author: CRONE, Judge.

text:
    Lorraine (Carpenter) MILLER, Appellant-Petitioner, v. Karl CARPENTER, Appellee-Respondent.
    No. 29A02-1107-DR-663.
    Court of Appeals of Indiana.
    March 27, 2012.

      Michael G. Ruppert, Jaimie L. Cairns, Ruppert & Schaefer, P.C., Indianapolis, IN, Attorneys for Appellant.
    Richard Ranucci, Indianapolis, IN, Attorney for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Lorraine (Carpenter) Miller (“Mother”) and Karl Carpenter (“Father”) were previously married and have two children in common. The divorce decree, which incorporated the parties’ settlement agreement, gave Mother sole legal custody and primary physical custody of the children. Father had parenting time for about 127 overnights per year, but took a parenting time credit of only ninety-eight overnights. About two years later, Father petitioned for joint legal custody, an increase in parenting time, and a decrease in child support. After a hearing, the trial court granted Father the requested relief. The decrease in child support was based on Mother’s increase in income, Mother’s decrease in child care costs, and an increase in the parenting time credit.

On appeal, Mother argues that the trial court erred by: (1) granting Father joint legal custody when the evidence did not support all the pertinent factors that must be considered; (2) modifying Father’s parenting time to such an extent that it was a de facto modification of physical custody; and (3) decreasing Father’s child support obligation when it should have imputed additional income to him and retained the agreed-upon parenting time credit of ninety-eight overnights. We agree with Mother that Father failed to show a substantial change in circumstances supporting a modification of legal custody and therefore reverse the trial court on that issue. However, we conclude that the trial court did not make a de facto modification of physical custody. To modify parenting time, only a showing of the children’s best interests was required, and the evidence supports the trial court’s conclusion that the modification was in the children’s best interest. We also conclude that the trial court did not abuse its discretion by concluding that evidence of imputed income was too speculative, that Father should receive a larger parenting time credit due to the increased number of overnights that he has with the children, and that his previous support obligation exceeds the Indiana Child Support Guidelines amount by more than 20%. Therefore, we affirm the trial court’s order as to the parenting time and child support issues.

Facts and Procedural History

Mother and Father have a ten-year-old daughter, K.C., and an eight-year-old son, X.C. Mother petitioned for dissolution in 2007. On November 26, 2008, the parties filed a settlement agreement, and on December 4, 2008, the trial court dissolved the marriage and incorporated the settlement agreement into its order. Pursuant to the settlement agreement, Mother had sole legal custody of the children and primary physical custody of the children. Father had the children on alternate weekends and overnight on Wednesdays. On Father’s weekends, Father picked the children up from school on Friday, and Mother picked the children up on Sunday evenings. The parties agreed to follow the Indiana Parenting Time Guidelines for holidays and special occasions. Although she was not required to do so, Mother allowed Father to have the children on their spring break because it did not align with the spring break at the school where Mother works as a teacher. In calculating child support, the parties agreed that Father would receive credit for ninety-eight overnights, which was less than his actual number of overnights.

At the time of the dissolution, Father lived with his parents in Fishers and worked in Columbus, Indiana. Mother lived on the north side of Indianapolis and worked as a teacher. On June 30, 2010, Mother filed notice that she was moving to the south side of Indianapolis due to her recent remarriage. In response, Father filed a “Motion for Modification of Legal Custody, Parenting Time and Child Support Orders.” Appellant’s App. at 36. The motion requested joint legal custody, Sunday overnights on Father’s weekends, and a recalculation of child support.

Evidentiary hearings were held on April 14 and June 3, 2011. Father stated that he was not opposing Mother’s relocation because it had only a negligible impact on his travel time. He testified that the settlement agreement entitled him to about 128 overnights; however, because Mother had given him some additional parenting time, he actually had the children for about 134 overnights per year. On Wednesdays, Father picks the children up from school, and he takes them directly to school on Thursday mornings because it is roughly on his way to work. Father uses the travel time to talk to the children about school. Father testified that he would do the same on Monday mornings if he were allowed to have Sunday overnights. Currently, Mother picks the children up on Sunday evenings, and on Monday mornings, the children’s stepfather takes them to child care, and a bus picks them up from there.

Father testified that he felt like he was more stable, had better parenting skills, and had a stronger bond with the children than at the time of the settlement agreement. He felt that as the children were getting older, they needed more time with him. He felt that Sundays were “depressing,” because of the anticipation of the children leaving for Mother’s parenting time, and opined that “it would be better for the kids if they had a complete weekend in which they can look forward to spending time with Dad from Friday up to Monday morning.” Tr. at 35.

Father wanted joint legal custody because he felt like he was “out of the loop on some of the decisions that have been made,” id. at 54, and he thought that “two heads are better than one.” Id. at 55. Father felt that he did not get sufficient information about K.C.’s involvement in a special math program or about a surgery that X.C. had; however, Father conceded that he is already entitled to obtain the children’s school and medical records. Father acknowledged that communication with Mother had initially been “rough,” but he felt that it had improved. Id. He disagreed with Mother’s contention that he was nonresponsive in that he felt that most of Mother’s emails were simply informational and did not require a response.

Father testified that he lives with his parents, and he generally does not pay rent or contribute to the utilities or maintenance. He buys food for himself and the children and contributes to the purchase of household supplies such as laundry detergent.

Mother testified that in the past, she had allowed Father to have the children for their spring and fall breaks because her school’s schedule did not match the children’s. However, during the 2011-12 school year, her spring break will align with the children’s. Mother felt that Father was unresponsive to her emails and that they argued over “very simple things,” like paying for the children’s recreational activities. Id. at 149. Mother testified that she thought income should be imputed to Father because he does not pay for housing. She also asserted that Father’s credit for ninety-eight overnights instead of his actual number of overnights was a result of negotiation. She testified that a large portion of her income currently goes toward paying attorney fees, and her new husband pays their mortgage.

On June 27, 2011, the trial court issued its order. As to legal custody, the court stated that it considered the factors set forth in Indiana Code Section 31-17-2-15 (titled “Joint legal custody; matters considered in making award”), although it did not make specific findings regarding each factor. The court found that the parties were able to cooperate and communicate in a non-hostile manner and that the children would benefit from both parents participating in decision making. Concluding that it was in the best interests of the children, the court granted Father joint legal custody.

The court also granted Father overnights on his Sundays. It noted Father’s asserted reasons for increasing parenting time: Father’s “closer bonds with the children, their advancing maturity and greater Sunday continuity and cheer without exchange.” Appellant’s App. at 11. The court found that the children benefit from their time with Father and that it was in the children’s best interests to extend Father’s weekend parenting time.

Due to Father’s increased parenting time, the court concluded that he should get credit for 134 overnights. The court declined to impute income to Father for his lack of housing costs or to Mother for her lack of summer employment, finding that the evidence presented on the issue was too speculative. Factoring in Mother’s increased pay and decreased child care expenses, the court concluded that Father’s weekly support obligation should be reduced from $258 to $143.35. Mother now appeals.

Discussion and Decision

On appeal, Mother raises two issues, which we restate as the following four: (1) whether the trial court abused its discretion by modifying legal custody; (2) whether the trial court made a de facto modification of physical custody; (3) whether the trial court abused its discretion by modifying Father’s parenting time; and (4) whether the trial court abused its discretion by decreasing Father’s child support obligation.

Modifications of child custody, parenting time, and child support are all reviewed for abuse of discretion. See Werner v. Werner, 946 N.E.2d 1233, 1244 (Ind.Ct.App.2011) (custody), trans. denied; Tamasy v. Kovacs, 929 N.E.2d 820, 837 (Ind.Ct.App.2010) (parenting time); Kondamuri v. Kondamuri, 852 N.E.2d 939, 949 (Ind.Ct.App.2006) (child support). We grant latitude and deference to our trial judges in family law matters. Werner, 946 N.E.2d at 1244. We consider the only the evidence favorable to the judgment and the inferences flowing therefrom. Id. We do not reweigh the evidence or assess witness credibility. Id.

