text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Tita G. TRAJANO, Defendant-Appellant.
    No. 2-16-0322
    Appellate Court of Illinois, Second District.
    Opinion filed August 22, 2018
    James E. Chadd, Thomas A. Lilien, and Yasemin Eken, of State Appellate Defender's Office, of Elgin, for appellant.
    Tricia L. Smith, State's Attorney, of Belvidere (Patrick Delfino, David J. Robinson, and Adam Trejo, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE BURKE delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial in the Boone County circuit court, defendant, Tita G. Trajano, was convicted of criminal neglect of an elderly person ( 720 ILCS 5/12-21(a)(2) (West 2008) (now 720 ILCS 5/12-4.4a(b)(1)(B) ) and sentenced to 18 months of conditional discharge. On appeal, she argues that the State failed to prove beyond a reasonable doubt that she (1) knowingly failed to perform acts that she knew or reasonably should have known were necessary to maintain the health of the victim, Richard Brown, and (2) did not make a "good[-]faith effort" to care for Richard. Id. § 12-21(a)(2), (d). We affirm.

¶ 2 I. BACKGROUND

¶ 3 Evidence presented at trial revealed that, in February 2009, Dan Brown, Richard's son, contracted with BrightStar Healthcare (BrightStar) to provide live-in home health care for his mother, Eileen Brown, who lived with Richard in an apartment attached to Katherine and Chris Landgraff's home. Katherine is Dan's sister. Although the family primarily sought care for Eileen, who had severe Alzheimer's disease, they also sought care for Richard, who, at 85, was blind in one eye, deaf in one ear, and had difficulty moving around without a cane or walker. Additionally, the family believed that Richard had dementia, although Richard was never formally diagnosed with this. Care for Richard included preparing his meals; doing his laundry; helping him bathe, dress, and use the bathroom if he wanted help; and generally keeping him safe.

¶ 4 BrightStar contracted with Joyful Hearts Home Health Support, Inc. (Joyful Hearts), to provide the necessary services. Joyful Hearts, which was owned at least in part by Esmeralda Roxas, placed Kaye Jensen in the Browns' home. Defendant substituted for Jensen.

¶ 5 Defendant is a small Filipino woman in her seventies. In the Philippines, she took premed classes, which consisted of psychology, physiology, and biochemistry, and later switched her major to nutrition. Just prior to graduating, defendant got married, and she never received her degree. Defendant and her husband had five children and moved to the United States in 1979. In 2008, defendant began working for Joyful Hearts. Defendant testified that she had "a lot" of clients, and she described herself as an "experienced caregiver."

¶ 6 Between February and May 2009, defendant provided services three times to the Browns, who defendant indicated were physically combative and walked around all night shouting. The last time defendant provided services for the Browns, she reported to their home on Thursday, May 14, 2009, at around 5 p.m. Although the Landgraffs met with defendant at that time, they did not discuss with her anything having to do with caring for the Browns.

¶ 7 Katherine testified that, in the Browns' apartment, there was a list on a desk in the kitchen that contained contact information. Katherine indicated that "[e]verything was on there." Katherine theorized that Jensen showed the list to defendant, because "[t]hat was her job" and Jensen was "really thorough." Jensen testified that there was contact information for the family, Joyful Hearts, and BrightStar on a sticker on the Browns' refrigerator, and she believed that she pointed those out to defendant. Defendant testified that she did not know the phone numbers of Katherine or BrightStar.

¶ 8 On May 15, 2009, the Landgraffs left for work early in the morning. While defendant was caring for Eileen, she heard Richard call out to her from the bedroom. Defendant went to the bedroom and saw that Richard had fallen out of bed and was on the hardwood floor. Defendant tried to help Richard, who was skinny but over six feet tall, stand up. She could not do it. While she was attempting to help Richard, Eileen called out to her. Eileen had soiled herself while sitting on the couch, so defendant left Richard and tended to Eileen. Defendant testified that this took around one hour.

¶ 9 At around 10:30 or 11 a.m., defendant called Jensen, who she knew was away for the weekend. Jensen did not answer the phone, and according to Jensen, defendant did not leave a voicemail. Defendant asserted that she did leave a voicemail for Jensen. Although defendant testified that she tried to call Jensen numerous times, Jensen stated that defendant called her only once. Defendant also tried to contact Roxas, but she, too, was unavailable, and defendant did not leave her a voicemail. Defendant acknowledged that Roxas was far away from the Browns' home.

10 At 1:30 p.m., Jensen saw that defendant had called her earlier. She called defendant, and defendant told her that Richard was on the floor. Defendant did not tell Jensen how long Richard had been on the floor or if Richard was injured. Defendant told Jensen that she called Roxas and that she tried to get Richard up but could not do so, as she was too little. Jensen testified that she told defendant to call Chris, who would be home soon and could help her. Defendant testified that Jensen told her that she should wait for Chris, and she did not recall Jensen telling her to call Chris. Defendant stated that she checked on Richard a number of times throughout the day and that he was fine.

¶ 11 When Chris returned home at around 3:30 p.m., he received a phone call from defendant. Defendant asked him to come over to the Browns' apartment, but she did not say why. Chris immediately went over to the home, and defendant told him that Richard had fallen. Chris went into the bedroom and saw Richard on the floor. Chris elaborated that Richard was on his hands and knees, with all of his weight on his legs, and that "it was obvious [Richard] couldn't get up on his own." Chris helped Richard get into a chair, Richard told Chris that he was tired, and Chris helped Richard get into bed. In doing so, Chris cleaned up blood from abrasions he noticed on Richard's ankles. Chris testified that defendant tried to help him move Richard, told Chris that she had given Richard cookies and a glass of water, and said that Richard had been on the floor for "[j]ust a little while." Nothing defendant told Chris in her "[l]imited" account of what had happened raised Chris's concerns.

¶ 12 When Katherine returned home from work at about 5:30 or 6 p.m., Chris told her that Richard had fallen out of bed. Katherine went to the Browns' apartment and saw that Richard was in bed. Richard did not tell Katherine anything about falling out of bed. When asked how he felt, he responded that he was tired. Katherine spoke to defendant, and defendant did not describe how Richard fell out of bed or what she did after he fell. Defendant told Katherine that Richard remained on the floor for "[a] little while."

¶ 13 The next morning, May 16, 2009, the Landgraffs went to the Browns' apartment and spoke to Richard. He again said that he was tired. Katherine and Chris changed Richard and noticed that his knees and shins were banged up quite a bit. Katherine phoned Dan, as Katherine and Chris believed that Richard "just wasn't right."

¶ 14 When Dan arrived, he tried to help Richard out of bed. Richard screamed that it hurt, so the family decided to call an ambulance. When the paramedics arrived, Richard could not get out of bed and onto the gurney, as he was in great pain. David Triplett, one of the paramedics, described Richard's pain as "obvious." He noticed that Richard's legs were bruised and he had abrasions on his arms and legs.

¶ 15 In the emergency room, Dr. Aren Jimenez examined Richard. Jimenez noticed that Richard had a number of bruises on his forearms and abrasions on his knees. After running various tests, Jimenez diagnosed Richard as having rhabdomyolysis, which can result from the release of protein into the blood due to the failure to move one's muscles. Dr. Azra Ali, who also examined Richard, observed that Richard had fresh bruises on his legs, which were consistent with having fallen out of bed. Ali confirmed that Richard was suffering from rhabdomyolysis. Dr. Mitchell Scott King, an expert retained by the State, agreed with the diagnosis and opined that Richard was on the ground for at least 2 hours but more likely 4½ hours. King theorized that Richard's health deteriorated because he was on the floor for so long.

¶ 16 Later in the evening of May 16, 2009, defendant told Chris that Richard had been on the floor for 1 to 1½ hours. Defendant then said that Richard was on the floor for two hours. Defendant later told Katherine that Richard had been on the floor since noon.

¶ 17 Based on this evidence, the jury found defendant guilty, and defendant filed a posttrial motion, arguing that she was not proved guilty beyond a reasonable doubt. The court denied the motion, finding that there was enough evidence for a reasonable jury to find defendant guilty beyond a reasonable doubt. This timely appeal followed.

¶ 18 II. ANALYSIS

¶ 19 On appeal, defendant argues that she was not proved guilty beyond a reasonable doubt of criminal neglect of an elderly person. To prove defendant guilty of that offense as charged here, the State had to establish that (1) defendant knowingly failed to call for assistance when she knew or reasonably should have known that this was necessary to maintain Richard's health and (2) such failure caused Richard's health to suffer. See 720 ILCS 5/12-21(a)(2) (West 2008). However, liability may not be imposed on a defendant "who has made a good[-]faith effort to provide for the health and personal care of an elderly person * * * but through no fault of h[er] own has been unable to provide such care." Id. § 12-21(d).

¶ 20 When reviewing whether the State presented sufficient evidence to sustain a conviction, we must decide whether, viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. People v. Cunningham , 212 Ill. 2d 274, 278, 288 Ill.Dec. 616, 818 N.E.2d 304 (2004). A reviewing court will not retry a defendant ( id. at 279, 288 Ill.Dec. 616, 818 N.E.2d 304 ), and it will greatly defer to the credibility determinations of the trier of fact ( People v. Ortiz , 196 Ill. 2d 236, 259, 256 Ill.Dec. 530, 752 N.E.2d 410 (2001) ). A guilty finding may be supported not only by the evidence but also by any reasonable inferences that may be drawn from the evidence. Cunningham , 212 Ill. 2d at 279-80, 288 Ill.Dec. 616, 818 N.E.2d 304.

¶ 21 Defendant claims that the State failed to establish beyond a reasonable doubt that (1) she knowingly failed to call for assistance when she knew or reasonably should have known that doing so was necessary to maintain Richard's health and (2) she did not make a "good[-]faith effort" to care for Richard. 720 ILCS 5/12-21(a)(2), (d) (West 2008). We consider each contention in turn.

