author: ROBB, Chief Judge.

text:
    NATIONSTAR MORTGAGE, LLC, Appellant-Plaintiff, v. Jeffrey A. CURATOLO, et al., Appellee-Defendant.
    No. 45A03-1211-MF-469.
    Court of Appeals of Indiana.
    June 18, 2013.

      Joel F. Bornkamp, Reisenfeld & Associates, Cincinnati, OH, Attorney for Appellant.
    Shaun T. Olsen, Law Office of Weiss & Schmidgall, P.C., Merrillville, IN, Attorney for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issue

Nationstar Mortgage, LLC (“Nations-tar”), appeals the trial court’s order modifying its mortgage agreement with Jeffery A. Curatolo. We find the following restated issue dispositive: whether the trial court had the authority to modify the mortgage agreement without consent of both parties. Concluding the trial court lacked the authority to do so, we reverse and remand.

Facts and Procedural History

In August 2006, Curatolo executed and delivered a promissory note and mortgage, promising to pay $245,000.00 plus interest and granting a security interest in the mortgage property, to Bancgroup Mortgage Corporation. Paying interest at the rate of 6.5% and over the term of thirty years, the monthly payment was $1,548.57. The mortgage was eventually assigned to Nationstar in 2010. Nationstar filed its complaint on note and to foreclose mortgage on September 19, 2011, alleging that Curatolo was in default pursuant to the terms of the note and mortgage after March 1, 2010.

Curatolo did not answer the complaint, but, rather, requested a mortgage foreclosure settlement conference. A series of settlement conferences and status hearings took place. An order following a settlement conference that took place on January 12, 2012, indicated that Nationstar presented Curatolo with a three-month forbearance plan. The court ordered Na-tionstar to prepare a permanent modification plan after receipt of the third payment and the court set the matter for an additional status hearing on April 12, 2012. An order following the April 12th settlement conference indicated that Curatolo had successfully completed the three-month plan but that Nationstar “now requests] that [Curatolo] submit fresh financial documents ... because of a discrepancy in [Curatolo]’s stated income. [Nationstar] has demonstrated consistent absence of good faith in their negotiations .... ” Appellant’s Appendix at 14. A hearing was held on June 14, 2012, on “Mortgage Foreclosure Facilitator’s Petition for Sanctions,” and the trial court issued an order the next day, finding the following:

(a) That [Curatolo] has substantially complied with all requisites relating to making payments to [Nationstar] over a three month trial period.
(b) That [Nationstar] consistently raises additional issues in the negotiation process notwithstanding the fact that [Curatolo] timely makes his mortgage payments.
(c) That [Nationstar]’s conduct in the negotiation process borders on bad faith and should be sanctioned.
(d) That the herein Court shall withhold sanctions and allow the parties an opportunity to effectuate a fair and equitable modification.
(e) That [Curatolo] shall commence making monthly mortgage payments to [Nationstar] in the sum of $1,632.83, the first payment due on or before July 1, 2012 and each month thereafter for a five month period.
(f) That if, during the hereinbefore mentioned five month period, [Curatolo] makes timely payments and [Na-tionstar] fails to act in good faith, the Court will establish a modification program for the parties.
(g) That the Court sets this matter for a status hearing on the 2nd day of August, 2012, at 1:30 p.m.

Id. at 11-12. After the August 2nd settlement conference and status hearing, Na-tionstar requested an additional thirty days to review the documents submitted by Curatolo.

A final “status conference” took place on October 11, 2012, and the court issued an order, finding the following:

a. That the parties have undergone a series of loan modifications during the pendency of this action.
b. That [Curatolo] has consistently made timely payments and kept himself current pursuant to the terms of said loan modifications.
c. That [Nationstar] has consistently imposed additional requisites on [Curatolo] and the Court deems same as bad faith maneuvers designed to thwart [Curatolo] from maintaining his residence and making payments on same.
d. That in the herein hearing [Nations-tar] proposed another trial period in which [Curatolo] was to pay an additional Three Hundred ($300.00) Dollars for a three month period, said proposal the Court deems as another bad faith maneuver.
e. That as a result of [Nationstar]’s bad faith [Nationstar] is denied attorney fees and penalty fees.
f. That the Court finds that there is an unpaid balance on the mortgage note of Two Hundred Thirty Four Thousand Twenty Eight ($234,028.59) Dollars and Fifty Nine Cents.
g. That the Court hereby modifies the mortgage agreement between the parties by ordering [Curatolo] to pay principle and interest to [Na-tionstar] in the sum of One Thousand Six Hundred Thirty Two ($1,632.83) Dollars and Eighty Three Cents per month commencing November 1, 2012 and for a like period thereafter for fifteen years.
h. That the interest rate on said mortgage shall be at the rate of three (3%) percent.
i. That either party or the mortgage facilitator may petition the Court for a hearing if either party fails to abide by the terms of the herein order.

Id. at 7-8. Nationstar now appeals. Additional facts will be provided as necessary.

Discussion and Decision

In response to the mortgage foreclosure crisis, the Indiana legislature passed Indiana Code chapter 32-30-10.5 to “avoid unnecessary foreclosures” and facilitate “the modification of residential mortgages in appropriate circumstances.” See Ind.Code § 32-30-10.5-l(b). Under this chapter, upon filing a foreclosure action, a creditor must generally give a debtor notice of his or her right to participate in a settlement conference, and the debtor has thirty days to notify the court if he or she intends to partake in such a conference. Ind.Code § 32-30-10.5-8(c). “If, as a result of a settlement conference held under this chapter, the debtor and creditor agree to enter into a foreclosure prevention agreement,” the foreclosure may be dismissed or stayed as long as the debtor complies with the terms of the agreement. Ind.Code § 32-30-10.5-10(e). This case raises the question of whether a trial court has the authority to modify a mortgage agreement without the consent of both parties if they fail to agree to the terms of a foreclosure prevention agreement. We hold that it does not.

Here, Curatolo requested and the court scheduled a settlement foreclosure conference. Several settlement conferences were ultimately conducted and while the parties initially agreed to a three-month forbearance plan, which Curatolo successfully completed, they were unable to reach a final agreement. The statute is clear that its aim was to “modify the foreclosure process to encourage mortgage modification alternatives.” Ind.Code § 32-30-10.5—1(a)(3) (emphasis added). The statute does not make it mandatory on creditors and debtors to enter into foreclosure prevention agreements. In fact, if the statute had purported to do so, it would likely run afoul of the constitutional prohibition on the impairment of contractual obligations. See Ind. Const. art. 1, § 24 (“No ex post facto law, or law impairing the obligation of contracts, shall ever be passed.”); see also Wencke v. City of Indianapolis, 429 N.E.2d 295, 298 (Ind.Ct.App.1981) (“A retrospective application of a statute to a contract entered into before the effective date of that statute can impair contractual obligations contrary to both the United States and Indiana Constitutions.”).

And while the statute gives the trial court the right to stay the foreclosure action pending the negotiation process, Ind. Code § 32-30-10.5-8.5(b), and the right to issue a provisional order requiring the debtor to continue to make monthly payments if he or she continues to occupy the dwelling while the foreclosure action is pending, Ind.Code § 32-30-10.5-8.6(b), nowhere does the statute give a trial court the authority to enter a final order modifying the mortgage agreement. The fact that the legislature itself could not have impaired the contractual obligations of the parties lends further support to our conclusion it did not intend to give the courts that authority. Because the mortgage agreement was based upon the parties’ mutual assent, they must both agree to any permanent modification. See, e.g., Voigt v. Voigt, 670 N.E.2d 1271, 1279-80 (Ind.1996) (holding that a court lacked the statutory authority to modify a maintenance award based on a settlement agreement where the court had no authority to impose that kind of maintenance award “because the sole authority for the maintenance obligation originally derived from [the parties’] mutual assent”). In fact, the statute sets forth that the “foreclosure action filed by the creditor may proceed as otherwise allowed by law” if “as a result of a settlement conference held under this chapter, the debtor and the creditor are unable to agree on the terms of a foreclosure prevention agreement.” Ind.Code § 32 — 30—10.5—10(f). Thus, the trial court acted in excess of its authority when it ordered the modification.

