text:
    Linda G. DARBY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 45A04-1106-CR-318.
    Court of Appeals of Indiana.
    April 19, 2012.

      Maree Gonzalez, Jr., Dyer, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Linda G. Darby appeals the trial court’s denial of her petition to file a belated notice of appeal.

We affirm.

ISSUE

Whether the trial court abused its discretion in denying Darby’s petition.

FACTS

On September 24, 1970, a jury convicted Darby of murdering her husband, and on October 1, 1970, the trial court sentenced Darby to life imprisonment. On November 28, 1970, Darby filed a motion to correct error, which the trial court denied on August 4, 1971. Subsequently, the trial court granted Darby’s request that it appoint appellate counsel; however, no appeal was filed.

Darby escaped from prison on March 18, 1972, and she was a fugitive for over thirty-five years until she was captured in Tennessee and returned to the Department of Correction on October 19, 2007. On June 15, 2011, almost four years after her recommitment to the Department of Correction, Darby filed a petition to file a belated notice of appeal. On June 30, 2011, the trial court denied her petition without a hearing.

DECISION

Darby contends that the trial court erred in denying her petition to file a belated notice of appeal. She emphasizes that she has a constitutional right to an appeal, a right that she claims was not relinquished by her act of fleeing the state.

Although criminal defendants have a state constitutional right to appeal their convictions, such a right is not absolute, and it may be waived by failure to timely file the appropriate documentation. Evolga v. State, 519 N.E.2d 532, 533 (Ind.1988). Whether the documentation is a praecipe, as required by Indiana Appellate Rule 2 at the time the trial court denied Darby’s motion to correct error, or a Notice of Appeal, as required by current Indiana Appellate Rule 9(A), a filing that is not made within thirty days results in forfeiture of the right to appeal. However, under Indiana Post-Conviction Rule 2(l)(a):

An eligible defendant convicted after a trial or plea of guilty may petition the trial court for permission to file a belated notice of appeal of the conviction or sentence if:
(1) the defendant failed to file a timely notice of appeal;
(2) the failure to file a timely notice of appeal was not due to the fault of the defendant; and
(3) the defendant has been diligent in requesting permission to file a belated notice of appeal under this rule.

In general, the decision of whether to grant a petition for permission to file a belated notice of appeal is a matter within the discretion of the trial court. George v. State. 862 N.E.2d 260, 264 (Ind.Ct.App.2006), trans. denied. We defer to the trial court’s discretion because, when the trial court holds a hearing, it is generally in a better position to weigh evidence and judge witness credibility. Cruite v. State, 853 N.E.2d 487, 489 (Ind.Ct.App.2006), trans. denied. However, when the trial court does not conduct a hearing on the petition, “the only basis for decision is the paper record attached to or within the petition.” Id. at 489-90. Therefore, because we are reviewing the same information that was available to the trial court, we owe no deference to its findings, and we review the decision de novo. Id. at 490. Here, the trial court did not hold a hearing on Darby’s petition; therefore, our review is de novo.

Darby correctly states that the Indiana Constilution provides the right to appellate review. See Evolga, 519 N.E.2d at 533. A defendant may take an appeal to the appropriate appellate court “as a matter of right, from any judgment in a criminal action against [her], in the manner prescribed by law.” Id. However, each case must be decided on its own facts, and a defendart must be without fault in the delay of fling the notice of appeal. Cruite, 853 N.E.2d at 489.

Darby was a fugitive well after the thirty-day period in which she was required to file the documentation for appeal. Under this circumstance, our supreme court has held that a trial court acts properly in denying a defendant’s petition for a belated appeal. See Evolga, 519 N.E.2d at 534; Prater v. State, 459 N.E.2d 39, 41 (Ind.1984). “The act of escape ... is a voluntary act which may prevent [the defendant] from meeting the criteria necessary in a PC 2 appeal; that is, a showing [that] the defendant had no fault in delaying the appeal.” Evolga, 519 N.E.2d at 534 (citing Prater, 459 N.E.2d at 40). As our supreme court has stated:

While it is true that we have held that the act of escape, by itself, is not proof of a defendant’s knowing and voluntary waiver of his right to appeal, we have also held that the act of escape is a voluntary act of defendant which may prevent [her] from meeting the criteria of being without fault ... [T]he defendant’s act of escape was [her] own voluntary act and ... the circumstances under which we could grant belated appeals [does] not include the renewal of rights lost by voluntary acts.
Prater, 459 N.E.2d at 40 (citing Lewis v. State, 268 Ind. 398, 375 N.E.2d 1102 (1978)).

Darby recognizes these principles, but she argues that her case is distinguishable from Evolga and Prater. First, she states that her motion to correct errors filed in 1970 was “the vehicle that preserved Darby’s right to appeal.” (Darby’s Br. at 8). Second, she notes that “it was Darby who petitioned the court for the appointment of pauper counsel and the court granted the request.” Id. She reasons that “[t]here is nothing in the record to support the conclusion that Darby’s counsel elected not to proceed based upon Darby’s act of fleeing the jurisdiction, nor does the record reflect that counsel sought leave to withdraw as counsel or petition for an order terminating Darby’s appeal.” Id. Hence, Darby reasons that her escape did not preclude initiation of the appeal.

We disagree that the circumstances of Darby’s case distinguish it from Evolga or Prater. As we stated in Evolga, “it is well settled in Indiana that when a defendant in a criminal case escapes from lawful custody, [she] is not entitled during the period [she] remains a fugitive to prosecute [her] appeal.” 519 N.E.2d at 534. In short, Darby’s counsel was prevented from pursuing Darby’s appeal by her willful act of fleeing the jurisdiction.

Under the circumstances of this case, Darby has not shown that the failure to file a timely appeal was “not due to the fault of the defendant.” As a result, we cannot find that the trial court abused its discretion when it denied her petition for a belated appeal of her conviction.

Affirmed.

BAKER, J., and BAILEY, J., concur.

      . Darby and the State appear to agree that Darby escaped on or about March 13, 1972, and appellate counsel was appointed by the trial court on or about March 14, 1972. (See Darby’s Br. at 5; State's Br. at 1). Nonetheless, Darby asserts that her appellate counsel told her that the appeal had been filed and denied.
      Notwithstanding Darby's belief, it was virtually impossible for appellate counsel, who had been appointed at approximately the same time Darby escaped, to have filed and obtained a decision from an appellate court before Darby's escape. We again emphasize that Darby's escape prevented appellate counsel from pursuing the appeal. Thus, it was Darby's act of escaping, not appellate counsel’s omission, which prevented prosecution of her appeal. Darby should have "work[ed] with counsel while [her] appeal was being perfected.” See Prater, 459 N.E.2d at 41.


source: Caselaw Access Project

author: CRONE, Judge.

license: Public Domain

text:
    Anthony HOGAN, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 20A03-1103-PC-158.
    Court of Appeals of Indiana.
    April 19, 2012.
    Rehearing Denied June 13, 2012.

      Anthony Hogan, Michigan City, IN, Appellant Pro Se.
    Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Anthony Hogan was convicted of criminal deviate conduct as a class A felony, attempted rape, battery resulting in serious bodily injury, and being a habitual offender. On direct appeal, we vacated his battery conviction on double jeopardy grounds. Thereafter, Hogan sought post-conviction relief. Hogan claimed that: (1) trial and appellate counsel failed to argue that a statement that he made to a detective was inadmissible for any purpose because it was involuntary; (2) trial counsel failed to advise him of his right to a jury trial on the habitual offender charge and appellate counsel should have argued that the record was devoid of evidence of a valid waiver of that right; and (3) trial counsel should have requested an instruction on criminal deviate conduct as a class B felony and appellate counsel should have raised the issue as fundamental error. The post-conviction court denied Hogan’s petition.

We affirm. Hogan did not present any evidence that his statement was made involuntarily; thus, his first argument fails. Although it appears that a proper advisement of rights and a personal waiver may not have been made on the record, trial counsel testified that he informed Hogan of his right to a jury trial on the habitual offender enhancement, that he had reviewed Hogan’s criminal record and believed that he was in fact a habitual offender, and that Hogan agreed to admit to being a habitual offender in exchange for the State’s agreement not to pursue certain aggravating factors. Hogan has not shown that he was prejudiced, and therefore his second argument also fails. Finally, Hogan has not shown that trial counsel’s decision to pursue an “all or nothing” strategy was unreasonable. Therefore, he has not shown ineffective assistance in regard to the lack of an instruction on the lesser-included offense.

