text:
    Alex CARRILLO, Appellant-Defendant/Cross-Appellee, v. STATE of Indiana, Appellee-Plaintiff/Cross-Appellant.
    No. 49A02-1112-PC-1209.
    Court of Appeals of Indiana.
    Feb. 18, 2013.

      Eric C. Bohnet, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

In 2006, Alex Carrillo, a citizen of Ecuador who immigrated to the United States when he was one year old, pled guilty to resisting law enforcement and operating a vehicle while intoxicated. Carrillo now appeals the denial of his petition for post-conviction relief (“PCR”), in which he argued that his guilty plea counsel provided ineffective assistance by failing to advise him that there could be negative immigration consequences as a result of his guilty plea. The post-conviction court concluded that because Carrillo’s attorney did not know, and had no reason to suspect, that Carrillo was not a native-born citizen of the United States, his attorney’s performance was not deficient. On appeal, Carrillo argues that the postconviction court improperly considered his attorney’s knowledge of his noncitizen status in determining whether he received ineffective assistance. We conclude that the postconviction court properly considered Carrillo’s attorney’s knowledge in assessing whether his attorney’s performance was deficient, and that the court did not err in concluding that Carrillo failed to carry his burden to show that he received ineffective assistance of counsel. Therefore, we affirm the denial of Carrillo’s PCR petition.

Facts and Procedural History

Carrillo was born in Ecuador. In 1965, during his first year of life, he immigrated to the United States and has lived here ever since. Carrillo remains a citizen of Ecuador.

On May 6, 2006, police observed Carrillo commit a traffic offense while driving in Marion County. Police attempted to pull over Carrillo, but he did not stop. Police pursued him, using emergency equipment. Carrillo eventually stopped. Police noticed that Carrillo had slurred speech, bloodshot and glassy eyes, poor dexterity, and unsteady balance. The State charged Carrillo with class D felony resisting law enforcement, class A misdemeanor operating a vehicle while intoxicated, class A misdemeanor driving with a suspended license, and class B misdemeanor public intoxication.

On October 12, 2006, Carrillo pled guilty to class D felony resisting law enforcement and class A misdemeanor operating a vehicle while intoxicated. Pursuant to the plea agreement, Carrillo would receive a 865-day sentence, all suspended with credit for time served, and a ninety-day suspension of his driver’s license, and the parties were free to argue whether alternative misdemeanor sentencing should be applied to the class D felony. The State dismissed the remaining charges. The trial court accepted Carrillo’s guilty plea, sentenced him to 365 days in jail, with credit for six days served and the remainder suspended to probation, and entered judgment of conviction for resisting law enforcement as a class A misdemeanor.

On April 11, 2011, Carrillo was detained by federal immigration authorities. He faces deportation proceedings based in part upon his conviction for resisting law enforcement.

On May 9, 2011, Carrillo filed a PCR petition alleging that his guilty plea counsel failed to provide effective assistance of counsel by failing to advise him that pleading guilty could adversely affect his immigration status and could result in deportation. Following a hearing, the post-conviction court issued its judgment, concluding that Carrillo established that prejudice resulted from counsel’s failure to advise him of the possible deportation consequences of his guilty plea. Nevertheless, the post-conviction court denied relief because it concluded the Carrillo failed to establish that counsel’s failure to advise him of the risk of deportation constituted ineffective assistance based on the following considerations:

i. As a threshold matter, a petitioner must first prove trial counsel knew she or he was not a citizen of the United States. “Whether [advice of counsel] is deficient in a given case is fact sensitive and turns on a number of factors. These presumably include the knowledge of the lawyer of the client’s status as an alien.” Sial v. State, 862 N.E.2d 702 (Ind.Ct.App.2007), citing Segura v. State, 749 N.E.2d 496, 500 (Ind.2001). (emphasis added)
22. Throughout [Carrillo’s] testimony the court observed that neither Mr. Carrillo’s grammar, syntax, or pronunciation gave any hint he was not a native born [United States] citizen. The fact of a Spanish surname, alone, was insufficient to cause him to appear to be anything other than a native born citizen of this land rich in national and cultural influences.
23. In his Petition, Mr. Carrillo claims; “He grew up in the United States, attended schools in the United States, and culturally considers himself to be an American.” Having observed his testimony, the Court finds Mr. Carrillo’s self-description to be entirely accurate. Nothing about the petitioner’s speech or mannerisms suggested he was anything other than a native of the [United States].
24. Neither party presented any evidence that, at the time of Mr. Carrillo’s guilty plea hearing, an objective standard of reasonableness or a prevailing professional norm demanded that an attorney inquire as to the immigration status of every client regardless of whether any factors existed to indicate that immigration consequences may be relevant to that client’s representation.
25. Thus, this court must find Mr. Carrillo has failed to prove this threshold matter of knowledge of his immigration status. Unlike the counsel in Padilla, [Carrillo’s counsel] had no knowledge of, nor any reason to inquire about, his client’s immigration status. This court cannot now impose upon Mr. Carrillo’s counsel a duty to know facts withheld by his client, even inadvertently, where no independent indicators existed to suggest to counsel that his client was not a citizen of the United States.

Appellant’s App. at 20, 22-23.

Discussion and Decision

Carrillo appeals from the denial of his PCR petition.

In reviewing the judgment of a post-conviction court, appellate courts consider only the evidence and reasonable inferences supporting its judgment. The post-conviction court is the sole judge of the evidence and the credibility of the witnesses. To prevail on appeal from denial of post-conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite to that reached by the post-conviction court. .... Only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, will its findings or conclusions be disturbed as being contrary to law.

Hall v. State, 849 N.E.2d 466, 468-69 (Ind.2006) (citations omitted).

Carrillo contends that the post-conviction court erred in finding that he was not denied the effective assistance of trial counsel. “The petitioner for post-conviction relief has the burden of establishing his grounds for relief by a preponderance of the evidence.” State v. Holmes, 728 N.E.2d 164, 168 (Ind.2000) (citing Ind. Post-Conviction Rule 1(5)). To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his counsel’s performance was deficient and that the petitioner was prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)), cert. denied (2001). Counsel’s performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816, 824 (Ind.2002). “[C]ounsel’s performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 78 (Ind.2002). Prejudice results where there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Perez v. State, 748 N.E.2d 853, 854 (Ind.2001). “Failure to satisfy either prong will cause the claim to fail.” French, 778 N.E.2d at 824. In this case, we resolve Carrillo’s claim based on the deficient performance prong.

Carrillo argues that his attorney’s performance was deficient because he failed to inform Carrillo that pleading guilty could have adverse immigration consequences. Specifically, he contends that “[cjontrary to the trial court’s holding, Carrillo was not required to show that his attorney knew that he was a noncitizen or to produce evidence establishing a prevailing professional norm that an attorney make such an inquiry.” Appellant’s Br. at 7. Carrillo asserts that the post-conviction court improperly relied on dicta from Sial, 862 N.E.2d at 705, to support its consideration of his counsel’s knowledge of Carrillo’s noncitizen status as a factor in its ineffective assistance analysis.

The portion of Sial to which Carrillo refers quoted our supreme court’s opinion in Segura, 749 N.E.2d 496. Segura was the first time our supreme court addressed whether counsel’s failure to advise a client that pleading guilty may carry the risk of deportation is deficient performance. Before Segura, another panel of this court had held that “the consequence of deportation, whether [labeled] collateral or not, is of sufficient seriousness that it constitutes ineffective assistance for an attorney to fail to advise a noncitizen defendant of the deportation consequences of a guilty plea.” Williams v. State, 641 N.E.2d 44, 49 (Ind.Ct.App.1994) trans. denied (2005). The Segura court agreed with Williams that counsel’s failure to advise regarding possible adverse immigration consequences could constitute deficient performance “under some circumstances.” 749 N.E.2d at 500. Specifically, the Segura court stated:

[T]he failure to advise of the consequence of deportation can, under some circumstances, constitute deficient performance. Otherwise stated, we cannot say that this failure as a matter of law never constitutes deficient performance. Whether it is deficient in a given case is fact sensitive and turns on a number of factors. These presumably include the knowledge of the lawyer of the client’s status as an alien, the client’s familiarity with the consequences of conviction, the severity of criminal penal consequences, and the likely subsequent effects of deportation. Other factors undoubtedly will be relevant in given circumstances.

Id.

Ultimately, the Segura court affirmed the denial of the defendant’s PCR petition on prejudice grounds and therefore did not have to decide whether counsel’s performance was deficient. Nevertheless, our supreme court clearly meant to provide guidance in future cases with regard to determining whether a particular counsel’s performance was deficient. Carrillo argues that counsel’s knowledge of a client’s noncitizen status should not be part of the deficient performance analysis because the consequences of deportation are so severe, citing Williams for the statement that “deportation may be a penalty more severe than a prison sentence.” 641 N.E.2d at 48. It seems clear that the Segura court was fully cognizant of the harshness of deportation given its agreement with Williams. Carrillo fails to persuade us that we should discount the instruction provided by our supreme court in Segura. Accordingly, we will follow Segu-ra’s direction in considering counsel’s knowledge of a client’s noncitizen status as a factor in assessing deficient performance.

Here, it is undisputed that counsel had no knowledge that Carrillo was not a native-born United States citizen. Carrillo did not inform counsel of his resident alien status. Having lived here since he was one year old, Carrillo acted and spoke like a native-born citizen. There was nothing about Carrillo that would have made his counsel suspect that he was not a United States citizen. There are no circumstances that would have indicated that immigration consequences would have been relevant to Carrillo’s decision to plead guilty.

