author: Friedlander, Senior Judge.

text:
    ZURICH AMERICAN INSURANCE COMPANY; Schindler Elevator Corporation; and KONE, Inc., Appellants-Defendants, v. CIRCLE CENTRE MALL, LLC; Simon Property Group, Inc.; and XL Insurance America, Inc., Appellees-Plaintiffs.
    Court of Appeals Case No. 29A05-1710-PL-2223
    Court of Appeals of Indiana.
    FILED November 7, 2018 Rehearing denied January 2, 2019
    Attorneys for Appellant Zurich American Insurance Company: Kevin S. Smith, Church, Church, Hittle & Antrim, Fishers, Indiana, Charles S. Smith, Schultz & Pogue, Indianapolis, Indiana, Brian O'Gallagher, Cremer, Spina, Shaugnessy, Jansen & Siegert, LLC, Chicago, Illinois
    Attorneys for Appellees: Michael R. Limrick, Hoover Hull Turner LLP, Indianapolis, Indiana, Gregory A. Neibarger, Bingham Greenebaum Doll LLP, Indianapolis, Indiana
    Attorneys for Interested Party Schindler Elevator Corporation: Kevin C. Schiferl, Maggie L. Smith, Blake N. Shelby, Frost Brown Todd LLC, Indianapolis, Indiana

      Schindler and Kone are parties on appeal pursuant to Indiana Rule of Appellate Procedure 17(A), which provides, in part, that "[a] party of record in the trial court or Administrative Agency shall be a party on appeal."

   Friedlander, Senior Judge.

[1] In 2009, Schindler Elevator Corporation had a contract with Circle Centre Mall, LLC and Simon Property Group, Inc. (collectively, "the Simon Plaintiffs") to maintain the escalators at the Circle Centre Mall in Indianapolis. KONE, Inc. had the maintenance contract before 2009. Schindler's general liability insurer in 2009 was Zurich American Insurance Company. In October of 2009, high school student Phillip Caler fell from an escalator in the mall and sustained severe injuries, and, in 2011, Caler's guardians sued the Simon Plaintiffs, Schindler, and KONE, claiming, inter alia , that Schindler had negligently maintained the escalator from which Caler had fallen and had failed to warn the Simon Plaintiffs of the need for fall protection.

[2] As part of Schindler's maintenance contract with the Simon Plaintiffs, Schindler agreed to name the Simon Plaintiffs as additional insureds pursuant to its policy with Zurich. Moreover, Zurich had a separate, so-called "fronting" agreement with Schindler requiring that any money that might have to be paid to the Simon Plaintiffs pursuant to their insurance contract was to ultimately come from Schindler, not Zurich. In August of 2011 and December of 2012, the Simon Plaintiffs asked Schindler for a defense of the Caler suit by both Schindler and Zurich. Schindler denied the Simon Plaintiffs' requests on the basis that any request for coverage under Schindler's policy should have been made to Zurich.

[3] In March of 2013, the Simon Plaintiffs asked Zurich directly for defense and indemnification in the Caler suit. On April 1, 2013, the Simon Plaintiffs filed a complaint in Hamilton Superior Court against Schindler and KONE, contending that the defendants had breached their contractual duties to them in the Caler suit. On June 21, 2013, Zurich responded to the Simon Plaintiffs' request for a defense in the Caler suit with a reservation-of-rights letter, agreeing to defend the Simon Plaintiffs. Zurich represented that it and Schindler had assigned their third-party claim administrator, Broadspire Services, Inc., to "assist in the defense or resolution of this matter on behalf of both Schindler and SIMON." Appellants' App. Vol. V, p. 202. On July 25, 2013, after learning that Schindler was planning to settle the Caler suit, the Simon Plaintiffs wrote to ask whether Zurich would indemnify a settlement by the Simon Plaintiffs. When Zurich did not respond, the Simon Plaintiffs agreed, in principle, to settle the Caler suit on July 26, 2013.

[4] On June 17, 2014, the Simon Plaintiffs and XL Insurance filed a second lawsuit in Marion Superior Court against Zurich and KONE's insurer Old Republic Insurance Company. This lawsuit alleged the Simon Plaintiffs were additional insureds under Schindler's and KONE's insurance policies with Zurich and Old Republic, respectively, giving rise to duties on the part of Zurich and Old Republic to defend and indemnify the Simon Plaintiffs in the Caler suit. The Simon Plaintiffs specifically alleged that not only had Zurich and Old Republic breached their contractual duties to them, they had also breached their duties of good faith and fair dealing. The Simon Plaintiffs sought $960,310.14 in defense costs and $2,000,000.00 of the amount they had paid to settle the Caler lawsuit, or Zurich's policy limit. On May 19, 2015, the two lawsuits filed in Hamilton and Marion Counties were consolidated into the Hamilton County case from which this appeal was taken. While the original 2013 complaint had alleged that Schindler and Kone had contractual duties to defend the Simon Plaintiffs, on March 7, 2016, the trial court permitted the Simon Plaintiffs to amend their complaint to allege duties to indemnify as well.

[5] During the litigation, a discovery dispute arose about whether Zurich had to produce documents exchanged between Schindler and Zurich during the Caler litigation. On September 22, 2016, the Simon Plaintiffs moved to compel the production of many such documents, which motion Zurich and Schindler opposed, claiming that the documents were protected by the work-product doctrine and/or the attorney-client and/or insurer-insured privileges. Following a hearing on February 2, 2017, the trial court granted the Simon Plaintiffs' motion to compel.

[6] In response to the court's order of February 2, 2017, Zurich produced nearly 300 pages of documents over which Zurich had previously asserted privilege but continued to withhold a total of five documents ("the Group I Documents"). The Group I Documents, which were first sought in the Simon Plaintiffs' September 22, 2016, motion to compel production, are described in Zurich's privilege log as follows:

Bates Label Date From To Subject ZURPRI 002-007 March 11, Kevin Tom Quinn The Sinion 2013 Schiferl (Schindler inhouse Plaintiffs' request for (Schindler counsel) insurance coverage outside Yohanny Nguyen counsel) (Schindler paralegal), Vanessa Davis (Schindler outside counsel) ZURPRI 096-097 April 26, Tom Quinn Kathleen Fuel] The Simon 2013, claim (Schindler (Zurich claims Plaintiffs' request for note in-house adjuster), Kevin coverage in Caler enclosing counsel) Schiferl suit March 12, (Schindler 2013, email outside counsel), John Dull (Schindler Risk Manager), John Karnash (Schindler inhouse counsel), Thomas Sparno (Schindler inhouse counsel), Vanessa Davis (Schindler outside counsel) ZURPRI 218 April 25, Kathleen Kevin Schiferl The Simon 2014 Fuell (Schindler Plaintiffs' claim for (Zurich outside counsel) reimbursement of claims attorneys fees adjuster), ZURPRI 235-237 May 2, Kevin Tom Quinn The Simon The Simon 2013 Schiferl (Schindler in house Plaintiffs' request for (Schindler counsel), coverage in Caler outside Vanessa Davis suit counsel) (Schindler outside counsel) ZURPRI 258 July 23, Tom Quinn Kevin Schiferl The Simon 2013 (Schindler (Schindler Plaintiffs' request for in-house outside counsel), coverage in Caler counsel) Vanessa. Davis suit (Schindler outside counsel)

[7] On May 11, 2017, the Simon Plaintiffs filed a motion for sanctions against Zurich and requested the production of the Group I Documents and four more ("the Group II Documents"; collectively with the Group I Documents, "the Documents"), contending that Zurich violated the trial court's February 2, 2017, order by not producing the Documents. The Group II Documents are described as follows:

Bates Label Date From To Subject ZURPRI 196-202 February Venessa Tom Quinn Quarterly 11, 2013; Davis (Schindler inhouse evaluation report provided to (Schindler counsel), regarding Zurich outside Judy Fritzman Schindler's defense March 14, counsel) (Broadspire of Caler lawsuit 2013 Claims Examiner); copied to Yohanny Nguyen (Schindler paralegal), Kevin Schiferl (Schindler outside counsel) ZURPRI 205 February Tom Quinn Judy Fritzman Fault 19, 2013; (Schindler (Broadspire apportionment provided to in-house Claims analysis of Zurich counsel) Examiner), Schindler's defense March 14, Kevin Schiferl of Caler lawsuit 2013 (Schindler outside counsel) ZURPRI 195 March 4, Kevin Tom Quinn Email containing 2013; Schiferl (Schindler in house analysis of an provided to (Schindler counsel); expert in the Caler Zurich outside copied to Judy suit March 14, counsel) Fritzman 2013 (Broadspire Claims Examiner), Yohanny Nguyen (Schindler paralegal), Venessa Davis (Schindler outside counsel) ZURPRI 429 June 24, Venessa Kathleen Fuell Mediation 2013; Davis (Zurich claims statement provided to (Schindler adjuster) Zurich July outside 23, 2013 counsel)

[8] On August 4, 2017, the trial court granted the Simon Plaintiffs' motion for sanctions, ordering Zurich to produce the Documents within thirty days and pay the Simon Plaintiffs' attorney fees, the amount of which would be determined after the Simon Plaintiffs submitted an affidavit of attorney fees. On September 1, 2017, the Simon Plaintiffs filed their attorney fee evidence. On September 26, 2017, the trial court ordered Zurich to pay the Simon Plaintiffs $14,871 as a sanction. On October 2, 2017, Zurich filed a notice of appeal as a matter of right pursuant to Indiana Appellate Rule 14(A)(1).

[9] Meanwhile, on September 15, 2017, while briefing on the Simon Plaintiffs' attorney fee evidence was ongoing, the Simon Plaintiffs filed a motion for sanctions and entry of default judgment against Zurich, asking that default judgment be entered against Zurich as an additional sanction for Zurich's failure to produce the Documents. Following a hearing on December 1, 2017, the trial court entered default judgment against Zurich on both counts of the Simon Plaintiffs' complaint and stayed further proceedings. On January 17, 2018, the trial court certified its December 1, 2017, order for interlocutory appeal. We accepted jurisdiction over this second interlocutory appeal and ordered it consolidated with the first interlocutory appeal filed on October 2, 2018.

