, 987 N.E.2d 1092 (Ind.2013).

Judgment affirmed.

NAJAM, J., BAILEY, J., and BARNES, J., concur.