author: RILEY, Judge.

text:
    Duane TURNER, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 18A05-1112-PC-697.
    Court of Appeals of Indiana.
    Sept. 19, 2012.

      Stephen T. Owens, Public Defender of Indiana, Kathleen Cleary, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Petitioner, Duane Turner (Turner), appeals the post-conviction court’s denial of his petition for post-conviction relief.

Affirmed in part, reversed in part, and remanded with instructions.

ISSUES

Turner raises two issues on appeal, which we restate as the following:

(1) Whether the post-conviction court erred in determining that Turner’s life sentence without parole is constitutional; and
(2) Whether Turner received effective assistance of counsel.

FACTS AND PROCEDURAL HISTORY

Our supreme court reviewed the factual background in Turner’s direct appeal as follows:

On the evening of September 24, 1994, [Turner] and a group of friends drank and parried at a graveyard near Ball State University’s campus. One friend, Larry Newton, decided that he wanted to go to Ball State and rob someone and asked [Turner] if [Turner] would join him. [Turner] agreed to go with him, and another friend, Chad Wright, agreed to take them in his car. Newton stated, “I’m hyped and I feel like killing somebody.”
Once on campus the three drove around until around 2:00 a.m. when they spotted Chris Coyle. Coyle, a Ball State student, was returning from walking home a female friend. They picked Coyle up and Newton demanded money from him. Coyle did not have any money and so stated. Newton forced Coyle out of the car and shot him in the back of the head. He then handed the gun to [Turner], who shot Coyle’s body, now lying on the ground, in the shoulder. Coyle died from the first shot.

Turner v. State, 682 N.E.2d 491, 493-94 (Ind.1997).

On October 19, 1994, the State filed an Information charging Turner with Count I, murder, a felony, Ind.Code § 35-42-1-1(1); Count II, criminal confinement, a Class B felony, I.C. § 35-42-3-3(1); Count III, conspiracy to commit robbery resulting in serious bodily injury, a Class A felony, I.C. §§ 35-42-5-1(1), -41-5-2; and Count IV, attempted robbery resulting in serious bodily injury, a Class A felony, I.C. §§ 35-42-5-1(1), -41-5-1. That same day, the State filed its Allegation of Capital Offense and Request for Life Sentence, in which it requested a sentence of life imprisonment without parole based upon the existence of two statutory aggravating circumstances: that Turner murdered Coyle by intentionally killing him while committing or attempting to commit (1) a robbery and (2) criminal gang activity. See I.C. § 35-50—2—9(b) (1) (G)-(I).

On May 8 through 12, 1995, a jury trial was held. On May 11, 1995, the jury found Turner guilty on all Counts and the trial court entered a judgment of conviction on Counts I and II. On May 12, 1995, in response to a double jeopardy issue raised by Turner’s counsel, the trial court declined to find Turner guilty on Count III but entered a judgment of conviction on Count IV.

That same day, the jury convened to consider Turner’s eligibility for life imprisonment without parole. The State presented evidence regarding Turner’s affiliation with a criminal gang, eliciting testimony from police officers, persons connected with or members of Turner’s criminal gang, and Turner’s former probation officer. Turner produced mitigating evidence through testimony of his family members and the maintenance man of his apartment complex. Turner’s family members testified about his troubled childhood and upbringing stemming from an absent father and a drug-addicted and often incarcerated mother. Following deliberation, the jury was unable to return a recommendation for life imprisonment without parole. The trial court dismissed the jury.

On June 8, 1995, the trial court held a sentencing hearing. While Turner presented no evidence, the State presented testimony from a family friend of Coyle’s and Coyle’s parents. The State also introduced evidence regarding Turner’s disruptive behavior while incarcerated through testimony from a corrections officer, Turner’s probation officer, and the jailhouse psychologist, Dr. Gary Meunier (Dr. Meunier). Dr. Meunier concluded that Turner was a significantly disruptive inmate while at the Delaware County Jail, a psychopath, and a danger to society. However, Dr. Meunier qualified that his observations were based on general “everyday observations and everyday behaviors.” (Transcript p. 2144). Admittedly, he had not examined Turner apart from an initial interview and the basis for his testimony consisted of Turner’s disciplinary reports. On cross-examination, Dr. Meunier conceded that his opinion of Turner was possibly erroneous because he had not performed a psychological evaluation on Turner. Dr. Meunier also admitted that psychopathy was not a formal diagnosis recognized by the American Psychiatric Association’s then current version of the Diagnostic and Statistical Manual (DSM). Nevertheless, Dr. Meunier explained that a narcissistic personality disorder, which is an element of psychopathy, was in the DSM.

Proceeding to sentencing, the trial court first sentenced Turner to the Department of Correction for twenty years on the criminal confinement conviction and forty-five years on the attempted robbery conviction, with sentences to run concurrently. The trial court reviewed eight mitigating factors and concluded that a majority were not applicable to Turner. However, the trial court noted that Turner had not been previously convicted of felony or a crime against a person. Further, the trial court noted Turner’s assistance toward his siblings and grandparent. Turning to aggravating factors, the trial court found that Turner had three prior juvenile adjudications and ten pending adult charges, that prior attempts to rehabilitate Turner had been unsuccessful, that Coyle’s family had requested an aggravated sentence, that the facts of the crimes were heinous, and that there was a significant risk that Turner would commit further crimes.

Turning to Turner’s murder conviction, the trial court found that the State had proved beyond a reasonable doubt that Turner had intentionally killed Coyle while attempting to commit robbery and had also done so while committing criminal gang activity. Next, the trial court considered the statutory mitigating circumstances listed in I.C. § 35-50-2-9(c). In particular, the trial court concluded that there was no significant evidence that Turner was under extreme mental or emotional distress when the murder was committed despite evidence of Turner’s troubled childhood. It also did not “see any substantial evidence of any mental defect” despite evidence from Dr. Meunier. (Tr. p. 2196). In sum, the trial court concluded that four additional mitigating circumstances existed: Turner’s age of 19 at the time of the murder, his assistance to family members, his lack of a prior felony or crime against the person, and his troubled childhood. However, the trial court concluded that “their weight pales and is, at best, slight” when weighed and balanced against the statutory aggravating circumstances. (Tr. p. 2203). Determining that Turner committed a senseless act, the trial court found the risk that Turner would commit further crimes too great and imposed a life sentence without parole.

Turner appealed his convictions to our supreme court. He raised three issues on direct appeal: (1) the admission of his confession to police; (2) the admission of Ind. Evidence Rule 404(b) evidence; and (3) a fundamental error claim premised on the use of a disapproved jury instruction. The supreme court determined that evidence of probative value on the voluntariness of Turner’s confession supported its admission into evidence, that the trial court did not abuse its discretion by admitting Rule 404(b) evidence, and that no fundamental error regarding the jury instruction existed.

On September 8, 2000, Turner filed a petition for post-conviction relief alleging ineffective assistance of counsel. On May 3, 2010, he filed an amended petition alleging that his sentence of life imprisonment without parole was unconstitutional under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article One, Sections Twelve, Thirteen, Sixteen and Twenty-three of the Indiana Constitution. That same day, Turner filed a motion for summary judgment under Ind. Post-Conviction Rule 1 § 4(g) regarding the constitutionality of his life sentence without parole. On August 2, 2010, the State filed its summary disposition motion and motion to strike portions of Turner’s designated evidence. On August 24, 2010, the post-conviction court held a hearing on the parties’ motions. On October 8, 2010, the post-conviction court issued findings of fact and conclusions thereon granting the State’s motion for summary disposition and denying Turner’s motion for summary judgment.

On September 29, 2011, the post-conviction court held an evidentiary hearing on Turner’s amended petition. Turner presented testimony from two witnesses, his former attorney, who served as both Turner’s trial and appellate counsel, and Dr. Bart Ferraro (Dr. Ferraro), an expert witness. On December 2, 2011, the post-conviction court issued its findings of fact and conclusions of law denying Turner relief.

Turner now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

On appeal, Turner challenges two rulings of the post-conviction court. First, Turner claims that the post-conviction court erred in denying his motion for summary judgment and granting the State’s motion for summary disposition on his claim that his life sentence without parole violates the United • States Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Second, Turner argues that the post-conviction court erred in denying his amended petition for post-conviction relief.

I. Standard of Review

Post-conviction proceedings do not afford the petitioner an opportunity for a super appeal, but rather, provide the opportunity to raise issues that were unknown or unavailable at the time of the original trial or the direct appeal. Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind.2000), cert. denied, 534 U.S. 1164, 122 S.Ct. 1178, 152 L.Ed.2d 120 (2002). The proceedings do not substitute for a direct appeal and provide only a narrow remedy for subsequent collateral challenges to convictions. Id. A petitioner must establish his claims to post-conviction relief by a preponderance of the evidence. P-C.R. 1, § 5.

Appeal from a denial of post-conviction relief is equivalent to an appeal from a negative judgment. Henley v. State, 881 N.E.2d 639, 643 (Ind.2008). We will therefore not reverse unless the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. Id. at 643-44. Where the post-conviction court has entered findings of fact and conclusions of law, we accept the findings of fact unless clearly erroneous, but accord no deference for conclusions of law. Id. at 644. We will disturb a post-conviction court’s decision as being contrary to law only where the evidence is without conflict and leads to but one conclusion, and the postconviction court has reached the opposite conclusion. Wright v. State, 881 N.E.2d 1018, 1022 (Ind.Ct.App.2008), trans. denied. The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Lindsey v. State, 888 N.E.2d 819, 322 (Ind.Ct.App.2008), trans. denied.