Facts and Procedural History

The facts relevant to Hogan’s convictions were outlined in our opinion on direct appeal:

On a few occasions in the summer and early fall of 2004, Hogan used illegal drugs with Mike Oelslager and his girlfriend, Tracy Kling. On October 5, 2004, Hogan came to the house Kling and Oelslager shared. Oelslager was not home at the time but Kling let Hogan in.
After the two talked for a few minutes, Hogan asked Kling if she wanted to have sex with him. She declined. Hogan grabbed her from behind, pinned one of her arms, picked her up, and carried her to her son’s bedroom. He told her he was going to have sex with her. To dissuade Hogan, Kling told him she was on her period and he stated he would have anal sex with her instead. He held Kling down and attempted to remove her underwear. She. struggled against him, and he threatened to kill her.
Kling convinced him not to have sex with her in her son’s bedroom. Hogan pushed her out of the bedroom and onto the couch in the living room. He again attempted to remove her underwear. When Kling again stated she was on her period, Hogan told her to perform oral sex on him. He choked her and again threatened to kill her.
Kling broke free and jumped over a banister[, which resulted in a sprained ankle and a back injury]. Before she could get out the front door, Hogan
caught her and slammed the door shut. He punched her twice in the head, hitting her eye, nose, and forehead, and causing her to bleed. He again threatened to kill her. Hogan used a shirt to wipe the blood from her face. He then took her back to the couch and forced her to perform oral sex on him. He left shortly afterward, taking the shirt with him.
Kling went to a neighbor’s house to call the police. After talking with police, Kling went to the hospital. She received stitches in her forehead, an injection for pain, and a prescription for pain medication.

Hogan v. State, No. 20A03-0606-CR-282, 2007 WL 1217990 at *1 (Ind.Ct.App.Apr. 26, 2007) (footnotes omitted), trans. denied.

Hogan was charged with class A felony criminal deviate conduct resulting in serious bodily injury, attempted rape, battery resulting in serious bodily injury, and being a habitual offender. On January 3, 2005, an initial hearing was held, and a public defender was appointed to represent Hogan. Two days later, Detective D’Andre Biller (formerly Christian) took Hogan’s statement without notifying counsel. Biller typed the statement, which Hogan refused to sign afterward. The typed statement begins with an acknowledgment that he had been advised of his rights, that he understood them, and that he was willing to talk to the detective because he did not have “anything to hide.” Appellant’s App. at 37. The statement says that Kling had consented to perform oral sex on Hogan in exchange for drugs and that she had done so on multiple occasions. The conclusion of the statement reads, “Detective Christian has asked me if I would be willing to give body standards [for DNA testing]. I don’t have a problem with that but I don’t know why you need them because I already told you she sucked my dick. I don’t want to sign a waiver for the body standards until I talk to my attorney.” Id. at 39.

Hogan’s case was tried to a jury. Kling testified to the facts outlined above. Hogan testified in his own defense and claimed that Kling had voluntarily performed oral sex in exchange for drugs. On cross examination, the State sought to use Hogan’s statement to Detective Biller to impeach him. Defense counsel objected, arguing that the statement had been taken after counsel had been appointed and without notice to counsel. The court ruled that the statement could be used for impeachment even if there had been a constitutional violation. The State attempted to impeach Hogan several times, but although he acknowledged speaking with the detective, he either denied making the statements in the typed statement or asserted that he was unable to remember what he had told the detective. He asserted that she had initiated the questioning, that she typed the statement in her own words, that he did not sign her typed statement, and that his testimony may have been more detailed than his statement to the detective. At the conclusion of the first phase of trial, the jury found Hogan guilty of criminal deviate conduct resulting in serious bodily injury, attempted rape, and battery resulting in serious bodily injury.

Thereafter, defense counsel informed the court that an agreement had been reached with the State regarding the remaining issues:

Your Honor, with regard to the habitual offender stage, the State has also filed notice of intention to present aggrava-tors in what would be a third proceeding. The State then intended to then try the issue of aggravators and have the jury find aggravators beyond a reasonable doubt. The defendant is willing to stipulate to his habitual offender status, provided that the State, and the State had indicated that they will, withdraw their intention to have the jury find aggravating circumstances and so that any aggravators that would probably be the role of the jury will not be found.

Id. at 43. The State then questioned Hogan about his criminal record. The trial court entered convictions of class A felony criminal deviate conduct, attempted rape, and battery, attached the habitual offender enhancement to the criminal deviate conduct conviction, and imposed an aggregate sentence of sixty years.

Counsel was appointed to pursue a direct appeal. Appellate counsel raised four arguments: (1) there was an insufficient factual basis to support the habitual offender enhancement; (2) Hogan’s conviction of criminal deviate conduct resulting in serious bodily injury must be set aside because the verdict form provided to the jury referred only to “criminal deviate conduct” and not “criminal deviate conduct resulting in serious bodily injury”; (3) Hogan’s convictions for criminal deviate conduct and battery resulting in serious bodily injury were based on the same evidence and therefore violated the double jeopardy clause of the Indiana Constitution; and (4) there was insufficient evidence that Hogan took a substantial step toward raping Kling. We agreed with Hogan on the double jeopardy issue, but affirmed as to the other three issues; therefore, we vacated his battery conviction. Appellate counsel filed a petition for transfer to the supreme court, which was denied.

On April 27, 2008, Hogan filed a pro se petition for post-conviction relief. The State Public Defender was appointed to represent Hogan, but withdrew after Hogan indicated that he still wanted to pursue issues that the State Public Defender had found to be without merit. Hogan amended his petition several times, but has not provided us with a complete copy of his petition. As best as we can tell, Hogan’s claims were: (1) that trial and appellate counsel failed to argue that his statement to the detective was inadmissible for any purpose because it was involuntary; (2) that trial counsel failed to advise him of his right to a jury trial on the habitual offender charge and that appellate counsel should have argued that the record was devoid of evidence of a valid waiver; and (3) that trial counsel should have requested an instruction on criminal deviate conduct as a class B felony (a lesser-included offense of the class A felony, which requires proof of serious bodily injury) and that appellate counsel should have raised the issue as fundamental error.

Evidence was heard on June 30 and September 2, 2010. Concerning Hogan’s statement to the detective, trial counsel testified that he thought that there was a possible “violation of the professional rules of conduct or an evidentiary rule. There was never an issue brought up ... by you to me that you hadn’t understood that you had counsel and that you hadn’t decided to waive it by talking.” PCR Tr. at 48 — 49. He stated that he felt that he “made the best objection that ... was available ... at the time.” Id. at 61. The State asked him, “Did you believe that the statement had been tak[en] involuntarily based on your review of the police reports and talking with Mr. Hogan?” Id. at 92. Trial counsel responded negatively.

Regarding the habitual offender phase of Hogan’s trial, trial counsel testified:

I cannot recall specifically the words I used to advise him. I can tell you that I recall telling him that we could proceed with the habitual phase and that the State is required to prove that sentencing enhancement to the jury or we could concede to it and in return we would receive some benefit and I’m, as I review this transcript just now, the benefit was the State’s agreement to withdraw their notice of aggravators to be tried to the jury.... I ... reviewed Mr. Hogan’s criminal record with him directly and it was ... my belief throughout the case that he was indeed was ... a habitual offender and so I felt that we weren’t ... really in a position to contest with any effectiveness the habitual offender stage, therefore any benefit, however small, would be a benefit in terms of the stipulation.

Id. at 97.

Regarding the jury instructions, trial counsel testified that he did not tender an instruction on criminal deviate conduct as a class B felony because he wanted to avoid a compromise verdict. Trial counsel stated that his primary strategy was to attack the victim’s credibility due to her drug use around the time of the offense.

Appellate counsel testified that he had reviewed the trial transcript and raised what he deemed to be the four strongest issues.

Hogan also called Detective Biller to testify. Detective Biller testified that she had not been aware that Hogan had been appointed counsel. She stated that she read him a waiver of rights and he said that he understood his rights, that he “didn’t have anything to hide,” and that he was willing to talk. Id. at 110. She asserted that Hogan did not mention that he already had counsel until she was finished taking his statement.

On February 8, 2011, the post-conviction court issued an order denying post-conviction relief. The. court found that the statement taken by Detective Biller was an “obvious 6th Amendment violation,” but there was “no evidence that the statement was less than a oluntary.” Appellant’s Br. at 44. The court further held that it was permissible to use the statement for impeachment purposes notwithstanding the violation:

The Supreme Court determined in Kansas v. Ventris that any statement in violation of a defendant’s Sixth Amendment right may be used for impeachment purposes. [556 U.S. 586] 129 S.Ct. 1841, 1847 [173 L.Ed.2d 801] (2009). The Petitioner argues that the case was published in 2009 and should not apply to his violation. However, the Court advised, “[o]ur precedents make clear the game of excluding tainted evidence for impeachment purposes is not worth the candle. The interests safe-guarded by such exclusion are ‘outweighed by the need to assure the integrity of the trial process.!’]” Id. at 1846, citing Stone v. Powell, 428 U.S. 465, 488 [96 S.Ct. 3037, 49 L.Ed.2d 1067] (1976). The Petitioner’s statement was properly used for impeachment purposes only.

Id. at 47. The court also found that trial counsel’s decision not to offer an instruction on a lesser included offense of class A felony criminal deviate conduct was an acceptable trial strategy. The court did not make any findings or conclusions on any additional issues that Hogan may have raised. Hogan now appeals.