I. Whether the Trial Court Abused Its Discretion in Concluding that the Documents Were Discoverable

[10] "Due to the fact-sensitive nature of discovery matters, the ruling of the trial court is cloaked with a strong presumption of correctness on appeal." WESCO Distrib., Inc. v. ArcelorMittal Ind. Harbor LLC , 23 N.E.3d 682, 712 (Ind. Ct. App. 2014), trans. dismissed . We review a trial court's decision regarding discovery matters for an abuse of discretion. Int'l Bus. Machs. Corp. v. ACS Human Servs., LLC , 999 N.E.2d 880 (Ind. Ct. App. 2013), trans. denied . An abuse of discretion occurs "only when the trial court reached a conclusion against the logic and natural inferences to be drawn from the facts and circumstances before the court." Burr v. United Farm Bureau Mut. Ins. Co. , 560 N.E.2d 1250, 1254 (Ind. Ct. App. 1990), trans. denied . We do not reweigh those facts and circumstances; rather, we consider only the evidence most favorable to the trial court's order. Estate of Lee ex rel. McGarrah v. Lee & Urbahns Co. , 876 N.E.2d 361 (Ind. Ct. App. 2007). We will affirm a trial court's ruling "if it is sustainable on any legal basis in the record, even though this was not the reason enunciated by the trial court." Id. at 367.

[11] Evidentiary privileges are construed narrowly because they impede the quest for truth. Boulangger v. Ohio Valley Eye Inst., P.C. , 89 N.E.3d 1112 (Ind. Ct. App. 2017). "The burden to prove the applicability of the privilege is on the one who asserts it, and the privilege must be established as to each document sought." Howard v. Dravet , 813 N.E.2d 1217, 1222 (Ind. Ct. App. 2004). Zurich and/or Schindler contend that the Documents were covered by the work-product doctrine and/or the attorney-client and/or insurer-insured privileges and were therefore undiscoverable.

A. Whether Indiana Follows the "Trial Is the File" Approach to Bad-Faith-Denial-of-Coverage Claims

[12] The Simon Plaintiffs also seem to suggest that we should apply the various evidentiary privileges and doctrines differently in cases where a claim of bad-faith denial of insurance coverage is being made. Zurich and Schindler note that the Simon Plaintiffs brought the trial court's attention to the Delaware case of Tackett v. State Farm Fire & Casualty , 558 A.2d 1098 (Del. Super. Ct. 1988), in which the Delaware Superior Court of New Castle County concluded that the importance of information in the claims file in a case where a bad-faith denial of coverage is alleged essentially overrode the attorney-client privilege and the work-product doctrine. Id. at 1103-05. The holding is based, in part, on the trial court's conclusions that, in such cases, "the trial is the file" and that a plaintiff cannot realistically hope to prove a bad-faith denial of coverage without being able to discover the claims file. Id. at 1103.

[13] Be that as it may, the rulings of Delaware trial courts are not binding on this court, and, in any event, we have explicitly rejected such a rule. In Hartford Financial Services Group, Inc. v. Lake County Park & Recreation Board , 717 N.E.2d 1232 (Ind. Ct. App. 1999), we declined to adopt the position that the contents of a claims file in a bad-faith-denial-of-coverage case could not be protected by evidentiary privileges, stating that "[a] simple assertion that an insured cannot otherwise prove a case of bad faith does not automatically permit an insured to rummage through the insurers' claims file." Id. at 1237. The Simon Plaintiffs offer no reason why we should depart from our holding in Hartford , and we can think of none. To the extent that the Simon Plaintiffs argue that the various evidentiary privileges and doctrines should be applied differently in this case and others like it, we reject that argument. Any change in the foregoing would have to be made by the Indiana Supreme Court.

B. Work-Product Doctrine

[14] Zurich and Schindler contend that the work-product doctrine applies to the Group II Documents, which comprise (1) Schindler's quarterly evaluation report, which includes an evaluation of its defense in the Caler suit (ZURPRI 196-202); (2) the fault apportionment analysis prepared by Schindler (ZURPRI 205); (3) a report evaluating Caler's expert (ZURPRI 205); and (4) Schindler's mediation statement (ZURPRI 429).

[15] The work-product doctrine is defined in the Indiana Rules of Trial Procedure:

[A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (B)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

Ind. Trial Rule 26(B)(3).

[16] The Group II Documents were all originally prepared by Schindler's attorneys for Schindler, which is a party in this case, so the next question is whether the Group II Documents were prepared in anticipation of litigation or trial. "A document is gathered in anticipation of litigation if it can fairly be said that the document was prepared or obtained because of the prospect of litigation." WESCO Distrib. , 23 N.E.3d at 713 (citing Nat'l Eng'g & Contracting Co., Inc. v. C & P Eng'g & Mfg. Co. , 676 N.E.2d 372, 377 (Ind. Ct. App. 1997) ). "Products of investigation are work product because their subject matter relates to the preparation, strategy, and appraisal of the strengths and weaknesses of an action, or to the activities of the attorneys involved." Id. (citing Nat'l Eng'g & Contracting , 676 N.E.2d at 376 ).

[17] All four of the Group II Documents at issue were prepared by Schindler before it settled the Caler suit and for the express purpose of evaluating the strength of Caler's case against Schindler, KONE, and/or the Simon Plaintiffs. The Group II Documents addressed, respectively, an evaluation of Schindler's defense, a fault-allocation analysis regarding the four defendants, an evaluation of Caler's expert, and a confidential mediation report evaluating Schindler's litigation position. As described in Zurich's privilege log, the Group II Documents clearly all contain mental impressions, conclusions, opinions, and/or legal theories of a Schindler attorney concerning Schindler's defense of the Caler suit. It is difficult for us to imagine documents that would fit the definition of work product more squarely than these four.

[18] The only question left before moving on is whether it matters that the Group II Documents were prepared in anticipation of the Caler litigation and not the litigation with the Simon Plaintiffs. Trial Rule 26(B)(3) does not specifically require that the material had to be prepared for litigation between the party seeking discovery and the party resisting it, only that the material in question was prepared "in anticipation of litigation or for trial[.]" Moreover, we have explicitly interpreted Trial Rule 26(B)(3) to apply to work product generated during prior litigation. In American Buildings Company v. Kokomo Grain Company, Inc. , 506 N.E.2d 56 (Ind. Ct. App. 1987), trans. denied , we noted that

[t]he primary purpose of the work product privilege is to assure that an attorney is not inhibited in his representation of his client by the fear that his files will be open to scrutiny upon demand of an opposing party. Counsel should be allowed to amass data and commit his opinions and thought processes to writing free of the concern that, at some later date, an opposing party may be entitled to secure any relevant work product documents merely on request and use them against his client. The work product privilege would be attenuated if it were limited to documents that were prepared in the case for which discovery is sought. What is needed, if we are to remain faithful to the articulated policies of Hickman [v. Taylor , 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947) ], is a perpetual protection for work product, one that extends beyond the termination of the litigation for which the documents were prepared. Any less protection would generate the very evils that the Court in Hickman attempted to avoid.

Id. at 62 (quoting In re Murphy , 560 F.2d 326, 334 (8th Cir. 1977) ). We concluded that the rationale in Murphy was persuasive and so held that "the work-product doctrine applies to items prepared in anticipation of prior litigation." Id. The Simon Plaintiffs give us no reason to depart from our approach in American Buildings , and we see none. Because we conclude that the Group II Documents are covered by the work-product doctrine, we also conclude that the trial court erred in ordering that Zurich disclose them. That leaves the five Group I Documents that Zurich and/or Schindler claim are covered by the attorney-client and insurer-insured privileges.

C. Attorney-Client Privilege

[19] Schindler contends that four of the five Group I Documents are covered by the attorney-client privilege, while Zurich contends that all five are. Indiana Code section 34-46-3-1 (1998) provides, in part, as follows: "Except as otherwise provided by statute, [attorneys] shall not be required to testify [...] as to confidential communications made to them in the course of their professional business, and as to advice given in such cases."

The applicability of the [attorney-client] privilege must be established as to each question asked or document sought. [ P.T. Buntin, M.D., P.C. v. Becker , 727 N.E.2d 734, 740 (Ind. Ct. App. 2000) ]. The essential prerequisites to invocation of the privilege are to establish by a preponderance of the evidence: 1) the existence of an attorney-client relationship and 2) that a confidential communication was involved. Mayberry v. State , 670 N.E.2d 1262, 1266 (Ind. 1996). Information subject to the attorney-client privilege retains its privileged character until the client has consented to its disclosure. Id. at 1267. The privilege belongs to the client and can only be waived by conduct attributable to the client. Id. at 1267 n.5.

Brown v. Katz , 868 N.E.2d 1159, 1166 (Ind. Ct. App. 2007). We can dispose of ZURPRI 218 quickly, as it is a communication from a Zurich claims adjuster to a Schindler attorney. Because ZURPRI 218 does not concern advice given by an attorney to a client, the attorney-client privilege does not apply to it.

[20] As for the other four Group I Documents, they were all prepared by Schindler attorneys for Schindler and subsequently shared with Zurich. "[T]he general rule [is] that the attorney-client privilege is waived when privileged information is disclosed to a third party." Groth v. Pence , 67 N.E.3d 1104, 1119 (Ind. Ct. App. 2017) (citation omitted and formatting altered), trans. denied . Indiana, however, has adopted the common-interest privilege, which is "an extension of the attorney-client privilege" that "permits parties whose legal interests coincide to share privileged materials with one another in order to more effectively prosecute or defend their claims." Id. (citations omitted and formatting altered).