II. Summary Disposition

Turner contends that the post-conviction court erroneously denied his motion for summary judgment but granted the State’s motion for summary disposition. Specifically, Turner contends that under the United States Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), his life sentence without parole is unconstitutional because the jury did not return a unanimous recommendation of life imprisonment without parole.

We review the grant of a motion for summary disposition in post-conviction proceedings on appeal in the same way as a civil motion for summary judgment. Norris v. State, 896 N.E.2d 1149, 1151 (Ind.2008). Summary disposition, like summary judgment, is a matter for appellate de novo review when the determinative issue is a matter of law, not fact. Id. It should be granted only if “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” P-C.R. 1 § 4(g).

Turner was convicted of murder, criminal confinement, and attempted robbery in May of 1995. The State sought a sentence of life imprisonment without parole, alleging two statutory aggravating circumstances under I.C. § 35-50—2—9(b)(1): that Turner murdered Coyle by committed an intentional killing while committing or attempting to commit attempted robbery or criminal gang activity. However, the jury failed to reach a recommendation on Turner’s eligibility for life imprisonment and the trial court dismissed the jury. Consistent with I.C. § 35-50-2-9(f), the trial court dismissed the jury and convened a sentencing hearing on all convictions. The trial court found the required aggravating circumstances proved beyond a reasonable doubt, weighed the aggravators against the mitigating factors, and sentenced Turner to life imprisonment without parole.

In Apprendi, the United States Supreme Court held that the Sixth Amendment to the United States Constitution requires that the jury find all matters necessary to enhance the punishment beyond a reasonable doubt. Wilkes v. State, 917 N.E.2d 675, 687 (Ind.2009), cert. denied, - U.S. -, 131 S.Ct. 414, 178 L.Ed.2d 321 (2010). The United States Supreme Court extended Apprendi to capital cases in Ring. See Ring, 536 U.S. at 609, 122 S.Ct. 2428. As a result, a defendant subject to Indiana’s statute on life without parole is entitled to a jury’s determination that the State has proved beyond a reasonable doubt certain statutory ag-gravators rendering the defendant eligible for life without parole. See Kiplinger v. State, 922 N.E.2d 1261, 1265-266 (Ind.2010).

Nevertheless, relying upon Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), the State argues here that Turner’s alleged Ring violation is “procedurally defaulted” and cannot be collaterally reviewed. (Appellee’s Br. p. 21). In Schriro, the United States Supreme Court determined that, as a matter of federal law, Ring was not subject to retroactive application to collateral review. The Supreme Court held that by expressly allocating the fact-finding of statutory ag-gravators to the jury, “Ring announced a procedural rule which did not apply retroactively to cases final on direct review.” Id. at 358, 124 S.Ct. 2519. On the other hand, Turner relies upon our supreme court’s decision in Saylor v. State, 808 N.E.2d 646 (Ind.2004) to urge us that, as a matter of state law, Ring was made retroactive to post-conviction proceedings and should therefore be applied to invalidate his life sentence imposed without a unanimous jury recommendation.

In Saylor, the defendant “was sentenced to death despite a unanimous jury recommendation to the contrary.” Id. at 647. Saylor’s sentence was affirmed by our supreme court on direct appeal and on post-conviction relief. Id. Following the denial of Saylor’s petition for post-conviction relief, Apprendi and Ring were decided and the General Assembly amended I.C. § 35-50-2-9 to remove the trial court’s ability to impose a death sentence without the jury’s express recommendation. See id. at 648. On a motion for rehearing, both parties discussed whether Ring should be applied retroactively to invalidate Saylor’s death sentence. Id. The supreme court observed that a “majority of courts to have considered the issue have held that Ring is an application of the procedural rule announced in Apprendi, and as such does not apply retroactively to cases on collateral review.” Id. at 649. The supreme court also noted that Schriro had yet to be decided by the United States Supreme Court. Id. Rather than determining whether Ring would be applied retroactively under Indiana law, our supreme court instead elected not to address Say-lor’s claim, declaring as follows:

At this writing we have no definitive decision on the retroactive application of Ring [...]. For the reasons given below we do not need to await resolution of this federal constitutional issue, and also do not address whether, even if there is no federal requirement that Ring be applied retroactively, Indiana may nevertheless choose to apply it to pre-Ring convictions as a matter of state law.

Id. (emphasis added).

Clearly, the supreme court did not address whether Ring would be retroactively applied as a matter of Indiana law. See id. Instead, it found that under Ind. Appellate Rule 7(B), it was inappropriate to carry out a death sentence because Saylor “could not be sentenced to death without a jury recommendation that death be imposed.” Id. at 650. Thus, Turner’s contention that the supreme court retroactively applied Ring in Saylor fails.

Instead, we conclude that the supreme court’s decision in Holmes v. State, 820 N.E.2d 136 (Ind.2005), applies. Holmes had been sentenced to death by the trial court without a unanimous jury recommendation. Id. at 137. He sought permission to file a successive petition for post-conviction relief based on the supreme court’s decision in Saylor and certain revisions made to I.C. § 35-50-2-9 in 2002, prompted by the Apprendi and Ring decisions. Id. In determining that Saylor did not entitle Holmes to relief, the supreme court noted that although Holmes had been sentenced to death by the trial court without a unanimous jury recommendation, the trial court was constitutionally permitted to do so under Ring and Apprendi. See id. at 138. Further, while I.C. § 35-50-2-9(d), as amended, required the use of special verdicts to confirm that the jury found the existence of aggravators beyond a reasonable doubt, the supreme court held that the lack of such special verdicts did not mean that the jury had not determined the existence of such factors. Id. at 139. Instead, the verdict returned during the guilt phase sufficed to establish that “the jury found, beyond a reasonable doubt, aggravating circumstances rendering Holmes eligible for the death penalty,” including, specifically, I.C. § 35-50-2-9(b)(1) (intentional killing during the commission of an enumerated felony). Id. Consequently, Apprendi’s requirement that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt” was met by the nature of Holmes’ convictions. Id.

Here, the jury unanimously found Turner guilty of murder and attempted robbery resulting in serious bodily injury. During the penalty phase, the jury was deadlocked on recommending life imprisonment without parole. Although its verdict would not support a finding that Turner intentionally killed Coyle while committing or attempting to commit criminal gang activity, in finding Turner guilty of both Coyle’s murder and an attempted robbery resulting in serious injury, the jury necessarily found the existence of one statutory aggravating circumstance alleged by the State, i.e., that Turner intentionally killed Coyle while committing or attempting to commit a robbery.

Turner attempts to distinguish Holmes by arguing that since the jury was instructed that it could find Turner guilty based on a theory of accomplice liability, it did not necessarily find beyond a reasonable doubt that he intentionally murdered Coyle during an attempted robbery. I.C. § 35-50—2—9(b)(1) requires a finding beyond a reasonable doubt that the defendant was a major participant in the killing and the killing was intentional. Ajabu v. State, 693 N.E.2d 921, 939 (Ind.1998). This culpability requirement may rest on the jury’s conviction for murder based on accomplice liability. See Pittman v. State, 885 N.E.2d 1246, 1257 (Ind.2008).

Here, the jury was instructed that it could find Turner guilty based on accomplice liability. After providing the statutory definition of murder — a knowing or intentional killing of another human being— the jury instruction specifically required that the jury find that Turner intention ally killed Coyle to convict him of murder. Because I.C. § 35 — 50—2—9(b)(1) requires, for accomplice liability, the defendant’s major participation in an intentional killing, the jury’s verdict here necessarily suffices under Holmes as evidence that the jury had determined all facts necessary to enhance his sentence to life imprisonment without parole, regardless of whether their conclusion was based on accomplice liability. Consequently, the post-conviction court did not err by denying Turner’s constitutional challenge to his sentence of life imprisonment without parole.

III. Ineffective Assistance of Counsel

We next consider Turner’s claims of ineffective assistance of trial and appellate counsel. Turner’s attorney acted as both trial and appellate counsel. Turner’s Petition raised seven grounds for relief based on his attorney’s assistance as trial counsel and nine grounds for relief based on his assistance as appellate counsel. The post-conviction court found that Turner had failed to establish relief by a preponderance of the evidence on all claims.

Ineffective assistance of counsel claims are subject to the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Johnson v. State, 832 N.E.2d 985, 996 (Ind.Ct.App.2005), trans. denied. Counsel’s performance must fall below an objective standard of reasonableness in light of professional norms, and must prejudice the defendant. Id. at 996-97. Prejudice is measured by inquiring whether there is a reasonable probability that the result would have been different but for counsel’s performance. See Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.2006). A reasonable probability arises when there is a “probability sufficient to undermine confidence in the outcome.” Id. An ineffective assistance of counsel claim fails if either prong of the Strickland test is not satisfied. Henley, 881 N.E.2d at 645.