Nor is this a case where the court was merely interpreting or enforcing a previously entered into agreement. Generally, when interpreting mortgage agreements, courts are bound to give effect to the plain meaning of the language of the mortgage. First Fed. Sav. and Loan Ass’n of Gary v. Stone, 467 N.E.2d 1226, 1233-34 (Ind.Ct.App.1984), trans. denied. “It is not within the province of a court to make a new contract for the parties or to ignore or eliminate provisions of the instrument.” Id. at 1234. Curatolo concedes this point and instead argues that the modification was a proper sanction for Nationstar’s misconduct. Trial courts have the inherent power to impose sanctions on parties and attorneys for “discovery violations, contempt, and the government’s wrongful conduct.” Allied Prop. and Cas. Ins. Co. v. Good, 919 N.E.2d 144, 153 (Ind.Ct.App.2009) (holding that courts have the inherent power to sanction parties for intentionally violating motions in limine and causing a mistrial), trans. denied. The purpose of this power is to protect the integrity of the judicial system and to secure compliance with the court’s rules and orders. Id. at 154. Here, however, the only court orders Na-tionstar allegedly violated relate to the trial court’s attempts to impose a foreclosure prevention agreement on the parties. As we conclude above, a creditor is under no obligation to enter into a foreclosure prevention agreement with a debtor, ill-advised as its refusal to do so may be. And while the trial court found that Na-tionstar’s behavior evidenced bad faith, we cannot agree that requesting additional documentation in response to a change of income or requesting an additional $300 per month from Curatolo was bad faith. Curatolo was not entitled to a final foreclosure prevention agreement with terms to his liking. And even if the parties had agreed upon a final agreement, the statute sets forth that the foreclosure shall be dismissed or stayed “[a]t the election of the creditor.” Ind.Code § 32-30-10.5-10(e) (emphasis added). In sum, the trial court did not have the authority to modify the mortgage agreement without consent of the parties and we reverse its order doing so and remand this case to the trial court with instructions to allow the foreclosure action to proceed.

Conclusion

The trial court did not have the authority to permanently modify the mortgage agreement entered into between the parties without their consent. We therefore reverse its order and remand for further proceedings consistent with this opinion.

Reversed and remanded.

FRIEDLANDER, J., and CRONE, J., concur.

      . It appears that a total of five settlement conferences took place.

      . This "petition” does not appear in the record before us, nor is there a mention of it in the docket sheet.

      . In fact, while the statute states that the court "shall” determine the amount of monthly payment required of the debtor for purposes of the provisional order, it explicitly sets forth that the amount "may not exceed the debtor's monthly obligation under the mortgage at the time the action is filed.” Ind.Code § 32-30-10.5-8.6(b). Here, the monthly payment in both the court’s provisional order dated June 15 and in the court’s final order modifying the mortgage agreement dated October 11 exceeded the monthly obligation at the time the action was filed.

      . Curatolo also contends that Nationstar waived appellate review of this issue because it regarded the trial court order as an order for summary judgment rather than an order for sanctions as he chose to do. We find that Nationstar’s discussion of the issue properly preserved it for appeal and there was no waiver.
      Nationstar, in turn, argues that its due process rights were violated because it was not properly notified that a final judgment and sanction would be issued at the October 11 “status conference.” In light of our conclusion that a sanction was improper in this case, we need not address this issue.

      . Our decision should not be read to limit the ability of the parties to enter into a mutually agreed upon foreclosure prevention agreement. In that case, the trial court may dismiss or stay the foreclosure as provided by Indiana Code section 32-30-10.5-10(e).


source: Caselaw Access Project

author: MAY, Judge.

license: Public Domain

text:
    Revas SPENCER, Appellant-Respondent, v. Tiffany SPENCER, Appellee-Petitioner.
    No. 36A04-1211-PO-605.
    Court of Appeals of Indiana.
    June 19, 2013.
    Debra S. Andry, Paoli, IN, Attorney for Appellant.
   OPINION

MAY, Judge.

Revas Spencer (Husband) appeals the denial of the Agreed Order Dismissing Order of Protection he and Tiffany Spencer (Wife) submitted to the trial court. We reverse.

FACTS AND PROCEDURAL HISTORY

On August 20, 2012, Wife filed a petition for order of protection against Husband, alleging she had been a victim of domestic violence. At a hearing on September 7, Wife testified she wanted an Order of Protection, and the trial court granted her request. On September 20, Wife filed a verified request for dismissal of the Order of Protection; the trial court denied that request without a hearing. On October 25, Wife and Husband filed an Agreed Order Dismissing Order of Protection. The trial court held a hearing on October 31, and denied the parties’ request to dismiss the protective order.

DISCUSSION AND DECISION

We first note Wife did not file an appellee’s brief. When an appellee does not submit a brief, we do not undertake the burden of developing arguments for that party. Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind.Ct.App.2002). Instead, we apply a less stringent standard of review and may reverse if the appellant establishes prima facie error. Id. Prima facie error is “error at first sight, on first appearance, or on the face of it.” Van Wieren v. Van Wieren, 858 N.E.2d 216, 221 (Ind.Ct.App.2006).

The trial court erred when it denied the request to dismiss the order of protection, as Ind.Code § 34-26-5-12 does not permit trial court discretion to deny a written request to dismiss a protective order. Our standard of review involving statutory interpretation is well-settled:

A question of statutory interpretation is a matter of law. In such interpretation, the express language of the statute and the rules of statutory interpretation apply. We will examine the statute as a whole, and avoid excessive reliance on a strict literal meaning or the selective reading of words. Where the language of the statute is clear and unambiguous, there is nothing to construe. However, where the language is susceptible to more than one reasonable interpretation, the statute must be construed to give effect to the legislature’s intent. The legislature is presumed to have intended the language used in the statute to be applied logically and not to bring about an absurd or unjust result. Thus, we must keep in mind the objective and purpose of the law as well as the effect and repercussions of such a construction.

Nash v. State, 881 N.E.2d 1060, 1063 (Ind.Ct.App.2008), trans. denied.

Ind.Code § 34-26-5-12, which governs the dismissal of Orders of Protection, provides, “If a petitioner: (1) files a written request for dismissal with a court; or (2) makes an oral request on the record to dismiss the case in open court; the court shall without delay or any conditions dismiss the case without prejudice.” The use of the word “shall” in a statute “generally connotes a mandatory as opposed to a discretionary import.” Parmeter v. Cass County Dept. of Child Services, 878 N.E.2d 444, 447 (Ind.Ct.App.2007), reh’g denied. As the word “shall” appears in the statute regarding the trial court’s actions when the petitioner files for the dismissal of an Order of Protection, the trial court did not have discretion to deny the parties’ request to dismiss the protective order. Accordingly, we reverse the decision of the trial court.

Reversed.

BAKER, J., and MATHIAS, J., concur.

      . In denying the parties’ request to dismiss the Order of Protection, the trial court stated it would not dismiss the Order because Husband had "gotten charged criminally with violating it[.]” (Tr. Vol. 2 at 5.) While we understand the reason for the trial court denial of the parties’ request to dismiss, it is unfortunately not afforded such discretion. Like the trial court, we are bound by the language of the statute and make our decision on appeal based on the rules of statutory interpretation.


author: MATHIAS, Judge.

text:
    INDIANA HORSE RACING COMMISSION, Appellant-Respondent, v. Edmund W. MARTIN, Jr., Appellee-Petitioner.
    No. 49A02-1206-PL-512.
    Court of Appeals of Indiana.
    June 28, 2013.

      Karl L. Mulvaney, Nana Quay-Smith, Robin L. Babbit, Bingham Greenbaum Doll LLP, Indianapolis, IN, Attorneys for Appellant.
    Michael N. Red, Morse & Bickel, P.C., Indianapolis, IN, Attorney for Appellee.
   OPINION

MATHIAS, Judge.

The issue presented in this appeal is whether Edmund Martin (“Martin”) participated in pari-mutuel horse racing and was therefore required to be licensed pursuant to Indiana Code section 4-31-6-1 and 71 Indiana Administrative Code rule 5.5-1-1. The Indiana Horse Racing Commission (“the IHRC”) appeals the Marion Superior Court’s decision to vacate its order excluding Martin from its racetracks because he failed to obtain a license in 2010.

Concluding that Martin did indeed participate in horse racing, we reverse the trial court’s order setting aside the IHRC’s decision and remand for proceedings consistent with this opinion.

Facts and Procedural History

Martin was the executive director and a paid employee of the Indiana Thoroughbred Owners and Breeders Association (“the ITOBA”) in 2010. The ITOBA represents the interests of Indiana thoroughbred owners, breeders, and trainers with the purpose of promoting, developing, and improving thoroughbred horse racing in Indiana. In support of that goal, the ITO-BA’s activities include lobbying the General Assembly-on behalf of the horse racing industry, marketing in support of the industry, and the organization of annual horse sales at Indiana’s racetracks. The sales include live horse auctions, paddock sales, yearling and unraced prospect sales, and sales of racing stock.

The ITOBA receives most of its income from the commissions generated by the horse sales; but it may also apply for and receive funds from the IHRC. Specifically, in 2010, the IHRC approved the ITOBA as a registered horseman’s association allowing the ITOBA to provide pari-mutuel related services. The funds the ITOBA received from the IHRC were generated at Indiana’s racetracks. Martin’s ITOBA salary was paid at least in part by the gaming funds. Appellant’s App. p. 427.

In his capacity as the ITOBA’s executive director and as an employee, Martin 1) attended all ITOBA meetings, 2) lobbied the General Assembly on the organization’s behalf, 3) executed all decisions of the board, and 4) planned, organized and directed the ITOBA’s programs and services. Also, the ITOBA’s bylaws required members of the board of directors to “attend all board meetings, [and] regularly participate in organization meetings, committees, and functions ...” Id. at 854.

