source: Caselaw Access Project

author: BARNES, Judge.

license: Public Domain

text:
    Jamar WASHINGTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1202-CR-79.
    Court of Appeals of Indiana.
    Aug. 28, 2012.
    Victoria L. Bailey, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

Jamar Washington appeals his convictions for Class D felony battery, Class A misdemeanor resisting law enforcement, and Class B misdemeanor disorderly conduct. We affirm and remand.

Issue

The sole contested issue in this appeal is whether the trial court properly instructed the jury.

Facts

On the evening of May 1, 2011, Washington went to a club in downtown Indianapolis while his live-in girlfriend, Dynasty Brown, stayed home with the couple’s children, including an eight-month-old boy. Sometime during the late evening of May 1 and early morning of May 2, 2011, Brown received a Facebook message that included a picture of Washington with another woman at the club. After trying twice to call Washington, unsuccessfully, Brown decided to drive to the club with the eight-month-old boy and find Washington.

At approximately 3:00 a.m., Brown arrived at the club and saw Washington standing outside with the other woman, Deja Crayton. Brown, while carrying the eight-month-old on her hip, approached Washington and Crayton and then first hit Washington, then Crayton, in the face. Brown then handed the eight-month-old to someone in the crowd after someone shouted, “Girl, give me your baby!” Tr. p. 73. Brown and Crayton then began fighting, with Washington attempting to break them up.

Several Indianapolis Metropolitan Police Department officers were near the scene on “bar detail” and saw the Brown-Cray-ton-Washington altercation transpire. Id. at 68. Officer Cedric Young approached Brown from behind, picked her up, put her face down on the hood of a car, and attempted to handcuff her while she struggled. While Officer Young was attempting to handcuff Brown, Washington jumped on Officer Young’s back, put his arm around Officer Young’s neck, and started yelling, “Get off my baby mama, get off my baby mama.” Id. at 75. Officers Geoffrey Bar-bieri and Lisa Weilhamer attempted to assist Officer Young with Washington as he struggled, during which Washington caused Officer Weilhamer to fall backwards and hit her head on the pavement, causing a mild concussion. Officer Barbi-eri also fell and was kicked several times by Washington. Eventually, five officers were able to wrestle Washington to the ground and handcuff him. When Officer Young asked Washington why Washington had jumped on his back, Washington responded that he thought Brown was still holding his baby when Officer Young had forced her down onto the car hood.

The State charged Washington with Class D felony strangulation, three counts of Class D felony resisting law enforcement, three counts of Class D felony battery on a police officer resulting in injury, and one count of Class B misdemeanor disorderly conduct. The State later dismissed two of the battery counts. A jury trial was held on November 30, 2011. At Washington’s request the trial court gave a jury instruction regarding defense of a third person; it gave a pattern instruction on the topic and did not give two instructions tendered by Washington. The jury found Washington guilty of two counts of Class A misdemeanor resisting law enforcement as lesser-included offenses of the D felony resisting charges, one count of Class D felony battery on a law enforcement officer, and Class B misdemeanor disorderly conduct. Washington was acquitted of the remaining counts. The trial court merged one of the resisting convictions into the battery convictions and sentenced Washington for one count of Class D felony battery, one count of Class A misdemeanor resisting law enforcement, and one count of Class B misdemeanor disorderly conduct. The abstract of judgment, however, states that Washington was convicted of Class D felony resisting law enforcement. Washington now appeals.

Analysis

The sole disputed issue in this ease is whether the trial court properly instructed the jury regarding defense of a third person. Washington requested instructions on the issue with respect to his claim that he thought, albeit mistakenly, that Brown was still holding his son when Officer Young forced her onto the hood of the car and that his son might be crushed underneath. The manner in which a trial court instructs a jury is largely within the sound discretion of the trial court, and we review a trial court’s decision regarding instructions only for an abuse of that discretion. Orta v. State, 940 N.E.2d 370, 876 (Ind.Ct.App.2011), trans. denied. We must consider the following when reviewing a trial court’s refusal to give a defendant’s tendered jury instruction: (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions that are given. Lewis v. State, 898 N.E.2d 429, 433 (Ind.Ct.App.2008), trans. denied.

The trial court gave the following pattern jury instruction regarding defense of another person:

It is an issue whether the Defendant acted in defense of another person.
A person may use reasonable force against another person to protect someone else from what the Defendant reasonably believes to be the imminent use of unlawful force.
No person in this State shall be placed in legal jeopardy of any kind whatsoever for protecting a third person by reasonable means necessary. The State has the burden of proving beyond a reasonable doubt that the Defendant did not act in defense of another person.

App. p. 131. This pattern instruction tracks the language of the self-defense and defense of another person statute, Indiana Code Section 35-41-3-2(a).

The trial court refused to give the following two instructions tendered by Washington, which were tendered defense instructions 3 and 4:

A man has a right to act upon appearances of actual and immediate danger if he sincerely believes such apparent danger exists. The danger need not be actual. It need be only apparent to a reasonable person under the circumstances. He will not be accountable for an error in judgment as to the need to use force or the amount of force necessary, provided he acted honestly. The law protects persons who feel compelled to act at such times even though in retrospect it is proved they have erred. The danger need not be actual but the belief must be in good faith and the reaction must be reasonable.

App. p. 102.

With regard to the defense of another, the existence of the danger, the necessity or apparent necessity of using force, as well as the amount of force required to resist the attack can only be determined from the standpoint of the Accused at the time and under the then existing circumstances.
Ordinarily, one exercising the right to defense of another is required to act upon the instant and without time to deliberate and investigate, and under such circumstances a danger which exists only in appearance, is as real and imminent to him as if it were actual.
A defender will not be accountable for an error in judgment as to the need to use force or amount of force necessary.

Id. at 103. Washington asserts that these additional instructions were necessary to adequately inform the jury that he could successfully claim defense of another, even if he was mistaken about Brown not holding his son when Officer Young attempted to restrain her.

On appeal, the State concedes that there was sufficient evidence that could have supported the giving of Washington’s tendered instructions. It also concedes that instruction 8 is a correct statement of the law, as its language comes from Franklin v. State, 266 Ind. 540, 544, 364 N.E.2d 1019, 1021 (1977). Franklin, however, concerned a review of the sufficiency of the evidence regarding a conviction, not the proper manner of instructing a jury. Our supreme court has said that simply because language appears in an appellate opinion does not mean it is appropriate for a jury instruction. Ludy v. State, 784 N.E.2d 459, 462 (Ind.2003).

The State does not concede that tendered instruction 4 is a correct statement of the law, arguing that it focuses exclusively upon a defendant’s subjective state of mind when evaluating a claim of defense of another person. It points out that in Littler v. State, 871 N.E.2d 276, 279 (Ind.2007), our supreme court held “that the phrase ‘reasonably believes,’ as used in the Indiana self-defense statute, requires both subjective belief that force was necessary to prevent ... injury, and that such actual belief was one that a reasonable person would have under the circumstances.” Arguably, this holding conflicts with tendered instructions 4’s language that a self-defense claim “can only be determined from the standpoint of the Accused.... ” App. p. 103.

Even if instructions 3 and 4 both correctly stated the law and were supported by the evidence, the closer question in this case is whether their substance was adequately covered by the trial court’s giving of the pattern instruction regarding defense of another person. Initially, “we must note that the preferred practice is to use the pattern jury instructions.” Gravens v. State, 836 N.E.2d 490, 493 (Ind.Ct.App.2005), trans. denied. We must, however, carefully consider our supreme court’s holding in French v. State, 273 Ind. 251, 403 N.E.2d 821 (Ind.1980).

In French, a defendant claimed self-defense in a murder prosecution. The trial court gave the following instruction regarding the use of deadly force in self-defense:

A person is justified in using reasonable force against another person to protect himself or a third person from what he reasonably believes to be the imminent use of unlawful force. However a person is justified in using deadly force only if he reasonably believes that that force is necessary to prevent serious bodily injury to himself or a third person in the commission of a forcible felony.

