author: BAILEY, Judge.

text:
    Joshua LINDSEY, Appellant-Intervenor-Plaintiff, v. Adam NEHER, Appellee-Petitioner-Defendant.
    No. 08A04-1211-MI-575.
    Court of Appeals of Indiana.
    May 30, 2013.
    Florence Anne Briggs, Briggs Law Office, Flora, IN, Attorney for Appellant.

      Jeremy A. Peelle, Peelle Law Office, Kokomo, IN, Attorney for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Joshua Lindsey (“Lindsey”) appeals the denial of his motion to rescind a tax deed issued to Adam Neher (“Neher”) although the redemption notices had recited an incorrect tax sale date. We reverse and remand with instructions.

Issue

Lindsey presents three issues for review, which we consolidate and restate as a single issue: whether a failure to substantially comply with statutes governing tax sales and redemption rendered void the tax deed to Neher.

Facts and Procedural History

Although scant testimony was presented at the hearing, the following facts are not in dispute. On September 16, 2011, five parcels of real estate in Cutler, Indiana (“the Property”) were sold at a tax sale by the Treasurer of Carroll County. Taxes were delinquent in the amount of $150.00.

The parcels had belonged to Lindsey’s mother, Lottie Carmack (“Carmack”), before her accidental death in Kentucky in 1998. After Carmack’s death, Lindsey continued to live on the Property, albeit without a formal transfer of title. As of the time of the tax sale, Lindsey had resided on the Property for forty years.

The Carroll County Commissioners conducted a tax sale on April 9, 2012 and assigned the tax sale certificate to Neher. Neher, by counsel, published notices in a local newspaper on June 6 and June 13, 2012. The notices erroneously stated that the tax sale had been conducted on April 11, 2012 and further stated that a petition for tax deed would be forthcoming on or after August 11, 2012.

Neher’s counsel also sent, by certified mail, a redemption notice addressed to Lottie E. Carmack at 1985 East 620 South, Cutler, Indiana. The notice stated in pertinent part that a tax sale had been conducted on April 11, 2012 and further stated:

The Board, or its successors and assigns, is entitled to receive a Tax Deed for all five Parcels if they are not redeemed on or before August 11, 2012.

(Exhibit A.)

On August 9, 2012, Lindsey contacted Tina at the Carroll County Auditor’s Office to request a redemption amount. He was informed that the 120-day statutory redemption period had expired one day earlier and his payment could not be accepted. On the following day, Lindsey issued letters by facsimile to the Carroll County Auditor, Treasurer, and Attorney, and to Neher’s attorney stating that he had obtained the cash for redemption and had been told he was one day too late. He also stated that he had furnished Tina a copy of the aforementioned letter from Neher’s attorney. He sent his son into the Auditor’s office with cash for redemption of the Property, to no avail.

On August 15, 2012, Neher filed a Verified Petition for Tax Deed, to which Lindsey filed an objection. Five days later, the Carroll County Circuit Court issued an order directing the Carroll County Auditor to issue a tax deed to Neher. On August 22, 2012, Lindsey filed a petition to rescind the deed and motion for consolidation. On the same day, the court ordered that no further action be taken on the tax deed and consolidated the matters for hearing. A hearing was conducted on October 9, 2012.

On October 11, 2012, the trial court again ordered that the Auditor of Carroll County issue a tax deed to Neher. The order included the language:

The notices required by law have been given, though the publication notice carried in the Carroll County Comet on June 6 and 13, 2012 indicated that the tax sale was on April 11, 2012.

(App. 4.) This appeal ensued.

Discussion and Decision

Standard of Review

Although not expressly styled as such, Lindsey’s motion to rescind the tax deed and permit his redemption of the Property effectively moved the trial court for relief pursuant to Indiana Trial Rule 60(B). See Kessen v. Graft, 694 N.E.2d 317, 320 (Ind.Ct.App.1998) (recognizing that, pursuant to Indiana Code section 6-1.1-25-16, “a person may, upon appeal, defeat the title conveyed by a tax deed,” and because the statute does not provide its own procedures, the Indiana trial rules apply; thus, a proper procedural avenue for appealing the issuance of a tax deed is found in Trial Rule 60), trans. denied.

More particularly, Lindsey sought relief under Trial Rule 60(B)(6), which provides in pertinent part as follows:

On motion and upon such terms as are just the court may relieve a party ... from an entry of default, final order or final judgment, including a judgment by default for the following reasons: ... the judgment is void.

A motion for relief from judgment is addressed to the equitable discretion of the trial court, circumscribed by the eight categories listed in Trial Rule 60(B). Lee v. Pugh, 811 N.E.2d 881, 887 (Ind.Ct.App.2004). Normally, this Court employs an abuse of discretion standard in reviewing a trial court’s ruling on a motion to set aside a judgment. Rice v. Comm’r., Ind. Dep’t. of Envtl. Mgmt., 782 N.E.2d 1000, 1003 (Ind.Ct.App.2003). However, when a motion for relief from judgment is made pursuant to Trial Rule 60(B)(6), alleging that the judgment is void, discretion on the part of the trial court is not employed because either the judgment is void or it is valid. Id.

Analysis

Tax sale proceedings must satisfy the due process requirements of the United States Constitution; accordingly, notice must be given before one is deprived of a property interest. Smith v. Breeding, 586 N.E.2d 932, 936 (Ind.Ct.App.1992). “The United States Supreme Court has held that a state must provide ‘notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action’ prior to taking steps which will affect a protected interest in life, liberty, or property.” Id. (quoting Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 795, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983)). Notice is constitutionally adequate when “the practicalities and peculiarities of the case ... are reasonably met.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314-15, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

In accordance with due process, our Legislature has enacted a statutory scheme found in Indiana Code sections 6-1.1-24-1 to 6-1.1-24-15 (governing sales when taxes or special assessments become delinquent), and Indiana Code sections 6-1.1-25-1 to 6-1.1-25-19 (governing redemption and tax deeds). “A tax sale is purely a statutory creation, and material compliance with each step of the statute is required.” Swami Inc. v. Lee, 841 N.E.2d 1173, 1178 (Ind.Ct.App.2006), trans. denied.

Before a sale may be conducted, notice to the owner and general public must be given. Ind.Code § 6-1.1-24-2 to 6—1.1— 24-4. If a minimum bid is not forthcoming within the statutorily prescribed period, the county acquires a lien on the property in the amount of the minimum sale price. Ind.Code § 6-l.l-24-6(a). A tax certificate is issued, and the redemption period begins to run. Ind.Code § 6-1.1-25-4.

A redemption notice must be given and must contain, among other items, the date on or after which the petitioner intends to petition for a tax deed to be issued, and the date the tract or real property was sold at a tax sale. Ind.Code § 6-1.1-25-4.5(e). If proper notice has been given and the relevant period expires without redemption, the tax sale certificate is exchanged for a tax deed. Ind.Code § 6-1.1-25-4.5(a).

“Failure to comply substantially with statutes governing tax sales renders void subsequent tax deeds which deprive owners of their property.” Kessen, 694 N.E.2d at 320 (citing Smith, 586 N.E.2d at 935). For example, a property owner may defeat a tax deed if the owner has not been given proper notice of the sale and right of redemption. See, e.g., Peterson v. Warner, 478 N.E.2d 692 (Ind.Ct.App.1985) (notice containing substantially misleading information concerning facts crucial to the owner rendered the tax deed invalid). The tax deed may be set aside if the three notices required by Indiana Code § 6-1.1-24-4 (notice of sale to owner), 6-1.1-25-4.5 (notice of the right of redemption), and 6-1.1-25-4.6 (notice of petition for tax deed) were not in substantial compliance with the requirements of those sections. Ind. Code § 6-1.1-25-16(7). In re 2005 Tax Sale Parcel No. 24006-001-0022-01, 898 N.E.2d 349, 353 (Ind.Ct.App.2008).

In the trial court, Lindsey argued that he was deprived of his home of forty years without notice of an accurate tax sale date, a date upon which to calculate his redemption period. In essence, Lindsey has alleged that the tax deed is void due to insufficient notice, that is, he was deprived of his constitutional right to due process. We must agree.

The actual and constructive post-sale notices failed to accurately reflect that the tax sale had taken place on April 9, 2012. Both the notices by publication and the notice by certified letter recited a date two days later than the actual sale. Accordingly, Carmack’s heirs were not provided notice with a proper date upon which to calculate the redemption period. Moreover, the notice language strongly suggested, even if it was not definitively stated, that the 120-day redemption period extended to August 11, 2012. This falls far short of adequate notice to reasonably meet “the practicalities and peculiarities of the case.” Mullane, 339 U.S. at 314-15, 70 S.Ct. 652.