We presume that counsel rendered adequate assistance and give considerable discretion to counsel’s choice of strategy and tactics. Smith v. State, 765 N.E.2d 578, 585 (Ind.2002). “Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.” Id. “If we can resolve a claim of ineffective assistance of counsel based on lack of prejudice, we need not address the adequacy of counsel’s performance.” Fisher v. State, 878 N.E.2d at 457, 463-64 (Ind.Ct.App.2007), trans. denied.

A. Trial Counsel

On appeal, Turner contends that his trial counsel (1) failed to adequately conduct a mitigation investigation by failing to procure a psychologist expert and (2) failed to contest the admission of victim impact testimony.

1. Expert Testimony

Turner first argues that his trial counsel was ineffective by failing to investigate and present mitigation evidence during the penalty phase and sentencing phases of his trial. Specifically, he contends that counsel’s investigation and presentation of mitigating evidence was deficient because he did not seek funds to retain an expert psychologist to (1) present mitigating evidence at the penalty and sentencing phase on Turner’s functioning and personality structure, and (2) assist with rebutting testimony from a jailhouse psychologist.

a. Additional Mitigating Evidence

Regarding the first contention, Turner claims that the failure to retain an expert was not a tactical choice, but solely based on trial counsel’s ignorance of the law. Turner argues that counsel could have made an ex parte request to obtain funds and after receiving the expert’s report made the decision whether to present expert testimony at trial or retain such expert as a consultant. He maintains that these omissions prejudiced him because the mitigating evidence that was ultimately presented regarding Turner’s deprivation and neglect as a child was insufficient since “testimony regarding the impact this had on Turner’s functioning was absent” and the jury deadlocked on the penalty as a result. (Appellant’s Br. p. 19).

At the post-conviction hearing, Turner presented testimony from his attorney that he had reservations about Turner’s perceived lack of remorse and thus did not retain an expert for fear that the expert’s report would confirm such lack of remorse and would be discoverable. He explained that he was not aware of ex parte filings for experts and felt that retaining an expert would have lessened his concerns over Turner’s perceived lack of remorse. We note that claims of ineffective assistance of counsel based on a failure to investigate requires a showing of what additional information may have been garnered from further consultation or investigation and how that additional information would have aided in the preparation of the case. Coleman v. State, 694 N.E.2d 269, 274 (Ind.1998). The post-conviction court found that even if a psychological evaluation such as Dr. Ferraro’s had been presented during the penalty and sentencing phases of the trial, “it is highly unlikely that it would have been found to be mitigating in any significant way.” (Appellant’s App. p. 753).

Here, Turner has not met his burden of showing that a psychological evaluation like the one performed by Dr. Ferraro would have resulted in a different result during the penalty and sentencing phases of his trial if it had been presented. Turner apparently argues that his psychological state as revealed by Dr. Ferraro’s evaluation would have constituted compelling evidence in mitigation. We cannot agree. According to Dr. Ferraro, Turner suffered from an anxiety or mixed personality disorder resulting from a difficult childhood. Turner was prone to impulsive actions and had a proclivity to lash out in anger despite an awareness of its wrongfulness. Dr. Ferraro’s evaluation also suggested that Turner possessed an average I.Q. and an awareness of the world around him. These traits, when weighed against the significant aggravators of the intentional killing during the commission of robbery, led the post-conviction court to conclude that “the only appropriate penalty for [Turner] is a sentence of life imprisonment without parole.” (Appellant’s App. p. 754).

At best, Dr. Ferraro’s opinion provided evidence duplicative of the mitigating evidence offered by Turner’s trial counsel during the penalty phase. Under these circumstances, it is doubtful that Turner would have benefited from a psychological evaluation or if trial counsel elected to present evidence based on such evaluation during the penalty or sentencing phases. Thus, to the extent Turner claims additional evidence would have helped his cause during the penalty phase, we are unable to agree.

b. Rebuttal Evidence

In a related argument, Turner asserts that his counsel’s performance was ineffective because counsel failed to rebut Dr. Meunier’s testimony by cross-examining him as to Dr. Meunier’s admitted failure to perform an evaluation of Turner prior to testifying during the sentencing phase of the trial.

While it is true that his trial counsel admitted his ignorance of American Psychiatric Association forensic guidelines that preclude a doctor from testifying without an evaluation; however, Turner has failed to demonstrate how this prejudiced him. Dr. Meunier viewed Turner as a psychopath based on his review of reports on Turner’s jail house disruptions but admitted that he had not evaluated Turner. Under cross-examination, Dr. Meunier admitted that psychopathy was not a formal diagnosis appearing in the then current version of the DSM. Thus, Turner’s counsel evoked the same result during cross-examination as Turner decrees his counsel was ineffective for not obtaining.

Furthermore, we are mindful that Dr. Meunier’s testimony was given during the sentencing phase conducted by the trial court. In its sentencing statement, the trial court viewed Dr. Meunier’s testimony in light of a statutory mitigating circumstance and gave the testimony little weight. Consequently, Turner has not made a sufficient showing to defeat this presumption. Accordingly, we do not agree that Turner has established that his counsel was ineffective in this regard.

2. Victim Impact Evidence

Turner next argues that trial counsel was ineffective for failing to object to victim impact evidence relied upon by the trial court in imposing a life sentence. Turner’s argument relies upon the trial court’s mention of harm to the community resulting from Coyle’s murder in its sentencing statement and order. Toward the end of its lengthy sentencing statement, the trial court stated that Turner’s “crime is aggravated even more by the impact it had on the whole community,” that “students really shouldn’t have to live in fear while they are attempting to further their education,” and that Turner’s crime “robbed many of our young people of their innocence and their trust.” (Tr. p. 2201-02).

During the sentencing phase, the State presented testimony from both of Coyle’s parents and a member of the community. In concluding that Turner failed to demonstrate prejudice, the post-conviction court first relied upon the presumption that the trial court renders its decision solely on the basis of relevant and probative evidence in a sentencing hearing. See Veal v. State, 784 N.E.2d 490, 498 (Ind.2008). It determined that even if trial counsel had objected, it would not have resulted in a different outcome. We agree.

Here, Turner was sentenced to life imprisonment along with two other crimes. Victim impact testimony was presented solely to the trial court rather than to a jury. The supreme court has found that victim impact testimony is inadmissible in the sentencing phase of a trial if that testimony is irrelevant to the alleged aggravating factors. Bivins v. State, 642 N.E.2d 928, 956-57 (Ind.1994), cert. denied, 516 U.S. 1077, 116 S.Ct. 783, 133 L.Ed.2d 734 (1996). The trial court’s mention of the impact Turner’s crimes had on the community was brief and the State did not emphasize it during its sentencing argument before the trial court. The trial court’s sentencing statement contained substantial evidence in support of the statutory aggravators. Consequently, we cannot presume that the trial court was unable to separate admissible evidence for Turner’s non-capital crimes from inadmissible evidence for the sentence of life imprisonment. Accordingly, Turner has not shown that his counsel was ineffective based on the limited victim impact testimony presented to the trial court.

B. Appellate Counsel

Turner contends that his appellate counsel rendered ineffective assistance. In particular, Turner claims that he (1) failed to challenge the sufficiency of the evidence on statutory aggravating circumstances supporting his life sentence; (2) failed to argue that the trial court impermissibly relied on victim impact evidence; (3) failed to raise a double jeopardy claim; and (4) failed to challenge his life sentence.

The standard of review for claims of ineffective assistance of appellate counsel is the same as for trial counsel’s ineffective assistance: the petitioner must show deficient performance and resulting prejudice. Rhoiney v. State, 940 N.E.2d 841, 845 (Ind.Ct.App.2010), trans. denied. Indiana law recognizes three basic categories for claims of appellate counsel’s ineffectiveness: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well. Id. By asserting that his appellate counsel failed to raise issues on appeal, Turner’s claims fall into the second category. We use a two-part test to evaluate such claims: (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. Id. In other words, to prevail on a claim of ineffective assistance of appellate counsel, the information available in the trial record or otherwise known to appellate counsel shows that appellate counsel failed to present a significant and obvious issue and that this failure cannot be explained by any reasonable strategy. See id. at 845-46.

1. Sufficiency of the Evidence

Turner first challenges his counsel’s election not to contest the sufficiency of the evidence on the two statutory aggrava-tors alleged by the State: that Turner committed the murder by intentionally killing [Coyle] while committing or attempting to commit robbery and criminal gang activity. Specifically, Turner argues that there was insufficient evidence of his specific intent to kill Coyle given that the jury could have found Turner guilty as an accomplice and was instructed that the use of a deadly weapon may be considered as evidence of intent to kill. Turner contends that because the evidence at trial showed that while Turner shot Coyle in the back, Newton actually fired the fatal shot first; therefore, the jury must have inferred Turner’s specific intent to kill. Thus, Turner asserts that proof of the statutory aggravator impermissibly resulted from an inference upon an inference. Consequently, Turner argues that his counsel was ineffective for failing to challenge the sufficiency of evidence demonstrating his intent to kill Coyle.

The post-conviction court concluded that Turner had not shown this issue to be obvious, significant, or clearly stronger than the other issues raised by his attorney on appeal. Further, it concluded that no prejudice resulted from appellate counsel’s decision not to raise the sufficiency issue in light of the substantial evidence that Turner intentionally killed Coyle. We agree with the post-conviction court.