French, 273 Ind. at 255, 403 N.E.2d at 824. Our supreme court held this instruction to be inadequate and its inadequacy to be reversible error, stating:

At no point in the instructions given was the jury informed that in the exercise of the right, a defender may repel force by force reasonably necessary and that he will not be accountable for an error in judgment as to the amount of force necessary, provided he acted honestly. Neither did the court’s instructions apprize the jury that the existence of the danger, the necessity or apparent necessity, as well as the amount of force required to resist the attack can only be determined from the standpoint of the defendant, at the time and under the then existing circumstances.

Id. at 256, 403 N.E.2d at 825. Our supreme court has never expressly overruled French. Taken at face value, French might have required more expansive jury instructions than the pattern instruction the trial court here gave, including at least some of the language in the instructions Washington tendered.

In Shaw v. State, 534 N.E.2d 745 (Ind. 1989), our supreme court addressed a case in which the jury was given the following self-defense instructions:

A person is justified in using reasonable force against another person to protect herself from what she reasonably believes to be the imminent use of unlawful force. However, a person is justified in using deadly force only if she reasonably believes that the force is necessary to prevent serious bodily injury to herself or the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting herself by reasonable means necessary.
There are three (3) requirements for self defense when deadly force is used:
(1) The defendant must have acted without fault;
(2) The defendant must have had a right to be where she was; and,
(3) The defendant must have reasonably believed that she was in immediate danger of death or serious bodily harm. Once a claim of self defense is raised, the State bears the burden of disproving the existence of one of these elements beyond a reasonable doubt....
Although threats alone are not sufficient to justify an assault, a threat at a time when there is the present ability to assault, and under circumstances which lead a person in good faith reasonably to believe that he is about to be seriously injured or killed is sufficient on the theory of self defense.

In Shaw, the defendant argued that these instructions were insufficient under French because they did not explicitly advise the jury that they had to evaluate the self-defense claim based on how the situation appeared to be to the defendant, rather than what the actual facts were. Indeed, these jury instructions do not include the language that the French opinion seemed to hold was required. Regardless, the Shaw opinion held that the jury instructions there went beyond those disapproved of in French and were sufficient. Shaw, 534 N.E.2d at 747. The court stated:

[T]he jury was repeatedly told that the standard to be considered by the jury was the reasonable belief of the defendant. ... We cannot see how such language could be interpreted by a jury in any manner other than that the standard to be used was the state of mind of the defendant at the time of the infliction of the injury.

id.

Relying upon Shaw’s “clarification” of French, this court subsequently approved the giving of a pattern jury instruction on self-defense that was in all relevant respects identical to the instruction given here. See Davis v. State, 691 N.E.2d 1285, 1289-90 (Ind.Ct.App.1998). Indeed, it is difficult to read Shaw as anything other than an implicit disapproval of French, at least to the extent French holds that a jury must be instructed that a defendant claiming self-defense or defense of another “will not be accountable for an error in judgment as to the amount of force necessary, provided he acted honestly,” and that the reasonableness of a defendant’s actions “can only be determined from the standpoint of the defendant, at the time and under the then existing circumstances.” French, 273 Ind. at 256, 403 N.E.2d at 825. Rather, we believe Shaw held that it is sufficient to clearly instruct a jury that a defendant claiming self-defense or defense of another must have acted “reasonably.” The pattern instruction given to the jury here did so. As such, we conclude that the substance of the instructions tendered by Washington was adequately covered by the instruction given by the trial court, meaning the trial court did not abuse its discretion in refusing to give those instructions.

Although we affirm Washington’s convictions, the State concedes that the trial court made a clerical error on the abstract of judgment. It states that Washington was convicted of Class D felony resisting law enforcement. The actual judgment of conviction, however, states that Washington was convicted of Class A misdemeanor resisting law enforcement. We therefore remand for the trial court to enter a corrected abstract of judgment accurately reflecting that Washington was convicted of Class A misdemeanor resisting law enforcement.

Conclusion

The trial court did not abuse its discretion in instructing the jury, and we affirm Washington’s convictions. However, we remand for correction of the abstract of judgment.

Affirmed and remanded.

VAIDIK, J., and MATHIAS, J., concur.

      . The instruction in Davis included language regarding the use of deadly force and defense of one’s dwelling or curtilage, neither of which were at issue in this case.


author: KIRSCH, Judge.

text:
    Anthony Mark SEWELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 73A01-1112-CR-609.
    Court of Appeals of Indiana.
    Aug. 28, 2012.

      Gilda W. Caviness, Caviness Law Office, LLC, Rushville, IN, Attorney for Appellant.

      Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

KIRSCH, Judge.

Anthony Mark Sewell (“Sewell”) appeals his conviction of committing a sex offender residency offense as a Class D felony, contending that the evidence was insufficient to support his conviction and that the conviction violated the prohibition against ex post facto provisions in both the federal and state constitutions.

We affirm.

FACTS AND PROCEDURAL HISTORY

Sewell was convicted of child molesting as a Class B felony in 2001. He was released from the Department of Correction in 2007 and placed on probation. Se-well, as an offender against children, was required to register his address with law enforcement. By July 2011, Sewell had registered seventeen times with the Shelby County Sheriffs Department (“SCSD”). Each time Sewell registered, the Shelby County Sex Offender Registry Clerk (“Registry worker”) would check Sewell’s address against a computerized map, which indicated the distance from that address to any known addresses of churches, schools, or other locations having youth program centers. Sewell was also given an information packet in which his registry obligations were discussed. The packet included the explanation that Sewell was not allowed to spend more than two nights within any thirty-day period in a residence that was within 1,000 feet of a youth program center. A Registry worker would orally explain the information to Sewell each time he registered. Sewell would then initial and sign the information packet in the presence of a Registry worker, who countersigned the form.

In June 2011, Sewell went to the SCSD registry and informed them that he intended to move to 42 West Brookville Road in Fountaintown. A Registry worker checked the address against the computerized map and informed Sewell that his proposed residential address was within 1,000 feet of a church. That church, the Community Church of Fountaintown, was within 1,000 feet of 42 West Brookville Road. The Registry worker explained to Sewell that he would violate the law if he lived within 1,000 feet of the church and if the church maintained a school, day-care, or youth program center. The Registry worker told Sewell that if he could obtain a statement from the church that it did not house those facilities or activities, he might be able to reside within 1,000 feet of the church’s property. Sewell decided not to change his residential registration at that time.

On July 1, 2011, Sewell returned to the SCSD registry and attempted to register 42 West Brookville Road as his residential address. Sewell had a letter from Pastor Michael Smith of the church, which included the statement that the church did not have a day-care or school on the property. Because the letter made no mention of youth programs, the Registry worker called the church to inquire about the church’s operations. In that telephone call, Pastor Smith verified that the church had a youth program for children younger than eighteen years of age on Sunday evenings from 5:00 p.m. until 7:00 p.m. Based upon that information, the Registry worker told Sewell that he could not live within 1,000 feet of the church without violating the law. Sewell disputed what the Registry worker said and produced a video-recording cell phone. The Registry worker repeated that Sewell could not live within 1,000 feet of the church without violating the law. Sewell then told the Registry worker that the rent at his present address was paid until July 8 or July 4, 2011 and that he would remain there until then.

On July 5, 2011, Sewell returned to the SCSD registry, this time with Pastor Smith. Sewell registered 42 Brookville Road as his new residential address. The Registry worker used a previous map printout to remind Sewell that the address was within 1,000 feet of a youth program center. Sewell explained that Pastor Smith came with him to clear everything up. The Registry worker replied, “Anthony it’s not gonna matter if I speak with the minister or not, that address still violates the 1,000 feet” restriction. Tr. at 30. Pastor Smith went to speak to the Shelby County Sheriff. Pastor Smith recalled being confused about the reason why it was fíne for Sewell, who had recently become a member of the church, to attend church services, but was prohibited from living within 1,000 feet of the church.