Neher argues that, because notice was issued, the inaccuracy of the tax sale date is inconsequential and the redemption date must be mathematically calculated without regard to the content of the notices. As such, he contends that the clerk properly rejected the proffered payment.

Neher’s argument does not take into account the fact that notice must be constitutionally adequate, and he seeks a result that does not comport with equity as it would permit him to reap benefits from repetitive misstatements. Here, there is no suggestion that the misstatements were motivated by fraud. However, if we held as Neher suggests-that so long as notices are issued and received, the statutory period runs without regard to the content of published notices or communications between parties-that holding could invite fraud in future cases. A party may not draft, publish, and mail erroneous information, making no correction before the lapse of a statutory period, and then benefit from the dissemination of falsity.

The tax deed at issue was invalid and the judgment void as a matter of law. Lindsey is entitled to the equitable relief requested, specifically, that he be allowed to tender his redemption payment. We reverse and remand to the trial court for an order that the Carroll County Auditor accept redemption funds tendered by Lindsey.

Reversed and remanded with instructions.

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

      . It is not entirely clear from the record whether this amount is in total or per parcel.

      . Ind.Code§ 6-1.1-25-4.

      . Generally, with a Trial Rule 60(B) motion, the claimant must not only show mistake, surprise, or excusable neglect, but must also make a prima facie showing that a different result would be reached if the case were tried on the merits. T.R. 60(B). Nevertheless, if the judgment is void ab initio, a Trial Rule 60(B) claimant need not show a meritorious claim or defense. Moore v. Terre Haute First Nat'l. Bank, 582 N.E.2d 474, 476-77 (Ind.Ct.App.1991).

      . He argues that Lindsey, having failed to pay $150.00 in taxes, has unclean hands and cannot seek equity. "The doctrine of unclean hands is not favored and must be applied with reluctance and scrutiny.” Swami, 841 N.E.2d at 1179. It will be applied only when the misconduct is intentional and the claimed wrong has an immediate and necessary relation to the matter before the court. Id. We observe that the taxes were owed not to Neher, but to the taxing authority. As to Neher, Lindsey has not acted in a manner inconsistent with Neher’s obligation to give proper notice.


source: Caselaw Access Project

author: BROWN, Judge.

license: Public Domain

text:
    Christie WILSON, Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
    No. 88A01-1301-CR-2.
    Court of Appeals of Indiana.
    May 31, 2013.

      Ryan D. Bower, Allen, Allen & Brown, Salem, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Christie Wilson appeals the trial court’s order finding her in contempt. Wilson raises one issue which we revise and restate as whether the trial court abused its discretion when it found her in contempt. On cross-appeal, the State argues that this court does not have jurisdiction and that this case is moot because Wilson did not timely appeal the trial court’s order granting her immunity. We affirm.

FACTS AND PROCEDURAL HISTORY

On April 11, 2012, the State charged Nathan Schultz with two counts of burglary and eighteen counts of theft under cause number 88D01-1204-FB-256 (“Cause No. 256”). That same day, the State charged Wilson with burglary, theft, two counts of receiving stolen property, and being an habitual offender under cause number 88D01-1204-FB-257. On September 10, 2012, Wilson pled guilty to theft as a class D felony and receiving stolen property as a class D felony, and the other charges were dismissed. The court sentenced Wilson to three years for each offense and ordered that the sentences be served consecutive to each other for an aggregate sentence of six years.

In November 2012, the State filed a motion for grant of use immunity for Wilson in Cause No. 256. On November 8, 2012, the court entered an Order Granting Use Immunity which states:

The State of Indiana having filed the State’s Grant of Use Immunity pursuant to Indiana Code 35-37-3-3, and the Court having reviewed the same, does now grant the witness, Christie Wilson, use immunity in connection with truthful testimony or statements given by her at deposition regarding the above-entitled cause. The Court instructs the witness that any evidence the witness gives, or evidence derived from that evidence, may not be used in a criminal proceeding against the witness, unless the evidence is volunteered by the witness or is not responsive to a question by the prosecuting attorney. The Court instructs the witness that the witness must answer the questions asked and produce any items requested. The Court instructs the witness that a grant of use immunity does not prohibit the use of evidence the witness has given in a prosecution for perjury under I.C. 35-44-2-1. The Court further instructs the witness that, if the witness refuses to give the evidence after being granted use immunity, the Court may find the witness in contempt.

Appellant’s Appendix at 6.

That same day, a deposition of Wilson occurred at which Wilson, her attorney, a deputy prosecutor, and Schultz’s attorney were present. Wilson acknowledged that she had received a copy of the Order Granting Use Immunity. Wilson indicated that she would not be willing to answer questions, and her attorney stated that Wilson was willing to answer basic questions, but “as to anything involving any type of criminal activity or dealings with Mr. Schultz or otherwise, [Wilson] does intend to assert her Fifth Amendment of the U.S. Constitution and ... rights as well as ... Article 1, Section 14 of the Indiana Constitution, those rights to not self-incriminate.” Id. at 9. Wilson’s attorney also stated that they “take issue with the Order Granting Use Immunity as being ... overly specific and not broad enough to actually provide the protections that those ... constitutions provide.” Id.

Schultz’s counsel then asked Wilson some questions, and Wilson stated that she was currently residing at the Rockville Correctional Facility for receiving stolen property and aiding in a theft and that those charges were directly related to Schultz. However, Wilson asserted her rights under the Fifth Amendment when asked whether Schultz brought her property that led to her arrest for receiving stolen property. The prosecutor then asked Wilson some questions, and Wilson indicated that she understood that the Order Granting Use Immunity provided that she would not be prosecuted for involvement in any crimes that she speaks about and that she could be found in contempt for refusing to answer. When asked why she did not want to testify, Wilson stated: “On advice of the counsel, I respectfully refuse to answer and hereby assert my rights under the 5th Amendment.” Id. at 12.

On November 20, 2012, the State filed a Motion to Set Hearing on Contempt against Wilson. On November 30, 2012, the court held a hearing on the contempt allegation against Wilson, heard arguments, and found that Wilson was guilty of contempt. On December 5, 2012, the trial court entered an order regarding Wilson’s contempt. The court notified Wilson that she may purge herself of the contempt by testifying truthfully in a deposition before 12:00 p.m. on December 14, 2012, and that if she did not purge herself of the contempt that she is ordered to serve “6 months (actual) at the Washington County Jail consecutive to any other sentence she is now ordered to serve.” Id. at 16. On January 3, 2013, Wilson filed a notice of appeal from the December 5, 2012 order.

DISCUSSION

Wilson argues that she did not willfully violate the court’s order, but merely asserted her Fifth Amendment rights. She asserts that the Fifth Amendment to the United States Constitution and Article 1, Section 14 of the Indiana Constitution guarantee a defendant’s right against self-incrimination. Wilson contends that “it appears to be a matter of first impression whether Indiana’s Constitution section 14 provides greater protection than the U.S. Constitution’s Fifth Amendment in matters relating to compelled testimony through orders of use immunity. It is reasonable to find that Indiana’s constitution may offer more protection.” Appellant’s Brief at 4. She further states that “Justice William Douglas, had vigorously dissented that a grant of immunity can rarely, if ever, be broad enough to eliminate all possibility that the testimony will in fact operate to incriminate a witness.” Id. (citing Ullmann v. United States, 350 U.S. 422, 440, 76 S.Ct. 497, 100 L.Ed. 511 (1956) (Douglas, J., dissenting); Piccirillo v. New York, 400 U.S. 548, 91 S.Ct. 520, 27 L.Ed.2d 596 (1971) (Douglas, J., dissenting); Kastigar v. United States, 406 U.S. 441, 462, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) (Douglas, J., dissenting)). Wilson maintains that “[a] grant of immunity, especially a Use Immunity order is proper only when it is broad enough to eliminate all possibility that the testimony will in fact operate to incriminate her” and that if the State wishes to compel her testimony it should offer transactional immunity. Id. at 5. She states that “[although the U.S. Supreme Court has found that use immunity is sufficient protection, under the Indiana Constitution transactional immunity should be the only true protection.” Id. at 7. Wilson also argues that her “refusal to testify was not ‘disobedience of a court that undermines the court’s authority, justice, and dignity.’ As such, the maximum 180 day ‘flat’ contempt sentence is inappropriate.” Id. at 7.

The State argues that Wilson attempts to challenge the non-jurisdictional merits of the trial court’s November 8, 2012 order that she appear and testify at a deposition in Cause No. 256. The State asserts that Wilson forfeited her right to appeal the merits of the November 8, 2012 order because she did not appeal that order according to the Rules of Appellate Procedure. The State contends that “[sjince Wilson does not challenge the trial court’s finding that she is in contempt for failing to obey the November 8, 2012 order, there are no issues for this Court to review.” Appel-lee’s Brief at 6. The State further maintains that even if Wilson could challenge the November 8, 2012 order, she has failed to demonstrate the merits of her claim.