The trial court entered findings of fact and conclusions thereon. Pursuant to Indiana Trial Rule 52(A), we do not “set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses.” Where, as here, the findings and conclusions are entered sua sponte, “the specific findings control only as to the issues they cover, while a general judgment standard applies to any issue upon which the trial court has not found, and we may affirm a general judgment on any theory supported by the evidence adduced at trial.” Sexton v. Sedlak, 946 N.E.2d 1177, 1183 (Ind.Ct.App.2011), trans. denied.

At the outset, we note that Mother argues that her relocation did not justify any of the modifications. See Ind.Code § 31-17-2.2-1 (listing factors to consider when modifying custody based on a parent’s relocation). Father conceded at the hearing that Mother’s relocation did not have any significant impact on him or his relationship with the children and reaffirmed several times that he was not contesting Mother’s relocation. The trial court’s order does not appear to rely on Mother’s relocation as a basis for modifying custody. Therefore, we will not address Mother’s arguments concerning Indiana Code Section 31-17-2.2-1.

I. Legal Custody

In Julie C. v. Andrew C., 924 N.E.2d 1249, 1259-60 (Ind.Ct.App.2010), we held that the trial court must consider three statutes when modifying legal custody: Indiana Code Sections 31-17-2-8, -15, and -21. Indiana Code Section 31-17-2-21 states in relevant part:

(a) The court may not modify a child custody order unless:
(1) the modification is in the best interests of the child; and
(2) there is a substantial change in one (1) or more of the factors that the court may consider under section 8 ... of this chapter.
(b) In making its determination, the court shall consider the factors listed under section 8 of this chapter.

Indiana Code Section 31-17-2-8 contains factors that the trial court must consider when making an initial custody order, namely:

(1)The age and sex of the child.
(2) The wishes of the child’s parent or parents.
(3) The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(B) the child’s sibling; and
(C) any other person who may significantly affect the child’s best interests.
(5) The child’s adjustment to the child’s:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian....

Finally, Indiana Code Section 31-17-2-15 contains factors that are pertinent specifically to joint legal custody:

(1) the fitness and suitability of each of the persons awarded joint custody;
(2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child’s welfare;
(3) the wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age;
(4) whether the child has established a close and beneficial relationship with both of the persons awarded joint custody;
(5) whether the persons awarded joint custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so; and
(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.

We agree with Mother that Father failed to show that there was a substantial change in the pertinent factors such that a change in legal custody was warranted. At the hearing, Father opined that he was more stable, had more child-rearing experience, and had a stronger bond with the children than at the time of the settlement agreement. Although Father testified that he felt “out of the loop,” he acknowledged that he had access to the children’s medical and school records, and he did not dispute that Mother regularly emails him with information about the children. Tr. at 54. Father’s testimony on these points was largely conclusory and self-serving, and it does not support a conclusion that there has been a substantial change that would justify a modification of legal custody. Therefore, we reverse the trial court’s order as it pertains to legal custody.

II. Physical Custody

As noted above, pursuant to Indiana Code Section 31-17-2-21, a modification of physical custody requires a showing of the child’s best interests and a substantial change in one of the factors listed in Indiana Code Section 31-17-2-8. However, parenting time may be modified “whenever modification would serve the best interests of the child.” Ind.Code § 31-17-4-2. Thus, unlike a modification of physical custody, a modification of parenting time does not require a showing of a substantial change.

Mother argues that the modification of Father’s parenting time was so substantial that it amounted to a de facto modification of physical custody. In support, she cites Julie C. In that case, the mother initially had primary physical custody of the children. The trial court subsequently modified the father’s parenting time so that the parents had equal time with the children. On appeal, mother argued that this was a de facto modification of physical custody. We agreed, holding that “when the trial court increased Father’s parenting time to seven overnight stays during any given two-week period, it ordered a de facto modification of custody to joint physical custody.” Julie C., 924 N.E.2d at 1256. Nevertheless, we upheld the modification because the evidence in the record supported a conclusion that there had been a substantial change in circumstances. Id. at 1258-59.

Mother acknowledges that this is not a case where the parties have equal time with the children. Instead, she argues that Julie C. stands for the proposition that any substantial increase in parenting time is, in essence, a modification of physical custody. Mother asserts that, pursuant to the modified order, Father is entitled to as many as 168 overnights, i.e., 46% of overnights. It is not clear how Mother calculated these numbers, but it appears that she included the extra holiday time that she had previously allowed Father to have. Neither the original nor the modified order entitles Father to this time, and Mother’s testimony indicates that she does not intend to allow Father to have this additional time in the future so long as her spring break aligns with the children’s. Father testified that he was originally entitled to 128 days, i.e., about 35% of overnights, and he asserts that the modified order allows him 147 overnights, i.e., about 40% of overnights.

Mother has not cited any authority defining “joint physical custody.” As Julie C. involved an equal division of parenting time, the opinion does not suggest what, if anything, other than a fifty-fifty split constitutes joint physical custody. We agree with Mother that the statute governing modification of parenting time should not be used as an end run around the statutory requirement of showing a substantial change in circumstances for a modification of physical custody. However, absent any clear authority to support her argument, Mother has not persuaded us that modification of Father’s parenting time from roughly 35% to 40% of overnights is so substantial or so close to an even division of parenting time that it should be viewed as a de facto modification of physical custody.

III. Parenting Time

As discussed above, parenting time may be modified “whenever modification would serve the best interests of the child.” Ind.Code § 31-17-4-2. The evidence favorable to the judgment is that if Father has the children overnight on his Sundays, he would take them directly to school on Monday mornings and use the travel time to talk to them about school. Currently, Mother picks the children up on Sunday evening, the children’s stepfather takes them to child care on Monday morning, and the children are picked up by the bus at child care. Therefore, if the children stay overnight with Father, they can spend more time in the care of a parent and less time traveling because they would not have to go to child care or ride a bus. This evidence supports the trial court’s conclusion that extending Father’s parenting time is in the children’s best interests.

IV. Child Support

As noted above, child support orders are reviewed for an abuse of discretion. Kondamuri, 852 N.E.2d at 949. “A trial court’s calculation of a child support obligation under the child support guidelines is presumptively valid.” Id. As the party petitioning for modification, Father bore the burden of proof. Weiss v. Frick, 693 N.E.2d 588, 590 (Ind.Ct.App.1998), trams, denied. Mother makes three arguments concerning child support: (A) the trial court erred by not imputing income to Father; (B) the trial court erred by increasing the number of overnights for which Father gets credit; and (C) there was not a substantial change warranting modification.

A. Imputed Income

The Child Support Guidelines define “weekly gross income” as income of each parent “from any source,” subject to a few exclusions not applicable here. Child Support Guideline 3(A)(1). The Child Support Guidelines provide a non-exhaustive list of income sources, including gifts. Id.

Whether or not income should be imputed to a parent whose living expenses have been substantially reduced due to financial resources other than the parent’s own earning capabilities is also a fact-sensitive situation requiring careful consideration of the evidence in each case. It may be inappropriate to include as gross income occasional gifts received. However, regular and continuing payments made by a family member, subsequent spouse, roommate or live-in friend that reduce the parent’s costs for rent, utilities, or groceries, may be the basis for imputing income. The marriage of a parent to a spouse with sufficient affluence to obviate the necessity for the parent to work may give rise to a situation where either potential income or imputed income or both should be considered in arriving at gross income.

Ind. Child Support Guideline 3(A), cmt. 2(d).

The evidence showed that Father lives with his parents and does not pay for rent, maintenance, or utilities. Mother requested that $1335.33 per week be imputed to Father for these living expenses that he does not pay. However, Mother presented no evidence of the value of the expenses that Father’s parents pay for him. Mother’s figure of $1335.33 appears to be completely arbitrary, and she has not persuaded us that the trial court abused its discretion by finding that the evidence was too speculative to impute income to either party.