Discussion and Decision

The petitioner in a post-conviction proceeding bears the burden of proving the grounds for relief by a preponderance of the evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind.2008). Hogan is appealing a negative judgment; therefore, he must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. at 643-44. “Although we do not defer to the post-conviction court’s legal conclusions, a post-conviction court’s findings and judgment will be reversed only upon a showing of clear error — that which leaves us with a definite and firm conviction that a mistake has been made.” State v. Damron, 915 N.E.2d 189, 191 (Ind.Ct.App.2009), trans. denied.

Post-conviction proceedings do not afford a petitioner with a “super-appeal.” Williams v. State, 808 N.E.2d 652, 659 (Ind.2004). “If an issue was known and available on direct appeal, but not raised, it is procedurally defaulted as a basis for relief in subsequent proceedings.” Id.

To prevail on a claim of ineffective assistance of counsel, Hogan must show both that counsel’s performance fell below an objective standard of reasonableness and that the deficient performance so prejudiced him. Coleman v. State, 694 N.E.2d 269, 272 (Ind.1998) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). There is a strong presumption that counsel rendered adequate assistance. Id. “Evidence of isolated poor strategy, inexperience or bad tactics will not support a claim of ineffective assistance.” Id. at 273. “Counsel’s performance is evaluated as a whole.” Lemond v. State, 878 N.E.2d 384, 391 (Ind. Ct.App.2007), trans. denied. To establish the prejudice prong of the test, the defendant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Sims v. State, 771 N.E.2d 734, 741 (Ind.Ct.App.2002), trans. denied. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “Prejudice exists when the conviction or sentence resulted from a breakdown in the adversarial process that rendered the result of the proceeding fundamentally unfair or unreliable.” Coleman, 694 N.E.2d at 272. This standard applies to both claims of ineffective assistance of trial and appellate counsel. Rhoiney v. State, 940 N.E.2d 841, 845 (Ind.Ct.App.2010), trans. denied.

Our supreme court has recognized three types of ineffective assistance of appellate counsel: (1) denial of access to appeal; (2) failure to raise issues that should have been raised; and (3) failure to present issues well. Wrinkles v. State, 749 N.E.2d 1179, 1203 (Ind.2001), cert. denied.

When a petitioner claims the denial of effective assistance of appellate counsel because counsel did not raise issues the petitioner argues should have been raised, reviewing courts should be particularly deferential to counsel’s strategic decision to exclude certain issues in favor of others, unless such a decision was unquestionably unreasonable. But this does not end our analysis. Even if we determine that counsel’s choice of issues was not reasonable, a petitioner must demonstrate a reasonable probability that the outcome of the direct appeal would have been different in order to prevail.

Taylor v. State, 840 N.E.2d 324, 338 (Ind. 2006) (citations and quotation marks omitted). We must determine “(1) whether the unraised issues are significant and obvious from the face of the record; and (2) whether the unraised issues are clearly stronger than the raised issues.” Gray v. State, 841 N.E.2d 1210, 1214 (Ind.Ct.App.2006) (quotation marks omitted), trans. denied.

I. Admissibility of Statement

The State did not attempt to use Hogan’s statement as substantive evidence in its casein-chief, in effect conceding that his statement had been taken in violation of the Sixth Amendment. The State argues that the statement was nevertheless admissible for impeachment purposes pursuant to Kansas v. Ventris, 556 U.S. 586, 129 S.Ct. 1841, 173 L.Ed.2d 801 (2009). The State is correct that a statement taken in violation of the Sixth Amendment right to counsel may be admissible for impeachment, but to the extent that the State is arguing that Ventris permits it to sidestep analysis of the voluntariness of the statement, we disagree.

While Ventris was incarcerated pending trial on murder and robbery charges, officers planted an informant in his cell. According to the informant, Ventris confessed to shooting a man and taking his keys, wallet, $350, and a vehicle. At trial, Ven-tris testified and claimed that a co-defendant was responsible for the crimes. The State then used the informant’s testimony for impeachment.

The Supreme Court stated that previous cases had not addressed the issue of when the violation occurs — at the time of the interrogation or at the time the statement is admitted at trial. The Court concluded that the Sixth Amendment right to counsel “is a right to be free of uncounseled interrogation, and is infringed at the time of the interrogation.” Id. at 1846. Therefore, the Court stated that Ventris’s case did not involve “the prevention of a constitutional violation, but rather the scope of the remedy for a violation that has already occurred.” Id. Citing several cases, the Court concluded that Ventris’s statement could still be used for impeachment.. Id. at 1847.

The Court did not discuss whether Ven-tris’s statement was actually involuntary (and not just a violation of the “prophylactic” rules). The State appears to interpret Ventris to mean that inquiry into the vol-untariness of a statement is unnecessary as long as the statement is only used for impeachment. We find nothing in Ventris that permits the State to sidestep the issue of voluntariness. On the contrary, Ventris mentioned the holding in New Jersey v. Portash that a Fifth Amendment violation occurs “whenever a truly coerced confession is introduced at trial, whether by way of impeachment or otherwise.” Id. at 1845 (citing New Jersey v. Portash, 440 U.S. 450, 458-59, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979)).

Hogan is correct that in order for his statement to be admissible, it had to be voluntary. When the voluntariness of a statement is challenged at the trial level, the State has the burden of proving voluntariness beyond a reasonable doubt. Gentry v. State, 471 N.E.2d 263, 267 (Ind. 1984). The defendant is entitled to a hearing outside the presence of a jury, and the trial court must find voluntariness before admitting it into evidence. Morgan v. State, 675 N.E.2d 1067, 1071-72 (Ind.1996). Trial counsel objected to the use of Hogan’s statement. Portions of the ensuing bench conference were inaudible and therefore were not transcribed by the court reporter, but it appears that trial counsel objected solely on the basis that Hogan’s statement had been taken without notice to counsel. As discussed above, this fact does not prevent his statement from being used for impeachment.

Nevertheless, in post-conviction proceedings, it is the petitioner who bears the burden of proof, and the record does not show that trial counsel had any basis for challenging the voluntariness of the statement. Trial counsel testified that in reviewing the evidence and speaking to Hogan, he had no reason to believe that the statement had been involuntary or that Hogan had not understood that he was waiving his right to counsel. Trial counsel stated that he believed that he had made the best objection available. Detective Biller testified that she had advised Hogan of his right to counsel and that he indicated that he understood his rights. She stated that Hogan had not mentioned that he already had counsel until the conclusion of the statement. Although Hogan claimed otherwise in his trial testimony, this testimony could rightly be considered self-serving. Appellate counsel testified that, in his experience, it was not unusual for criminal defendants to make oral statements but refuse to sign written statements because they did not believe that an oral statement carried the same weight. Given the lack of evidence that the statement was involuntary, Hogan has not persuaded us that the post-conviction court erred by finding that neither trial nor appellate counsel was ineffective for failing to address the issue.

II. Habitual Offender

The right to a jury trial applies to habitual offender proceedings. Gonzalez v. State, 757 N.E.2d 202, 204-05 (Ind. Ct.App.2001), trans. denied. The defendant is presumed not to waive this right unless he affirmatively acts to do so. Id. at 205. The defendant must express his personal desire to waive a jury trial, and that desire must be apparent from the record in the form of a written waiver or a colloquy in open court. Id. “It is fundamental error to deny a defendant a jury trial unless there is evidence of the defendant’s knowing, voluntary and intelligent waiver of the right.” Reynolds v. State, 703 N.E.2d 701, 704 (Ind.Ct.App.1999).

The State notes, “It is possible that the trial court did not explicitly inform Hogan of his right to have that evidence heard by a jury. Hogan’s record does not allow that determination.” Appellee’s Br. at 16. Only select portions of the trial record were admitted into evidence at the post-conviction hearing. It appears that we have the entire portion of the transcript covering the habitual offender phase of the trial, but without a complete record, we have no way of verifying that.

We note that at the post-conviction hearing, Hogan requested that the court take judicial notice of the trial record, and the court told Hogan that it could not do that. The post-conviction court was mistaken. Effective January 1, 2010, Indiana Evidence Rule 201 was amended to permit courts to take judicial notice of “records of a court of this state.” The hearing in this case commenced in June 2010. In Graham v. State, 947 N.E.2d 962, 964-65 (Ind.Ct.App.2011), opinion on rehearing, we stated:

First, if a pro se PCR petitioner comes to court bearing a record, including a transcript or other documents, that he or she wants to use in support of his or her petition, the PCR court should ensure that the record is introduced into evidence.... Second, if a PCR court does in fact, on its own initiative or at the request of a party, take judicial notice of other court records in ruling upon a PCR petition, those records should be made part of the PCR record.... Nothing in either of these statements requires a PCR court to go searching for records in support of either party’s position or to become an advocate or investigator for either party.

It appears that Hogan had at least portions of the trial record with him. It is unclear whether he attempted to tender the entire record to the court.