The IHRC was created for the purpose for ensuring that “pari-mutuel wagering on horse races in Indiana will be conducted with the highest standards and greatest level of integrity.” Ind. Code § 4-31-1-2. Consistent with that purpose, the IHRC requires certain individuals participating in horse racing to be licensed.

In April 2010, Martin received an email from Deena Pitman, an IHRC staff member, reminding him that he had' not yet sought a license for that calendar year, and he was urged to do so prior to the start of the 2010 racing season, if he intended to participate in horse racing activities. Martin advised Deena Pitman that he would not have access to gaming funds and would not be handling ITOBA business at the racetrack. Therefore, Martin did not apply for a license.

Subsequently, Martin had meetings at Hoosier Park racetrack to discuss ITOBA business, and he was present at the 2010 ITOBA horse sales at Hoosier Park. The ITOBA meeting minutes also disclose that Martin agreed to “cover” the ITOBA’s booth space at the Hoosier Horse Fair.

On November 4, 2010, the IHRC sent an exclusion notice to Martin due to his failure to seek a license in 2010. Martin was informed that he would be excluded from the IHRC’s grounds until he secured a valid 2010 license. After Martin objected to the exclusion notice, the IHRC appointed an administrative law judge (“the ALJ”) to review the matter. Both Martin and the IHRC filed motions for summary judgment concerning Martin’s obligation to obtain a license.

On August 11, 2011, the ALJ issued her recommended order, which was unanimously adopted as the IHRC’s final order on August 23, 2011. In the order, the ALJ concluded that Martin engaged in activities in 2010 “that required him to seek and obtain a license from the” IHRC. Appellant’s App. p. 20. The ALJ also found in pertinent part:

21. In the calendar year 2010, the ITO-BA was a registered horsemen’s association approved by the [IHRC] pursuant to the provisions of 71 IAC 13-1-1 et seq. to provide pari-mutuel related services on behalf of Indiana thoroughbred owners and breeders.
22. In the calendar year 2010, Mr. Martin was employed as ITOBA’s Executive Director and had job duties which required his presence from time to time on association grounds. Mr. Martin earned a salary of $41,000 as ITOBA’s Executive Director.
23. Mr. Martin’s job duties as Executive Director included, in addition to working the ITOBA sale, the following:
1. Represents the ITOBA at all levels of the industry.
a) State General Assembly; b) Indiana Horse Racing Commission; c) Thoroughbred Breed Development advisory committee; d) All Indiana Race Tracks; e) Industry collective efforts; and f) Hoosier Horse Fair
2. Ensures that the board of directors and the officers are kept fully informed on the conditions and operations of ITOBA and all industry issues that influence them. Attends all meetings of the board, Executive Committee and advisory committees.
3. Executes all decisions of the board and Executive Committee except when other assignment is specifically made by the board or Executive Committee.
4. Plans, organizes and directs programs and services: Evaluates policies procedure and actions to achieve program goals.
5. Serves as liaison between all advisory committees and Board and executive committees.
6. Maintains effective relationships with all other breed groups.
7. Advises and backs up the Executive Secretary to help complete administrative tasks on time.
8. Carries out such other general responsibilities as may be delegated by the executive committee and the board.
24. During February and March of 2010, Mr. Martin engaged in activities requiring a license from the [IHRC], but did not seek to obtain a license.
25. For instance, at the February 2010 meeting of the ITOBA Board of Directors held at Indiana Downs, Mr. Martin engaged in the following activities:
• Introducing Jackie Brown as the new ITOBA Executive Secretary
• Discussing with ITOBA Directors pending legislation in the Indiana State Senate — specifically, SB01— during the Regulatory and Legislation Committee Report.
• Participating in a motion by the ITOBA Directors to form a committee (the “Committee”), along with the Indiana Horsemen’s Benevolent and Protective Association (“IHB-PA”), to come up with a long-term total thoroughbred industry proposal.
• Stating that he would confer with Mike Brown regarding IHBPA’s involvement with the Committee; and
• In the course of the Hoosier Horse Fair and Expo Committee Report, agreeing to cover the booth space for the Hoosier Horse Fair.
26. Furthermore, at the March 2010 meeting conducted at Indiana Downs, Mr. Martin engaged in the following activities:
• Presenting ITOBA’s financial report
• Requesting Board approval to purchase a retractable sign for use at the Hoosier Horse Fair and at other ITOBA functions;
• Reporting, during the course of the Membership Gatherings Committee Report, on a membership drive letter that was mailed in early February 2010;
• Reporting, in the course of the Regulatory Committee Report, on the most recent Commission meeting and
• Making a motion, during the course of the Sales Committee Report, to have a sale on Sunday, July 25, 2010
27. On April 8, 2010, and in anticipation of the commencement of the racing season on April 16, 2010, Deena Pitman sent an email (“the Pitman email”) to all known 2010 registered horsemen employees, including Mr. Martin, reminding them to seek licensure prior to the start of the 2010 racing season if they would be engaging in activities in 2010 which would require licenses.
28. The Pitman email referred its recipients to the relevant regulations and generally described the actions that would require licensure.
29. Mr. Martin responded on April 8, 2010 and advised Ms. Pitman that ... he ... would [not] “have access to any slot funds or will be handling any association business at the track or need access to the backside.” Neither in his response nor anytime thereafter did Mr. Martin challenge Ms. Pitman’s interpretation of the rule requiring licensure or seek further clarification.
30. Subsequent to his response to Ms. Pitman, in which he represented that he would not be engaging in activities requiring licensure, Mr. Martin conducted ITOBA business at Hoosier Park in Brian Elmore’s office and worked the July and October 2010 ITOBA sales at Hoosier Park.
31. The activities which Mr. Martin engaged in constitute participation in “horse racing” and “pari-mutuel racing” within the meaning of the aforementioned statutes and regulations.

Appellant’s App. pp. 20-23 (emphasis added and footnote and record citations omitted). Ultimately, the ALJ concluded that the exclusion notice was supported by substantial evidence, was consistent with Indiana law and the public interest, and protected the IHRC’s interest to ensure the honesty and integrity of racing. The IHRC approved the ALJ’s order extending Martin’s exclusion from IHRC grounds until July 18, 2012.

On September 29, 2011, Martin filed a petition for review of the IHRC’s order in Marion Superior Court. After reviewing the parties’ motions for summary judgment and holding a hearing on the matter, the trial court set aside the IHRC’s order and vacated the exclusion notice.

The trial court concluded that the IHRC’s finding that Martin conducted ITOBA business at Hoosier Park and worked the July and October 2010 ITOBA horse sales was not supported by substantial evidence. However, the trial court concluded that the IHRC’s error was harmless because it did not affect the court’s ultimate conclusion that Martin was not required to be licensed in 2010. Id. at 7. Specifically, the court determined that the activities Martin engaged in as the Executive Director of the ITOBA do not constitute participation in racing, participation in pari-mutuel racing, or provide pari-mutuel related services as those terms are defined in the Indiana Administrative Code.

The IHRC now appeals the trial court’s order setting aside, dissolving, and vacating its August 23, 2011 order.

Standard of Review

The Administrative Orders and Procedures Act provides the standard for judicial review of an administrative decision. When we review the decision of an administrative agency, we are bound by the same standard of review as the trial court. Kroger Co. v. Plan Comm’n of Town of Plainfield, 953 N.E.2d 536, 539 (Ind.Ct.App.2011), trans. denied. The administrative agency’s decision will be affirmed unless it is:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; or (5) unsupported by substantial evidence.

Ind.Code § 4—21.5—5—14(d); see also Indianapolis Downs, LLC v. Ind. Horse Racing Comm’n, 827 N.E.2d 162, 170 (Ind.Ct.App.2005). An administrative decision is arbitrary and capricious only when it is willful and unreasonable, without consideration or in disregard of the facts and circumstances of the case, or without some basis which could lead a reasonable person to the same conclusion. Indianapolis Downs, 827 N.E.2d at 170.

The party challenging an agency decision bears the burden of demonstrating its invalidity. I.C. § 4-21.5-5-14(a). When reviewing an administrative agency’s decision, “[njeither the trial court nor this court may reweigh the evidence or reassess witness credibility.” Andrianova v. Ind. Family Soc. Servs. Admin., 799 N.E.2d 5, 7 (Ind.Ct.App.2003). Rather, we must accept the facts as found by the agency factfinder. Id. In addition, in light of an administrative agency’s expertise in its given area, we give deference to the agency’s interpretation of the statutes and rules it is charged with enforcing. Id.

Discussion and Decision

Initially, we note the substantial deference our court affords to administrative agencies like the IHRC in their interpretation of the statutes and regulations they are required to enforce.