¶ 22 A. Mental State

¶ 23 We first consider whether defendant knowingly failed to call for assistance when she knew or reasonably should have known that doing so was necessary to maintain Richard's health. Id. § 12-21(a)(2). A defendant acts with "knowledge" when she is "consciously aware" that her conduct is "practically certain" to cause the result. Id. § 4-5(b). Whether a defendant acted with knowledge is a question of fact. See People v. Schmalz , 194 Ill. 2d 75, 81, 251 Ill.Dec. 489, 740 N.E.2d 775 (2000).

¶ 24 Knowledge is usually proved by circumstantial, rather than direct, evidence. Ortiz , 196 Ill. 2d at 260, 256 Ill.Dec. 530, 752 N.E.2d 410. Thus, knowledge may be established by evidence of the defendant's acts, statements, or conduct, as well as the surrounding circumstances, that supports a reasonable inference that the defendant was consciously aware that the result was practically certain to be caused. See People v. Fleming , 2013 IL App (1st) 120386, ¶ 75, 370 Ill.Dec. 408, 988 N.E.2d 184 ; People v. Herr , 87 Ill. App. 3d 819, 822, 42 Ill.Dec. 827, 409 N.E.2d 442 (1980).

¶ 25 Knowledge is different from what a defendant "should have known." People v. Nash , 282 Ill. App. 3d 982, 986, 218 Ill.Dec. 410, 669 N.E.2d 353 (1996). " '[S]hould have known' implicates 'the standard of care which a reasonable person would exercise' and therefore pertains to the lesser mental states of 'recklessness' and 'negligence.' " Id. (quoting 720 ILCS 5/4-6, 4-7 (West 1992) ). A person acts recklessly when she consciously disregards a substantial risk that a result will occur. 720 ILCS 5/4-6 (West 2008). A person acts negligently when she fails to be aware of a substantial risk that a result will occur. Id. § 4-7.

¶ 26 With the above principles in mind, we turn to the facts presented here. Viewed in the light most favorable to the State, the evidence revealed that Richard, an 85-year-old man with many health issues, fell out of bed and onto a hardwood floor. He remained on the floor for approximately 4½ hours. During that time, defendant, who had taken premed courses and who described herself as an "experienced caregiver," made only two phone calls, despite the fact that a detailed list of contact numbers was left in the Browns' home. The two people defendant called were Roxas, her employer, and Jensen, the regular caregiver. Neither answered when defendant called, defendant left no voicemail for either, and defendant acknowledged that neither would have been be able to provide immediate assistance. Several hours after defendant called Jensen, Jensen returned defendant's call. Although Jensen told defendant during that call that Chris would be home soon, she also told defendant to call Chris. Defendant did not promptly call Chris, 911, or anyone else who could help her with Richard. Although defendant fed Richard, gave him water, and checked on him, a rational jury could find that defendant knowingly failed to call for immediate assistance when she knew or reasonably should have known that calling for immediate assistance was necessary to maintain Richard's health.

¶ 27 Defendant argues that the State failed to meet its burden because it did not "show how [defendant] would have known that despite her efforts to care for Richard, his immobility was 'practically certain' to cause a condition that has no physical manifestations and can only be diagnosed through laboratory tests." Defendant's argument assumes too much. As the State notes, the statute does not require that the caregiver know the type of affliction that could manifest itself because of the caregiver's inaction. Rather, the statute requires only that the caregiver act as necessary to maintain the elderly person's health. Id. § 12-21(a)(2). Given that defendant attempted to move Richard, continually checked on him, and made two phone calls about what to do, it was reasonable to infer that she knew (or reasonably should have known) that leaving Richard on the floor for several hours would not maintain his health.

¶ 28 Also unavailing is defendant's claim that she cannot be held liable when no one else was concerned enough about Richard to call 911. Only defendant's conduct is at issue here. In any event, defendant gave Jensen, Chris, and Katherine only a "[l]imited" version of what had happened and kept changing her account of how long Richard had remained on the floor, lengthening that time as the weekend went on. A rational jury could have determined that this showed defendant's consciousness of guilt, which supports our holding that defendant was proved guilty beyond a reasonable doubt. See People v. Seiber , 76 Ill. App. 3d 9, 13-14, 31 Ill.Dec. 726, 394 N.E.2d 1044 (1979).

¶ 29 B. Good-Faith Effort

¶ 30 Defendant also argues that the State failed to prove beyond a reasonable doubt that she did not act in good faith in attempting to care for Richard. The statute provides:

"Nothing in this Section shall be construed to impose criminal liability on a person who has made a good[-]faith effort to provide for the health and personal care of an elderly person * * * but through no fault of h[er] own has been unable to provide such care." 720 ILCS 5/12-21(d) (West 2008).

¶ 31 In construing this provision, we are guided by the well-settled rules of statutory construction. The primary objective in construing a statute is to ascertain and give effect to the legislature's intent. People v. Martino , 2012 IL App (2d) 101244, ¶ 25, 361 Ill.Dec. 290, 970 N.E.2d 1236. The surest and most reliable indicator of that intent is the statutory language. Id. We must construe the statute as a whole, giving the language its plain and ordinary meaning. Id. When the language is clear and unambiguous, we must apply the statute without resorting to any extrinsic aids of construction. Id. We review the construction of a statute de novo . People v. Manning , 2018 IL 122081, ¶ 16, --- Ill.Dec. ----, --- N.E.3d ----.

¶ 32 Two issues arise when construing this provision. First, the statute does not indicate who has the burden of proving the exemption. As defendant notes, "[w]here a criminal statute contains an exemption and the legislature has not set forth a provision within the statute allocating the burden of persuasion as to the exemption, we presume that the burden is on the State, not the defendant." People v. Cannon , 2015 IL App (3d) 130672, ¶ 21, 388 Ill.Dec. 659, 24 N.E.3d 939. Here, the State concedes that it had the burden of proving a lack of good faith.

¶ 33 Second, the statute does not define "good faith," so we may use a dictionary. People v. Beachem , 229 Ill. 2d 237, 244-45, 321 Ill.Dec. 793, 890 N.E.2d 515 (2008) ; see also People v. Kucharski , 2013 IL App (2d) 120270, ¶ 41, 370 Ill.Dec. 140, 987 N.E.2d 906. "Good faith" means "honesty" (Merriam-Webster's Collegiate Dictionary 502 (10th ed. 2000) ) or "a state of mind consisting in * * * faithfulness to one's duty or obligation" (Black's Law Dictionary 808 (10th ed. 2014) ). Thus, the statute required the State to prove that defendant did not make an honest and faithful effort to provide for Richard's health. Viewing the evidence in the light most favorable to the State, we hold that the State met its burden.

¶ 34 The evidence established that defendant was an "experienced caregiver." After Richard fell onto the floor, she tried to get him up, but she was unable to move him. She then made only two phone calls, to people who she knew could not provide immediate assistance. Hours later, she received a call from Jensen, who told her to call Chris. Defendant did not make that call until Chris returned home, and she told him that Richard had been on the floor for "[j]ust a little while." Although defendant checked on Richard and gave him food and water, the jury could find that this was insufficient to constitute a good-faith effort to care for Richard, an elderly man with many ailments who was stranded on a hardwood floor for several hours.

¶ 35 Defendant argues that the State failed to meet its burden because "she honestly did the best she could under the circumstances." Supporting her position, defendant notes that she, too, was elderly, was much smaller than Richard, and also had to care for Eileen. We believe that such evidence actually strengthens the conclusion that defendant did not act in good faith. That is, given that defendant clearly could not provide Richard with needed care, an honest and faithful effort required her to seek immediate help from someone else.

¶ 36 We also find unpersuasive defendant's contention that the State failed to establish that she acted with "malice." We do not find that an absence of "good faith" requires the presence of malice. Rather, as noted above, it is merely the absence of an honest and faithful effort to provide needed care.

¶ 37 III. CONCLUSION

¶ 38 For the reasons stated, we affirm the judgment of the circuit court of Boone County. As part of our judgment, we grant the State's request that defendant be assessed $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls , 71 Ill. 2d 166, 178, 15 Ill.Dec. 759, 374 N.E.2d 194 (1978).

¶ 39 Affirmed.

Presiding Justice Hudson and Justice Hutchinson concurred in the judgment and opinion.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the MATTER OF Tia R. BREWER, Respondent.
    Supreme Court Case No. 18S-DI-299
    Supreme Court of Indiana.
    FILED November 16, 2018
    NO APPEARANCE FOR THE RESPONDENT
    ATTORNEYS FOR INDIANA SUPREME COURT DISCIPLINARY COMMISSION: G. Michael Witte, Executive Director Aaron Johnson, Staff Attorney
   Per Curiam.

We find that Respondent, Tia R. Brewer, committed attorney misconduct by, among other things, neglecting clients' cases, failing to appear at show cause hearings, failing to withdraw from cases when her abuse of cocaine rendered her unable to assist her clients, committing a crime that reflects adversely on her fitness as a lawyer, and failing to cooperate with the disciplinary process. For this misconduct, we conclude that Respondent should be suspended for at least three years without automatic reinstatement.

The matter is before us on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's verified disciplinary complaint. Respondent's 2004 admission to this state's bar subjects her to this Court's disciplinary jurisdiction. See IND. CONST. art. 7, § 4.

Procedural Background and Facts

The Commission filed a "Verified Complaint for Disciplinary Action" against Respondent on May 30, 2018. After service by certified mail at Respondent's address was unsuccessful, constructive service was made upon the Clerk as Respondent's agent pursuant to Admission and Discipline Rule 23 (23.1)(c). Respondent has not appeared or responded in these proceedings. Accordingly, the Commission filed a "Motion for Judgment on the Complaint," and the hearing officer took the facts alleged in the disciplinary complaint as true.