Giving Hogan the benefit of the doubt, we will review the portion of the transcript that appears to cover the habitual offender proceedings. Trial counsel explained to the court that an agreement has been reached — that Hogan would admit to being a habitual offender in exchange for the State forgoing the aggravating circumstances that it had intended to prove to the jury. The State then questioned Hogan to establish the factual basis for the habitual offender enhancement. Nothing in the record shows that Hogan was advised of his right to a jury trial during the habitual offender proceedings, and a personal waiver does not appear in the record.

Nevertheless, Hogan has not shown that he ivas prejudiced. Trial counsel testified that he advised Hogan of his right to a jury trial on the habitual offender enhancement. He also stated that he had reviewed Hogan’s criminal record and felt that he was not “in a position to contest with any effectiveness the habitual offender stage.’’ PCR Tr. at 97. Therefore, he felt that any offer by the State, “however small,” would benefit Hogan. Id. Hogan presented no evidence that he lacks the felony convictions necessary to establish his habitual offender status, nor has he presented any evidence that he would have chosen to proceed with a jury trial had the court explicitly informed him of that right. Therefore, we conclude that Hogan has not established ineffective assistance of counsel with regard to either trial or appellate counsel.

III. Jury Instruction

Finally, Hogan argues that the jury should have been instructed on criminal deviate conduct as both a class A and class B felony. The distinguishing element between the two offenses is serious bodily injury to the mctim. Thus, the class B felony is inherently included in the class A felony. See Wright v. State, 658 N.E.2d 563, 566 (Ind.1995) (if the lesser offense may be established by proof of the same material elements or less than all the material elements of the greater offense, it is inherently included). Hogan therefore would have been entitled to an instruction on the class B felony if there was a serious evidentiary dispute concerning the serious bodily injury. See id. at 567 (“If there is a serious evidentiary dispute about the element or elements distinguishing the greater from the lesser offense and if, in view of this dispute, a jury could conclude that the lesser offense was committed but not the greater, then it is reversible error for a trial court not to give an instruction, when requested, on the inherently or factually included offense.”). Hogan argues that there was a serious evidentiary dispute because the jury could have believed Kling’s testimony that she was forced to perform oral sex and believed his testimony that she injured herself because she was high and behaving erratically.

[17] We lack a complete record with which to review this claim. See Webb v. State, 963 N.E.2d 1103, 1106-07 (Ind.2012) (court is to look at all evidence presented to determine whether a serious evidentiary dispute exists). However, even assuming that Hogan would have been entitled to the instruction, it is well established that counsel may opt to pursue an “all or nothing” strategy. See, e.g., Autrey v. State, 700 N.E.2d 1140, 1141 (Ind.1998). This strategy does not constitute ineffective assistance of counsel unless it is “so deficient or unreasonable as to fall outside of the objective standard of reasonableness.” Id. Here, trial counsel testified that his primary strategy was to attack the victim’s credibility, and he felt that offering an instruction on the lesser-ineluded offense would lend some credence to her testimony. He also testified that he was concerned that the jury would return a “compromise” verdict if given the option to convict Hogan of the class B felony. PCR Tr. at 99. Hogan has not shown that this was an unreasonable strategy. Thus, he has not shown that trial counsel was ineffective by not offering a lesser-included instruction; nor has he shown that appellate counsel was ineffective by not raising the issue as fundamental error on appeal.

IV. Additional Claims

Hogan asserts that he raised additional claims that the post-conviction court failed to address. For the reasons discussed in footnote 2, supra, Hogan has waived appellate review of any additional claims.

Conclusion

Hogan is correct that his statement could not be used unless it was taken voluntarily. However, he has not presented any evidence that his statement was involuntary; therefore, he has not established ineffective assistance of trial or appellate counsel in regard to this issue. Hogan is also correct that an advisement of his right to a jury trial on the habitual offender and his personal waiver should have been made on the record. However, he has failed to show that he was prejudiced by this and therefore has failed to establish ineffective assistance of trial or appellate counsel. Hogan has failed to show that trial counsel’s decision not to tender an instruction on a lesser-included offense was an unacceptable strategy and has likewise failed to show that appellate counsel should have raised the issue as fundamental error. Any additional claims that Hogan may have made are waived because, despite our order to include his post-conviction petition in his appendix, he has failed to do so, and we are unable to determine what those additional' claims might be. Therefore, we affirm the judgment of the post-conviction court.

Affirmed.

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

      . Hogan committed his offenses while the presumptive sentencing scheme was in effect, but his trial took place after our supreme court decided Smylie v. State, 823 N.E.2d 679 (2005), in which the court determined that this state would comply with Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), by trying aggravating factors to a jury.

      . Hogan filed defective appendices on August 12 and August 30, 2011. On September 15, 2011, he filed an appendix that complied with all the technical rules, but lacked portions of the record. According to our docket, on November 4, 2011, the State filed a "Motion to Compel a Conforming Appendix,” requesting that Hogan be ordered to file an appendix that included the missing documents, including his petition for post-conviction relief. On November 14, 2011, we granted the State's motion. Before receiving our order, Hogan filed a supplemental appendix that included most of the missing documents; the clerk filed it on November 10, 2011, pursuant to the prison mailbox rule. For purposes of citation, "Appellant’s App.” refers to the appendix filed on September 15, 2011, and "Supp. Appellant’s App.” refers to the supplemental appendix filed on November 10, 2011. The supplemental appendix contains what appears to be a jumble of pages from various versions of his post-conviction petition. Despite our order of November 14, 2011, Hogan never submitted a complete, final copy of his petition; thus, determining the issues properly before us has presented a challenge. Hogan has divided his brief into seven arguments. The first four arguments address three issues: his claim that his statement to the detective was inadmissible even for impeachment, that he was not advised of his right to a jury trial on the habitual offender charge, and that the jury should have been instructed on criminal deviate conduct as both a class A and a class B felony. In the fifth argument, he explains why he feels that trial counsel is responsible for these errors, and in the sixth argument, he explains why he feels that appellate counsel is responsible for these errors. To the extent that the first four arguments are meant to be free-standing claims of trial error, we agree with the State that those issues are foreclosed because they were available, but not raised on direct appeal. Williams v. State, 808 N.E.2d 652, 659 (Ind.2004) ("If an issue was known and available on direct appeal, but not raised, it is procedurally defaulted as a basis for relief in subsequent proceedings.”). We will consider those arguments only to the extent that they are relevant to his ineffective assistance of counsel claims.
      Finally, Hogan’s seventh argument asserts that the post-conviction court failed to enter findings of fact and conclusions of law on additional claims "identified in the petition as 8(d), 8(d)(1), and 9(e)(2).” Appellant's Br. at 39. Without his petition, we are unable to determine what these claims are and whether they were properly before the post-conviction court. Hogan was specifically ordered to provide a copy of his petition, and he has failed to do so; therefore, we conclude that these additional issues are waived. See Ind. App. Rule 46(A)(8)(a) ("The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on...."); Davis v. State, 835 N.E.2d 1102, 1113 (Ind.Ct.App.2005) ("A party waives an issue where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record.”), trans. denied.

      . At the beginning of the post-conviction hearing, the State stipulated that Hogan had been appointed counsel a few days before his statement was taken, that Hogan’s statement was taken without counsel present, that the statement was not used in the State’s case-in-chief, and that the statement was used to impeach Hogan when he elected to testify. PCRTr. at 26-27.
      In Michigan v. Jackson, 475 U.S. 625, 635-36, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), the Supreme Court ruled that once a criminal defendant invokes the Sixth Amendment right to counsel, a subsequent waiver of that right is presumed invalid if secured by police-initiated conversation. The Court later characterized this as a prophylactic rule. Michigan v. Harvey, 494 U.S. 344, 345, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990). In Harvey, the Court held that violation of this prophylactic rule does not prevent the State from using the statement to impeach the defendant's false or inconsistent testimony. Id. at 351, 110 S.Ct. 1176. Subsequent to Hogan’s trial, Jackson was overruled by Montejo v. Louisiana, 556 U.S. 778, 129 S.Ct. 2079, 2091, 173 L.Ed.2d 955 (2009). However, statements that are in fact involuntary remain invalid apart from Jackson. See id. at 2089.


author: MAY, Judge.

text:
    OMNI INSURANCE GROUP, Appellants-Plaintiffs, v. Lake POAGE, Tonya Poage, Cody Bauer, Jill Bauer, Gary Bauer, and Allstate Insurance Company, Appellees-Defendants.
    No. 92A03-1105-CT-208.
    Court of Appeals of Indiana.
    April 23, 2012.

      John H. Halstead, Querrey & Harrow, Merrillville, IN, Attorney for Appellant.
    Thomas D. Blackburn, Blackburn & Green, Fort Wayne, IN, Karl L. Mulvaney, Nana Quay-Smith, Bingham Greenebaum Doll LLP, Indianapolis, IN, Attorneys for Lake and Tonya Poage.
   OPINION

MAY, Judge.