Carrillo argues that “this Court should explicitly hold that the duty to inform criminal clients of immigration consequences does not depend upon the attorney’s knowledge or suspicions of his client’s citizenship.” Appellant’s Br. at 10. In Clarke v. State, 974 N.E.2d 562 (Ind.Ct.App.2012), another panel of this Court observed,

The State asks us to focus upon the clause, “the knowledge of the lawyer of the client’s status as an alien” [from Segura] as one of the facts a court should consider when deciding whether the failure to advise constitutes deficient performance. We need not address this question in the present case because the post-conviction court’s decision is affirm-able on other grounds. We note, however, that this issue is percolating in other states and the early trend seems to be in favor of imposing a duty on criminal defense attorneys to ascertain the citizenship status of their clients. See, e.g., Commonwealth v. Clarke, 460 Mass. 30, 949 N.E.2d 892, 905 (2011) (“[t]hat the defendant’s counsel failed to ascertain that the defendant was not a United States citizen may be sufficient to satisfy the first prong of the Saferian standard because effective representation requires counsel to gather at least enough personal information to represent him”); State v. Paredez, 136 N.M. 533, 101 P.3d 799, 805 (2004) (“[w]e hold that criminal defense attorneys are obligated to determine the immigration status of their clients. If a client is a non-citizen, the attorney must advise that client of the specific immigration consequences of pleading guilty, including whether deportation would be virtually certain”); Salazar v. State, 361 S.W.3d 99, 102 (Tex.App.2011) (the argument that there was no deficient performance because there was no indication the attorney knew the defendant had less than five years of legal resident status “is not persuasive because the counsel’s duty to give correct legal advice where the consequences of a guilty plea with respect to deportation are clear carries with it the obligation to investigate what the deportation consequences to the client would be given the Ghent’s individual circumstances”); but see State v. Stephens, 46 Kan.App.2d 853, 265 P.3d 574, 577 (2011), review denied (“[t]he Padilla Court did not extend its ruling to obligate defense counsel to correctly predict a client’s probation or prison sentence, nor did the Padilla Court impose upon counsel the duty to investigate the citizenship or immigration status of every client in a criminal case).

Id. at 568-69.

Given the State’s interest in safeguarding the integrity of its criminal convictions, we think that it would be proper for the judiciary to play a part in ensuring that noncitizen defendants are adequately advised of the immigration consequences of guilty pleas. The 2009 edition of the Indiana Criminal Benchbook, developed by the Indiana Judicial Center and distributed to trial judges in early 2010, began recommending that the trial court’s guilty plea dialogue with a criminal defendant include a query as to whether he or she is a United States citizen, and if the answer is no, to follow up with questions regarding whether the possibility of deportation had been discussed with counsel. Ind.Crim. Benchbook §§ 50.20.050; 50.70.300, 50.50.350, 50.50.400 (2011). If the defendant has not received immigration advice, the Benchbook Committee recommends that the judge continue the hearing to allow the defendant to have such a discussion. Id., §§ 50.70.300, 50.50.350, 50.50.400.

Even with these safeguards, we caution that it would still be incumbent upon the defendant’s attorney to accurately inform the noncitizen defendant of the deportation consequences of pleading guilty where they can be easily determined from reading the relevant immigration statute. Padilla v. Kentucky, 130 S.Ct. at 1483. “When the law is not succinct and straightforward ..., a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Id. Hopefully, this procedure will prospectively eliminate a situation like this where the defendant’s counsel is unaware of the defendant’s noncitizen status.

However, the question before us is whether the prevailing professional norms in 2006 required attorneys to ask every client whether he or she was a United States citizen. Carrillo has failed to persuade us that the prevailing professional norms in 2006 required attorneys to do so. Therefore, we conclude that Carrillo’s counsel did not provide deficient performance in failing to advise him regarding the risk of deportation where counsel did not know, and had no reason to suspect, that Carrillo was not a native-born citizen of the United States. Accordingly, we affirm the denial of post-conviction relief.

Affirmed.

KIRSCH, J., and MATHIAS, J., concur.

      . Because of our resolution of Carrillo's claim, we need not address the State’s cross-appeal, in which it argues that the post-conviction court erred in finding that Carrillo suffered prejudice from his attorney’s failure to advise him of the risk of deportation arising from his guilty plea.

      . The Immigration and Nationality Act provides that an alien is deportable who is convicted of an aggravated felony. 8 U.S.C. § 1227(a)(2)(A)(iii). Carrillo’s conviction for resisting law enforcement is considered an aggravated felony because it is a crime of violence for which he received a sentence of a year or more. See 8 U.S.C. § 1101 (a)(43)(F) (defining “aggravated felony” as a "crime of violence” for which the term of imprisonment is at least one year); 18 U.S.C.A. § 16 (defining "crime of violence”).

      .The post-conviction court concluded that
      At the time of the guilty plea hearing Mr. Carrillo had lived in the United States for at least forty years. He had married and was the father of five children, three of whom were still minors. He was firmly established in the United States and had no family or friends in his native country of Ecuador. These facts establish the prejudice prong of Strickland analysis!.]
      Appellant’s App. at 23. In contrast, in a companion case that we also decide today, Carrillo v. State, 982 N.E.2d 461 (Ind.Ct.App.2013), Carrillo failed to provide evidence of the ages of his children at the guilty plea hearing. That was an important omission in that case due to the many years, nearly fourteen, between his guilty plea and the post-conviction hearing.

      4. In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1483, 176 L.Ed.2d 284 (2010), the Supreme Court held that counsel’s performance was deficient for failing to advise Padilla that his plea of guilty to drug distribution made him subject to automatic deportation, where the consequences of Padilla’s plea could easily be determined from reading the relevant immigration statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect. The Padilla court also held more broadly that "counsel must inform her client whether his plea carries a risk of deportation." Id, at 1486. The Padilla court also clarified, "When the law is not succinct and straightforward (as it is in many of the scenarios posited by Justice ALITO), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Id. at 1483.

      . Carrillo failed to include a table of contents and table of authorities in his appellant’s brief in violation of Indiana Appellate Rule 46(A)(1) and (2).

      . In Williams, the court concluded that the attorneys’ performances were not deficient because "a sufficient showing was made that the petitioners were put on notice by their attorneys regarding the deportation consequences of their guilty pleas.” 641 N.E.2d at 51.

      . Likewise in Sial, deficient performance was not at issue because the defendant's attorney admitted at the post-conviction hearing that he failed to provide effective assistance because he did not advise his client about the immigration consequence. 862 N.E.2d at 705.

      . Since Segura, Indiana courts have yet to analyze the deficient performance prong as part of an ineffective assistance claim based on failure to advise of adverse immigration consequences. See Suarez v. State, 967 N.E.2d 552, 557 (Ind.Ct.App.2012) (affirming denial of PCR petition based on failure to establish prejudice), trans. pending; Gulzar v. State, 971 N.E.2d 1258, 1262 (Ind.Ct.App.2012) (same), trans. pending; Clarke v. State, 974 N.E.2d 562, 568 (Ind.Ct.App.2012) (same); Trujillo v. State, 962 N.E.2d 110, 114, 116 (Ind.Ct.App.2011) (same); State v. Bonilla, 957 N.E.2d 682, 685 (Ind.Ct.App.2011) (reversing grant of PCR petition based on failure to show prejudice).

      . Carrillo urges us to apply the holding in Padilla. We need not address the retroactive application of Padilla, as its holding is consistent with Segura and Williams. See State v. Bonilla, 957 N.E.2d 682, 684 n. 2 (Ind.Ct.App.2011) (declining to address retroactive application of Padilla because it was consistent with Indiana decisions that predated it).

      . The post-conviction court’s framework for its ineffective assistance analysis is different than what we think the Segura court intended, in that the post-conviction court considered knowledge of noncitizen status as a third prong, or a threshold matter to be determined before addressing whether counsel failed to describe or misdescribe the adverse immigration consequences attaching to the guilty plea. We think knowledge of the client’s status is part of the deficient performance analysis, not a prelude to it. In this case, the post-conviction court’s choice of framework did not affect its decision or ours.

      . If knowledge of the client’s noncitizen status remains a factor in assessing whether counsel's performance was deficient, Carrillo asks us to hold that his attorney was deficient due to the severity of the impact on Carrillo, the relatively light penal consequences at stake, and Carrillo’s belonging to an ethnic group that includes relatively high percentages of immigrants. Appellant's App. at 10. He has waived this argument by failing to support it with cogent reasoning. See Lyles v. State, 834 N.E.2d 1035, 1050 (Ind.Ct.App.2005) ("A party waives an issue where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record.”); Ind. Appellate Rule 46(A)(8) ("The argument must contain the contentions of the appellant on the issues presented supported by cogent reasoning.”).

      . We reject Carrillo’s contention that his surname, standing alone, was sufficient to put his attorney on notice that he might not be a United States citizen.


source: Caselaw Access Project

author: CRONE, Judge.

license: Public Domain

text:
    Michael R. SUDBERRY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 45A03-1206-CR-298.
    Court of Appeals of Indiana.
    Feb. 18, 2013.

      Scott King, Scott King Group, Merrill-ville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

During a physical altercation, Michael R. Sudberry threw a pan of hot water on his brother, who sustained second degree burns. At trial, Sudberry raised the defense of self-defense. Thereafter, the State was allowed to present evidence that Sudberry had previously threatened his brother. The jury found Sudberry guilty of battery resulting in serious bodily injury.

On appeal, Sudberry argues that the trial court abused its discretion by admitting testimony about his earlier threat because it was too remote in time to be probative of his intent. The threat was made approximately a year before the battery, but the evidence reflected that nothing had happened during that time to cause Sudberry to act on his threat. We conclude that the trial court did not abuse its discretion by admitting the evidence. Sudberry also argues that the State failed to rebut his claim of self-defense. The evidence favorable to the verdict supports a conclusion that Sudberry was a mutual combatant and did not communicate an intent to withdraw from the fight, that he escalated the fight, and that he used more force than was reasonably necessary. Thus, the evidence was sufficient to rebut his claim of self-defense, and we affirm his conviction.