I.C. § 35 — 50—2—9(b)(1) permits a life sentence without parole only if the defendant has committed a murder by “intentionally” killing a victim while committing another crime. Pittman v. State, 885 N.E.2d 1246, 1257 (Ind.2008). In Ajabu, our supreme court reviewed the findings required to support aggravating circumstances where the defendant was convicted under an accomplice theory. Ajabu, 693 N.E.2d at 936-37. First, a finding of the defendant’s major participation in the killing is required. Id. Thus, “[a] person who substantially participates but does not deliver the fatal blow may still fall within the statute’s scope” “even if someone else delivers the fatal blow.” Id. at 937. Second, there must be a finding of an intentional killing, ie., the defendant’s mental culpability must equate with “one who has engaged in conduct with a conscious objective to do so.” Id. at 939.

Applying these standards, we find that the State presented sufficient evidence that Turner intentionally killed Coyle, whether as a principal or an accomplice. During the penalty phase, the State’s only evidence that Turner intentionally killed Coyle while committing attempted robbery was the jury’s guilty verdicts. The State presented no further evidence and following the jury’s deadlock the trial court concluded that the State had proved the statutory aggravator beyond a reasonable doubt, albeit finding an intentional killing based upon Turner’s shooting of an unarmed Coyle from behind. The evidence showed that Newton, Turner and Wright confined Coyle in a vehicle, Newton demanded money, and Turner and Newton led Coyle down an alley where he was executed with Newton firing the first shot and Turner firing the second shot. These facts are sufficient to allow a jury to find that Turner intentionally killed Coyle either alone or in concert with Newton. Consequently, we agree with the post-conviction court that Turner’s appellate counsel was not ineffective for declining to raise this issue on Turner’s direct appeal.

Next, Turner contends that there was insufficient evidence that he intentionally killed Coyle while committing criminal gang activity and therefore appellate counsel was ineffective for not raising this issue on appeal. The post-conviction court did not specifically address whether the evidence supported this aggravating circumstance. However, I.C. § 35-50-2-9(1) requires that only one of the section (b) aggravating factors needs to be proven beyond a reasonable doubt and outweigh any existing mitigating factors before a sentence of life without parole. We therefore decline to address Turner’s contention.

2. Victim Impact Evidence

Turner argues that his appellate counsel should have raised the issue of the trial court’s alleged reliance on victim impact evidence when imposing the life sentence. However, as noted previously, this claim is without merit. Consequently, we do not find appellate counsel to have been ineffective as appellate counsel on this ground.

3. Double Jeopardy

Next, Turner contends that the post-conviction court erred in determining that appellate counsel was not ineffective for failing to appeal his conviction for attempted robbery as a Class A felony on double jeopardy grounds. Turner points to his counsel’s admission that he would have raised a double jeopardy violation on appeal even if only to contest Turner’s sentencing on the non-capital charges. The State concedes that counsel could have raised a double jeopardy claim on direct appeal and prevailed in reducing Turner’s conviction for Class A felony attempted robbery to that of a class B felony for the same crime. However, the State contends that Turner suffered no prejudice because “the practical effect of the length of his sentences for the non-capital convictions is minimal” given his life sentence. (Appel-lee’s Br. p. 44).

Here, the post-conviction court concluded that Turner did not demonstrate prejudice and thus did not meet his burden to show that this issue was obvious and significant, or even stronger than those raised by his counsel on appeal. It relied upon Indiana precedent recognizing that the use of facts to prove eligibility for capital sentencing differs from those used to prove the elements of a crime. See Overstreet v. State, 783 N.E.2d 1140, 1165 (Ind.2003), cert. denied, 540 U.S. 1150, 124 S.Ct. 1145, 157 L.Ed.2d 1044 (2004). However, the post-conviction court did not address whether Turner’s sentence for Class A felony robbery constituted double jeopardy.

We find the State’s argument untenable. Turner’s robbery conviction was a Class A felony because it resulted in serious bodily injury. However, under double jeopardy principles, “where a single act forms the basis of both a Class A felony robbery conviction and also the act element of the murder conviction, the two cannot stand.” Gross v. State, 769 N.E.2d 1136, 1139 (Ind.2002). Coyle’s death constitutes the serious bodily injury alleged by the State. Prejudice requires only a showing of a reasonable probability that the result of the proceeding would have been different. See Grinstead, 845 N.E.2d at 1031. Here, the proceeding would have been different, Turner would have been convicted for a Class B felony rather than a Class A felony. It is irrelevant what effect such outcome would have had in light of Turner’s lifetime sentence. Appellate counsel’s failure to raise a significant and obvious issue, one that is evident from the record and cannot be explained by any reasonable strategy constitutes ineffective assistance of counsel. Rhoiney, 940 N.E.2d at 845. If the issue may have resulted in reversal, such deficiency is prejudicial. Here, while counsel’s strategy on appeal was to obtain a new trial for Turner, he acknowledged at the post-conviction hearing that he would have raised the issue if he had noticed it. In such case, “the proper remedy is to modify rather than reverse the conviction.” Heyward v. State, 524 N.E.2d 15, 18 (Ind.Ct.App.1988). Accordingly, we remand this case to the trial court with instructions to reduce Turner’s Class A felony robbery conviction to a Class B felony robbery conviction.

4. Sentencing

Finally, Turner asserts that appellate counsel was ineffective for failing to challenge his sentence on appeal. He alleges that appellate counsel should have challenged the sentence as manifestly unreasonable under the prior version of App. Rule 7(B). His argument centers on the jury’s inability to unanimously recommend life imprisonment, which he contends that the supreme court in light of its decision in Saylor would have found manifestly unreasonable. Above, we distinguished Saylor from the facts here and accordingly do not find that Saylor apples or that Turner’s sentence would have been deemed manifestly unreasonable.

Turner also relies on the supreme court’s decision in Taylor v. State, 840 N.E.2d 324, 342 (Ind.2006), where the court found that Taylor’s appellate counsel was ineffective by failing to challenge Taylor’s sentence since the trial court’s “ag-gravators were improper and others were weak.” Id. Here, however, the evidence relied upon by the trial court in sentencing Turner was neither improper nor weak. Thus, Turner was not prejudiced and has therefore failed to demonstrate ineffectiveness of counsel.

CONCLUSION

Based on the foregoing, we conclude that (1) the post-conviction court did not err in denying Turner’s motion for summary disposition and granting the State’s motion for summary judgment on the constitutionality of Turner’s life sentence without parole. Further, the post-conviction did not err in denying Turner’s petition for post-conviction relief based on ineffective assistance of trial counsel. With one exception, we find that the post-conviction court did not err in denying Turner’s petition for post-conviction relief based on ineffective assistance of appellate counsel for failure to raise issues during Turner’s direct appeal. However, we conclude that Turner has met his burden to prove by a preponderance of the evidence that his appellate counsel was ineffective by failing to challenge his conviction for Class A robbery resulting in serious bodily injury and we therefore remand with instructions to reduce the Class A felony robbery conviction to a class B felony robbery conviction.

Affirmed in part, reversed in part, and remanded with instructions.

BAILEY, J., and CRONE, J. concur.

      . We separately designate Turner's trial transcript and the transcript of the post-conviction proceedings. Turner's trial transcript will be referred to as “Transcript” or “Tr.”

      . At the time of Turner's direct appeal, sentences were reviewed according to App.R. 17(B) which provided “(1) the reviewing court will not revise a sentence authorized by statute except where such sentence is manifestly unreasonable in light of the nature of the offense and the character of the offender;” and (2) ‘‘[a] sentence is not manifestly unreasonable unless no reasonable person could find such sentence appropriate to the particular offense and offender for which such sentence was imposed.”


source: Caselaw Access Project

author: MATHIAS, Judge.

license: Public Domain

text:
    Efren MENDOZA-VARGAS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 20A03-1201-CR-27.
    Court of Appeals of Indiana.
    Sept. 20, 2012.

      Marielena Duerring, Duerring Law Offices, South Bend, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MATHIAS, Judge.

Efren Mendoza-Vargas (“Mendoza-Vargas”) was convicted in Elkhart Superior Court of Class A felony dealing in methamphetamine, Class D felony maintaining a common nuisance, and Class D felony possession of marijuana. Mendoza-Vargas appeals and claims that the trial court abused its discretion in admitting evidence regarding Mendoza-Vargas’s post-Miranda statements to the police. Concluding that the police failed to scrupulously honor Mendoza-Vargas’s right to remain silent, we reverse and remand for retrial.

Facts and Procedural History

In the fall of 2009, the Elkhart County Interdiction and Covert Enforcement (“ICE”) team arranged several controlled buys between an undercover ICE officer, a confidential informant, and suspected drug dealers. Eventually, their investigation led them to a house on Pottawattomie Drive in Elkhart, Indiana. The ICE team was then able to obtain a warrant to search the residence. The officers executed the warrant late in the evening of November 5, 2009. The officers approached the front door of the house, knocked on the door, and stated, “Police department, search warrant.” Tr. p. 194. The officers were able to see a man, later identified as Mendoza-Vargas, walking toward the front door. However, instead of opening the door, Mendoza-Vargas stopped, turned around, and began to walk away toward the interior of the home. At this point, the police forced the front door open, entered the house, and detained Mendoza-Vargas. The police sat Mendoza-Vargas on a couch in the living room with his hands cuffed in front of him while they continued their search.