Omni Insurance Group appeals a summary judgment for Allstate Insurance Co., Lake and Tonya Poage, and Cody, Jill, and Gary Bauer (collectively, “the Poages”), and the denial of its own motion. As there is a genuine issue of material fact as to whether a driver involved in a collision was a resident of the Omni policyholder’s residence, summary judgment for the Poages was improper. Therefore, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On April 16, 2008, Cody Bauer was driving a car that collided with a motorcycle driven by Lake Poage. Cody’s mother Treva Bauer owned the car, which Cody was driving with her permission. Treva was insured by Omni. The policy provided liability coverage to Treva, who was the named insured, to family members who used Treva’s car, and to any persons who used the vehicle with her permission. But the policy explicitly excluded liability coverage for bodily injury resulting from the use of a vehicle by “any resident, including a family member, of your household who is not listed in the Declarations page” (hereinafter “Exclusion 15”). (Appellant’s App. at 53). The collision coverage contains a similar exclusion for loss to the covered auto when it is driven by “a resident of your household ... not listed on the Declaration page.” (Id. at 70.) The policy does not define “resident.” Cody was not listed on the declarations page.

On the date of the collision, Cody was spending the night at Treva’s residence. Treva shared joint legal custody of Cody with Cody’s father. After their divorce they split physical custody. Cody had his own bedroom at both residences and kept belongings at both places. He considered both residences to be his home. At the time of the collision, Treva was moving from Churubusco to Columbia City, and when she moved Cody changed schools. Cody used his father’s address on his driver’s license and received his mail there. Cody was a listed driver on his father’s policy, but not Treva’s.

Cody was seventeen when Treva applied for the Omni policy. She stated on her application that there were no “residents of [her] household, 14 years old and older, that have NOT been disclosed on this application (licensed or not).” (Id. at 114.) About two weeks after Omni was notified of the collision, Treva told Omni that Cody lived with his father and was at her home only on the weekend.

Omni paid Treva’s property damage claim, but later sent Cody and Treva a letter indicating liability coverage might not be available because of questions about Cody’s residence. Both Omni and the Poages moved for summary judgment. The trial court denied Omni’s motion and granted the Poages’.

DISCUSSION AND DECISION

When revieving a grant or denial of summary judgment our review is the same as it is for the trial court: whether there is a genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 973 (Ind.2005). Summary judgment should be granted only if the evidence sanctioned by Indiana Trial Rule 56(C) shows that there is no genuine issue of material faci and the moving party deserves judgment as a matter of law. Id. All evidence is construed in favor of the opposing party, and all doubts as to the existence of a material issue are resolved against the moving party. Id.

We find dispositive the potential application of Exclusion 15, which question in turn depends on whether Cody was a resident of Treva’s household. We agree with the Poages that “the issue of Cody’s coverage turns upon the scope of an exclusion, because Cody is already an insured as Treva’s family member and a permissive driver.” (Br. of Appellees, Lake and Tonya Poage (hereinafter “the Poage Br.”) at 36.) Omni appears to so concede: “No genuine issue of material fact exists as to whether the Poages’ claims for bodily injury result from the use of the vehicle by a resident of Treva Bauer’s household who was not listed in the Declarations page.” (Appellant’s Br. at 6.)

Pursuant to the policy language, if Cody was a resident of Treva’s household, Omni was entitled to summary judgment because Cody was not listed on the Declarations page. If he was not a resident of Treva’s household, the Poages were entitled to summary judgment, as Cody was driving Treva’s car with her permission. Because there is a genuine issue of fact as to his residency, there should have been no summary judgment.

1. Waiver

The Poages first assert Omni has, for a number of reasons, “implicitly waived” or is estopped from raising every coverage issue it attempts to raise on appeal. (Poage Br. at 14.) We decline to find waiver or estoppel. We prefer to decide a case on the merits whenever possible. United Farm Family Mut. Ins. Co. v. Michalski, 814 N.E.2d 1060, 1067 (Ind.Ct.App.2004). “Questions within the issues and before the trial court are before the appellate court, and new arguments and authorities may with strict propriety be brought forward.” Id. (quoting Bielat v. Folta, 141 Ind.App. 452, 454, 229 N.E.2d 474, 475 (1967)).

As we find potentially dispositive the issue of Treva’s possible misrepresentation on her application for insurance with Omni, we must first address the Poages’ allegation Omni waived that issue. The Poages assert Omni’s pleadings were not specific enough to place that issue before the trial court.

We must initially address the Poag-es’ assertion that “Indiana Trial Rule 9(B) requires that a party must specifically plead the facts and circumstances giving rise to a claim of fraud or misrepresentation.” (Poage Br. at 24) (emphasis added). That is not what Rule 9(B) says or what it means, and we admonish the Poages’ counsel to refrain from so misstating our rules. The rule explicitly requires specific averment of fraud, but does not address, or even mention, mere misrepresentation. Nor have the Poages offered legal authority to the effect Rule 9(B) applies to allegations of mere misrepresentation in general or to insurance application misrepresentations in particular.

Fraud and misrepresentation are not the same, and under the Omni policy, coverage may be denied if the insured knowingly misrepresented a material fact or engaged in fraudulent conduct. (Appellant’s App. at 73.) Misrepresentation is but one element of fraud, either actual or constructive, and the Poages offer no authority to support their statement that the specificity requirements for pleading fraud also apply to allegations of mere misrepresentation. See, e.g., Wells v. Stone City Bank, 691 N.E.2d 1246, 1250 (Ind.Ct.App.1998) (noting a party claiming either actual or constructive fraud must prove five elements, only one of which is that “there was a material misrepresentation of past or existing fact,” (actual fraud) or representations or omissions made in violation of a duty existing by virtue of the relationship between the parties (constructive fraud)), trans. denied.

As the Poages have not provided the cogent argument or citation to authority our appellate rules require, we decline to address their argument on this point. See, e.g., Loomis v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind.Ct.App.2002) (App. R. 46(A)(8)(a) requires “[t]he argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities ... relied on.”), reh’g denied, trans. denied.

We accordingly proceed to consider the merits of the case before us.

2. Residency

The Omni policy excludes liability coverage for bodily injury resulting from the use of a vehicle by “any resident, including a family member, of your household who is not listed in the Declarations page.” (Appellant’s App. at 53.) The collision coverage contains a similar exclusion for loss to the covered auto when it is driven by “a resident of your household ... not listed in the Declarations page.” (Id. at 70.) If Cody was a resident of Treva’s household, then Treva’s statement on the application that there were no “residents of [her] household, 14 years old and older, that have NOT been disclosed on this application (licensed or not),” (id. at 114), was a misrepresentation.

A misrepresentation on an application for an insurance policy is “material” if the fact misrepresented, had it been known to the insurer, would have reasonably entered into and influenced the insurer’s decision whether to issue a policy or to charge a higher premium. Allied Prop. & Cas. Ins. Co. v. Good, 938 N.E.2d 227, 232 (Ind.Ct.App.2010), reh’g denied, trans. granted, opinion vacated, order granting trans. vacated and opinion reinstated. A material misrepresentation or omission of fact in an insurance application, relied on by the insurer in issuing the policy, renders the coverage voidable at the insurance company’s option. Id. An insurance company has no right to rescind a policy “where it had knowledge of the facts notwithstanding the material misrepresentations, or where a reasonable person would have investigated further.” Id. However, “the insurer may rely on representations of fact in the application without investigating their truthfulness,” and has “no duty to look beneath the surface” of the representations on the application. Id.

The materiality of a representation or omission is a question of fact to be resolved by the factfinder unless the evidence is such that there can be no reasonable difference of opinion. Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 673 (Ind.1997). Both Omni and the Poages moved for summary judgment, but neither party directs us to designated evidence that addressed the materiality vel non of Treva’s representation. We therefore direct the trial court on remand, if it finds Cody was a resident, to determine whether Treva’s statement was material.

When, as here, the parties leave the term “resident” undefined, we apply Indiana common law to determine its meaning. Indiana Farmers Mut. Ins. Co. v. Imel, 817 N.E.2d 299, 304-05 (Ind.Ct.App.2004). In determining residency status under an automobile liability insurance contract, our case law has developed a three-fold test. Id. To determine if someone is a resident, we consider 1) whether the claimant maintained a physical presence in the insured’s home; 2) whether he had the subjective intent to reside there; and 3) the nature of his access to the insured’s home and its contents. Id. The factfinder must consider all of the evidence indicative of the claimant’s living habits. Id. In insurance policies, the term “resident” is given its broad meaning in extension cases, and is construed narrowly in exclusion cases like the one before us. Id.

In Imel, a case involving a policy exclusion, liability coverage was limited by a provision that coverage “does not apply to: ‘bodily injury to ‘you’, and if residents of ‘your’ household, ‘your’ relatives and persons in ‘your’ care or in the care of ‘your’ resident relatives.” Id. at 301.

