author: Slaughter, Justice.

text:
    NIPSCO INDUSTRIAL GROUP, Appellant (Intervenor), v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee (Petitioner).
    Supreme Court Case No. 18S-EX-334
    Supreme Court of Indiana.
    Argued: November 21, 2017 Decided: June 20, 2018
    ATTORNEYS FOR APPELLANT: Todd A. Richardson, Joseph P. Rompala, Lewis Kappes, P.C., Indianapolis, Indiana
    ATTORNEYS FOR APPELLEE: Brian J. Paul, Daniel E. Pulliam, Faegre Baker Daniels LLP, Indianapolis, Indiana, Claudia J. Earls, Christopher C. Earle, NiSource Corporate Services-Legal, Indianapolis, Indiana
    On Petition to Transfer from the Indiana Court of Appeals No. 93A02-1607-EX-1644
   Slaughter, Justice.

Under traditional rate regulation, an energy utility must first make improvements to its infrastructure before it can recover their cost through regulator-approved rate increases to customers. The process for recouping these costs, sometimes not until years after they were incurred, is an expensive, onerous ratemaking case, which involves a comprehensive review of the utility's entire business operations.

In 2013 the legislature authorized utilities to obtain regulatory preapproval for "designated" improvements to their infrastructure. Under the so-called "TDSIC"

Statute-which provides for more prompt reimbursement of specified transmission, distribution and storage system improvements-a utility can seek regulatory approval of a seven-year plan that designates eligible improvements, followed by periodic petitions to adjust rates automatically as approved investments are completed.

At issue here is the Indiana Utility Regulatory Commission's preapproval of approximately $20 million in infrastructure investments for which the Commission authorized increases to NIPSCO's natural-gas rates under the TDSIC mechanism. NIPSCO is an energy utility with more than 800,000 customers in northern Indiana. Some of NIPSCO's largest industrial customers-represented here by the NIPSCO Industrial Group-oppose NIPSCO's entitlement to favorable rate treatment under the TDSIC Statute, contending the disputed projects do not comply with the Statute's requirements.

The Commission's holding below, which divided our Court of Appeals, approved various categories of improvements-referred to variously as "project categories", "multiple-unit-project categories", and "multiple-unit projects"-that describe broad parameters for identifying future improvements but do not designate those improvements with specificity. NIPSCO defends these categorical designations by arguing it does not, and cannot, know in advance which specific segments of natural-gas pipes throughout its system will fail each year. But it does know, based on historical performance, that a certain percentage of its system will need to be replaced annually. NIPSCO contends the TDSIC Statute permits the Commission to approve a seven-year plan that describes future investments in terms of ascertainable planning criteria, although when its plan was approved, NIPSCO did not know which specific segments of its system would need to be replaced.

The Industrial Group, in contrast, interprets the TDSIC Statute more narrowly. It argues the Statute requires the utility and the Commission to designate specific projects upfront, rather than to rely on categories of projects not identified with specificity until later years. For the Industrial Group, the traditional ratemaking case is still the primary process for seeking reimbursement, subject to occasional use of the TDSIC procedure in the limited band of investments to which it applies.

The stakes are much larger than just the roughly $20 million at issue between NIPSCO and the Industrial Group. The Commission, we are told, has approved billions of dollars of utility-infrastructure investments through the TDSIC process. Given the favorable regulatory treatment, utilities are likely to funnel increasing amounts of infrastructure investments through this reimbursement mechanism. How we resolve these competing visions of the TDSIC Statute will likely have enormous financial consequences for utilities and their customers.

We conclude the TDSIC Statute permits periodic rate increases only for specific projects a utility designates, and the Commission approves, in the threshold proceeding and not for multiple-unit projects using ascertainable planning criteria. In other words, a utility must specifically identify the projects or improvements at the outset in its seven-year plan and not in later proceedings involving periodic updates. There is an appreciable difference between designating specific "projects" and "improvements" up front, which the Statute requires, and describing the criteria for selecting them later, which the Commission approved. We agree with the Court of Appeals' dissenting opinion that Commission approval of "broad categories of unspecified projects defeats the purpose of having a 'plan'." NIPSCO Indus. Grp. v. N. Ind. Pub. Serv. Co. , 78 N.E.3d 730, 740 (Ind. Ct. App. 2017) (Barnes, J., dissenting).

Because we find that preclusion principles do not bar our consideration of this important legal issue of first impression, we grant transfer, reverse the Commission's order in part, and remand.

Factual and Procedural History

A. Traditional utility regulation

Utility regulation is premised on a "regulatory compact" in which the State sanctions a utility's monopoly within a defined service area and subjects the utility to various regulatory restrictions and responsibilities.

As a quid pro quo for being granted a monopoly in a geographical area for the provision of a particular good or service, the utility is subject to regulation by the state to ensure that it is prudently investing its revenues in order to provide the best and most efficient service possible to the consumer.

United States Gypsum, Inc. v. Ind. Gas Co. , 735 N.E.2d 790, 797 (Ind. 2000) (quotation and citations omitted).

The State regulates utilities through the Commission, which is authorized by statute to act with "technical expertise to administer the regulatory scheme designed by the legislature ... to insure that public utilities provide constant, reliable, and efficient service to the citizens of Indiana." N. Ind. Pub. Serv. Co. v. United States Steel Corp. , 907 N.E.2d 1012, 1015 (Ind. 2009) (citation omitted). See Ind. Code §§ 8-1-1-1 to 8-1-1-15. When exercising this authority, the Commission balances the public's need for adequate, efficient, and reasonable service with the public utility's need for sufficient revenue to meet the cost of furnishing service and to earn a reasonable profit. United States Gypsum , 735 N.E.2d at 797-98. "Proper rates are those which produce a fair and nonconfiscatory return, and such as will enable the company, under efficient management, to maintain its utility property and service to the public, and provide a reasonable return upon the fair value of its used and useful property." Pub. Serv. Comm'n of Ind. v. Ind. Bell Tel. Co. , 235 Ind. 1, 15, 130 N.E.2d 467, 473 (1955) (citations omitted).

Traditionally, utility rates are adjusted through general ratemaking cases. General ratemaking is a "comprehensive" process, requiring the Commission to "examine every aspect of the utility's operations and the economic environment in which the utility functions to ensure that the data [the Commission] has received are representative of operating conditions that will, or should, prevail in future years." United States Gypsum , 735 N.E.2d at 798 (citation omitted).

B. The TDSIC process

Over the years, the legislature has supplemented traditional ratemaking with various "tracker" procedures that allow utilities to ask the Commission to adjust their rates to reflect various costs without having to undergo a full ratemaking case. The TDSIC Statute, I.C. ch. 8-1-39, enacted in 2013, is one such procedure. It encourages energy utilities to replace their aging infrastructure by modernizing electric or gas transmission, distribution, and storage projects. This TDSIC procedure, pronounced "tee-DEE-zick", is a process for utilities to assess a distinct charge-a Transmission, Distribution, and Storage System Improvement Charge-for completed projects deemed eligible improvements under the Statute. In contrast to traditional ratemaking, the TDSIC procedure permits a utility to seek preapproval of designated capital improvements to the utility's infrastructure and then to recover the costs of those improvements every few months as they are completed. Eligible improvements are certain new or replacement utility projects that:

(1) a public utility undertakes for purposes of safety, reliability, system modernization, or economic development ... ; (2) were not included in the public utility's rate base in its most recent general rate case; and (3) [were] designated in the public utility's seven (7) year plan and approved by the commission under section 10 of this chapter as eligible for TDSIC treatment".

I.C. § 8-1-39-2.

The TDSIC Statute contemplates two distinct types of proceedings. First, under Section 10, the utility may seek regulatory approval of a seven-year plan for designated improvements to transmission, distribution, and storage systems. See Id. § 8-1-39-10. The Commission shall then approve the plan and designate the planned improvements as eligible for TDSIC treatment if it finds the plan is reasonable. Id. § 8-1-39-10(b). When determining that a plan is reasonable, the Commission's order must include (1) "[a] finding of the best estimate of the cost of the eligible improvements", (2) "[a] determination whether public convenience and necessity require or will require the eligible improvements", and (3) "[a] determination whether the estimated costs of the eligible improvements ... are justified by the incremental benefits attributable to the plan". Id.

Second, under Section 9, once the Commission has approved a seven-year plan, the utility may petition every few months for periodic rate adjustments to recover "eighty percent (80%) of approved capital expenditures and TDSIC costs" for the system improvements designated as eligible and actually completed. Id. §§ 8-1-39-9(a), (c), (e). The remaining twenty percent can be recovered only "as part of the next general rate case that the public utility files with the commission." Id. § 8-1-39-9(b). The utility must "update [its] seven (7) year plan under subdivision (2) with each petition [it] files under this section." Id. § 8-1-39-9(a). Before a utility may recover additional costs above approved estimates, it must specifically justify the additional costs, and the Commission must specifically approve them. Id. § 8-1-39-9(f).