In the upstairs bedroom of the house, the police found a boot with $2,000 cash hidden inside, a black trash bag with several cell phones, and documents with Mendoza-Vargas’s name on them. In a closet adjoining the living room and a first-floor bedroom, the police found another boot with $2,900 cash hidden inside, a pair of jeans with $5,000 cash in one of the pockets, and a package containing over 430 grams of marijuana.- In the first-floor bedroom, the police found a toolbox containing digital scales and two packages containing over 630 grams of methamphetamine. The cash found in the boots and jeans included some of the buy money used during the controlled buys.

As the police searched the house, ICE employee Jennifer Gomez (“Gomez”) was brought in to speak with Mendoza-Vargas, as she was fluent in both English and Spanish. Gomez read to Mendoza-Vargas his Miranda rights in Spanish, explaining to him: that he had the right to remain silent; that anything he said could be used against him in court; that he had a right to an attorney and have the attorney be present during any questioning; that if he could not afford an attorney, one would be appointed for him at no expense to him; and that if he agreed to speak with the police but later changed his mind, he could stop answering questions and request an attorney at any time. Tr. pp. 239-40. Mendoza-Vargas acknowledged to Gomez that he understood these rights.

When Gomez asked if Mendoza-Vargas wished to answer any questions, he shook his head indicating “no.” Tr. pp. 48, 240. One of the undercover officers then told Mendoza-Vargas that dealing drugs carried a harsh sentence, informed him that he could “help” himself by cooperating with the police, and asked him if he knew of any people who dealt drugs in Elkhart County. The undercover officer then asked Mendoza-Vargas a question regarding rubber bands found in the house. Gomez did not translate this question but instead informed the undercover officer that Mendoza-Vargas had indicated that he did not want to answer any questions. Mendoza-Vargas then looked at Gomez and asked her, “What if I don’t want to answer that?” Tr. p. 241. When Gomez related this question to the undercover officer, the officer stated that he did not believe the rubber bands were “incriminating” and that if Mendoza-Vargas did not want to answer the question, he did not have to answer the question. Mendoza-Vargas appeared “overwhelmed,” and Gomez asked him if he wanted time to think about whether he wanted to answer any questions. Mendoza-Vargas told Gomez that he would like five minutes to think. The police therefore left Mendoza-Vargas alone on the couch, with Gomez standing in the doorway to the nearby bedroom.

After about five to ten minutes, the undercover officer came back into the living room and asked Mendoza-Vargas, “Can I ask you a question?” Tr. p. 243. Mendoza-Vargas turned around and looked at the officer, “paying attention to him and waiting for the question.” Id. The officer asked Mendoza-Vargas if his “contact” was in Indiana. Mendoza-Vargas replied “no” and indicated that his contact was in Mexico. Mendoza-Vargas then began to speak freely with the officers. He informed them that he knew several people in Elkhart County who were dealing drugs, that he had lived in the house for approximately three months, that he was staying in the first-floor bedroom where the toolbox containing the methamphetamine had been found, that twice weekly approximately four kilograms of methamphetamine were sent from Mexico to the house for resale by a man named Abel Ruellos, and that approximately $1,000 was sent back in exchange for each shipment.

On November 9, 2010, the State charged Mendoza-Vargas with Class A felony dealing in methamphetamine, Class D felony maintaining a common nuisance, and Class D felony possession of marijuana. The jury found Mendoza-Vargas guilty as charged, and the trial court sentenced Mendoza-Vargas to an aggregate sentence of forty years. Mendoza-Vargas now appeals.

Standard of Review

Mendoza-Vargas claims that the trial court abused its discretion in admitting his statements to the police into evidence. Questions regarding the admission of evidence are within the sound discretion of the trial court, and we review the court’s decision only for an abuse of that discretion. Wells v. State, 904 N.E.2d 265, 269 (Ind.Ct.App.2009). A trial court abuses its discretion only if its decision is clearly against the logic and effect of the facts and circumstances before it, or if the court has misinterpreted the law. Id. Our review of rulings for the admissibility of evidence is essentially the same regardless of whether the challenge is made through a pretrial motion to suppress or by an objection at trial. Jackson v. State, 890 N.E.2d 11,15 (Ind.Ct.App.2008). In either case, we will not reweigh the evidence and consider conflicting evidence in a light most favorable to the trial court’s ruling. Id. However, we also consider any undisputed evidence that is favorable to the defendant. Id. Additionally, we may consider foundational evidence introduced at trial in conjunction with any evidence from a suppression hearing that is not in direct conflict with the trial evidence. Kelley v. State, 825 N.E.2d 420, 427 (Ind.Ct.App.2005).

Discussion and Decision

Mendoza-Vargas claims that the trial court should have suppressed any evidence regarding his statement to the police because his statements were obtained in violation of his right to remain silent as set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Specifically, Mendoza-Vargas argues that the police violated his Miranda rights by continuing to question him even after he indicated that did not want to speak with the police.

When one who is subject to custodial interrogation requests the assistance of counsel, all questioning must immediately cease and interrogation can be resumed only when the accused initiates a communication with police, and when it is apparent that he knowingly and intelligently waived his right to counsel. Moore v. State, 498 N.E.2d 1, 8 (Ind.1986) (citing Oregon v. Bradshaw, 462 U.S. 1039, 1044, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983)). Things are different, however, when the suspect does not request counsel but instead only invokes his right to remain silent. See United States ex rel. Riley v. Franzen, 653 F.2d 1153, 1158 (7th Cir.1981) (noting the difference between a suspect invoking the right to counsel and a suspect invoking the right to silence).

In Miranda v. Arizona, the United States Supreme Court wrote that “[o]nce warnings have been given the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” 384 U.S. 436, 473, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (emphasis added). Although this provision could be read as prohibiting all further questioning of an individual who has indicated that he wishes to remain silent, the Court later clarified that this is not what was intended, stating:

Clearly, therefore, neither this passage nor any other passage in the Miranda opinion can sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent.

Michigan v. Mosley, 423 U.S. 96, 102, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Instead, when a suspect has only invoked his right to remain silent:

there is not a per se rule prohibiting the authorities from ever initiating a discussion or further questioning the individual on the subject. Rather, it must be shown on a case by case basis that the authorities “scrupulously honored” the defendant’s right to cut off questioning at any time, and that he knew and understood these rights and voluntarily waived them.

Id. at 9; see also Berghuis v. Thompkins, — U.S. -, 130 S.Ct. 2250, 2273-74, 176 L.Ed.2d 1098 (2010) (stating “the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored’ ”).

It is the State’s burden to prove that the suspect’s right to remain silent was scrupulously honored. Jenkins v. State, 627 N.E.2d 789, 796 (Ind.1993); Moore, 498 N.E.2d at 10. There are several non-exclusive factors used to determine whether interrogation was properly resumed, including: the amount of time that lapsed between interrogations; the scope of the second interrogation; whether new Miranda warnings were given; and the degree to which police officers pursued further interrogation once the suspect has invoked his right to silence. United States v. Gillaum, 372 F.3d 848, 856 (7th Cir.2004) (citing United States v. Schwensow, 151 F.3d 650, 658 (7th Cir.1998); Mosley, 423 U.S. at 104-05, 96 S.Ct. 321).

Here, the record indicates that after being informed of his Miranda rights, Mendoza-Vargas was asked if he wanted to answer questions. Mendoza-Vargas responded by shaking his head “no.” This was an obvious invocation of his right to remain silent. But instead of immediately ceasing any questions, the police continued to question Mendoza-Vargas even after he had invoked his right to remain silent. The undercover officer told Mendoza-Vargas that he could “help himself out” by cooperating with the police, noted that dealing drugs carried a harsh prison sentence, and asked Mendoza-Vargas if he knew people in Elkhart County who dealt drugs. This can hardly be called “scrupulously honoring” Mendoza-Vargas’s right to remain silent. Instead, it was an effort to induce Mendoza-Vargas into answering questions.

' The undercover officer then asked Mendoza-Vargas a question regarding rubber bands found in the house, prompting translator Gomez to remind the officer that Mendoza-Vargas had indicated that he did not want to answer any questions. Still, Mendoza-Vargas apparently understood enough English to comprehend the question without translation and asked Gomez whether he had to answer that question, indicating that he was unsure of whether he had to answer questions despite his invocation of his right to remain silent.

Then, instead of waiting for any substantial period of time, Gomez asked Mendoza-Vargas if he needed time to think about whether he wanted to answer any questions. Again, this appears to have been an attempt to induce him to cooperate by answering questions. When Mendoza-Vargas indicated that he needed a few minutes to think things over, the police gave Mendoza-Vargas some time. But when the undercover officer asked Mendoza-Vargas if he could ask him a question, he asked the question before Mendoza-Vargas indicated that he did, in fact, wish to answer questions at that time. And when Mendoza-Vargas chose to answer, the officer chose not to give Mendoza-Vargas new Miranda warnings.