In Imel, an eight-year-old child’s parents divorced. By agreement, the child visited the father’s mother and stepfather, the Imels, at their farm near Madison. The visits were twice each month and included both single day visits and overnight weekend visits. When the Imels were out of town or the mother had a family function or outing, the weekend at the Imels’ farm would be skipped and the lost time would not be made up. When the child stayed at the Imels’ farm, his mother typically did not attend, and the Imels were then the child’s primary caregiver. During his visits the child had to abide by rules set by the Imels, who had full authority to care for him and discipline him as needed. The child brought his own clothes and favorite toys with him. When spending the night, he stayed in the Imels’ guest bedroom, as did all of the Imels’ guests.

We determined the child was not a resident of the Imels’ household. Id. at 305. We first noted, with regard to the child’s physical presence in the Imels’ household, his status was more that of a temporary visitor rather than a resident. On the day the child was injured at the Imel farm, he lived with his mother in Hanover, Indiana, and attended school there. Since the child was three years old, he had regularly visited the Imels about twice a month on weekends. There were toys in the Imels’ household, but they were for the general use of all the Imels’ grandchildren.

As to the child’s subjective intent to reside in the Imels’ household, we noted the Imels considered the mother to be the child’s primary caregiver. The Imels deferred to the mother on issues of discipline and medication. All parties considered the child a resident of mother’s home and considered his temporary stays at the Imels’ farm nothing more than family visits.

Finally, we analyzed the nature of the child’s access to the Imels’ home and its contents. During his visits the child slept in the guest bedroom, which was used by all the Imels’ children and grandchildren, and not exclusively by the child. Even though he had access to the parts of the house an eight-year-old child would normally have access to, he had to abide by certain rules. But, like any guest, he was free to move about the interior of the home. “In sum, considering all the factors indicative of [the child’s] living habits, we conclude that frequent and prearranged visits of an eight-year-old grandchild with his paternal grandparents do not amount to a change of residency from his mother’s home to his grandparents’.” Id. at 305.

We addressed Indiana Farmers’ argument the child had “a dual residency,” both at his mother’s and the Imels’. We acknowledged our prior holdings that for some purposes a person may have more than one residence, but noted “the case at bar involves an exclusion provision, and accordingly, the term resident should be constructed narrowly.” Id. Considering that the child was eight years old, “his primary residence is logically with his mother,” and “our review of [the child’s] visits to the Imel farm, in light of all the evidence designated to the trial court, does not mandate a finding of dual residency.” Id.

We determined there were no genuine issues of material fact as to the child’s residency with his mother, even though he was in the Imds’ care at the time of the accident. Id. The child’s bodily injuries were therefore not excluded from coverage under the liability provisions of Indiana Farmers’ policy and summary judgment for the Imels was not error. Id. at 305-06.

There is, by contrast, a genuine issue of fact as to whether Cody was a “resident” of Treva’s household. Cody apparently had more of a physical presence in Treva’s household than did the child in Imel, but he did not live there full-time. His parents’ custodial agreement indicated Cody would divide his time equally between his parents. He had his own bedroom at each parent’s residence, and kept belongings at both places. There was evidence he subjectively considered both places his home and spent about an equal amount of time at both places.

Cody’s subjective intent to reside in Tre-va’s household is also less certain than was the child’s intert in Imel. Omni notes Cody changed high schools when, near the time of the collision, Treva moved from Churu-busco to Columbia City. But Cody used his father’s address when he applied for financial aid at Ivy Tech. He also used his father’s address on his driver’s license and received his mail there. He was a listed driver on his father’s policy.

It appears Cody had greater access to Treva’s home and its contents than did the child in Imel, as he had his own room and belongings both places, and at age seventeen presumably had greater access and was obliged to abide by different rules than the eight-year-old child in Imel.

Our application of the Imel factors leads us to conclude there is a genuine issue of fact as to whether Cody was a resident of Treva’s home, so there is a genuine issue of material fact regarding whether he should be excluded from coverage under Treva’s Omni policy. The Poages therefore should not have been granted, but Omni was properly denied, summary judgment. We accordingly reverse and remand for trial.

Reversed and remanded.

CRONE, J., and BROWN, J., concur.

      . Ind. Appellate Rule 46(A)(6) provides facts in a Statement of Facts "shall be supported by page references to the Record on Appeal or Appendix in accordance with Rule 22(C).” In its Statement of Facts, Omni quotes language from a number of provisions throughout the policy, but in support directs us only to "(App. p. 40).” (Appellant’s Br. at 3.) Page 40 of the Appendix is the cover page of Omni's Exhibit A, which includes the policy and some other documents. That exhibit spans forty-five pages of the Appendix. Omni does not specifically indicate where within those forty-five pages the various policy provisions to which it refers might be found. We remind Omni’s counsel that we will not sift through a record to locate error so as to state an appellant’s case, Barth v. Barth, 693 N.E.2d 954, 956 (Ind.Ct.App.1998), trans. denied, and that noncompliance with the appellate rules that substantially impedes our ability to reach the merits of an appeal can result in waiver of an argument on appeal. Galvan v. State, 877 N.E.2d 213, 216 (Ind.Ct.App. 2007).

      . Allstate insured Cody's father.

      . The Poages also argue Omni waived this issue for at least two other reasons — it paid Treva’s property damage claim, and it issued a letter that "assured Cody of coverage.” (Poage Br. at 23.) We decline to find waiver on those grounds.
      As for the first, the Poages cite Gallant Ins. Co. v. Wilkerson, 720 N.E.2d 1223, 1227 (Ind.Ct.App.1999), for the general proposition that conduct of an insurer inconsistent with an intention to rely on the requirements of the policy may amount to waiver of a defense, if it leads the insured to believe those requirements will not be insisted on. But the Poages offer no authority to support their apparent premise that an insurer who makes a payment for any type of damage under any policy provision has necessarily waived any defense it might thereafter raise to any other claims that might arise under any other policy provisions. We decline to find waiver.
      The Poages next argue, without citation to authority, Omni waived any policy defenses by sending Cody a letter in October 2008 indicating "Cody was not insured under its policy,” (Poage Br. at 22), and then, in November 2008, "issuing its November 19, 2008 letter which assured Cody of coverage.” (Id. at 23.) We note initially that nothing in the November letter explicitly "assured Cody of coverage” — rather, it said Omni would do everything it could to settle the claim within the Omni policy limits. Nor did the October letter say "Cody was not insured under [the Omni] policy” — rather, it said there was a "question whether coverage under this policy applies to this occurrence.” (App. at 234.) The Poages assert the November letter waived any of Omni’s policy defenses because it was "entirely inconsistent with Omni’s position in its October 31st letter that Cody was not insured.” (Poage Br. at 22.) As the October letter acknowledged only a "question” about coverage, we decline to find the subsequent letter "inconsistent” with it.

      . This distinction appears particularly significant in the context of insurance applications. Whether the applicant intended to mislead or knew of the falsity is irrelevant. False representations concerning a material fact, which mislead, will avoid an insurance contract, like any other contract, regardless of whether the misrepresentation was innocent or made with a fraudulent design. Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 673 (Ind. 1997).

      . There was evidence his high school sent mail to both addresses.


author: ROBB, Chief Judge.

text:
    George CLEMENTS, Appellant-Defendant, v. Kimberly HALL and Stanley Harmon, Appellee-Plaintiff.
    No. 06A04-1106-MI-282.
    Court of Appeals of Indiana.
    April 24, 2012.

      Alex R. Voils, Jr., Zionsville, IN, Attorney for Appellant.
    Arvin R. Foland, Arvin R. Foland & Associates, Noblesville, IN, Attorney for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issue

George Clements (“Clements”) filed a motion for relief from judgment requesting the trial court set aside summary judgment granted in favor of Kimberly Hall and Stanley Harmon in a dispute over real property. The trial court denied Clements’s motion. Clements raises two issues for our review, one of which we find dis-positive: whether the trial court erred in denying Clements’s motion for relief from judgment. Concluding the trial court’s denial of Clements’s motion for relief from judgment was in error because Hall and Harmon’s attorney knew Clements was represented by counsel and failed to serve notice of the motion for summary judgment, we reverse and remand for further proceedings.

Facts and Procedural History

In 2006, Arthur and Mary Lou Clements executed a revocable living trust, naming Hall as the executor and successor trustee. The 2006 trust divided certain property, including the real property here at issue, as follows: thirty-five percent to Hall; twenty-five percent to Harmon; twenty-five percent to Clements; and five percent each to First Community Church, Boone County Senior Services, and Cancer Fund of Boone County. Mary Lou and Arthur subsequently passed away in 2006 and 2008, respectively. In July 2010, Clements filed a Personal Representative’s Deed as Executor of the Estate of Arthur Clements, deeding real property (“the Property”) to himself for ten dollars. In August, Hall and Harmon’s attorney, Arvin Foland, filed an appearance and claim for quiet title, constructive trust, and partition of the Property, contending the Personal Representative’s Deed filed by Clements was improper and requesting it be deemed a cloud upon the title to the Property. Further, they argued the Property should be held in constructive trust until it could be sold, at which time the proceeds should be divided pursuant to the 2006 trust of Arthur and Mary Lou Clements.