Facts and Procedural History

Sudberry and his brother, Kenneth Sud-berry, both moved in with their mother, who has poor health, eyesight, and hearing. On the morning of August 27, 2011, Kenneth sat down at the kitchen table next to his mother to have breakfast. Sudberry stated that he had been sitting there, but Kenneth refused to move. Sudberry picked up a glass of water and dumped it on Kenneth. Kenneth got up, filled a glass with water, and threw the water on Sudberry. The brothers then started pushing each other.

According to Kenneth, neither of them punched or kicked the other. After they stopped pushing each other, Sudberry picked up a pencil and stabbed Kenneth in the abdomen. Kenneth pushed Sudberry toward the bathroom, and Sudberry fell to the floor in the bathroom. Kenneth initially blocked Sudberry from getting back to the kitchen, but then let him pass. Kenneth claimed that Sudberry picked up a pot of hot water from the stove and “then proceeded to stand directly in my face to yell and spit in my face. And he said, [‘P]ush me again.[’]” Tr. at 78. Kenneth moved Sudberry “out of [his] face with [his] shoulder” and stepped back. Id. Sud-berry then threw the water on him. Kenneth fell to the floor, and Sudberry hit him with the pot and pressed it against his face. Kenneth managed to get up and push Sudberry again.

Sudberry then went to his room, and Kenneth called the police. Officers Maria Guye and Troy Campbell responded to the scene. Officer Guye attended to Kenneth and observed that he had a scratch from the pencil and his skin was peeling off where the water had hit him. Kenneth was taken to a hospital, where he was treated for second-degree burns to the left side of his face, neck, shoulder, and arm.

Officer Campbell arrested Sudberry, read him his Miranda rights, and took him to the police department. Officer Campbell noticed that Sudberry had some scratches on his arms and some redness on his face. Sudberry told Officer Campbell that Kenneth had hit him and knocked him down twice. He claimed that he then picked up the pot and told Kenneth to stop hitting him. He stated that Kenneth hit him in the chest, and he threw the hot water at Kenneth.

Detective JerVean Gates was assigned to further investigate the case. He spoke to Sudberry’s mother, but she was unable to say who started the fight. Sudberry gave a videotaped statement to Detective Gates on August 29, 2011. At that time, Sudberry did not have any visible injuries, but he claimed that he was sore and had loose teeth. The video reflects that Sud-berry tried to show his loose teeth, but Detective Gates denied being able to see that his teeth were loose. Sudberry claimed that Kenneth had initiated the fight. He stated that Kenneth was punching him, and he was unable to punch him back. Sudberry stated that he felt like he had done everything he could to end the fight and was acting in self-defense when he threw the hot water on Kenneth. Sud-berry said that, after the fight, he went to his room and changed his shirt, which had been torn, and he called his girlfriend to tell her that he would probably be going to jail.

Sudberry was charged with four counts of battery: count I was charged as a class B felony and alleged that the injury created a substantial risk of death or caused serious permanent disfigurement; count II was charged as a class C felony and alleged that he caused serious bodily injury; count III was charged as a class C felony and alleged that the hot water was a deadly weapon; and count IV simply alleged battery as a class A misdemeanor. Prior to trial, the State filed notice of intent to present evidence that Sudberry had previously threatened Kenneth. The trial court initially disallowed this evidence.

Sudberry’s trial was held on April 9 and 10, 2012. Kenneth testified to his version of the story. Kenneth testified that his treatment for the burns took several months and that he has lasting effects including a burning sensation, scarring, and stiffness. Sudberry did not testify, but his self-defense claim was placed at issue through Officer Campbell’s report and the taped statement to Detective Gates.

Thereafter, the State was permitted to recall Kenneth and question him about the prior incident with Sudberry in order to rebut Sudberry’s claim that he acted in self-defense. On June 29, 2010, Kenneth, Sudberry, and their mother were in their mother’s bedroom having a discussion “about family matters. Probably something having to do with [Kenneth and Sud-berry] not getting along.” Id. at 293. Sud-berry left the room and pushed Kenneth out 'of his way as he did so. Kenneth pushed him back. Sudberry then went to his room and got a knife. He told Kenneth, “[I]f you push[ ] me again, I will kill you.” Id. at 291. Kenneth testified that there were no other physical altercations between him and Sudberry between June 29, 2010, and August 27, 2011.

The jury found Sudberry guilty of counts II and IV, not guilty of count I, and deadlocked as to count III. The State moved to dismiss count III, and judgment was entered on count II only.

Discussion and Decision

Sudberry raises two issues: (1) whether the trial court abused its discretion by admitting evidence of his earlier threat against Kenneth; and (2) whether the State presented sufficient evidence to prove that he did not act in self-defense.

I. Admission of Evidence

The trial court is vested with broad discretion in ruling on the admissibility of evidence. Bryant v. State, 802 N.E.2d 486, 494 (Ind.Ct.App.2004), trans. denied. “An evidentiary ruling will be reversed on appeal only for an abuse of that discretion. An abuse of discretion occurs when the trial court’s ruling is clearly against the logic and effect of the facts and circumstances.” Id. (citation omitted).

Sudberry argues that his prior threat against Kenneth was inadmissible pursuant to Indiana Evidence Rule 404(b), which states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....

Evidence that would otherwise be excluded by Evidence Rule 404(b) is admissible if the court determines that: (1) the evidence is relevant to a matter at issue other than the defendant’s propensity to commit the charged act; (2) there is sufficient proof that the defendant in fact committed the act; and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Camm v. State, 908 N.E.2d 215, 223 (Ind.2009); see also Ind. Evidence Rule 403 (relevant evidence may be excluded if probative value is substantially outweighed by danger of unfair prejudice).

Sudberry does not dispute that he placed his intent at issue during the trial by raising the issue of self-defense. See Fisher v. State, 641 N.E.2d 105, 108 (Ind.Ct.App.1994) (“When a defendant alleges in trial a particular contrary intent, whether in opening statement, by cross-examination of the State’s witnesses, or by presentation of his own case-in-chief, the State may respond by offering evidence of prior crimes, wrongs, or acts to the extent genuinely relevant to prove the defendant’s intent at the time of the charged offense.”) (quoting Wickizer v. State, 626 N.E.2d 795, 799 (Ind.1993)). Nor does he contend that there was insufficient evidence that he in fact threatened Kenneth.

Sudberry’s sole contention is that the threat was too remote in time to be relevant and probative of his intent at the time of the battery. Sudberry compares his case to Bryant. Bryant was accused of murdering his stepmother. At trial, Bryant attempted to prove that his father was the murderer. In support of his theory, Bryant wanted to present evidence that his father had punched his stepmother approximately eighteen months before her death. The trial court concluded that the incident was too remote to have any probative value, and we agreed. Bryant, 802 N.E.2d at 497.

The State compares Sudberry’s case to Berry v. State, 704 N.E.2d 462 (Ind.1998). Berry was accused of killing his grandmother and his parents. A van similar to Berry’s was seen driving at a high rate of speed away from their home around the time of the murders. A few days later, he was located in another county, led the police on a high speed chase, and managed to escape. A few weeks later, he was finally apprehended in Illinois. At trial, the State presented evidence that “that relations were strained and that the defendant often argued with his parents about his lifestyle, particularly his failure or refusal to find employment.” Id. at 464. Berry’s brother testified that there had been an argument between Berry and his parents approximately six months prior to the murders, during which Berry had said, “I will kill you all and then leave.” Id. Berry was convicted of the murders, and on appeal, he argued that his brother’s testimony about the threat was inadmissible pursuant to Evidence Rules 404(b) and 403. Our supreme court held that the threat was not too remote in time to be admissible, that it “showed the degree to which relations had become strained,” and that the seriousness of the threat “was a matter of weight for the jury to decide.” Id.

Sudberry’s threat to Kenneth occurred a little over a year before the battery; thus, it was not as remote as the incident in Bryant, but less recent than the threat in Berry. Sudberry threatened to kill Kenneth if he pushed him again. Kenneth testified that there were no physical altercations between him and Sudber-ry between the date of the threat and the date of the battery. Thus, a reasonable jury could conclude that Sudberry did not have a reason to act on his threat until the date of the battery. Sudberry notes that he did not carry out his threat — he did not kill Kenneth; however, the evidence was undisputed that Sudberry severely injured Kenneth and that Kenneth received assistance only because he managed to call 911 himself. We agree with the State that this case is more comparable to Berry than Bryant; therefore, we conclude that the trial court did not abuse its discretion by admitting the evidence of Sudberry’s threat.

II. Sufficiency of Evidence

Sudberry argues that the State did not rebut his claim of self-defense. To prevail on a claim of self-defense, the defendant must show that he: (1) was in a place where he had the right to be; (2) did not provoke, instigate, or participate willingly in the violence; and (3) had a reasonable fear of death or great bodily harm. Wilson v. State, 770 N.E.2d 799, 800 (Ind.2002). “When a claim of self-defense is raised and finds support in the evidence, the State has the burden of negating at least one of the necessary elements.” Id.

The standard of review for a challenge to the sufficiency of evidence to rebut a claim of self-defense is the same as the standard for any sufficiency of the evidence claim. We neither reweigh the evidence nor judge the credibility of witnesses. If there is sufficient evidence of probative value to support the conclusion of the trier of fact, then the verdict will not be disturbed.

Id. at 801. A person is not justified in using force if “the person has entered into combat with another person or is the initial aggressor unless the person withdraws from the. encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action.” Ind.Code § 35-41-3-2(g)(3). A claim of self-defense will also fail if the person “uses more force than is reasonably necessary under the circumstances.” Harmon v. State, 849 N.E.2d 726, 731 (Ind.Ct.App.2006).