C. NIPSCO's TDSIC litigation

1. Designated vs. described

The parties dispute what qualifies as an eligible project under Section 2, which requires both designation and approval of the project in a seven-year plan the Commission approves under Section 10. I.C. § 8-1-39-2(3)(A). The Industrial Group claims the Commission can designate and approve projects identified only during the initial Section 10 process, and not during subsequent Section 9 petitions. It also claims that the TDSIC process is an extraordinary mechanism, applicable only in limited circumstances, and that the general ratemaking case remains the presumptive process for utilities to recover their investment costs.

NIPSCO, in contrast, argues the Commission can properly designate and approve multiple-unit projects , described using ascertainable planning criteria, as TDSIC-eligible. NIPSCO characterizes these multiple-unit projects, generally, as planned undertakings that include component parts that need to be improved, but without knowing in advance which specific parts will require replacement. Here, the United States Department of Transportation mandates that NIPSCO annually inspect thousands of units of natural-gas pipelines throughout its system. NIPSCO does not know in advance which specific pipeline segments within its system it will need to update. But based on historical performance, NIPSCO expects a certain percentage of its system will fail each year and require replacement. Depending on the inspection results, NIPSCO then develops a schedule to replace worn assets. This information enables NIPSCO to identify the specific units of work completed within the multiple-unit projects for which it received Commission approval.

2. Current procedural posture

Shortly after the TDSIC Statute was enacted, NIPSCO filed two Section 10 petitions, seeking approval of separate, but substantially similar, seven-year plans: one each for its electric system and its gas system. The Commission approved NIPSCO's Electric Plan in February 2014 and, in a separate proceeding, approved its Gas Plan in April 2014. The plans identified specific projects for the first year and described "project categories" for years two through seven. NIPSCO subsequently filed periodic Section 9 tracker petitions, seeking rate increases associated with completed matters referenced in the approved seven-year plans.

In 2015, the Court of Appeals reversed in part the Commission's order approving NIPSCO's Electric Plan. NIPSCO Indus. Grp. v. N. Ind. Pub. Serv. Co. , 31 N.E.3d 1 (Ind. Ct. App. 2015). The Electric Plan lacked sufficient detail for the Commission to determine whether the plan was reasonable and whether it included a best estimate of the cost of improvements under Section 10. Id. at 8. By identifying only the first year of improvements, the Plan presumed that future proposed projects identified in subsequent Section 9 "update" proceedings would be eligible for TDSIC treatment. Id. at 8-9. Thus, the Court held, the Plan unlawfully relieved NIPSCO of its burden to show the proposed projects were TDSIC-eligible. Id. at 9.

When the Electric Plan appeal was decided, NIPSCO had already completed its first Gas Plan Section 9 tracker petition, TDSIC-1, and the second, TDSIC-2, was pending. Given the legal problems with its Electric Plan, NIPSCO voluntarily dismissed its TDSIC-2 Gas Plan petition with the understanding that its next Section 9 tracker petition, TDSIC-3, would seek TDSIC-2 reimbursement and modification of its Gas Plan to comply with the appellate ruling.

In TDSIC-3, NIPSCO again sought approval of an "updated" seven-year Gas Plan. Although NIPSCO provided additional information for the proposed projects for all seven years of its revised seven-year Gas Plan, its TDSIC-3 petition continued to include projects identified with specificity as well as yet-to-be-identified projects. NIPSCO said it would identify specific instances of completed improvements within certain project-group categories in subsequent Section 9 plan updates. The Commission found that TDSIC-3 presented "a unique situation" because it had already approved NIPSCO's initial Section 10 Gas Plan in a final order. And it generally endorsed NIPSCO's proposal to establish objective ascertainable criteria for selecting specific projects within "project group" categories. The Industrial Group did not challenge the Commission's TDSIC-3 order approving NIPSCO's petition.

In February 2016, NIPSCO filed its fourth Section 9 petition-TDSIC-4-the subject of this appeal. This filing included another update to the Gas Plan, seeking an increase of approximately $20 million in the previously approved "Inspect & Mitigate" category. This category included both additional distinct projects and an increased number of projects within previously approved categories. NIPSCO referred to these Inspect & Mitigate project groups as "multiple-unit projects".

The Industrial Group intervened at the Commission and opposed this petition for $20 million in rate relief. Particularly, the Industrial Group objected to NIPSCO's multiple-unit-projects approach, arguing that project groups described using objective ascertainable-standard criteria are not permitted under the TDSIC Statute. Despite this challenge, the Commission approved NIPSCO's TDSIC-4 petition. Relying on its TDSIC-3 order, the Commission found NIPSCO's multiple-unit-project categories were supported by sufficient ascertainable planning criteria for later identifying eligible improvements, and the roughly $20 million increase was based on "further identification of the specific projects or asset replacements within the approved project groups."

The Industrial Group appealed the Commission's TDSIC-4 order, and a divided Court of Appeals affirmed. The majority held that NIPSCO's updated seven-year plan was lawful "because the improvements included in the update were not new projects as they were chosen by utilizing the ascertainable planning criteria previously approved by the Commission and contained in NIPSCO's 7-year plan." 78 N.E.3d at 739. The dissent believed the TDSIC Statute requires that a "specific plan" be established in the initial Section 10 proceedings, and that merely describing multiple-unit-project categories does not sufficiently designate which specific projects are eligible for reimbursement through later Section 9 proceedings. Id. at 740.

Standard of Review

When reviewing Commission decisions, we conduct three levels of review: one for factual findings; another for mixed questions of law and fact; and a third for questions of law. At issue here is the last category. This case does not implicate the Commission's ratemaking expertise but presents a pure question of law: Does the TDSIC Statute authorize the Commission to approve "project categories" or "multiple-unit projects" described using ascertainable planning criteria?

We review questions of law de novo, Ind. Bell Tel. Co. v. Ind. Util. Regulatory Comm'n , 715 N.E.2d 351, 354 (Ind. 1999) (citation omitted), and accord the administrative tribunal below no deference. To do otherwise would abdicate our duty to say what the law is. See, e.g., Marbury v. Madison , 5 U.S. (1 Cranch) 137, 176, 2 L.Ed. 60 (1803). Such plenary review is "constitutionally preserved" for the judiciary, United States Steel , 907 N.E.2d at 1016, and considers whether the disputed "decision, ruling or order is contrary to law." Citizens Action Coal. of Ind., Inc. v. N. Ind. Pub. Serv. Co. , 485 N.E.2d 610, 613 (1985) (citation omitted). Such legal questions are for the courts to resolve and turn on "whether the Commission stayed within its jurisdiction and conformed to the statutory standards and legal principles involved in producing its decision, ruling, or order." United States Steel , 907 N.E.2d at 1016.

Separation-of-powers principles do not contemplate a "tie-goes-to-the-agency" standard for reviewing administrative decisions on questions of law. In discharging our constitutional duty, we pronounce the statutory interpretation that is best and do not acquiesce in the interpretations of others. Deciding the scope of the Commission's authority under the TDSIC Statute falls squarely within our institutional charge. Crafting our State's utility law is for the legislature; implementing it is for the executive acting through the Commission; and interpreting it is for the courts.

Discussion and Decision

I. Multiple-unit projects described using ascertainable criteria are not eligible for TDSIC treatment.

We conclude the TDSIC Statute does not apply to project categories or multiple-unit projects described using ascertainable criteria. The Statute requires the Commission to "designate" eligible projects in a threshold seven-year plan under Section 10. The only interpretation of "designate" that satisfies the dual statutory requirements of particularity and cost justification is one requiring projects to be identified with specificity from the outset. In addition, Section 9 "update" petitions enable the utility to obtain rate adjustments as it completes the approved projects and incurs the additional budgeted costs. The only projects consistent with Section 10's preapproval requirement are those the utility specified at the beginning of the plan, and not "new" projects or those requiring the passage of time to specify later. The Commission erred when it authorized multiple-unit-project categories in a Section 10 proceeding and approved NIPSCO's later specification of projects under Section 9.

A. The TDSIC Statute requires the Commission to "designate" eligible projects in a threshold seven-year plan.

A utility seeking favorable rate treatment under the TDSIC Statute for eligible infrastructure improvements must file with the Commission a proposed seven-year plan that designates the planned projects. I.C. §§ 8-1-39-2(3)(A), 8-1-39-10(a). The Commission must approve the plan if it is reasonable. Id. § 8-1-39-10(b). What is reasonable turns on three statutory guideposts: (i) the best-estimated cost of the improvements, (ii) their public convenience and necessity, and (iii) their cost-justified benefits. Id. A meaningful cost-benefit analysis requires the Commission to determine whether the estimated costs of the designated improvements are justified by their incremental benefits. Id. § 8-1-39-10(b)(3).