Pastor Smith returned to the registration desk after speaking with the sheriff. Sewell told the Registry worker that he would register the address as his temporary residence. The Registry worker informed Pastor Smith that registering the address as a temporary residence did not exempt the address from the 1,000 foot exclusion zone, and that Sewell’s residence there would be a violation of the law. The Registry worker recalled telling Sewell that many other offenders who had tried the same or similar thing had been in violation of the 1,000 foot exclusion zone. Sewell registered the address as his residence nonetheless.

Sergeant James Lacy (“Sergeant Lacy”) of the SCSD was assigned to check the residential addresses of registered sex offenders. On July 1, 2011, Sergeant Lacy received an e-mail from the SCSD registry that Sewell’s residence at 42 West Brook-ville Road violated the law. Sergeant Lacy received a further report from the SCSD registry on July 5, 2011. Sergeant Lacy traveled to the address at slightly past midnight on July 6, 2011 and contacted Sewell, who verified in writing that he was living at that address. Sergeant Lacy warned Sewell that residing at that address was in violation of the law. Sewell argued with Sergeant Lacy about whether Sewell’s residence there in fact violated the law.

During the weeks that followed, Sewell returned to the SCSD registry to re-register the address as a temporary residence. Sewell also made frequent calls to the Registry worker who met with him in July and indicated that he was trying to find another address, but that he could not move because he was ill, or that he could not move because he lacked the money for another residence. Sewell also complained about the fact that SCSD would not allow him to live within 1,000 feet of the church, even though he had given them a letter from Pastor Smith. The Registry worker reminded Sewell that the letter omitted information about youth programs, which the church had, and that Sewell could not live within 1,000 feet of a youth program center. Sewell was reminded on several occasions that Registry workers could not change the law or grant exemptions.

On July 11, 2011, Sergeant Lacy attempted to verify Sewell’s residence at 42 West Brookville Road. At approximately midnight of that same evening, Sergeant Lacy located Sewell at Sewell’s mother’s house in Shelbyville. Sewell’s mother’s house is within 1,000 feet of a day-care center. Sergeant Lacy spoke with Sewell, who indicated that he was staying at his mother’s house in order to attend an appointment with Sewell’s probation officer the following day. Sewell told Sergeant Lacy that he had been living at 42 West Brookville Road since July 5, 2011, and also indicated that he had a letter from a pastor of the church. Sewell stated that he had intended to show the letter to the prosecuting attorney but had not done so yet. Sergeant Lacy reminded Sewell that he could not reside within 1,000 feet of the church. The officer recalled that Sewell had always been fairly easy to get along with, but that he liked to argue. The officer found Sewell’s arguments to be unproductive because the officer enforces the law and does not make the law.

The State charged Sewell with one count of residing within 1,000 feet of a youth program center. At the conclusion of his bench trial, the trial court found Sewell guilty and sentenced him to one and one-half years in the Department of Correction with six months suspended to probation. Sewell now appeals.

DISCUSSION AND DECISION

Sewell argues that there was insufficient evidence to support his conviction. In particular, Sewell argues that there was insufficient evidence that the church was, in fact, a youth program center. Further, he claims that the evidence does not establish that he knowingly or intentionally resided within 1,000 feet of a youth program center. He also argues that there was insufficient evidence to establish that he was an offender against children.

Our standard of review for sufficiency claims is well settled. In reviewing a claim challenging the sufficiency of the evidence, we do not reweigh the evidence or reassess the credibility of the witnesses. Bond v. State, 925 N.E.2d 773, 781 (Ind.Ct.App.2010). We consider only the evidence most favorable to the judgment and the reasonable inferences drawn therefrom. Id. We will affirm if the evidence and those inferences constitute substantial evidence of probative value to support the verdict. Id.

We first address Sewell’s contention that there was insufficient evidence to establish that the church was a youth program center. In order to convict Sewell, the State was required to prove that, as an offender against children, he knowingly or intentionally resided within 1,000 feet of a youth program center. See Ind.Code § 35-42-4-11. A youth program center is defined by statute as a “building or structure that on a regular basis provides recreational, vocational, academic, social, or other programs or services for persons less than eighteen (18) years of age.” See Ind. Code § 35-31.5-2-357. “The statute neither explicitly nor implicitly places any limitation on the content of the programs offered or the purposes for which children are present.” Whatley v. State, 928 N.E.2d 202, 207 (Ind.2010). “The only relevant characteristic of the programs and services offered ... were whether they were programs provided on a regular basis for persons less than eighteen years of age.” Id. The evidence at trial established that the church at issue holds weekly youth meetings for students in junior high school and high school, some as young as fourteen and fifteen years old, on Sundays at 5:00 p.m. for youth choir, followed by a youth-group meeting. The evidence is sufficient to establish that the church was a youth program center.

Sewell also contends that there was insufficient evidence that he knowingly or intentionally resided within the protected zone around the church in violation of the statute. Sewell emphasizes his testimony and that of Pastor Smith indicating their confusion about the church’s status as a youth program center. However, the records establishes that Pastor Smith was confused about the legislature’s decision that Sewell could attend church services at the church, but could not reside within 1,000 feet of the church. Sewell acknowledged that he had been repeatedly told that the church was a youth program center. Furthermore, the evidence shows that Sewell was repeatedly warned that residing at the proposed address, which was within 1,000 feet of the church, would be in violation of the law. We conclude that the evidence is sufficient to prove that Sewell chose to reside at the proposed address while knowing that it was within 1,000 feet of a youth program center.

Sewell also argues that he was not “properly determined to be an ‘offender against children’ as his conviction was entered in 2001.” Appellant’s Br. at 7. As for Sewell’s claim that the determination is not supported by sufficient evidence, we conclude that it was. Sewell acknowledges that he was convicted of Class C felony child molesting. Child molesting is one of the offenses enumerated in the statute defining an offender against children. See Ind. Code § 35-42-4-11. There was sufficient evidence to support the determination of his status.

In addition, Sewell argues that the statute as applied to him violates the ex post facto prohibition of both the state and federal constitutions. The United States Constitution proves that “[n]o State shall ... pass any ... ex post facto Law.” U.S. Const, art. I, § 10. The Indiana Constitution provides that “[n]o ex post facto law ... shall ever be passed.” Ind. Const, art. I, § 24. The state and federal ex post facto prohibitions “forbid[] the Congress and the States to enact any law ‘which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’” Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 356 (1867)) (footnote omitted). “The underlying purpose of the Ex Post Fact Clause is to give effect to the fundamental principle that persons have a right to fair warning of that conduct which will give rise to criminal penalties.” Wallace v. State, 905 N.E.2d 371, 377 (Ind.2009) (citing Armstrong v. State, 848 N.E.2d 1088, 1093 (Ind.2006)).

“Generally, a challenge to the constitutionality of a criminal statute must be raised by a motion to dismiss prior to trial, and the failure to do so waives the issue on appeal.” Adams v. State, 804 N.E.2d 1169, 1172 (Ind.Ct.App.2004). Here, Se-well failed to file a motion to dismiss prior to trial and has waived his challenge to the constitutionality of the statute.

We reiterate our warning to defendants that cases in which we have addressed the merits of the challenge notwithstanding the waiver, should not be viewed as an “invitation to neglect to file a motion to dismiss and then argue for the first time on appeal that the statute is unconstitutional.” Price v. State, 911 N.E.2d 716, 719 n. 2 (Ind.Ct.App.2009). Waiver notwithstanding, we address Sewell’s constitutional challenge to the statute.

Indiana Code section 35-42-4-11 provides in pertinent part as follows:

(a) As used in this section, and except as provided in subsection (d), “offender against children” means a person required to register as a sex or violent offender under IC 11-8-8 who has been:
(2) convicted of one (1) or more of the following offenses:
(A) Child molesting (IC 35^42-4-3).
A person is an offender against children by operation of law if the person meets the conditions described 'in subdivision (1) or (2) at any time.