The evidence favorable to the verdict is that Sudberry and Kenneth spilled some water on each other and started pushing each other. After a pause in the fight, Sudberry picked up a pencil and stabbed Kenneth with it. Kenneth pushed Sudberry to the floor, but allowed him to get up and return to the kitchen. Sudber-ry then threw a pot of hot water on Kenneth. Kenneth fell to the floor, and Sud-berry hit him with the pot and pressed it against his face. This evidence supports a conclusion that Sudberry was a mutual combatant and did not withdraw from the fight or communicate an intent to do so; alternatively, it supports a conclusion that Sudberry escalated the fight and used more force than was reasonably necessary. Therefore, we conclude that there was sufficient evidence to rebut Sudberry’s claim of self-defense, and we affirm his conviction.

Affirmed.

KIRSCH, J., and MATHIAS, J., concur.

      . Kenneth’s medical records related to these injuries' were admitted into evidence as State’s Exhibit 29. Indiana Administrative Rule 9(G)(l)(b)(xi) excludes from public access:
      [a]ll medical, mental health, or tax records unless determined by law or regulation of any governmental custodian not to be confidential, released by the subject of such records, or declared by a court of competent jurisdiction to be essential to the resolution of litigation as declared confidential by Ind. Code §§ 16-39-3-10, 6-4.1-5-10, 6-4.1-12-12, and 6-8.1-7-1.
      Pursuant to Indiana Trial Rule 5(G):
      (1) Whole documents that are excluded from public access pursuant to Administrative Rule 9(G)(1) shall be tendered on light green paper or have a light green coversheet attached to the document, marked "Not for Public Access” or "Confidential.”
      (2) When only a portion of a document contains information excluded from public access pursuant to Administrative Rule 9(G)(1), said information shall be omitted [or redacted] from the filed document, and set forth on a separate accompanying document on light green paper conspicuously marked "Not for Public Access” or "Confidential” and clearly designated [or identifying] the caption and number of the case and the document and location within the document to which the redacted material pertains.
      Kenneth’s medical records were not tendered on light green paper, nor was any effort made to redact personal identifiers such as Kenneth's date of birth.
      Administrative Rule 9(G)(1.2) provides: During court proceedings that are open to the public, when information in case records that is excluded from public access pursuant to this rule is admitted into evidence, the information shall remain excluded from public access only if a party or a person affected by the release of the information, prior to or contemporaneously with its introduction into evidence, affirmatively requests that the information remain excluded from public access.
      Thus, on the face of the rule, Kenneth’s medical records are no longer excluded because no objection was made.
      However, in this case, there was a separation of witnesses in effect. Kenneth’s medical records were not admitted during his testimony; thus, it would appear that he was not only absent from the courtroom when his medical records were admitted, but he was not allowed to be present. Furthermore, it is unclear whether Kenneth even knew that the State intended to offer his medical records into evidence. State's Exhibit 29 contains a document titled "Authorization for Access, Use or Disclosure of Protected Health Information.” The form advises that the patient has the "right to revoke this authorization at anytime.” Id. At the bottom is a line that reads, "Signature of Patient or Legal Representative,” and a signature purporting to be Kenneth’s appears above that line. Id. However, there is a second line that reads, "If Signed by Legal Representative, Relationship to Patient,” and illegible writing appears above that line. Id. Thus, it is unclear whether Kenneth personally authorized the release. Even assuming that he did sign the release and never revoked his authorization, there is no indication that he intended to allow the State to submit them into evidence at a public trial in a completely unredacted format.
      This case is a perfect illustration of how Administrative Rule 9 often creates a Catch-22 for nonparties. A non-party’s confidential information can become a matter of public record unless an objection is made, but Administrative Rule 9 does nothing to insure that non-parties are provided a meaningful opportunity to object. The proponent of the evidence is not required to notify the non-party that confidential information affecting the non-party is going to be offered into evidence. Nor does the rule make an exception to the contemporaneous objection requirement when the non-party has been excluded from the court pursuant to a separation of witnesses order, which is frequently requested by the parties. While we believe that disclosures of a non-party's confidential information are most often an oversight, Administrative Rule 9 carries potential for deliberate abuse. We urge the supreme court to reconsider how Administrative Rule 9 applies to nonparties.


author: DAVID, Justice.

text:
    Ronald B. HAWKINS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 20S03-1208-CR-499.
    Supreme Court of Indiana.
    Feb. 19, 2013.
    Nancy A. McCaslin, Elkhart, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   DAVID, Justice.

When a criminal defendant fails to appear at trial, it is appropriate to consider whether or not the absence waives his right to counsel and right to be present at trial before trying that defendant in absen-tia. Such was the case here, where a defendant who lived in North Carolina arrived late for trial in Elkhart, Indiana, only to discover that he had already been convicted. Based on the particular facts and circumstances of this case, however, we conclude that trying the defendant in ab-sentia, without counsel, was not the proper course of action for the trial judge to take. Accordingly, we vacate the defendant’s convictions and remand for a new trial.

Facts and Procedural History

On January 14, 2011, a North Carolina resident named Ronald Hawkins was charged in Elkhart County, Indiana, with two counts of non-support of a dependent — both as class C felonies. Hawkins appeared in court on April 25, pled not guilty, and a public defender was appointed to represent him.

On July 7, Hawkins signed a plea agreement. Trial court accepted the plea at a July 18 hearing, for which Hawkins appeared by video. But at a July 27 sentencing hearing, Hawkins — appearing in person — withdrew the agreement and sought a jury trial. At that time, the trial court set the matter for a November 7 trial date and told Hawkins that if he did not appear in person he would be tried in absentia.

On October 10, Hawkins’s public defender filed a motion to withdraw, citing a lack of cooperation from her client. The trial court notified Hawkins of the motion, telling him that a hearing on the motion would be held on October 19 and stating that “[f]ailure to appear will result in a warrant for the Defendant’s arrest and withdrawal of Public Defender.” Hawkins appeared at the October 19 hearing by telephone.

At some point during the proceeding, however, Hawkins started having trouble hearing what was being said by the judge and attorneys, leading the court to reschedule the matter for October 26. The trial judge reiterated the new hearing date several times, along with a requirement that Hawkins appear in person. The court did not tell Hawkins that the motion to withdraw would be granted, if Hawkins failed to appear at the second hearing. Hawkins then failed to appear for the October 26 hearing, and in his absence the trial judge granted the motion to withdraw but kept the original November 7 trial date.

Hawkins’s trial was set to convene at 8:30 a.m. on November 7, but that time came and went without him present. Hawkins did not communicate any reason for his absence to the court or request a continuance. The deputy prosecutor, however, received word from one of Hawkins’s relatives that Hawkins was on a bus from North Carolina and anticipated arriving at 1:30 p.m. The deputy prosecutor reported this to the court, but the court proceeded with voir dire and the trial after waiting until 9:00 a.m., having never received any direct communications from Hawkins himself. Hawkins was tried in absentia and the jury found him guilty on both counts. He arrived at the courthouse that afternoon and was immediately taken into custody.

On November 28, the trial court received a letter from Hawkins — still in jail awaiting sentencing — explaining that he had been unable to afford transportation for the October 26 hearing and his original transportation plan on November 7 fell through, requiring him to take the bus from North Carolina to Indiana. Nevertheless, on December 5 the trial court sentenced Hawkins to eight years in community corrections and a fine, all to be suspended provided Hawkins paid child support. Hawkins appeared at his sentencing hearing via video from jail.

Hawkins appealed, raising three issues: (1) that his trial in absentia, without being notified that his public defender’s motion to withdraw had been granted and with nothing in the record indicating that he waived his right to counsel, constituted a denial of due process; (2) that the trial court abused its discretion in sentencing Hawkins by video; and (3) that the trial court’s sentence was improper in that it consisted of consecutive sentences. A divided panel of the Court of Appeals affirmed in part and reversed in part. Hawkins v. State, 970 N.E.2d 762 (Ind.Ct.App. 2012).

The Court of Appeals found that Hawkins’s sentence was improper insofar as it contravened this Court’s decision in San-jari v. State, 961 N.E.2d 1005 (Ind.2012), and remanded for resentencing as one class C felony and one class D felony, but affirmed insofar as the sentences were ordered to be served consecutively. Hawkins, 970 N.E.2d at 767-68. They also found that Hawkins had waived appeal on the issue of his sentencing by video by failing to contemporaneously object at the sentencing hearing. Id. at 767.

The Court of Appeals panel split on the question of whether Hawkins was properly tried in absentia. The majority concluded that Hawkins failed to establish any due process violation, relying upon this Court’s opinion in Jackson v. State, 868 N.E.2d 494 (Ind.2007), because Hawkins was on notice that his attorney intended to withdraw and had been informed several times that he would be tried in absentia if he failed to appear. Hawkins, 970 N.E.2d at 766-67. One judge on the panel dissented, finding the facts of Hawkins’s case to be distinguishable from Jackson, and would have instead remanded for a new trial. Id. at 768-70.

We granted transfer, Hawkins v. State, 970 N.E.2d 762 (Ind.2012) (table), thereby vacating the decision of the Court of Appeals. Ind. Appellate Rule 58(A).

I. Hawkins’s Trial In Absentia

Hawkins presents three specific contentions that his trial in absentia denied him due process of law — all of which revolve around his right to counsel, not his right to be present at trial. First, Hawkins asserts that he never received actual notice that his public defender’s motion to withdraw had been granted. Second, he claims that the record does not reflect that he was properly advised of his right to an attorney. Finally, he claims that the record does not reflect a voluntary, knowing, and intelligent waiver of that right. Because we find it dispositive, we address only the last of these contentions and assume ar-guendo that Hawkins received constructive notice of his counsel’s withdrawal and that the advisements he received during earlier proceedings concerning his right to counsel were still sufficient after his counsel actually withdrew.