B. Parenting Time Credit

The trial court increased Father’s parenting time credit from ninety-eight overnights to 134. Mother argues that this was an abuse of discretion because Father has no duplicated expenses. The commentary to Child Support Guideline 6 explains the rationale for granting a parenting time credit to the noncustodial parent:

An examination of the costs associated with the sharing of parenting time reveals two types of expenses are incurred by both parents, transferred and duplicated expenses....
Transferred Expenses. This type of expense is incurred only when the child(ren) reside(s) with a parent and these expenses are “transferred” with the child(ren) as they move from one parent’s residence to the other. Examples of this type of expense are food and the major portion of spending for transportation. When spending is transferred from one parent to the other parent, the other parent should be given a credit against that parent’s child support obligation since this type of expense is included in the support calculation schedules. When parents equally share in the parenting, an assumption is made that 35% of the Basic Child Support Obligation reflects “transferred” expenses. The amount of expenses transferred from one parent to the other will depend upon the number of overnights the child(ren) spend(s) with each parent. Duplicated Fixed Expenses. This type of expense is incurred when two households are maintained for the child(ren). An example of this type of expense is shelter costs which are not transferred when the children) move(s) from one parent’s residence to the other but remain fixed in each parent’s household and represent duplicated expenditures. The fixed expense of the parent who has primary physical custody is included in the Guideline support schedules. However, the fixed expense of the other parent is not included in the support schedules but represents an increase in the total cost of raising the child(ren) attributed to the parenting time plan. Both parents should share in these additional costs.

Child Support Guideline 6, cmt.

The parenting time credit represents the total of transferred and duplicated expenses by the noncustodial parent as a percentage of the weekly basic child support obligation. Id. The percentage varies with the number of overnights. For 131 to 135 overnights, the percentage is .544; duplicated expenses account for .417 and transferred expenses account for .127. Child Support Guideline 6, Table PT. Using these percentages, Father’s parenting time credit is $143.49.

Mother concedes that Father has transferred expenses, but argues that he has no duplicated expenses because he does not pay for housing. Thus, she argues that the parenting time credit should be calculated using 0% for duplicated expenses and .127 for transferred expenses, resulting in a credit of $52.45. See Appellant’s Br. at 38 (showing a Parenting Time Credit Worksheet using these figures). Mother argues that using .544, as the trial court did, results in a windfall to Father.

First, we note that the trial court did not give Father a full parenting time credit because it used 134 overnights when he really gets 147 (or more, according to Mother). Using 147 overnights would have resulted in a credit of $160.61. Second, the evidence showed that both parents have their housing subsidized by other adults. Neither Father nor Mother pays a mortgage or rent, yet Mother’s housing expenses are factored into the basic support obligation. See Child Support Guideline 6, cmt. (duplicated fixed expenses include housing, and the fixed expenses of the parent with primary physical custody are “included in the Guideline support schedules”). On the record before us, Mother has not shown that the already reduced parenting time credit results in a windfall for Father. Thus, she has not persuaded us that the trial court abused its discretion in calculating the parenting time credit.

C. Substantial Change

A child support order may be modified:

(1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or
(2) upon a showing that:
(A) a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines; and
(B) the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed.

Ind.Code § 31-16-8-l(b).

Pursuant to the settlement agreement, Father paid $258 per week in child support. Using Mother’s increased income, Mother’s decreased child care costs, and Father’s increased parenting time credit, the court found that the Child Support Guidelines would result in a weekly child support obligation of $143.35. Because $258 deviates from the Guidelines amount by more than 20% and the child support order had been in place for more than a year, the trial court found that the criteria of Indiana Code Section 31 — 16—8—1(b)(2) had been met and reduced Father’s weekly obligation to $143.35.

Mother does not dispute that her income has increased and her child care costs have decreased. However, she argues that Father’s obligation cannot be decreased because he agreed to pay an amount in excess of the Guidelines. Mother relies on Hay v. Hay, 730 N.E.2d 787 (Ind.Ct.App.2000). In Hay, the father initially agreed to pay the children’s college tuition. Once the oldest child reached college age, the father petitioned for a modification of child support, asking the trial court to determine child support based on the Post-Secondary Education Worksheet included in the Guidelines. The father alleged that the child’s intent to enroll in college was a substantial change in circumstances warranting modification. The trial court denied the father’s petition, and he appealed.

We held that the child’s enrollment in college was not a substantial change because her enrollment in college was contemplated by the parties as evidenced by the father’s agreement to pay for college. Id. at 793. Thus, child support could not be modified pursuant to Indiana Code Section 31-16-8-l(b)(l). Id. Alternatively, the father argued that child support could be modified pursuant to subsection (b)(2) due to a 20% deviation. The Hay panel found that the father had waived this argument because he had not made that argument to the trial court. Id. at 794, disagreed with by Holtzleiter v. Holtzleiter, 944 N.E.2d 502, 506 (Ind.Ct.App.2011). In dicta, the Hay panel stated that “when a parent has agreed to pay support in excess of the guidelines and which could not be ordered by a trial court, that parent must show a substantial change in circumstances independent of the twenty percent deviation to justify modification.” Hay, 730 N.E.2d at 795, disagreed with by In re Marriage of Kraft, 868 N.E.2d 1181, 1189 (Ind.Ct.App.2007).

Mother argues that because Father agreed to receive credit for ninety-eight overnights when he would have been entitled to more, he cannot rely on an increase in the number of overnights to establish a 20% deviation, but must show a substantial change in circumstances. Even if the dicta in Hay is correct, we do not believe that its rationale is applicable here. In Hay, the parties’ agreement contemplated that the children would attend college; thus, the panel expressed concern that the father was simply attempting to back out of his agreement after the mere passage of time. In this case, the parties negotiated both the parenting time credit and Father’s actual number of overnights; in other words, the credit for ninety-eight overnights was premised on Father receiving about 127 actual overnights. Nothing in the parties’ agreement contemplates that Father would continue to receive credit for ninety-eight overnights regardless of any parenting time modifications that might occur. This is not a situation where a parent is merely attempting to circumvent an agreement; Father’s overnights have been increased to about 147 based on the children’s best interests. It is likewise in the children’s best interests to adjust Father’s child support obligation to reflect this new reality. See In re Kraft, 868 N.E.2d at 1188-89 (disagreeing with Hay, the panel noted that the statutory scheme is intended to promote the best interests of children). The increased credit is not to reward Father, but to provide the children with continuity in their standard of living. See Ind. Child Support Guideline 1 (the Guidelines attempt to give children the standard of living they would have enjoyed had the marriage not been dissolved); Bussert v. Bussert, 677 N.E.2d 68, 71 (Ind.Ct.App.1997) (child support payments are for the benefit of the child and should not be used to leverage one parent’s standard of living at the expense of the other), trans. denied. Therefore, we conclude that the trial court did not abuse its discretion by modifying Father’s child support obligation pursuant to Indiana Code Section 31 — 16^8—1(b)(2) rather than Subsection (b)(1).

CONCLUSION

The evidence does not support a conclusion that there was a substantial change in circumstances justifying a modification of legal custody. Therefore, we reverse the trial court’s grant of joint legal custody to Father. Contrary to Mother’s argument, the trial court did not make a de facto modification of physical custody, but only a modification of parenting time. A modification of parenting time requires only a showing of the children’s best interest, which Father met in this case. As to child support, the trial court did not abuse its discretion by finding the evidence of imputed income too speculative or by increasing Father’s parenting time credit. Because more than a year, has passed since the original support order and Father’s obligation deviated from the Child Support Guidelines by more than 20%, the trial court did not err by reducing Father’s child support obligation. Therefore, we affirm the trial court’s order as to parenting time and child support.

Affirmed in part and reversed in part.

MAY, J., and BROWN, J., concur.

      . Father explains his calculations as follows:
      The [Original Divorce] Decree had granted Father 128 annual overnight stays, which Father calculated by multiplying one hundred and eighty-five school nights by twenty percent (two often — Wednesdays), and adding this total to his half of non-school overnights [(185 x .2) + (180 x .5) = 127], The Order of June 27, 2011, extended Father’s alternate Sunday parenting time (school weeks only since alternate weekends are trumped by vacation and holiday parenting provisions) to overnights, adding 18 to 19 overnights per year, for a total of about 147 annual overnight stays.
      Appellee’s Br. at 16 (internal citation omitted).