Sewell contends that since his conviction for child molesting was entered in 2001 for acts that took place in 2000, application of a statute taking effect in 2006, constitutes a violation of state and federal ex post facto prohibitions and thus, his conviction should be reversed. Sewell relies heavily on our Supreme Court’s opinion in State v. Pollard, 908 N.E.2d 1145 (Ind.2009) in support of his position. He contends that the decision in Pollard stands for the proposition that anyone convicted of an offense listed in Indiana Code section 35-42-4-11 before July 1, 2006, the effective date of the statute, is not subject to its provisions. We disagree with Sewell’s broad interpretation of the holding in Pollard.

In Pollard, the defendant, who had an ownership interest in property within the protected zone for twenty years, and resided there before and after the enactment of the residency offense statute, was charged with violating the statute. The defendant had been convicted of a sex-related offense in 1997 and was charged with violating the residency offense statute in early 2007. Pollard filed a motion to dismiss the charge prior to trial, contending that the statute as applied to him violated ex post facto prohibitions. The trial court agreed and granted Pollard’s motion to dismiss.

After a panel of this court affirmed the trial court on different grounds, the Supreme Court granted transfer and affirmed the trial court’s dismissal on the basis that as applied to Pollard, the statute violated ex post facto prohibitions. 908 N.E.2d at 1154. Nothing about Pollard’s conduct had changed, but the application of the law made previously legal conduct, illegal. The Supreme Court found an ex post facto law violation in Pollard’s case because it affects “one’s freedom to live on one’s own property” and would subject a sex offender to “constant eviction because there is no way for him ... to find a permanent home in that thei’e are no guarantees a school or youth program center will not open within 1,000 feet of any given location.” Id. at 1150. The Supreme Court explicitly held that “as applied to Pollard, the statute violates the prohibition on ex post facto laws....” Id. at 1154.

The prohibition against ex post facto laws applies only when a new law “ ‘imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’ ” Id. at 1149 (quoting Weaver, 450 U.S. at 28, 101 S.Ct. 960). The fact that an element of a crime “ ‘draws upon antecedent facts’ ” does not make Indiana Code section 35-42-4-11 an ex post facto law. United States v. Hemmings, 258 F.3d 587, 594 (7th Cir.2001) (quoting Cox v. Hart, 260 U.S. 427, 435, 43 S.Ct. 154, 67 L.Ed. 332 (1922)). “The critical question in evaluating an ex post facto claim ‘is whether the law changes the legal consequences of acts completed before its effective date.’ ” United States v. Brady, 26 F.3d 282, 291 (2nd Cir.1994) (quoting Weaver, 450 U.S. at 31,101 S.Ct. 960).

In the present case, Sewell did not reside or own property within 1,000 feet of the church when he was convicted of child molesting. Nor has he shown that he resided in property which only later fell within a protected zone due to the establishment of a school or youth program center. Here, the law punishes the decision by Sewell, an offender against children, to take up residence within 1,000 feet of an existing youth program center. We conclude that because Sewell’s residency decision occurred after the enactment of the statute, Sewell’s prosecution does not violate state or federal ex post facto provisions.

Affirmed.

NAJAM, J., and MAY, J., concur.

      . See Ind.Code § 35-42-4-11(c).

      . Without making substantive changes, Public Law 114-2012, SEC. 67 recodified Indiana Code section 35-41-1-29.


author: WENTWORTH, J.

text:
    WIRELESS ADVOCATES, LLC, Petitioner, v. INDIANA DEPARTMENT OF STATE REVENUE, Respondent.
    No. 49T10-1109-TA-60.
    Tax Court of Indiana.
    Aug. 17, 2012.
    Benjamin S.J. Williams, Shambaugh, East, Beck & Williams, LLP, Fort Wayne, IN, Attorneys for Petitioner.
    Gregory F. Zoeller, Indiana Attorney General, John D. Snethen, John P. Low-rey, Deputy Attorneys General, Indianapolis, IN, Attorneys for Respondent.
   ORDER ON RESPONDENT’S MOTION TO DISMISS

WENTWORTH, J.

Wireless Advocates, LLC appeals the Indiana Department of State Revenue’s final determination denying its claim for refund of adjusted gross income tax for the 2006 tax year. The matter is currently before the Court on the Department’s Motion to Dismiss (Motion) for failure to state a claim upon which relief may be granted. The Court finds the Motion should be denied.

FACTS AND PROCEDURAL HISTORY

During the 2006 tax year, Wireless Advocates, a foreign limited liability company, conducted its business in several states, including Indiana. At some point, Wireless Advocates filed a claim with the Department seeking an income tax refund of $6,465 for the 2006 tax year; the Department denied the claim on June 29, 2011.

On September 26, 2011, Wireless Advocates filed a Notice of Appearance and a Verified Petition for Judicial Review to which it attached a three-page letter, the Department’s order denying its refund claim, a postal receipt, a certified mail receipt, and the power of attorney it executed for the administrative proceedings. Thomas Gaisser, a member, vice-president, and chief financial officer of Wireless Advocates, signed the Verified Petition and Notice of Appearance.

On October 28, 2011, the Department filed its Motion, and on November 14, 2011, attorney Benjamin S.J. Williams entered an appearance on behalf of Wireless Advocates. On February 27, 2012, the Court held a hearing on the Department’s Motion at which both parties were represented by counsel.

Additional facts will be supplied as necessary.

ANALYSIS AND ORDER

A motion to dismiss for failure to state a claim upon which relief can be granted tests the legal sufficiency of the claim, not the facts supporting it. See Putnam Cnty. Sheriff v. Price, 954 N.E.2d 451, 453 (Ind.2011). Accordingly, this Court will not dismiss a complaint unless its face clearly demonstrates that the complaining party is not entitled to relief. See Charter One Mortg. Corp. v. Condra, 865 N.E.2d 602, 604 (Ind.2007). Moreover, in considering a motion to dismiss, the Court views the pleadings in the light most favorable to the non-moving party, with every inference drawn in its favor. See id. at 604.

The Department initially explains that Indiana does not require limited liability companies to be represented by counsel in court, in contrast to corporations. (See Resp’t Mem. Supp. Mot. Dismiss (hereinafter “Resp’t Mem.”) at 1-6.) Accordingly, the Department invites the Court to create such a rule as a matter of first impression in this state. (See, e.g., Hr’g Tr. at 4-5.) The Department then asks the Court to dismiss this case because Wireless Advocates, a limited liability company, could not initiate this appeal itself; Gaisser, as a non-attorney, could not initiate this appeal on Wireless Advocates’s behalf; and Gais-ser engaged in the unauthorized practice of law by signing and filing the Verified Petition and Notice of Appearance. (See Resp’t Mem. at 7-9.) The Court declines to invent such a rule where one does not currently exist. Thus, the Court consolidates the Department’s several issues into the one dispositive issue: whether dismissal is the proper remedy in this ease.

When a corporation prosecutes or defends its case pro se and its opponent contests such representation, Indiana courts generally have given the corporation an opportunity to retain counsel, which the corporation must refuse before dismissing the action. See, e.g., State ex. rel. Western Parks v. Bartholomew Cnty. CL, 270 Ind. 41, 383 N.E.2d 290, 292-93 (1978) (prohibiting a court from exercising its jurisdiction until the plaintiff-corporation obtained counsel). Indeed, the Indiana Court of Appeals has explained that a “corporate litigant must be given a fair opportunity to correct its error and retain competent counsel before dismissal would be appropriate.” Christian Bus. Phone Book, Inc. v. Indianapolis Jewish Cmty. Relations Council, 576 N.E.2d 1276, 1277 (Ind.Ct.App.1991). Furthermore, over twenty years ago this Court noted that while an appeal initiated by a non-attorney on a corporation’s behalf is procedurally defective, the defect is curable. Sherry Designs, Inc. v. State Bd. of Tax Comm’rs, 589 N.E.2d 285, 285 n. 1 (Ind. Tax Ct.1992).