The right to counsel is one protected by both the U.S. and Indiana constitutions. U.S. Const, amend. VI; Ind. Const, art. 1, § 13. It can be relinquished only by knowing, voluntary, and intelligent waiver. Jackson, 868 N.E.2d at 499. Courts will indulge every reasonable presumption against waiver of the right, and likewise will not presume the defendant’s acquiescence in its loss. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); see also Poynter v. State, 749 N.E.2d 1122,1125-26 (Ind.2001). Moreover, “[t]he constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel.” Johnson, 304 U.S. at 465, 58 S.Ct. 1019. “This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.” Id. “[I]t would be fitting and appropriate for that determination to appear upon the record.” Id.

In Jackson, we pointed out that “a defendant’s absence from trial does not constitute a waiver of the right to counsel in every case.” Jackson, 868 N.E.2d at 499. Nevertheless, we found waiver because the defendant’s absence was “intentional and inexcusable.” Id. at 496. Jackson had been charged with several drug and firearm offenses, appeared at his initial hearing, and hired an attorney. A second attorney was admitted pro hac vice as counsel for Jackson, and both attorneys then attended some pretrial conferences, whereas Jackson attended others by himself. Eventually, the second attorney’s pro hac vice status was revoked and Jackson was ordered to appear with an attorney licensed in Indiana. No change was made to Jackson’s trial date, which had been scheduled for some time.

At a final status conference a week before trial, Jackson and his first attorney appeared and informed the trial court that Jackson intended to retain new counsel and discharge both his prior attorneys. The trial court continued the trial date for roughly three months so that Jackson could retain new counsel and that counsel could prepare, with several intervening pretrial conferences scheduled as well. Jackson was to have new counsel by the first of those pretrial conferences.

Neither Jackson nor counsel appeared at either of the two intervening pretrial conferences, nor did anyone appear at his trial. The trial court found that Jackson had been notified in writing and orally of the trial date, and held that Jackson’s failure to appear was willful, voluntary, and knowing. Id. at 497. Jackson was then tried and convicted in absentia.

This Court rejected Jackson’s claim that his failure to appear at trial did not constitute a waiver of his right to counsel. Instead, we concluded that “the record supported] the trial court’s specific finding that Jackson’s absence from trial was a ‘willful, knowing and voluntary act.’ ” Id. at 499. He “repeatedly disregarded scheduled events.” Id. His final pretrial conference concluded with “an order setting a third and final trial date and directing Jackson to retain new counsel .... He then failed to appear, failed to notify the court of his inability to retain counsel, and failed to request a continuance.” Id. Therefore, we held that “this unexplained disregard of specific directions by the court and his own undertakings was sufficient to establish an intentional and inexcusable absence from trial and serves as a knowing, intelligent, and voluntary waiver of counsel.” Id.

In no way, shape, or form, should our opinion today be taken as approval for Hawkins’s actions as a defendant facing criminal charges. Nor should it be taken as an invitation for defendants to “game the system.” It is well known that trial courts face tremendous challenges in terms of case loads and staffing limitations, and every delay (intentional or not) necessarily has a carry-over effect to every other person’s access to the courtroom— and by extension, their access to justice.

We therefore reiterate the theme of Jackson: that such willful, knowing, and voluntary misconduct aimed at manipulating the court system for one’s own benefit will not be looked upon with anything resembling favor. Nevertheless, the record in this case indicates less than the egregious misbehavior from Jackson — and it does not support a finding that Hawkins’s failure to appear at trial constituted a waiver of his right to counsel.

Here, Hawkins appeared at every scheduled event until the October 26 pretrial conference and his subsequent trial. And while those were significant absences, they occurred over a relatively short period: a three-week span following his last appearance (by telephone) at the hearing on his public defender’s motion to withdrawal. And during that period, he was never actually notified that the court had granted his public defender’s motion, and thus would be left to assume — at best— that he was now without counsel.

Certainly Hawkins could have contacted the court to find whether he still had a lawyer, and we emphasize again that we are not attempting to paint Hawkins’s conduct as that of the ideal criminal defendant. But his conduct is far better, we think, than Jackson. Jackson had the money to hire his own attorney — two attorneys, in fact — then affirmatively told the court at the eleventh hour that he was discharging both and hiring another, and was given an additional three months to hire this new attorney and prepare for trial. Significantly, this directive came in the form of a written order from the court, personally handed to Jackson that same day. Yet in those three months, neither Jackson nor an attorney for him appeared at either of two pretrial hearings or his trial, nor did they contact the court to explain the absences.

Here, at least Hawkins contacted the court by letter after the trial (albeit several weeks after the trial) to explain that he could not afford to travel back and forth from North Carolina to Indiana twice in such a short span of time — a claim bolstered by his indigent status — and that he had instead prioritized the trip for the day of trial. While this may be a post-hoc attempt by Hawkins to justify his misbehavior, it is more reasonable to assume its veracity than assume it shows a willful and deliberate refusal to attend to his own criminal proceedings and waive his right to counsel. This is particularly true when, as we have discussed, Hawkins may not have realized that his public defender was no longer involved. At the very least, it cuts against the idea that Hawkins was manipulating the system for his own personal gain.

Finally, we note that here the trial court did not make this decision in a vacuum. The deputy prosecutor made the court aware that Hawkins was apparently trying to get to the courthouse, but would not arrive until early that afternoon. Nevertheless, the trial court decided to proceed, trying Hawkins in absentia after waiting only thirty minutes — and without attempting to confirm or deny the validity of the deputy prosecutor’s report — because Hawkins had not directly communicated to the court a reason for his absence or a request for a continuance.

This again is a far cry from Jackson. While we have stated the importance of parties respecting the trial court’s schedule, and the impact on others when that schedule is changed without warning, at the same time we emphasize that a trial court is the protector of more than just its own calendar. In criminal cases it must also vigorously protect the rights of those who are called before it as defendants, as well as the interests of the State and the victims. We still “cannot [and do not] expect a trial court to hunt down a defendant,” Jackson, 868 N.E.2d at 501, and certainly it would have been a burden to hold the jurors until Hawkins arrived later that day, and the delay probably would have impacted other matters scheduled for that day or the next. But in light of the particular facts here, we cannot say that those potential disruptions carry enough weight to say that Hawkins’s conduct amounted to an intentional and inexcusable absence such that he waived his fundamental right to counsel.

Accordingly, based on the facts and circumstances of this particular case, we find that Hawkins’s failure to appear at trial was not a waiver of his right to counsel and it was inappropriate to try him in absentia without representation. We therefore vacate his convictions and sentence and remand for a new trial.

II. Hawkins’s Sentencing Proceeding and Sentence

Because we reverse the trial court’s decision to try Hawkins in absentia and remand for a new trial, the issues he raises with respect to his sentence are necessarily moot. However, we write briefly on them just to highlight two points.

First, we note that we handed down our opinion in Sanjari after Hawkins was sentenced. However, as the Court of Appeals pointed out — and the State concedes (Ap-pellee’s Br. at 18) — Sanjari is now controlling with respect to the enhancement of Hawkins’s charges from class D to class C felonies. Accordingly, if Hawkins is convicted on both counts for the same child support arrearages, only one conviction may be enhanced to a class C felony.

Second, Indiana Code § 35-38-l-4(a) provides that a criminal defendant “must be personally present at the time sentence is pronounced.” Indiana Administrative Rule 14(A)(2)(c) further provides that a trial court “may use audio visual telecommunication to conduct ... [sentencing hearings pursuant to IC 35-38-1-2 when the defendant has given a written waiver of his or her right to be present in person and the prosecution has consented.” Hawkins argues that nothing in the record reflects a waiver of his right to be present in person, and therefore it was improper for the trial court to sentence him via video conference. (Appellant’s Br. at 2021.)

The State contends that “personally present,” as used in subsection 4(a) means only that a defendant may not simply be represented by counsel; the defendant himself must appear in person. (Appel-lee’s Br. at 15.) But that appearance in person, the State says, can be accomplished by video just as well as a physical presence — and the defendant would still gain the benefits inherent to physical appearance, such as being directly informed of the verdict, testifying on his own behalf or making unsworn statements, and observing the demeanor of witnesses presented against him. (Appellee’s Br. at 1516.) Alternatively, if we take Hawkins’s interpretation of subsection 4(a) and Administrative Rule 4, the State argues that Hawkins waived this argument by failing to object at the sentencing hearing.

We think the State’s proposed interpretation of “personally present” would effectively render Rule 14(A)(2)(c) meaningless. If a defendant could be “personally present” at sentencing via video conference and satisfy § 35-38-l-4(a), there would be no reason for the Administrative Rules to explicitly require the defendant to give “a written waiver of his or her right to be present in person” before that video conference could be held.

A better interpretation — and one that gives force to both provisions — is that “personally present” and “present in person,” as used in Indiana Code § 35-38-1-4(a) and Indiana Administrative Rule 14(A)(2)(c), respectively, refer to the defendant’s actual physical presence. Thus, a trial court may conduct a sentencing hearing at which the defendant appears by video, but only after obtaining a written waiver of his right to be present and the consent of the prosecution.

Here, Hawkins is correct that no written waiver of his right to be present in person at his sentencing hearing exists in the record, nor is there any showing that the prosecution consented to his appearance by video. But because this issue is moot in light of our remand for a new trial, we need not decide the impact of Hawkins’s failure to contemporaneously object or weigh the impact of denying a defendant the right to be physically present for sentencing under fundamental error analysis. Going forward, though, we would expect to see what our rules require reflected in the record, and would urge trial courts to be cautious of using procedures — however efficient they may be — without following all of the steps required to implement those procedures in a way that is fair to all involved.

Conclusion

We therefore vacate Hawkins’s convictions and sentence for class C felony nonsupport of a dependant and remand this matter for a new trial.

DICKSON, C.J., and RUCKER, MASSA, and RUSH, JJ., concur.

      . Ind.Code § 35-46-l-5(a) (2008).