      . Given the frequency with which child custody issues arise, it would be ideal if the relevant statutes defined key terms and indicated more clearly how they should be harmonized.

      . Mother contends that the trial court failed to explain the deviation from the Parenting Time Guidelines in writing. See Ind. Parenting Time Guidelines, Preamble, § 2 ("Any deviation from these Guidelines by either the parties or the court must be accompanied by a written explanation why the deviation is necessary or appropriate in the case.”). On the contrary, the court specifically found that the children would have more continuity, that the arrangement would not result in additional travel time for the children, that the children benefit from time with Father, and that the modification was in the children’s best interests.

      . The trial court’s order did not include a Parenting Time Credit Worksheet; however, Mother recreated a worksheet in her brief. Appellant's Br. at 37.

      . This figure is reached by using Mother's Parenting Time Credit Worksheet and substituting the applicable percentages from Table PT for 147 overnights. If Mother’s assertion that Father gets 168 overnights per year is correct, the Parenting Time Credit Worksheet would result in a credit of $173.69.


source: Caselaw Access Project

author: BARTEAU, Senior Judge.

license: Public Domain

text:
    Juan M. GARRETT, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 49A04-1107-PC-410.
    Court of Appeals of Indiana.
    March 28, 2012.

      Stephen T. Owens, Public Defender of Indiana, Randy A. Elliott, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARTEAU, Senior Judge.

STATEMENT OF THE CASE

Juan M. Garrett appeals from the denial of his petition for post-conviction relief. He contends that his trial counsel and direct appeal counsel provided ineffective assistance by failing to challenge alleged violations of the prohibition against double jeopardy under the federal and state constitutions. We affirm.

ISSUE

Garrett raises one issue, which we restate as: whether Garrett received ineffective assistance of trial and direct appeal counsel.

FACTS AND PROCEDURAL HISTORY

The facts of this case, taken from this Court’s memorandum decision in Garrett’s direct appeal, are as follows:

Early in the morning of June 9, 2007, A.W. reported to the police that three men forced her into a van, took her to an apartment, and forced her to submit to multiple acts of oral sex and vaginal intercourse. One of the perpetrators gave her a piece of paper with the name “Juan” and a phone number written on it. He told her “to call him again if [she] wanted to have a good time again.” (Tr. at 368.) A.W. showed an officer the location of the apartment where she had been raped.
Police discovered the phone number and apartment belonged to Garrett. On June 25, 2007, Garrett went to the Sex Crimes Office and was interviewed by Detective Linda White and Sergeant Craig McCartt. Detective White gave Garrett Miranda warnings, which Garrett said he understood. She then read him an advice of rights form, which he said he understood and signed.
Garrett told the officers he had called off work on the evening of June 8 because he was sick, but he then went to the Embassy Suites for off-track betting. He claimed he returned home around 9:00 and went straight to bed. He denied that anyone was at his apartment that evening. When confronted with the note, Garrett said, “I meet a lot of people on the bus downtown. I have no idea from there.” (State’s Ex. 8 at 8.) Detective White asked Garrett if he would give a buccal swab, but Garrett refused.
Garrett’s DNA was later obtained by court order, and his DNA matched a sample from A.W.’s rape examination. Detective White showed A.W. a photographic array, and A.W. identified Garrett as one of the perpetrators.
On June 27, 2007, Garrett was charged with Count 1, Class A felony rape (alleging he raped A.W. while armed with a knife); Count 2, Class A felony rape (also alleging he raped A.W. while armed with a knife); Count 3, Class B felony criminal deviate conduct; Count 4, Class B felony criminal confinement (alleging he confined A.W. in an apartment while armed with a knife); and Count 5, Class C felony criminal confinement (alleging he forced A.W. into a vehicle). The case was tried to a jury on April 14, 2008. The jury found Garrett not guilty of Counts 1, 3, and 5, but it could not reach a verdict on Counts 2 and 4.
Counts 2 and 4 were retried to the bench on June 5, 2008. A.W. testified that on the evening of June 8, 2007, she ended up in an apartment with three men she did not know. One man was older, and two were younger. After they entered the apartment, one of the men locked the door. She did not want to be there. She begged them to let her go because she had a sick child at home and needed to take care of him. The men refused, and said they were “going to do things to” her, and she feared they were going to hurt or kill her. (Tr. at 361.)
The apartment was a one-room studio containing a bed and couch. One of the men pushed her onto the couch, and the two younger men sat down beside her. The older man sat down on the bed. The men started drinking and smoking marijuana. She did not want to drink, but they squeezed her jaw and poured alcohol into her mouth.
After a while, the men pulled her clothes off. A.W. was forced onto the bed:
Q. How did you get over to the bed?
A. I was pulled over to the bed and pushed down on the bed.
Q. All right. When you were pushed down onto the mattress, what man were you with?
A. The older one.
Q. When the older man pushed you down on the mattress, what happened?
A. He stuck his penis inside of me and had sex with me.
Q. When you say he stuck his penis inside of you, what part of you?
A. In my vagina.
Q. When he put his penis in your vagina, how did that feel?
A. I didn’t like it. It hurt.
(Id. at 363-64, 366). A.W. identified Garrett as the man who had raped her. A.W. asked him to stop, but he did not.
While Garrett was having sex with her, she noticed a knife at the end of the bed. When he finished, he told her she could get dressed and leave. However, one of the younger men prevented her from leaving. She was finally allowed to leave after Garrett had sex with her again. Garrett gave her his phone number, and she also took the knife when he was not paying attention.
A.W. ran to a gas station down the street and called 911. A.W. gave the police the note and the knife and showed them where the apartment was. She was then taken to a hospital for an examination. The nurse testified A.W. “was tearful, upset, she was cooperative with me, but very uncomfortable, having some pain, rated I believe a 9 out of 10.” (Id. at 392.) A.W.’s injuries included a chipped tooth, a hemorrhage in her eye, and bruises on several parts of her body.
The trial court found Garrett guilty of rape as a Class B felony, because A.W. had testified she had not seen anyone touch the knife. The trial court found him not guilty of criminal confinement, because A.W. testified one of the other men had prevented her from leaving after Garrett had sex with her.

Garrett v. State, No. 49A02-0807-CR-609, slip op. at 2-5, 2009 WL 485203 (Ind.Ct.App. Feb. 25, 2009) (footnotes omitted), trans. denied. Garrett appealed, challenging the admissibility of his statements to the police and the sufficiency of the evidence. This Court affirmed his conviction. See id. at 9.

Next, Garrett filed a petition for post-conviction relief. After an evidentiary hearing, the post-conviction court issued findings of fact and conclusions of law denying Garrett’s petition. This appeal followed.

DISCUSSION AND DECISION

In reviewing the judgment of a post-conviction court, appellate courts eon-sider only the evidence and reasonable inferences supporting the judgment. Hall v. State, 849 N.E.2d 466, 468 (Ind.2006). To prevail on appeal from the denial of post-conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite to that reached by the post-conviction court. Id. at 469. Where, as here, the post-conviction court enters findings and conclusions in accordance with Indiana Post-Conviction Rule 1(6), we will reverse upon a showing of clear error — that which leaves us with a definite and firm conviction that a mistake has been made. Id.

In this case, Garrett contends that his trial counsel, Melissa Perez, should have filed a motion to dismiss the second rape charge prior to his retrial or should have objected to the charge during retrial. He also contends that his direct appeal counsel, Julie Ann Slaughter, should have argued that his retrial on the second rape charge was impermissible. Specifically, Garrett contends that his retrial and subsequent conviction on the second rape charge violated his federal and state constitutional protections against double jeopardy, and his attorneys were ineffective for failing to raise these claims.

To establish a claim of ineffective assistance of trial counsel, a defendant must demonstrate that counsel performed defi-ciently and the deficiency resulted in prejudice. Lee v. State, 892 N.E.2d 1231, 1233 (Ind.2008) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To establish the first element, the defendant must show deficient performance: representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the “counsel” guaranteed by the Sixth Amendment. Henley v. State, 881 N.E.2d 639, 644 (Ind.2008). To establish the second element, the defendant must show prejudice: a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s errors, the result of the proceeding would have been different. Id. Counsel’s performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption. Ritchie v. State, 875 N.E.2d 706, 714 (Ind.2007).