An interpretation of a statute by an administrative agency charged with the duty of enforcing the statute is entitled to great weight, unless this interpretation would be inconsistent with the statute itself.... Deference to an agency’s interpretation of a statute becomes a consideration when a statute is ambiguous and susceptible of more than one reasonable interpretation. When a court is faced with two reasonable interpretations of a statute, one of which is supplied by an administrative agency charged with enforcing the statute, the court should defer to the agency. If a court determines that an agency’s interpretation is reasonable, it should terminate its analysis and not address the reasonableness of the other party’s proposed interpretation. Terminating the analysis recognizes the general policies of acknowledging the expertise of agencies empowered to interpret and enforce statutes and increasing public reliance on agency interpretations. However, an agency’s incorrect interpretation of a statute is entitled to no weight. If an agency misconstrues a statute, there is no reasonable basis for the agency’s ultimate action and the trial court is required to reverse the agency’s action as being arbitrary and capricious.

Dev. Servs. Alts., Inc. v. Ind. Family & Social Servs. Admin., 915 N.E.2d 169, 181 (Ind.Ct.App.2009), trans. denied (quoting Pierce v. State Dep’t of Correction, 885 N.E.2d 77, 89 (Ind.Ct.App.2008)) (citations and quotation marks omitted). See also Chrysler Group, LLC v. Review Bd. of Ind. Dep’t of Workforce Dev., 960 N.E.2d 118, 124 (Ind.2012) (acknowledging the deference afforded to an agency’s interpretation of the statutes it is charged with enforcing and stating “we defer to the agency’s reasonable interpretation of such a statute even over an equally reasonable interpretation by another party”).

The General Assembly’s stated purpose in enacting the Pari-Mutuel Wagering Act is “to permit pari-mutuel wagering on horse races in Indiana and to ensure that pari-mutuel wagering on horse races in Indiana will be conducted with the highest of standards and the greatest level of integrity.” I.C. § 4-31-1-2. Consistent with that goal, the IHRC is charged with adopting regulations that the IHRC “determines is in the public interest in the conduct of recognized meetings and wagering on horse racing in Indiana.” See I.C. § 4-31-3-9. The IHRC is further authorized to adopt rules establishing a procedure for license applications and fees. See I.C. § 4-31-6-2.

A “ ‘[pjerson required to have a license’ means an individual whose activities on a racetrack would require the person to be licensed.” I.C. § 4-31-2-16. And “[a] person must be a licensee in order to ... participate in racing at a racetrack or a satellite facility that permits the pari-mu-tuel form of wageringf.]” I.C. § 4-31-6-1. The IHRC may “refuse or deny a license application, revoke or suspend a license, or otherwise penalize a licensee” for multiple reasons including that “the refusal, denial, revocation, suspension, or other penalty is in the public interest for the purpose of maintaining proper control over horse racing meetings or pari-mutuel wagering[.]” 1.C. § 4-31-6-6(a).

The Pari-Mutuel Wagering Act does not define the phrase “participate in racing” but simply requires those who participate in racing to have a license. I.C. § 4-31-6-1. The ordinary and plain meaning of the term “participate” is “to take part” or “to have a part or share in something.” See http://merriam-webster.com/dictionary/ participate. Similarly, the Oxford English Dictionary assigns the following meaning to the term participate: “To take or have a part or share of or in; to share in; to possess or enjoy in common with another or others[.]” Finally, the term “race” is defined in the Act and means a “contest of speed among horses: (1) for a purse, stakes, premiums, wager of money, or for admission fees: (2) on a course; and (3) in the presence of a judge or judges.” I.C. § 4-31-2-18.

The IHRC admits that its interpretation of the phrase “participate in racing” is broad, but contends that interpretation is consistent with its statutory requirement to conduct “pari-mutuel horse racing under ‘the highest of standards and greatest level of integrity.’ ” Appellant’s Br. at 17. The agency argues that “[Requiring licensure of persons who participate in racing is one of the [IHRC’s] most effective weapons in its battle to ensure the integrity of parimutuel racing.” Id. at 26.

Accordingly, the IHRC promulgated Rule 5.5-l-l(a) broadly defining which persons must be licensed to participate in pari-mutuel racing:

(a) A person shall not participate in pari-mutuel racing under the jurisdiction of the commission without a valid license issued by the commission. License categories shall include the following and others as may be established by the commission:
(1) Racing participants and personnel (including owner, authorized agent, trainer, assistant trainer, jockey, apprentice jockey, jockey agent, veterinary helper, farrier, stable employees, exercise rider, groom, pari-mutuel clerk, pony rider, track employee, track security, vendor employee, starting gate crew, farrier’s assistant, valet, track management, practicing or racing veterinarian, or other).
(2) Racing officials as listed in 71IAC 3.5.
(3) Persons employed by the association, or employed by a person or concern contracting with or approved by the association or commission to provide a pari-mutuel related service or commodity, with job duties which require their presence in a restricted area or which require their presence anywhere on association grounds.
(4) Sole proprietors and all partners of a partnership contracting with or approved by the association or commission to provide a service or commodity.
(5) Shareholders in a corporation, acting as a contractor or vendor, if required by the commission.
(6) Commission employees with job duties which require their presence in a restricted area or which require their presence anywhere on association grounds.

711.A.C. r. 5.5-1-1 (emphasis added). Association grounds means “all real property utilized by the association in the conduct of its race meeting, including the race track, grandstand, concession stands, offices, barns, stable area, employee housing facilities, parking lots, and any other areas under the jurisdiction of the commission, including satellite facilities.” See 71 I.A.C. r. 1.5-1-12.

Furthermore, the IHRC has promulgated rules for horsemen’s associations such as the ITOBA. Specifically, title 71, rule 13-1-15 of the Indiana Administrative Code provides:

All directors, officers, and employees of a registered horsemen’s association that will have access to any funds received pursuant to IC 4-35-7-12 if not otherwise licensed and in good standing with the commission, must apply for and be granted a separate commission license to act as a director, officer, or employee of a horsemen’s association in order to serve in that capacity. If a director, officer, or employee of a registered horsemen’s association that will have access to any funds received pursuant to IC 4-35-7-12 is otherwise licensed and in good standing with the commission, then that person is also considered to be licensed as a director, officer, or employee of the horsemen’s association.

Indiana Code section 4-35-7-12 mandates the manner in which gambling proceeds from racetracks are distributed. A certain percentage of those funds are distributed to horsemen’s associations for specific purposes such as promoting the equine industry and equine welfare. I.C. § 4-35-7-12(e). In 2010, the IHRC approved the ITOBA as a registered horsemen’s association to receive funds under section 4-35-7-12. See 71 I.A.C. r. 13-1-2 (describing the findings the IHRC is required to make to approve horsemen’s associations to receive funds pursuant to I.C. § 4-35-7-12).

Martin argues the IHRC’s interpretation of Indiana Code section 4-31-6-1 through its promulgation of Rule 5.5.-1-1 (a) is unreasonable, contrary to law, and that the “General Assembly did not intend to require licensure of all ‘racing industry participants,’ rather, only those actually ‘participating in racing.’ ” Appel-lee’s Br. at 16. But, Martin’s categorization of horse racing as an activity rather than an industry is not well taken in light of the regulation, funds, and related activities that surround pari-mutuel horse races. Moreover, Martin’s narrow interpretation of the phrase “participate in racing” is inconsistent with the General Assembly’s decision to give the IHRC broad authority to promulgate rules to enforce the PariMutuel Wagering Act.

Protecting the integrity of the horse racing industry in Indiana is of utmost importance to the IHRC and the General Assembly. The industry “has an unsavory, or at least a shadowed, reputation, growing out of a long history of fixing, cheating, doping of horses, illegal gambling, and other corrupt practices.” Dimeo v. Griffin, 943 F.2d 679, 681 (7th Cir.1991). For this reason, the IHRC reasonably takes a broad view of the phrase “participate in racing” to include those individuals who are directly or indirectly participating in pari-mutuel racing.

Specifically, the IHRC concludes that the many types of persons who are enumerated as participants in racing as listed in Rule 5.5-l-l(a)

encompasses a large, diverse group of persons who are involved in the racing industry on a variety of levels.... The scope of persons who are “participants in pari-mutuel racing” is not determined by them function at the racetrack, but by their involvement with other racing participants at the racetrack, or their opportunity for access to restricted areas of the racetrack ... or access to the racehorses themselves.

Appellant’s Br. at 19. We agree and conclude that, within the context of its charge by the General Assembly, the IHRC reasonably interpreted Indiana Code section 4-31-6-1, and particularly the phrase “participate in racing,” when it promulgated Rule 5.5-l-l(a), which defines which persons must be licensed to participate in pari-mutuel racing.