      . In Sanjari, we held that an aggregate child support debt in excess of $15,000 serves as an enhancement to the crime of non-support of a dependent, raising it from a class D felony to a class C felony. Sanjari, 961 N.E.2d at 1007-08. However, a defendant’s single lump-sum debt could not enhance two class D felonies to two class C felonies — it could only enhance one such charge. Id. at 1008-09.

      . In his brief, Hawkins styles these last two arguments under one heading, but the failure to properly advise of the right to an attorney and the validity of a subsequent waiver of that right are two distinct issues.

      . In that regard, we note that subsection 4(a) is written in such a way that it conveys not only the defendant's right to be present at sentencing, but also his obligation to be present. This is why the Administrative Rule turns not just on the defendant's written waiver, but also on the prosecution’s consent. Just as the defendant benefits at sentencing from being able to directly view witness demeanor and present personal emotion in his own testimony, so too might the State benefit — in pursuing a higher sentence — from presenting the defendant in person as opposed to a more sterile video conference.


author: MASSA, Justice.

text:
    Joey JENNINGS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 53S01-1209-CR-526.
    Supreme Court of Indiana.
    Feb. 20, 2013.

      Jeremy M. Noel, Bloomington, IN, Attorneys for Appellant.
    Robert J. Hill, Joel M. Schumm, Indianapolis, IN, Attorneys for Amicus Curiae Marion County Public Defender Agency.
    Gregory F. Zoeller, Attorney General of Indiana, James Thomas Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   MASSA, Justice.

This case presents a question of statutory interpretation: does the phrase “term of imprisonment,” as it is used in Indiana’s misdemeanor sentencing statute, include time suspended from a sentence? We hold it does not.

Facts and Procedural History

A jury convicted Joey Jennings of criminal mischief as a Class B misdemeanor for vandalizing another man’s truck. The trial court sentenced him to 30 days executed, 150 days suspended, and 360 days of probation. Jennings appealed, arguing that 1) the evidence was insufficient to support his conviction and 2) his sentence was illegal under Indiana Code § 35-50-3-l(b) (2008), which states “whenever the court suspends in whole or in part a sentence for a Class A, Class B, or Class C misdemeanor, it may place the person on probation under IC 35-38-2 for a fixed period of not more than one (1) year, notwithstanding the maximum term of imprisonment for the misdemeanor set forth in sections 2 through 4 of this chapter. However, the combined term of imprisonment and probation for a misdemeanor may not exceed one (1) year.”

The Court of Appeals affirmed in part and reversed in part, finding the evidence sufficient to support Jennings’s conviction but finding the sentence was inconsistent with Indiana Code § 35-50-3-1(b). Jennings v. State, 956 N.E.2d 203, 208 (Ind. Ct.App.2011). The court reasoned “term of imprisonment” was not defined in the Indiana Code and the courts had not settled on a definition. The court concluded that for purposes of the misdemeanor sentencing statute, “term of imprisonment” must include not only executed time, but also suspended time. Thus, in order to comply with the statute, the aggregate sentence — including time executed, suspended, and on probation — may not exceed one year. Accordingly, the court remanded the case for a redetermination of Jennings’s period of probation, not to exceed 185 days.

The State petitioned for rehearing, arguing the court’s holding conflicted with Smith v. State, 621 N.E.2d 325 (Ind.1993). The court granted the State’s petition, but reaffirmed its previous decision, citing Collins v. State, 835 N.E.2d 1010 (Ind.Ct.App. 2005) and Mask v. State, 829 N.E.2d 932 (Ind.2005). Jennings v. State, 962 N.E.2d 1260, 1261 (Ind.Ct.App.2012).

Jennings petitioned for transfer to this Court on the sufficiency of the evidence issue alone. The State petitioned for transfer on the sentencing issue and asked us to clarify the meaning of “term of imprisonment” as it is used in Indiana’s misdemeanor sentencing statute. We granted both petitions, thereby vacating the opinion below. Jennings v. State, 974 N.E.2d 1020 (Ind.2012) (table); Ind. Appellate Rule 58(A).

Standard of Review

In reviewing a sufficiency of the evidence claim, we neither reweigh the evidence nor assess the credibility of the witnesses. Treadway v. State, 924 N.E.2d 621, 639 (Ind.2010). Rather, we look to the evidence and reasonable inferences that support the verdict and affirm the conviction if a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Id.

When construing a statute, “our primary goal is to determine and effect legislative intent.” Freeman v. State, 658 N.E.2d 68, 70 (Ind.1995) (citing Park 100 Dev. Co. v. Ind. Dep’t of State Rev., 429 N.E.2d 220, 222 (Ind.1981) (“[T]he foremost objective of the rules of statutory construction is to determine and effect the true intent of the legislature.”)); State v. Gilbert, 247 Ind. 544, 550, 219 N.E.2d 892, 895 (1966) (stating court must determine legislative intent in construing statutes).

The Evidence Is Sufficient to Support Jennings’s Conviction

Based on the record before us, we agree with the Court of Appeals that the State presented sufficient evidence to support Jennings’s conviction. Jennings, 956 N.E.2d at 204-05. Thus, we summarily affirm that portion of the Court of Appeals’s opinion. Ind. Appellate Rule 58(A)(2).

“Term of Imprisonment” Does Not Include Suspended Time

In 1993, we established a guiding principle for misdemeanor sentencing, holding that “a combined term of probation and imprisonment exceeding one year is inconsistent with the maximum term for conviction for a misdemeanor.” Smith v. State, 621 N.E.2d 325, 326 (Ind.1993). We now clarify our holding in Smith: a combined term of probation and imprisonment may not exceed one year, notwithstanding the maximum term of imprisonment for the misdemeanor. We further hold that “term of imprisonment,” for purposes of misdemeanor sentencing, does not include suspended time.

A. Smith v. State

Dennis Smith was convicted of battery, a Class A misdemeanor, and sentenced to one year imprisonment with 255 days suspended, to be followed by a one-year probation period. Smith argued on appeal that the trial court’s imposition of one year of probation, in addition to his 110-day executed sentence, was not proper because a person convicted of a Class A misdemeanor may be imprisoned for a period of not more than one year. We found that “[wjhile the trial court may have had sound reasons for the sentence it imposed, it was error to extend a misdemeanant’s penalty to a term exceeding the one-year statutory limitation, whether by imposition of a prison sentence, an assessment of probation under a suspended sentence, or a combination thereof.” Id. Importantly, probation and suspended sentence were considered together as two parts of the same whole.

When this Court decided Smith, Indiana’s misdemeanor sentencing law provided “whenever the court suspends a sentence for a misdemeanor, it may place the person on probation ... for a fixed period of not more than one (1) year.” Id. (quoting Ind.Code § 35-50-3-l(b) (1993)). Thus, probation, under the statute, could last for up to one year beyond the executed time served. This Court, in Smith, held that time served in prison plus probation could not exceed the statutory limitation. Id. The effect of the Court’s ruling was to amend the statute by limiting a combination of time spent incarcerated and on probation to the corresponding maximum sentence possible under law. The Court based its decision on an “absence of clear legislative authorization to the contrary,” and applied the principles used in felony sentencing to determine that imprisonment and probation could not exceed the statutory maximum. Id.

While this Court may have intended the combination of imprisonment and sentence suspended to probation to be limited to the maximum term prescribed in statute, it appears judicial practice did not follow that pronouncement. After Smith was handed down, some trial courts imposed probation for Class B and Class C misdemeanors so that the probation period plus the sentence exceeded the statutory maximum for the misdemeanor, but did not exceed one year — a practice clearly in contravention of this Court’s Smith decision. So, in an effort to remedy the inconsistency between precedent and practice, the legislature amended the statute in 2001 as follows (amendments in bold):

(b) Except as provided in subsection (c), whenever the court suspends in whole or in part. a sentence for a Class A, Class B, or Class C misdemeanor, it may place the person on probation under IC 35-38-2 for a fixed period of not more than one (1) year, notwithstanding the maximum term of imprisonment for the misdemeanor set forth in sections 2 through 4 of this chapter. However, the combined term of imprisonment and probation for a misdemeanor may not exceed one (1) year.

Ind.Code § 35-50-3-l(b) (2008) (emphasis added); see also Act of May 1, 2001, P.L. 90-2001, § 1, 2001 Ind. Acts 451. The statute thus is clear enough: 1) a sentence may be suspended in whole or in part; 2) a misdemeanant may be sentenced to probation for up to one year; and 3) the combined term of imprisonment plus probation may not exceed one year.

In contrast, Jennings argues that “term of imprisonment” must include both executed and suspended time, and a “term of imprisonment” plus probation cannot exceed one year. If we adopted Jennings’s interpretation, we would have to apply it to the entire chapter and all levels of misdemeanors, with results that would frustrate legislative intent and undermine accountability measures that encourage reflection, remorse, and rehabilitation. Thus, we reject it.

Under Jennings’s proposed interpretation, it would be possible for a B or C misdemeanant — but not for an A misde-meanant — to have a portion of his maximum statutory sentence suspended and still serve probation. In fact, a Class A misdemeanant could never be sentenced to the statutory maximum of one year and have a portion of that sentence suspended subject to probation. That surely was not the legislature’s intent, and we will not so hold. The statutory language singles out each level of misdemeanor — A, B, and C— and says a court may suspend the sentences for each of those “in whole or in part” and then place the misdemeanant on probation for up to one year. This clearly and unambiguously shows the legislature, by “term of imprisonment,” meant only that time during which a misdemeanant is incarcerated.

B. Untangling the Knot

Today’s straightforward holding — that a judge may suspend all or part of a misdemeanor sentence and place the defendant on probation for the rest of a year — aims to clarify practice in our highest-volume criminal courts. Multiple defendants raising this issue have petitioned for transfer. This current state of confusion results from a decade-long tangled thread of evolving precedent that left the Court of Appeals little choice but to grant Jennings relief. Today, we untangle that knot.