If the Commission finds the plan reasonable considering the cost-benefit analysis, it must designate and approve projects as TDSIC-eligible. Id. §§ 8-1-39-2(3)(A), 8-1-39-10(b). In this context, TDSIC-eligible projects are "new or replacement electric or gas transmission, distribution, or storage utility projects" that:

(1) a "utility undertakes for purposes of safety, reliability, system modernization, or economic development";
(2) "were not included in the utility's rate base in its most recent general rate case"; and
(3) were "designated" in the utility's seven-year plan that the Commission approved under Section 10.

Id. § 8-1-39-2. Thus, both the utility's proposed plan and the Commission-approved plan under Section 10 must "designate" the eligible improvements. A project or improvement not "designated" in the seven-year plan is not "eligible for TDSIC treatment" under Section 2.

"Designate" is an undefined statutory term. When interpreting a statute, we presume the legislature uses undefined terms in their common and ordinary meaning. In re S.H. , 984 N.E.2d 630, 635 (Ind. 2013). As a verb, "designate" means, among other things, "to appoint and set apart for a specific purpose" or to "specify". Designate , MERRIAM-WEBSTER'S DICTIONARY AND THESAURUS (2007). In TDSIC-3, the Commission approved a project category reciting ascertainable planning criteria that NIPSCO later used to select specific improvements identified in TDSIC-4. For example, NIPSCO's Section 10 petition identified two project categories-"storage" and "inspect and mitigate"-that described future asset replacements with reference to annual inspections mandated by the United States Department of Transportation. These categories necessarily were generic descriptions of NIPSCO's forthcoming projects-and not specific designations of them-because NIPSCO had not yet performed the inspections that would reveal which parts of NIPSCO's system would require replacement. That isn't NIPSCO's fault; it's not gifted with prevision. But it does mean that NIPSCO's Section 10 plan could only describe the projects it would undertake in the future and could not specifically identify them at the outset when it first sought and obtained approval for its plan. It is also why NIPSCO's specific identification of its projects did not occur until it later filed plan "updates" under Section 9. In other words, only after the Commission found the Section 10 plan reasonable was NIPSCO able to identify and prioritize specific work to be done based on a preset list of proposed replacement categories.

We conclude that "designate" in Sections 2 and 10 requires both the utility and the Commission to identify the TDSIC-eligible projects with particularity in the threshold proceeding and does not allow the approval of project categories that require a later specification based on ascertainable planning criteria. This interpretation is consistent with the further requirement that the Commission meaningfully apply the Statute's cost-benefit guideposts during the Section 10 proceeding and approve the project(s) submitted in the seven-year plan. Because Section 2 requires the Commission to designate and approve TDSIC-eligible projects only after finding a plan reasonable under Section 10, the Commission's reasonableness determination necessarily sets the budget and defines the scope of a seven-year plan to what the Commission considered and approved in the threshold proceeding. Thus, the Commission order approving the Section 10 plan must define the plan's scope with particularity and establish a best-estimate budget for effectuating the plan. The Commission's order does not satisfy these statutory requirements.

Our view of what "designate" means in the TDSIC Statute is illustrated by Major League Baseball's designated-hitter rule. The rule, which was first implemented in the American League in 1973, allows a team to add a tenth player to the traditional nine-player lineup who will bat for the pitcher, typically the weakest hitter on the field. Before a game, each manager's lineup card must "designate" which player is to serve as the designated hitter. Major League Baseball, OFFICIAL BASEBALL RULES , Rule 4.03(c) & 5.11 (2018). The rule requires naming a specific player as the DH from the team's 25-man roster. Anything less than a player-specific identification at the outset of the game will not suffice. It is inadequate, for example, for the lineup card to describe the DH anonymously or generically as one of the fifteen (or so) remaining players on the roster. Waiting until the DH's turn at bat to identify a player doesn't comport with the rule. Such "player-to-be-named-later" designations in the lineup card don't work in baseball. And neither do "project-to-be-named-later" designations suffice under the TDSIC Statute.

B. Section 9 update petitions cannot add new projects beyond those initially approved under Section 10 and cannot revise the seven-year-plan's budget.

After the Commission has approved the foundational seven-year plan under Section 10, the utility may file petitions every few months under Section 9 to obtain "automatic" rate adjustments for approved costs and expenditures as it completes these improvements and puts them into service. I.C. §§ 8-1-39-9(a), (c), (e). These periodic Section 9 petitions allow the utility to recoup eighty percent of approved cost estimates. Id. § 8-1-39-9(a). The remaining twenty percent-along with any cost overruns that are specifically justified by the utility and specifically approved by the Commission-is recoverable during the general ratemaking case required at the end of the plan. Id. § 8-1-39-9(b), (d), (f). The Statute thus fixes the approved budget recoverable throughout the duration of the seven-year plan.

With each Section 9 petition a utility files, it must also "update" its seven-year plan. Id. § 8-1-39-9(a). "Update" also is undefined in the Statute. The best reading of "update" requires the utility to keep records and supply progress reports necessary for the lawful administration of the previously designated and approved TDSIC projects. Considering Section 2's definition of eligible improvements and Section 10's reasonableness inquiry, we conclude that a Section 9 "update" requires the utility to "identif[y] projected effects of the [seven-year plan] on retail rates and charges" and to cross-reference that progress with the approved seven-year plan. Id. § 8-1-39-9(a). Thus, each Section 9 petition enables the Commission to track when preapproved projects are put into service; to authorize the "timely recovery of eighty percent (80%) of approved capital expenditures and TDSIC costs", id. ; and to prepare for the mandated general ratemaking case at the conclusion. Id. § 8-1-39-9(d). To be clear, Section 9 updates do not authorize the Commission to designate or approve new projects at the unit level. Rather, they should merely document changes to and developments in the administration of the previously approved Section 10 plan.

Because the Statute neither explicitly nor implicitly authorizes the Commission to approve multiple-unit projects as eligible for TDSIC treatment, NIPSCO cannot use the TDSIC mechanism to recover the multiple-unit-project portions of its Section 10 plan that either were identified with particularity for the first time in its TDSIC-4 petition or remain unspecified.

II. Preclusion principles do not bar the Industrial Group's appeal.

Finally, we reject NIPSCO's argument that principles of claim and issue preclusion bar the Industrial Group from challenging the Commission's TDSIC-4 order. Merely because the Industrial Group could have challenged the TDSIC-3 order, but did not, does not mean the legal methodology that order embraced is immune from legal challenge thereafter.

We look to the Restatement (Second) of Judgments to guide our preclusion analysis. See Sullivan v. Am. Cas. Co. of Reading, Pa. , 605 N.E.2d 134, 138 (Ind. 1992) (discussing Sections 28 & 29's adoption of the modern rule that mutuality and identity of parties are no longer required for defensive use of collateral estoppel); Miller Brewing Co. v. Ind. Dep't of State Revenue , 903 N.E.2d 64, 68 (Ind. 2009) (citing Section 28 for proposition that "preclusion may not apply where there are new facts or where a change in the law or legal climate would dictate a different outcome"). A noteworthy exception to general preclusion principles applies here and counsels in favor of our addressing the important legal issues presented. An issue is not precluded if "[t]he issue is one of law and ... a new determination is warranted ... to avoid inequitable administration of the laws", RESTATEMENT (SECOND) OF JUDGMENTS § 28(2) (1982). Nor is an issue precluded if it is "one of law and treating it as conclusively determined would inappropriately foreclose opportunities for obtaining reconsideration of the legal rule upon which it was based". Id. § 29(7).

Our Court will not foreclose review of a legal issue of first impression "when other litigants are free to urge that the rule should be rejected. Such preclusion might unduly delay needed changes in the law and might deprive a litigant of a right that the court was prepared to recognize for other litigants in the same position." Id. § 28 cmt. b. If we were to apply preclusion principles here, that determination would foreclose "an opportunity to reconsider the applicable rule, and thus to perform [our] function of developing the law." Id. § 29 cmt. i. This consideration is "especially pertinent ... when the issue is of general interest and has not been resolved by the highest appellate court that can resolve it." Id.

To be sure, the Industrial Group's failure to appeal the TDSIC-3 order does mean, as the Group acknowledges, that specific projects identified and approved in TDSIC-3 are beyond challenge. But the Group's failure to challenge TDSIC-3 does not bar the Group from challenging previously undesignated and unapproved projects for which NIPSCO sought and obtained rate adjustments from the Commission in TDSIC-4.