No petition for review of the hearing officer's report has been filed. When neither party challenges the findings of the hearing officer, "we accept and adopt those findings but reserve final judgment as to misconduct and sanction." Matter of Levy , 726 N.E.2d 1257, 1258 (Ind. 2000).

Counts 1 through 11. Respondent was hired by eleven separate clients to represent them in various criminal and family law cases. She neglected each case. Respondent failed to keep one client informed regarding the status of the client's case and failed to inform three clients that Respondent was not going to attend a hearing prior to her failure to attend. She failed to return a client's file after being terminated. She missed the deadline to file an Appellant's Brief, resulting in dismissal of the client's appeal, though the Court of Appeals later allowed a belated appeal.

Respondent failed to attend hearings in nine of the cases, two of which were final hearings in family law matters. Respondent's failure to attend hearings resulted in three show cause proceedings against her. Respondent appeared at one show cause hearing and admitted she was suffering from personal issues. In the other two, Respondent failed to appear. After the court entered a bench warrant against Respondent in one case, Respondent appeared and admitted she had not appeared for a change of plea hearing or the show cause hearing because she was voluntarily intoxicated at the time. Respondent has admitted to abusing cocaine during much of this period, rendering her unable to assist her clients.

Count 12. On May 26, 2017, when the bench warrant was served on Respondent, she was incoherent and impaired. Law enforcement found cocaine, marijuana, and drug paraphernalia in Respondent's possession. She was charged with one Level 6 felony and two misdemeanors. She pled guilty to possession of cocaine as a Level 6 felony, though the trial court entered a judgment of conviction for a misdemeanor.

Count 13. On June 12, 2017, the Commission sent Respondent a demand for a response to an investigation. After receiving no response, the Commission filed a motion for rule to show cause as to why Respondent should not be suspended for non-cooperation. This Court ordered Respondent to respond within ten days. Only then did Respondent comply. Thereafter, the Court granted the Commission's motion to dismiss the show cause petition and ordered Respondent to reimburse the Commission $519.89.

The hearing officer cited as an aggravating factor Respondent's prior discipline and found no evidence in mitigation. The hearing officer recommended Respondent be suspended from the practice of law for three years without automatic reinstatement.

Discussion and Discipline

We concur in the hearing officer's findings of fact and conclude Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

1.3: Failure to act with reasonable diligence and promptness.
1.4(a)(3): Failure to keep a client reasonably informed about the status of a matter.
1.16(a)(2): Failure to withdraw from representation when the lawyer's ability to represent the client is impaired.
1.16(d): Failure promptly to return to a client case file materials to which the client is entitled after termination of representation.
8.1(b): Failure to respond in a timely manner to the Commission's demands for information.
8.4(b): Committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer.

Our analysis of appropriate discipline entails consideration of the nature of the misconduct, the duties violated by the respondent, any resulting or potential harm, the respondent's state of mind, our duty to preserve the integrity of the profession, the risk to the public should we allow the respondent to continue in practice, and matters in mitigation and aggravation. See Matter of Newman, 958 N.E.2d 792, 800 (Ind. 2011).

Respondent was previously disciplined by public reprimand for failing to perfect an appeal for a client. See In re Brewer , 907 N.E.2d 965 (Ind. 2009). In 2017, Respondent was the subject of two show cause proceedings.

Respondent currently is under an interim suspension due to her conviction for a crime punishable as a felony, see Ind. Admission and Discipline Rule 23 (11.1)(a), and an administrative suspension for noncompliance with continuing education requirements.

Respondent's misconduct includes the neglect of multiple clients' cases, the commission of a crime that reflects adversely on her fitness to practice law, and the failure to withdraw from cases when her drug abuse rendered her unable to represent clients. She has failed to accept responsibility for her misconduct and elected not to participate in these disciplinary proceedings.

"One of the functions of the disciplinary process is to protect the public from attorneys who are, for whatever reason, unfit to practice law." Matter of Wright , 648 N.E.2d 1148, 1150 (Ind. 1995). Misconduct of the magnitude here has resulted in a lengthy suspension or disbarment. See Matter of White , 81 N.E.3d 211 (Ind. 2017) ; Matter of Pierce , 80 N.E.3d 888 (Ind. 2017) ; Matter of Engebretsen, 976 N.E.2d 1225 (Ind. 2012) ; Matter of Powell , 893 N.E.2d 729 (Ind. 2008). The Commission has not sought disbarment in this case. The hearing officer recommended that Respondent be suspended for three years without automatic reinstatement. We agree with the hearing officer's recommendation.

After the suspension period, Respondent may be reinstated only after proving by clear and convincing evidence all of the factors enumerated in Admission and Discipline Rule 23(18)(b), which include genuine remorse for her misconduct, exemplary conduct since the discipline was imposed, and her fitness to practice law.

Conclusion

Respondent already is under interim and administrative suspensions. For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for not less than three years, without automatic reinstatement, effective immediately. At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(18).

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

Rush, C.J., and David, Massa, and Slaughter, JJ., concur.

Goff, J., did not participate.


text:
    STATE of Indiana, Appellant v. Aaron M. SULLIVAN
    Supreme Court of Indiana.
    August 9, 2018
    Transfer denied. All Justices concur, except Rush, C.J., and Massa, J., who vote to grant the petition to transfer.


author: Transfer denied. All Justices concur.

text:
    Tyjuan DIXON, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 9, 2018
   Transfer denied. All Justices concur.


text:
    Toya K. RADFORD, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 9, 2018
   Transfer denied. All Justices concur.


text:
    Racxon Cruze MCDOWELL, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 9, 2018
   Transfer denied. All Justices concur.


text:
    Nick POPOVICH, Petitioner v. INDIANA DEPARTMENT OF STATE REVENUE
    Supreme Court of Indiana.
    August 9, 2018
    Review denied. All Justices concur, except Massa, J. and Slaughter, J., who vote to grant the petition for review.


text:
    Marcus T. THREATT, Jr., Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 9, 2018
   Transfer denied. All Justices concur.


text:
    Henry SHORTER, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 9, 2018
   Transfer denied. All Justices concur.


text:
    Duward ROBY, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 9, 2018
   Transfer denied. All Justices concur.


text:
    Catherine SEVERANCE, et al., Appellants v. PLEASANT VIEW HOMEOWNERS ASSOCIATION INC.
    Supreme Court of Indiana.
    August 9, 2018
   Transfer denied. All Justices concur.


text:
    Paternity: Sarah PERKINS, Appellant v. Brian L. KUNTZ
    Supreme Court of Indiana.
    August 9, 2018
   Transfer denied. All Justices concur.


author: All Justices concur.

text:
    Termination: H.B., et al., Appellant v. INDIANA DEPARTMENT OF CHILD SERVICES, et al.
    Supreme Court of Indiana.
    August 9, 2018
    Transfer Denied.
   All Justices concur.

Barnes, J., Vaidik, C.J., Pyle, J.


text:
    CHINS: L.S., Appellant v. INDIANA DEPARTMENT OF CHILD SERVICES
    Supreme Court of Indiana.
    August 9, 2018
   Transfer denied. All Justices concur.


text:
    INDIANA DEPARTMENT OF INSURANCE, Appellee v. Donald L. EMRY
    Supreme Court of Indiana.
    August 9, 2018
   Transfer denied. All Justices concur.


text:
    CHINS: C.E., Appellant v. INDIANA DEPARTMENT OF CHILD SERVICES
    Supreme Court of Indiana.
    August 9, 2018
   Transfer denied. All Justices concur.


text:
    Termination: R.F., Appellant v. INDIANA DEPARTMENT OF CHILD SERVICES, et al.
    Supreme Court of Indiana.
    August 9, 2018
    Transfer Denied.
   All Justices concur.

Barnes, J., Vaidik, C.J., Pyle, J.


text:
    Marlena KOERNER, Appellant v. Jacob SNOWDEN
    Supreme Court of Indiana.
    August 9, 2018
   Transfer denied. All Justices concur.


text:
    Wilbert STURGIS, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 9, 2018
    Transfer denied. All Justices concur, except Rush, C.J., who votes to grant the petition to transfer.


text:
    Matthew E. KOCH, Appellant v. STATE DEPARTMENT OF REVENUE
    Supreme Court of Indiana.
    August 9, 2018
   Transfer denied. All Justices concur.


text:
    S.B., Appellant v. K.F.
    Supreme Court of Indiana.
    August 9, 2018
   Transfer denied. All Justices concur.


text:
    Charles B. ELDREDGE, Appellant v. Susan M. RUCH
    Supreme Court of Indiana.
    August 9, 2018
   Transfer denied. All Justices concur.


text:
    Russell GOODMAN, Appellant v. Stephanie GOODMAN
    Supreme Court of Indiana.
    August 9, 2018
   Transfer denied. All Justices concur.


text:
    FAMILY CHRISTIAN WORLD, INC., et al., Appellants v. Vicki OLDS
    Supreme Court of Indiana.
    August 9, 2018
   Transfer denied. All Justices concur.


text:
    Termination: C.S., et al., Appellants v. INDIANA DEPARTMENT OF CHILD SERVICES
    Supreme Court of Indiana.
    August 9, 2018
    Transfer Denied.
   All Justices concur.