We start with Beck v. State, 790 N.E.2d 520 (Ind.Ct.App.2003), decided 10 years after Smith. In Beck, the defendant was sentenced to 365 days imprisonment with 351 days suspended and placed on probation for an additional 365 days. This was improper under Smith, and the Court of Appeals remanded for re-sentencing in a fashion consistent with today’s holding, limiting probation to 351 days. The decision prompted a concurring opinion that took issue with the majority analysis, asserting in essence that a year is a year and a sentence is a sentence, whether executed or suspended.

One year later, in Copeland v. State, 802 N.E.2d 969 (Ind.Ct.App.2004), a domestic batterer received a wholly suspended 365-day sentence on his misdemeanor conviction with 180 days probation. The concurring judge in Beck, this time writing for a unanimous panel, cited the Beck concurrence for the proposition that “a suspended sentence is one actually imposed,” therefore probation was unavailable on top of the 365-day suspended sentence. Id. at 973 n. 4 (citing Beck, 790 N.E.2d at 523).

A different panel of the Court of Appeals followed the Beck/Copeland approach in Collins v. State, 835 N.E.2d 1010 (Ind. Ct.App.2005). Collins was convicted of misdemeanor drunk driving and, pursuant to a sentencing agreement, received 365 days incarceration with 355 days suspended, and 365 days of probation. Under our holding today, his probation would be limited to 355 days, but the Collins panel held there is “an affirmative statutory proscription on the imposition of any sentence, regardless of its composition, in excess of one year,” implying that the probation period could not stand on remand. Id. at 1018.

Still more confusion followed our decision in Mask v. State, 829 N.E.2d 932 (Ind.2005), cited by the Court of Appeals in denying the State’s Petition for Rehearing in the instant case. Mask, however, was a felony case having nothing to do with the plain meaning of our misdemean- or sentencing statute. Mask dealt with Indiana’s cap on consecutive sentencing in certain felony crime sprees, limiting a judge’s ability to “stack” sentences for multiple crimes arising out of a single episode of conduct. In Mask, the defendant was convicted of multiple Class D felonies in a single episode. The trial court maxed the defendant on three of the counts and ran them consecutively for a total of nine years, with three of those years suspended. This ran afoul of Indiana Code § 35-50-l-2(c), which capped the sentence at the standard term for the next highest class of felony, or 4 years in Mask’s case. We held that for purposes of applying the consecutive sentence cap, the sentence imposed — whether suspended or executed— controlled, because a defendant subsequently could violate his probation, have back-up time imposed, and thus serve a sentence that exceeds the statutory cap. Id. at 936. This is why Chief Justice Shepard, writing for a unanimous Court, referenced the Beck concurrence. Mask does contain language that appears to support Jennings’s position: “[¿Incarceration in the context of subsection (c) does not mean the period of executed time alone.” Id. (emphasis added). The emphasized text, however, makes it clear that Mask ⅛ essential holding is confined to the context in which it arose — the consecutive sentencing cap statute — and it in no way controls the question we resolve today.

C. The Purpose of Probation

As previously noted, adopting Jennings’s reasoning would undermine the rehabilitative purposes of probation. Probation and suspended sentences are widely imposed concurrently in order to ensure the probationer’s good behavior. The two work in concert. Probation is “[a] court-imposed criminal sentence that, subject to stated conditions, releases a convicted person into the community instead of sending the criminal to jail or prison.” Black’s Law Dictionary 1322 (9th ed. 2009). A suspended sentence is “[a] sentence postponed so that the convicted criminal is not required to serve time unless he or she commits another crime or violates some other court-imposed condition. A suspended sentence, in effect, is a form of probation.” Id. at 1486 (emphasis added). Thus, a convicted criminal has an incentive to “pass the test” of probation in order to avoid serving his suspended sentence.

Were we to adopt the approach that Jennings and amicus urge, the following would occur in the sentencing of Class A misdemeanants, as the State’s brief succinctly outlines below:

First, a trial court [could] simply order 180 days executed and 185 days suspended. However, without a probationary term, there is no mechanism by which to secure good behavior: there would be no possibility of the suspended portion ever being executed, because there is no probation to govern conduct, or, if conduct is not in keeping with its terms, to be revoked. The suspended portion would be superfluous — an absurd result. As a practical matter, this option is no different than a sentence of 180 days executed and no further sanc-
Second, a trial court could order 180 days executed and 185 days of probation. However, without a suspended sentence, there is no incentive to secure or correct the misdemeanant’s behavior, should he not fulfill the terms of probation. In both instances, the sentence results in “all carrot and no stick” and the probationary or suspended terms are toothless.

State’s Trans. Pet. at 6. Taken together with the plain language of the statute and legislative intent, we find this argument well-stated and persuasive.

Conclusion

For the purpose of Indiana Code § 35-50-3-1, “term of imprisonment” means the total amount of time a misdemeanant is incarcerated. Further, regardless of the maximum sentence available under Indiana Code §§ 35-50-3-2, 35-50-3-3, and 35-50-3-4, the combined term of imprisonment and probation for a misdemeanor may not exceed one year. We therefore remand this case to the trial court for imposition of a probationary period consistent with this opinion, not to exceed 335 days — the difference between one year (365 days) and the 30 days Jennings was ordered to serve in prison.

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

      . The maximum penalty for a Class B misdemeanor is imprisonment for up to 180 days. Ind.Code § 35-50-3-3. The maximum penalty for a Class C misdemeanor is imprisonment for up to 60 days. Ind.Code § 35-50-3-4 (2008).

        . Namely, Indiana Code § 35-50-2-2(c) (2008) which provides that "whenever the court suspends a sentence for a felony, it shall place the person on probation under IC 35-38-2 for a fixed period to end not later than the date that the maximum sentence that may be imposed for the felony will expire.”

      . A Fiscal Impact Statement drafted by the Indiana Legislative Services Agency indicates the purpose behind the legislation: "Under current case law,” meaning our decision in Smith v. State, "the sentencing court may suspend all or a portion of the sentence and require the offender to remain on probation for the suspended time.” Office of Fiscal and Management Analysis, Indiana Legislative Services Agency, Fiscal Impact Statement House Bill 1532 at 1 (Dec. 5, 2000). The report continues: "However, some courts reportedly suspend all or a portion of a sentence and require the offender to remain on probation for up to one year whether or not the time on probation exceeds the statutory period for incarceration. This bill will make the statute consistent with this practice.” Id.

      . The threat of "back-up time,” should a defendant violate the terms of his probation, is one such accountability measure.

      . More than 173,000 misdemeanor cases were filed in Indiana courts in 2011. 1 Indiana Judicial Service Report: Judicial Year in Review 94 (2011).

      . See, e.g., Tumbleson v. State, No. 90A02-1107-CR-613, 2012 WL 172873, (Ind.Ct.App. Jan. 20, 2012) and Rayford v. State, No. 01A02-1106-CR-554, 2012 WL 314042 (Ind. Ct.App. Jan. 30, 2012). Tumbleson and Ray-ford were consolidated with Jennings for oral argument; we denied transfer in both Tum-bleson and Rayford. See also Peterink v. State, 982 N.E.2d 1009, No. 57S03-1302-CR-136, slip op. (Ind. February 20, 2013) (remanding for resentencing in light of this opinion).

      . The word "probation” comes from the Latin "probare,” meaning "to try, test, approve, prove.” Webster's Third New International Dictionary 1806 (1993).


text:
    Kathleen PETERINK, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 57S03-1302-CR-136.
    Supreme Court of Indiana.
    Feb. 20, 2013.
    Jill M. Acklin, Westfield, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, James Thomas Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   MASSA, Justice.

Appellant Kathleen Peterink pleaded guilty to Possession of Marijuana as a Class A misdemeanor. The trial court sentenced her to one year imprisonment, suspended the sentence entirely, and placed her on probation for one year, .six months of which was to be served on home detention.

Contrary to statutory authority, the trial court also ordered that Peterink would not receive good time credit for her term of home detention. On appeal, the State conceded error and the Court of Appeals remanded with instructions to amend the sentencing order to allow for credit time. Peterink v. State, 971 N.E.2d 735, 737-38 (Ind.App.2012). Today, we grant transfer and summarily affirm that portion of the opinion below. Ind. Appellate Rule 58(A)(2).

However, the Court of Appeals also found error in the trial court’s sentence of one year suspended with a year’s probation, citing its past precedent in Jennings v. State, 956 N.E.2d 203 (Ind.Ct.App.2011), clarified on reh’g, 962 N.E.2d 1260 (Ind. Ct.App.2012), trans. granted, 974 N.E.2d 1020 (table). Our decision today in Jennings v. State. No. 53S01-1209-CR-526, slip op. (Ind. February 20, 2013), dictates that the trial court be affirmed in this regard. We thus uphold the suspended sentence, with probation, but remand with instructions to allow for credit time for home detention.

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

      . Ind.Code §§ 35-38-2.5-5 (2008) and 35-50-6-6 (2008).


author: RUSH, Justice.

text:
    Felix C. SICKELS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 20S03-1206-CR-308.
    Supreme Court of Indiana.
    Feb. 22, 2013.

      Nancy A. McCaslin, Elkhart, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   RUSH, Justice.

In this case, the trial court determined that the custodial parent was the “victim” for purposes of criminal restitution for the noncustodial parent’s failure to support his dependent children. At the time the trial court ordered restitution, the children were adults and emancipated.

On direct appeal, the Court of Appeals, sua sponte, held that it was “erroneous” for the trial court to order the noncustodial parent to make restitution to the custodial parent. Specifically, the Court of Appeals held that the custodial parent was not a “victim” of the noncustodial parent’s crimes and that restitution was payable to only the children.

We hold that the trial court was well within its discretion to find that the custodial parent was the “victim.”

Facts and Procedural History

Felix Sickels (“Sickels”) and Kathy Sick-els divorced in 1992. Kathy was given custody of their three children, and Sickels was ordered to pay weekly child support.