Accordingly, we now consider whether Martin was required to be licensed pursuant to Rule 5.5-1-1(a). The IHRC argues that Martin’s actions and his status with ITOBA met the precise criteria of Rule 5.5—1—1(a)(3). That subsection requires licensure for “[pjersons employed by the association, or employed by a person or concern contracting with or approved by the association or commission to provide a pari-mutuel related service or commodity, with job duties which require their presence in a restricted area or which require their presence anywhere on association grounds.” 71 I.A.C. r. 5.5-1-1(a)(3).

In 2010, the ITOBA was a registered horsemen’s association with approval to render pari-mutuel related services or commodities. And pursuant to Indiana Code section 4-35-7-12, the IHRC provided funds to the ITOBA that were generated by the state’s racetracks. The IHRC determined that Martin was required to be licensed under Rule 5.5 —1—1(a)(3) because he was the executive director of the ITO-BA, which is a “concern ... approved by the ... commission to provide a pari-mu-tuel related service” and Martin’s job duties required his presence “in a restricted area” and/or “on association grounds.” Br. of Appellant at 23.

The record strongly supports the IHRC’s claim that as executive director of the ITOBA, Martin had direct access to racehorses and their owners. The ITOBA is intimately involved in the sales of horses that are likely to participate in future parimutuel racing. The IHRC also contends that the evidence establishes that Martin “worked” the July and October horse sales at Hoosier Park Racetrack. The director of security for the IHRC reported that Martin was loading horses for transport at the October horse sale. Appellant’s App. p. 347.

The IHRC summarizes the merits in this case well when it argues that the IHRC’s decision to require licensure

is completely reasonable, given that (1) ITOBA receives sales commissions based on the horse’s sale price; (2) the horses were being exhibited in timed work outs for the purpose of soliciting buyers; (3) Martin was ITOBA’s employee and executive director, (4) ITO-BA was approved by the [IHRC] to receive wagering funds and provide pari-mutuel related services; and (5) Martin was intimately involved in the provision of ITOBA’s services at the track, and thus was in the position to observe and report any Rule violations by owners, trainers or other racing participants.

Appellant’s Br. at 24. Moreover, we observe that the ITOBA directly benefited from pari-mutuel wagering in 2010 because it received gambling proceeds from the IHRC pursuant to Indiana Code section 4-35-7-12.

Our standard of review is well-settled, and Martin has not established that the IHRC’s decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and its decision was supported by substantial evidence. Martin was required to be licensed pursuant to Indiana Code section 4-31-6-1 and rule 5.5-l-l(a) because he was the ITOBA’s executive director in 2010 and an active participant in the ITOBA’s activities at Indiana’s horse racing tracks. For all of these reasons, we reverse the Marion Superior Court’s order setting aside and vacating the IHRC’s order excluding Martin from IHRC grounds and remand this case with instructions to reinstate the IHRC’s order and exclusion notice.

Reversed and remanded for proceedings consistent with this opinion.

BAKER, J., and BROWN, J., concur.

      . We held oral argument in this appeal on May 8, 2013 before the Sagamore American and Indianapolis American Inns of Court at the Indiana University Robert H. McKinney School of Law in Indianapolis, Indiana. We express our gratitude for their generous hospitality.

      . The IHRC requires licensees to report violations of its rules. See 71 I.A.C. r. 5.5-1-27 ("A licensee shall be knowledgeable of these rules and, by acceptance of the license, agrees to abide by these rules. []A licensee shall report to track security or the stewards any knowledge the licensee has that a violation of these rules has occurred or may occur.”).

      . The IHRC argues that Martin has waived this argument because it was not raised in the proceedings below. Issues that are not raised before the administrative agency are generally waived for judicial review. Mark P'Pool v. Ind. Horse Racing Comm'n, 916 N.E.2d 668, 676 (Ind.Ct.App.2009) (citing Ind.Code § 4-21.5-5-10). We agree that during the administrative hearings Martin did not specifically argue that Rule 5.5-1-1 was contrary to law or that the Commission’s interpretation of that rule was unreasonable. However, Martin did argue that the IHRC's interpretation of the phrase "participate in racing" was overly broad and suggested that only those individuals who directly participate in the act of parimutuel racing should be required to be licensed. We therefore address his argument concerning the reasonableness of Rule 5.5-1-1 because the IHRC's interpretation of the phrase "participate in racing” is manifested in that rule.

      . Martin argues that the ITOBA never actually rendered "pari-mutuel related services or commodities." However, the promotion and sale of thoroughbred horses that will likely be trained for racing and used in races subject to wagering is providing a pari-mutuel related service or commodity, particularly where the ITOBA benefits financially from its sales of race horses. The rule only requires that the ITOBA was approved by the IHRC to provide such services and not that the ITOBA actually rendered pari-mutuel services.

      . 71 Indiana Administrative Code rule 13-1-5 provides that all "directors, officers, and employees of a registered horsemen’s association that will have access to any funds received pursuant to IC 4-35-7-12 if not otherwise licensed and in good standing with the commission, must apply for and be granted a separate commission license to act as a director, officer, or employee of a horsemen’s association in order to serve in that capacity.” Martin denied any access to such funds, and the IHRC does not dispute Martin’s denial.

      .Without any additional discussion, the trial court found that this finding was not supported by substantial evidence. Our review of the record leads us to come to the opposite conclusion. The IHRC’s director of security’s observations of Martin’s activities at Hoosier Park were included in the agency record.


author: RILEY, Judge.

text:
    Richard HAWKINS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 79A02-1211-CR-958.
    Court of Appeals of Indiana.
    July 3, 2013.
    David T.A. Mattingly, Lafayette, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Richard Hawkins (Hawkins), appeals his sentence following a guilty plea to dealing in cocaine, a Class A felony, Ind.Code § 35-48-4-1 and possession of cocaine, a Class A felony, I.C. § 35-18^1-6.

We affirm.

ISSUE

Hawkins raises two issues on appeal, one of which we find determinative and restate as follows: Whether Hawkins knowingly and voluntarily waived his right to appeal the appropriateness of his sentence when he entered into a plea agreement with the State.

FACTS AND PROCEDURAL HISTORY

On or about September 2, 2011, a confidential informant notified the Lafayette police department that Hawkins was dealing in crack cocaine. Law enforcement officers directed the confidential informant to make arrangements to purchase crack cocaine from Hawkins. Thereafter, on September 2, 7, and 26, 2011, the confidential informant made three purchases of crack cocaine. Each controlled buy was conducted at the request of and monitored by law enforcement officers. On September 27, 2011, law enforcement officers obtained a search warrant for Hawkins’ residence. During the search, the officers discovered 28.5 grams of cocaine, a legend drug, a Schedule IV controlled substance, and 2.4 grams marijuana, as well as digital scales and baggies.

On September 21, 2011, the State filed an Information, which was amended on November 14, 2011, charging Hawkins with two Counts of dealing in cocaine, Class A felonies, I.C. § 35-48-4-1; one Count of possession of cocaine, a Class A felony, I.C. § 35-48-4-6; one Count of possession of a schedule IV controlled substance, a Class C felony, I.C. § 35 — 48-4-7; one Count of possession of a legend drug, a Class D felony, I.C. § 16-42-19-13; one Count of possession of marijuana, a Class A misdemeanor, I.C. § 35-48-4-11; one Count of possession of marijuana while having a prior conviction, a Class D felony, I.C. § 35-48-4-6; and one Count of being an habitual offender, I.C. § 35-50-2-10. On August 2, 2012, Hawkins entered into a plea agreement with the State, in which he agreed to plead guilty to one Count of dealing in cocaine as a Class A felony and one Count of possession of cocaine as a Class A felony in exchange for the dismissal of the other charges. The plea agreement directed that sentencing would be at the discretion of the trial court, other than that Hawkins would receive concurrent sentences. In addition, the plea agreement contained the following language:

That as a condition of entering this plea agreement, the defendant knowingly and voluntarily agrees to waive his right to appeal the sentence on the basis that it is erroneous or for any other reason, including the right to seek appellate review of the sentence pursuant to Indiana Appellate Rule 7(B), so long as the [cjourt sentences the defendant within the terms of the plea agreement.

(Appellant’s App. p. 28). On November 1, 2012, the trial court sentenced Hawkins to concurrent thirty-four year sentences on each Count, with four years in community corrections.

Hawkins now appeals. Additional facts ■will be provided as necessary.

DISCUSSION AND DECISION

Hawkins contends that even though his plea agreement contains a clause waiving the right to appeal his sentence, he did not knowingly and voluntarily waive this right. In particular, Hawkins points to the trial court’s advisement during the plea hearing that he is entitled to be represented by an attorney on appeal.