The Commission's legal methodology of approving multiple-unit-project categories described using ascertainable planning criteria is a pure issue of law, of general interest, that we have not previously resolved. And we conclude its methodology remains subject to challenge here. Indiana courts have long held that agencies remain free to correct their own erroneous interpretations of statutes in later proceedings. Adkins v. City of Tell City , 625 N.E.2d 1298, 1302 (Ind. Ct. App. 1993) ; State ex rel. ANR Pipeline Co. v. Ind. Dep't of State Revenue , 672 N.E.2d 91, 94 (Ind. Tax Ct. 1996). We decline to adopt a preclusion theory that prevents litigants from urging such a course correction.

Conclusion

We hold that periodic rate increases are available only for specific projects a utility designates in the threshold TDSIC proceeding and not for multiple-unit-project categories it describes using ascertainable planning criteria. The Commission thus erred in approving various proposed categories of unspecified improvements that NIPSCO did not identify with particularity until it filed subsequent periodic Section 9 petitions. For these reasons, we grant the Industrial Group's petition to transfer. We reverse the portions of the Commission's TDSIC-4 Order that approved previously unspecified improvements. And we remand to the Commission with instructions to identify such project categories that were not identified with specificity in TDSIC-3. The costs for all multiple-unit projects as to which particular improvements were identified for the first time in TDSIC-4 are disallowed for TDSIC recovery to the extent those projects were not properly designated in the previously approved seven-year plan.

Rush, C.J., and David, Massa, and Goff, JJ., concur.


source: Caselaw Access Project

author: Rush, Chief Justice.

license: Public Domain

text:
    D.Z., Appellant (Respondent) v. STATE of Indiana, Appellee (Petitioner)
    Supreme Court Case No. 18S-JV-295
    Supreme Court of Indiana.
    Filed and Decided: June 20, 2018
    ATTORNEY FOR APPELLANT: Jeffery A. Earl, Law Offices of Lewis & Earl, Danville, Indiana
    ATTORNEYS FOR APPELLEE: Curtis T. Hill, Jr., Attorney General of Indiana, Ellen H. Meilaender, Supervising Deputy Attorney General, Indianapolis, Indiana
    ATTORNEY FOR AMICUS CURIAE, INDIANA SCHOOL BOARDS ASSOCIATION: Kent M. Frandsen, Parr Richey Frandsen Patterson Kruse LLP, Lebanon, Indiana
    ATTORNEYS FOR AMICI CURIAE, JUVENILE LAW CENTER; BARTO N CHILD LAW AND POLICY CENTER; EMORY LAW SCHOOL; CENTER FOR CHILDREN'S LAW AND POLICY; CENTER ON WRONGFUL CONVICTIONS OF YOUTH; AND PAUL HOLLAND : Amy E. Karozos, Greenwood, Indiana, Marsha L. Levick, Juvenile Law Center, Philadelphia, Pennsylvania
   Rush, Chief Justice.

As today's companion opinion B.A. holds, Miranda warnings protect students-no less than adults at a school-when police place them under custodial interrogation. Custodial interrogation, though, requires police involvement. So when school officials alone meet with students, a clear rule governs: Miranda warnings are not required.

Here, only an assistant principal interviewed D.Z., so Miranda warnings were not required. We also find no reversible evidentiary error and that sufficient evidence supports D.Z.'s criminal-mischief adjudication, so we affirm the juvenile court.

Facts and Procedural History

In early March 2017, sexual graffiti on boys-bathroom walls at Brownsburg High School prompted a school investigation. Assistant Principal Demetrius Dowler soon enlisted school resource officer Nathan Flynn's help finding a suspect. From surveillance video, they pinpointed seventeen-year-old D.Z.

Assistant Principal Dowler called D.Z. into his office for a closed-door discussion. With only the two of them in the room, Dowler detailed his investigation and said that he knew D.Z. was the culprit. D.Z. remorsefully responded that he didn't know why he did it, that he knew it was wrong, and that he didn't have anything against the girls named in the graffiti.

Assistant Principal Dowler suspended D.Z. for five days and told Officer Flynn of D.Z.'s confession. Flynn then went into Dowler's office to talk to D.Z., who again confessed. At the end of that conversation, Flynn told D.Z. that he was being charged with a crime.

The next month, the State filed a delinquency petition alleging that D.Z. committed criminal mischief and harassment. At the factfinding hearing, the parties agreed that D.Z.'s incriminating statements to Officer Flynn should be suppressed since D.Z. was never Mirandized. But they disagreed about the earlier statements to Assistant Principal Dowler. The juvenile court admitted them over D.Z.'s objection.

At the end of the hearing, the court found that the State failed to prove harassment, but that D.Z. had committed criminal mischief, a Class B misdemeanor if committed by an adult.

D.Z. appealed, challenging (1) the admission of his statements to Assistant Principal Dowler, (2) the admission of photos pulled from surveillance video, (3) the admission of photos of the graffiti, and (4) the sufficiency of the evidence supporting the criminal-mischief finding.

The Court of Appeals reversed in a split opinion, addressing only the admission of D.Z.'s incriminating statements to Assistant Principal Dowler. D.Z. v. State , 96 N.E.3d 595, 599-603 (Ind. Ct. App. 2018). The majority first described a modern school-discipline focus on criminal charges-a point that Judge Baker emphasized in a separate concurrence. Id. at 599-602 (majority opinion); 604 (Baker, J., concurring). It then found that the statements should have been suppressed because D.Z. was under custodial interrogation. Id. at 602 (majority opinion).

Judge Brown dissented. Id. at 604-06 (Brown, J., dissenting). She would have affirmed because Officer Flynn was not present for D.Z.'s interview with Dowler and because no evidence showed that Dowler was an agent of the police. Id.

We granted the State's petition to transfer, vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).

Standard of Review

Whether D.Z. was under custodial interrogation is an issue of law reviewed de novo. See B.A. v. State , No. 49S02-1709-JV-567, --- N.E.3d ----, slip op. at 4, 2018 WL 3045662 (Ind. June 20, 2018). That issue dictates whether the juvenile court abused its discretion in admitting D.Z.'s statements to Assistant Principal Dowler. See id.

Discussion and Decision

I. D.Z. was not under custodial interrogation.

In today's companion opinion B.A. v. State , we explore how Miranda and its custodial interrogation test apply in today's schools. B.A. , slip op. at 5-11, --- N.E.3d at ---- - ----. As we explain there, when police officers are present at and involved in a suspect's interview, the custody and interrogation analyses are fact-specific and can result in close calls. Id. at 9-11, --- N.E.3d at ---- - ----.

But when police officers aren't present, a clear rule applies: students are neither in custody nor under interrogation, unless school officials are acting as agents of the police. Id. ; see also Ritchie v. State , 875 N.E.2d 706, 717 (Ind. 2007) ("[C]ivilians conducting their own investigation need not give Miranda warnings.").

Here, unlike in B.A. , the clear rule governs; Officer Flynn was not in the room when Assistant Principal Dowler talked with D.Z. So D.Z. was entitled to Miranda warnings only if Dowler was an agent of the police. See Sears v. State , 668 N.E.2d 662, 668 (Ind. 1996) ("The police ... cannot avoid their duty under Miranda by attempting to have someone act as their agent in order to bypass the Miranda requirements."), overruled on other grounds by Scisney v. State , 701 N.E.2d 847, 848-49 (Ind. 1998).

"There must be some evidence of an agency relationship" before we can find one. Sears , 668 N.E.2d at 669. But as Judge Brown explained in her dissent, no evidence suggests that police directed or encouraged Assistant Principal Dowler to act on their behalf. See D.Z. , 96 N.E.3d at 604-06 (Brown, J., dissenting); see also Resnover v. State , 460 N.E.2d 922, 933 (Ind. 1984). Quite the reverse; Dowler asked Officer Flynn-the only officer mentioned in the record-to help with his ongoing school investigation. And while Dowler did share D.Z.'s confession with Officer Flynn, the focus was not on criminal charges but on finding out who was doing the graffiti.

Nor does Officer Flynn's interview with D.Z. show an agency relationship simply because it came on the heels of Dowler's interview. Yes, Officer Flynn knew during his investigation that criminal charges were possible. And he did tell D.Z. at the end of his interview that criminal charges were coming. But that is not enough to show that Dowler's interview was pretextual priming for Officer Flynn's interrogation. Contra D.Z. , 96 N.E.3d at 603.

Assistant Principal Dowler thus was not acting as an agent of the police. But even if he had been, Miranda warnings wouldn't be required here. Miranda 's premise is that "the interaction of custody and official interrogation" creates the danger of coercion. Illinois v. Perkins , 496 U.S. 292, 297, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990). Since that coercion "is determined from the perspective of the suspect," an agency relationship implicates Miranda only if the suspect is aware enough of the underlying police involvement to create a "coercive atmosphere." Id. at 296, 110 S.Ct. 2394 ; Ritchie , 875 N.E.2d at 717 (recognizing that the "essential ingredients" of a coercive atmosphere are absent when the suspect "speaks freely to someone whom he believes is not an officer"). Here no evidence shows that D.Z. even knew that Assistant Principal Dowler had talked to Officer Flynn.