[21] We have little difficulty in concluding that the legal interests of Zurich and Schindler coincide sufficiently in this case to trigger the common-interest privilege. Both defendants have an obvious interest in not indemnifying the Simon Plaintiffs to the tune of $2,000,000 if they can avoid it. While Zurich's and Schindler's interests may not always coincide in the future (if, for instance, Zurich seeks indemnification from Schindler pursuant to their fronting agreement for a payment made to the Simon Plaintiffs), they are sufficiently aligned for the time being. We conclude that the Group I Documents, save ZURPRI 218, are protected by the common-interest extension to the attorney-client privilege.

D. Insurer-Insured Privilege

[22] The last question we must answer is whether ZURPRI 218 is protected by the insurer-insured privilege, first adopted by the Indiana Supreme Court in the case of Richey v. Chappell , 594 N.E.2d 443 (Ind. 1992). In that case, the Court held that "where the policy of insurance requires the insurer to defend claims against the insured, statements from the insured to the insurer concerning an occurrence which may be made the basis of a claim by a third party are protected from disclosure." Id. at 447. In this case, however, the Simon Plaintiffs are not third-party claimants but, rather, additional insureds of Zurich who are pressing a first-party claim of bad-faith denial of defense and indemnity. Because the Simon Plaintiffs are not third-party claimants, the insurer-insured privilege as defined by the Richey Court does not apply to ZURPRI 218, even though it was prepared by Zurich (the insurer) for Schindler (an insured). As mentioned, because privileges are to be construed narrowly, Boulangger , 89 N.E.3d at 1116, we will not endeavor to expand the scope of the Richey holding to cover the facts of this case. Zurich has failed to establish an abuse of discretion as to ZURPRI 218.

E. Summary of Issue I

[23] We decline the invitation, to the extent that such an invitation was extended, to apply the various evidentiary privileges and doctrine differently in a case where a bad-faith-denial-of-coverage claim has been made. We conclude that the four Group II Documents are not discoverable pursuant to the work-product doctrine. We further conclude that four of the five Group I Documents are not discoverable, as they are protected by the common-interest extension of the attorney-client privilege. Finally, we conclude that the trial court correctly concluded that ZURPRI 218 is discoverable, as neither the attorney-client nor insurer-insured privileges cover it.

II. Whether the Trial Court Abused its Discretion by Ordering Sanctions

[24] The trial court ordered an award of attorney fees and the entry of default against Zurich for what it concluded was the improper refusal to produce the nine Documents. We have concluded, however, that only one of the Documents is, in fact, discoverable. We are not at all confident that the trial court would have imposed the same harsh sanctions on Zurich based on the improper withholding of one document as it did on what it concluded was the improper withholding of nine. Consequently, we vacate the trial court's imposition of sanctions without addressing the question of whether such sanctions would have been appropriate had Zurich improperly withheld all nine Documents.

III. Appellate Attorney Fees

[25] The Simon Plaintiffs request that we remand with instructions to award them the attorney fees incurred in defending this appeal. The Simon Plaintiffs note that there is some authority for the proposition that a party may be awarded appellate fees incurred in defending a sanction imposed for failure to comply with a motion to compel. See, e.g. , Georgetown Steel Corp. v. Chaffee , 519 N.E.2d 574, 577 (Ind. Ct. App. 1988) ("[I]f appellate expenses were not awardable, then the original award would be offset and its benefit negated."), trans. denied . Because Zurich and Schindler have largely prevailed in this appeal, we decline the invitation to order the award of attorney fees to the Simon Plaintiffs.

Conclusion

[26] We conclude that the four Group II Documents are non-discoverable as work product and that four of the five Group I Documents are protected by the attorney-client privilege. In the end, the only one of the nine Documents that is discoverable is ZURPRI 218. Because we are not confident that the trial court would have imposed the same sanction for improperly withholding one document as it did for nine, we vacate the trial court's award of attorney fees and entry of default judgment in favor of the Simon Plaintiffs. We remand for further proceedings consistent with this opinion.

[27] The judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings.

Robb, J., and Altice, J., concur.

      On September 29, 2013, Caler tragically succumbed to his injuries at the age of twenty. Remembering Phillip Caler , https://www.texasffa.org/news/Remembering-Phillip-Caler (last visited September 13, 2018).

      Schindler argues in its "Brief of Interested Party" that eight of the nine Documents were improperly deemed to be discoverable, an argument specifically adopted and incorporated by Zurich. Zurich also contends that the trial court abused its discretion in concluding that the Document designated ZURPRI 218 was discoverable.

      Hickman is the case that established the work-product doctrine, concluding that "[n]ot even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney." 329 U.S. at 510, 67 S.Ct. 385.


source: Caselaw Access Project

author: Riley, Judge.

license: Public Domain

text:
    Jennifer ROSE, Appellant-Respondent, v. William D. BOZEMAN, Sr., Appellee-Petitioner.
    Court of Appeals Case No. 18A-DN-1085
    Court of Appeals of Indiana.
    Filed November 7, 2018
    Attorney for Appellant: Stephen R. Lewis, Indianapolis, Indiana
    Attorney for Appellee: Jack M. Freedman, Fishers, Indiana
   Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Respondent, Jennifer L. Rose (Rose), appeals the trial court's Order on Appellee-Plaintiff's, William D.

Bozeman, Sr. (Bozeman), motion to correct error with respect to the division of marital property in the parties' decree of dissolution of marriage.

[2] We affirm.

ISSUES

[3] Rose presents us with two issues on appeal, which we restate as:

(1) Whether the trial court abused its discretion by granting Bozeman's motion to correct error without specifying its reasons; and
(2) Whether the trial court abused its discretion by adjusting the division of the marital estate.

FACTS AND PROCEDURAL HISTORY

[4] Bozeman and Rose married on July 7, 2017. They closed on the purchase of the marital residence located in Fishers in the amount of $499,900 on July 19, 2017, and moved into the marital residence on July 28, 2017. Although Rose did not contribute any money towards the purchase of the residence, the house was titled in both parties' names. The parties separated on July 31, 2017, and Bozeman petitioned for a decree of dissolution on August 1, 2017, after twenty-four days of marriage. When the parties separated, Bozeman gave Rose $30,000. Rose continued to live in the marital residence rent-free while the case was pending; Bozeman paid the taxes on the residence and the cost of painting necessary to sell the residence.

[5] Including the money used to purchase the marital residence, Bozeman brought more than three million dollars of assets into the marriage. Other than the marital residence and the increase in value of assets during the marriage, Bozeman was awarded all the assets he brought into the marriage upon its dissolution.

[6] On February 28, 2018, the trial court conducted a final hearing. On March 15, 2018, the trial court issued its decree of dissolution of marriage, concluding in pertinent part that

21. Within seven (7) days after this Decree has been file marked by the Clerk of Hamilton County, Indiana, [Bozeman] shall pay twenty thousand, four hundred four dollars ($20,404) to [Rose] as her share of the increase in value of the marital assets that took place prior to the date of final separation.
22. With regard to the marital residence, although [Bozeman] brought the purchase money into the marriage, Indiana law is clear that once he put [Rose's] name on the deed it is just as much hers as his. Even though the marriage was short, once [Rose's] name was put on the real estate, it is half hers. Therefore, [Bozeman] and [Rose] shall each receive fifty percent (50%) of the "net proceeds" from the sale of the house. "Net proceeds" shall mean the amount that is paid to the parties by the closing agent after all contractual amounts, taxes, closing costs and expenses, and broker's fees have been paid. [Bozeman] shall pay the costs of any repairs or improvements to the home that were made in preparation for sale.
23. [Rose] shall vacate the marital residence as required by the closing on the sale.
24. [Bozeman] shall continue to pay the utility costs and other expenses of the marital residence until ownership is transferred.
25. [Rose] shall have sole ownership of all personal property remaining in the marital residence that is not contractually required to go to the buyers.
26. Each party shall have sole ownership of all other personal property in his or her possession.

(Appellant's App. Vol. II, pp. 40-41).

[7] On April 12, 2018, Bozeman filed his motion to correct error, requesting the trial court to correct the equal division of the net proceeds from the sale of the marital residence because Bozeman had "put up all the money for the purchase just two (2) weeks before the divorce case was filed." (Appellant's App. Vol. II, p. 54). On April 23, 2018, the trial court granted Bozeman's motion, holding:

Paragraph 22 of the Decree is deleted and replaced with the following language:
[Rose] shall receive $35,000 and [Bozeman] shall receive the balance of the "net proceeds" from the sale of the marital residence[.] "Net proceeds" means the amount that is paid to the parties by the closing agent after all contractual amounts, taxes, closing costs, expenses, and broker's fees have been paid.

(Appellant's App. Vol. II, p. 11).

[8] Rose now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION

I. Articulation of General Reasons

[9] Rose appeals from the grant of Bozeman's motion to correct error. We review a trial court's ruling on a motion to correct error for an abuse of discretion. Santelli v. Rahmatullah , 993 N.E.2d 167, 173 (Ind. 2013). In so doing, we afford the trial court's decision "a strong presumption of correctness." Id.

[10] Rose contends that because Bozeman filed his motion to correct error pursuant to Indiana Trial Rule 59(J) and corrective relief was granted, the trial court was required to "specify the general reasons therefor." See Ind. Trial Rule 59(J). Because these general reasons are absent in the trial court's order, Rose requests this court to reverse the trial court's grant of Bozeman's motion. In support of her argument, Rose relies on Riggen v. Riggen , 71 N.E.3d 420, 423 (Ind. Ct. App. 2017) in which we concluded that the trial court's failure to provide an explanation for its decision to grant Wife's motion to correct error in accordance with T.R. 59(J) could not be considered harmless error. In Riggen , appellee failed to submit an appellee's brief, and we cautioned that "[w]ere this case before us with an appellee's brief, we might conclude that the error was harmless." Id.