The Department maintains, however, that dismissal is the appropriate remedy in this case because both the Clerk of the Court and a certified public accountant advised Wireless Advocates and Gaisser to consult with an attorney before filing this appeal, providing both notice that counsel would be required and a fair opportunity to retain counsel before doing so. (See Hr’g Tr. at 6-7; Resp’t Mem. at 9-10.) Despite this warning, the Department argues that Gaisser purposefully acted as Wireless Advocates’s attorney by filing the Verified Petition, a legal memorandum (ie., the three-page letter), and the Notice of Appearance in “an attempt to game the system and get additional time to hire an attorney.” (See Hr’g Tr. at 13-16; Resp’t Mem. at 8-11.) Therefore, the Department concludes that Wireless Advocates is not deserving of the equitable result of being allowed to cure its procedural mistake. Moreover, the Department claims an equitable result is not imperative in this case because Wireless Advocates had an opportunity to be heard when its refund claim was reviewed by the Department during the administrative process. (See Hr’g Tr. at 9-10, 16 (citing Simmons v. Carter, 576 N.E.2d 1278 (Ind.Ct.App.1991); Christian Bus. Phone Book, 576 N.E.2d at 1277).) The Court finds the Department’s reasoning unpersuasive.

[3,4] “Dismissal is a remedy which is not favored in this state because ‘in our system of justice the opportunity to be heard is a litigant’s most precious right and should be sparingly denied.’ ” Christian Bus. Phone Book, 576 N.E.2d at 1277 (citation omitted). Wireless Advocates’s petition reveals nothing to defeat an equitable result — there is no evidence of undue delay, bad faith, or dilatory motive on either Wireless Advocates’s or Gaisser’s part in obtaining counsel. Instead, Wireless Advocates obtained counsel of its own volition just nine days, excluding both weekends and recognized holidays, after the Department filed its Motion. Moreover, the administrative review of Wireless Advocates’s refund claim is not a substitute for its right to be heard in this Court, which has a statutory duty to review the Department’s denial of refund claims de novo. See Indiana Dep’t of Revenue v. Miller Brewing Co., No. 49S10-1203-TA-136, 2012 WL 3043163, at *3 (Ind.2012); Ind.Code § 6-8.1-9-l(d) (2012). Therefore, the Court finds that Wireless Advocate’s petition does not deserve the terminal result of dismissal. Accordingly, the Department’s Motion is DENIED, and the Court ORDERS the Department to file its Answer within thirty (30) days of the date of this Order.

SO ORDERED.

      . See also Ind.Code § 34-9-l-l(c) (2012) (mandating that corporations, among others, be represented by counsel in certain instances).

      . Indiana Small Claims Rule 8(C)(3) requires that limited liability companies be represented by counsel in matters exceeding $1,500. See Ind. Small Claims Rule 8(C)(3). Nonetheless, the Court need not determine the applicability of this Rule to its proceedings or if Gaisser engaged in the unauthorized practice of law because the Rule was not mentioned by either attorney, unauthorized practice of law determinations are within the province of the Indiana Supreme Court, and the case is decided on other grounds.

      .The Department, however, admits that the Clerk advised Wireless Advocates (via Gais-ser) to consult with an attorney for assistance in correcting its original defective filing (i.e., the three-page letter), not to warn Wireless Advocates that it must be represented by counsel because it is a limited liability company. (See Hr’g Tr. at 9-11; Resp’t Mem. at 10.)

        .See generally, e.g., Palazzo v. Gulf Oil Corp., 764 F.2d 1381 (11th Cir.1985); Jones v. Niagara Frontier Trans. Auth., 722 F.2d 20 (2nd Cir.1983); Strong Delivery Ministry Ass’n v. Board of Appeals, 543 F.2d 32 (7th Cir. 1976) (all affirming a trial court’s dismissal of a corporate litigant’s case after trial court advised the corporate litigant to retain counsel, but the corporate litigant refused).

        .See Ind. Trial Rule 6(A).


text:
    In the Matter of Blair A. BROWN, Respondent.
    No. 01S00-1004-DI-199.
    Supreme Court of Indiana.
    Aug. 30, 2012.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: In 1989, Respondent was appointed to pursue a criminal appeal for a client who had been sentenced to 100 years on two child molestation convictions. After Respondent filed a defective motion for extension of time to file the record and failed to timely file the record of proceedings, the appeal was dismissed in 1990. He did not inform the client of the dismissal. Despite telling a deputy state public defender and the trial court that he would pursue the ease, he delayed taking any action until 1993, when he requested and was granted leave to file a belated motion to correct error. After the motion was denied, Respondent failed to inform his client and took no further action. Over the years, Respondent repeatedly failed to respond to the client’s requests for information about the status of the appeal. In 2007, the client, pro se, requested the trial court to appoint new appellate counsel. The trial court appointed the State Public Defender, who filed a belated appeal. The Court of Appeals affirmed the client’s convictions in 2009, nearly 20 years after he was convicted.

The parties cite the following facts in aggravation: (1) The client was vulnerable and reliant on Respondent as a result of his incarceration, and he had to go through extraordinary efforts to exercise his right to appeal his convictions; and (2) Respondent’s pattern of misconduct for nearly twenty years, even when the issue was repeatedly brought to his attention, demonstrates a complete disregard for his client’s rights and the burden he placed on others. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent was cooperative with the Commission and with the State Public Defender; (3) Respondent is remorseful; (4) Respondent’s misconduct was not due to a dishonest or selfish motive; (5) Respondent has a reputation for being a diligent and conscientious practitioner; and (6) Respondent has served on the board of Maumee Valley Legal Services and has provided pro bono legal services for indigent clients.

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

1.3: Failure to act with reasonable diligence and promptness.

1.4(a): Failure to keep a client reasonably informed about the status of a matter.

1.4(b): Failure to explain a matter to the extent reasonably necessary to permit a client to make informed decisions.

Discipline: The parties propose the appropriate discipline is a 30-day suspension with automatic reinstatement. The Court, having considered the submissions of the parties, now approves the agreed discipline.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 30 days, beginning October 12, 2012. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the period of suspension, provided there are no other suspensions then in effect, Respondent shall be automatically reinstated to the practice of law, subject to the conditions of Admission and Discipline Rule 23(4)(c).

The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of John L. STEWART, Respondent.
    No. 49S00-12O4-DI-219.
    Supreme Court of Indiana.
    Aug. 30, 2012.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have ■ submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: Count 1: Based on an incident on January 6, 1998, Respondent pled guilty to class C misdemeanor operating a vehicle with a 10% blood alcohol or more. Count 2: Based on an incident on November 3, 2007, Respondent pled guilty to class C misdemeanor operating a vehicle while intoxicated (“OWI”). Count 3: Based on an incident on March 31, 2011, Respondent was convicted by a jury of OWI with a prior conviction, a class D felony, and related misdemeanors. Respondent did not report the convictions of Counts 1 and 2 to the Commission.

The parties cite no facts in aggravation. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent is working with Indiana Judges and Lawyers Assistance Program (“JLAP”) to address his chemical dependency and has refrained from alcohol for over one year; (3) in 2011, Respondent was suffering from personal and emotional problems stemming from the death of his girlfriend; (4) Respondent’s failure to report his first two convictions resulted from his misunderstanding of the reporting requirement; and (5) his disclosure of the arrest in Count 3 prior to conviction demonstrates his acceptance of responsibility and cooperation with the Commission.

The Commission filed a “Notice of Guilty Finding and Request for Suspension” on April 16, 2012, seeking interim suspension based on Respondent’s felony conviction alleged in Count 3 under Admis. Disc. R. 23(1 l)(a). The Court granted the request for interim suspension on July 5, 2012, effective July 20, 2012.

Violations: The parties agree that Respondent violated the following rules:

Ind. Professional Conduct Rules 8.4(b): Committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.
Ind. Admission and Discipline Rule 23(ll.l)(a)(2): Failure to notify the Commission of a guilty finding, and failure to transmit a certified copy of a guilty finding to the Commission within ten days of the finding.