For these reasons, the juvenile court correctly denied D.Z.'s motion to suppress his incriminating statements to Assistant Principal Dowler.

II. The admission of photos was not reversible error; sufficient evidence supports D.Z.'s criminal-mischief adjudication.

Because the Court of Appeals reversed the juvenile court on Miranda grounds, it did not address D.Z.'s three other appellate arguments. D.Z. also challenges the admission of two sets of photos and the sufficiency of the evidence supporting his criminal-mischief adjudication.

D.Z. first challenges the admission of three photos-pulled from the school's surveillance video-of him outside graffitied bathrooms. He argues that the State failed to lay their foundation and that their admission violated Indiana Evidence Rule 1002's best evidence rule. We find that any errors were harmless.

While the original video wasn't preserved, both Officer Flynn and Assistant Principal Dowler testified without objection that they independently watched it and saw that, for two of the bathrooms, D.Z. was the only person to go into both of them when they were graffitied. That testimony meshes with D.Z.'s confession-D.Z. remorsefully told Dowler that he didn't know why he did the graffiti, that he knew it was wrong, and that he didn't have anything against the girls named. The photos were thus cumulative of other substantial evidence, so any error in their admission was harmless. See McCallister v. State , 91 N.E.3d 554, 562-63 (Ind. 2018).

D.Z.'s next argument is that the State failed to lay a proper foundation for five photos of the graffiti. He correctly notes that Officer Flynn couldn't lay a full foundation for at least four of the photos since he hadn't seen the graffiti itself. See Shelton v. State , 490 N.E.2d 738, 742 (Ind. 1986) ("A witness's testimony that the picture is a true and accurate representation of the evidence portrayed is the foundation [required for] the admission of a photograph."). But Assistant Principal Dowler did see the graffiti and identified it in each photo, filling the cracks in the photos' initial foundation. See Torres v. State , 442 N.E.2d 1021, 1024-25 (Ind. 1982).

D.Z.'s final argument is that insufficient evidence supports his criminal-mischief adjudication. Under our standard of review, "we examine only 'the probative evidence and reasonable inferences' that support the verdict." Lock v. State , 971 N.E.2d 71, 74 (Ind. 2012) (quoting Drane v. State , 867 N.E.2d 144, 146 (Ind. 2007) ). Here, the evidence shows five instances of graffiti. For two of them, D.Z. was the only person who could've done both. Plus, D.Z. remorsefully admitted that he knew doing the graffiti was wrong. These facts and their reasonable inferences sufficiently support the juvenile court's delinquency adjudication.

Conclusion

D.Z. was not entitled to Miranda warnings since he was interviewed only by a school official-not by police. He also cannot prevail on his evidentiary and sufficiency of the evidence challenges. We thus affirm his criminal-mischief adjudication.

David, Massa, Slaughter, and Goff, JJ., concur.

      D.Z.'s arguments cue interesting questions about silent witness foundation, whether photos pulled from a video are "duplicates," and the interaction between Indiana Rules of Evidence 1003 and 1004. Because the answers would not affect the outcome here, we leave them for another case.


author: David, Justice

text:
    Aaron L. FANSLER Appellant (Defendant below) v. STATE of Indiana Appellee (Plaintiff below).
    Supreme Court Case No. 27S02-1710-CR-672
    Supreme Court of Indiana.
    Argued: November 21, 2017 Filed June 21, 2018
    ATTORNEY FOR APPELLANT: Evan K. Hammond, Grant County Public Defender, Marion, Indiana
    ATTORNEYS FOR APPELLEE: Curtis T. Hill, Jr., Attorney General of Indiana, Eric P. Babbs, Stephen R. Creason, Ian McLean, Angela Sanchez, Deputy Attorneys General, Indianapolis, Indiana
    On Petition to Transfer from the Indiana Court of Appeals, No. 27A02-1610-CR-2325
   David, Justice

In this case we address whether, under Indiana Evidence Rule 617, admission of incriminating statements made in a motel room during the course of a custodial interrogation required the State to make available an electronic recording of those statements at trial. We find that the trial court did not err in admitting the defendant's statements without such a recording because the motel room in question was not a "place of detention," as defined by the rule.

Facts and Procedural History

On June 18, 2015, Aaron Fansler ("Fansler") accepted a Facebook friend request to connect with a user who appeared to be a twenty-one-year-old woman named "Kenzie Allen" ("Kenzie"). Kenzie was not a real person; a fake Facebook account using that name was set up by a drug task force team investigating drug dealing in Grant County. Communicating first through social media, and then through private text messages, Fansler agreed to sell two-tenths of a gram of heroin to Kenzie at the Hart Motel, located in Marion, Indiana.

The next day, lured by the prospects of sexual intercourse and a drug sale, Fansler visited Kenzie's motel room where he was greeted by Detective Wesley McCorkle, a member of the Joint Effort Against Narcotics ("JEAN") Team. Detective McCorkle identified himself as Kenzie's brother and assured Fansler that Kenzie had just stepped out to purchase cigarettes and would return soon. Fansler, who appeared visibly nervous, decided to wait for Kenzie outside the room. As Fansler walked along the outside of the motel, a second officer, Detective Sergeant John Kauffman, approached Fansler and arrested him. Fansler was brought back into the motel room, where officers noticed a syringe protruding from an open flap in his cargo pants. Officers retrieved the syringe and, upon searching Fansler further, they recovered over a dozen clonazepam and oxycodone pills, numerous empty plastic bags, a scale, a tourniquet, a hypodermic needle, two cigarette packs, and more than $250 in cash.

After Fansler's pockets were emptied and his Miranda warnings were read, Fansler made two incriminating statements. The first statement came in response to officers' questions about the drugs he promised to sell. When officers asked Fansler "where the two points of heroin were," he told them that the "points" should be in the baggies. Tr. Vol. I at 147. Officers then searched inside one of the cigarette packs and recovered two small ziplock baggies containing a substance that later tested positive for heroin. Within that same cigarette pack, officers found "another clear baggy that contained a large amount of gray compressed powder." Tr. Vol. I at 149. That substance also later tested positive for heroin. When officers asked Fansler "why he didn't tell [them] about [the large amount of compressed powder] being in the cigarettes in his possession," Fansler made a second incriminating statement, claiming that he did not want to "get caught with it" and "go to jail for it." Tr. Vol. I at 152.

On June 24, 2015, Fansler was charged with possession of heroin with intent to deliver, felony possession of heroin, misdemeanor possession of a controlled substance, and misdemeanor possession of paraphernalia. Fansler filed a motion to suppress his incriminating statements, which the trial court denied after holding a preliminary hearing.

A jury trial was held on August 1-2, 2016. Fansler admitted possession, but denied intent to deliver and raised an affirmative entrapment defense. During the State's case in chief, Detective Sergeant Kauffman testified as to Fansler's two self-incriminating statements-that the two points he promised to sell to Kenzie were in the baggies and that he didn't tell officers about the large amount of compressed powder in his possession because he didn't want to go to jail for it. Ultimately, the jury found Fansler guilty on all four counts.

On September 9, 2016, Fansler was sentenced to thirteen years for dealing, with ten years executed in the Department of Correction and three years suspended. He was also sentenced to concurrent terms of two years executed for possession of heroin, one year executed for possession of a controlled substance, and one year executed for possession of paraphernalia.

Fansler appealed, alleging the two post-Miranda self-incriminating statements he made to officers should not have been admitted into evidence because no electronic recording of the statements was made available at trial, as required by Indiana Evidence Rule 617. Fansler further alleged that the sentencing court "failed to consider that the victim of the crime induced or facilitated the offense" as a mitigation factor in his sentence. Appellant's Br. at 12.

In a unanimous published opinion, the Court of Appeals upheld the trial court's conviction, finding that although the trial court erred in admitting Fansler's statements without an electronic recording, any error committed was harmless because Fansler's own admissions at trial and the generally uncontested nature of his possession of heroin eliminated the likelihood that the challenged statements contributed to the verdict. Fansler v. State , 81 N.E.3d 671, 678 (Ind. Ct. App. 2017). As to the sentencing issue, the Court of Appeals found that the trial court did not abuse its discretion in not considering the proposed mitigating factor. Id.

The State sought transfer, which we granted, thereby vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).

Standard of Review

Challenges to the admission of evidence are ordinarily reviewed for an abuse of trial court discretion. Williams v. State , 43 N.E.3d 578, 581 (Ind. 2015). In those instances, we will reverse only where the decision is clearly against the logic and effect of the facts and circumstances. Joyner v. State , 678 N.E.2d 386, 390 (Ind. 1997). However, when a trial court's evidentiary ruling rests upon the proper interpretation of a statute or rule of evidence, it inherently presents a question of law, which we review de novo. Patchett v. Lee , 60 N.E.3d 1025, 1028 (Ind. 2016).