The standard of review for a claim of ineffective assistance of appellate counsel is the same as for trial counsel in that the defendant must show that appellate counsel was deficient in his or her performance and that the deficiency resulted in prejudice. Henley, 881 N.E.2d at 644. Ineffective assistance of appellate counsel claims fall into three categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well. Carter v. State, 929 N.E.2d 1276, 1278 (Ind.2010).

We choose to resolve this appeal by addressing whether Garrett was prejudiced by his attorneys’ failure to present his double jeopardy claims. If we can resolve an ineffective assistance claim on the question of prejudice, we need not address whether counsel’s performance was deficient. Helton v. State, 907 N.E.2d 1020, 1023 (Ind.2009).

We begin with the federal double jeopardy clause. The Fifth Amendment to the United States Constitution provides, in relevant part, that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” Federal double jeopardy jurisprudence bars a defendant from being prosecuted for an offense after being acquitted for the same offense. Griffin v. State, 717 N.E.2d 73, 77 (Ind.1999). When an appellant alleges a federal double jeopardy clause violation, we consider whether each statutory provision at issue requires proof of an additional fact which the other statutory provision does not. McIntire v. State, 717 N.E.2d 96, 98 (Ind.1999).

In Griffin, a jury acquitted Griffin of felony murder by robbery and deadlocked on charges of robbery and conspiracy to commit robbery. The State retried Griffin on the robbery and conspiracy charges, and the jury found him guilty of both charges. On appeal, Griffin contended that retrial on the robbery charge violated the federal double jeopardy clause because the robbery was the underlying offense for his felony murder charge, so an acquittal on one charge was, in essence, an acquittal on both. Our Supreme Court determined that the felony murder by robbery charge and the robbery charge required proof of the same facts and constituted the “same offense.” Id. at 78. However, the Court noted that in order to acquit Griffin of felony murder by robbery, the jury did not necessarily have to conclude that the State failed to prove the underlying felony of robbery. Furthermore, Griffin’s constitutional jeopardy under the robbery charge was merely suspended because of mistrial, and the jeopardy continued upon retrial rather than constituting a separate jeopardy. Thus, Griffin was not placed in jeopardy twice for the same offense, and his retrial and conviction did not violate the federal double jeopardy clause.

In the current case, Garrett’s two rape charges necessarily have the same statutory elements and do not require proof of different facts. Thus, they appear to be the same offense for the purposes of the federal double jeopardy clause. Nevertheless, “the ‘same offense’ issue is only one aspect of double jeopardy jurisprudence.” Id. at 78. A retrial following a hung jury does not violate the federal double jeopardy clause. Id. at 79. When the jury acquitted Garrett of one of the rape charges, it did not necessarily conclude that the other rape charge was also unproven. In addition, if the State had failed to prove the rape charge against Garrett on retrial, we presume that the trial court, as the finder of fact, would have reached a verdict of acquittal. See id. at 81 (presuming that the jury would have voted to acquit, rather than deadlock, on a charge of robbery if the State had failed to carry its burden of proof where the jury had previously acquitted the defendant of felony murder). Furthermore, as was the case in Griffin, Garrett was not put in jeopardy twice. Rather the jeopardy began when the rape charges were filed and continued through his retrial. Consequently, we conclude that the retrial of the second rape charge did not violate Garrett’s Fifth Amendment protection against double jeopardy.

Turning to Garrett’s double jeopardy claim under the Indiana Constitution, Article 1, Section 14 provides: “No person shall be put in jeopardy twice for the same offense.” Indiana’s double jeopardy clause was intended to prevent the State from being able to proceed against a person twice for the same criminal transgression. Nicoson v. State, 938 N.E.2d 660, 662 (Ind.2010). Two or more offenses are the same offense if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense. Sloan v. State, 947 N.E.2d 917, 924 (Ind.2011).

The “statutory elements” test is the same as the analysis required by federal double jeopardy clause jurisprudence. See Brown v. State, 912 N.E.2d 881, 896 (Ind.Ct.App.2009) (asserting that the statutory elements test is identical to the standard set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)), trans. denied. Having determined that Garrett’s retrial did not violate the federal double jeopardy clause, we also conclude that the retrial did not violate the statutory elements test of the Indiana double jeopardy clause.

The second element of Indiana’s double jeopardy clause analysis is the “actual evidence” test. To show that two challenged offenses constitute the same offense under the actual evidence test, a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense. Vestal v. State, 773 N.E.2d 805, 806 (Ind.2002). Application of this test requires the court to identify the essential elements of each of the challenged crimes and to evaluate the evidence from the fact-finder’s perspective. James v. State, 953 N.E.2d 1191, 1194 (Ind.Ct.App.2011).

Based on this Court’s precedent, we conclude that the actual evidence test does not apply to this case. In Buggs v. State, 844 N.E.2d 195, 198 (Ind.Ct.App.2006), trans. denied, the State charged Buggs with murder and felony murder, among other charges, arising out of one act of murder. The jury acquitted Buggs of felony murder and could not reach a verdict on the murder charge. The State retried Buggs on the murder charge, and the jury convicted him. On appeal, Buggs argued, among other claims, that his retrial violated Indiana’s prohibition against double jeopardy because the felony murder and murder charges were the same offense and violated the actual evidence test. A panel of this Court noted that no Indiana appellate court has applied the actual evidence test where there is an acquittal on one charge and retrial on another charge after a hung jury. This Court further noted, “our Supreme Court has made no indication that the actual evidence test is even used to determine whether two offenses are the same offense when there is an acquittal on one offense and retrial on another offense.” Id. at 201-02. Therefore, this Court concluded that the doctrine of collateral estoppel, rather than the actual evidence test, is more appropriate in such situations.

In the current case, both parties discuss the actual evidence test, but neither cites to any appellate case where the actual evidence test has been applied to a case such as this. Furthermore, our Supreme Court has not indicated since the issuance of Buggs that the actual evidence test should be applied where the jury votes to acquit on one charge but deadlocks on another charge, and the defendant is retried on the deadlocked charge. Consequently, we choose not to apply the Richardson actual evidence test to this case and instead turn to the doctrine of collateral estoppel.

The doctrine of collateral es-toppel, or in modern usage, issue preclusion, provides that when an ultimate issue of fact has been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Coleman v. State, 946 N.E.2d 1160, 1164 (Ind.2011). Collateral estoppel is not the same as double jeopardy, but rather it is embodied within the protection against double jeopardy. Id. at 1165. The traditional bar of double jeopardy prohibits the prosecution of the crime itself, whereas collateral estoppel, in a more modest fashion, simply forbids the government from relitigating certain facts in order to establish the fact of the crime. Id. In essence, the doctrine of collateral estoppel precludes the government from litigating any issue that was necessarily decided by a jury’s acquittal in a prior trial. Id. To decipher what a jury necessarily decided in a prior trial, courts should examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration. Id.

In this case, the charging information describes both counts of rape identically, as follows:

On or about June 9, 2007, Juan Garrett did knowingly have sexual intercourse with [A.W.], a member of the opposite sex, when [A.W.] was compelled by force or the imminent threat of force, and further said act was committed while armed with a deadly weapon, that is: a knife.

Appellant’s Direct Appeal App. p. 28. The probable cause affidavit that accompanied the information clarified that Garrett allegedly raped the victim twice during their encounter. Next, in its instructions to the jury on the rape charges during the first trial, the trial court stated identical elements for each charge:

That the defendant, Juan Garrett, on or about June 9, 2007,
1. did knowingly
2. have sexual intercourse with [A.W.], a member of the opposite sex,
3. when [A.W.] was compelled by force or imminent threat of force,
4. and further said act was committed while armed with a deadly weapon, that is: a knife....

Id. at 73-75.