The following day, Clements signed a return receipt on certified mail. In December 2010, Hall and Harmon filed a motion for summary judgment, along with a designation of documents and affidavit of attorney’s fees. The motion certified service to Charles W. Ritz, III, the attorney for Boone County Senior Services. On February 4, 2011, the trial court entered an order granting summary judgment for Hall and Harmon and disposing of the case. Nothing in the record indicates Clements or his attorney were served with the motion for summary judgment or received notice of any proceedings on said motion. See Appellant’s Appendix at 1-2 (showing no indication of service in the chronological case summary); see also id. at 24 (revealing Hall and Harmon’s motion for summary judgment certified service only upon Ritz).

Subsequently, in March 2011, Alex Voils filed an appearance and motion for pretrial conference on behalf of Clements. Clements then filed a motion for relief from judgment, contending Arthur Clements amended his trust to name George Clements as executor and trustee and neither George Clements nor his attorney ever received notice of Hall and Harmon’s motion for summary judgment or the hearing held on their motion until they received a copy of the trial court’s judgment on the motion. After a hearing on Clements’s motion for relief from judgment, the trial court denied his motion. Clements now appeals.

Discussion and Decision

I. Standard of Review

We review a trial court’s grant or denial of a motion for relief from judgment under an abuse of discretion standard of review. Beike v. Beike, 805 N.E.2d 1265, 1267 (Ind.Ct.App.2004). An abuse of discretion occurs when the trial court’s judgment is clearly against the logic and effects of the facts and circumstances supporting the motion for relief. Id. We do not reweigh evidence in reviewing the denial of a motion for relief from judgment. Id.

II. Clements’s Motion for Relief from Judgment

Clements argues the trial court abused its discretion in denying his motion for relief from judgment, which requested the trial court set aside its previously granted summary judgment motion in favor of Hall and Harmon and allow Clements an opportunity to respond to the motion for summary judgment and participate in a hearing on the motion. He contends neither he nor his attorney received notice of the motion for summary judgment or subsequent hearing until he obtained a copy of the trial court’s judgment on the motion. Hall and Harmon contend Clements was served with their claim for quiet title, constructive trust, and partition of the Property, and an appearance was not entered by Clements or on his behalf until after the trial court’s judgment granting Hall and Harmon’s motion for summary judgment. Further, Hall and Harmon contend Clements’s attorney, Voils, discussed the claim with their attorney, Foland, who informed Voils they would be pursuing summary judgment. They do not contend Clements or Voils were served with the motion for summary judgment or in any way notified when it was filed.

Smith v. Johnston, 711 N.E.2d 1259 (Ind.1999), is instructive in addressing Clements’s contention. There, the plaintiff, Johnston, filed a proposed complaint with the Indiana Department of Insurance against Dr. Ray C. Smith and the Smith Surgical Group for medical malpractice in their treatment of Johnston’s wife. Id. at 1261. After a medical review panel proceeding in which Smith was represented by Locke Reynolds, the panel determined Smith failed to comply with the appropriate standard of care. Subsequently, Johnston filed suit in the Marion Superior Court. Smith and Smith Surgical Group were served with the complaint. Johnston moved for default judgment approximately six weeks after filing the complaint with the trial court. Because Locke Reynolds had not yet filed an appearance on behalf of Smith, it was not served with the complaint or motion for default judgment. However, Johnston’s attorney was well aware Smith was represented by counsel because Smith was represented during the medical review panel proceeding by Locke Reynolds. Further, after the panel’s determination, Johnston’s attorney sent Locke Reynolds a letter demanding a settlement amount equal to the insurance policy limit. Id.

The trial court granted the motion for default judgment and awarded damages. Id. Thereafter, an appearance was entered on behalf of Smith by Locke Reynolds, and Smith moved to set aside the default judgment. The trial court denied Smith’s motion, and this court affirmed. Id. The supreme court reversed, however, agreeing with Smith that the default judgment should be set aside under Indiana Trial Rule 60(B)(3) as “misconduct of an adverse party.” 711 N.E.2d at 1262-63. The court reasoned that while the Trial Rules might not require notice to an attorney who has not filed his or her appearance in a case, Rule 8.4(d) of the Rules of Professional Conduct prohibits attorneys from engaging in conduct that is prejudicial to the administration of justice. Id. at 1263. Thus, the court concluded, when an attorney seeking relief from the court has knowledge that the opposing party is represented by an attorney, a duty arises under the Rules of Professional Conduct to provide notice to the non-moving party’s attorney, even where the said attorney has not yet filed an appearance. Id.

Here, Hall and Harmon’s attorney, Fo-land, knew Clements was represented by an attorney. In an effort to argue Clements knew they were planning to move for summary judgment, Hall and Harmon state in their appellate brief that their attorney “had conversation with” Clements’s attorney, Voils, advising Voils of their intent to pursue summary judgment. Brief of the Appellees at 6. Further, Hall and Harmon attached an affidavit to their objection to Clements’s motion for relief from judgment in which Foland averred that “shortly after this case was filed, [he] advised Alex Voils that Plaintiffs intended to file a Motion for Summary Judgment as they believed the facts and law were with them in this case.” Appellant’s App. at 86. Thus, as in Johnston, although Voils had not yet filed an appearance, when Foland sought summary judgment relief from the court he was obligated to notify Voils of such pursuit and we therefore reverse the trial court’s denial of Clements’s motion for relief from judgment.

Foland s effort to tell Voils of Hall and Hannon’s intent to pursue summary judgment was a steo in the right direction, but in light of our strict time requirements in summary judgment proceedings it falls short of satisfying Foland’s obligation. The consequences of not being notified when an opposing party moves for summary judgment, and thus not knowing when the clock begins to run, can be significant. However, we are not excusing Voils’s failure to enter an appearance; without Folands knowledge of Voils’s representation of Clements based on Foland’s discussion with Voils, failing to notify Voils when Hall and Harmon moved for summary judgment would not have been prejudicial to the administration of justice because attorneys are generally obligated to appear.

Conclusion

Pursuant to Johnston, we conclude Fo-land’s knowledg e that Clements was represented by Voils gave rise to an obligation to notify Voils when Hall and Harmon moved for summary judgment even though Voils had not yet filed an appearance. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

BAILEY, J., and MATHIAS, J., concur.

      . Rule 5(B) provides, "Whenever a party is represented by an attorney of record, service shall be made upon such attorney unless service upon the party himself is ordered by the court.” (emphasis added). Thus, the Trial Rules do not require service of a motion for default judgment, or a motion for summary judgment, to the non-moving party’s attorney when said attorney has failed to appear.


author: BARNES, Judge.

text:
    Delbert CONKLIN, Appellant, v. REVIEW BOARD OF the INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and Carter Express, Inc., Appellees.
    No. 93A02-1109-EX-864.
    Court of Appeals of Indiana.
    April 24, 2012.
    Rehearing Denied July 17, 2012.

      Delbert E. Conklin, Indianapolis, IN, Appellant Pro Se.
    Gregory F. Zoeller, Attorney General of Indiana, Elizabeth Rogers, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellees.
   OPINION

BARNES, Judge.

Case Summary

Delbert Conklin appeals the denial of his application for unemployment benefits by the Review Board of the Indiana Department of Workforce Development (“the Board”). We reverse.

Issue

The sole restated issue we need address is whether there is sufficient evidence to support the Board’s decision that Conklin was terminated from his employment for just cause.

Facts

Conklin was employed by Carter Express, Inc. (“Carter”), as a truck driver. On May 24, 2011, Conklin was driving a load from Anderson to Peoria, Illinois, when he blacked out for a brief period of time. This caused him to drive off the road and cause damage to the truck and load he was carrying, but he awoke in time to avoid hitting trees by the side of the road. No evidence has been presented as to the medical cause of Conklin’s black out, nor were there any mechanical problems with the truck. There is no evidence Conklin was under the influence of drugs or alcohol. He had never experienced such an episode before, and there is no evidence in the record of Conklin being involved in any other accidents while working for Carter. After the accident, Carter’s internal accident review board reviewed the accident. It recommended that Conklin’s employment be terminated because it was unsafe for him to continue driving commercial trucks on public roads.

Conklin filed an application for unemployment insurance benefits, which was approved by a claims deputy. Carter then appealed to an administrative law judge (“ALJ”), which reversed the deputy’s determination and found that Conklin was not eligible for unemployment benefits. The ALJ’s order found in pertinent part:

The employer proved that the claimant demonstrated a willful or wanton disregard to the employer’s interest. The claimant was responsible for transporting the load in a safe manner and the claimant blacked out and caused damage. The claimant could provide no reason or explanation of his black out. Based upon the lack of explanation, the Administrative Law Judge concludes it is reasonable to find the claimant an imminent safety hazard. Therefore, the Administrative Law Judge concludes that the claimant breached a duty reasonably owed to the employer and that the claimant was discharged for just cause....