[11] We reached the opposite result in Pickett v. Pickett , 470 N.E.2d 751, 756 (Ind. Ct. App. 1984), where the trial court similarly failed to specify the general reasons for its decision to grant Wife's motion to correct error. Based on "other evidence in the record," we were able to infer the trial court's general reason for correcting its original decree and noted that Husband failed to demonstrate "on appeal how the trial court's failure ha[d] prevented him from formulating his appeal." Id. Concluding that "[w]ithout a showing of prejudice, the trial court's error was harmless," we noted that "[t]o remand to the trial court for the sole purpose of stating such reasons in this case we believe would violate the principle of judicial economy, the mere honoring of form over substance." Id.

[12] Bozeman initially petitioned for an unequal division of the marital estate based on the short duration of the marriage, and the assets of the respective parties prior to the marriage. During the dissolution hearing, he requested the court to award him the marital residence and allocate to him the loss on the sale of the residence. In its dissolution decree, the trial court awarded Rose half of the net proceeds of the sale of the residence. Bozeman filed a motion to correct error, requesting in his memorandum to award him the net proceeds of the sale of the marital residence based on the duration of the marriage, the respective assets the parties brought into the marriage, and the windfall Rose reaped by being awarded half of the net proceeds of the sale. Rose responded to this memorandum. Even though the trial court omitted to specify its reasons for granting Bozeman's motion, Rose fails to show how she was prejudiced by the lack of general reasons as there is sufficient evidence in the record from which to infer the basis of the trial court's grant. Therefore, as in Pickett , we conclude that this error was harmless. See id.

II. Adjustment of Division of Marital Estate

[13] Turning to the merits of the case, Rose contends that the trial court abused its discretion by adjusting the division of the net proceeds of the sale of the marital residence. She maintains that under "the facts and circumstances of this case, specifically those surrounding the trial court's granting of [Bozeman's] [m]otion to [c]orrect [e]rror, this [c]ourt cannot reasonably infer that the trial court considered all the factors set out in Ind. Code § 31-15-7-5." (Appellant's Br. p. 15).

[14] In dividing marital property, the trial court shall presume that an equal division of the marital property between the parties is just and reasonable. I.C. § 31-15-7-5. This presumption may be rebutted however, by evidence that an equal division would not be just and reasonable. Id. This rebuttal may include evidence of the following factors:

(1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.
(2) The extent to which the property was acquired by each spouse:
(A) Before the marriage; or
(B) Through inheritance or gift.
(3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children.
(4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property.
(5) The earnings or earning ability of the parties as related to:
(A) a final division of property; and
(B) a final determination of the property rights of the parties.

I.C. § 31-15-7-5. In dividing marital property, the trial court must consider all of these factors, but it is not required to explicitly address all of the factors in every case. Montgomery v. Faust , 910 N.E.2d 234, 239 (Ind. Ct. App. 2009).

[15] Rose argues that the trial court, in considering Bozeman's motion to correct error, only emphasized the first two statutory factors, without considering any of the others. However, "[w]hen a party challenges the trial court's division of marital property, [she] must overcome a strong presumption that the trial court considered and complied with the applicable statute, and that presumption is one of the strongest presumptions applicable to our consideration on appeal." Hatten v. Hatten , 825 N.E.2d 791, 794 (Ind. Ct. App. 2005), trans. denied .

[16] The extremely short duration of the marriage, the substantial property and financial contribution by Bozeman to the marriage versus the very limited assets of Rose only speak to the first two statutory factors of I.C. § 31-15-7-5. The twenty-four-day term of married life is simply too short to even evaluate the other factors as the economic circumstances and earning abilities of the parties would not yet have been impacted. Rose, however, contends that the trial court's grant of the motion to correct error must be based on a decision to allocate fault for the failed marriage as Bozeman alluded to in his motion that the marriage had never been consummated. In light of the presumption that the trial court considered all statutory factors and in the absence of any evidence supporting Rose's allegation, we must conclude that the trial court applied the law and Rose's claim amounts to nothing more than speculation. Accordingly, we affirm the trial court's grant of Bozeman's motion to correct error.

CONCLUSION

[17] Based on the foregoing, we hold that the trial court did not abuse its discretion in granting Bozeman's motion to correct error.

[18] Affirmed.

[19] Vaidik, C. J. and Kirsch, J. concur


author: Kirsch, Judge.

text:
    Stephan M. POIRY, Appellant-Plaintiff, v. CITY OF NEW HAVEN, Indiana, Appellee-Defendant.
    Court of Appeals Case No. 18A-MI-1066
    Court of Appeals of Indiana.
    Filed November 8, 2018
    Attorneys for Appellant: David W. Stone IV, Stone Law Office & Legal Research, Anderson, Indiana, Loren K. Allison, Fort Wayne, Indiana
    Attorneys for Appellee: Ann M. Trzynka, Andrew P. Simmons, Van Gilder & Trzynka, P.C., Fort Wayne, Indiana
   Kirsch, Judge.

[1] Stephan M. Poiry ("Poiry") appeals the trial court's order granting summary judgment in favor of the City of New Haven, Indiana ("the City") and the denial of his motion to correct error. Poiry raises the following issue for our review: whether the trial court erred when it granted summary judgment to the City and denied his motion to correct error because Poiry failed to file a bond simultaneously with his verified petition for judicial review of the City of New Haven Police Department's Merit Board decision.

[2] We reverse and remand with instructions.

Facts and Procedural History

[3] Poiry was and currently is a police officer employed with the City of New Haven Police Department. On August 7, 2017, the Chief of Police for the City filed disciplinary charges against Poiry. Appellant's App. Vol. II at 35-36. On September 26, 2017, the New Haven Police Department Merit Board ("the Board") conducted a hearing on the disciplinary charges. The parties attended the hearing with their attorneys, testimony was heard, and exhibits introduced. On September 28, 2017, the Board issued its ruling, in which it found that the disciplinary charges had been proven and that Poiry should be demoted in rank. Id. at 44-46. Poiry filed an appeal with the Board on September 28, 2017, which the Board denied on October 27, 2017. Id. at 55.

[4] On November 16, 2017, Poiry filed a complaint against the City seeking judicial review of the Board's decision. Poiry did not post a bond at the time he filed his complaint. Poiry knew that the statute for appeals from municipal merit boards applied and was "fully aware that a bond was required as part of [the] filing for this judicial review." Id. at. 110, 145. At the time that the complaint was filed, Poiry inquired with employees of the Allen County Clerk's Office ("Clerk's Office") about posting a bond and was told that the Clerk's Office would not accept a bond without a judge setting the amount. Id. at 110, 146.

[5] After Poiry filed his complaint, he did not file anything with the trial court to attempt to set a bond amount. On January 11, 2018, Poiry filed a motion for summary judgment against the City, alleging that the City failed to file a transcript pursuant to Indiana Code section 36-8-3.5-18(b)(5). On January 29, 2018, the City filed a motion to dismiss based on Poiry's failure to post a bond pursuant to Indiana Code section 36-8-3.5-18(b)(4). A case management conference was held on the same day, and after the conference, Poiry went to the Clerk's Office, where he spoke to a deputy clerk about posting a bond and was told the court had to determine the bond amount. Id. at 115. The deputy clerk then allowed Poiry to post whatever amount Poiry "wished," and Poiry paid the sum of $100. Id. at 116-17.

[6] On March 8, 2018, the trial court heard oral arguments on both motions filed by the parties. Because matters outside the pleadings were presented in the City's motion to dismiss, the trial court treated the motion as a motion for summary judgment. Id. at 11. On April 5, 2018, the trial court issued its order granting summary judgment in favor of the City. Id. at 8-16. Poiry filed a motion to correct error on April 20, 2018. The trial court denied Poiry's motion on May 23, 2018. Poiry now appeals.

Discussion and Decision

[7] Poiry is appealing after a denial of a motion to correct error. Generally, a trial court's ruling on a motion to correct error is reviewed for an abuse of discretion. Ind. Bureau of Motor Vehicles v. Watson , 70 N.E.3d 380, 384 (Ind. Ct. App. 2017). An abuse of discretion occurs when the trial court's decision is against the logic and effect of the facts and circumstances before the court or if the court has misinterpreted the law. Id. However, where the issues raised in the motion are questions of law, the standard of review is de novo. City of Indianapolis v. Hicks , 932 N.E.2d 227, 230 (Ind. Ct. App. 2010), trans. denied . Here, Poiry's motion to correct error raised questions regarding the trial court's interpretation of a statute. Because the interpretation of a statute presents questions of law, our standard of review is de novo. Watson , 70 N.E.3d at 384.

[8] Poiry's motion to correct error alleged that the trial court had erred when it granted summary judgment in favor of the City. When reviewing the grant of summary judgment, our standard of review is the same as that of the trial court. Webb v. City of Carmel , 101 N.E.3d 850, 860 (Ind. Ct. App. 2018) (citing FLM, LLC v. Cincinnati Ins. Co. , 973 N.E.2d 1167, 1173 (Ind. Ct. App. 2012), trans. denied ). We stand in the shoes of the trial court and apply a de novo standard of review. Id. Our review of a summary judgment motion is limited to those materials designated to the trial court. Ind. Trial Rule 56(H) ; Robson v. Tex. E. Corp. , 833 N.E.2d 461, 466 (Ind. Ct. App. 2005), trans. denied . Summary judgment is appropriate only where the designated evidence shows there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. T.R. 56(C). We view the pleadings and designated materials in the light most favorable to the non-moving party. Webb , 101 N.E.3d at 860. Additionally, all facts and reasonable inferences from those facts are construed in favor of the non-moving party. Id. (citing FLM , 973 N.E.2d at 1173 ). The initial burden is on the moving party to demonstrate the absence of any genuine issue of fact as to a determinative issue, at which point the burden shifts to the non-movant to come forward with contrary evidence showing an issue for the trier of fact. Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014).

[9] A trial court's grant of summary judgment is clothed with a presumption of validity, and the party who lost in the trial court has the burden of demonstrating that the grant of summary judgment was erroneous. Henderson v. Reid Hosp. and Healthcare Servs. , 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans. denied . We will affirm upon any theory or basis supported by the designated materials. Id. When a trial court grants summary judgment, we carefully scrutinize that determination to ensure that a party was not improperly prevented from having his or her day in court. Id.