Riley, J., May, J., Mathias, J.


text:
    STATE of Indiana, Appellant v. Larry Oneal JANES
    Supreme Court of Indiana.
    August 9, 2018
    Transfer denied. All Justices concur, except Massa, J., who votes to grant the petition to transfer.


text:
    James E. HINKLE, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 9, 2018
    Transfer denied. All Justices concur, except Rush, C.J., and Slaughter, J., who vote to grant the petition to transfer.


text:
    STATE of Indiana, Appellee v. Nicholas LINDAUER
    Supreme Court of Indiana.
    August 9, 2018
   Transfer denied. All Justices concur.


text:
    Calvin YATES, Appellee v. Rebecca HITES
    Supreme Court of Indiana.
    August 9, 2018
   Transfer denied. All Justices concur.


text:
    Christapher BATCHELOR, Appellee v. STATE of Indiana
    Supreme Court of Indiana.
    August 30, 2018
    Transfer granted.


text:
    SCRIBBLES, LLC, et al., Appellees v. Camden "Jax" WEDGEWOOD, et al.
    Supreme Court of Indiana.
    August 9, 2018
    Transfer denied. All Justices concur, except Rush, C.J. and David, J., who vote to grant the petition to transfer.


text:
    Kevin Shawn CARTER, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


text:
    CENTRAL STATES TOWER III LLC, Appellant v. PORTAGE PLAN COMMISSION
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


text:
    Tarsha Ann CHEESMAN, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


text:
    AMERICAN CONSULTING, INC., Appellees v. HANNUM WAGLE & CLINE ENGINEERING, INC., et al.
    Supreme Court of Indiana.
    August 30, 2018
    Transfer granted.


text:
    Samichael BRADSHAW, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


text:
    Marva Deskins HAMILTON, Appellant v. Michael HAMILTON
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


text:
    Curtis J. BOGGS, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 23, 2018
    Transfer granted.


text:
    David GARDEN, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 9, 2018
   Transfer denied. All Justices concur.


text:
    Kevin Derek RILEY, Sr., Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


text:
    Ryan MCMULLEN, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


text:
    Robert YOUNG, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


text:
    Kyle Clifton BAKER, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


text:
    Pausides ALAYO, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


text:
    Shawn M. SAYLOR, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


text:
    Robert Lee LAIRD, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


text:
    Christopher J. JUSTICE, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 30, 2018
    Transfer Denied.
   All Justices concur.

Baker, J., Kirsch, J, Bradford, J.


text:
    David JOHNSON, IV, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


text:
    Larry P. PROUSE, III, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


text:
    Darren CLAYTON, et al., Appellants v. MADISON TOWNSHIP FIRE DEPARTMENT, et al.
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


text:
    James CRAWFORD, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


text:
    S.L., Appellee v. K.G.
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


text:
    Andrew SEAL, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


text:
    Matthew JOHNSON, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


text:
    Darrin SHORES, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


text:
    Spencer Michael SPIELMAN, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


text:
    Douglas CRAWFORD, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


text:
    Clyde D. LEWIS, III, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


text:
    Enedeo RODRIGUEZ, Jr., Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    August 30, 2018
   Transfer denied. All Justices concur.


author: Brown, Judge.

text:
    ESTATE OF Walter E. WILLIAMS, Appellant (Third-Party Plaintiff), v. BORGWARNER MORSE TEC INC., et al., Appellees (Third-Party Defendants).
    Chuck Markey, Markey's Audio Visual, Inc., and D & E Enterprises, Plaintiffs, v. George F. Kopetsky, Patricia A. Kopetsky, George F. Kopetsky Realty Corp., Walter E. Williams, Edward F. Frazier, John Bartkiewicz, Richard Clapper, and Ted Pollard, Defendants.
    Court of Appeals Case No. 49A02-1710-PL-2224
    Court of Appeals of Indiana.
    Filed August 28, 2018
    Attorneys for Appellant: Donn H. Wray, Glenn D. Bowman, Marc A. Menkveld, Stoll Keenon Ogden PLLC, Indianapolis, Indiana
    Attorneys for Appellee, BorgWarner Morse Tec Inc.: Richard S. VanRheenen, Tabitha L. Balzer, Lewis Kappes, P.C., Indianapolis, Indiana
   Brown, Judge.

[1] The Estate of Walter E. Williams (the "Estate") appeals the trial court's entry of summary judgment in favor of BorgWarner Morse TEC, Inc. ("Morse TEC"). The Estate raises one issue which we revise and restate as whether the court erred in entering summary judgment in favor of Morse TEC. We affirm.

Facts and Procedural History

[2] This case involves an Environmental Legal Action ("ELA") under Ind. Code §§ 13-30-9. In the 1960s, George Kopetsky constructed a building to house a laundromat and dry cleaning operation on property he owned at 2915 South Meridian Street, Indianapolis, Indiana (the "Site"). Kopetsky purchased coin-operated washing and dry cleaning machines and named the location Norge Laundry & Dry Cleaning Village ("Norge Village"). Kopetsky operated Norge Village until 1967 when he leased it to Edward Frazier, who operated it until September 29, 1969, when Williams purchased the Site and assumed Kopetsky's mortgage.

[3] Williams operated Norge Village until May 1, 1974. He leased the Site to others, including John Bartkiewicz and Richard Clapper, who continued to operate Norge Village pursuant to a lease agreement. At some point, Clapper withdrew from the lease arrangement. In 1981, Norge Village ceased operation at the Site and the machines were removed. On August 25, 1995, Williams sold the Site to D & E Enterprises.

[4] On July 12, 2006, Chuck Markey, Markey's Audio Visual, Inc., and D & E Enterprises, Inc., filed a complaint against Williams and others for environmental response costs, attorney fees, and damages under Ind. Code §§ 13-30-9 to recover the costs of remedial action involving hazardous substances released into the soil and groundwater. The complaint alleged that Markey was the owner of Markey's Audio Visual, Inc., and D & E Enterprises, Inc., and that D & E Enterprises, Inc., was the current owner of the Site.

[5] On April 30, 2008, Williams filed a third-party complaint against "Borg-Warner Morse TEC Corporation." Appellee's Appendix Volume 2 at 37. On March 25, 2010, Williams amended its complaint, naming the defendants as "BorgWarner Corporation," "Borg-Warner Corporation, as successor in interest to Norge Corporation," Morse TEC, and Burns International Services Company, LLC, ("Burns"). Id. at 44. The amended complaint stated in part:

3. ... Norge Corporation is a corporation that does or has existed, and conducted business in Indiana relating to its sale and installation of dry cleaning equipment.
4. ... Borg-Warner is a Delaware corporation that conducted business in Indiana at all times relevant to this Complaint through the sale of Norge brand dry cleaning equipment by its Norge Division.
5. ... Borg-Warner is a successor in interest to the Norge entity that conducted business in Indiana relating to the sale and installation of Norge brand dry cleaning equipment.
6. ... Morse TEC[ ] ... conducted business at all times relevant to this Third-Party Complaint through the sale of Norge brand dry cleaning equipment by its Norge Division.
* * * * *
10. ... [George and Patricia Kopetsky] purchased Norge dry cleaning equipment and other cleaning equipment ("Equipment") in the mid- to late- 1960s.
11. ... [R]epresentatives of Norge installed some or all of the equipment.
12. ... Borg-Warner owned and operated the Norge division from approximately 1929 until selling the Norge division ... on July 1, 1968.
13. ... Morse TEC is the corporate successor in interest to BorgWarner that formerly owned and operated the Norge division, including but not limited to the manufacture and installation of [the Norge dry cleaning equipment and other equipment].
* * * * *
22. It is also believed that release of chlorinated solvents occurred when used or spent chlorinated solvents were discharged to the public sewers as arranged and directed by BorgWarner and Morse TEC.
* * * * *
32. To the extent this Court, pursuant to I.C. 13-30-9-3, in resolving this environmental legal action, allocates the cost of removal or remedial action in proportion to the acts or omissions of each party, Williams alleges that Morse TEC is wholly liable for the release of chlorinated solvents at the Site.

Id. at 45-46, 48-49.

[6] Morse TEC and Burns filed separate motions for summary judgment on Williams's amended third-party complaint.

On August 28, 2013, the court granted Burns's motion, denied Morse TEC's motion, and found, with respect to Burns, that Williams lacked standing to assert a contract claim against Burns, that no corporate successor liability had been created "by the ELA that would transfer financial responsibilities from the Norge Division to Burns," and that there was no other basis for imposing successor liability on Burns. Appellant's Appendix Volume 2 at 71.

[7] With respect to Williams, the court found the costs incurred to date by him were "costs of removal and remedial action," he is a real party in interest to pursue his third-party ELA claim against Morse TEC, and that the fact that Williams's insurer, rather than Williams himself, paid the remedial and removal costs incurred to date does not diminish or destroy his standing to bring an ELA claim against Morse TEC. Id. at 72. In also concluding that an ELA defendant may bring a third-party ELA claim against other potentially responsible parties, the court stated:

Williams can maintain an ELA claim against Morse TEC, but there is still a genuine issue of material fact as to whether Morse TEC is liable. This Court concludes that Williams has properly asserted a third-party claim against Morse TEC, and Morse TEC potentially may be allocated its share of responsibility according to the purpose and plain language of the ELA.

Id. at 74.

[8] On January 9, 2017, Morse TEC filed a second motion for summary judgment. Its accompanying memorandum in support of the motion stated in relevant part:

Cases interpreting the ELA have construed the "caused or contributed to the release" element of the statute to require a defendant's active involvement in releasing or spreading hazardous substances at a site or, in the limited case of a landlord with actual knowledge of a release of hazardous substances, having sufficient control over the site to halt or remediate the release, yet failing to act. It is undisputed that Norge never released or spread PCE at the [S]ite. [Norge] never handled PCE at the Site or operated the dry cleaning machines at the Site. It was Williams (and others) who handled PCE at the Site and operated the dry cleaning machines. Furthermore, Norge never owned the Site, and therefore was never a landlord with knowledge of a release at the Site and control over the Site. Thus, Williams' allegations that Norge manufactured and installed dry cleaning machines at the Site are insufficient as a matter of law to support ELA liability. Additionally, even if installation of the dry cleaning machines could support ELA liability (and it cannot), there is no evidence that Norge installed the dry cleaning machines....
Finally, Williams' ELA claim, brought against a manufacturer for property damage, is a products liability claim in disguise, and is barred by the applicable Indiana Products Liability Act statute of limitations.

Id. at 149-150.

[9] On April 3, 2017, Williams filed a memorandum in opposition to the second motion for summary judgment, which argued in relevant part that discovery to date showed that Morse TEC was liable "because the Norge dry cleaning system, as designed and described in Norge Operating Manuals, provided for the dry cleaning machine's water/PCE separator to be plumbed directly to drains." Id. at 180.