At the first trial, the victim testified that Garrett raped her twice during their encounter. Specifically, she stated that after Garrett and his accomplices forced her to drink alcohol and removed her clothes, Garrett bent her over a mattress and forced his penis into her vagina. Next, as the victim gathered her clothing and attempted to leave, one of Garrett’s accomplices stopped her from leaving and raped her. Subsequently, Garrett sent the other man outside to find Garrett’s mobile phone, forced the victim back onto the mattress, and again forced his penis into her vagina. During closing statements, the prosecution argued to the jury that Garrett committed two separate rapes upon the victim.

The jury heard evidence that two rapes occurred, and its verdict of acquittal on one charge does not give rise to a conclusion that the jury decided that the other rape did not occur. If the jury had concluded that the State had failed to prove that neither rape occurred, then it would have acquitted Garrett of both charges of rape. Thus, a rational jury could have grounded its vote to acquit on one count of rape on issues unrelated to the second rape charge. We conclude that collateral estoppel did not bar relitigation of the second count of rape.

Garrett cites Brinkman v. State, 57 Ind. 76 (1877), to support his Indiana double jeopardy claim, but that case is factually distinguishable. In that case, Brinkman was convicted in separate trials of charges of selling intoxicating liquor to a minor. Our Supreme Court concluded that one of the convictions could not stand because the same evidence could have been used to convict Brinkman in both cases. By contrast, in this case the doctrine of collateral estoppel is applicable rather than the “actual evidence” test. Furthermore, unlike the appellant in Brinkman, Garrett was acquitted of one charge and convicted of the second charge upon retrial, rather than being convicted of both offenses. Consequently, Brinkman is not controlling.

Because Garrett’s double jeopardy claims are without merit, he was not prejudiced by his trial and direct appeal attorneys’ failure to raise these claims. For these reasons, we are not left with a definite and firm conviction that the post-conviction court has made a mistake.

CONCLUSION

For the reasons stated above, we affirm the judgment of the post-conviction court.

Affirmed.

FRIEDLANDER, J., and BROWN, J., concur.


author: BRADFORD, Judge.

text:
    William MINNICK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 47A05-1108-CR-448.
    Court of Appeals of Indiana.
    April 3, 2012.

      Brent Westerfeld, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Stephen R. Creason, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

Appellant-Defendant William Minnick appeals from the sentence imposed following his convictions for Murder, a felony, Class A felony Robbery, and Class A felony Rape. Minnick contends that the trial court erred in imposing sentences for his robbery and rape convictions, that his convictions for Class A felony robbery and murder violate prohibitions against double jeopardy, and that the trial court abused its discretion in refusing to order an additional competency evaluation before sentencing him. We affirm in part and reverse and remand in part with instructions.

FACTS AND PROCEDURAL HISTORY

The facts underlying Minnick’s convictions were related by the Indiana Supreme Court in Minnick v. State, 544 N.E.2d 471 (Ind.1989):

On the afternoon of October 26, 1981, James D. Payne returned from work to his home in Greencastle, Indiana. He discovered his wife’s body on the bedroom floor. He immediately called police. The ensuing investigation revealed Martha Payne had been raped, anally sodomized, stabbed in the right rear shoulder, and struck on the head with a table lamp. In addition, ligature marks on her neck indicated she had been strangled, and burn marks on her ankles showed the perpetrator had attempted to electrocute her as well. The cause of death was determined to be the knife wound in her upper back, which penetrated her lung and severed her pulmonary artery.
That night Sergeant Rodney Cline became aware that a “Dukes of Haz-zard” — type car had been observed parked in a college fraternity’s lot near the victim’s home around the time of her death. Cline confirmed the driver’s description matched that of appellant, who had spoken to Cline outside the victim’s house that afternoon to apologize for a dispute the two had engaged in a week earlier concerning the involuntary towing of appellant’s distinctive orange Dodge Charger.
Appellant was subsequently arrested and search warrants were obtained for his car and for specimens of his blood and hair for comparison with samples taken at the crime scene. A strand of hair found adhering to a length of electrical wire in appellant’s car was determined to be of common origin with hair samples taken from the victim. Laboratory tests revealed the victim’s blood was type B and matched blood specimens found on a broken table lamp and kitchen knife found at the crime scene. Semen specimens recovered from the carpet underneath the victim turned out to be from two separate donors: one a type O secretor, ie., one who secretes the antigens used in typing blood in other body fluids, and the other a non-secretor of unknown type. The victim’s husband and appellant were each determined to have type 0 blood — the husband a secretor, appellant a non-se-cretor. Thus appellant was neither positively identified nor definitively ruled out as a donor of the semen found under the victim’s body.
Appellant’s alibi witnesses testified as to his whereabouts at various times the afternoon of the murder. Due to technical oversights following discovery of the victim’s body, however, authorities were unable to pin down her time of death with any precision. Appellant admitted to Sergeant Cline that he had been in the victim’s home that afternoon to see about doing some remodeling work for the Paynes. In addition, two witnesses testified at trial that appellant had made inculpatory admissions relating certain details of the murder while incarcerated.

Id. at 473-74. On October 29, 1981, the State charged Minnick with murder, Class A felony robbery, Class A felony rape, and criminal deviate conduct. On September 18, 1985, a jury found Minnick guilty of murder, robbery, and rape. On October 16, 1985, the trial court sentenced Minnick to death for his murder but did not impose separate sentences for robbery or rape. During sentencing, the trial court did not mention a reason for not imposing sentences for Minniek’s robbery or rape convictions and Minnick did not object to his not being sentenced for them.

On December 1, 2004, the post-conviction court set aside Minnick’s death sentence and ordered resentencing and also determined that he was incompetent, having been previously found to be so by the United States District Court. On March 7, 2011, the Indiana Department of Mental Health sent certification to the trial court that Minnick was competent.

On August 23, 2011, the trial court held a new sentencing hearing. At the beginning of the hearing, the following exchange took place:

[Minnick’s Counsel]: Very reluctantly I would ask the Court to have Mr. Min-nick examined for competency. Mr. Minnick, as the Court is aware, has a very very long history of suffering from paranoid schizophrenia. He was diagnosed with that in his post conviction proceedings several years ago. He was determined to be incompetent in Federal Court and a Guardian was appointed for him. He had indeed been largely incompetent for the last ten (10) years. While I had (indiscernible) that Mr. Minnick had been restored to competency, upon speaking with him today it’s very clear to me that he is not at this point competent, he is not at this point able to assist his counsel. Ms. Youngc-ourt is here at my request because she represented Mr. Minnick in post conviction. We both believe that a further competency determination is required at this point and I won’t say much further about that other than I would refer the Court to a Presentence Investigation Report, which I think gave us some sense that this may have been coming. In that report it indicates that the probation officer requested a statement from Mr. Minnick and at that point he went into a soliloquy that lasted approximately three and a half (3½) hours. Regarding some of the same things the Court is aware of, the problems that we’ve had with Mr. Minnick’s mental illness through the years, for those reasons I would ask that the Court admit him under the statute for a competency determination and that we delay these proceedings.
COURT: [Prosecutor], do you have a response?
[Prosecutor]: Yes. The State would object, Your Honor. The Department of Mental Health found him competent, I think, in early March. There’s been no expert testimony about that since. We think that the thing to [do] today is go ahead and present evidence and see how this proceeds.
COURT: I do trust defense counsel’s evaluation of Mr. Minnick because they have worked with him over the years. How I would like to proceed however is that the Department of Mental Health has found Mr. Minnick recently to be competent to assist counsel and Mr. Minnick to help your attorney in today’s hearing, I’d like to at least try to get through this hearing. If at some point you want to revisit this issue, re-raise it, let me know that he’s not able to assist you or discuss with you what’s happening in the courtroom, at any point in the hearing you may re-raise it. I think the Court will note your request for the record. I would like the State to go ahead and proceed and we’ll see how we go and how Mr. Minnick can aid you at this point. I do understand he has that history, the Court also understands you have requested the Court consider that as a mitigating factor and that will clearly come up later in the hearing we will just see how we go as the hearing proceeds and how Mr. Minnick is able to help you, we’ll see how we do.

Tr. pp. 3^4.