[10] Where, as here, the interpretation of a statute is at issue, such statutory interpretation presents a pure question of law for which summary judgment disposition is particularly appropriate. Miller v. Town Bd. of Sellersburg , 88 N.E.3d 217, 218 (Ind. Ct. App. 2017) (citing Pike Tp. Educ. Found., Inc. v. Rubenstein , 831 N.E.2d 1239, 1241 (Ind. Ct. App. 2005) ). The first step in interpreting a statute is to determine whether the legislature has spoken clearly and unambiguously on the point in question. Id. (citing Rheem Mfg. Co. v. Phelps Heating & Air Conditioning Inc., 746 N.E.2d 941, 947 (Ind. 2001) ). When a statute is clear and unambiguous, we need not apply any rules of construction other than to require that the words and phrases be taken in their plain, ordinary, and usual sense. Id. at 219 (citing Sees v. Bank One, Ind., N.A., 839 N.E.2d 154, 157 (Ind. 2005) ).

[11] Poiry argues that the trial court erred in granting summary judgment in favor of the City and in denying his motion to correct error. He asserts that Indiana Code section 36-8-3.5-18(b)(4) is ambiguous in that it requires that a bond be filed but does not state in what amount the bond should be and how the required bond is to be determined. Because of this ambiguity, Poiry contends that he was not aware of the amount he should pay to satisfy the bond requirement when he filed his appeal of the commission's decision.

[12] In the present case, Poiry filed an appeal with the trial court after he had been disciplined by the Board. When he filed his appeal, he was not aware of the required bond amount, so he did not file a bond simultaneously with his appeal. At the time that summary judgment was entered by the trial court, a bond amount had still not been determined.

[13] When a member of a municipality's police or fire department is aggrieved by a decision of the commission to suspend the member for more than ten days, demote the member, or dismiss the member, he or she may appeal the decision to the circuit or superior court of the county where the municipality is located. Ind. Code § 36-8-3.5-18(a). When the plaintiff files his complaint, a bond must be filed, and Indiana Code section 36-8-3.5-18 states in pertinent part:

(b) The appeal shall be made according to the Indiana rules of trial procedure with the following exceptions:
....
(4) The plaintiff must file a bond at the time of filing the complaint conditioned on the plaintiff prosecuting the appeal to a final determination and paying the court costs incurred in the appeal.

Ind. Code § 36-8-3.5-18(b)(4). While subsection (b)(4) is clear that a bond must be filed when an appeal is filed, the statute is not clear or unambiguous in directing how that bond is to be determined and in what amount it is to be paid.

[14] Under Indiana Code section 34-49-1-1, which controls the fixing of bonds by judges, it states that the statutory section applies whenever "any bond ... is required in connection with any civil action or proceeding brought in any court in Indiana" and "in the absence of any provision of law specifying the amount of the bond." Ind. Code § 34-49-1-1(a). When these conditions apply, the statute provides that "the judge of the court shall fix the penalty is an amount that the judge considers adequate, but not less than $100." Ind. Code § 34-49-1-1(b) (emphasis added). Here, a bond was required, pursuant to Indiana Code section 36-8-3.5-18, in connection with Poiry's appeal to the trial court, which was a civil action brought in an Indiana court, and as discussed above, Indiana Code section 36-8-3.5-18 does not contain a provision specifying the amount of bond to be filed. Therefore, in accordance with Indiana Code section 34-49-1-1(b), the judge of the trial court in which Poiry filed his appeal shall fix the bond in an amount the judge considers adequate, but not less than $100.

[15] Here, the trial judge never fixed a bond amount. Because the trial court failed to fix a bond amount, Poiry was unable to pay the bond required under Indiana Code section 36-8-3.5-18 for his appeal of the Board's decision. Based on this, we conclude that the trial court erred when it granted summary judgment in favor of the City and when it denied Poiry's motion to correct error. We, therefore, reverse the trial court and remand with instructions for the trial court to set a bond amount it considers adequate and a time frame within which the bond must be posted. If Poiry does not post the bond within the time frame, the trial court may enter an order dismissing the appeal. If the bond is properly paid in the amount set by the trial court and within the time frame, the case is to continue on the merits.

[16] Ind. Code 29-1-7-19, relating to the filing of will contests, includes language similar to the bond statute in this case. It provides that "[a]t the time of filing" a will contest, "the plaintiff in the action, or some other person on the plaintiff's behalf, shall file a bond with sufficient sureties in an amount approved by the court, conditioned for the due prosecution of the proceedings and for the payment of all costs if in the proceedings judgment is rendered against the plaintiff." This statute requires the filing of the bond at the time the will contest is filed, but it does not provide a mechanism for determining the amount of the bond that shall be filed. Instead, it requires that the amount of the bond be approved by the court.

[17] Interpreting the statute, in Harper v. Boyce , 809 N.E.2d 344, 348 (Ind. Ct. App. 2004), this court explained that the filing of a bond is not a condition precedent to the filing of a will-contest complaint, but the plaintiff must file a bond "before being permitted to proceed with the contest." In that case, the will contest was filed without a bond, and the estate filed a motion to set a bond of $2,500. The trial court granted the motion, but the will contestant failed to file the bond. The trial court dismissed the will contest, and this court affirmed.

[18] As did the court in Harper , we hold that the filing of a bond is not a "condition precedent" to filing of an appeal of a police disciplinary action and that failing to file a bond at the time of filing the appeal cannot be the basis for dismissal. Dismissal, however, would be appropriate if the plaintiff fails to file a bond after the amount is set by the trial court.

[19] Reversed and remanded with instructions.

Vaidik, C.J., and Riley, J., concur.


author: Najam, Judge.

text:
    Anthony WARD, Sr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1589
    Court of Appeals of Indiana.
    Filed November 9, 2018
    Attorney for Appellant: Donald C. Swanson, Jr., Deputy Public Defender, Fort Wayne, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Lyubov Gore, Deputy Attorney General, Indianapolis, Indiana
   Najam, Judge.

Statement of the Case

[1] Anthony Ward, Sr. appeals his sentence following his guilty plea to auto theft, as a Level 5 felony. He raises a single issue for our review, namely, whether the trial court abused its discretion when it sentenced him.

[2] We affirm.

Facts and Procedural History

[3] On March 20, 2018, Officer A. Maurer with the Fort Wayne Police Department escorted Ward out of a liquor store. Later that day, Ward stole a vehicle from the parking lot of the same liquor store. The owner of the vehicle, Decarla Davis, witnessed Ward enter her vehicle and drive away while she was inside the store. Davis then contacted the police to report that her car had been stolen. Officer Maurer responded to the call. Once he arrived, Davis described Ward to Officer Maurer. And an employee of the liquor store told Officer Maurer that the person who had stolen Davis' vehicle was the same person who Officer Maurer had escorted off of the property earlier in the day.

[4] Soon thereafter, officers located Davis' vehicle in a driveway. The officers saw Ward and ordered him to stop, but he did not. Rather, he entered a residence. Officers then pursued Ward into the residence where they arrested him. The officers were able to recover the keys to Davis' vehicle from inside the residence. Davis, who had arrived at the scene, was able to identify Ward as the man who had stolen her vehicle.

[5] On March 26, the State charged Ward with one count of auto theft, as a Level 5 felony ("Count 1"), and one count of resisting law enforcement, as a Class A misdemeanor ("Count 2"). On May 7, Ward pleaded guilty as charged. The trial court accepted Ward's guilty plea and sentenced him to the advisory sentence of three years executed in the Department of Correction for Count 1 and one year executed for Count 2. Then, based on Ward's "extraordinary criminal history," trial court ordered the sentences to run consecutively, for an aggregate sentence of four years. Tr. Vol. II at 10. This appeal ensued.

Discussion and Decision

[6] Ward contends that the trial court abused its discretion when it sentenced him on his Level 5 felony conviction because it did not enter a sentencing statement. Indiana Code Section 35-38-1-1.3 (2018) provides: "After a court has pronounced a sentence for a felony conviction, the court shall issue a statement of the court's reasons for selecting the sentence that it imposes unless the court imposes the advisory sentence for the felony ." (Emphasis added.) Accordingly, under the plain language of the statute, a trial court is not required to issue a sentencing statement where, as here, it imposes the advisory sentence for a felony conviction.

[7] Again, Ward pleaded guilty to auto theft, as a Level 5 felony. The sentencing range for a Level 5 felony is one year to six years, with an advisory sentence of three years. I.C. § 35-50-2-6(b). The trial court sentenced Ward to the advisory sentence of three years. Because the trial court sentenced Ward to the advisory sentence for his felony conviction, the court was not required to issue a sentencing statement. I.C. § 35-38-1-1.3.

[8] Although Ward acknowledges that the trial court was not required by statute to enter a sentencing statement, he contends that the statute is incompatible with our Supreme Court's holding in Anglemyer v. State , 868 N.E.2d 482 (Ind.), clarified on reh'g on other grounds , 875 N.E.2d 218 (Ind. 2007). In Anglemyer , which was decided in 2007, the Indiana Supreme Court held in relevant part that our "trial courts are required to enter sentencing statements whenever imposing [a] sentence for a felony offense." Id. at 490.

[9] Our Supreme Court's landmark opinion in Anglemyer has greatly facilitated sentencing in our trial courts as well as appellate review of those sentences. However, in 2014, seven years after our Supreme Court decided Anglemyer , the Indiana General Assembly amended the statute that requires a trial court to enter a sentencing statement. As we have noted, the statute now expressly provides that a trial court must issue a sentencing statement "unless the court imposes the advisory sentence for the felony." I.C. § 35-38-1-1.3. Thus, insofar as sentencing statements for felony advisory sentences are concerned, the statute enacted by our legislature has superseded Anglemyer's sentencing regime.