A. Jurisdiction

We first address the State’s argument that this court does not have jurisdiction and that this case is moot because Wilson did not timely appeal the trial court’s November 8, 2012 Order Granting Use Immunity. The State cites City of Gary v. Major, 822 N.E.2d 165 (Ind.2005); and Witt v. Jay Petroleum, Inc., 964 N.E.2d 198 (Ind.2012), reh’g denied. In Major, the City of Gary appealed a trial court’s finding of contempt and a corresponding award of monetary damages. 822 N.E.2d at 167. The Court held:

The law in Indiana is well settled that a person cannot be held in contempt of court for failure to obey an order if the issuing court had no jurisdiction to give the order. Such an order is void and unenforceable. However, an order that is void because the court lacks jurisdiction to enter it is distinguished from an order that is otherwise invalid. Thus, “[although a defendant cannot be held in contempt of a' void order, a defendant may be held in contempt of an erroneous order.... Accordingly, a defendant may not challenge a contempt finding based upon the prior order’s non-jurisdictional irregularities. A party must follow an erroneous order. The only remedy from an erroneous order is appeal and disobedience thereto is contempt.” Carson v. Ross, 509 N.E.2d 239, 243 (Ind.Ct.App.1987) (citations omitted), trans. denied; accord Crowl v. Berryhill, 678 N.E.2d 828, 830 (Ind.Ct.App.1997) (“A party’s remedy for an erroneous order is appeal and disobedience of the order is contempt.”).
⅜ ⅜ * * ⅝
Neither before the Court of Appeals nor before this Court has the City alleged the trial court lacked jurisdiction to enter its order of January 2001. At most, the order was erroneous. However, “[t]he only remedy from an erroneous order is appeal....” Carson, 509 N.E.2d at 243.

Id. at 169-170 (citations and footnote omitted). The Court then emphasized that the City did not appeal the trial court’s original order of January 17th, which declared null and void all towing contracts entered by the City Council and ordered the executive branch of the City of Gary to establish a procedure for the bidding and awarding of towing contracts, and held that “we are not presented with any question about the merits of the order or whether it was correct.” Id. at 170. The Court observed that the “only issue is whether there was sufficient evidence before the trial court to demonstrate that the City was in willful disobedience of the trial court’s order.” Id.

In Witt, John Witt, HydroTech Corp., and attorney Mark Shere were held in contempt of court for violating the terms of a temporary restraining order. 964 N.E.2d at 200. On appeal, the appellants argued that the temporary restraining order “was issued ‘under an incorrect legal standard’ and that this ‘moots’ the finding of contempt for violating its terms.” 964 N.E.2d at 203. The Court held:

An order of the court is only unenforceable when the court lacked jurisdiction. If, in the valid exercise of its jurisdiction, a court issues an erroneous order, that order must be obeyed. Major, 822 N.E.2d at 169-70. “The only remedy from an erroneous order is appeal and disobedience thereto is contempt.” Id. at 170 (quoting Carson v. Ross, 509 N.E.2d 239, 243 (Ind.Ct.App.1987), trans. denied). Recognizing this, [the appellants] contend that the TRO and preliminary injunction are appealable as of right. See Ind. Appellate Rule 14(A)(5). A preliminary injunction is appealable as of right. A TRO is not. See id.; see also State ex rel. Bd. of Med. Registration & Examination v. Hayes, 228 Ind. 286, 288, 91 N.E.2d 913, 913 (1950) (stating that the granting or denial of a restraining order is not ap-pealable). Regardless, such appeal must be filed “within thirty (30) days” after the entry of the order into the record. Ind.App. R. 14(A). This was not done. Because of procedural default, the validity of the TRO and preliminary injunction cannot be challenged in this appeal.

Id. (footnote omitted). The Court then addressed the appellants’ arguments regarding whether the trial court abused its discretion in finding and punishing the contempt. Id. at 203-204.

In the present case, we observe that Wilson’s notice of appeal indicated that she was appealing the December 5, 2012 order. Wilson phrases the issue as “whether or not the State of Indiana may compel testimony from [Wilson], who invokes the Federal and State Fifth Amendment privileges against compulsory self-incrimination.” Appellant’s Brief at 1. Under the statement of the case, Wilson states: “This is an appeal of the trial court’s contempt finding, conviction and sentence of six months without ‘good time’ credit.” Id. In the argument section of her brief, she states that she “was not willfully violating the court’s order, but merely asserting a reasonable legal position,” that her refusal to testify was not “disobedience of a court that undermines the court’s authority, justice, and dignity,” and that the sentence of 180 days was inappropriate. Id. at 7. While some of Wilson’s arguments may to some extent raise the issue of the validity of the November 8, 2012 order, we cannot say that all of Wilson’s arguments pertain only to the validity of that order. Consequently, we will address the merits of Wilson’s argument to the extent that she contends that the trial court erred in finding that she was in contempt.

B. Contempt

We now turn to whether the trial court abused its discretion when it found Wilson in contempt. Contempt is a “sui generis proceeding neither civil nor criminal in nature, although both of those labels are used to describe certain categories of contempt.” State v. Heltzel, 552 N.E.2d 31, 33 (Ind.1990). Contempt proceedings may be generally categorized as civil or criminal, according to the nature and purpose of the sanction imposed. Jones v. State, 847 N.E.2d 190, 199 (Ind.Ct.App.2006), reh’g denied, trans. denied. A civil contempt is a violation of a court order resulting in a proceeding for the benefit of the aggrieved party. Id. As such, any type of penalty in a civil contempt proceeding must be coercive or remedial in nature. Id. By contrast, a criminal contempt is an act directed against the dignity and authority of the court that obstructs the administration of justice and tends to bring the court into disrepute. Id. Accordingly, a criminal contempt sanction is punitive in nature because its purpose is to vindicate the authority of the court, and it benefits the State rather than the aggrieved party. Id.

Contempt may also be direct or indirect. Jones, 847 N.E.2d at 199. Direct contempt involves action in the presence of the court, such that the court has personal knowledge of it. Id. Indirect contempt undermines the orders or activities of the court but involves action outside the trial court’s personal knowledge. Id. Here, the parties agree that the alleged contempt is indirect because Wilson’s failure to answer the questions at the deposition took place away from the courtroom and outside the personal knowledge of the trial court. See Ind.Code § 34-47-3-1 (“A person who is guilty of any willful disobedience of any process, or any order lawfully issued ... by any court of record ... is guilty of an indirect contempt of the court that issued the process or order.”).

A party that is willfully disobedient to a court’s order may be held in contempt of court. Witt, 964 N.E.2d at 202. It is soundly within the discretion of the trial court to determine whether a party is in contempt, and we review the judgment under an abuse of discretion standard. Id. We will reverse a trial court’s finding of contempt only if there is no evidence or inference therefrom to support the finding. Id. Contempt of court involves disobedience which undermines the court’s authority, justice, and dignity. Id. The trial court has the inherent power to maintain its dignity, secure obedience to its process and rules, rebuke interference with the conduct of business, and punish unseemly behavior. Id. Crucial to the determination of contempt is the evaluation of a person’s state of mind, that is, whether the alleged contemptuous conduct was done willfully. Id. “When a person fails to abide by a court’s order, that person bears the burden of showing that the violation was not willful.” Meyer v. Wolvos, 707 N.E.2d 1029, 1031 (Ind.Ct.App.1999), reh’g denied, trans. denied. The determination of whether to find a party in contempt permits the trial court to consider matters which may not, in fact cannot, be reflected in the written record. Witt, 964 N.E.2d at 202-203. The trial court possesses unique knowledge of the parties before it and is in the best position to determine how to maintain its “authority, justice, and dignity” and whether a party’s disobedience of the order was done willfully. Id.

The Indiana Supreme Court recently held that “[o]ur General Assembly has empowered prosecutors to compel witnesses to testify, tipping the scales in the government’s favor.” In re S.H., 984 N.E.2d 630, 633 (Ind.2013) (citing Ind. Code §§ 35-37-3-1 et seq. (2008); 35-34-2-1 et seq. (2008)). “To bring them back into balance, such compulsion must be accompanied by a grant of witness immunity ‘coextensive with the scope of the privilege.’ ” Id. (quoting In re Caito, 459 N.E.2d 1179, 1182 (Ind.1984), cert. denied, 469 U.S. 805, 105 S.Ct. 62, 83 L.Ed.2d 13 (1984), reh’g denied). “Critically, the immunity must place the witness ‘in substantially the same position as if he had properly exercised his privilege to remain silent.’ ” Id. (quoting Caito, 459 N.E.2d at 1182).