Discussion and Decision

Although the Court of Appeals affirmed Fansler's conviction, the State challenges the Court of Appeals' determination that the trial court erred in admitting Fansler's incriminating motel room statements without an electronic recording. Fansler did not file a response to the State's petition, but made his opposition clear at oral argument; he argued that the Court of Appeals was correct in finding that the trial court erred and that the booking exception did not apply, but disputed whether the harmless error exception saved the statements from exclusion.

Since our Court has yet to construe Rule 617, we elect to address whether the trial court erred in admitting Fansler's incriminating statements without an electronic recording. As for the other issue the Court of Appeals addressed-whether the trial court correctly heard and considered Fansler's proffered mitigator-we summarily affirm.

I. The trial court did not err in admitting Fansler's statements.

Indiana Evidence Rule 617 is not a constitutional requirement or a prophylactic rule meant to enforce the Constitution; rather, it is a rule of judicial administration. Thus, assessing the admissibility of Fansler's statements requires only examining the rule for intent. In doing so, our goal is to determine whether it applies to the circumstances before us. We find that it does not.

Rule 617 heightens the requirements for admissibility of statements in certain circumstances by specifically providing that, "[i]n a felony prosecution, evidence of a statement made by a person during a Custodial Interrogation in a Place of Detention shall not be admitted against the person unless an Electronic Recording of the statement was made, preserved, and is available at trial ...." Ind. Evidence Rule 617(a). Subsection (b) further defines several terms found in subsection (a). For example, an "electronic recording" is defined as "an audio-video recording that includes at least not only the visible images of the person being interviewed but also the voices of said person and the interrogating officers." Ind. Evidence Rule 617 (b). A "custodial interrogation" is defined as "an interview conducted by law enforcement during which a reasonable person would consider himself or herself to be in custody." Id.

The State did not make available at trial an electronic recording of Fansler's statements and concedes that the statements were made in the course of a custodial interrogation. Indeed, a review of the record confirms that any reasonable person in Fansler's position would have considered himself in custody. Thus, whether Rule 617's electronic recording mandate for admission of statements applies here turns on whether the motel room used to conduct the custodial interrogation was a "place of detention."

The rule is straightforward about what constitutes a place of detention. A place of detention is defined in subsection (b) as a "jail, law enforcement agency station house, or any other stationary or mobile building owned or operated by a law enforcement agency at which persons are detained in connection with criminal investigations." Ind. Evidence Rule 617(b). We can be sure that the motel room used to interrogate Fansler was neither a jail, nor a law enforcement agency station house. And it is also clear that law enforcement owned no part of the motel, including the room where Fansler's custodial interrogation took place. The Hart Motel was owned by a man known to officers as "Bobby," who was friendly with police and on occasion allowed police to conduct operations, free of charge. But whether law enforcement operated the motel room in a manner that transformed it into a place of detention is less obvious.

The rule, unfortunately, does not define what it means to operate a space in a manner that transforms it into a place of detention. For that, we turn to the ordinary use of the word "operate." "Operate" has several definitions, but the one we find most applicable here defines it as "control[ling] or direct[ing] the functioning of." Webster's II New College Dictionary (1st ed. 1995). In other words, we must determine whether law enforcement controlled or directed the functioning of the motel room as a place of detention . To guide our lower courts, we've identified several factors that we think are useful in this inquiry. Courts should assess: 1) the control that law enforcement has over the premises, 2) the frequency of use to conduct custodial interrogations, and 3) the purpose for which law enforcement uses the space.

Fansler sheds some light on the degree of control law enforcement exercised. He specifically argues that, unlike in Steele v. State , 975 N.E.2d 430, 432 (Ind. Ct. App. 2012), where our Court of Appeals found that a gas station used by law enforcement to question a defendant after an arrest was not a place of detention, the significant control that law enforcement wielded over the motel room here-the number of times law enforcement used the space in the past and the autonomy given by the owner to modify the space for law enforcement needs-transformed it into a space operated by law enforcement as a place of detention. Fansler also suggests that because law enforcement chose the location, lured him there, and waited for several hours before his arrival, we should consider that they had ample time to equip the room with recording devices that would capture the custodial interrogation. But Fansler overlooks several facts regarding control that cut against his argument. For instance, the room was controlled by law enforcement only in the sense that officers temporarily used it to pose as drug buyers. There is also no indication that the room was significantly altered or that the room was set aside for the exclusive use of law enforcement; presumably, the room continued operating as a motel room after officers cleared out. We find that the control law enforcement wielded over the space was limited and, at all times, dictated by the motel's owner.

As for frequency of use, police did not exercise the type of long-term control that is ordinarily associated with operating a space. Police use of the room was sporadic by any measure; they used the room in only three sting operations within the past year. Although no bright line rule in terms of frequency will dictate when a space comes to be operated by law enforcement, we think three times during the course of a year is too few.

Finally, and most importantly, we find that the primary use of the motel room was surveillance, not interrogation. Law enforcement set up shop in the motel room because they believed Fansler was willing to carry out a drug transaction in that environment. A motel room also gave officers a controlled space to safely execute an arrest and search the suspect for contraband. Law enforcement's post-arrest questions were of the nature expected during a search for drugs. They wanted Fansler to tell them where he had hidden the heroin. When officers found more contraband than expected, they asked Fansler why he withheld that information from them. These incidental questions are not what Rule 617 intended law enforcement to capture on video. A "place of detention" describes a more formal setting where interrogations are routinely carried out in a systematic manner. While a jail or station house ordinarily serve this purpose, a temporary mobile command post where police have established a presence to handle an increase in processing needs (perhaps due to a large sporting event) may serve as the functional equivalent of a station house. But the manner in which the space at issue was used does not support a finding that it became the functional equivalent of a station house. Although a custodial interrogation occurred here, as often does during arrests, the primary use of the room was not to conduct custodial interrogations.

In sum, Fansler's argument suffers from the malady of over-reliance on a single factor: control of the room. While control over a space is certainly important in terms of assessing whether law enforcement operates it as a place of detention, Fansler overlooks that in this case the frequency of the motel room's use was sporadic and the primary purpose of law enforcement's control over the room was surveillance rather than interrogation. Under Rule 617, officers must equip facilities serving the functional equivalent of a station house with recording devices, but a motel room used sporadically to carry out a sting operation is simply not the type place the rule was meant to reach.

Accordingly, we find that the motel room, as used by law enforcement in this case, was not a place of detention. This is not to say that a motel room can't ever become a place of detention. Had the degree of control over the motel room, frequency of use, and the purpose of the use indicated that law enforcement was operating the motel room as the functional equivalent of a station house, then perhaps we would have a different outcome. But in this case, the trial court did not err in admitting Fansler's incriminating statements without an electronic recording.

II. We need not probe further into the harmless error and routine booking exceptions.

Because we determine that the trial court did not err in admitting Fansler's incriminating statements, we need not address whether the harmless error exception applies. Likewise, whether the statements were made as part of a routine processing or booking is moot.

Conclusion

A motel room, as used by law enforcement in this case-to carry out an undercover investigation and to search a suspect incident to his arrest-is not a place of detention as defined by Indiana Evidence Rule 617. We find that the trial court did not err in admitting testimony about the statements Fansler made after being duly advised of his Miranda rights. Accordingly, we affirm the trial court's conviction.

Rush, C.J., and Massa, Slaughter, and Goff, JJ. concur.

      The Court of Appeals decision and the State's Petition to Transfer both state that the custodial interrogation occurred in a hotel room. Upon review of the record, we determined that the facility operated as a motel, rather than a hotel. The distinction does not change the analysis or outcome in this decision, but for the sake of accuracy, we will henceforth refer to the location of the custodial interrogation as a motel room.

      A point is one tenth of a gram of heroin. Fansler had agreed to sell "Kenzie" two points.


author: Per curiam.

text:
    J.R., Appellant (Respondent), v. STATE of Indiana, Appellee (Petitioner).
    Supreme Court Case No. 18S-JV-285
    Supreme Court of Indiana.
    Argued: June 7, 2018 FILED June 25, 2018
    ATTORNEYS FOR APPELLANT: Joel M. Schumm, Indianapolis, Indiana, Ruth Ann Johnson, Marion County Public Defender Agency, Appellate Division, Indianapolis, Indiana
    ATTORNEYS FOR APPELLEE: Curtis T. Hill, Jr., Attorney General of Indiana, Stephen R. Creason, Ellen H. Meilaender, Matthew B. MacKenzie, Deputy Attorneys General, Indianapolis, Indiana
    On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-1704-JV-754
   Per curiam.