Following the presentation of evidence, the trial court stated the following on the record:

COURT: I first want to note for the record regarding the original issue of competency that was raised by Defense, I’ve been observing Mr. Minnick during this proceeding. He’s sat calmly, he has aided counsel, asked questions, I believe that his allocution statement was very clear and concise. He made points to the court that I believe were appropriate. I have no reason to believe he wasn’t competent to aid Counsel in this hearing, so any concerns had or requests raised regarding that I am going to deny. I think that he was competent for this hearing and appropriately aided counsel in his defense. I want to make that statement for the record.

Tr. p. 64. The trial court sentenced Min-nick to sixty years of incarceration for murder, fifty years for robbery, and fifty years for rape, all sentences to run consecutively. For purposes of imposing enhanced sentences, the trial court found, as aggravating circumstances, Minnick’s criminal record, his escape from jail after his arrest, and that Payne was killed in her home. The trial court found Minnick’s mental illness to be a mitigating circumstance. In justifying the imposition of consecutive sentences, the trial court also found it to be aggravating that the injury, loss, or damage suffered by Payne was greater than required to prove the crimes charged.

DISCUSSION AND DECISION

I. Whether the Trial Court Erred in Imposing Sentences for Robbery and Rape

A. Indiana Code Section 35-4.1-4-2

In 1981, Indiana Code section 35-4.1-4-2 (and now its successor statute, section 35-38-1-2) required that a trial court sentence within thirty days of the entry of conviction. Minniek was not sentenced for his robbery or rape convictions for over twenty-five years following his convictions. As the Indiana Supreme Court has held, however, “trial courts are excused from exact compliance with the thirty-day sentencing requirement where there is good cause for delay and that such cause may be presumed where the record is silent as to the reason for the delay and the defendant made no objection.” McElroy v. State, 553 N.E.2d 835, 840 (Ind. 1990) (citing Kindred v. State, 524 N.E.2d 279, 302 (Ind.1988)). Here, there was no objection and the trial court gave no reason for not sentencing Minniek for rape or robbery. Pursuant to McElroy, we will presume good cause, thereby excusing the trial court from adherence to the thirty-day requirement.

Even if we had concluded that the trial court committed error in this regard, it could only have been considered harmless. The rationale for the rule that a defendant is entitled to have his sentence pronounced with reasonable promptness, as stated by the Indiana Supreme Court, is that “[a]n American citizen is entitled to live without a Damocles sword dangling over his head.” Taylor v. State, 233 Ind. 398, 402, 120 N.E.2d 165, 167 (1954). This rationale has no application here, though, because Minniek spent the entire delay period incarcerated, most of it under a sentence of death. This was not a case where Minniek was a free man unable to live his life, plan for the future, or otherwise find repose due to the looming threat of incarceration. It is hard to imagine, and Minniek does not claim, that while sitting on death row he was ever troubled by the fact that he had never been sentenced for rape and robbery but someday might be.

B. Right to Speedy Sentencing

Minniek also contends that his constitutional right to speedy sentencing was violated by the delay. The Sixth Amendment to the United States Constitution provides, inter alia, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.]” U.S. Const. amend. VI. As with the Seventh Circuit Court of Appeals, we shall assume, without deciding, that the Sixth Amendment right to speedy trial applies to sentencing. See U.S. v. Rothrock, 20 F.3d 709, 711 (7th Cir.1994). Also like the Seventh Circuit, we will analyze the question using the considerations described in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972):

The right to a speedy trial is a vague concept, incapable of precise evaluation. Barker v. Wingo, 407 U.S. 514, 521, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101 (1972). In determining whether the right has been violated, we start by examining the length of delay; “[u]ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance .... [T]he length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case.” Id. at 530-31, 92 S.Ct. at 2192. (footnote omitted). Once a sufficient delay has been identified, the reason for the delay must be examined and the defendant’s assertion of the right is considered. Id. at 531, 92 S.Ct. at 2192. Finally, we determine whether the defendant has been prejudiced. Prejudice is gauged by considering the interests the right is designed to protect: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that defense will be impaired.” Id. at 532, 92 S.Ct. at 2193 (footnote omitted).

Rothrock, 20 F.3d at 711-12.

Under the admittedly unusual circumstances of this case, we cannot conclude that even the twenty-five-year delay in sentencing violated Minnick’s right to speedy sentencing. While the delay was quite lengthy, there is no indication in the record that it was the result of any objectionable actions by the State or trial court, and Minnick never asserted his right to be sentenced at the time or at any time before his death sentence was vacated and resentencing ordered in 2004.

Most importantly, however, there is no indication that Minnick was unfairly prejudiced by the delay. Minnick argues that what occurred here is equivalent to arbitrarily ordering a released defendant back to court for an additional sentence. We do not agree. As previously mentioned, Min-nick has been incarcerated since 1981, and therefore had no “Damocles sword” hanging over his head. Minnick also notes that, if his sentences for rape and robbery had been imposed in 1985 and ordered to run concurrently with his death sentence, they would have been discharged by now. While this may be true, there is absolutely no indication whatsoever in the record that the sentences would have been imposed in this fashion, and Minnick cites no authority that such a sentence would have been required. Minnick has failed to establish that his right to speedy sentencing has been violated.

II. Whether Minnick’s Convictions for Murder and Class A Felony Robbery Violate Prohibitions Against Double Jeopardy

Minnick contends, and the State concedes, that his convictions for murder and Class A felony robbery -violate prohibitions against double jeopardy. Minnick’s robbery conviction was a class A felony because it resulted in serious bodily injury. See Ind.Code § 35^42-5-1. However, “where a single act forms the basis of both a Class A felony robbery conviction and also the act element of the murder conviction, the two cannot stand.” Gross v. State, 769 N.E.2d 1136, 1139 (Ind.2002) (citing Kingery v. State, 659 N.E.2d 490, 495-96 (Ind.1995)). The stab wound in Payne’s back that caused her death was also the serious bodily injury alleged in the robbery count. As such, we remand with instructions to reduce Minnick’s robbery conviction to a Class B felony robbery.

The State argues that we should order the imposition of a maximum sentence of twenty years for Minnick’s robbery conviction and also that it be served consecutively to his other sentences, as opposed to remanding for resentencing. Under the circumstances of this case, we agree that such a disposition is warranted. Minnick does not contend that the trial court abused its discretion in imposing maximum sentences (for rape and robbery) or that the sentences be served consecutively, nor does he contend that his sentence was inappropriately harsh. Moreover, all of the aggravating circumstances that the trial court cited in imposing a maximum and consecutive sentence for the Class A robbery apply with equal force to a Class B robbery. Cases involving the affirmance of a sentence despite the use of erroneous aggravators lend support to our disposition. It is well-settled that “[w]here a trial court has used an erroneous aggra-vator, as occurred here, the court on appeal can nevertheless affirm the sentence if it can say with confidence that the same sentence is appropriate without it.” Wit-mer v. State, 800 N.E.2d 571, 572-73 (Ind. 2003). In this case, we can say with confidence that a maximum and consecutive sentence for the robbery would be eminently appropriate, no matter what felony class, and so order that a twenty-year and consecutive sentence for robbery be imposed on remand.

III. Whether the Trial Court Abused its Discretion in Denying Minnick’s Request for a Competency Evaluation

Minnick contends that the trial court abused its discretion in denying his prehearing request for a new competency evaluation.

We have previously determined that “the conviction of an incompetent defendant is a denial of federal due process and a denial of a state statutory right as well.” Fans v. State, 901 N.E.2d 1123, 1125 (Ind.Ct.App.2009). A defendant is not competent to stand trial when he is unable to understand the proceedings and assist in the preparation of his defense. Mast v. State, 914 N.E.2d 851, 856 (Ind.Ct.App.2009), trans. denied.
However, the right to a competency hearing is not absolute. Mast, 914 N.E.2d at 856. Instead, such a hearing is required only when a trial court is confronted with evidence creating a reasonable or bona fide doubt as to a defendant’s competency. Id. The decision regarding whether there is a reasonable doubt is within the trial court’s discretion and depends upon the specific facts and circumstances of each case. Id. We will only reverse the trial court’s decision if we find that the trial court has abused its discretion. McManus v. State, 814 N.E.2d 253, 259-61 (Ind.2004). The trial court has abused its discretion when its decision is clearly against the logic and effect of the facts and circumstances before the court or when the trial court has misinterpreted the law. Stuff v. Simmons, 838 N.E.2d 1096, 1099 (Ind.Ct.App.2005).