Three types of immunity may be granted a witness in exchange for her testimony. Caito, 459 N.E.2d at 1182. Transactional immunity prohibits the State from criminally prosecuting the witness for any transaction concerning that to which the witness testifies. Id. at 1182-1183. Use immunity prohibits use at a subsequent criminal proceeding of testimony compelled of the witness. Id. at 1183. Derivative use immunity prohibits admission against a witness in a subsequent criminal prosecution of evidence obtained as a result of the witness’s compelled testimony. Id.

“Conferring transactional immunity upon a witness is undoubtedly coextensive "with his Fifth Amendment privilege since the compelled testimony can never be used against the witness in any criminal proceedings.” Id. “This type of immunity grants the same degree of protection to a citizen ordered to testify as though he had not testified at all.” Id.

The grant of use immunity alone cannot give a witness protection equivalent to the Fifth Amendment privilege. Id. The shortcoming of use immunity is that, although the compelled testimony cannot be admitted against the witness in a subsequent prosecution, other evidence derived from that testimony can. Id. Use immunity per se cannot protect an individual’s right not to give evidence against herself because the compelled testimony may still be employed by investigators who have thereby gained a knowledge of the details of the crime and other sources of incriminating evidence. Id. Use immunity cannot alone provide protection coextensive with the Fifth Amendment right because the witness would have done less damage to his defense through claiming the privilege, than by testifying with immunity. Id.

Ind.Code § 35-37-3-3(a) governs witness immunity and provides that “any evidence the witness gives, or evidence derived from that evidence, may not be used in any criminal proceeding against that witness....” (Emphasis added). The order granting Wilson immunity states in part:

The Court instructs the witness that any evidence the witness gives, or evidence derived from that evidence, may not be used in a criminal proceeding against the witness, unless the evidence is volunteered by the witness or is not responsive to a question by the prosecuting attorney.

Appellant’s Appendix at 6 (emphasis added). Based upon the language in Ind.Code § 35-37-3-3(a) and the trial court’s order granting immunity, we conclude that Wilson was granted both use immunity and derivative use immunity.

The United States Supreme Court has decided that statutes which compel the testimony of target witnesses in exchange for both use immunity and derivative use immunity are constitutional even when they allow subsequent perjury prosecutions arising from false immunized testimony. In re Caito, 459 N.E.2d at 1183 (citing Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972)). In Kastigar, the United States Supreme Court stated:

We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader. Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being [“jforced to give testimony leading to the infliction of ‘penalties affixed to ... criminal aets.[’ ”] Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.

406 U.S. at 453, 92 S.Ct. at 1661 (footnote omitted). The Court in Kastigar also held that “immunity from use and derivative use ‘leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege’ in the absence of a grant of immunity.” Id. at 458-459, 92 S.Ct. at 1664 (quoting Murphy v. Waterfront Comm’n, 378 U.S. 52, 79, 84 S.Ct. 1594, 1609-1610, 12 L.Ed.2d 678 (1964)). Thus, we cannot say that the trial court abused its discretion in finding Wilson in contempt on the basis of the Fifth Amendment.

With respect to Wilson’s argument that “under the Indiana Constitution transactional immunity should be the only true protection,” we disagree. In Caito, the appellant had refused to testify claiming his privilege against self-incrimination under the Fifth Amendment as well as Article 1, Section 14 of the Indiana Constitution. 459 N.E.2d at 1181. On appeal, the Court mentioned “[o]ur constitutions,” observed that the Court in Kastigar had held that statutes which compel testimony in exchange for both use immunity and derivative use immunity are constitutional, and concluded that Ind. Code § 35-34-2-8 did not violate the Fifth Amendment of the United States Constitution, nor Article 1, Section 14 of the Indiana Constitution. Id. at 1182-1184. Based upon Caito, which was decided about twenty years ago, we cannot say that the Indiana Constitution requires transactional immunity or that the trial court’s finding of contempt was an abuse of discretion.

For the foregoing reasons, we affirm the trial court’s finding of contempt.

Affirmed.

RILEY, J„ and BRADFORD, J., concur.

      . The record does not contain a copy of this motion.

      . Wilson concedes that "[t]he purported contempt in this case would, if it existed, likely be considered criminal contempt.” Appellant’s Brief at 3. The State argues that the remedial distinction between a civil and criminal contempt has no bearing on the appeal.

      . In its entirety, Ind.Code § 35-37-3-3 provides:
      (a)Upon request of the prosecuting attorney, the court shall grant use immunity to a witness. The court shall instruct the witness, by written order or in open court, that any evidence the witness gives, or evidence derived from that evidence, may not be used in any criminal proceeding against that witness, unless the evidence is volunteered by the witness or is not responsive to a question by the prosecuting attorney. The court shall instruct the witness that the witness must answer the questions asked and produce the items requested.
      (b) A grant of use immunity does not prohibit the use of evidence the witness has given in a prosecution for perjury under IC 35-44.1-2-1.
      (c) If a witness refuses to give the evidence after the witness has been granted use immunity, the court may find the witness in contempt.

      . At the time, Ind. Code § 35-34-2-8 provided in part: "Upon request by the prosecuting attorney, the court shall grant use immunity to a witness before the grand jury. The court shall instruct the witness by written order or in open court that any evidence the witness gives before the grand jury, or evidence derived from that evidence, may not be used in any criminal prosecution against that witness, unless the evidence is volunteered by the witness or is not responsive to a question by the grand jury or the prosecutor.”

      . Wilson mentions her sentence of 180 days in her brief. Specifically, Wilson states that her "refusal to testify was not 'disobedience of a court that undermines the court's authority, justice, and dignity.' As such, the maximum 180 day 'flat’ contempt sentence is inappropriate.” Appellant’s Brief at 7. Because we conclude that the trial court did not abuse its discretion in finding Wilson in contempt, which involves disobedience of a court which undermines the court's authority, justice, and dignity, we do not find that Wilson's argument requires remand. To the extent that Wilson suggests that her sentence is otherwise inappropriate, we conclude that Wilson fails to develop the argument. Consequently, this issue is waived. See, e.g., Cooper v. State, 854 N.E.2d 831, 834 n. 1 (Ind.2006) (holding that the defendant's contention was waived because it was "supported neither by cogent argument nor citation to authority”); Shane v. State, 716 N.E.2d 391, 398 n. 3 (Ind.1999) (holding that the defendant waived argument on appeal by failing to develop a cogent argument).


author: CRONE, Judge. ROBB, Chief Judge,

text:
    Bryant E. WILSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 27A02-1212-CR-1012.
    Court of Appeals of Indiana.
    June 3, 2013.

      Bryant E. Wilson, New Castle, IN, Appellant Pro Se.
    Gregory F. Zoeller, Attorney General of Indiana, Katherine Modesitt Cooper, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Bryant E. Wilson appeals the denial of his motion to correct erroneous sentence. Because his sentencing judgment is not erroneous on its face, we affirm.

Facts and Procedural History

The relevant facts are undisputed. In January 1995, the State charged Wilson with class A felony rape, class A felony criminal deviate conduct, and class B felony robbery. In March 1996, a jury found him guilty as charged. In April 1996, the trial court sentenced Wilson to concurrent terms of forty-five years on each of the class A felony counts and to twenty years on the class B felony count, with fifteen years to be served concurrent with and five years to be served consecutive to the sentences on the class A felony counts, for an aggregate sentence of fifty years. Wilson filed a motion to correct error, which was denied. Wilson then pursued a direct appeal; this Court affirmed his convictions and our supreme court denied his petition for transfer. Wilson subsequently filed a petition for post-conviction relief and a motion for modification of sentence, both of which were denied. Wilson appealed the denial of his post-conviction petition, which was affirmed in 1999. In September 2012, Wilson filed a motion for modification of sentence, which was denied.

On November 2, 2012, Wilson filed a pro se motion to correct erroneous sentence, in which he argued that “the trial court lacked statutory authority in holding a part of his sentence in abeyance.” Appellant’s App. at 10. The trial court denied the motion. This appeal ensued.

Discussion and Decision

Wilson filed his motion to correct erroneous sentence pursuant to Indiana Code Section 85-38-1-15, which states,

If the convicted person is erroneously sentenced, the mistake does not render the sentence void. The sentence shall be corrected after written notice is given to the convicted person. The convicted person and his counsel must be present when the corrected sentence is ordered. A motion to correct sentence must be in writing and supported by a memorandum of law specifically pointing out the defect in the original sentence.