[10] Still, Ward contends that " Anglemyer's requirement of a sentencing statement, and the importance of that statement, remain a cornerstone of Indiana sentencing law even after I.C. § 35-38-1-1.3 was passed by the legislature." Appellant's Br. at 12. Thus, he maintains that, despite the statute, the court was still required to follow the dictates of Anglemyer . To support his contention, Ward relies on Jackson v. State , 45 N.E.3d 1249 (Ind. Ct. App. 2015), and Prater v. State , 59 N.E.3d 314 (Ind. Ct. App. 2016), which were decided after the Indiana General Assembly amended Indiana Code Section 35-38-1-1.3 and which cite Anglemyer .

[11] In Jackson , the trial court sentenced Jackson to the maximum sentence for a Class B felony conviction. 45 N.E.3d at 1250. On appeal, this court cited Anglemyer and held that the trial court abused its discretion when it sentenced Jackson because it did not issue an adequate sentencing statement. Id. at 1251-52. But that case considered whether the trial court had complied with the requirement that it issue an adequate sentencing statement when it sentenced the defendant to the maximum sentence. Accordingly, Jackson does not support Ward's contention that a trial court abuses its discretion if it does not enter a sentencing statement when it imposes an advisory sentence.

[12] And in Prater , the trial court sentenced Prater to the advisory sentence for a Level 6 felony, which sentence Prater appealed to this court. Prater , 59 N.E.3d at 316. On appeal, we cited Anglemyer and its rule that a trial court may be found to have abused its discretion in a number of ways, including if it fails to enter a sentencing statement. Id. at 317. However, the issue on appeal was not whether the trial court had abused its discretion when it failed to enter a sentencing statement for Prater's advisory sentence. Rather, the issue was whether, in light of an amendment to Indiana Code Section 35-38-3-3, the trial court erred when it ordered Prater to serve his term in the Department of Correction. Id. Thus, Ward's reliance on Prater is misplaced.

[13] Ward further contends that, if Indiana Code Section 35-38-1-1.3"is construed so as to do away with the sentencing statement requirement in the case of advisory sentences, then it becomes unclear how those sentences are to be reviewed." Appellant's Br. at 12. Ward also contends that "[t]he statute effectively treats advisory sentences as per se outside the scope of an abuse of discretion review," id. , and that "the advisory sentences [would] be per se within the trial court's discretion, regardless of the individual factors of the case[.]" Id. at 13. Ward continues that our "Supreme Court has stated that, while the advisory sentence is the starting point, 'the trial court ultimately imposes a sentence based upon the aggravating and mitigating circumstances it finds.' " Id. at 12 (quoting Fuller v. State , 9 N.E.3d 653, 657 (Ind. 2014) ). But we agree with the State that the statute is clear and unambiguous. The Indiana General Assembly has declared that a trial court is not required to issue a sentencing statement that addresses aggravating and mitigating circumstances when it imposes the advisory sentence for a felony conviction.

[14] And, contrary to Ward's assertion, a court on appeal can still review an individual's sentence when a trial court does not enter a sentencing statement. Indeed, it is well settled that, "[e]ven where a trial court has not abused its discretion in sentencing, the Indiana Constitution authorizes independent appellate review and revision of a trial court's sentencing decision." Eckelbarger v. State , 51 N.E.3d 169, 170 (Ind. 2016). Appellate courts implement that authority through Indiana Appellate Rule 7(B), which provides that "[t]he Court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." Thus, while a trial court is not required to enter a sentencing statement when it imposes the advisory sentence for a felony conviction, this court can still review an appellant's sentence on appeal under Indiana Appellate Rule 7(B).

[15] In sum, a trial court is not required to enter a sentencing statement if it imposes the advisory sentence for a felony conviction. See I.C. § 35-38-1-1.3. Here, because the trial court sentenced Ward to the advisory sentence of three years for a Level 5 felony, the trial court was not required to enter a sentencing statement. Thus, the trial court did not abuse its discretion when it sentenced Ward, and we affirm Ward's sentence.

[16] Affirmed.

Crone, J., and Pyle, J., concur.

      Ward only challenges whether the trial court erred when it sentenced him on the Level 5 felony because it did not issue a sentencing statement. He does not challenge his sentence for the Class A misdemeanor, and he concedes that the trial court was not required to enter a sentencing statement for that conviction. Further, he does not challenge the trial court's imposition of consecutive sentences.

      Indeed, this Court did not discuss whether the trial court had issued a sentencing statement.

      Our Supreme Court decided Fuller on June 2, 2014, which was approximately one month before the amendment to Indiana Code Section 35-38-1-1.3 became effective.


author: Pyle, Judge.

text:
    Michael NORRIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-86
    Court of Appeals of Indiana.
    Filed November 14, 2018 Rehearing Denied January 23, 2019
    Attorney for Appellant: Megan Shipley, Marion County Public Defender Agency, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, Indiana
   Pyle, Judge.

Statement of the Case

[1] Michael Norris ("Norris") appeals his convictions following a bifurcated jury trial for Level 4 felony possession of a firearm by a serious violent felon, Level 6 felony resisting law enforcement, and Class A misdemeanor resisting law enforcement. Norris argues that: (1) the State committed prosecutorial misconduct during closing argument; (2) the two convictions for resisting law enforcement violate the continuous crime doctrine; and (3) the trial court improperly sentenced him.

[2] We conclude that the State did not commit prosecutorial misconduct; Norris' misdemeanor conviction for resisting law enforcement violates the continuous crime doctrine; and the trial court did not improperly sentence Norris. The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions for the trial court to vacate the Class A misdemeanor resisting law enforcement conviction and enter a new sentencing order and abstract of judgment to reflect the vacated conviction.

[3] We affirm in part, reverse in part, and remand with instructions.

Issues

1. Whether the prosecutor's statement during closing argument constitute prosecutorial misconduct.
2. Whether the two resisting law enforcement convictions violate the continuous crime doctrine.
3. Whether the trial court improperly sentenced Norris.

Facts

[4] At approximately 4:00 a.m. on February 4, 2017, officers from the Beech Grove Police Department responded to a report of a disturbance at a residence. Officer Lee Huffman ("Officer Huffman") arrived on scene and was directed to a vehicle that was stopped in an alley behind the residence. Officer Huffman observed a silver van in the alley pull away and drive northbound. He followed the van and using his in-car radar unit, determined that the van was traveling forty-eight (48) miles per hour in an area with a speed limit of twenty-five (25) miles per hour. Officer Huffman initiated a traffic stop and activated the emergency lights on his marked police car. The van did not stop and accelerated to a higher speed. Officer Huffman then turned on his siren. The van continued driving at a high rate of speed and eventually crashed into a tree.

[5] Norris, the driver and sole occupant, stumbled out of the van. Officer Huffman observed Norris "reaching into his waistband area or pockets." (Tr. 118). Officer Huffman could not tell exactly what he was reaching for, but "he was reaching for something." (Tr. 118). Norris then fled northbound toward a tree line and Officer Huffman, who was in a fully marked police uniform, "yell[ed] at him to stop, get on the ground, police." (Tr. 117). As Norris fled, Officer Huffman observed Norris toss an object near a tree. Officer Huffman could not see what the object was. Norris ran to a ravine, where he jumped and rolled down it. Officer Huffman pursued Norris and was able to apprehend him.

[6] Officer Huffman returned to the scene of the accident with Norris and informed an assisting officer of the "general area" where he had seen Norris throw an object to the ground. (Tr. 120, 135). The assisting officer located a Smith & Wesson nine-millimeter handgun next to a tree on top of some leaves "within seconds" of Officer Huffman advising of the area where the object was thrown. (Tr. 136).

[7] On February 6, 2017, the State charged Norris with: Count I, unlawful possession of a firearm by a serious violent felon, a Level 4 felony; Count II, resisting law enforcement, a Level 6 felony; Count III, possession of a controlled substance, a Level 6 felony; and Count IV, resisting law enforcement, a Class A misdemeanor. A one-day bifurcated jury trial was held on November 30, 2017. The jury was instructed that in the first phase of the trial, it would determine whether Norris knowingly or intentionally possessed a firearm as charged in Count I and on the two resisting law enforcement counts. The jury was also instructed that it would determine whether the possession of a firearm was legal or illegal during the second phase of the trial.

[8] The prosecutor argued the following during closing arguments for the first phase of the trial:

Now we get to the possession of the firearm. Is Mr. Norris the unluckiest man in Beech Grove that on this day, he decides that he's going to flee from police in [a] car, crashes that car, runs on foot, and then rolling down a ravine, and then, lo and behold, just where he happens to be after doing that, there's a gun that he's not allowed to possess - that it's unlawful for him to have .

(Tr. 160) (emphasis added). Counsel for Norris objected, stating, "[t]here's no evidence that it's unlawful. That's the whole point of bifurcating the trial." (Tr. 160). He requested an admonishment and also moved for a mistrial "just for the purposes of making the record." (Tr. 161). The trial court admonished the jury as follows:

All right. Ladies and gentlemen of the jury, the only issue as far as the gun is whether he possessed it at this point. Whether it was unlawful or not has not yet been determined, and that will be covered in the instructions. Okay? All right.

(Tr. 161). The prosecutor then argued to the jury, without objection, that the reason, "[Norris] fled after that accident knowing it was - he was injured - because he had to get rid of a gun, and that's what he did." (Tr. 162). Counsel for Norris then argued in closing:

There's a lot of reasons why a young black man might run, even before he knows that it's a police officer. He's sitting in an alley. He sees a car creeping up behind him. That doesn't mean that he's running because he's got this gun. There's all kinds of reasons that he could be running, none of them right, but still reasons.

(Tr. 168). On rebuttal, the prosecutor argued, "he has a gun he is not supposed to have. He needed to get it - needed to get it away from his body." (Tr. 171). Counsel for Norris again objected, and the trial court overruled the objection.