Defendants who bargain to plead guilty in return for favorable outcomes give up a plethora of substantive claims and procedural rights. Games v. State, 743 N.E.2d 1132, 1135 (Ind.2001). As such, our supreme court has held that a defendant may waive the right to appellate review of his sentence as part of a written plea agreement as long as the waiver is knowing and voluntary. Creech v. State, 887 N.E.2d 73, 75 (Ind.2008). The content and language of the plea agreement itself, as well as the colloquy where necessary, govern the determination as to the validity of the waiver. Id. at 76 (quoting United States v. Williams, 184 F.3d 666, 668 (7th Cir.1999)). A specific dialogue with the trial court is not a necessary prerequisite to a valid waiver of appeal, if there is other evidence in the record demonstrating a knowing and voluntary waiver. Id. Inventiveness with the aid of hindsight is the principal threat to the stability of plea agreements, and therefore the major hazard to the defendants’ ability to obtain concessions for the right they surrender. Id. (quoting Williams, 184 F.3d at 669). Defendants should not be freed from their bargain merely because the court could imagine potential changes in the procedures used or envision a more precise colloquy. See id.

During the hearing on Hawkins’ guilty plea, the trial court read through the agreement in open court, including the waiver of his appellate rights. The trial court then advised Hawkins of the rights he was waiving by pleading guilty. Specifically, after enumerating the rights waived, the following exchange occurred:

[TRIAL COURT]: Do you understand that by pleading guilty today that you are giving up those rights which I have just explained to you?
[HAWKINS]: Yes sir.
[TRIAL COURT]: Do you understand that if you were to have a trial and were convicted you would have the right to appeal that conviction to the [c]ourt of [a]ppeals or [s]upreme [c]ourt of Indiana?
[HAWKINS]: Yes sir.
[TRIAL COURT]: Furthermore, at paragraph four of the [p]lea Agreement, if the [c]ourt accepts the agreement, that you agree to waive your right to appeal the sentence, you understand that?
[HAWKINS]: Yes sir.
[TRIAL COURT]: Do you understand that you have the right to be represented by an attorney at all times, including during a trial, or for an appeal. If you cannot afford an attorney, the [c]ourt would appoint one for you?
[HAWKINS]: Yes sir.

(Tr. pp 9-10).

By explaining that Hawkins has the right to an attorney, the trial court is not contradicting the waiver provision. Instead, read within the context of the hearing, the trial court is merely explaining Hawkins’ right of representation — a right clearly distinct from his right to appeal his sentence.

However, Hawkins analogizes his situation to Ricci v. State, 894 N.E.2d 1089 (Ind.Ct.App.2008), trans. denied and Bonilla v. State, 907 N.E.2d 586 (Ind.Ct.App.2009), trans. denied. Ricci involved a written plea agreement which provided that the defendant waived his right to appeal. Ricci, 894 N.E.2d at 1093. During the plea hearing, the trial court unambiguously stated that, according to its reading, Ricci had not surrendered the right to appeal his sentence, and the trial court’s statement was not contradicted by counsel for either party. Id. In those circumstances, we concluded that all parties entered the plea agreement with the understanding that Ricci retained the right to appeal his sentence and held the waiver to be a nullity. Id. at 1094.

A similar situation occurred in Bonilla. Bonilla entered into a written plea agreement waiving his right to appeal. Bonilla, 907 N.E.2d at 589. At the plea hearing, the trial court noted Bonilla “may” have waived his right to appeal his sentence. Id. However, the court proceeded to advise Bonilla of his right to appeal and asked if he understood that right. Id. Given the contradictory information Bonilla received at the plea hearing and the fact that Bonil-la was not a native English speaker, we concluded that Bonilla did not waive his right to appeal his sentence. Id. at 590.

Ricci and Bonilla are inapposite to the case at hand as the trial court did not make any contradictions or raise any ambiguities with respect to the plea agreement and the waiver language. The trial court clearly enumerated the rights Hawkins had foregone by pleading guilty and then asked Hawkins if he understood he would have the right to appeal if he went to trial, but that by entering into the plea agreement, he had waived that right. Hawkins answered affirmatively. Then, after having concluded its advisements on the right to appeal, the trial court explained that he had the right to be represented by an attorney at any stage of the proceedings. By separating the right to appeal from the right to representation, the trial court properly advised Hawkins without contradicting itself or raising any ambiguities. We conclude that Hawkins knowingly and voluntarily waived his right to appeal his sentence.

CONCLUSION

Based on the foregoing, we conclude Hawkins waived the right to appeal the appropriateness of his sentence.

Affirmed.

BRADFORD, and BROWN, JJ., concur.


author: BAKER, Judge.

text:
    Wayne L. PATTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 17A05-1210-CR-538.
    Court of Appeals of Indiana.
    July 9, 2013.

      Adam C. Squiller, Squiller Law Office, P.C., Auburn, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

In this case, the appellant-defendant Wayne L. Patton challenges a certain condition of probation that the trial court imposed following his conviction for Child Seduction, a class D felony. Patton contends that the condition prohibiting him from accessing various internet websites and computer programs in which children are likely to participate is “overly broad, excessively vague,” and impermissibly impinges on his First Amendment rights under the United States Constitution. Appellant’s Br. p. 4.

A trial court may impose conditions of probation that restrict a defendant’s activities substantially beyond the ordinary restrictions that are imposed upon an individual. The condition that the trial court imposed upon Patton is reasonable and is neither overbroad nor excessively vague because the condition relates directly to preventing Patton from communicating with children on the internet: The condition also specifically informs Patton that he is prohibited from engaging in internet activity that is designed and known to be used by children. As a result, we decline to strike this condition of probation, and we affirm the judgment of the trial court.

FACTS

On June 9, 2011, Patton took his sixteen-year-old daughter, J.P., driving, so she could obtain practice hours toward obtaining her operator’s license. At some point, Patton told J.P. to stop the van and get out. J.P. complied and Patton began to fondle J.P.’s breasts. Patton then told J.P. that they should try some “other [sexual] things,” sometime. Tr. p. 152-53.

The next morning, J.P. reported the incident to Jessica, her mother. When Jessica confronted Patton about the incidents, Patton admitted that he had looked at J.P.’s breasts, but he claimed it was because she had asked him to examine a scab on one of them. After picking up J.P. and her other two children and driving them to her parents’ home in Auburn, Jessica reported to the Auburn Police Department what J.P. had told her.

During an interview with police officers, Patton told Auburn Police Detective Phil Snover that J.P. had asked him to “look at something on her breast.” Tr. p. 215. Although Patton admitted that he did so in “the back of the van,” he denied that he had ever touched J.P. Id. The State subsequently charged Patton with class D felony child seduction. At trial, Patton denied touching J.P. and claimed that she “likes attention” and is “very imaginative.” Id. at 223, 236, 240, 241. The jury found Patton guilty as charged.

The trial court subsequently sentenced Patton to one-and-one-half years of incarceration, with sixty days executed on weekends and the remainder suspended to probation. The trial court informed Patton that he was required to follow all of the special sex offender rules and register as a sex offender for a period of ten years. These conditions included the following:

You are prohibited from accessing or using certain websites, chat rooms, or instant messaging programs frequented by children. You are prohibited from deleting, erasing, or tampering with information on your personal computer with intent to conceal an activity prohibited by this condition[]

Appellant’s App. p. 69-71. Patton acknowledged this condition of probation, signed the form advising him of this condition at the sentencing hearing, and did not object. Patton now appeals.

DISCUSSION AND DECISION

Patton argues that the trial court’s imposition of the child-related internet restrictions as a condition of his probation cannot stand. Patton contends that this condition is vague and “overbroad in that it unnecessarily prohibits a vast range of non-illicit conduct and could easily have been narrowly tailored to prevent the targeted activities.” Appellant’s Br. p. 4. In other words, Patton claims that the language of this particular condition of probation is vague and lacks specificity with regard to the particular websites and software that Patton should be prohibited from using.

In resolving this issue, we initially observe that a trial court has broad discretion in establishing conditions of probation to safeguard the general public and to create law-abiding citizens. Gordy v. State, 674 N.E.2d 190, 191 (Ind.Ct.App.1996). Conditions of probation should effectuate the supervision required to achieve probation goals and, therefore, must be functionally and rationally related to the probationer’s rehabilitative needs and to society’s interests. McCloud v. State, 452 N.E.2d 1053, 1056 (Ind.Ct.App.1983). We will not set aside terms of probation unless the trial court has abused its discretion. Whitener v. State, 982 N.E.2d 439, 446 (Ind.Ct.App.2013), trans. denied. An abuse of discretion occurs when 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.

As noted above, Patton did not object at the sentencing hearing to the condition of probation, which stated that he was “prohibited from accessing or using certain websites, chat rooms, or instant messaging programs frequented by children.” Tr. p. 307-37. Thus, Patton has waived the issue. See Hale v. State, 888 N.E.2d 314, 319 (Ind.Ct.App.2008) (observing that by failing to object to the conditions of probation at the sentencing hearing, a defendant does not properly preserve the issue for appellate review). And arguments raised for the first time on appeal are waived. Stewart v. State, 945 N.E.2d 1277, 1288 (Ind.Ct.App.2011), trans. denied.