“The purpose of the statute ‘is to provide prompt, direct access to an uncomplicated legal process for correcting the occasional erroneous or illegal sentence.’ ” Robinson v. State, 805 N.E.2d 783, 785 (Ind.2004) (quoting Gaddie v. State, 566 N.E.2d 535, 537 (Ind.1991)). In Robinson, our supreme court held that

a motion to correct sentence may only be used to correct sentencing errors that are clear from the face of the judgment imposing the sentence in light of the statutory authority. Claims that require consideration of the proceedings before, during, or after trial may not be presented by way of a motion to correct sentence.

Id. at 787. “When claims of sentencing errors require consideration of matters outside the face of the sentencing judgment, they are best addressed promptly on direct appeal and thereafter via post-conviction relief proceedings where applicable.” Id.

On appeal, Wilson renews his argument that “the trial court lacked statutory authority in holding a part of his executed sentence in abeyance.” Appellant’s Br. at 7. We take this to mean that the trial court allegedly lacked statutory authority to impose partially consecutive sentences. Wilson cites no statute that expressly prohibits partially consecutive sentences, and in fact there is currently a difference of opinion on this Court regarding whether such sentences are permissible. Compare Hull v. State, 799 N.E.2d 1178, 1182 and n. 1 (Ind.Ct.App.2003) (disapproving of partially consecutive sentences for two counts of murder), with Merida v. State, 977 N.E.2d 406, 409-10 (Ind.Ct.App.2012) (disagreeing with Hull’s rationale and noting that Ind. Code § 35-50-1-2 “does not specifically prohibit partially consecutive sentences such as the one imposed in Hull”) (Crone, J., dissenting), trans. granted (2013). We note that Hull was decided more than seven years after Wilson was sentenced in 1996, and thus there was no legal authority in 1996 that expressly disapproved of partially consecutive sentences. Simply put, Wilson’s sentencing judgment is not erroneous on its face, and therefore the trial court did not err in denying his motion to correct erroneous sentence. Consequently, we affirm.

Affirmed.

FRIEDLANDER, J., concurs.

ROBB, C.J., dissents with opinion.

ROBB, Chief Judge,

dissenting.

Because I believe that courts are limited to imposing sentences that are authorized by statute, rather than only being limited to sentences that are not prohibited by statute, I respectfully dissent.

I recognize that if this subject were more settled, we would not have the split within our court to which the majority refers regarding the availability of partially consecutive sentences. Nevertheless, I believe that sentencing is a creature of the legislature and that we are limited to sentences that have been expressly permitted by the legislature. See Cooper v. State, 831 N.E.2d 1247, 1252 (Ind.Ct.App.2005) (“The trial court’s sentencing authority is only that which is conferred by the legislature.”), trans. denied. The statute relevant to consecutive and concurrent sentences provides that the court shall determine whether terms of imprisonment shall be served concurrently or consecutively, but does not provide a path for implementing partially consecutive sentences. In relevant part, the statute reads:

Except as provided in subsection (d) or (e), the court shall determine whether terms of imprisonment shall be served concurrently or consecutively. The court may consider the:
(1) aggravating circumstances in IC 35-38-l-7.1(a); and
(2) mitigating circumstances in IC 35-38-1-7.1(b);
in making a determination under this subsection. The court may order terms of imprisonment to be served consecutively even if the sentences are not imposed at the same time. However, except for crimes of violence, the total of the consecutive terms of imprisonment, exclusive of terms of imprisonment under IC 35-50-2-8 and IC 35-50-2-10, to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the advisory sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted.

Ind.Code § 35-50-l-2(c).

A reading of our case law shows that both this court and our supreme court regularly use the phrase “authorized by statute” when discussing sentencing and our standard of review for sentences. See, e.g., Bish v. State, 421 N.E.2d 608, 620 (Ind.1981) (“Thus, if the sentences imposed were authorized by statute, if those sentences are not manifestly unreasonable, and if the record discloses the trial court’s Ending of aggravating and/or mitigating circumstances, this Court will not revise or strike down the sentences in question.”) (emphasis added). We rarely, if ever, use the phrase “not prohibited by statute.” While such phrasing may become rote, and the distinction between a sentence that is authorized by statute and one that is simply not prohibited is immaterial in many cases, I believe the difference is important — especially here, where a sentence is in that grey area that is neither expressly allowed nor expressly prohibited under our sentencing statutes.

The case law of other jurisdictions lends support to my belief that we are limited to sentences that are expressly permitted by statute. See, e.g., Scanio v. United States, 37 F.3d 858, 863 (2d Cir.1994) (“The courts have generally frowned upon permitting even the courts themselves to modify a prisoner’s sentence unless expressly authorized by statute.”); Glaze v. State, 2011 Ark. 464, 385 S.W.3d 203, 209 (2011) (“Because sentencing is entirely a matter of statute, the circuit court only has the authority to impose a particular sentence when it complies with the applicable statute.”); Winkler v. State, 2012 Ark.App. 704, 13-14, — S.W.3d -, 2012 WL 6190389 (2012) (“A sentence is void or illegal when the trial court lacks authority to impose it. Because sentencing is entirely a matter of statute, the circuit court has the authority to impose a particular sentence only when it complies with the applicable statute.”) (citation omitted); People v. Oshana, 358 Ill.Dec. 695, 965 N.E.2d 1174, 1192 (Ill.App.Ct.2012) (“However, a trial court may only impose a sentence that is authorized, and any unauthorized aspect of a sentence is void and may be attacked at anytime”), appeal denied, 360 Ill.Dec. 317, 968 N.E.2d 1070 (Ill.2012); City of Bozeman v. Cantu, 369 Mont. 81, 296 P.3d 461, 466 (2013) (“It is well established that a court does not have the power to impose a sentence unless authorized by a specific grant of statutory authority. A sentencing condition is illegal if the sentencing court lacked statutory authority to impose it, if the condition falls outside the parameters set by the applicable sentencing statutes, or if the court did not adhere to the affirmative mandates of the applicable sentencing statutes.”) (citations and quotation marks omitted); State v. Rapchack, 150 N.M. 716, 265 P.3d 1289, 1291 (Ct.App.2011) (“A trial court’s power to sentence is derived exclusively from statute.”) (citation omitted), cert. denied, 289 P.3d 1253 (N.M.2011). Additionally, the United States Supreme Court has referenced the fact that a legislature’s failure to prohibit a particular sentence does not equate to that legislature’s approval of the sentence. Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (noting that the fact that many jurisdictions do not expressly prohibit the sentencing practice at issue is not dispositive because it does not necessarily follow that the legislatures in those jurisdictions have deliberately concluded that such sentences would be appropriate).

Because the sentence in question was not explicitly permitted by statute, I believe it was therefore erroneous. For that reason, I would reverse the trial court’s denial of Wilson’s motion to correct erroneous sentence.

      . None of the foregoing motions, petitions, or appellate decisions were included in the record before us.

      . The Robinson court also said, "Because such motions to correct sentence based on clear facial error are not in the nature of post-conviction petitions, we conclude that they may also be filed after a post-conviction proceeding without seeking the prior authorization necessary for successive petitions for postconviction relief under Indiana Post-Conviction Rule 1(12).” 805 N.E.2d at 788.

      . The dissent says that "[tjhe statute relevant to consecutive and concurrent sentences provides that the court shall determine whether terms of imprisonment shall be served concurrently or consecutively, but does not provide a path for implementing partially consecutive sentences.” Indiana Code Section 35-50-1-2 does not specifically require that consecutive sentences be served seriatim, or one after another, and thus it could be said to authorize partially consecutive sentences. The trial court in Hull apparently believed this to be the case, and we do not find this belief unreasonable. We hope that our supreme court will put the matter to rest in due course.

      . Wilson states, "For clarity and purposes of this appeal, appellant does not contest the trial court's authority to run a sentence concurrent or consecutive per se, but whether, the trial court exceeded its authority to sentence Appellant who committed a Class B felony beyond six (6) to twenty (20) years pursuant to I.C. 35-50-2-5.” Appellant’s Br. at 6 n. 1. Contrary to Wilson's assertion, the trial court did not sentence him to more than twenty years for the class B felony; it merely imposed partially consecutive sentences. Wilson also asserts "that the trial court lacked statutory authority to suspend a sentence that has been executed.” Appellant's Br. at 9. The State correctly observes that "no part of [Wilson’s] sentence was suspended by the trial court; he received a fully-executed fifty-year sentence.” Appellee’s Br. at 7 n. 3.


author: NAJAM, Judge.

text:
    Cesar CHAVEZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1211-CR-892.
    Court of Appeals of Indiana.
    June 4, 2013.