Discipline: The Court, having considered the submission of the parties, now approves the following agreed discipline.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 180 days, beginning July 20, 2012 (the effective date of his interim suspension), with 90 days actively served and the remainder stayed subject to completion of at least two years of probation. The Court incorporates by reference the terms and conditions of probation set forth in the parties’ Conditional Agreement, which include:

(1) Respondent shall pay the costs of this action and comply with JLAP monitoring and requirements during his probation.
(2) Respondent shall maintain complete alcohol abstinence during his probation.
(3) Respondent shall have no violations of the criminal laws or Indiana or the Rules of Professional Conduct during his probation.
(4) If Respondent violates his probation, the Commission will petition to revoke his probation and request the balance of the stayed suspension be actively served without automatic reinstatement, and Respondent may be reinstated only through the procedures of Admission and Discipline Rule 23(4) and (18).

Respondent shall fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26). Notwithstanding the expiration of the minimum term of probation set forth above, Respondent’s probation shall remain in effect until it is terminated pursuant to a petition to terminate probation filed under Admission and Discipline Rule 23(17.1).

The costs of this proceeding are assessed against Respondent.

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Patrick M. SCHREMS, Respondent.
    No. 53S00-0901-DI-35.
    Supreme Court of Indiana.
    Aug. 30, 2012.
   PUBLISHED ORDER GRANTING CONDITIONAL REINSTATEMENT

By order dated March 11, 2010, this Court suspended Petitioner for not less than six months without automatic reinstatement. Petitioner filed a petition for reinstatement on June 7, 2011. On July 18, 2012, the Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 23(18)(b), filed its recommendation that Petitioner be reinstated to the practice of law in Indiana conditioned on certain terms of probation.

A petition for reinstatement may be granted only if the petitioner proves to the Commission by clear and convincing evidence that:

(1) The petitioner desires in good faith to obtain restoration of his or her privilege to practice law;
(2) The petitioner has not practiced law in this State or attempted to do so since he or she was disciplined;
(3) The petitioner has complied fully with the terms of the order for discipline;
(4) The petitioner’s attitude towards the misconduct for which he or she was disciplined is one of genuine remorse;
(5) The petitioner’s conduct since the discipline was imposed has been exemplary and above reproach;
(6) The petitioner has a proper understanding of and attitude towards the standards that are imposed upon members of the bar and will conduct himself or herself in conformity with such standards;
(7) The petitioner can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and an officer of the Courts;
(8) The disability has been removed, if the discipline was imposed by reason of physical or mental illness or infirmity, or for use of or addiction to intoxicants or drugs;
(9)The petitioner has taken the Multi-state Professional Responsibility Examination (MPRE) within six (6) months before or after the date the petition for reinstatement is filed and passed with a scaled score of eighty (80) or above.

Admis. Disc. R. 23(4)(b).

This Court, being duly advised, finds that the recommendation of the Disciplinary Commission should be accepted and that, accordingly, Petitioner should be conditionally reinstated as a member of the Indiana bar and placed on probation for a period of no less than two years. The Court incorporates by reference the recommended terms and conditions of probation, which include:

• Petitioner shall continue his monitoring agreement with the Indiana Judges and Lawyers Assistance Program.
• Petitioner shall implement a plan for office and time management with the assistance of an assisting attorney and a professional in office and time management.
• Petitioner shall meet regularly with the assisting attorney to monitor the implementation of and compliance with the plan for office and time management.
• The Commission shall be notified immediately of any noncompliance with the terms of his probation.

In addition:

• Petitioner shall have no violations of the his JLAP monitoring agreement, the law, or the Rules of Professional Conduct during his probation.
• If Petitioner violates his probation, the Commission may petition to revoke his probation and request his suspension be re-imposed without automatic reinstatement.

Petitioner’s probation shall remain in effect until it is terminated pursuant to Admission and Discipline Rule 23(17.1).

IT IS, THEREFORE, ORDERED that Petitioner’s petition for reinstatement is granted and that Petitioner is conditionally reinstated as a member of the Indiana bar subject to the terms and conditions of probation stated above. Petitioner shall pay any costs owing under Admis. Disc. R. 23(18)(d).

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    STATE FARM FIRE & CASUALTY CO., Appellant, v. Joseph Martin RADCLIFF, et al., Appellees.
    No. 29A04-1111-CT-571.
    Supreme Court of Indiana.
    Sept. 5, 2012.
   PUBLISHED ORDER

Appellant, State Farm Fire & Casualty Company, by counsel, has filed a Motion to Direct Clerk to File Appellant’s Petition to Transfer (“Motion To Direct”) and has tendered its transfer petition. The Appellees have filed their response asking this Court to deny Appellant’s Motion to Direct.

Based on the parties’ submissions, the Court finds as follows. Appellant initiated this appeal in the Court of Appeals. One week before its opening brief was due to be filed, Appellant filed a verified motion to remand to the trial court pursuant to Indiana Appellate Rule 37 and the procedure outlined in Logal v. Cmse, 267 Ind. 83, 368 N.E.2d 235 (1977). Appellant sought a remand that would allow the trial court to address Appellant’s motion for relief under Trial Rule 60(B). On July 13, 2012, the Court of Appeals denied Appellant’s motion for remand, and it later granted Appellees an extension of time to file their brief, to and including September 11, 2012.

On August 10, 2012, Appellant tendered a petition to transfer, which the Clerk of this Court refused for filing.

Appellant argues it has a right to petition for transfer of the Court of Appeals’ order denying Appellant’s motion to remand. Appellant relies on language in Logal that provided a procedure for requesting a remand and stated, “If the appellate court denies the application for remand, that ruling may be assigned as grounds for rehearing and, where appropriate, transfer.” 267 Ind. at 87, 368 N.E.2d at 237.

When Logal was decided thirty-five years ago, our transfer rule referred to transfer being sought from a “decision” of the Court of Appeals. See Ind. Appellate Rule 11 (1977). Since then, the transfer rule has been amended several times. These amendments have narrowed the type of decision that may be the subject of a transfer petition. Now, the transfer rule reads, in relevant part:

B. Decisions From Which Transfer May be Sought. Transfer may be sought from adverse decisions issued by the Court of Appeals in the following form:
(1) a published opinion;
(2) a not-for-publication memorandum decision;
(3) any amendment or modification of a published opinion or a not-for-publication memorandum decision; and
(4) an order dismissing an appeal.
Any other order by the Court of Appeals, including an order denying a motion for interlocutory appeal under Rule 14(B) or 14(C) and an order declining to authorize the filing of a successive petition for post conviction relief, shall not be considered an adverse decision for the purpose of petitioning to transfer, regardless of whether rehearing by the Court of Appeals was sought.

Ind. Appellate Rule 57(B) (2012).

Thus, notwithstanding the language in Logoi, the current transfer rule, Appellate Rule 57(B), precludes Appellant from filing its transfer petition because the Court of Appeals has not issued an “adverse decision” in one of the four enumerated forms listed in that rule.

Accordingly, the Court DENIES Appellant’s Motion to Direct and instructs the Clerk of this Court to return the transfer petition and all copies of it to Appellant’s counsel.

The Court further DIRECTS the Clerk to post a copy of this order on the Court’s website and to send a copy of this Order to all counsel of record, to LexisNexis, and to Thomson/Reuters for publication on-line and in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Brian L. NEHRIG, Respondent.
    No. 29S00-0704-DI-168.
    Supreme Court of Indiana.
    Sept. 7, 2012.
   PUBLISHED ORDER FINDING RESPONDENT IN CONTEMPT OF COURT, EXTENDING REMOVAL FROM PRACTICE, AND IMPOSING FINE

The Honorable Lawrence D. Giddings was appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission’s verified motion for rule to show cause why the respondent, Brian L. Nehrig (“Nehrig”), should not be held in contempt of this Court for practicing law and otherwise violating his duties as an attorney who resigned from the bar. Upon review of the hearing officer’s report, the Court finds that Nehrig engaged in actions in contempt of this Court and imposes punishment on him.