App. p. 5. Conklin appealed, and the Board affirmed the ALJ’s decision and incorporated her order by reference. Conklin now appeals.

Analysis

When reviewing a decision of the Board, our analysis is threefold: (1) we review findings of basic fact for substantial evidence; (2) we review findings of mixed questions of law and fact — ultimate facts— for reasonableness; and (3) we review legal propositions for correctness. Recker v. Review Bd. of the Ind. Dep’t of Workforce Dev., 958 N.E.2d 1136, 1139 (Ind.2011). “Ultimate facts are facts that ‘involve an inference or deduction based on the findings of basic fact.’ ” Id. (quoting McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314, 1317 (Ind.1998)). We will give greater deference to the Board’s conclusions when such facts are within the Board’s special competence, broadening the scope of what can be considered reasonable. Id. This case turns upon resolution of whether Carter discharged Conklin from his employment for “just cause,” thus disqualifying him from eligibility for unemployment benefits; this presents a question of ultimate fact that we review for reasonableness. See id.

Indiana Code Section 22-4-15-l(d) lists nine non-exclusive factors constituting “discharge for just cause” that will result in denial of unemployment benefits to a discharged employee, including “any breach of duty in connection with work which is reasonably owed an employer by an employee.” Ind.Code § 22-4-15-1(d)(9). This .is the sole basis argued by the Board in support of the denial of benefits to Conklin. An employer seeking to deny unemployment benefits to a fired employee bears the burden of establishing a prima facie case that the discharge was for “just cause.” P.K.E. v. Review Bd. of Indiana Dep’t of Workforce Dev., 942 N.E.2d 125, 130 (Ind.Ct.App.2011), trans. denied. Once this burden is met, the employee bears the burden of producing evidence to rebut the employer’s evidence. Id.

In Recker, our supreme court quoted with approval this court’s decision in Hehr v. Review Bd. of Ind. Employment Sec. Div., 534 N.E.2d 1122 (Ind.Ct.App.1989), wherein we noted that the “breach of duty” justification for a “just cause” discharge “ ‘is an amorphous one, without clearly ascertainable limits or definition, and with few rules governing its utilization.’ ” Recker, 958 N.E.2d at 1140 (quoting Hehr, 534 N.E.2d at 1126). Additionally,

In considering whether an employer may utilize this provision as a basis for justifying its action, the Board should consider whether the conduct which is said to have been a breach of a duty reasonably owed to the employer is of such a nature that a reasonable employee of the employer would understand that the conduct in question was a violation of a duty owed the employer and that he would be subject to discharge for engaging in the activity or behavior.

Hehr, 534 N.E.2d at 1126.

Recker undertook a thorough examination of the type of evidence necessary to support an employer’s claim than an employee was terminated for “just cause” for “breach of duty” owed to the employer. It first stated that pursuant to Giovanoni v. Review Bd. of Ind. Dep’t of Workforce Dev., 927 N.E.2d 906, 908-12 (Ind.2010), there must be two separate inquiries on this issue: first, whether the employee in fact breached a duty owed to the employer, and second, whether the employee was “at fault” for the breach. Recker, 958 N.E.2d at 1140.

Giovanoni, in turn, addressed a claim that an employee had been discharged for “just cause” for violating the employer’s attendance policy. In deciding the case, the court relied upon the stated legislative purpose behind the Indiana Unemployment Compensation Act, which is “ ‘provide payment of benefits to persons unemployed through no fault of their own....’” Giovanoni, 927 N.E.2d at 910 (quoting I.C. § 22-4-1-1) (emphasis added in Giovanoni ). Building upon this statutory language, our supreme court held:

In light of the Legislature’s pronouncement, “just cause” determinations, as they pertain to an employee’s discharge, must be consistent with the legislative purpose underlying the Act — to provide financial assistance to an individual who had worked, was able and willing to work, but through no fault of his or her own, is temporarily without employment. Disqualification is inappropriate if the totality of the circumstances establishes that a claimant is unemployed through no fault of his own. At a minimum, the claimant must have performed some volitional act or have exercised some control over the circumstances resulting in the discharge from employment.

Id.

The Recker opinion noted that the stated reason for discharge in Giovanoni — violation of an attendance policy — statutorily required consideration of the employee’s intent in violating the policy, while a discharge for “breach of duty” does not require any such consideration, at least as far as the language of the statute is concerned. Recker, 958 N.E.2d at 1142. Similarly, Recl-er seems to have disapproved of opinions from this court to the extent they suggested that a “breach of duty” must have been “willful” in order for a discharge to have been made with “just cause,” because of the lack of any statutory language requiring examination of whether an employee’s “breach of duty” was intentional or willful. Id. at 1140 n. 6. It also stated that Giovanoni “did not address whether the General Assembly intended to provide unemployment benefits to persons who imintentionally breach a duty to their employer.” Id. at 1142.

Regardless, ihe Recker court then proceeded to address whether the particular employee in that case had either acted volitionally or liad exercised some control over the circumstances that led to her discharge. Id. On that point, the court concluded that the employee’s failure on three occasions to pass a driving test essential to her employment as a delivery truck driver were matters over which the employee had “some control.” Id. Observing that the employee was not claiming that her failure to pass the test was the result of a “demonstrable impediment,” the court held that it was reasonable for the Board to find that the employee had been discharged for “just cause” for breaching a duty owed to her employer. Id.

In sum, despite language in Recker suggesting thai; a “just cause” discharge determination for “breach of duty” statutorily does not require any consideration of the willfulness of the employee’s conduct, the court still deemed it necessary to address whether an employee’s conduct was volitional and/or whether he or she exercised “some control” over the circumstances leading to the discharge. See id. Here, the Board wisely makes no attempt on appeal to defend the ALJ’s finding that Conklin’s involuntary act of passing out while driving was “willful and wanton.... ” App. p. 5. Still, it argues that Conklin’s conduct “disregarded Carter Express’s interest,” and that alone was sufficient to support denial of unemployment benefits to Conklin. Appellee’s Br. p. 9.

We disagree. We have no doubt that Conklin’s passing out while driving and damaging his truck were acts that breached his duty to Carter. As Giovanoni and Recker both make clear, however, there must also be evidence that this breach was Conklin’s fault. In other words, the accident must have been the result of a “volitional act” or circumstances over which Conklin exercised “some control.” See Recker, 958 N.E.2d at 1142. We simply cannot perceive how an unexplained, involuntary act of passing out while driving can be construed as a “volitional” act or a circumstance over which Conklin exercised “some control.” To conclude otherwise would simply stretch the concepts of “volitional” or “control” beyond their breaking points. Thus, although Carter submitted sufficient evidence of a breach of duty on Conklin’s part in wrecking his truck, it did not sustain its burden of proving that the breach was his fault, in light of the undisputed finding that he involuntarily passed out while driving. The Board’s determination that Conklin was discharged for “just cause” was unreasonable.

The Board argues in part, “Requiring Carter Express to continue employing and allowing individuals to drive trucks who suffer from inexplicable blackouts would expose it to an unacceptable risk.” Appel-lee’s Br. pp. 8-9. This argument is specious and blurs the line between the employment-at-will doctrine and the statutes and caselaw governing unemployment compensation. Carter certainly was not required to continue to employ Conklin. The fear of having to pay unemployment benefits is not sufficient reason to force Carter to make such a decision. A claim for unemployment benefits cannot be equated to or confused with a wrongful termination lawsuit.

However, Conklin is unable to safely perform his previous job through no fault of his own. The record contains no evidence to suggest otherwise. Thus, Conk-lin did not “breach a duty” to Carter in the statutory sense and he is eligible for unemployment benefits.

Conclusion

The Board’s determination that Conklin was discharged for “just cause” was unreasonable because of the lack of evidence that the accident was his fault. We reverse the denial of unemployment benefits to Conklin.

Reversed.

FRIEDLANDER, J., and MAY, J., concur.

      . Neither Conklin nor Carter has sought to ' maintain their confidentiality in these proceedings. Thus, we use their full names in this opinion, pursuant to Recker v. Review Bd. of the Ind. Dep’t of Workforce Dev., 958 N.E.2d 1136, 1138 n. 4 (Ind.2011).

      . Conklin, representing himself pro se, has compiled an appendix that includes a medical report from the hospital where he was taken after the accident and that seems to indicate his black out might have been caused by "medication errors” related to blood pressure medication he was taking. App. p. 13. It does not appear this document was introduced into evidence before the Board.

      . See I.C. § .12 — 4— 15 — 1 (d)(2) (requiring a "knowing” violation of an employer rule, including an attendance rule, to constitute a "discharge for just cause”), and I.C. § 22-4-15 — 1(d)(3) (requiring that an employee show "good cause” to exclude absences or tardiness, in absence of employer rule governing attendance, from constituting a “discharge for just cause”).

      . We emphasize that the ALJ did find that Conklin passed out while driving without explanation. The Board does not dispute the accuracy of this finding.