      Karen Celestino-Horseman, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Cesar Chavez appeals his five convictions for child molesting, each as a Class C felony. Chavez raises two issues for our review, which we reorder and state as follows:

1. Whether the State’s five counts against Chavez were in violation of the continuing crime doctrine.
2. Whether the State’s charging information, which stated five identically worded counts against Chavez, denied Chavez due process.

We affirm in part, reverse in part, and remand with instructions.

FACTS AND PROCEDURAL HISTORY

On January 6, 2012, E.M.R., Chavez’s wife, babysat eight-year-old K.W. and others at Chavez’s home. At some point, Chavez and K.W. were alone in a computer room. Chavez kissed K.W. on the mouth and inserted his tongue into her mouth. While kissing her, Chavez put his hand underneath K.W.’s shirt and rubbed her nipple. Chavez also held his hand on K.W.’s buttocks. K.W. then left the room.

K.W. later returned to the room. Chavez again kissed K.W. and inserted his tongue into her mouth. While kissing her this time, Chavez placed his hand, over K.W.’s clothes, on her vagina. Chavez told K.W. to keep the occurrences a secret, and K.W. feared Chavez would harm her if she told anyone.

That evening, K.W. told her mother what had happened. K.W.’s mother called the police, and Chavez was arrested.

On January 10, the State charged Chavez with five counts of child molesting, each as a Class C felony. Each count was identically worded and stated as follows:

Cesar Chavez, on or about January 6, 2012, did perform or submit to any fondling or touching with K.W., a child who was then under the age of fourteen (14) years, that is: eight (8) years of age, with intent to arouse or satisfy the sexual desires of K.W. and/or the sexual desires of Cesar Chavez.

Appellant’s App. at 23-24.

The court held Chavez’s jury trial on September 27. Chavez testified in his own defense and acknowledged that he had kissed K.W., albeit accidentally, but he denied inappropriately touching her. During the State’s closing argument, the prosecutor stated:

Chavez is charged with [five] separate counts of child molest[] because there were [five] separate instances of touching with fondling committed by the defendant that day[,] which I will go over with you in detail.
[Y]ou heard [K.W.] describe [five] separate instances of touching and fondling that day, at the defendant’s house, that constitutes the basis [sic] for the [five] different counts. And let’s go over those. The first kiss was the defendant’s tongue in her mouth, and she said that while that kiss was going on is when he had reached up under her shirt and touched her nipple ..., that would be the second count. And the third count is during that same kiss when he was touching her on the butt over the clothes.... The fourth instance was he kissed her again, and she said again it was with his tongue in her mouth. And she said that on that occasion he also touched her on what she called her pee pee, her vaginal area, and that would be number [five]. Those are your [five] different instances of fondling and touching.

Transcript at 144, 150-51. The jury found Chavez guilty as charged, and the trial court ordered Chavez to serve an aggregate term of four years in the Department of Correction. This appeal ensued.

DISCUSSION AND DECISION

Issue One: Continuing Crime Doctrine

Chavez contends that the State was not permitted to charge him with five counts of child molesting and, instead, his acts were one chargeable crime under the continuing crime doctrine. “The continuing crime doctrine essentially provides that actions that are sufficient in themselves to constitute separate criminal offenses may be so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” Riehle v. State, 823 N.E.2d 287, 296 (Ind.Ct.App.2005), trams, denied. “[T]he continuing crime doctrine reflects a category of Indiana’s prohibition against double jeopardy.” Walker v. State, 932 N.E.2d 733, 736 (Ind.Ct.App.2010). As we have explained:

The statutory elements and actual evidence tests [of double jeopardy, as described in Richardson v. State, 717 N.E.2d 32 (Ind.1999),] are designed to assist courts in determining whether two separately] chargeable crimes amount to the “same offense” for double jeopardy purposes. The continuous crime doctrine does not seek to reconcile the double jeopardy implications of two distinct!,] chargeable crimes; rather, it defines those instances where a defendant’s conduct amounts only to a single[,] chargeable crime. In doing so, the continuous crime doctrine prevents the state from charging a defendant twice for the same continuous offense.

Boyd v. State, 766 N.E.2d 396, 400 (Ind.Ct.App.2002) (emphasis original). That is, “while Indiana’s double jeopardy clause prohibits convicting a defendant of two or more distinct!,] chargeable crimes when they constitute the ‘same offense’ ..., it also prohibits” charging a defendant “multiple times for the same continuous offense.” Walker, 932 N.E.2d at 736-37. Although Chavez did not object on these grounds in the trial court, the issue is not waived because, as a category of Indiana’s prohibition against double jeopardy, a violation, if shown, would constitute fundamental error. See Cossel v. State, 675 N.E.2d 355, 362 (Ind.Ct.App.1996).

On appeal, the State defends its five charges by analogizing the facts of this case to those in Collins v. State, 717 N.E.2d 108 (Ind.1999), and Brown v. State, 459 N.E.2d 376 (Ind.1984). In Collins, the court discussed two convictions for criminal deviate conduct, one based on oral intercourse and one based on anal intercourse. 717 N.E.2d at 110-11. Similarly, in Brown the court discussed multiple convictions for rape and criminal deviate conduct, which “occurred at different times.” 459 N.E.2d at 378. In both cases the court was concerned with whether the State had violated the defendant’s double jeopardy rights when it had obtained multiple convictions for separately chargeable crimes. Collins, 717 N.E.2d at 110-11; Brown, 459 N.E.2d at 378. But that is not the issue Chavez presents. Rather, Chavez asserts that his actions did not amount to five separately chargeable offenses but' were only a single, chargeable crime. See Boyd, 766 N.E.2d at 400 (rejecting the State’s argument that the “double jeopardy analysis [announced in Richardson] rendered] the ‘continuing crime doctrine’ obsolete”).

The continuing crime doctrine requires a fact-sensitive analysis. For example, in Firestone v. State, 838 N.E.2d 468, 470 (Ind.Ct.App.2005), the defendant “forced his penis inside [his victim’s] vagina.” He then forced her to perform oral sex on him. The State charged the defendant with rape and criminal deviate conduct, and the jury found him guilty of both counts. On appeal, he argued that the two events were so closely related that they should have been charged as one offense under the continuing crime doctrine. We disagreed and held that the defendant “clearly committed two different offenses at two different times” and that “[t]he continuity of the actions does not negate the fact that they were completely different sexual acts committed at different times.” Id. at 472.

However, in Duvall v. State, 978 N.E.2d 417, 428 (Ind.Ct.App.2012), trans. denied, we reversed several of the defendant’s convictions under the continuing crime doctrine. Specifically, we stated that the defendant’s six “convictions for Insurance Fraud stem[med] from six false statements given in a single insurance investigation interview....” Id. Further, “[h]er three convictions for Obstruction of Justice stem[med] from a single crime scene clean-up (in which she removed an alcohol bottle, medication container, and foam from [the decedent’s] mouth)....” Id. We held that the defendant’s conduct “was continuous so as to constitute one offense of Insurance Fraud and one offense of Obstruction of Justice.” Id.

The facts of this case share similarities with both Duvall and Firestone, and we hold that Chavez committed two chargeable acts of child molesting on January 6, 2012, not five. During his first encounter with K.W. that day, he kissed her on the mouth and inserted his tongue into her mouth. While kissing her, he put his hand underneath her shirt and rubbed her nipple, and he held his hand on her buttocks. Those three acts were “so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” Riehle, 823 N.E.2d at 296; see Duvall, 978 N.E.2d at 428. Accordingly, we affirm Chavez’s conviction on Count I but we reverse and remand with instructions that the trial court vacate Chavez’s convictions on Count II and Count III.

Later that same day, Chavez again engaged K.W. This encounter clearly occurred at a different time from the first encounter and is, therefore, separately chargeable. See Firestone, 838 N.E.2d at 472. During this second encounter, Chavez again kissed K.W. and inserted his tongue into her mouth. While kissing her, Chavez placed his hand, over KW.’s clothes, on her vagina. Those two acts “constitute a single transaction.” See Duvall, 978 N.E.2d at 428. Thus, we affirm Chavez’s conviction on Count IV but we reverse and remand with instructions to vacate his conviction on Count V.

Issue Two: Identically Worded Charges

Chavez also asserts that the State’s five “carbon-copy counts ... failed to provide any specific factual details to differentiate the counts” and, as such, the charging information failed to place him on proper notice of the factual basis for the State’s allegations against him. Appellant’s Br. at 7. But we agree with the State that Chavez has not preserved this issue for our review. “ ‘The proper method to challenge deficiencies in a charging information is to file a motion to dismiss the information, no later than twenty days before the omnibus date.’ ” Leggs v. State, 966 N.E.2d 204, 207 (Ind.Ct.App.2012) (quoting Miller v. State, 634 N.E.2d 57, 60 (Ind.Ct.App.1994)). Chavez did not file such a motion.