Under these facts and circumstances, we are unable to conclude that the State met its burden of proving that Mendoza-Vargas’s right to remain silent was scrupulously honored. The police did not wait a substantial amount of time before re-initiating questioning and instead immediately began to question Mendoza-Vargas right after he invoked his right to remain silent. Nor did they re-advise him of his Miranda rights before re-initiating questioning. See Borkholder v. State, 544 N.E.2d 571, 574 (Ind.Ct.App.1989) (noting that police should cease questioning immediately and resume questioning only after the passage of a significant amount of time and read-vise defendant of Miranda rights); Gillaum, 372 F.3d at 856 (listing factors to consider in whether police scrupulously honored the right to remain silent).

These facts and circumstances stand in stark contrast to those cases where our courts have held that a suspect’s right to remain silent was scrupulously honored by the police. See, e.g., Pilarski v. State, 635 N.E.2d 166, 170 (Ind.1994) (concluding that suspect’s right to remain silent was scrupulously honored where police reiniti-ated questioning approximately ninety minutes after the defendant invoked his right to remain silent and reread Miranda warnings prior to renewed questioning); Buie v. State, 633 N.E.2d 250, 259 (Ind.1994) (concluding that defendant’s right to remain silent was scrupulously honored where he was “given Miranda warnings at every turn,” twice signed Miranda waiver forms, and police made no further attempt to obtain a statement from defendant after he indicated he did not wish to speak with the police); Jenkins v. State, 627 N.E.2d 789, 796 (Ind.1993) (holding that police scrupulously honored defendant’s right to remain silent where they did not question him after his invocation of his rights, but instead defendant initiated the conversation with the police by asking questions, at which point the officers reminded defendant that he had previously asserted his right to remain silent); Moore v. State, 498 N.E.2d 1, 9-10 (Ind.1986) (holding that police scrupulously honored defendant’s right to remain silent where police did not renew questioning of defendant until the day after he asserted his right to remain silent and where police readvised him of his Miranda rights before defendant gave statement); Moore v. State, 551 N.E.2d 459, 462 (Ind.Ct.App.1990) (holding that defendant’s right to remain silent was scrupulously honored by the police where detective stopped questioning defendant on the subject after he refused to answer questions and instead asked defendant whether he would consent to being tested for a sexually-transmitted disease). Accordingly, we conclude that the trial court abused its discretion when it admitted Mendoza-Vargas’s statements to the police into evidence, because the police failed to scrupulously honor Mendoza-Vargas’s right to remain silent.

The question therefore becomes whether this error requires us to reverse Mendoza-Vargas’s convictions and remand for retrial. The State argues that any error in the admission of Mendoza-Vargas’s statements was harmless, given the contraband and illegal drugs found at the house where Mendoza-Vargas was arrested. We do not doubt that this evidence might be sufficient to support a conviction without Mendoza-Vargas’s statements regarding his involvement in the drug trade at the house. But this is not dispositive under a harmless error analysis.

Errors in the admission or exclusion of evidence are to be disregarded as harmless error unless they affect the substantial rights of the party. Corbett v. State, 764 N.E.2d 622, 628 (Ind.2002). And to determine whether an error in the introduction of evidence affected the appellant’s substantial rights, we assess the probable impact of that evidence upon the jury. Id.

Here, we are unable to say that evidence regarding Mendoza-Vargas’s own incriminating statements had no impact on the jury’s decision. This is not a case where the evidence is overwhelming and the defendant’s own incriminating statements would have little impact on the jury’s decision to convict. Instead, the State argued the theory of constructive possession because Mendoza-Vargas was not found in direct possession of any of the substances and relied on Mendoza-Vargas’s statements during its closing argument to bolster its claim of constructive possession and intent. Tr. pp. 369-70. We therefore reverse Mendoza-Vargas’s convictions and remand for retrial, at which Mendoza-Vargas’s statements to the police shall be inadmissible given the police failure to scrupulously honor Mendoza-Vargas’s invocation of his right to remain silent.

Reversed and remanded for retrial.

VAIDIK, J., and BARNES, J., concur.

      . Mendoza-Vargas makes no cognizable argument that the admission of his statements violated the Indiana Constitution and focuses his argument solely on a federal constitutional analysis.

      . The double jeopardy analysis in Buie was abrogated in our supreme court’s seminal holding in Richardson v. State, 717 N.E.2d 32 (Ind.1999). But this abrogation had no effect on Buie's holding regarding the Fifth Amendment right to remain silent.

      . The cases cited by the State are distinguishable in that they address issues of whether a defendant's statement and/or waiver of Miranda rights was voluntary. See, e.g., Miller v. State, 770 N.E.2d 763, 767 (Ind.2002) (addressing claim that defendant's statement to the police and waiver of Miranda rights was involuntary); Luckhart v. State, 736 N.E.2d 227, 229 (Ind.2000) (addressing claim that defendant’s statement to the police was involuntary in light of police deception); Ellis v. State, 707 N.E.2d 797, 801 (Ind.1999) (addressing claim that defendant's confession to the police was involuntary in light of police deception and alleged coercion, and defendant’s alleged drug and alcohol use and lack of sleep); Brown v. State, 271 Ind. 129, 131, 390 N.E.2d 1000, 1002 (1979) (involving claim that defendant’s waiver of Miranda rights was invalid); Allen v. State, 787 N.E.2d 473, 480 (Ind.Ct.App.2003) (addressing claim of voluntariness of defendant’s statement in light of police deception); Whitfield v. State, 699 N.E.2d 666, 669 (Ind.Ct.App.1998) (addressing question of voluntariness of defendant’s confession in light of claims of police promises of lenience and favorable treatment). None of these cases involve situations where a defendant invoked his or her right to remain silent but was still subjected to questioning.

      . Mendoza-Vargas makes no argument that there was insufficient evidence to convict him, thus barring retrial. See Cuto v. State, 709 N.E.2d 356, 362 (Ind.Ct.App.1999) (noting that retrial is allowed when a conviction is reversed on appeal for legal error, and the evidence at trial was sufficient to support the original conviction).


author: MAY, Judge.

text:
    A.G., Appellant-Respondent, v. P.G., Appellee-Petitioner.
    No. 49A04-1201-PO-94.
    Court of Appeals of Indiana.
    Sept. 21, 2012.
    David W. Stone IV, Stone Law Office & Legal Research, Anderson, IN, Attorney for Appellant.
    S. Gregory Zubek, Whitham Hebenstreit & Zubek LLP, Indianapolis, IN, Attorney for Appellee.
   OPINION

MAY, Judge.

A.G. (Father) appeals the extension of P.G.’s (Mother) protective order against him. He presents three issues for our consideration, one of which we find disposi-tive: whether there was sufficient evidence to support the extension of Mother’s protective order against Father. We affirm.

FACTS AND PROCEDURAL HISTORY

On September 10, 2009, Mother filed for, and was granted, an ex parte order of protection against Father. On March 8, 2010, the order was amended to allow Father certain visitation and communication with the parties’ two children. On May 12, 2011, a Missouri court dissolved the parties’ marriage.

On June 5, when Mother picked up the children from their scheduled visitation with Father, their son reported Father indicated he desired to hurt Mother and her friend. The parties’ daughter also told Mother that Father wished to harm Mother.

On June 6, Mother filed a petition for contempt against Father, alleging he violated the protective order by communicating threats against Mother. The trial court did not find Father in contempt, but it extended the protective order until October 21, 2020.

DISCUSSION AND DECISION

When considering the sufficiency of the evidence supporting a decision to issue or modify a protective order, we do not reweigh the evidence or judge the credibility of witnesses. Andrews v. Ivie, 956 N.E.2d 720, 722 (Ind.Ct.App.2011). “We look only to the evidence of probative value and reasonable inferences that support the trial court’s judgment.” Id. As we stated in Andrews:

The Indiana Civil Protection Order Act (“CPOA”) is to be construed to promote (1) the protection and safety of all victims of domestic or family violence in a fair, prompt, and effective manner and (2) the prevention of future domestic and family violence. Ind.Code § 34-26-5-1 (2002); Moore v. Moore, 904 N.E.2d 353, 357-58 (Ind.Ct.App.2009). Pursuant to the CPOA, a person who is or has been a victim of domestic or family violence may file a petition for a protective order against (1) a family or household member who commits an act of domestic or family violence or (2) a person who has committed stalking under Indiana Code section 35-45-10-5 (2002) or a sex offense under Indiana Code chapter 35-42-4 against the petitioner. Ind.Code § 34-26-5-2(a) (2002); Tisdial v. Young, 925 N.E.2d 783, 785 (Ind.Ct.App.2010). The trial court may issue or modify a protective order only upon a finding “that domestic or family violence has occurred.” Ind.Code § 34-26-5-9(a), (f) (2009); Tisdial, 925 N.E.2d at 785. For purposes of the CPOA, domestic and family violence also includes stalking as defined in Indiana Code section 35-45-10-1 (1993) or a sex offense under Indiana Code chapter 35-42-4, “whether or not the stalking or sex offense is committed by a family or household member.” Ind.Code § 34-6-2-34.5 (2007); Tisdial 925 N.E.2d at 785.
To obtain a protective order under the CPOA, the petitioner must establish by a preponderance of the evidence at least one of the allegations in the petition. A.S. [v. T.H., 920 N.E.2d 803, 806 (Ind.Ct.App.2010) ]. A trial court generally has discretion to grant protective relief according to the terms of the CPOA. Moore, 904 N.E.2d at 358. However, a finding by the trial court that domestic or family violence has occurred sufficient to justify the issuance of an order for protection means that the respondent represents a credible threat to the safety of the petitioner. Id. Therefore, upon a showing of domestic or family violence by a preponderance of the evidence, the trial court shall grant relief necessary to bring about a cessation of the violence or the threat of violence. Id.