The juvenile court held a fact-finding hearing and found sixteen-year-old J.R. delinquent for committing acts that would be dangerous possession of a firearm and carrying a handgun without a license ("CHWOL"), had they been committed by an adult. J.R. appealed, arguing that the police who found the handgun in his possession during a pat-down search violated his rights under the United States and Indiana Constitutions to be free from unreasonable searches. J.R. also argued his dual adjudications constitute double jeopardy when each is predicated on the same evidence of his possession of a single handgun.

The Court of Appeals decided the pat-down search did not violate J.R.'s rights. On the remaining issue, the parties agreed that double jeopardy principles preclude his dual adjudications and, therefore, that his adjudication for CHWOL should be vacated. See Appellant's Br. at 15; Appellee's Br. at 20-22; Appellant's Amended Reply Br. at 8; Appellant's Resp. to State's Pet. to Trans. at 4. But the Court of Appeals sua sponte held the adjudication for CHWOL must be vacated for a different reason: that, as a matter of law, a delinquency adjudication cannot be based on CHWOL. It vacated the adjudication for CHWOL and affirmed the adjudication for dangerous possession of a firearm.

J.R. v. State , 89 N.E.3d 408 (Ind. Ct. App. 2017), reh'g granted , 94 N.E.3d 702 (Ind. Ct. App. 2018), vacated . Each side sought transfer, which we granted.

We held oral argument and have considered the appeal. We summarily affirm the parts of the Court of Appeals' original opinion that address and reject J.R.'s challenge to the pat-down search, including the sections entitled "Facts" and "I. Search and Seizure." See Ind. Appellate Rule 58(A)(2).

As the parties agree on disposition of the double jeopardy issue, we remand to the juvenile court to vacate the delinquency adjudication for CHWOL, and we affirm the delinquency adjudication for dangerous possession of a firearm.

All Justices concur.

      See J.G. v. State , 93 N.E.3d 1112, 1125 (Ind. Ct. App. 2018) (affirming delinquency adjudication for dangerous possession of a firearm and remanding to vacate adjudication for CHWOL where juvenile argued, and State conceded, the CHWOL adjudication should be vacated on double jeopardy grounds), trans. denied . At oral argument in J.R.'s appeal, the Court questioned whether a juvenile delinquency adjudication may be based on dangerous possession of a firearm. "A child commits a delinquent act if, before becoming eighteen (18) years of age, the child commits an act that would be an offense if committed by an adult ...." Ind. Code § 31-37-1-2 (emphasis added). In finding J.R. delinquent, the court cited this statute along with one providing, "A child who knowingly, intentionally, or recklessly possesses a firearm for any purpose other than a purpose described in section 1 of this chapter commits dangerous possession of a firearm, a Class A misdemeanor. " Ind. Code § 35-47-10-5(a) (emphasis added); see Ind. Code § 35-47-10-3 (defining "child" as person less than eighteen years of age). Although this language in bold raises the question whether dangerous possession of a firearm can serve as the basis for a delinquency adjudication, we need not decide that issue today because the parties have not raised and briefed it.


author: All Justices concur.

text:
    STATE of Indiana EX REL. INDIANA SUPREME COURT DISCIPLINARY COMMISSION, Relator, v. Lisa M. LARA, Respondent.
    Supreme Court Case No. 18S-MS-112
    Supreme Court of Indiana.
    Filed June 29, 2018
    Published Order
    On February 21, 2018, the Indiana Supreme Court Disciplinary Commission ("the Commission") filed a "Verified Petition to Enjoin the Unauthorized Practice of Law" pursuant to Indiana Admission and Discipline Rule 24. The Verified Petition alleges that Lisa M. Lara, who is not a licensed attorney, engaged in the unauthorized practice of law by offering and providing legal services to Indiana residents in matters of immigration, business, and family law, and preparing "legal documents such as affidavits, powers of attorney, answers, eviction notices, leases, business registrations, quit claim deeds and automobile sales contracts." The Verified Petition asks that Respondent be permanently enjoined from such conduct pursuant to Admission and Discipline Rule 24.
    On March 28, 2018, we ordered Respondent to file a verified return in response to the Commission's Verified Petition on or before April 18, 2018. The Clerk served our order on Respondent the same day, along with a file-marked copy of the Verified Petition, via certified mail to Respondent at her office address, 500 North Nappanee Street, Suite 6B, Elkhart, Indiana 46514. The signed certified-mail receipt shows that Respondent received the Verified Petition and order on April 11, 2018. The Commission also personally served a copy of its Verified Petition and the order on Respondent at her office address on April 16, 2018. Respondent has not filed a return.
    On June 12, 2018, the Commission filed a "Motion for Ruling on Verified Petition to Enjoin the Unauthorized Practice of Law" requesting the Court to rule in its favor and permanently enjoin Respondent from the unauthorized practice of law. Because Respondent received actual notice of the proceeding and has chosen not to file a verified return, we accept the Verified Petition's allegations as true.
    Accordingly, we find the Respondent has engaged in the unauthorized practice of law and GRANT the Commission's Verified Petition. Respondent, Lisa M. Lara, is hereby PERMANENTLY ENJOINED from offering to provide and/or providing legal advice or legal services to others unless and until she obtains a license to practice law in Indiana. This restriction shall not preclude Respondent from seeking employment from, or being employed by, a lawyer or law firm as a non-lawyer assistant, so long as, while doing so, she abides by the terms of this permanent injunction and does not contravene the Indiana Rules of Professional Conduct or Guideline 9 for the Use of Non-Lawyer Assistants.
   All Justices concur.


author: David, Justice.

text:
    Matthew EDMONDS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    Supreme Court Case No. 18S-CR-50
    Supreme Court of Indiana.
    FILED June 29, 2018
    ATTORNEYS FOR APPELLANT: Victoria L. Bailey, Marion County Public Defender, Indianapolis, Indiana
    ATTORNEYS FOR APPELLEE: Curtis T. Hill, Jr., Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, Indiana
    On Petition from the Indiana Court of Appeals, No. 49A05-1703-CR-400
   David, Justice.

In Paquette v. State , --- N.E.3d ----, 2018 WL 3198866 (Ind. 2018), a decision handed down today, we found that only one Level 3 felony conviction is authorized under Indiana Code section 35-44.1-3-1 when a defendant engages in a single act of resisting law enforcement while operating a vehicle that causes multiple deaths. Here, we decide a similar question: whether multiple felony convictions are authorized by Indiana Code section 35-44.1-3-1 where a single act of resisting law enforcement while operating a vehicle causes the death of one person and serious bodily injuries to two other people. We reach the same conclusion as we did in Paquette . As written, the statute permits only one conviction-in this case, the highest chargeable offense-for each instance of resisting law enforcement, regardless of how many people are harmed.

Facts and Procedural History

On the morning of June 8, 2015, Matthew Edmonds entered a Walmart in Beech Grove, Indiana. Edmonds was observed stuffing a variety of food and clothing items into old plastic bags. He then walked past the point of sale without paying for those items. The store's asset protection manager, Timothy Dunlop, called 911 and told dispatchers about the theft.

He also informed them that Edmonds had gotten into a tan Chevy Tahoe after leaving the store. Dunlop shared the vehicle's license plate number with dispatchers.

Beech Grove Police Officer Josh Hartman was the first to arrive on the scene. Officer Darrin McGuire also responded, but he waited outside the parking lot. When Officer Hartman entered the lot, he spotted a vehicle matching the description and pulled up behind it. Edmonds quickly sped off and exited the parking lot.

Officers Hartman and McGuire immediately gave chase with their lights and sirens activated. They followed Edmonds as he traveled northbound on a southbound lane of Emerson Avenue. Edmonds' vehicle reached speeds upwards of 80 miles per hour on a 40-mile-per-hour road. When Edmonds entered the intersection of Emerson Avenue and Raymond Street, he drove through a gas station, jumped a median, and continued driving westbound on an eastbound lane of Raymond Street. Law enforcement, including Indianapolis Metropolitan Police Department ("IMPD") officers who later joined the chase, decided that it was too dangerous to keep pursuing Edmonds at such high speeds. They called off the chase, but stayed on the lookout for Edmonds.

Not long afterward, Edmonds re-emerged on State Street, near the Minnesota Street intersection. Edmonds was seen by IMPD officers traveling north on State Street's southbound lanes. Officers followed cautiously and Edmonds continued north, until he drove past a red light at the intersection of State Street and Prospect Avenue. At the same time, Donna Niblock was crossing that intersection in her Ford pickup truck, traveling west on Prospect Street. Her daughter, Ladonna Rogers was in the front passenger seat and her grandson, Johnathan Rogers, was in the back. All three had their seatbelts fastened.