Waiver notwithstanding, we note that Indiana Code section 35-38-2-2.2(4) provides that

[a]s a condition of probation for a sex offender (as defined in IC 11-8-8-4.5), the court shall:
(4) prohibit the sex offender from
(A) Accessing or using certain websites, chat rooms, or instant messaging programs frequented by children; and
(B) Deleting, erasing, or tampering with information on the sex offender’s personal computer with intent to conceal an activity prohibited by clause (A).

Although Patton attacks the validity of this statute on constitutional grounds alleging that it unfairly impinges on his First Amendment rights, we note that First Amendment protections are not absolute. Indeed, some restrictions on speech are consistent with First Amendment principles, especially in the context of conditions of probation. Braun v. Baldwin, 346 F.3d 761, 763 (7th Cir.2003). More specifically, conditions of supervision may restrict a probationer’s activities “substantially beyond the ordinary restrictions imposed by law on an individual citizen.” Morrissey v. Brewer, 408 U.S. 471, 478, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

When a defendant challenges a probationary condition because it allegedly unduly intrudes on a constitutional right, we evaluate that claim by balancing the following factors: 1) the purpose to be served by probation; 2) the extent to which constitutional rights enjoyed by law-abiding citizens should be enjoyed by probationers; and 3) the legitimate needs of law enforcement. McVey v. State, 863 N.E.2d 434, 447 (Ind.Ct.App.2007).

Although Patton relies on Doe v. Marion County Prosecutor, 705 F.3d 694, 703 (7th Cir.2013), in support of his contention that his First Amendment rights were violated in light of this probation condition, we note that the United States Court of Appeals for the Seventh Circuit interpreted Indiana Code section 35-42-4-12, which prohibited certain sex offenders from “knowingly or intentionally us[ing]: a social networking website” or “an instant messaging or chat room program” that “the offender knows allows a person who is less than eighteen (18) years of age to access or use the website or program,” and held that the statute was not “narrowly tailored” because the statute targeted substantially more activity than the evil it sought to address, which was illicit contact with minors. Id. at 699-701.

However, it was expressly acknowledged that this holding “should not be read to affect district courts’ latitude in fashioning terms of supervised release, ... or states from implementing similar solutions.” Id. at 703. Indeed, the Doe Court recognized that a trial court might constitutionally limit a defendant’s full access to the internet as a term of supervised release if such full access posed too high a risk of recidivism. Id.

In this case, Patton is a sex offender on supervised release that places him in a significantly different position than the class of sex offenders in Doe and renders the holding in that case inapplicable to him. Time and again, we have observed that conditions of probation may impinge upon a probationer’s right to exercise an otherwise constitutionally protected right because “probationers simply do not enjoy the freedoms to which ordinary citizens are entitled.” Purdy v. State, 708 N.E.2d 20, 22 (Ind.Ct.App.1999).

Here, Patton’s internet restriction specifically applies to websites that are “frequented by children.” I.C. § 35-38-2-2.2(4). In our view, this internet restriction while Patton is on probation is reasonably and directly related to deterring Patton from having contact with children and to protecting the public. See United States v. Zinn, 321 F.3d 1084, 1093 (11th Cir.2003) (recognizing that “the concomitant dangers of the internet and the need to protect both the public and sex offenders themselves from its potential abuses”). Also, Patton’s internet restriction is tailored to him as a sex offender and serves the legitimate needs of law enforcement to monitor and restrict his activities with children for this initial period following his conviction.

On the other hand, we note that the internet restriction as applied to Patton does not prohibit him from searching for employment, gaining additional education, or reading a newspaper. The condition prohibits Patton from accessing only those internet-related activities used by children, which are directly related to his position as a sex offender on probation. See Harris v. State, 836 N.E.2d 267, 275 (Ind.Ct.App.2005) (holding that an internet restriction on a parolee reasonably related to the State’s goals of reintegrating the parolee into his community, protecting the general public, and preventing future crime does not unduly infringe upon the parolee’s First Amendment rights).

Patton does not identify a single activity or other conduct that is prohibited by the probation condition but unrelated to seeking out inappropriate contact with minors. Therefore, Patton has failed to satisfy his burden of showing that this probation condition is overly broad as applied to him.

Additionally, we note that Patton has likewise failed to demonstrate that the probationary condition is unconstitutionally vague. Like statutes that define criminal offenses, the language in a probation condition must be such that it describes with “particularity and clarity” the misconduct that will result in penal consequences. Hunter v. State, 883 N.E.2d 1161, 1163-64 (Ind.2008). The condition imposed upon Patton would be considered vague only if individuals of ordinary intelligence would not comprehend it to adequately inform them of the conduct to be proscribed. Smith v. State, 727 N.E.2d 763, 766 (Ind.Ct.App.2000). The condition need only inform the individual of the generally proscribed conduct. Id. It need not list, with itemized exactitude, every item of conduct that is prohibited. A defendant is not at liberty to devise hypothetical situations that might demonstrate vagueness. Id.

In our view, the language of the condition prohibiting Patton from “accessing or using certain websites, chat rooms, or instant messaging programs frequented by children” adequately informs him that he is prohibited from internet activity that would allow him to view communications between children and to communicate with them. Restricting a sex offender’s access to the internet that “offers unlimited access to people, including children” serves to protect the public and to prevent future criminal activity. See Harris, 836 N.E.2d at 275 (finding a complete ban on internet use without the prior approval of the parole agent to not be vague).

We also note that there are a number of ways that Patton can learn which internet activities are permissible. Indeed, some websites require age verification for entry and/or clearly state the adult-based objective, which would not be frequently used by children. Chat rooms routinely define the group in its description, so Patton would know if it is a child-based means of communication. For instance, “Girls_Club299999” is a chat group for girls on Yahoo between the ages of six and nineteen, and “Charhour.com” is a chat room for children under the age of thirteen. Additionally, social media sites such as Facebook expressly state the terms and conditions of use that demonstrate it is used by children thirteen to eighteen years old. Facebook, Statement of Rights and Responsibilities, Faeebook.com/le-gal/terms (last updated Dec. 11, 2012) (requiring users to be thirteen years of age or older).

In our view, there is little risk as Patton navigates the internet that he would intentionally access a website or a chat room that permits communication with children without being on notice that the site permits that kind of activity. Also, there is no reason to believe that the probation condition at issue would be read to include inadvertent or incidental access onto a prohibited website or chat room. See Smith, 727 N.E.2d at 766 (excluding inadvertent or incidental contact with minors as a violation of the probationary condition that a person have no contact with minors).

Because the condition of probation in this case is specifically tailored to only those internet activities that are “frequented by children,” Patton is provided with adequate notice that he would be in violation of his probation by accessing websites that are designed and known to be used by children for communication. Also, in light of the vast nature of the internet, it would be virtually impossible for the legislature to list each and every website, chat room, or instant messaging program that permits communication by and among children. In short, because the language of the probation condition afforded Patton a predictable standard and notice with regard to his internet usage during his probationary period, his constitutional claims fail, and we decline to set aside the condition of probation that relates to his internet usage.

The judgment of the trial court is affirmed.

MAY, J., and MATHIAS, J., concur.

      . Ind.Code § 35-42-4-7(k).

      . This is a required condition of probation under Indiana Code section 35-38-2-2.2(4).


author: NAJAM, Judge.

text:
    Kenneth SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1212-CR-1017.
    Court of Appeals of Indiana.
    July 11, 2013.

      Bernice A.N. Corley, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michelle Bumgarner, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Kenneth Smith appeals the trial court’s order that he pay $1,380 in restitution to William Kirkham. Smith raises a single issue for our review, which we restate as the following two issues:

1. Whether the trial court abused its discretion when it attributed property missing from Kirkham’s house to Smith even though the State did not use that property to secure Smith’s conviction for theft, as a Class D felony; and
2. Whether the trial court adequately considered Smith’s ability to pay $230 per month in restitution when he acknowledged he was paying $240 per month for home detention fees and the court responded by suspending those fees until Smith had paid his restitution in full.

We affirm.

FACTS AND PROCEDURAL HISTORY

On August 31, 2011, the State charged Smith with theft, as a Class D felony, alleging that he had stolen a radio, guitar, DVDs, and/or a silver coin from Kirkham’s house while Kirkham was away. The parties agree that the value of the unreturned stolen items listed in the charging information was about $80. After a bench trial in September of 2012, the trial court found Smith guilty as charged.

The court held a restitution hearing on December 3, 2012. At that hearing, Kirk-ham testified that, in addition to the items alleged in the State’s charging information, he was also missing 350-400 CDs, valued between $4 and $20 each, and about $100 cash in the form of silver dollars and half dollars. Smith objected to Kirkham’s testimony on the ground that those additional items had not been “proven at trial.” Transcript at 4. The court overruled Kirk-ham’s objection.