[10] On April 17, 2017, Morse TEC filed its reply and, on May 1, 2017, the court held a hearing. On August 23, 2017, the court granted Morse TEC's motion for summary judgment in an order which stated in relevant part:

Facts
* * * * *
The machines sat along the north and east wall of the building on a floor that was recessed between 4.5 and 5 inches. The Norge service instructions recommended all the dry cleaners be set upon a 4" high concrete "dike" to entrap solvent that might escape from the system.
The 'diked' area should be connected to a floor drain in which the cleaning solvent can flow to an underground storage tank. In cases where a major solvent leak may occur, the solvent may be pumped from the underground storage tank back into the Dry Cleaning System after the leak has been corrected.
The manual also provided, "The successful operation of the Norge Automatic Dry Cleaning Equipment is directly influenced by the type of installation."
The dry cleaning equipment always used PCE as a solvent to clean the clothing, "NorgClor, which was a PCE-based solvent made to Norge's specifications by the Dow Chemical Company and distributed by Norge's exclusive distributors." The Norg-Clor PCE solvent was reclaimed from each dry cleaning load's cycle. "Part of the solvent reclamation process involved an oil-water separator in which the solvent was separated from water. The water was discharged to a sanitary sewer and the reclaimed solvent was diverted back into the solvent tank. The water discharge contained '10 or 20 drops' of solvent per load." The Norge coin operated dry cleaning machine manual recommended that wastewater from operation of the equipment go into a sewer line. Along with the 10-20 drops of PCE per dry cleaning load, some amount of dissolved PCE was present in the machine wastewater and went into the sewer. This wastewater caused sewer trench contamination on the Property. Feenstra, who also prepared a designated expert report, opined the PCE released to the sewer was insufficient to explain the PCE found in the soil outside of the sewer area.
There were also releases in the area under the machines, as evidenced by high PCE concentrations in the soil under the concrete. Other possible releases of PCE could be, "spills or leaks to the ground during delivery; leakage through the concrete floor of the recessed area around the dry cleaning machines; leakage from waste materials disposed to the dumpster; or leakage from the possible underground concrete tank reported to have been located along the north side of the building."
* * * * *
DISCUSSION
* * * * *
The Court FINDS Morse TEC'S involvement with the Property does not meet the criteria of active engagement contemplated by the ELA statute for "caused or contributed." Williams alleges that Kopetsky purchased dry cleaning equipment designed and manufactured by Norge. Williams also alleges that Norge assisted in the installation of the equipment. As the non-moving party, the Court construes all inferences in Williams's favor. These allegations of design, product manufacture and product installation, even if true, would not be sufficient to impose liability under the ELA against Morse TEC.
* * * * *
The parties have not cited to the Court any ELA case where an off-site manufacturer is alleged to be liable under the ELA. Liability in all ELA cases cited by the parties, was based on facts that included alleged site-specific acts of spilling, dumping, disposing or otherwise releasing hazardous substances either at the site in question or at an adjacent site from whence they migrated to the site in question.
The Court notes the installation manual itself shows that site-specific decisions relating to installation of the machines, including wastewater connections, were in the hands of others. The installation manual recommends connecting the wastewater discharge to a drain but also includes the phrase "per local building code." Thus, according to the designated documents[,] others, not Norge, were responsible for waste disposal. In sum, the lack of any site[-]specific acts by Norge which "caused or contributed to the release of a hazardous substance" excludes Norge from liability under the ELA. This is especially true given that any acts resulting in the dry cleaning machines being connected to the sanitary sewer at the Property were in the hands of others. As stated by the Norge manual, "[t]he successful operation of the Norge Automatic Dry Cleaning Equipment is directly influenced by the type of installation."

Id. at 81-86 (some internal citations omitted).

Discussion

[11] The issue is whether the trial court erred in entering summary judgment in favor of Morse TEC. We review an order for summary judgment de novo , applying the same standard as the trial court. AM Gen. LLC v. Armour , 46 N.E.3d 436, 439 (Ind. 2015). The moving party bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Manley v. Sherer , 992 N.E.2d 670, 673 (Ind. 2013).

[12] "A fact is 'material' if its resolution would affect the outcome of the case, and an issue is 'genuine' if a trier of fact is required to resolve the parties' differing accounts of the truth ... or if the undisputed material facts support conflicting reasonable inferences." Celebration Worship Ctr., Inc. v. Tucker , 35 N.E.3d 251, 253 (Ind. 2015) (quoting Williams v. Tharp , 914 N.E.2d 756, 761 (Ind. 2009) (internal citations omitted) ). If the moving party affirmatively shows that there are no genuine issues of material fact with regard to a particular issue or claim, the non-moving party then bears the burden of coming forward with designated evidence showing the existence of a genuine issue of material fact. Holiday Hosp. Franchising, Inc. v. AMCO Ins. Co. , 983 N.E.2d 574, 577 (Ind. 2013) (citing Ind. Trial Rule 56(C) ; Town of Avon v. W. Cent. Conservancy Dist., 957 N.E.2d 598, 602 (Ind. 2011) ). The reviewing court construes all factual inferences in the non-moving party's favor and resolves all doubts as to the existence of a material issue against the moving party. Dreaded, Inc. v. St. Paul Guardian Ins. Co. , 904 N.E.2d 1267, 1270 (Ind. 2009) (citing N. Ind. Pub. Serv. Co. v. Bloom , 847 N.E.2d 175, 180 (Ind. 2006) ). Where the relevant facts are not in dispute and the interpretation of a statute is at issue, such statutory interpretation presents a pure question of law for which summary judgment disposition is appropriate. Boots v. D. Young Chevrolet, LLC , 93 N.E.3d 793, 797 (Ind. Ct. App. 2018) (citing Clem v. Watts , 27 N.E.3d 789, 791 (Ind. Ct. App. 2015) ), trans. denied.

[13] Our review of a summary judgment motion is limited to those materials designated to the trial court. Stockton v. Falls Auctioneers and Realtors , 999 N.E.2d 959, 963 (Ind. Ct. App. 2013) (citing Mangold ex rel. Mangold v. Ind. Dep't of Natural Res. , 756 N.E.2d 970, 973 (Ind. 2001) ), trans. denied. In reviewing a trial court's ruling on a motion for summary judgment, we may affirm on any grounds supported by the Indiana Trial Rule 56 materials. Id. (citing Catt v. Bd. of Commr's of Knox Cty. , 779 N.E.2d 1, 3 (Ind. 2002) ). Although the trial court's specific findings of fact and conclusions of law assist our review, they are not binding upon us. Evansville Courier & Press v. Vanderburgh Cty. Health Dept. , 17 N.E.3d 922, 927 (Ind. 2014).

[14] The Estate argues that what is required by the ELA statute is some action or inaction to be taken which contributes to a release of contamination, that Morse TEC's actions fall within the meaning of the terms, "cause or contribute," and that there is neither a threshold level of action or inaction nor a particular level of culpability under the ELA statute. Appellant's Brief at 11. The Estate argues, in essence, that Morse TEC "instructed" the users of its machines to discharge chlorinated solvent-contaminated water down the drain, asserts that "[e]very expert witness ... agrees some PCE went down the drain," and contends that Morse TEC had knowledge that chlorinated solvents were used in its dry cleaning, manufactured the dry cleaning machines "with the understanding that they would be connected to the drain ... to discharge water that had contained chlorinated PCE," and "did not take any steps to halt the use or discharge of chlorinated solvents from its machines." Id. at 14.

[15] Morse TEC argues that the court correctly found that its non-site specific acts of placing dry cleaning equipment in the stream of commerce, with an instruction manual that recommended discharging wastewater to a drain, did not satisfy the requirement of active involvement with the release itself and contends that its conclusion - that Morse TEC did not cause or contribute to the release - is supported by caselaw interpreting two similar federal statutes, the Resource Conservation and Recovery Act and the Comprehensive Environmental Response, Compensation, and Liability Act. Morse TEC also argues that the "limited landlord exception to the 'active involvement' requirement" does not apply and that, apart from the unique case of JDN Props., LLC v. VanMeter Enters., Inc. , 17 N.E.3d 357, 360-361 (Ind. Ct. App. 2014), other cases discussing landlord liability have held that even with an on-site presence and general knowledge of spills, a landlord will not be liable in the absence of evidence of active involvement with the release. Appellee's Brief at 26.

[16] Ind. Code § 13-30-9-2 provides:

A person may, regardless of whether the person caused or contributed to the release of a hazardous substance or petroleum into the surface or subsurface soil or groundwater that poses a risk to human health and the environment, bring an environmental legal action against a person that caused or contributed to the release to recover reasonable costs of a removal or remedial action involving the hazardous substances or petroleum.

[17] The phrase "caused or contributed" is not defined by statute and, as such, the court is to give the words their plain and ordinary meaning. Reed v. Reid , 980 N.E.2d 277, 289 (Ind. 2012) (citing 600 Land, Inc. v. Metro. Bd. of Zoning Appeals of Marion Cty. , 889 N.E.2d 305, 309 (Ind. 2008) (footnote omitted) ). Consulting English language dictionaries, the Indiana Supreme Court explained in Reed that the word "cause" means "a person, thing, fact, or condition that brings about an effect or that produces or calls forth a resultant action or state" and the word "contribute" means, among other things, "to act as a determining factor; share responsibility for something" and concluded that "[e]ach term of the phrase 'caused or contributed' requires some involvement by the actor which produces a result." Id. at 289, 289 n.10.