Background: Prior to his resignation, Nehrig was charged by the Commission with engaging in a pattern of fraudulent practices in representing a mortgage company in foreclosure actions, including his alteration of sheriffs deeds. As a result, the mortgage company was deprived of the opportunity to obtain title to the foreclosed properties and resell them at higher prices. Instead, entities with which Neh-rig was affiliated had the opportunity to resell the properties at a profit. The Court granted the Commission’s petition for interim suspension, effective June 28, 2007. Nehrig tendered an affidavit of resignation under Admis. Disc. R. 23(17), which required him to acknowledge “that the material facts so alleged are true” and that “if the proceeding were prosecuted, he ... could not successfully defend himself. ...” Id. The Court accepted his resignation on August 13, 2007, resulting in his removal from practice for at least five years. See Admis. Disc. R. 23(4)(a).

Contempt Proceeding: The Commission filed a “Verified Motion for Rule to Show Cause” on February 25, 2011, asserting Nehrig maintained a presence at the law office of John R. McManus, Jr. (“the McManus Firm”), in violation of Admis. Disc. R. 23(26)(b), and that he practiced law in this state while barred from doing so. The Court issued an order to show cause directing Nehrig to show cause why he should not be held in contempt. Neh-rig filed a response, and this Court appointed a hearing officer to hear this matter and the related case against John R. McManus, Jr. (“McManus”), Cause No. 29S00-1104-DI-212, which is decided on this date by separate order. The hearing officer filed his consolidated report on both cases on June 8, 2012, making findings of fact summarized below, supplemented by Nehrig’s testimony.

McManus permitted Nehrig to occupy office space at the McManus Firm in exchange for monthly rent. McManus regarded Nehrig as an independent contractor. At various times, Nehrig was held out to be a “legal assistant” or “paralegal.” Nehrig appeared as a staff member in a photograph on the firm’s website. His duties included legal research, consulting with McManus, and non-legal cleaning and maintenance duties. Nehrig’s primary focus was facilitating “short sales” of real estate. McManus supervised Nehrig with respect to short sales conducted from the office. The bulk of Nehrig’s referrals were from the real estate broker community. Although Nehrig asserted that no negotiations occurred during the short sale process, with the lender/creditor presented with a take-it-or-leave-it proposal, this was not always the case. If a short sale was successful, Nehrig was paid at closing. Nehrig also spent a substantial amount of time outside the law office facilitating additional short sales and providing other services for third parties, such as working on tax issues, negotiating settlements of credit card disputes, and negotiating loan modifications.

Nehrig opened a checking account in the name of “Brian Nehrig d/b/a McManus & Associates,” without McManus’s knowledge. He used this account to deposit checks that were made out to the Mc-Manus Firm for his short sales work. He testified that he also directed checks for work not involving short sales to be made out to McManus & Associates and that he deposited the cheeks into this account for his own use.

The hearing officer concluded that Neh-rig violated his duties as an attorney who resigned from the bar by practicing law while removed from practice and by maintaining a presence at the McManus Firm.

Neither party filed a petition for review of the hearing officer’s findings or a brief challenging the hearing officer’s conclusions of law. When neither party challenges the findings of the hearing officer, “we accept and adopt those findings but reserve final judgment as to misconduct and sanction.” Matter of Levy, 726 N.E.2d 1257,1258 (Ind.2000).

Violations: This Court has not attempted to provide a comprehensive definition of what constitutes the practice of law, see Miller v. Vance, 463 N.E.2d 250, 251 (Ind. 1984), but it is clear the core element of practicing law is the giving of legal advice to a client. See State ex rel. Indiana State Bar Ass’n v. Northouse, 848 N.E.2d 668, 672 (Ind.2006). The practice of law includes making it one’s business to act for others in legal formalities, negotiations, or proceedings. See Matter of Mittower, 693 N.E.2d 555, 558 (Ind.1998). The Court agrees with the hearing officer’s conclusion that some of Nehrig’s activities crossed the line into the unauthorized practice of law— a conclusion Nehrig has not challenged.

Admission and Discipline Rule 23(26)(b) states: “Upon receiving notice of the order of suspension or disbarment, the respondent shall not undertake any new legal matters between service of the order and the effective date of the discipline. Upon the effective date of the order, the respondent shall not maintain a presence or occupy an office where the practice of law is conducted. ...” Nehrig contends that this rule does not apply to him because he resigned from the bar rather than being suspended or disbarred. Nehrig is wrong:

Attorneys that resign from the Bar are required to comply with the provisions of Ind. Admission and Discipline Rule 23, § 26, including the requirement that they not maintain a presence or occupy an office where the practice of law is conducted. Admis. Disc. R. 23, § 26(b). Those who choose to ignore this prohibition run the risk of a fine, incarceration, or both.

Matter of McLaren, 850 N.E.2d 400 (Ind.2006) (emphasis added). We conclude that Nehrig violated this rule by maintaining a presence at the McManus Firm.

Punishment: This Court has inherent and statutory authority to punish contempt of court. See Matter of Mittower, 693 N.E.2d 555, 559 (Ind.1998). In determining an appropriate punishment, the Court considers, among other factors, any continuing risk to the public or profession. See id.

In violation of his resignation from the bar, Nehrig worked in a law office and he engaged in activities that crossed the line into the practice of law, some of which were in the very field — real estate transactions — in which the charges leading to his resignation occurred. By using a bank account with the d/b/a of a law firm and directing third parties to make checks out for him using a law firm name, Nehrig held himself out as an attorney.

Nehrig’s violation of the order accepting his resignation was on-going, pervasive, and deliberate, and it exposed the public to the danger of misconduct by Nehrig, who has yet to prove his remorse, rehabilitation, and fitness to practice law through the reinstatement process. See Admis. Disc. R. 23(4)(b). Under these circumstances, the Court concludes that a substantial fine and an extension of his removal from practice is warranted.

The Court therefore ORDERS that Nehrig be fined the sum of $1,000. Neh-rig shall remit this amount within 60 days of the date of this order to the Clerk of the Indiana Supreme Court, Court of Appeals and Tax Court. In addition, the Court extends Nehrig’s removal from practice for an additional 120 days, effective at the end of his five-year removal from practice, which began August 13, 2007.

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

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of John T. McMANUS, Jr., Respondent.
    No. 29S00-1104-DI-212.
    Supreme Court of Indiana.
    Sept. 7, 2012.
   PUBLISHED ORDER FINDING MISCONDUCT AND IMPOSING DISCIPLINE '

Upon review of the report of the hearing officer, the Honorable Lawrence D. Gid-dings, who was appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission’s “Verified Complaint for Disciplinary Action,” the Court finds that Respondent engaged in professional misconduct and imposes discipline on Respondent.

Facts: This case is related to an action against Brian L. Nehrig (“Nehrig”), Cause No. 29S00-0704-DI-168, which is decided on this date by separate order. Nehrig tendered an affidavit of resignation under Admis. Disc. R. 23(17), which the Court accepted on August 18, 2007. This resulted in Nehrig’s removal from practice for at least five years. See Admis. Disc. R. 28(4)(a). On February 25, 2011, the Commission filed a Verified Motion for Rule to Show Cause against Nehrig alleging that he engaged in a number of acts in violation of his resignation from practice, including maintaining a presence at Respondent’s law office (“the McManus Firm”) in violation of Admis. Disc. R. 23(26)(b) and practicing law while at the McManus Firm.

On April 12, 2011, the Commission filed a verified complaint against Respondent, alleging that he assisted Nehrig in the unauthorized practice of law in violation of Professional Conduct Rule 5.5(a). The hearing officer filed his consolidated report for both cases on June 8, 2012, making findings of fact summarized below.

Respondent attempted to help Nehrig in maintaining a livelihood after his resignation by offering him office space in exchange for monthly rent, with full knowledge of Nehrig’s resignation. Respondent exercised supervision and control over Nehrig’s activities in the law office. Respondent regarded Nehrig as an independent contractor. At various times, Nehrig was held out to be a “legal assistant” or “paralegal.” He appeared as a staff member in a photograph on the firm’s website. Respondent never heard Nehrig represent himself as an attorney and often heard him tell third parties that he was not an attorney. Nehrig’s duties included some legal research, consulting with Respondent, and non-legal cleaning and maintenance duties. Nehrig’s primary focus was facilitating “short sales” of real estate. Respondent supervised Nehrig with respect to short sales conducted from the office. Respondent did not regard the short sale work done in his office as constituting the practice of law. Nehrig departed the Mc-Manus Firm in March 2011.