Neither does Chavez’s argument on appeal demonstrate fundamental error. “ ‘Failure to timely challenge ... ordinarily would result in waiver of the issues, unless the omission was so prejudicial to [the defendant’s] rights that fundamental error resulted.’ ” Id. (quoting Miller, 634 N.E.2d at 60). “For error in a charging information to be fundamental, ‘it must mislead the defendant or fail to give him notice of the charges against him so that he is unable to prepare a defense to the accusation.’” Id. (quoting Miller, 634 N.E.2d at 61).

Chavez was not unable to prepare a defense to the State’s allegations. Indeed, he testified in his own defense, and his testimony shows that he plainly understood the State’s allegations against him and was able to prepare his defense accordingly. See Wine v. State, 637 N.E.2d 1369, 1374 (Ind.Ct.App.1994) (holding there was no fundamental error where the defendant did not demonstrate his defense was impeded by the inadequacy of the charging information), trans. denied. And insofar as Chavez’s argument here is based on double jeopardy concerns, we addressed those concerns in Issue One. Thus, Chavez cannot demonstrate fundamental error in the charging information.

Conclusion

In sum, we hold that the State’s five counts for child molesting were in violation of the continuing crime doctrine. Applying that doctrine to the facts in this case, we hold that Chavez committed two chargeable crimes, not five. We also hold that Chavez did not preserve his objection to the charging information, and, on appeal, he has not demonstrated fundamental error in the information. Accordingly, we affirm in part, reverse in part, and remand with instructions that the trial court vacate Chavez’s convictions under Counts II, III, and V.

Affirmed in part, reversed in part, and remanded with instructions.

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


author: MATHIAS, Judge.

text:
    Jesus S. GIL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 24A04-1211-CR-603.
    Court of Appeals of Indiana.
    June 5, 2013.

      Kimberly A. Jackson, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MATHIAS, Judge.

Jesus S. Gil (“Gil”) pleaded guilty to Class B felony burglary and was sentenced to twelve years in the Indiana Department of Correction with two years suspended to probation. Gil now appeals and raises four issues, which we restate as:

I. Whether the trial court abused its discretion by failing to specify written probation terms, by imposing a fíne and restitution on Gil, or by making restitution joint and several; and
II. Whether the sentence was inappropriate in light of the nature of the offense and character of the offender.

We affirm in part, reverse in part, and remand.

Facts and Procedural History

On December 30, 2010, Gil and three other individuals broke into the home of Benito Lopez (“Lopez”) in Batesville, Indiana and took “jewelry and other assorted items” from the home. Sentencing Tr. p. 7. Lopez and his family were on vacation at the time. Lopez discovered the theft on January 13, 2011, but he did not report the theft to police until August 31, 2011 when someone approached his daughter at school and inquired about whether missing money had been returned.

On October 5, 2011, Gil was charged with two counts of Class B felony burglary, and on August 16, 2012, Gil pleaded guilty to Count I pursuant to an unwritten plea agreement and Count II was dismissed. On October 31, 2012, Gil was sentenced to twelve years in the Indiana Department of Correction with two years suspended to probation. The trial court also imposed a $250 fine and ordered Gil to pay Lopez $20,000 in restitution, jointly and severally with the co-perpetrators.

Gil now appeals.

I. Abuse of Discretion

Gil argues that the trial court abused its discretion because (a) the trial court failed to specify the conditions of probation, (b) the trial court imposed a fine and restitution that were not explicitly provided for in the plea agreement, and (c) the trial court ordered that restitution be entered jointly and severally with the other co-perpetrators. We reverse a trial court’s sentencing decision and an order to pay restitution only for an abuse of discretion. Lang v. State, 911 N.E.2d 131, 135 (Ind.Ct.App.2009); Corralez v. State, 815 N.E.2d 1023, 1025 (Ind.Ct.App.2004). A trial court abuses its discretion if its “decision is clearly against the logic and effects of the facts and circumstances before it” or if it “misinterprets or misapplies the law.” Bennett v. State, 862 N.E.2d 1281, 1286 (Ind.Ct.App.2007).

A. Conditions of Probation

Gil argues that the trial court abused its discretion by failing to specify the conditions of his probation. Under Indiana Code section 35-38-2-1, whenever the court places a person on probation, it shall “(1) specify in the record the conditions of the probation.... ” In addition, Indiana Code section 35-38-2-2.3 further provides:

(b) When a person is placed on probation, the person shall be given a written statement specifying:
(1) the conditions of probation; and
(2) that if the person violates a condition of probation during the probationary period, a petition to revoke probation may be filed before the earlier of the following:
(A) One (1) year after the termination of probation.
(B) Forty-five (45) days after the state receives notice of the violation.

Thus, the law generally requires that if a person is placed on probation, the trial court must provide the defendant a written statement containing the terms and conditions of probation at the sentencing hearing. See Kerrigan v. State, 540 N.E.2d 1251, 1252 (Ind.Ct.App.1989). However, we have previously held that the trial court’s failure to provide written probation terms may be harmless error if the defendant has been orally advised of the conditions and acknowledges that he understands the conditions. Id.

Here, the trial court failed to provide Gil a written statement of probation terms. The trial court did orally indicate that no contact with the victim was a condition of probation, and the State argues that this was sufficient to establish that no contact is the lone term of probation. But even if this was an adequate oral statement establishing only one probation term, Gil never acknowledged that he understood this as a term of his probation. See Kerrigan, 540 N.E.2d at 1252. For all these reasons, we conclude that the trial court erred by failing to enter written probation terms and that this error was not harmless. Thus, we remand this case and instruct the trial court to enter written probation terms.

B. Imposition of Fine and Restitution

Gil argues that the trial court abused its discretion by ordering him to pay a fine and restitution when the subject of restitution was not in the unwritten plea agreement. Gil cites a string of cases in support of the proposition that a trial court cannot impose a fíne or restitution that was not provided for in the plea agreement; however, his reliance on these cases is misplaced. These cases dealt with defendants pleading guilty pursuant to recommended or fixed sentences. Appellant’s Br. at 9-10 (citing Briscoe v. State, 783 N.E.2d 790, 792 (Ind.Ct.App.2003); Sinn v. State, 693 N.E.2d 78, 80 (Ind.Ct.App.1998); Gipperich v. State, 658 N.E.2d 946, 950 (Ind.Ct.App.1995), trans. denied; Disney v. State, 441 N.E.2d 489, 493-94 (Ind. Ct.App.1982)).

Here, Gil entered an open guilty plea, and sentencing was left to the trial court’s discretion. Sentencing Tr. pp. 4, 10; Plea Hearing Tr. p. 3. Indiana Code section 35-50-5-3(a) provides that a court can impose restitution to the victim of the crime in addition to any sentence imposed for a felony or misdemeanor. For these reasons, we conclude that the trial court did not abuse its discretion by imposing restitution and a fíne because the open plea agreement left sentencing to the judge’s discretion.

Gil also argues that the trial court abused its discretion in ordering restitution because there was not sufficient evidence that “the victim suffered a $20,000 loss.” Appellant’s Br. at 10. The trial court must base its restitution order on “property damages of the victim incurred as a result of the crime, based on the actual cost of repair (or replacement if repair is inappropriate)[J” Ind.Code § 35-50-5-3. “A restitution order must be supported by sufficient evidence of actual loss sustained by the victim or victims of a crime.” Rich v. State, 890 N.E.2d 44, 49 (Ind.Ct.App.2008), trans. denied. We acknowledge that Gil failed to object to the amount of the restitution order, which generally results in waiver of an issue on appeal. “However, a reviewing court may remedy an unpreserved error when it determines that the trial court committed fundamental error.” Ware v. State, 816 N.E.2d 1167, 1179 (Ind.Ct.App.2004). We have previously held that “[a]n improper sentence constitutes fundamental error and cannot be ignored on review.” Id.

Here, the trial court imposed restitution of $20,000. Gil pleaded guilty to Count I burglary, which was knowingly or intentionally breaking and entering the dwelling of another person with “intent to commit a felony therein, to wit: theft of jewelry located in the upstairs level of Lopez’s home.” Appellant’s App. p. 23; Plea Hearing Tr. pp. 6-7. Thus, restitution for the jewelry and other items stolen on December 30, 2010 would be appropriate, but there was no evidence in the record regarding the value of the jewelry or other stolen property that was taken on December 30, 2010. Moreover, the State conceded that it was “not clear from the record how the trial court arrived at its final restitution sum.” Appellee’s Br. at 7.