Over the years, Sickels often failed to make his court-ordered child-support payments. In 2001, the State charged Sickels with three counts of felony nonsupport of a dependent child, and the trial court issued an arrest warrant. At the time, Sickels had moved from Indiana to Michigan.

For various reasons, the State of Michigan did not extradite Sickels to Indiana until July 2010. By this point, all three children were adults and emancipated.

In 2011, at a bench trial, the trial court found Sickels guilty of three felony counts of nonsupport of a dependent child. At the subsequent sentencing hearing, the trial court ordered defendant to serve an aggregate sentence of ten years through a direct community corrections placement and to pay Kathy, “the victim in the case,” the amount of his child-support arrearage, which exceeded $84,000. Although the trial court used the term “restitution” at the sentencing hearing, both the written sentencing order and chronological case summary include the word “judgment” and reference the civil cause number associated with Kathy and Sickels’ prior divorce action.

Sickels appealed, challenging his convictions and sentence. In a lengthy, well-reasoned, and thoughtful opinion, the Court of Appeals rejected a majority of Sickels’ arguments and affirmed his convictions and length of sentence. Sickels v. State, 960 N.E.2d 205, 223 (Ind.Ct.App. 2012). But the Court of Appeals recognized three problems with the trial court’s order for Sickels to pay his child-support arrearage. Id. at 222-28. The Court of Appeals first noted that the court stated a different total for the child-support arrear-age in its written sentencing order than the total it specified at the sentencing hearing. Id. at 223. On this issue, the Court of Appeals remanded to the trial court to clarify the amount of the arrear-age. Id. The Court of Appeals also noted that the trial court referred to Sickels’ payment of child-support arrearage as “restitution” at the sentencing hearing but that other documents referred to the payment as a civil judgment. Id. Accordingly, the Court of Appeals remanded to the trial court to “correct its sentencing order and other documents to reflect only restitution.” Id.

Finally, the Court of Appeals, sua sponte, determined that Kathy was not the proper recipient of Sickels’ restitution:

[Pjursuant to Indiana law, “in addition to any sentence imposed” for a criminal offense the trial court is authorized to order “restitution to the victim of the crime.” I.C. § 35-50-5-3. The amount of restitution ordered must reflect the actual loss suffered by the victim. Myers v. State, 848 N.E.2d 1108, 1109 (Ind.Ct.App.2006). But Kathy is not the victim of Sickels’ crimes. His children are. It is generally established that child support payments are for the benefit of the child, not for the benefit of the parent. See Haley v. Haley, 771 N.E.2d 743, 752 (Ind.Ct.App.2002). As such, the court’s order for Sickels to pay restitution to Kathy as “the victim” is erroneous. See Transcript at 87.

Id.

We granted transfer to address one narrow issue: whether a custodial parent may be a “victim” for purposes of restitution based on a child-support arrearage even if the children have been emancipated. On the remaining issues, we summarily affirm the Court of Appeals. Ind. Appellate Rule 58(A)(2).

Standard of Review

An order of restitution is a matter within the trial court’s discretion. Smith v. State, 655 N.E.2d 133, 134 (Ind. Ct.App.1995), tram, denied. Accordingly, we reverse only upon a showing of abuse of discretion, which occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it. J.P.B. v. State, 705 N.E.2d 1075, 1077 (Ind.Ct.App.1999).

Restitution and Child-Support Arrearage

Under Indiana Code section 35-50-5-3(a) (Supp.2012), a trial court may order, in addition to any sentence, that a defendant make restitution to the victim of the crime. Although the statute does not define the term “victim,” this Court has held that restitution is properly payable to “those shown to have suffered injury, harm or loss as a direct and immediate result of the criminal acts of a defendant.” Reinbold v. State, 555 N.E.2d 463, 470 (Ind.1990), overruled in part on other grounds by Wright v. State, 658 N.E.2d 563 (Ind.1995); see also Roach v. State, 695 N.E.2d 934, 943 (Ind.1998).

In the present case, the State argues that the Court of Appeals deviated from its precedent when it held that Kathy, as the custodial parent, cannot be a “victim” entitled to restitution for child-support arrear-age. The State further contends that the Court of Appeals’ conclusion on this point contravenes sound public policy. Sickels, on the other hand, asserts that his emancipated children are the sole “victims” in the case, directing us to the general principle that child-support payments are for the benefit of the child. For the reasons explained below, we hold that a custodial parent may be a “victim” entitled to restitution based on a child-support arrearage even if the children have been emancipated.

It is well established that the right to child support lies exclusively with the child and that a custodial parent holds the support payments in trust for the child’s benefit. In re Hambright, 762 N.E.2d 98, 101 (Ind.2002); Hicks v. Smith, 919 N.E.2d 1169, 1171 (Ind.Ct.App.2010), trans. denied. Prior Court of Appeals opinions have taken into account this foundational principle when determining, in the civil context, who is entitled to a child-support arrearage when a child becomes emancipated. Hicks, 919 N.E.2d at 1171; Moody v. Moody, 565 N.E.2d 388, 392 (Ind.Ct.App.1991).

In essence, these decisions have held that an arrearage is payable to the custodial parent after a child is emancipated. Hicks, 919 N.E.2d at 1173-74; see also Moody, 565 N.E.2d at 392. This is because an arrearage “compensate[s] the custodial parent for his or her expenses in assuming more than his or her share of the cost of supporting the child until his or her emancipation.” Hicks, 919 N.E.2d at 1173-74. Or, in other words, the presumption in these cases is that the custodial parent has made up any shortfall that resulted from the noncustodial parent’s failure to fulfill his or her child-support obligations. See Moody, 565 N.E.2d at 392. Thus, although there may be limited instances where an emancipated child is entitled to a child-support arrearage, the general rule is that the arrearage goes to the custodial parent. Hicks, 919 N.E.2d at 1173-74.

We find Hicks and Moody instructive here. We agree that a custodial parent, whose children are now emancipated, is entitled to a presumption that he or she expended his or her own funds to offset any deficit caused by missing child-support payments. We see no reason to limit this presumption to only civil cases.

Given this presumption, it logically follows that a custodial parent who is presumed to have expended his or her own funds would also be presumed to have suffered an “injury, harm or loss” as a direct result of a noncustodial parent’s failure to support his dependent children. Stated another way, a trial court is well within its discretion in determining that a custodial parent like Kathy is a “victim” entitled to criminal restitution in the amount of the child-support arrearage. Importantly, we do not hold that a custodial parent whose children are now emancipated is the only possible “victim” under these circumstances but that a custodial parent is entitled to a presumption that he or she has suffered an “injury, harm or loss” as a direct result of the noncustodial parent’s failure to pay child support. As a result, and barring an unusual circumstance, the custodial parent will be the recipient of criminal restitution for child-support arrearage in cases where the children have been emancipated. Furthermore, given the Court of Appeals’ broad language in its opinion, we must stress that this principle applies with even greater force when dependent children are involved — in those cases, criminal restitution for a support arrearage is payable only to the custodial parent.

Sound public policy and established legal precedent support ■ these conclusions. Remitting restitution awards directly to a child could create concerns regarding the enforcement of orders. In the event the noncustodial parent does not follow the order, a dependent child would possibly be placed in the untenable position of having to figure out enforcement procedures or hiring a lawyer to do so. Furthermore, neither an emancipated nor a dependent child should be placed in an adversarial (and likely awkward) role against his or her noncustodial parent. Having the custodial parent as the “payee” in these instances eliminates these potential unnecessary hardships and recognizes that a custodial parent should be compensated for assuming the costs of supporting the children.

Conclusion

We summarily affirm the Court of Appeals on all issues but one: whether Kathy, as the custodial parent, was a “victim” of Sickels’ crimes and is thus entitled to the court-ordered restitution for child-support arrearage. We hold that the trial court was within its discretion to determine that restitution was payable to the custodial parent, despite the fact that the children were emancipated, and thus affirm the trial court on this issue. As consistent with the Court of Appeals opinion, the ease is remanded to the trial court to clarify the amount of the restitution award and correct any court documents that refer to a civil judgment.

DICKSON, C.J., and RUCKER, DAVID, and MASSA, JJ., concur.

      . The Court of Appeals aptly noted that "[wjhile restitution is a proper criminal penalty, civil court is the proper venue to adjudicate civil judgments.” Sickels, 960 N.E.2d at 223 (citing Haltom v. State, 832 N.E.2d 969, 972 (Ind.2005)). A review of the sentencing-hearing transcript reveals that the trial court’s intent was to order restitution despite conflicting language in some court documents referring to a "judgment.” Neither party on transfer argues otherwise.

      . In In re Hambright, this Court held that "[a]s a matter of law, arrearages, like current and future support, are held for the children, and the custodial parent has no individual property interest in them.” 762 N.E.2d at 103. Hambright involved the narrow issue of "whether child support arrearages owed to a custodial parent are assets of the parent’s bankruptcy estate.” Id. at 99-100. Ultimately, this Court determined that because child-support arrearages are not property of the custodial parent, a trustee in bankruptcy has no interest in them. Id. at 103. This Court made clear that it did not decide the question of whether emancipation would have any effect on the nature of the custodial parent’s interest in an arrearage and left that question "for another day.” Id. at 103 n. 4.

      . Generally, it is not necessary that the custodial parent prove the actual expenditures to be entitled to the support arrearage. See Moody, 565 N.E.2d at 392; cf. Lizak v. Schultz, 496 N.E.2d 40, 42 (Ind. 1986) (holding that subsequent husband, as administrator of estate of deceased custodial parent, could bring action to collect a child-support arrear-age without proving the custodial parent had expended sums equivalent to the arrearage from her own money). Importantly, Sickels offered no proof that Kathy failed to expend her own money to cover the shortfall created by his failure to pay support. Accordingly, it is unnecessary for us to decide whether the presumption in her favor is rebuttable under certain circumstances.