[9] In the first phase of the trial, the jury returned guilty verdicts on the possession aspect of Count I and the two resisting law enforcement counts. Norris then waived his right to a jury trial for the second phase of the trial on his status as a serious violent felon. Norris admitted to the charged prior conviction alleged in support of the serious violent felon charge. The trial court conducted a sentencing hearing on December 18, 2017. For the Level 4 felony possession of a firearm by a serious violent felon conviction, the trial court sentenced Norris to twelve (12) years, with eight (8) years executed in the Department of Correction, two (2) years executed on Marion County Community Corrections, and two (2) years suspended to probation. For the Level 6 felony resisting law enforcement conviction, the court sentenced Norris to 636 days in the Department of Correction. For the Class A misdemeanor resisting law enforcement conviction, the court sentenced Norris to one (1) year in the Department of Correction and ordered all counts to run concurrently. Norris now appeals.

Decision

[10] On appeal, Norris argues that: (1) the State committed prosecutorial misconduct; (2) his two convictions for resisting law enforcement violate the continuous crime doctrine; and (3) the trial court improperly sentenced him. We will address each of these arguments in turn.

1. Prosecutorial Misconduct

[11] First, Norris asserts that two of the prosecutor's closing statements constituted prosecutorial misconduct. When reviewing a claim of prosecutorial misconduct, we must first consider whether the prosecutor engaged in misconduct. Williams v. State , 724 N.E.2d 1070, 1080 (Ind. 2000), reh'g denied , cert. denied . "We then consider whether the alleged misconduct placed the defendant in a position of grave peril to which [he] should not have been subjected." Id. "Whether a prosecutor's argument constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct." Cooper v. State , 854 N.E.2d 831, 835 (Ind. 2006). "The gravity of the peril is measured by the probable persuasive effect of the misconduct on the jury's decision rather than the degree of impropriety of the conduct." Id. In addition to the persuasiveness of a comment, a court should also consider the strength of the State's case. Oldham v. State , 779 N.E.2d 1162, 1175 (Ind. Ct. App. 2002), trans. denied . "To preserve a claim of prosecutorial misconduct, the defendant must-at the time the alleged misconduct occurs-request an admonishment to the jury, and if further relief is desired, move for a mistrial." Jerden v. State , 37 N.E.3d 494, 498 (Ind. Ct. App. 2015). Failure to do so results in waiver. Id.

[12] Norris asserts that the prosecutor's repeated statements to the jury that he was not legally allowed to have a gun, when the State had not presented any evidence to support this assertion, put him in "grave peril" and had a strong "probable persuasive effect" on the jury. (Norris' Br. 15). Specifically, he cites the following statements:

Now we get to the possession of the firearm. Is Mr. Norris the unluckiest man in Beech Grove that on this day, he decides that he's going to flee from police in car, crashes that car, runs on foot, and then rolling down a ravine, and then, lo and behold, just where he happens to be after doing that, there's a gun that he's not allowed to possess - that it's unlawful for him to have.
* * *
What are you reaching for? You're going to reach for what - a cell phone? - and risk getting shot by the police officer who's chasing you? No, he has a gun he is not supposed to have. He needed to get it - needed to get it away from his body.

(Tr. 160, 171).

[13] A prosecutor must confine closing argument to comments based only upon the evidence in the record. Lambert v. State , 743 N.E.2d 719, 734 (Ind. 2001), reh'g denied, cert. denied . Further, Indiana Professional Conduct Rule 3.4(e) provides:

A lawyer shall not ... in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.

[14] The prosecutor's first statement was misconduct, but it did not put Norris in grave peril. This was a one-day trial. A substantial portion of the morning was devoted to jury voir dire, and the court's fifteen preliminary instructions were read to the jurors following their lunch break. Among other things, these preliminary instructions advised the jury that the defendant is innocent and that the State has the burden to prove that the defendant is guilty beyond a reasonable doubt of every essential element of the charged offenses. The preliminary instructions also stated:

The trial of Count I will be in two stages. In the first stage, there will be a trial on the issue of whether the Defendant knowingly or intentionally possessed the firearm as charged. If you find beyond a reasonable doubt, that the defendant knowingly or intentionally possessed the firearm as charged, there will be a second stage of the trial. In the second stage, there will be a trial on the issue of whether the possession of the firearm was legal or illegal.

(Tr. 100). The final instructions referred the jury to the court's preliminary instructions and again advised the jurors that the trial on Count I was in two stages. Thus, the jury was properly instructed on the procedures for the trial and the elements of the charged offenses.

[15] Second, our review of the transcript reveals that the prosecutor did not introduce any evidence during the first phase of the trial to show that Norris was not legally allowed to possess a gun. While it was improper for the prosecutor to tell the jury that "there's a gun that [Norris is] not allowed to possess - that is unlawful for him to have[,]" the trial court immediately issued the following admonishment to the jury:

All right. Ladies and gentlemen of the jury, the only issue as far as the gun is whether he possessed it at this point. Whether it was unlawful or not has not yet been determined, and that will be covered in the instructions. Okay? All right.

(Tr. 161). If the trial court gives an admonishment, it may be considered in determining whether the misconduct was harmless. Bonner v. State , 650 N.E.2d 1139, 1142 (Ind. 1995). Accordingly, we find that, in this case, the misconduct committed by the prosecutor was adequately addressed by the trial court's admonishment, and Norris has not shown that the prosecutor's statements placed him in grave peril.

[16] Concerning the prosecutor's statement in rebuttal that Norris was "not supposed to have" a gun, we find that this statement was designed to counter Norris' closing argument that "he had motives to flee other than the crime charged - that is, to avoid arrest on unrelated matters." (Norris' Br. 16). See Cooper , 854 N.E.2d at 836 (explaining that "[p]rosecutors are entitled to respond to allegations and inferences raised by the defense even if the prosecutor's response would otherwise be objectionable"). That said, to the extent that Norris argues that the prosecutor's statements constitute prosecutorial misconduct, he invited any such error. " 'A party may not invite error, then later argue that the error supports reversal, because error invited by the complaining party is not reversible error.' " Booher v. State , 773 N.E.2d 814, 822 (Ind. 2002) (citing Ellis v. State , 707 N.E.2d 797, 803 (Ind. 1999) (quoting Kingery v. State , 659 N.E.2d 490, 494 (Ind. 1995), reh'g denied ) ).

[17] Lastly, any probable persuasive effect was further lessened by the overall strength of the State's case. Where there is overwhelming independent evidence of a defendant's guilt, error made by a prosecutor during the closing argument may be harmless. Coleman v. State , 750 N.E.2d 370, 375 (Ind. 2001). Here, Norris fled from the police, crashed his vehicle, fled from the scene, an officer observed him throw an object, and a gun was recovered "within seconds" in the area where he was observed to have thrown an object. (Tr. 136).

[18] In light of the instructions, the trial court's admonishment to the jury, and the overall strength of the State's case, we conclude that Norris has failed to show that the statements subjected him to grave peril to which he would not have been subjected otherwise. See Ryan v. State , 9 N.E.3d 663, 667 (Ind. 2014) (explaining that a claim of prosecutorial misconduct involves both a showing that the prosecutor engaged in misconduct and that the misconduct placed the defendant in a position of grave peril), reh'g denied .

2. Continuous Crime Doctrine

[19] Norris next argues that his two resisting law enforcement convictions violate the continuous crime doctrine. Specifically, he argues that the trial court erred when it entered judgment of convictions on the two counts because they were based on one continuous incident, violating the continuous crime doctrine. The continuous crime doctrine is a category of Indiana's prohibition against double jeopardy. It provides that, under such circumstances, a defendant cannot be charged multiple times for the same offense. See Hines v. State , 30 N.E.3d 1216, 1220 (Ind. 2015). The State agrees with Norris. Both Norris and the State ask that we reverse the conviction for Class A misdemeanor resisting law enforcement to resolve the continuous crime doctrine violation.

[20] A person commits the offense of Class A misdemeanor resisting law enforcement by fleeing from a law enforcement officer after the officer has, by visible or audible means, identified himself and ordered the person to stop. I.C. § 35-44.1-3-1(a)(3). The offense is a Level 6 felony if the person "uses a vehicle to commit the offense." I.C. § 35-44.1-3-1(b)(1)(A).

[21] This Court has held in several cases that a defendant cannot be convicted of both misdemeanor and felony resisting law enforcement when he or she flees in a vehicle, gets out, and immediately flees on foot. See , e.g. , Lewis v. State , 43 N.E.3d 689, 691 (Ind. Ct. App. 2015) ; Nevel v. State , 818 N.E.2d 1, 5 (Ind. Ct. App. 2004). In both of these cases, the defendant fled from the police in a vehicle, got out of the vehicle, and continued to flee from the police on foot. He was charged and convicted of both misdemeanor and felony resisting law enforcement and this Court vacated the misdemeanor resisting convictions. Lewis , 43 N.E.3d at 691 ; Nevel , 818 N.E.2d at 5.

[22] The instant case is in line with the above cited cases. Norris' actions of fleeing by vehicle and then on foot constitute one continuous act of resisting law enforcement, and we hold that convictions on both counts cannot stand. Lewis , 43 N.E.3d at 691 ; Nevel , 818 N.E.2d at 5. Our holdings are also consistent with our supreme court's decision in Hines , 30 N.E.3d at 1220, where the court clarified that the continuous crime doctrine applies "only where a defendant has been charged multiple times with the same 'continuous' offense." Our supreme court further explained that "[t]he Legislature, not this Court, defines when a criminal offense is continuous, e.g. not terminated by a single act or fact but subsisting for a definite period and covering successive, similar occurrences." Id. at 1219. We hereby remand this case to the trial court with instructions to vacate Norris' conviction for Class A misdemeanor resisting law enforcement and to amend the abstract of judgment, chronological case summary, and any other relevant court documents to reflect the vacated Class A misdemeanor conviction.

3. Sentencing

[23] Norris argues that the trial court improperly sentenced him. Specifically, he argues that the trial court abused its discretion and his sentence is inappropriate in light of the nature of the offense and his character. We will address each argument in turn.