For all these reasons, we conclude the trial court erred by imposing $20,000 in restitution when the record was devoid of any evidence establishing the value of the jewelry or other damages caused by the burglary on December 30, 2010. Since there was insufficient evidence regarding the amount of property damaged or stolen on December 30, 2010, we remand to the trial court for a new hearing on restitution to determine whether adequate proof exists as to the amount of restitution ordered. Iltzsch v. State, 981 N.E.2d 55, 56-57 (Ind.2013) (holding that while “the better practice for the State would have been to present more substantial evidence about the nature and extent of the property damage,” the cause should be remanded to the trial court for a new restitution hearing).

C. Joint and Several

Gil also argues that the trial court should have apportioned the amount of restitution among the co-perpetrators in relation to each person’s contribution to the victim’s loss. In light of the fact that we are remanding for a new restitution hearing, we need not address today whether the trial court abused its discretion in ordering that restitution be joint and several. However, we do note that this is an argument worthy of consideration. Indiana Constitution, Article I, Section 16 provides that “[a]ll penalties shall be proportioned to the nature of the offense.” Thus, sentencing courts should consider whether imposing joint and several liability for the full amount of the restitution ordered is constitutionally proportionate to the nature of the offense committed by a defendant who has caused only a portion of the damages and in relation to the sentences entered against other co-defendants for the same course of criminal conduct.

We further note it may be particularly advisable to apportion liability among defendants under some factual circumstances, such as when there are varying lengths and levels of involvement by the criminal participants. See, e.g., United States v. Smith, 3:08-CR-31-JMH, 2012 WL 1658514 (E.D.Ky. May 11, 2012) (holding that while federal law permits, but does not require the Court to enter an apportioned, rather than joint and several restitution order, under the specific factual circumstances of the case, an apportioned restitution judge “would best address” the restitution issues in the case); United States v. Suarez, 253 F.Supp.2d 662, 663 (S.D.N.Y.2003) (“To apportion the burden on a joint and several basis raises the risk of one Defendant eventually paying more of the restitution than the others, which the Court feels would achieve an inequitable result under the circumstances of this case.”).

II. Inappropriate Sentence

Gil also contends that his sentence was inappropriate in light of the nature of the offense and his character. Under Indiana Appellate Rule 7(B), we 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.” Although we may review and revise a sentence, “[t]he principal role of appellate review should be to attempt to leaven the outliers, and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.2008). We must give “deference to a trial court’s sentencing decision, both because Rule 7(B) requires us to give due consideration to that decision and because we understand and recognize the unique perspective a trial court brings to its sentencing decisions.” Trainor v. State, 950 N.E.2d 352, 355-56 (Ind.Ct.App.2011), trans. denied (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind.Ct.App.2007)) (internal quotation marks omitted).

When we review the appropriateness of a sentence, we consider “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.” Cardwell, 895 N.E.2d at 1224. The defendant has the “burden to persuade us that the sentence imposed by the trial court is inappropriate.” Shell v. State, 927 N.E.2d 413, 422 (Ind.Ct.App.2010). Before we may revise a sentence, the defendant must “demonstrate that his sentence is inappropriate in light of both the nature of his offenses and his character.” Williams v. State, 891 N.E.2d 621, 633 (Ind.Ct.App.2008) (emphasis in original).

The sentencing range for Class B felony burglary is a fixed term between six and twenty years, with an advisory sentence of ten years. Ind.Code § 35-50-2-5. Here, the trial court sentenced Gil to twelve years in the Department of Correction with two years suspended to probation.

As to the nature of the offense, we note that Gil and his co-perpetrators, broke into a home, stole jewelry from the home, and then proceeded to pawn the jewelry to buy marijuana. Appellant’s App. p. 79. As to Gil’s character, we note that Gil pleaded guilty and expressed some remorse; however, in exchange for his guilty plea, the State dismissed the charge for Count II of burglary. Moreover, Gil already had a lengthy history of criminal or delinquent behavior, despite only being nineteen years old at the time of sentencing. As a juvenile, Gil was placed in a program of Informal Adjustment after he was charged with Class B felony burglary and Class D felony residential entry. He violated Informal Adjustment after failing a drug screen and after being charged with Class B felony child molesting and Class A misdemeanor possession of marijuana. Moreover, Gil was also convicted of Class A misdemeanor invasion of privacy, Class A misdemeanor possession of marijuana, and Class C misdemeanor illegal possession of alcohol. This lengthy criminal history reflects poorly on Gil’s character.

For all these reasons, we conclude Gil has failed to prove that his sentence “is inappropriate in light of both the nature of his offenses and his character.” Williams, 891 N.E.2d at 633 (emphasis in original). The nature of the offense and more particularly, Gil’s character, support the trial court’s decision to impose a slightly enhanced sentence.

Conclusion

We reverse and remand with instructions for the trial court to enter a written order regarding probation conditions and terms and for the trial court to hold a new restitution hearing. We also conclude that the trial court’s sentence was not inappropriate in light of the nature of the offense and Gil’s character.

Affirmed in part, reversed in part, and remanded.

BAKER, J., and MAY, J., concur.

      . The charging information for Count I provided: "On or about Thursday, December 30, 2010, Jesus S. Gil did knowingly or intentionally break and enter the dwelling of another person ... with intent to commit a felony therein, to wit: theft of jewelry located in the upstairs level of Lopez’s home.” Appellant's App. p. 23.
      The charging information for Count II provided: "On or about Friday, December 31, 2010, Jesus S. Gil did knowingly or intentionally break and enter the dwelling of another person ... with intent to commit a felony therein, to wit: theft of $20,000 in cash from a safe located in the basement of Lopez's home.” Appellant's App. p. 24.

      . Indiana Code section 35-35-3-3 requires that a plea agreement for a felony charge must be reduced to writing. “The purpose behind this statute is to insure that a defendant does not base his guilty plea upon certain promises made by the prosecutor where the judge has in fact not accepted the state's recommendation.” Davis v. State, 418 N.E.2d 256, 260 (Ind.Ct.App.1981). While a "failure to reduce an agreement to writing need not itself be deemed a sufficient ground for rejection," we note that this case highlights why reducing a plea agreement to writing is a wise practice that should be followed in all felony and Class A misdemeanor cases. Centers v. State, 501 N.E.2d 415, 417-18 (Ind.1986).

      . We also note that the trial court explicitly informed Gil that a fine up to $10,000 was possible prior to Gil entering the plea agreement. Plea Hearing Tr. p. 5.

      . To the extent there is any inconsistency between this case and Edsall v. State, 983 N.E.2d 200, 204 (Ind.Ct.App.2013), we note that the latter is fully distinguishable based upon its holding that the State was not a victim of the defendant’s offenses, and, thus, the defendant could not be required to pay restitution to reimburse the State for costs of the investigation.

      . We note that Gil was originally charged with two counts of burglary and that Count II alleged that on December 31, 2010 Gil returned to the home and stole $20,000 from a safe. However, the restitution order could not properly be based upon the December 31, 2010 incident, because Gil was not convicted of this crime. Restitution may be paid to a victim for damages "incurred as a result of the crime [.]" Ind.Code § 35-50-5-3 (emphasis added); see also Polen v. State, 578 N.E.2d 755, 757 (Ind.Ct.App.1991) (holding that the trial court's restitution order for crimes for which the defendant did not plead guilty, was not convicted, and did not agree to pay restitution was contrary to law). Here, the State, in return for Gil pleading guilty to Count I, dismissed Count II. Sentencing Tr. pp. 10, 13; Plea Hearing Tr. pp. 3, 7.

      . Gil also argues that the trial court failed to assess his ability to pay $20,000 in restitution and failed to fix the manner of payment. A trial court can order restitution as a condition of probation or as a part of defendant’s sentence wholly apart from probation. Rich v. State, 890 N.E.2d 44, 50 (Ind.Ct.App.2008). Under Indiana Code section 35-38-2-2.3(a)(5), "when the trial court enters an order of restitution as part of a condition of probation, the court is required to inquire into the defendant's ability to pay” and is required to fix the manner of payment. Pearson v. State, 883 N.E.2d 770, 772 (Ind.2008). Whereas, "when restitution is ordered as part of an executed sentence, an inquiry into the defendant's ability to pay is not required.” Id. at 773. The record is unclear in this case whether the trial court ordered restitution as a condition of probation or as part of the sentence. Since we are remanding with instructions to specify probation terms, we note that the trial court should clarify whether restitution is a part of Gil’s sentence or a condition of his probation. If restitution is a condition of probation, then the trial court must assess Gil’s ability pay and must fix the manner of payment. Id. at 772-73.