[18] In Reed , the defendant entered into an agreed order with the Indiana Department of Environmental Management, acknowledging that it "caused and/or allowed the disposal of solid waste in a manner which created a threat to human health or the environment, when it disposed of excavated soil mixed with mill scale, baghouse dust, refractory brick, and other debris" at the plaintiff's property. Id. at 289 (emphasis added). The Indiana Supreme Court noted the agreed order before finding that the plaintiff had carried the initial burden of demonstrating that the defendant "at least 'share[d] responsibility for' " the release of a hazardous substance and concluding that "[o]n the narrow question of whether Forge 'caused or contributed' to the release of chromium-a hazardous substance-there is no dispute of material fact. The Rule 56 materials make clear that Forge at least contributed to the release." Id. at 289-290.

[19] Here, unlike in Reed , the designated evidence establishes that Morse TEC has not "caused or contributed" to the release of a hazardous substance as contemplated by Ind. Code § 13-30-9-2. The designated portions of the Norge Service Instructions and Parts Catalog, referenced in Williams's March 18, 2011 supplemental responses to Morse TEC's requests for admission, state in part, "NOTE: 1. The following to be Supplied by Others: ... C. Drain Services from Machines," contain a graphic on the same page with a label which states "TO DRAIN (PER LOCAL BUILDING CODE)," and also indicate under the "Water and Drain Supply Requirements" section that "Each dry cleaning machine must be provided with a separate drain stand for the discharge water .... Fabrication of the drain and water facilities will be accomplished on the site. NOTE: This is not waste water." Appellee's Appendix Volume 2 at 176, 181. We further observe that the Estate does not point to any caselaw for the proposition that a mere manufacturer of equipment can be held responsible under Ind. Code § 13-30-9-2. While Williams filed a third-party complaint against Morse TEC alleging that "representatives of Norge installed some or all of the equipment" and that Morse TEC is the "corporate successor in interest to Borg-Warner that formerly owned and operated the Norge division, including but not limited to the manufacture and installation" of Norge dry cleaning equipment and other cleaning equipment, the record does not establish Morse TEC was involved in any release. Appellant's Appendix Volume 2 at 142. In his supplemental responses to Morse TEC's requests for admission, Williams admitted that, based upon information and documentation discovered to date, he "had no evidence Norge owned any PCE or solvent containing PCE that was used at the Site at any time." Appellee's Appendix Volume 2 at 145. While Williams asserted in his responses to requests for admissions that it was his "understanding that the building was constructed specifically for the Norge Dry Cleaning System and that George Kopetsky worked with Norge on the installation of the Norge Dry Cleaning System," we observe that his August 26, 2011 deposition reveals that he was not present at the premises when the building was constructed or when the machines were installed, that he was not involved in the installation of any equipment, that at the time he acquired the Site all of the equipment was present, that he never had any conversations with Kopetsky at the time of the construction or about the equipment installation, and that he had never met, received a letter from, written to, or talked with "anyone from Norge." Id. at 138, 163-164. We further observe that, to the extent that the Estate argues Morse TEC "instructed" the users of its machines to discharge chlorinated solvent-contaminated water down the drain, Williams indicated, in his supplemental responses to Morse TEC's interrogatory items thirteen and fourteen, that he did not recall the names of any "employees or representatives of Norge" with whom he, anyone who owned the Site, operated any dry cleaning business at the Site, or was employed by any such business, had communicated. Id. at 146. We conclude that the trial court did not err in granting summary judgment.

[20] For the foregoing reasons, we affirm the entry of summary judgment.

[21] Affirmed.

Bailey, J., and Crone, J., concur.

      The chronological case summary ("CCS") contains an entry, dated April 27, 2017, which states that the "Estate of Walter E. Williams shall be substituted for Defendant Walter E. Williams." Appellant's Appendix Volume 2 at 59.

      The record includes copies of Morse TEC's October 13, 2011 motion for leave to file a summary judgment motion on Williams's amended third-party complaint, the accompanying motion for summary judgment, and the court's December 1, 2011 order granting Morse TEC's motion for leave to file its summary judgment motion. While the record does not appear to include a copy of Burns's motion for summary judgment, the CCS contains an entry, dated September 29, 2011, which is titled "Motion for summary judgment against [Williams's] third party claims, filed by [Burns]." Appellant's Appendix Volume 2 at 22-23.

      The record does not contain a copy of Morse TEC's motion, but does contain copies of both the accompanying memorandum in support of the motion and the designation of evidence that were filed on the same day as the motion.

      To the extent that Williams argues that Reed's "some involvement" holding does not "require direct involvement" with the contaminants at issue, contends that Morse TEC had knowledge of the contaminants of concern in this case, and likens this case to JDN Props., LLC v. VanMeter Enters., Inc. , 17 N.E.3d 357, 360-363 (Ind. Ct. App. 2014), we observe that the evidence in JDN Properties , taken most favorable to the non-movant, demonstrated that the landlord defendant "presumably received rents from [the tenant] while being fully aware that [the tenant's] use of the property was causing petroleum contamination" and that this Court held that "a landlord who has knowledge that a tenant's use of land is causing environmental contamination, but does nothing to halt or remediate such contamination and goes on to sell that property to a third party without disclosing the property's condition, may fairly be said to 'share responsibility' for or contribute to such contamination." Appellee's Brief at 12. JDN Props. , 17 N.E.3d at 362. We do not find JDN Properties instructive.

      Because we affirm the trial court's August 23, 2017 order for the reasons above, we need not discuss either Morse TEC's argument regarding the applicability of the statute of limitations set out in the Indiana Products Liability Act or those arguments on cross-appeal regarding the court's August 28, 2013 order.


author: Najam, Judge.

text:
    Charles A. MOON, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-879
    Court of Appeals of Indiana.
    FILED September 7, 2018
    Attorney for Appellant: Donald E.C. Leicht, Kokomo, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Andrew Kobe, Michael Gene Worden, Deputy Attorneys General, Indianapolis, Indiana
   Najam, Judge.

Statement of the Case

[1] In this consolidated appeal, Charles A. Moon, Jr. appeals his sentence following his guilty plea to dealing in cocaine, as a Level 4 felony, and resisting law enforcement, as a Level 6 felony. He raises two issues for our review, which we revise and restate as follows:

1. Whether the trial court erred when it calculated his credit time.
2. Whether his sentence is inappropriate in light of the nature of the offenses and his character.

[2] We affirm.

Facts and Procedural History

[3] Between April 25 and May 10, 2017, Moon sold cocaine to a confidential informant for the Kokomo Police Department ("KPD") on four separate occasions. On July 7, the State charged Moon with four counts of dealing in cocaine, all as Level 4 felonies, in Cause Number 34D01-1707-F4-797 ("F4-797"). On that same date, the trial court issued a warrant for Moon's arrest.

[4] On July 20, KPD officers observed Moon riding a moped. The officers were aware that there was a warrant out for Moon's arrest, and they attempted to stop him. However, Moon did not stop for two blocks. After the officers stopped Moon, they discovered a handgun in the waistband of his pants. The officers arrested Moon. The next day, the State charged Moon with one count of unlawful possession of a firearm by a serious violent felon, as a Level 4 felony; one count of resisting law enforcement, as a Level 6 felony; and one count of carrying a handgun without a license, as a Class A misdemeanor, in Cause Number 34D01-1707-F4-860 ("F4-860").

[5] On February 23, 2018, Moon and the State filed a plea agreement with the court that encompassed both cause numbers. Pursuant to that plea agreement, Moon agreed to plead guilty to one count of dealing in cocaine, as a Level 4 felony, in F4-797 and to resisting law enforcement, as a Level 6 felony, in F4-860. The agreement provided that Moon's sentence in F4-797 would be left to the discretion of the trial court; however, the executed portion of his sentence would not exceed ten years. The plea also provided that Moon would be sentenced to a term of two and one-half years, all suspended to supervised probation, in F4-860. In exchange, the State agreed to dismiss the remaining counts in both causes.

[6] On March 22, the trial court held a hearing on Moon's guilty plea. During the hearing, Moon stipulated to only the facts contained within the probable cause affidavit that were sufficient enough to establish a factual basis for his guilty plea. The court accepted Moon's plea and entered judgment of conviction accordingly. Pursuant to the terms of the plea agreement, the trial court sentenced Moon to two and one-half years all suspended to supervised probation in F4-860. As a specific condition of his probation, the trial court ordered Moon to complete the Howard County Drug and Alcohol Program. The court determined that Moon "has no jail time credit served while awaiting trial and disposition in this matter." Appellant's App. Vol. II at 56. The court then heard evidence concerning Moon's sentence in F4-797. During that portion of the hearing, Moon admitted that had used illegal substances every day since he was thirteen years old. Based on his history of substance-abuse issues, Moon requested that the trial court recommend him for purposeful incarceration.

[7] At the conclusion of the hearing, the trial court found Moon's criminal history to be a significant aggravating factor. The trial court identified Moon's guilty plea to be a mitigating factor but gave it minimal weight because of the substantial benefit Moon received from the plea. Accordingly, the trial court sentenced Moon to twelve years, with ten years executed and two years suspended to supervised probation in F4-797. Again, as a specific condition of probation, the trial court ordered Moon to complete the Howard County Drug and Alcohol Program. The court gave Moon credit for "245 actual days or 327 credit days served while awaiting disposition in this matter." Id. at 64. The trial court ordered the sentences in F4-797 and F4-860 to run consecutively. After the trial court announced its sentence, Moon asked: "Is the court not considering placement in the purposeful incarceration as therapeutic community?" Tr. Vol. II at 24. In response, the court stated that, "[g]iven the firearms charge," it did not think purposeful incarceration was "appropriate." Id. This appeal ensued.

Discussion and Decision

Issue One: Credit Time

[8] Moon first contends that the trial court erred when it calculated his credit time. As our Supreme Court has noted, there are two types of credit that must be calculated: "(1) the credit toward the sentence a prisoner receives for time actually served, and (2) the additional credit a prisoner receives for good behavior and educational attainment." Purcell v. State , 721 N.E.2d 220, 222 (Ind. 1999). Credit time is a matter of statutory right and trial courts do not have discretion in awarding or denying such credit. See Harding v. State , 27 N.E.3d 330, 331-32 (Ind. Ct. App. 2015). Here, Moon asserts that the trial court erred when it calculated his credit time for the time he actually served and when it calculated his good time credit. We address each argument in turn.