Id. at 722-23.

In her motion for contempt, Mother alleged Father, in violation of a protective order issued at the time of the parties’ dissolution of marriage, “made a death threat against me to my daughter and a death threat against my friend to my son on 6-5-11.” (App. at 29.) During the contempt hearing, Mother testified to statements made by both of her children concerning Father’s desire to hurt Mother and her family and friends. The trial court found:

[WJhile I um, am inclined to believe that maybe these conversations did occur with her children, and her children had some kind of information that they received that upset them and — and caused them to make these statements, I cannot find there was clear and convincing evidence that contempt was found.
However, I do find that this protective order should be extended, and the Court at this time, is going to extend the order for protection, and it will be extended to October 21st of 2020.

(Tr. at 93.) To the extent Father’s arguments are premised on conflicting evidence, they are invitations for us to reweigh the evidence, which we cannot do. Andrews, 956 N.E.2d at 722. Accordingly, we affirm.

Affirmed.

KIRSCH, J., and NAJAM, J., concur.

      . Two of the issues Father presents involve the admissibility of certain pieces of evidence. As this was a bench trial, we need not consider those issues. See Berry v. State, 725 N.E.2d 939, 943 (Ind.Ct.App.2000) (“In bench trials, we presume that the court disregarded inadmissible evidence and rendered its decision solely on the basis of relevant and probative evidence.”). Father offers nothing to overcome this presumption.


text:
    In the Matter of Christopher T. SMITH, Respondent.
    No. 30S00-1205-DI-250.
    Supreme Court of Indiana.
    Oct. 1, 2012.
   PUBLISHED ORDER ACCEPTING CONSENT TO DISCIPLINE AND IMPOSING DISCIPLINE

The Indiana Supreme Court Disciplinary Commission filed a “Verified Complaint for Disciplinary Action” against Respondent. Respondent has tendered to this Court an affidavit of consent to discipline, pursuant to Indiana Admission and Discipline Rule 23(17), acknowledging that the material facts alleged in the complaint are true and consenting to discipline to be determined by this Court. Having reviewed the complaint, the affidavit, and the briefs of the parties, the Court concludes that Respondent engaged in professional misconduct and imposes discipline on Respondent.

Facts: On April 19, 2012, Respondent was convicted on a guilty plea to the following offense under Indiana law: Operating While Intoxicated with Minor Passenger, a class D felony. Respondent admits that he endangered his three minor children, who were passengers in his car, as well as members of the public, by driving while intoxicated.

Respondent cites the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent immediately contacted the Commission and the Indiana Judges and Lawyers Assistance Program (“JLAP”) after his arrest; (3) Respondent has been cooperative with the Commission; (4) Respondent’s misconduct was not due to a dishonest or selfish motive; (5) Respondent has executed a monitoring agreement with JLAP and is fully compliant with it; (6) Respondent has successfully completed an intensive out-patient program at Fairbanks Hospital and continues participation in aftercare and Alcoholics Anonymous; (7) according to JLAP, his prognosis is good due to his commitment to recovery and his remorse. Respondent’s JLAP clinical case manager believes that Respondent’s clinical needs would be best served by continuing to practice law and continuing to be monitored by JLAP.

Violation: Respondent violated Indiana Professional Conduct Rule 8.4(b), which prohibits committing a criminal act that reflects adversely on honesty, trustworthiness, or fitness as a lawyer.

Discipline: For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 90 days, beginning on the date of this order, all stayed subject to completion of at least two years of probation. The Court incorporates by reference the terms and conditions of probation set forth in “Respondent’s Submission on Sanction,” which include:

(1) Respondent shall continue compliance with his JLAP monitoring and with participation in Alcoholics Anonymous and individual therapy.
(2) Respondent shall refrain from all mind-altering substances, including alcohol, except as prescribed.
(3) Respondent shall have no violations of the law or the Rules of Professional Conduct during his probation.
(4) Any material breach of his probation will subject Respondent to active service of his stayed suspension be actively served without automatic reinstatement, and Respondent may be reinstated only through the procedures of Admission and Discipline Rule 23(4) and (18).

Notwithstanding the expiration of the minimum term of probation set forth above, Respondent’s probation shall remain in effect until it is terminated pursuant to a petition to terminate probation filed under Admission and Discipline Rule 28(17.1).

The costs of this proceeding are assessed against Respondent.

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of the Conditional Admission of Bar Applicant No. E03070, Harlan L. VONDERSAAR.
    No. 94S00-1203-BL-183.
    Supreme Court of Indiana.
    Oct. 1, 2012.
   PUBLISHED ORDER REVOKING CONDITIONAL LICENSE TO PRACTICE LAW

Harlan L. Vondersaar (“Respondent”) was conditionally admitted to the Indiana bar on May 16, 2011, pursuant to terms and conditions established in a consent agreement with the State Board of Law Examiners (“Board”). The agreement required, among other things, that Respondent refrain from the use of alcohol, have no arrest for any criminal offense, and have “no alcohol related incidents” for a period of three years from the date of his admission.

Less than five months later, Respondent was arrested for (and later pled guilty to) Operating a Vehicle While Intoxicated, having registered a blood alcohol content of .31 at the time of his arrest. As a result of Respondent’s violation of his consent agreement, this Court granted the Board’s petition that Respondent be suspended from the practice of law for a period of ninety (90) days, with automatic reinstatement to conditional admission thereafter.

During the period of Respondent’s suspension, the Disciplinary Commission (“Commission”) intervened and filed a “Petition for Permanent Revocation of Conditional Admission to Practice Law or, in the Alternative, Rule to Show Cause Why Attorney Should Not Be Held in Contempt” (“Petition”), which is the matter now before us. We issued an order on August 30, 2012, staying Respondent’s automatic reinstatement pending further action. Respondent subsequently has filed a response to the Petition, and the Commission has filed a reply to that response.

The Commission’s Petition alleges (with supporting evidence attached) that Respondent continued to practice law during the period of his suspension. In his response, Respondent admits the Commission’s allegation and self-reports another violation.

Respondent has been given repeated opportunities to conform his behavior to the standards required of those seeking admission to our bar but has failed to meet those standards. Accordingly, the Court finds that Respondent’s conditional admission to practice law in Indiana should be revoked.

“A conditional admittee whose conditional admission has been revoked by the Supreme Court shall not be readmitted, except upon a new application and examination, after the expiration of the revocation period set by order of the Supreme Court.” Indiana Admission and Discipline Rule 12 § 10. Although the Commission’s Petition seeks permanent revocation, we find that Respondent should not be completely denied the opportunity to reapply for conditional admission.

Accordingly, the Court finds that the Commission’s Petition should be GRANTED IN PART. The license of Harlan L. Vondersaar to practice law in Indiana should be, and hereby is, REVOKED, effective immediately. Further, Respondent SHALL NOT SUBMIT a new application for admission to the Bar of Indiana for a period of eighteen (18) months from the date of this order.

The Clerk is directed to provide notice of this order in accordance with Admission and Discipline Rule 23, section 3(d), and to provide the. Clerk of the U.S. Court of Appeals for the Seventh Circuit, and the clerks of the U.S. District Courts and U.S. Bankruptcy Courts of this state, with Respondent’s personal and business addresses.

In addition, the Clerk is further directed to send copies of this order to Respondent; to Bradley Skolnick, Executive Director of the State Board of Law Examiners; to G. Michael Witte, Executive Secretary of the Disciplinary Commission; to Terry Harrell, Executive Director of the Indiana Judges and Lawyers Assistance Program; to the Office of Supreme Court Administration; to LexisNexis; and to Thomson Reuters for publication in the bound volumes of this Court’s decisions. The Clerk is also directed to post this order to the Court’s website.

All Justices concur.


author: BROWN, Judge.

text:
    In the Matter of the Termination of the parent-child relationship of Q.M. and E.M., Minor Children, B.M., Father, Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner.
    No. 15A05-1112-JT-706.
    Court of Appeals of Indiana.
    Sept. 11, 2012.
    Jeffrey E. Stratman, Aurora, IN, Attorney for Appellant.
    Matthew K Hagenbush, DCS, Local Office in Dearborn County, Lawrenceburg, IN, Robert J. Henke, DCS Central Administration, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

B.M. (“Father”) appeals the involuntary termination of his parental rights to his children, Q.M. and E.M. Concluding that the Indiana Department of Child Services failed to establish the requirements of Ind. Code § Sl-35-2-4(b)(2)(A), we reverse the trial court’s judgment and remand for further proceedings consistent with this opinion.