A. Abuse of Discretion

[24] Norris' abuse of discretion argument has two components. First, he argues that the trial court failed to recognize a mitigating factor. Alternatively, he argues that the trial court relied on an improper aggravating factor. Sentencing decisions rest within the sound discretion of the trial court. Anglemyer v. State , 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g , 875 N.E.2d 218 (Ind. 2007). So long as the sentence is within the statutory range, it is subject to review only for an abuse of discretion. Id. An abuse of discretion will be found where the decision is clearly against the logic and effect of the facts and circumstances before the court or the reasonable, probable, and actual deductions to be drawn therefrom. Id. A trial court may abuse its discretion in a number of ways, including: (1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that includes aggravating and mitigating factors that are unsupported by the record; (3) entering a sentencing statement that omits reasons that are clearly supported by the record; or (4) entering a sentencing statement that includes reasons that are improper as a matter of law. Id. at 490-91.

[25] Turning to his first contention, Norris specifically argues that the trial court failed to recognize as a mitigating factor his admission that he had a prior conviction that made him a serious violent felon. In support of this argument, he contends that his decision to admit and waive phase two of his trial "saved the trial court, the jury, and the State significant time and resources." (Norris' Br. 24). " 'The finding of mitigating factors is not mandatory and rests within the discretion of the trial court.' " Page v. State , 878 N.E.2d 404, 408 (Ind. Ct. App. 2007) (quoting O'Neill v. State , 719 N.E.2d 1243, 1244 (Ind. 1999) ), trans. denied . In order to show that the trial court abused its discretion in failing to find a mitigating factor, the defendant must establish that the mitigating evidence is both significant and clearly supported by the record. Rogers v. State , 958 N.E.2d 4, 9 (Ind. Ct. App. 2011). " 'A guilty plea is not necessarily a mitigating factor where the defendant receives substantial benefit from the plea or where evidence against the defendant is so strong that the decision to plead guilty is merely pragmatic.' " Barker v. State , 994 N.E.2d 306, 312 (Ind. Ct. App. 2013) (quoting Amalfitano v. State , 956 N.E.2d 208, 212 (Ind. Ct. App. 2011), trans. denied ), reh'g denied, trans. denied .

[26] Here, the State possessed documentation in the form of the charging information, sentencing order, and judgment of conviction for Norris' prior felony conviction that made him a serious violent felon such that the decision to admit was merely pragmatic. Not only was the State ready with the necessary documents to prove its case, but the jury was already empaneled and prepared for phase two of the proceedings. Accordingly, we conclude that the trial court did not abuse its discretion.

[27] Next, Norris argues that the trial court abused its discretion because it relied on his prior 2012 resisting law enforcement conviction as an aggravating factor when it was an element of the offense.

Norris acknowledges that the trial court noted it "would not consider the prior conviction as an aggravator," but argues that the trial court's statement that "what weigh's [sic] heavy on my mind is the resistings in these cases" was an improper aggravator as a matter of law. (Norris' Br. 26) (Tr. 206). However, Norris does not quote the trial court's entire statement. In full, the trial court stated:

I think what weighs heavy on my mind is the resistings in these cases. In one case, somebody was hurt. In this case, somebody very well could have been hurt and it just shows a desperation not to be caught and not to be a person that -- to avoid the consequences of your actions and your history.

(Tr. 206).

[28] Norris is correct that it is improper as a matter of law to find that a material element of a crime is an aggravating circumstance. Gleason v. State , 965 N.E.2d 702, 711 (Ind. Ct. App. 2012). However, as our supreme court has recently explained, while a defendant's convictions cannot be used to enhance his sentence, ... "the particular facts - the ongoing nature and length of [his] criminal conduct - can properly be considered as aggravation." Phipps v. State , 90 N.E.3d 1190, 1198 (Ind. 2018).

[29] Our review of the sentencing-hearing transcript reveals that the trial court did not use Norris' 2012 conviction as an aggravating factor. During sentencing, the trial court stated:

And resisting law enforcement as a Class C misdemeanor or as a Class C felony in 2011, which is the predicate. I do notice - note that, you know, there was injury in that case to a state trooper. But I do note and I will take into account, that his incrimination [probation] was revoked and he was ordered to do present time in that case. But the conviction, obviously, I will not consider as an aggravator above the presumptive.

(Tr. 205-06) (emphasis added).

[30] It is clear that during sentencing, the trial court was referring to the particular facts of the offense, that his probation was revoked, and that it did not rely upon the conviction as an aggravator. The reference to the injury in the 2012 case was made in relation to the finding that the instant case evidenced a desperation to avoid capture that placed people at risk of injury. This is proper under Indiana law. See Gleason , 965 N.E.2d at 711 (holding that while a material element of a crime cannot be an aggravating circumstance, the nature and circumstances of the crime can be an aggravator and that if the nature of the offense is identified as an aggravating factor, the trial court must discuss facts that go beyond the statutory requirements of the crime). Accordingly, we conclude that the trial court did not abuse its discretion when sentencing Norris.

B. Inappropriate Sentence

[31] Next, Norris contends that his sentence is inappropriate. This Court may revise a sentence if it is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B). "The 7(B) 'appropriateness' inquiry is a discretionary exercise of the appellate court's judgment, not unlike the trial court's discretionary sentencing determination." Knapp v. State , 9 N.E.3d 1274, 1291-92 (Ind. 2014), cert. denied . "On appeal, though, we conduct that review with substantial deference and give due consideration to the trial court's decision-since the principal role of our review is to attempt to leaven the outliers, and not to achieve a perceived correct sentence." Id. at 1292 (internal quotation marks, internal bracket, and citations omitted). " Appellate Rule 7(B) analysis is not to determine whether another sentence is more appropriate but rather whether the sentence imposed is inappropriate." Conley v. State , 972 N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted), reh'g denied . The defendant has the burden of persuading the appellate court that his sentence is inappropriate. Childress v. State , 848 N.E.2d 1073, 1080 (Ind. 2006).

[32] " '[R]egarding the nature of the offense, the advisory sentence is the starting point the Legislature has selected as an appropriate sentence for the crime committed.' " Bowman v. State , 51 N.E.3d 1174, 1181 (Ind. 2016) (quoting Anglemyer , 868 N.E.2d at 494 ). Here, Norris was convicted of one Level 4 felony and one Level 6 felony. The sentencing range for a Level 4 felony is "for a fixed term of between two (2) and twelve (12) years, with the advisory sentence being six (6) years." I.C. § 35-50-2-5.5. The sentencing range for a Level 6 felony is "for a fixed term of between six (6) months and two and one half (2 ½) years, with the advisory sentence being one (1) year." I.C. § 35-50-2-7(b). For his Level 4 felony conviction, the trial court sentenced Norris to twelve (12) years, with eight years ordered to be executed in the Department of Correction, two years to be executed on Marion County Community Corrections, and two years suspended to probation, and 636 days for his Level 6 felony conviction. Accordingly, Norris received the maximum sentence possible for his Level 4 felony and above the advisory sentence for his Level 6 felony.

[33] We disagree with Norris' contention that "the nature of the offense is not so egregious that it merits a sentence six years above the advisory." (Norris' Br. 29). Our review of the nature of Norris' offenses reveals that he possessed a firearm as a serious violent felon, fled from the police in a vehicle at a high rate of speed in a residential neighborhood and crashed, and then fled from the police on foot. Taken together, these circumstances underscore the severity of the nature of Norris' crimes.

[34] When considering the character-of-the-offender prong of our inquiry, one relevant consideration is the defendant's criminal history. Rutherford v. State , 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance of a defendant's prior criminal history will vary "based on the gravity, nature and number of prior offenses as they relate to the current offense." Smith v. State , 889 N.E.2d 261, 263 (Ind. 2008) (internal quotation marks and citation omitted).

[35] Indeed, the most glaring aspect of Norris' character is his extensive criminal history. He concedes that he has a lengthy criminal history but asks that we recognize that his criminal history is "either directly related to substance abuse or for crimes closely associated with drug addiction." (Norris' Br. 31). This argument is unpersuasive. Norris' criminal history dates backs twenty years. Excluding the convictions from the instant case, his history includes five felony convictions: (1) a 1998 Class D felony conviction for theft; (2) a 2004 Class C felony conviction for possession of cocaine; (3) a 2012 Class C felony conviction for resisting law enforcement; (4) a 2016 Level 6 felony conviction for possession of methamphetamine; and (5) a 2016 Level 6 felony conviction for residential entry. Norris also has four misdemeanor convictions: (1) a 1999 Class C misdemeanor conviction for illegal possession of an alcoholic beverage; (2) a 2008 Class B misdemeanor conviction for possession of a device or substance used to interfere with drug or alcohol screening; (3) a 2014 Class A misdemeanor conviction for operating a vehicle while intoxicated; and (4) a 2015 Class A misdemeanor conviction for theft. Norris was also placed on probation three times and had probation revoked all three times. He was also terminated from drug treatment court in 2007 and violated the terms of a community transition program leading to revocation in 2009. Norris' current offenses are part of a pattern of disregarding the criminal laws of Indiana, which reflects negatively on his character. Accordingly, Norris has not persuaded us that his sentence is inappropriate.

[36] Affirmed in part, reversed in part, and remanded with instructions.

Vaidik, C.J., and Barnes, Sr.J., concur.

      Ind. Code § 35-47-4-5.

      I.C. § 35-44.1-3-1.

      I.C. § 35-44.1-3-1.

      The State dismissed Count III in the charging information on June 9, 2017. While the misdemeanor resisting law enforcement count was Count IV in the charging information, it was listed as Count III in the jury instructions and verdict forms. It was listed as Count IV in the sentencing order.

      Although the prosecutor's statements did not rise to the level of prosecutorial misconduct, we do not condone the State's failure to follow instructions. The State should never have sought to draw the jury's attention to Norris's inability to possess a firearm during phase one of the trial.

      While this was an admission to an element of the crime rather than a guilty plea to a count, the trial court and the parties recognized that the admission had a similar significance to a guilty plea.

      Although he was also sentenced for his Class A misdemeanor resisting law enforcement conviction, discussion of this is omitted due to our finding that it violated the continuous crime doctrine.