Actual Time Served

[9] Moon contends that the trial court erred when it calculated the number of days he spent in confinement prior to sentencing. Specifically, Moon asserts that he spent 246 days in jail, while the trial court only awarded him credit for 245 days. To support his assertion, Moon states that he "was in jail on July 20, 2017[,] ... and on March 22, 2018 (bookends), which totals 246 actual days, not 245 actual days." Appellant's Br. at 8. Moon does not explain how he calculated the number of days he spent in jail. But it appears as though Moon included the date of sentencing in his calculation.

[10] However, Indiana Code Section 35-38-3-2(d) (2018) states that the "term of imprisonment begins on the date sentence is imposed[.]" Accordingly, the date the trial court sentenced Moon was the first day of his sentence and, therefore, cannot be included when counting the number of days he actually served prior to sentencing. As such, Moon served 245 days in jail from the date of his arrest up to, but not including, the date of his sentencing. The trial court did not err when it awarded Moon credit for 245 days actually served.

Good Time Credit

[11] Moon next asserts that the trial court erred when it calculated his good time credit. Pursuant to Indiana Code Section 35-50-6-4(a)(2), a person who is imprisoned awaiting trial or sentencing for a Level 6 felony or misdemeanor is initially assigned to Class A. A person assigned to Class A earns one day of good time credit for every day the person is imprisoned awaiting trial or sentencing. Ind. Code § 35-50-6-3.1(b). However, a person who is imprisoned awaiting trial or sentencing for a crime other than a Level 6 felony or misdemeanor is initially assigned to Class B. I.C. § 35-50-6-4(b)(2). A person assigned to Class B earns one day of good time credit for every three days the person is confined awaiting trial or sentencing. I.C. § 35-50-6-3.1(c). However, IC 35-50-6-4(h) adds:

A person imprisoned awaiting trial is initially assigned to a credit class based on the most serious offense with which the person is charged. If all the offenses of which a person is convicted have a higher credit time class than the most serious offense with which the person is charged, the person earns credit time for the time imprisoned awaiting trial at the credit time class of the most serious offense of which the person was convicted.

Thus, the rate at which a defendant earns good time credit while awaiting trial or sentencing is initially determined by the level of the charge against him, but, if the defendant is actually convicted of a lower-level offense than that charged, the defendant's credit time class is to be based on the conviction, not the charge.

[12] Here, the trial court correctly determined that Moon had spent 245 days in jail while awaiting his guilty plea hearing. The court further correctly determined, based on Moon's conviction for a Level 4 felony and his corresponding assignment to credit Class B, Moon's 82 days of good time credit.

[13] But Moon contends that the trial court erred when it "arbitrarily" chose to calculate his credit time based on the Level 4 felony in F4-797 instead of the Level 6 felony in F4-860. Moon continues that, because of that choice, the trial court "arbitrarily denied Moon credit time of 164 days." Appellant's Br. at 9. In essence, Moon asserts that the trial court should have chosen to calculate his good time credit based on his conviction for the Level 6 felony instead of the Level 4 felony.

[14] However, Moon does not cite any authority, and we find none, to support his contention. Indiana Code Section 35-50-6-4(h) does not state that a trial court may choose which offense it uses as a basis for calculating credit time. Instead, the statute explicitly states that a person earns credit time pursuant to the credit class to which he is assigned, which, in turn, is based on the most serious offense with which the person is convicted. Here, the most serious offense with which Moon was charged in both cause numbers was a Level 4 felony. Moreover, Moon was arrested in both causes on the same day, he entered one plea agreement for both causes, and the trial court accepted that plea agreement and sentenced him in both causes at one hearing. Following that hearing, Moon's highest level of conviction was his Level 4 felony. We conclude that the trial court did not err when it calculated Moon's good time credit based on that offense.

Issue Two: Inappropriateness of Sentence

[15] Moon next asserts that his sentence is inappropriate in light of the nature of the offenses and his character. Indiana Appellate Rule 7(B) provides that "[t]he 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." The Indiana Supreme Court has recently explained that:

The principal role of appellate review should be to attempt to leaven the outliers ... but not achieve a perceived "correct" result in each case. Cardwell v. State , 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Anglemyer v. State , 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007), decision clarified on reh'g , 875 N.E.2d 218 (Ind. 2007).

Shoun v. State , 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).

[16] Indiana's flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented, and the trial court's judgment "should receive considerable deference." Cardwell , 895 N.E.2d at 1222. Whether we regard a sentence as inappropriate at the end of the day turns on "our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case." Id. at 1224. Deference to the trial court "prevail[s] unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character)." Stephenson v. State , 29 N.E.3d 111, 122 (Ind. 2015).

[17] Moon does not challenge the length of his sentence. Instead, he asserts that his sentence is inappropriate because the trial court declined to recommend him for purposeful incarceration. The place where a sentence is to be served is subject to review under Rule 7(B). See Biddinger v. State , 868 N.E.2d 407, 414 (Ind. 2007). However, this court has recognized that it is "quite difficult" for a defendant to prevail on a claim that his placement is inappropriate. Fonner v. State , 876 N.E.2d 340, 343 (Ind. Ct. App. 2007). "As a practical matter, trial courts know the feasibility of alternative placements in particular counties or communities." Id. That is, "a trial court is aware of the availability, costs, and entrance requirements of community corrections placements in a specific locale." Id. at 343-44. Moreover, because our appellate review is focused not on whether another sentence might be more appropriate, but on whether the sentence imposed is inappropriate, a "defendant challenging the placement of a sentence must convince us that the given placement is itself inappropriate." Id. at 344.

[18] Here, the record demonstrates that Moon asked the trial court to recommend him for purposeful incarceration, but the trial court did not do so. Instead, the trial court ordered Moon to complete the Howard County Drug and Alcohol Program as a condition of his probation in both cause numbers. Accordingly, the trial court still offered Moon an opportunity to address his substance-abuse issues when he completes the executed portion of his sentence.

[19] Still, Moon contends that, because he is a chemically addicted offender with a "long history of substance abuse" and because the circumstances of the crimes were not "more heinous" than the elements required to prove the charges, we should remand this case and compel the trial court to modify his sentence and recommend him for purposeful incarceration. Appellant's Br. at 12. But we are not convinced that the trial court's imposition of an executed sentence without a recommendation for purposeful incarceration is inappropriate.

[20] This court has previously stated that Rule 7(B) plainly requires " 'the appellant to demonstrate that his sentence is inappropriate in light of both the nature of the offenses and his character.' " Sanders v. State , 71 N.E.3d 839, 843 (Ind. Ct. App. 2017) (quoting Williams v. State , 891 N.E.2d 621, 633 (Ind. Ct. App. 2008) ) (emphasis original to Williams ). And while we agree that his offenses were not any more serious than what was needed to prove the charges, Moon has not demonstrated that his sentence is inappropriate in light of his character.

[21] At the time of sentencing, Moon already had a relatively substantial criminal history. As a juvenile, Moon was convicted in Illinois of felony delivery of a controlled substance. As a result of that conviction, Moon spent 36 months on probation. And, as an adult, Moon's criminal history includes one felony conviction in Illinois for unlawful possession of a firearm by a felon, for which Moon spent three years incarcerated, and one felony conviction in Indiana for unlawful delivery of a controlled substance, for which Moon spent seven years in the Indiana Department of Correction. But despite having served a substantial amount of time in confinement in both Indiana and Illinois, Moon again decided to engage in unlawful behavior when he sold cocaine to a confidential informant and when he resisted law enforcement. Moon's refusal to alter his criminal behavior after having been previously incarcerated reflects poorly on his character.

[22] Here, the trial court has provided Moon with an opportunity to address his substance-abuse issues after he completes the executed portion of his sentence. And Moon has not provided compelling evidence depicting his character in a positive light. As such, Moon has not met his burden of convincing us that his placement in the Department of Correction without a recommendation for purposeful incarceration is inappropriate.

[23] In sum, the trial court did not err when it calculated Moon's credit time, and Moon's sentence is not inappropriate in light of the nature of the offenses and his character. We affirm the trial court's order.

[24] Affirmed.

Pyle, J., concurs.

Crone, J., concurs in part and concurs in result in part with separate opinion.

[25] I agree with my colleagues that the trial court did not err in calculating Moon's credit time. I also agree that Moon has failed to meet his burden of establishing that his sentence is inappropriate in light of the nature of the offenses and his character under Indiana Appellate Rule 7(B).

[26] But I respectfully disagree with my colleagues' statement that Rule 7(B)"plainly requires 'the appellant to demonstrate that his sentence is inappropriate in light of both the nature of the offenses and his character.' " Op. at ---- (quoting Sanders , 71 N.E.3d at 843, and Williams , 891 N.E.2d at 633 ). In Connor v. State , 58 N.E.3d 215 (Ind. Ct. App. 2016), Judge Robb and I took the position that

although the rule does state that we may revise a sentence we find to be inappropriate "in light of the nature of the offense and the character of the offender," we view that as a statement that we as the reviewing court must consider both of those prongs in our assessment, and not as a requirement that the defendant must necessarily prove each of those prongs render his sentence inappropriate.

Id. at 219 (footnote omitted) (emphases in Connor ) (quoting Ind. Appellate Rule 7(B) ). This is in line with our supreme court's statement in Cardwell that we should review sentences in their entirety and not overlook the forest by focusing on the trees. 895 N.E.2d at 1225. Judge Najam expressed his disagreement with this viewpoint in a separate opinion concurring in the result. Perhaps someday our supreme court will weigh in on this issue and settle the dispute once and for all.

      Moon sold the confidential informant cocaine in amounts that ranged from 2.1 grams to 4.6 grams.