Facts and Procedural History

Father is the biological father of Q.M., born in July 2007, and E.M., born in August 2009. The facts most favorable to the trial court’s judgment reveal that the local Dearborn County office of the Indiana Department of Child Services (“DCDCS”) became involved with this family in March 2010 after receiving a report of injuries suffered by then two-year-old Q.M. Although Q.M. had been taken to Dearborn County Hospital by his mother for uncontrollable vomiting, hospital personnel noticed Q.M. had sustained multiple injuries including a bruise to the tip of his penis, bilateral bruising on both hips, small bruises on his face, and a laceration to his chin. Q.M. was transported to Cincinnati Children’s Hospital where it was further discovered that Q.M. also had suffered damage to his small intestine requiring surgery to remove a portion of the injured organ.

While Q.M. remained at Cincinnati Children’s Hospital, Dr. Shapiro, Medical Director of the hospital’s Child Abuse Team, informed the DCDCS assessment case manager that Q.M.’s injuries, including the injury to his small intestine, were indications of abuse. Dr. Shapiro further disclosed that the injury to Q.M.’s small intestine was a result of “blunt force trauma” that could have been caused by “a punch or a kick.” Appellant’s Appendix at 50.

As a result of its investigation, DCDCS filed petitions, under separate cause numbers, seeking emergency custody of both Q.M. and E.M. The emergency custody petitions were granted, and DCDCS thereafter filed petitions alleging Q.M. and E.M. were children in need of services (“CHINS”). Although the specific perpetrator of Q.M.’s injuries was never specifically identified, Father later signed a Stipulation of CHINS agreement wherein he acknowledged that Q.M.’s injuries “would not have occurred but for the act or omission of a parent, custodian, or guardian.” Id. at 89.

The children were adjudicated CHINS, and the trial court entered an order directing Father to participate in various services including a psychological evaluation, parenting classes, individual counseling, and therapeutic visits with the children. Initially, Father participated in several of these court-ordered services. He failed, however, to progress in his ability to incorporate the things he was learning into his daily life and interactions with the children. For example, Father’s evaluation with psychologist Dr. Edward Connor indicated Father consistently tried to present a more positive persona than what reality would indicate. Father also demonstrated a deficit in his ability to be “emotionally attuned” to the children, which was “particularly concerning” with regard to Q.M., who had suffered such “severe emotional trauma.” Transcript at 121. Additionally, Father did not express his emotions in a positive manner and had significant passive-aggressive tendencies. As a result of his evaluation, Dr. Connor recommended Father participate in individual counseling.

Although Father initially participated in the recommended individual therapy through Lifeworks Counseling, he failed to successfully complete the program. Moreover, the therapist working with Father observed that Father’s “thoughts” and “perceptions” were “distorted” to such a degree that it rendered him incapable of being “effective in any level of interaction with his children.” Id. at 28. Father also began expressing obsessive and aggressive behaviors with regard to Mother following the couple’s break-up in October 2010. This extreme and obsessive behavior by Father was observed by service providers during visits with the children and during other interactions with case workers and service providers. For example, Father sent 96 text messages and made numerous phone calls concerning Mother and her whereabouts to the home-based counsel- or’s personal cell phone and home phone during a single weekend, causing the provider to feel threatened and to request no further work with Father.

Father also began showing up at the DCDCS office whenever he thought Mother might be there, and a restraining order was later issued against Father with regard to the children’s mother. Father was also ordered by the trial court to limit his contact with certain DCDCS case managers and service providers due to his unstable behavior and aggressive telephone calls and texts. Because Father’s behavior was viewed as a threat to the children, Father’s visitation privileges were also eventually limited.

As a result of Father’s overall lack of progress in services, refusal to accept responsibility for his role in the children’s removal, and inability to understand the severe emotional trauma suffered by Q.M. and/or effectively deal with the child’s long-term emotional and behavioral issues, DCDCS filed petitions seeking the involuntary termination of Father’s parental rights to both children on May 20, 2011. Although the children had been removed from the family home for approximately thirteen months, no dispositional order formally removing the children from Father’s care and custody had been issued by the trial court at the time the termination petitions were filed. Upon discovering this oversight, DCDCS sought, and the trial court entered, dispositional orders formally removing the children from Father’s care and custody in July 2011.

A consolidated, two-day evidentiary hearing on the termination petitions as to both children commenced in August 2011 and later concluded in October 2011. During the hearing, DCDCS presented considerable evidence regarding Father’s failure to successfully complete a majority of the court-ordered reunification services, including individual counseling and a Batterer’s Intervention program. The evidence also confirmed Father remained unable to demonstrate that he was capable of providing the children with a safe and stable home environment. Specifically, DCDCS presented substantial evidence establishing Father’s ongoing distorted self-perceptions, lack of emotional attunement with the children, refusal to acknowledge the significance of Q.M.’s physical and emotional trauma, and ongoing obsession with Mother.

As for the children, DCDCS submitted evidence showing Q.M., who was diagnosed with post traumatic stress disorder, intermittent explosive disorder, and oppositional defiant disorder, was living and thriving together with E.M. in the care of his pre-adoptive foster family. Additional evidence established that Q.M.’s significant behavioral and emotional outbursts were lessening, and that the child was happy, trusted, and bonded to his foster parents, especially his foster mother who had become Q.M.’s primary source of emotional security.

At the close of evidence, the trial court took the matter under advisement. On November 7, 2011, the trial court issued its judgment terminating Father’s parental rights to Q.M. and E.M. Father now appeals.

Discussion and Decision

Before parental rights may be involuntarily terminated, the State must allege and prove, by clear and convincing evidence, each element contained in Ind. Code § 31-35-2-4(b). In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind.2009); see also Ind.Code § 31-37-14-2. Subsection (b)(2)(A) of Indiana’s termination statute provides that an involuntary termination petition “must allege” that one of the following is true:

(i) The child has been removed from the parent for at least six (6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required....
(iii) The child has been removed from the parent and has been under the supervision of a county office of family and children or probation department for at least fifteen (15) months of the last twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent childf.]

Ind.Code § 31-35-2-4(b)(2)(A). Because parents have a constitutionally protected right to establish a home and raise their children, see e.g. M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 564, 136 L.Ed.2d 473 (1996), the Indiana Department of Child Services, “must strictly comply with the statute terminating parental rights.” Platz v. Elkhart Cnty. Dep’t. of Public Welfare, 631 N.E.2d 16, 18 (Ind.Ct.App.1994); see also In re J.S., 906 N.E.2d 226, 236 (Ind.Ct.App.2009). Consequently, if the trial court “does not find that the allegations in the [termination] petition are true, the court shall dismiss the petition.” Ind.Code § 31-35-2-8(b) (emphasis added); see also G.Y., 904 N.E.2d at 1261 (stating that if the State fails to prove any of the statutory elements in Ind.Code § 31 — 35—2—4(b)(2) then it is not entitled to a judgment terminating parental rights).

DCDCS acknowledges on appeal that it “did not file its dispositional decree until after it filed its termination petitions.... ” Appellee’s Brief at 7 (emphasis added). DCDCS further concedes that Q.M. and E.M. had been removed from the family home and placed under the supervision of DCDCS for only approximately thirteen, rather than the requisite fifteen, of the most recent twenty-two months when DCDCS filed its termination petitions. DCDCS therefore admits that it “did not satisfy the jurisdictional requirements of Indiana Code § 31-35-2-4(b)(2)(a).” Id. A review of the record confirms DCDCS’s admissions on appeal.

The “statutory mandate when seeking the involuntary termination of a parent-child relationship is ‘clear and unequivocal.’ ” In re D.D., 962 N.E.2d 70, 74 (Ind.Ct.App.2011) (citing Platz, 631 N.E.2d at 18). An involuntary termination petition must allege, and the State must prove by clear and convincing evidence, that the child was either removed from the parent for at least six months under a dispositional decree or removed from the family home at least fifteen of the most recent twenty-two months “at the time the involuntary termination petition was filed.” D.D., 962 N.E.2d at 74; see also Ind.Code § 31-35-2-4(b)(2)(A). Based on the foregoing, it is clear that DCDCS failed to satisfy the mandates of Ind.Code § 31-35-2-4(b)(2)(A). Thus, the trial court committed reversible error in granting DCDCS’s involuntary termination petitions.

As DCDCS alleged, but failed to prove removal of the children according to the dictates of Ind.Code § 31 — 35—2—4(b)(2)(A), the trial court’s judgment terminating Father’s parental rights to Q.M. and E.M. must be reversed, and this case remanded for further proceedings consistent with this opinion.

Reversed and remanded.

FRIEDLANDER, J., and PYLE, J., concur.

      . The children’s biological mother, A.M., signed voluntary consents for the adoption of Q.M. and E.M. and does not participate in this appeal. Consequently, we limit our recitation of the facts to those pertinent solely to Father's appeal. A.M.'s voluntary relinquishment of her parental rights to the children remains unaffected by this opinion.

      . We observe that Ind.Code § 31-35-2-4 was amended by Pub.L. No. 48-2012 (eff. July 1, 2012). The changes to the statute became effective after the filing of the termination petition involved herein and are not applicable to this case.

      . We commend DCDCS for its candor with this court.

      . Our decision today should not be construed as a negative comment upon the sufficiency of the evidence supporting the trial court's specific findings or ultimate decision to terminate Father’s parental rights. Moreover, in reaching this decision, we are keenly aware of the fact that both Q.M.'s and E.M.’s sense of permanency and well-being hangs in the balance. Further delay in the final resolution of the children's cases is most certainly regrettable, but the Court is bound by statute to ensure the process.