Nehrig also spent a substantial amount of time outside the law office facilitating additional short sales and providing other services for third parties, such as working on tax issues, negotiating settlements of credit card disputes, and negotiating loan modifications. Respondent was not aware of Nehrig’s “outside activities.”

The hearing officer concluded that Neh-rig engaged in activities that crossed the line into the practice of law and improperly maintained a presence at the McManus Firm — a conclusion with which this Court agrees. The hearing officer concluded that Respondent violated Rule 5.5(a) by assisting Nehrig, “albeit indirectly,” in the unauthorized practice of law.

Neither party filed a petition for review of the hearing officer’s findings or a brief challenging the hearing officer’s conclusions of law. When neither party challenges the findings of the hearing officer, “we accept and adopt those findings but reserve final judgment as to misconduct and sanction.” Matter of Levy, 726 N.E.2d 1257, 1258 (Ind.2000).

Violations: “Attorneys that resign from the Bar are required to comply with the provisions of Ind. Admission and Discipline Rule 23, § 26, including the requirement that they not maintain a presence or occupy an office where the practice of law is conducted.” Matter of McLaren, 850 N.E.2d 400 (Ind.2006). An attorney who assists another attorney in violating this “No Presence Rule” may be subject to discipline. See Matter of Anonymous, 787 N.E.2d 883 (Ind.2003). We note, however, that the Commission charged Respondent only with aiding Nehrig in the unauthorized practice of law, not with aiding him in violating the No Presence Rule.

We agree with the hearing officer’s conclusion that Respondent violated Professional Conduct Rule 5.5 by assisting Neh-rig in the unauthorized practice of law — a conclusion which Respondent does not challenge at this point in the proceedings.

Discipline: Respondent did not believe Nehrig was crossing the line into the practice of law in his short sale work and was unaware of Nehrig’s improper outside activities. Respondent’s primary motivation appears to have been to help Nehrig make a living after his resignation, and Respondent has no disciplinary history. We conclude that a public reprimand is appropriate under the circumstances.

For Respondent’s professional misconduct, the Court imposes a public reprimand. The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Deborah S. Davis JULIAN (f/k/n Kubley), Respondent.
    No. 41S00-1201-DI-37.
    Supreme Court of Indiana.
    Sept. 7, 2012.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: Respondent admits to six counts of professional misconduct occurring from 2008 through 2011. The misconduct consists of: neglecting clients’ cases, failing to do the work for which she was hired, failing to inform clients about the status of their cases and respond to their reasonable requests for information, failing to appear at a pretrial conference and at hearings, failing to inform a client of when a hearing had been set, failing to disclose this fact to the court, failing to take court-mandated steps to prevent dismissal of a client’s case, failing to refund unearned fees, and failing to cooperate with the Commission’s requests for responses to grievances and a subpoena duces tecum.

The parties cite no facts in aggravation. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history for professional misconduct; and (2) she has completed a 90-day residential treatment program for alcohol addiction and continues to receive assistance from Indiana Judges and Lawyers Assistance Program (“JLAP”).

The Court notes the following dues nonpayment and noncooperation suspensions, which this Court considers to be an aggravating fact:

Dues nonpayment suspension, 5/5/09; reinstated 5/30/08.
53S00-1007-DI-371: Show cause petition filed 7/4/10. Dismissed with costs 8/23/10.
53S00-1009-DI-491: Show cause petition filed 9/14/10. Suspended for noncooperation on 12/27/10. Reinstated on certificate of compliance 9/19/11.
53S00-1012-DI-653: Show cause petition filed 12/01/10. Suspended for noncooperation on 3/18/11. Reinstated on certificate of compliance 10/17/11.
41S00-1112-DI-696: Show cause petition filed 12/15/11. Suspended for noncooperation 2/15/12. Still in effect.

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

1.3: Failure to act with reasonable diligence and promptness.
1.4(a)(3): Failure to keep a client reasonably informed about the status of a matter.
1.4(a)(4): Failure to comply promptly with a client’s reasonable requests for information.
1.16(d): After the termination of representation, failure to protect a client’s interests and failure to refund an unearned fee.
3.3: Failing to disclose a material fact to a tribunal.
8.1(b): Knowingly failing to respond to a lawful demand for information from an admissions or disciplinary authority.

Discipline: The parties propose the appropriate discipline is a two-year suspension, with the following terms:

• Respondent shall continue with JLAP monitoring and any treatment deemed necessary and appropriate by JLAP.
• Her compliance with all JLAP conditions shall be a condition precedent to consideration of any future request for reinstatement to the bar.

The Court, having considered the submissions of the parties, now approves the agreed discipline.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than two years, without automatic reinstatement, effective as of the date of this order. Respondent shall fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, complies with the agreed terms of suspension set forth above, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4). Reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur, except DAVID, J., who dissents, believing that the discipline is insufficient and that disbarment is appropriate.


text:
    In the Matter of Janice R. GAMBILL, Respondent.
    No. 64S00-1109-DI-562.
    Supreme Court of Indiana.
    Sept. 7, 2012.
   PUBLISHED ORDER FINDING MISCONDUCT AND IMPOSING DISCIPLINE

Upon review of the report of the hearing officer, the Honorable Sheila M. Moss, who was appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission’s “Verified Complaint for Disciplinary Action,” the Court finds that Respondent engaged in professional misconduct and imposes discipline on Respondent.

Facts: In April 2008, a client retained Respondent to file a legal malpractice action against an Illinois attorney who represented the client in a personal injury case in an Illinois state court, which had been dismissed for want of prosecution. Respondent filed a personal injury action for the client in the Northern District of Indiana, which was dismissed as being filed beyond the statute of limitation. Respondent did not respond to the client’s requests for information about his legal malpractice action. She then falsely told him a legal malpractice action had been filed in the Northern District of Indiana, that the lawyer had a certain deadline to respond to it, giving him the cause number of the personal injury action that had been dismissed. She canceled two appointments with the client, and then, on July 13, 2010, filed a legal malpractice action against the Illinois attorney in the Northern District of Indiana.

The client terminated Respondent’s services and hired new counsel to pursue a legal malpractice action against Respondent. The new counsel also moved to dismiss the action against the Illinois attorney filed by the Respondent and initiated a new action.

A fact in aggravation is Respondent’s disciplinary history. While representing clients in three family law matters, Respondent neglected their cases, failed to consult and communicate with the clients, failed to return an unearned fee to one client, and made false statements to the Commission. The Court approved an agreed six-month suspension, with 60 days served followed by at least 18 months of probation. See Matter of Gambill, 894 N.E.2d 523 (Ind.2008). Probation is still in effect because she has not yet petitioned for release under Admis. Disc. R. 23(17.1). We note that Respondent was on probation when the current misconduct occurred. Her disciplinary history also includes:

Continuing legal education noncompliance suspension, 4/21/03; reinstated 5/16/03.
64S00-1202-DI-91. Show cause petition filed 2/14/12. Dismissed with costs 3/13/12.
64S00-1204-DI-225. Show cause petition filed 4/17/12. Dismissed with costs 8/17/12.
64S00-1206-DI-351. Show cause petition filed 6/20/12. Dismissed with costs 7/26/12.

Violations: The Court finds that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

1.1: Failure to provide competent representation.
1.2(a): Failure to abide by a client’s decisions concerning the objectives of representation.
1.3: Failure to act with reasonable diligence and promptness.
1.4(b): Failure to explain a matter to the extent reasonably necessary to permit a client to make informed decisions.
8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

Discipline: For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than six months, without automatic reinstatement, beginning October 19, 2012. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4). Reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

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

The Clerk is directed to forward a copy of this Order to the hearing officer; to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.