      Moon simply states, without any analysis or discussion, that the trial court's calculation of credit time based on the Level 4 felony instead of the Level 6 felony is "wrong under James v. State , 872 N.E.2d 669, 671 (Ind. Ct. App. 2007) and McAllister v. State , 913 N.E.2d 778, 782 (Ind. Ct. App. 2009)." Appellant's Br. at 9. But neither of those cases are relevant to the issue or otherwise support Moon's argument.

      Moon also asserts on appeal that the trial court abused its discretion when it considered the firearms charge when it declined to recommend him for purposeful incarceration. Moon did not plead guilty to that charge, and he did not admit to the facts in the probable cause affidavit that would support that charge. Thus, the trial court considered facts not in the record when it declined to recommend Moon for purposeful incarceration as a result of the firearms charge. We assume for the sake of argument that this was an error. However, the location where a sentence is to be served is not subject to review for abuse of discretion. See King v. State , 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Rather, "[t]he location where a sentence is to be served is an appropriate focus of our review and revise authority." Id. And, as discussed above, Moon has not convinced us that his sentence is inappropriate in light of the nature of the offenses to which he did plead guilty and his character. Thus, any error the trial court may have committed when it considered the firearms charge was harmless. See Mendoza v. State , 869 N.E.2d 546, 556 (Ind. Ct. App. 2007)


author: Mathias, Judge.

text:
    IN RE the Termination of the Parent-Child Relationship of J.K., B.K., and I.R. (Minor Children) and L.R. (Mother), Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner.
    Court of Appeals Case No. 18A-JT-529
    Court of Appeals of Indiana.
    Publication Ordered July 9, 2018 Filed September 7, 2018
    Attorney for Appellant: Erin L. Berger, Evansville, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Robert J. Henke, Deputy Attorney General, Indianapolis, Indiana
   Mathias, Judge.

[1] The Vanderburgh Superior Court terminated L.R.'s parental rights to her children without affording her due process under Indiana statute in several, separate instances. For this reason, we reverse the trial court's judgment.

[2] Initially, we observe that on July 9, 2018, our court issued an order addressing due process violations in termination of parental rights cases from courts across the state. Specifically, in the Order, our court noted that DCS has filed motions for remand in too many cases conceding, as it did in this case, that the Appellant had not been provided with due process or their due process rights have been violated. In its motions, DCS requested that the cases be remanded to the trial court for further proceedings consistent with due process. Our court observed that

The increasing frequency of these motions suggest that there are repeated, significant violations of due process occurring in termination of parental rights cases throughout this state. This is a disturbing trend given the fundamental rights at issue in these types of cases....
While the Court commends DCS for essentially conceding error in these cases, the Court is obligated to formally admonish DCS for its failure to afford litigants throughout this state the due process rights they are owed. Furthermore, the Court also reminds the trial courts throughout this state of their duty to ensure that litigants' due process rights are not violated. Given the fundamental due process rights at issue in termination of parental rights cases, affording litigants these fundamental due process rights is essential, including not only the litigants but also their children.

See Exhibit A, July 9, 2018 Order in Case No. 18A-JT-527. This case was referenced in this Order.

[3] Here, L.R. failed to appear for a "status of counsel" hearing. For this reason alone, and on the motion of the Department of Child Services ("DCS"), the trial court entered a default judgment against her and terminated her parental rights. L.R. filed a timely motion to correct error, and at the hearing held on that motion, she was denied the opportunity to explain her failure to appear.

[4] DCS concedes that L.R. "was not provided the due process protection to which she is entitled" and the "court's termination order does not satisfy the requirements of Indiana Code [section] 31-35-2-8 [.]" Appellee's Br. at 10. Specifically, the trial court failed to enter findings of fact and conclusions of law as required by Indiana Code section 31-35-2-8. "Compliance with the statutory procedure of the juvenile code is mandatory to effect termination of parental rights." In re H.K. , 971 N.E.2d 100, 103 (Ind. Ct. App. 2012) (quoting In re T.W. , 831 N.E.2d 1242, 1246 (Ind. Ct. App. 2005) ).

[5] For all of these reasons, we reverse the trial court's order terminating L.R.'s parental rights.

[6] Reversed and remanded for proceedings consistent with this opinion.

Bailey, J., and Bradford, J., concur.

EXHIBIT A

IN THE

COURT OF APPEALS OF INDIANA

Termination: A.A., Appellant,

v.

Indiana Department of Child Services, Appellee.

Court of Appeals Case No. 18A-JT-527

Order

[1] Appellant's Brief and Appendix were filed on May 4, 2018. On May 31, 2018, the Court ordered Appellee Indiana Department of Child Services ("DCS") to file its brief by June 18, 2018. Instead of filing a brief, DCS, by counsel, has filed a Verified Motion to Remand, or in the Alternative, a New Briefing Schedule. In the motion, DCS essentially concedes that Appellant was not provided with adequate notice of the termination of parental rights hearing and that the trial court violated Appellant's due process rights when it defaulted her while she was present in the court's waiting room but excluded from the actual courtroom. DCS asks that the case be dismissed without prejudice and remanded to the trial court for further proceedings consistent with due process. DCS alleges that Appellant does not object to remand.

[2] Over the past six (6) months, DCS has filed eight (8) motions to remand that are substantively similar to the motion at issue here. See Termination: S.T. v. Indiana Dep't of Child Services , No. 48A02-1709-JT-2094; Termination: T.Z. v. Indiana Dep't of Child Services , No. 79A02-1710-JT-2406; Termination: K.P. v. Indiana Dep't of Child Services , No. 53A05-1712-JT-2830; Termination: N.L. v. Indiana Dep't of Child Services , No. 18A-JT-94; Termination: A.B. v. Indiana Dep't of Child Services , No. 18A-JT-170; Termination: C.S., et al. v. Indiana Dep't of Child Services , No. 18A-JT-280; Termination: J.F., et al. v. Indiana Dep't of Child Services , No. 18A-JT-341; Termination: L.R. v. Indiana Dep't of Child Services , No. 18A-JT-529. This is the ninth such motion filed by DCS, and the Court is aware of a tenth motion that has been filed in Cause Number 18A-JT-530. The motions are always filed after Appellant has filed their brief. In these motions, DCS essentially concedes that Appellant has either not been provided with adequate notice or that their due process rights have been violated. DCS then, as in this case, requests that the matter be remanded to the trial court for further proceedings consistent with due process.

[3] It is not clear why DCS has suddenly chosen to file motions to remand in these cases rather than file a brief. The result of this, though, is that the Court has primarily dealt with these issues through its orders and not in a formal opinion. While the orders of this Court carry weight, they do not carry the weight or the effect that an opinion from this Court does. By filing a motion to remand, DCS has successfully avoided defending repeated, significant violations of due process in termination of parental rights cases.

[4] The increasing frequency of these motions suggest that there are repeated, significant violations of due process occurring in termination of parental rights cases throughout this state. This is a disturbing trend given the fundamental rights at issue in these types of cases. See In re Adoption of O.R. , 16 N.E.3d 965, 972 (Ind. 2014) (noting that the Fourteenth Amendment to the United States Constitution protects the rights of parents to establish a home and raise their children, that parents have a fundamental liberty interest in the care, custody, and control of their children, and that the parent-child relationship is one of the most valued relationships in our culture).

[5] While the Court commends DCS for essentially conceding error in these cases, the Court is obligated to formally admonish DCS for its failure to afford litigants throughout this state the due process rights they are owed. Furthermore, the Court also reminds the trial courts throughout this state of their duty to ensure that litigants' due process rights are not violated. Given the fundamental due process rights at issue in termination of parental rights cases, affording litigants these fundamental due process rights is essential, including not only the litigants but also their children.

[6] Having reviewed the matter, the Court finds and orders as follows:

1. Pursuant to Appellate Rule 37, Appellee's Verified Motion to Remand is granted. This appeal is dismissed without prejudice and remanded to the trial court for further proceedings consistent with due process.
2. Appellant may, after filing a new notice of appeal, raise the issues Appellant would have raised in this appeal along with any new issues created by the trial court's ruling(s) on remand.
3. The Court directs that this order should be published. The Clerk of this Court is directed to send copies of this order to West/Thomson Reuters, LexisNexis, and all other sources to which decisions/opinions of this Court are normally sent.
4. The Clerk of this Court is directed to send a copy of this order to the parties, Judge Brent J. Niemeier of the Vanderburgh Superior Court, Magistrate Renee A. Ferguson of the Vanderburgh Superior Court, the Vanderburgh Circuit and Superior Courts Clerk, Indiana Attorney General Curtis Hill, and Terry J. Stigdon, Director of the Indiana Department of Child Services.
5. The Vanderburgh Circuit and Superior Courts Clerk is directed to file a copy of this order under Cause Numbers 82D04-1711-JT-2195, 82D04-1711-JT-2196, 82D04-1711-JT-2197, and 82D04-1711-JT-2198, and, pursuant to Indiana Trial Rule 77(D), the Clerk shall place the contents of this order in the Record of Judgments and Orders.

Ordered 7/9/2018

Mathias, J., Darden, Friedlander, Sr. JJ., concur.

      The July 9, 2018 Order specifically references ten cases. Four of those are from Judge Niemeier's court. The order is attached to this opinion as Exhibit A.

      L.R. was present for an initial hearing held on November 28, 2017. At that hearing, L.R., who waived her right to counsel during the CHINS proceedings, requested counsel, and counsel was appointed. The chronological case summary describes the December 12, 2017 hearing as a "status of counsel hearing," and L.R. was told that the purpose of the December 12, 2017 hearing was to answer the petition to terminate her parental rights. Appellant's App. p. 15; Tr. p. 7. The December 12, 2017 hearing was not set as a fact-finding hearing on the petition.

      The transcript in this case shows repeated violations of L.R.'s fundamental due process rights. We are at a loss as to any possible, just reason for such conduct.