The State calculated Kirkham’s loss at $1,380. The trial court then engaged Smith in the following colloquy:

THE COURT: ... the order of this Court will be restitution in the amount of $1380.00. Now you just pay that in ... six months in equal installments. What is that? $1380.00 in six months? You can do that can’t you?
MR. SMITH: Try my hardest Your Honor.
THE COURT: Well ...
MR. SMITH: I am the only one working in a household of five right now. I am trying to support my family.
THE COURT: I understand.
* ⅜ ⅜
COURT REPORTER: $230.00 a month.
MS. JOACHIM [for Smith]: Judge I believe that may be beyond Mr. Smith’s means to pay.
THE COURT: He is paying how much a month for home detention?
MR. SMITH: ... $240.00 a month[,] rough estimate.
THE COURT: Okay and this is $230.00[. P]ay this first. Then we will talk about the other.
THE COURT: So I assume he has the ability to pay $240.00 a month[,] is that right Mr. Smith?
MR. SMITH: I have been paying $100.00 every two weeks.
THE COURT: Then pay this at $[1]15.00 ... every two weeks w[hich] will make $230.00 per month and then I will ask the judge [who] [succeeds me on this bench to look at whether or not you should pay all of your home detention expenses and give you credit as he sees fit for what you have done....

Id. at 12-14. This appeal ensued.

DISCUSSION AND DECISION

Overview

Smith asserts that the trial court abused its discretion when it ordered him to pay $1,380 in restitution. A trial court has the authority to order a defendant convicted of a crime to make restitution to the victim of the crime. Ind.Code § 35-50-5-3; Wolff v. State, 914 N.E.2d 299, 303 (Ind.Ct.App.2009). It is well established that “restitution must reflect actual loss incurred by a victim,” and that any “loss proven to be attributable to the defendant’s charged crimes” is recoverable as restitution. Batarseh v. State, 622 N.E.2d 192, 196 (Ind.Ct.App.1993) (discussing Hipskind v. State, 519 N.E.2d 572, 574 (Ind.Ct.App.1988)), trans. denied.

The amount of a victim’s loss is a factual matter that can be determined only on presentation of evidence. Rich v. State, 890 N.E.2d 44, 49 (Ind.Ct.App.2008). An order of restitution is a matter within the trial court’s discretion, and we reverse only on a showing of abuse of that discretion. Wolff, 914 N.E.2d at 303. An abuse of discretion occurs when the order 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. Under our abuse of discretion standard, we will affirm the trial court’s decision if there is any evidence supporting the decision. Creager v. State, 737 N.E.2d 771, 779 (Ind.Ct.App.2000), trans. denied.

Issue One: Evidence of the Victim’s Loss

Smith first asserts that the State may not present evidence of the victim’s loss for the first time at the restitution hearing. In support of this assertion, Smith relies on James v. State, 868 N.E.2d 543 (Ind.Ct.App.2007), and similar cases. In James, we held that the trial court abused its discretion when it ordered the defendant to pay restitution “for a second burglary ... of which [the defendant] was never accused.” Id. at 549.

James is inapposite. Unlike in James, here the trial court’s restitution order is not based on crimes Smith was not accused of having committed. Rather, the trial court based its restitution order wholly on the acts underlying Smith’s conviction. In particular, during the restitution hearing Kirkham testified that, among other things, he was missing between 350-400 CDs, valued between $4 and $20 each, and $120 in cash following Smith’s theft. Thus, Kirkham’s testimony demonstrated his degree of loss attributable to Smith’s crime, and Kirkham may recover that loss as restitution. See Batarseh, 622 N.E.2d at 196. Insofar as Smith challenges Kirk-ham’s testimony on appeal, Smith’s argument is merely a request for this court to reweigh the evidence, which we will not do. See Creager, 737 N.E.2d at 779.

Smith does not suggest that he has a constitutional right to have the State present all evidence of the victim’s loss to the trier of fact during prosecution, and for good reason. The United States Supreme Court has held that, “ ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ ” Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). More recently, the Court has applied the Appren-di-Blakely rule “to the imposition of criminal fines,” stating:

Criminal fines ... are penalties inflicted by the sovereign for the commission of offenses. Fines were by far the most common form of noncapital punishment in colonial America. They are frequently imposed today, especially upon organizational defendants who cannot be imprisoned. And the amount of a fine, like the maximum term of imprisonment or eligibility for the death penalty, is often calculated by reference to particular facts. Sometimes, as here, the fact is the duration of a statutory violation; under other statutes it is the amount of the defendant’s gain or the victim’s loss, or some other factor. In all such cases, requiring juries to find beyond a reasonable doubt facts that determine the fine’s maximum amount is necessary to implement Apprendi’s “animating principle”: the “preservation of the jury’s historic role as a bulwark between the State and the accused at the trial for an alleged offense.”

Southern Union Co. v. United States, — U.S. -, 132 S.Ct. 2344, 2350-51, 2357, 183 L.Ed.2d 318 (2012) (emphasis added; footnotes and citation omitted).

But in Prickett v. State, 856 N.E.2d 1203, 1210 (Ind.2006), the Indiana Supreme Court held that “the trial court’s order of restitution for Prickert did not violate the requirements of Blakely ” because “the scope of the Framers’ conception of the Sixth Amendment did not embrace restitution orders....” (Citation and quotation omitted.) Prickett is still good law. As explained by the United States Court of Appeals for the Fourth Circuit:

Day’s restitution argument is unavailing. ... [Tjhere is the initial question in the restitution context of whether Ap-prendi applies at all. Prior to Southern Union, every circuit to consider whether Apprendi applies to restitution held that it did not. Day argues that we should break ranks with these prior decisions in light of Southern Union and apply Ap-prendi to restitution because it is “similar” to a criminal fine.
We decline to take' Day’s suggested course. As an initial matter, we note that Southern Union does not discuss restitution, let alone hold that Apprendi should apply to it. Instead, far from demanding a change in tack, the logic of Southern Union actually reinforces the correctness of the uniform rule adopted in the federal courts to date. That is, Southern Union makes clear that Ap-prendi requires a jury determination regarding any fact that “increases the penalty for a crime beyond the prescribed statutory maximum.” 132 S.Ct. at 2350 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348). Thus, in Southern Union itself, the Apprendi issue was triggered by the fact that the district court imposed a fine in excess of the statutory maximum that applied in that case. Id. at 2349.
Critically, however, there is no prescribed statutory maximum in the restitution context; the amount of restitution that a court may order is instead indeterminate and varies based on the amount of damage and injury caused by the offense. As a consequence, the rule of Apprendi is simply not implicated to begin with by a trial court’s entry of restitution.... That logic was sound when written before Southern Union, and it remains so today.

United States v. Day, 700 F.3d 713, 732 (4th Cir.2012) (emphasis original; some citations omitted), cert. denied, - U.S. -, 133 S.Ct. 2038, 185 L.Ed.2d 887 (2013). We agree with the Fourth Circuit’s analysis in Day.

Further, restricting evidence of the victim’s actual loss to that which the prosecutor uses to obtain a conviction might limit the amount the victim is entitled to recover under Indiana law. See Batarseh, 622 N.E.2d at 196. For example, here, for purposes of prosecution the State focused on “what the State was able to prove from the things that were pawned ... that there was a record of.... [B]ut Mr. Kirkham had other numerous things taken.... ” Transcript at 4. Accordingly, we cannot say that the trial court erred when it permitted the State to present, at the restitution hearing, evidence of the victim’s actual loss that was not presented during Smith’s trial.

Issue Two: Ability to Pay

Smith next asserts that the trial court failed to inquire into his ability to pay restitution. When restitution is ordered as a condition of probation, “the court shall fix the amount, which may not exceed an amount the person can or will be able to pay.” I.C. § 35-38-2-2.3(a)(5). Although the trial court must determine the defendant’s ability to pay the amount of restitution ordered, the statute does not specify the extent to which the court must inquire to determine the defendant’s financial status. Smith v. State, 655 N.E.2d 133, 134 (Ind.Ct.App.1995), trans. denied; see also Kays v. State, 963 N.E.2d 507, 509 (Ind.2012) (“The statute sets forth no particular procedure the trial court must follow in determining the defendant’s ability to pay, but we have consistently recognized that some form of inquiry is required.”). Thus, we review this issue for an abuse of discretion. See Smith, 655 N.E.2d at 134.

The trial court inquired into Smith’s ability to pay. Specifically, the court asked Smith if he could pay $1,380 over six months, to which Smith said he would “[t]ry [his] hardest.” Transcript at 12. The court then clarified that Smith’s obligation would be $230 per month for six months, and Smith estimated that he was already paying $240 per month for his home detention. The court then stated, “So I assume he has the ability to pay $240.00 a month, is that right Mr. Smith?” Id. at 14. Smith did not dispute the court’s statement, and the court suspended Smith’s payments for home detention so that Smith could first pay restitution to Kirkham instead. Accordingly, the trial court did not abuse its discretion when it determined Smith’s ability to pay restitution.

Affirmed.

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

      . The State asserts that it miscalculated in Smith’s favor, but that is not relevant to this appeal.