Gibbs v. State, 952 N.E.2d 214, 219 (Ind.Ct.App.2011).

Minnick has failed to establish an abuse of discretion in this regard. The Logansport State Hospital reported to the trial court on March 7, 2011, that Minnick was again competent to assist in the preparation of his defense. Minnick was found capable of working with counsel if he chose, disclosing pertinent facts, and testifying relevantly and was appropriately motivated. Nothing in Minnick’s counsel’s remarks at sentencing indicated that the assessment was no longer accurate.

In response to Minnick’s counsel’s request for a competency evaluation at the beginning of the sentencing hearing, the trial court decided to proceed while making it clear that the issue could be raised again at any time. As it happened, the hearing proceeded to completion without any indication that Minnick was incompetent. When the trial court observed that Minnick aiding counsel during the hearing and noted that his allocution “was very clear and concise[,]” Tr. p. 64, his counsel did not contradict these statements or point to any indication that he was incompetent during the hearing. Indeed, Min-niek does not challenge the trial court’s observations on appeal or even claim that he was actually incompetent during the hearing. At no point during the hearing was the trial court faced with any bona fide evidence that Minnick was incompetent, and consequently it did not abuse its discretion in failing to order another competency evaluation.

CONCLUSION

We conclude that the trial court properly imposed sentences for Minnick’s robbery and rape convictions. We further conclude that the trial court did not err in failing to order another competency evaluation for Minnick. Minnick’s conviction for Class A felony robbery, however, violates prohibitions against double jeopardy. We reverse in part and remand with instructions for the trial court to reduce Minnick’s robbery conviction to a Class B felony and impose a twenty-year sentence to run consecutively with his sixty-year sentence for murder and his fifty-year sentence for Class A felony rape, for a sum total sentence of 130 years executed.

The judgment of the trial court is affirmed in part and reversed and remanded in part with instructions.

VAIDIK, J., and CRONE, J., concur.

      . Ind.Code § 35-42-1-1 (1981).

      . Ind.Code § 35-42-5-1 (1981).

      .Ind.Code § 35-42-4-1 (1981).

      . Obviously, Minnick is entitled to credit for the time he has spent incarcerated in connection with this case.

      . Minnick contends that sentencing him now for rape and robbery "represents a blatant violation of concepts of fundamental fairness.” Appellant’s Br. p. 21. In our view, it would violate concepts of fundamental fairness far more if Minnick were allowed to avoid punishment for rape and robbery as an unintended consequence of having his death sentence overturned.

      . Minnick argues that the trial court committed procedural, but not substantive, error in not ordering an evaluation at the beginning of the hearing, essentially arguing that Minnick’s actual competence during the hearing is irrelevant. We cannot accept this distinction. As we stated in Gibbs, ‘‘[t]he purpose of I.C. § 35-36-3-1 (a) is to avoid the conviction of an incompetent defendant, so it follows that an error is harmless where it does not result in the conviction of an incompetent defendant.” 952 N.E.2d at 219. Given the uncontested evidence of Minnick's competence during the hearing, any procedural error the trial court may have made could only be considered harmless.


author: VAIDIK, Judge.

text:
    Joshua ALFORD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1109-CR-816.
    Court of Appeals of Indiana.
    April 5, 2012.

      Joseph M. Cleary, Collignon & Dietrick, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Joshua Alford appeals the revocation of his probation and the trial court’s order that he serve the remaining 309 days of his previously suspended sentence in the Indiana Department of Correction. He contends that the trial court abused its discretion by finding this his conduct violated the no-contact order that applied to his father, specifically that his false review of his father’s cleaning company to Angie’s List did not constitute contact. Because we determine that this behavior does constitute contact, we affirm.

Facts and Procedural History

On April 29, 2010, the State charged Alford with two counts of Class C felony child molesting and later added a charge of Class D felony criminal confinement. The trial court also issued a no-contact order on April 29, prohibiting Alford from contacting the victim, his daughter, or her mother, his wife, “in person, by telephone or letter, through an intermediary, or in any way, directly or indirectly, except through an attorney of record.... This includes, but is not limited to, acts of harassment....” Appellee’s App. p. 1. After a hearing on May 21, 2010, the no-contact order was extended to include Alford’s father, Jim, to the list of people that Alford could not contact due to Jim’s involvement in the custody dispute that arose out of this incident.

In January 2011, Alford pled guilty under a combined plea agreement to Class D felony criminal confinement and Class A misdemeanor domestic battery under another cause number. He was sentenced to concurrent suspended sentences of 887 days for each conviction, -with 268 days of credit time and 365 days of probation. As a special condition of probation, the trial court continued the no-contact order for several individuals, including Alford’s father, Jim.

On July 28, 2011, the State filed a notice of probation violation alleging that Alford had violated the no-contact order by submitting a false report to Angie’s List about his father’s cleaning business that said, “They did a good job cleaning, but they stole my wife’s diamond earrings.” Appellant’s App. p. 66. At the probation-revocation hearing, Alford admitted to sending the false report but denied that it violated the no-contact order because he did not have direct contact with his father. The trial court disagreed, stating that “The acts of the defendant could have no goal other than to bring distress to a protected person because of his involvement in the prosecution.... ” Tr. p. 5. The trial court ordered Alford to serve the remaining 309 days of his suspended sentence. Id. at 9.

Alford now appeals.

Discussion and Decision

Alford contends that there was insufficient evidence for the trial court to revoke his probation, specifically that his actions did not constitute a violation of the no-contact order. We disagree.

Probation revocation is a two-step process. Cox v. State, 850 N.E.2d 485, 488 (Ind.Ct.App.2006). First, the court must make a factual determination that a violation of a condition of probation has occurred. Id. When a probationer admits to the violation, the court can proceed to the second step of the inquiry and determine whether the violation warrants revocation. Id. At this step, the probationer must be given an opportunity to present evidence that explains and mitigates his violation. Id.

Upon the revocation of probation, a trial court may impose one or more of the following sanctions: (1) continue the person on probation, with or without modifying or enlarging the conditions; (2) extend the person’s probationary period for not more than one year beyond the original probationary period; (3) order execution on all or part of the sentence that was suspended at the time of initial sentencing. Ind.Code § 35-38-2-3(g). We review a trial court’s sentencing decisions for probation violations for an abuse of discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind.2007). An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances. Id.

We defined “contact” in Wright v. State as

“establishing of communication with someone” or “to get in communication with.” Webster’s Dictionary 249 (10th ed. 1993). Communication occurs when a person makes something known or transmits information to another. Ajabu v. State, 677 N.E.2d 1035, 1042 (Ind.Ct.App.1997), trans. denied. Further, communication may be either direct or indirect and is not limited by the means in which it is made known to another person. Id.

688 N.E.2d 224, 226 (Ind.Ct.App.1997) (emphasis added). Alford’s contact with Jim was indirect and not immediately known by Jim; however, it was contact nonetheless. Alford used Angie’s List as an intermediary through which to communicate with Jim in an effort to harass him, in direct violation of the no-contact order that was a condition of his probation.

Alford also contends that the no-contact order was not sufficiently clear, arguing that he was not informed that contacting a third party about his father would result in a violation. Conditions of probation must be sufficiently clear that they “describe with clarity and particularity the misconduct that will result in penal consequences.... ” Hunter v. State, 883 N.E.2d 1161, 1163 (Ind.2008). Alford argues that he was not aware that contacting a third party about his father’s business would result in a violation. We are not persuaded by this argument. The no-contact order specifically stated that Alford was to have no contact with Jim directly, indirectly, or through an intermediary and that included acts of harassment. Alford was on notice that his false report to Angie’s List would be a violation of the no-contact order. We therefore affirm the trial court’s revocation of Alford’s probation and the order that he serve the remaining 309 days of his previously suspended sentence in the Indiana Department of Correction.

Affirmed.

CRONE, J., and BRADFORD, J., concur.