As Edmonds ran the red light, his vehicle collided with the driver's side of Niblock's truck. The impact flipped Niblock's truck in the air. Niblock died as a result of her injuries. Ladonna and Johnathan Rogers survived the crash, but they each suffered serious bodily injuries.

The State charged Edmonds with a total of twelve counts. Among those were one count for resisting law enforcement by fleeing in a vehicle causing death, a Level 3 felony; and two counts for resisting law enforcement by fleeing in a vehicle causing serious bodily injury, Level 5 felonies. Edmonds was also charged with four counts related to leaving the scene of an accident-one for failure to remain at the scene of an accident with death, a Level 5 felony; two for failure to remain at the scene of an accident with injury, Level 6 felonies; and one for failure to remain at the scene of an accident, Class B misdemeanors. Edmonds was found guilty as charged on all twelve counts.

Edmonds successfully motioned to receive a judgment on the evidence on three charges related to driving with a suspended license. The trial court dismissed those charges, finding that the State failed to present sufficient evidence to support the jury's verdict. The trial court also merged the Level 3 felony resisting law enforcement causing the death of another person charge with the Level 5 felony reckless homicide charge. On the remaining eight charges, Edmonds received an aggregate sentence of twenty-five years.

Edmonds appealed, arguing that the State did not present sufficient evidence to support a finding that he was still resisting law enforcement when the crash occurred. Edmonds then filed a motion for leave to file an amended brief. He planned to argue that multiple felony resisting law enforcement convictions were not permitted under the relevant statute. The Court of Appeals denied Edmonds' motion and decided that it would, sua sponte , address the concerns Edmonds planned to raise.

However, instead of addressing the statutory issue, the Court of Appeals dismissed a total of five convictions based on double jeopardy grounds not raised by either party. Two of the dismissed convictions were Level 5 felonies for resisting law enforcement. The other three were the lesser of the four convictions for failure to remain at the scene of an accident. The Court of Appeals also addressed the sufficiency of evidence issue Edmonds originally raised in his appeal. It found that the State presented sufficient evidence to support a finding that Edmonds was resisting law enforcement when the crash occurred and affirmed the remaining Level 3 felony resisting law enforcement conviction. The Court of Appeals then remanded to the trial court for resentencing on Edmonds' remaining convictions.

The State sought transfer, which we granted, thereby vacating the Court of Appeal's opinion. Ind. Appellate Rule 58(A).

Standard of Review

Matters of statutory interpretation, which inherently present pure questions of law, are reviewed de novo. Jackson v. State , 50 N.E.3d 767, 770 (Ind. 2016).

Discussion and Decision

The facts presented in this case bear a remarkable similarity to those found in Paquette v. State . Both defendants used a vehicle to flee from law enforcement and the pursuit ended in a horrific crash involving innocent motorists. Both defendants also faced multiple felony resisting law enforcement charges stemming from a single act of resisting. But the issue presented here is a slightly different one. Whereas in Paquette we addressed whether multiple Level 3 felony convictions are permitted under Indiana Code section 35-44.1-3-1 where multiple people are killed, here the felony convictions varied in levels; one conviction was a Level 3 felony while two others were Level 5 felonies.

Thus, the precise question we address in this case is whether Indiana Code section 35-44.1-3-1 allows for a Level 3 felony and two Level 5 felony convictions stemming from a single act of resisting law enforcement where the act of resisting resulted in the death of one person and serious bodily injury to two others. Applying the Paquette holding, we find that here too the statute authorizes only one conviction-that is, the highest chargeable offense.

As a threshold matter, however, we address the constitutional basis for the Court of Appeals' decision to vacate five convictions.

I. The doctrine of judicial restraint persuades us that we should avoid a constitutional question where a dispositive statutory question still exists.

In vacating Edmonds' convictions-two Level 5 felony resisting law enforcement counts and three lesser counts for leaving the scene of an accident-the Court of Appeals rooted its decision in constitutional double jeopardy prohibitions. It found that "under the actual evidence test, [all duplicative convictions] stemmed 'from the same action, on the same day, at the same place,' ... because for the purposes of the charged incidents, Edmonds ran one light and crashed into one vehicle." Edmonds v. State , 86 N.E.3d 414, 418 (Ind. Ct. App. 2017) (internal citations omitted). Accordingly, the court held that Edmonds could only be punished for one act of resisting law enforcement and one act of leaving the scene of an accident.

While a reviewing court can freely choose any apparent statutory or common law basis upon which to sustain a judgment, our Court has long cautioned against deciding cases on a constitutional basis where other options for disposing of the issue exist. When there are issues in a case that can be decided on either of two grounds-one involving a constitutional question and the other a question of statutory construction-the reviewing court should decide only the latter. Indiana Wholesale Wine & Liquor Co. v. State ex. rel. Indiana Alcoholic Beverage Comm'n , 695 N.E.2d 99, 106 (Ind. 1998). In other words, " 'constitutional issues are to be avoided as long as there are potentially dispositive statutory or common law issues still alive.' " Id. at 107 (quoting Bayh v. Sonnenburg , 573 N.E.2d 398, 402 (Ind. 1991) ).

Here, not only is a potentially dispositive issue-the statutory interpretation question related to Indiana Code section 35-44.1-3-1 -still an option for resolving the matter, the Court of Appeals decided to vacate two Level 5 felony resisting law enforcement convictions based on constitutional grounds not raised by either party. Edmonds' motion for leave was denied because the Court of Appeals planned to address his concerns sua sponte . But rather than addressing the statutory construction argument Edmonds sought to raise, the court assessed the constitutionality of the felony resisting law enforcement convictions. It then applied the same rationale to the "failure to remain at the scene of an accident" convictions, which were not being challenged by either party.

Because a potentially dispositive statutory issue is still at play here, we elect to address whether the statute authorizes multiple convictions before considering any constitutional basis for vacating the resisting law enforcement convictions. Likewise, in the spirit of exercising judicial restraint, we decline to address the constitutionality of the multiple convictions for leaving the scene of an accident; we are not inclined to address these convictions sua sponte , as did the Court of Appeals.

To be clear, we do not second-guess or doubt the Court of Appeals' constitutional analysis. We also do not endorse it. Instead, we are persuaded by the doctrine of judicial restraint to exhaust other options for resolving the matter before deciding the constitutionality of a statute. We are also reluctant to address the constitutionality of convictions that no one has challenged. Accordingly, we put aside questions of double jeopardy and address only the statutory interpretation question, which we find resolves this matter.

II. Indiana Code section 35-44.1-3-1 authorizes only one felony conviction where a single act of resisting causes death and serious bodily injury.

In Paquette v. State , we found that Indiana Code section 35-44.1-3-1, which makes resisting law enforcement unlawful, was intended to authorize only one Level 3 felony conviction for each act of resisting, even where multiple deaths are caused by the use of a vehicle. Our rationale relied on principles of statutory interpretation to conclude that each discrete incident outlined in subsection (a) constitutes a separate offense of resisting law enforcement. When more than one of those incidents occurs, we may uphold multiple resisting law enforcement convictions, but a single discrete incident can be the basis for only one conviction. We also found that subsection (b), which makes an offense under subsection (a) a felony, creates no new or independent offense; the subsection merely enhances the degree of the offenses outlined in subsection (a). Therefore, when a single act of resisting law enforcement while using a vehicle causes three deaths, as occurred in Paquette , the statute authorizes only one Level 3 felony resisting law enforcement conviction. This is because an offense that involves a single affray with police will continue to be a single harm to the peace and dignity of the State, regardless of how many other people are killed.

Like Paquette, Edmonds resisted law enforcement while using a vehicle. And like Paquette, Edmonds was charged and convicted under subsection (b). But Edmonds' multiple convictions were not all Level 3 felonies. He was charged with one Level 3 felony for fleeing from law enforcement while "operat[ing] a vehicle in a manner that cause[d] the death of another person," Ind. Code § 35-44.1-3-1(b)(3), and was also charged with two Level 5 felonies for fleeing from law enforcement while "operat[ing] a vehicle in a manner that cause[d] serious bodily injury" to two people. Ind. Code § 35-44.1-3-1(b)(2)

We find that the analysis in Paquette resolves the issue here. Whether multiple people are killed or, as in this case, some are killed and others are seriously injured, the offense continues to be a single harm to the peace and dignity of the State if it stems from a single instance of resisting law enforcement. Accordingly, Edmonds can be convicted of only one felony resisting law enforcement offense-whichever one is the most severe chargeable offense-where one act of resisting causes death and serious bodily injury.

Conclusion

As written, Indiana Code section 35-44.1-3-1 authorizes only one conviction-the highest chargeable offense-where a defendant engages in a single instance of resisting law enforcement while using a vehicle and causes both death and serious bodily injury. Accordingly, we reverse the trial court on two Level 5 felony resisting law enforcement convictions, affirm the trial court as to the remaining convictions, and remand for resentencing.

Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.