A.M. v. State of Indiana ( 2019 )

FILED
Nov 12 2019, 10:54 am
IN THE CLERK
Indiana Supreme Court
Indiana Supreme Court
Court of Appeals
and Tax Court
Supreme Court Case No. 19S-JV-603
A.M.,
Appellant (Defendant),
–v–
State of Indiana,
Appellee (Plaintiff).
Argued: February 28, 2019 | Decided: November 12, 2019
Appeal from the Kosciusko Superior Court 1,
No. 43D01-1708-JD-292
The Honorable David C. Cates, Judge
On Petition to Transfer from the Indiana Court of Appeals,
No. 18A-JV-618
Opinion by Justice Goff
Chief Justice Rush and Justices David and Massa concur.
Justice Slaughter concurs in judgment with separate opinion.
Goff, Justice.
More than half a century ago, the Supreme Court of the United States
avowed that a child’s right to counsel is neither “a formality” nor “a
grudging gesture to a ritualistic requirement,” but rather “the essence of
justice.” Kent v. United States, 383 U.S. 541, 561 (1966). Since then the
settled law has been that children enjoy a constitutional due process right
to the effective assistance of counsel during juvenile delinquency
proceedings.
The law remains unsettled, however, on the standard to evaluate claims
from children alleging ineffective assistance of counsel. Here, A.M. asserts
that his attorney rendered him ineffective assistance during a disposition-
modification hearing. Reflecting the uncertainty in the law, A.M. and the
State offer two competing standards for deciding the claim—one founded
in the Sixth Amendment’s right to counsel for a criminal proceeding and
one founded in the Fourteenth Amendment’s due process clause.
We hold today that a due process standard governs a child’s claim that
he received ineffective assistance in a disposition-modification hearing
during his delinquency proceedings. In assessing these claims, we
consider counsel’s overall performance and determine whether that
performance ensured the child received a fundamentally fair hearing
resulting in a disposition serving his best interests. Given the facts of this
case, A.M. has failed to demonstrate he received ineffective assistance of
counsel, so we affirm the trial court.
Factual and Procedural History
Born in June 2002, A.M. has a long history with the juvenile justice
system. At the age of ten, he had already committed three delinquent acts
amounting to Class D felony battery with bodily injury if committed by an
adult. He attended an alternative schooling program for several years,
where he received special education and outpatient services for an
emotional disability. During his time at the school, A.M. received multiple
suspensions and several referrals to the juvenile court for fighting,
violence against school staff, destruction of property, and possession of
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marijuana. Eventually, the school expelled him for “fail[ing] to comply,”
finding no relationship between his behavior and his disability and only
slight progress in his outpatient program. Appellant’s App. Vol. II, p. 128.
In July 2017, A.M. and his friends approached a younger boy at the
Kosciusko County fairgrounds, forcing him into an abandoned tent so that
A.M. could fight him. A.M. beat the other boy and kicked him repeatedly
in the head while he was down, leaving him with severe injuries requiring
medical treatment. A.M. later threatened the boy with a text message
stating, “You better not tell the cops about this.” Id. at 15, 53–54.
This incident ultimately led to a true finding of disorderly conduct, a
Class B misdemeanor if committed by an adult. The juvenile court placed
A.M. on supervised probation until the age of eighteen. But in the months
that followed, he consistently failed to abide by the terms of his
probation—leaving home without permission, threatening his family,
skipping school, staying out past curfew, spending time with another
juvenile delinquent, and missing his mental-health evaluations. Police also
suspected his involvement in the burglary of a classmate’s home.
Because his actions posed a danger to others, and out of concern for
A.M.’s safety and best interests, the probation department recommended
his placement with the Department of Correction (DOC). In its
modification report, the probation department also opined that placement
in the DOC would ensure A.M. received the necessary education and
services.
During a modification hearing in February 2018, A.M.’s counsel, who
had defended the juvenile against past delinquency allegations,
negotiated with the prosecutor to redact certain allegations from the
Petition to Modify, including allegations that A.M. committed unrelated
acts constituting residential burglary and theft of a handgun if committed
by an adult. A.M.’s counsel also prevented A.M. from having to admit
allegations that he consumed alcohol on the school bus. A.M. did,
however, admit to allegations that he battered a random boy at the bus
stop and that he committed various status offenses. A.M.’s counsel also
made the following statement to the court:
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I am befuddled by the action of [A.M.]. I think he’s a good kid. I
think he’s got a bright future ahead of him. He’s smart, has some
real opportunities, but the path he’s going down is leading him
to prison and he’s just going to end up wallowing away there,
probably spend most of his life there. You don’t break into
people’s houses, you don’t steal guns, don’t follow the rules, get
kicked out of school. You don’t get an education and that’s going
to end up being his downfall. I think except for being kicked out
of Gateway, he could have had an opportunity here. He could
have been on home detention and shown everybody that he
could do right. Instead he’s going to go to the DOC, go to
Logansport for an evaluation, do his six months, eight months
or a year, as long he does right, and hopefully will come back
and have learned a lesson. I have a lot of hope for [A.M.]. I hope
he understands that what’s going to happen here is not a
punishment but rather a chance to get a leg up in life and try to
do the right thing. I hope he does good, and when he comes back
he can really grow and be a good kid.
Tr. pp. 6–7.
In adopting the probation department’s recommendation, the juvenile
court committed fifteen-year-old A.M. to the DOC for an indeterminate
period.
A.M. appealed, arguing that he received ineffective assistance of
counsel. Our Court of Appeals unanimously denied A.M.’s claim in a
published opinion. A.M. v. State, 109 N.E.3d 1034 (Ind. Ct. App. 2018). We
now grant transfer, thereby vacating the Court of Appeals opinion in part1
1A.M. also claimed that the juvenile court abused its discretion by failing to obtain and
consider all information relevant to his unique and varying circumstances, and by failing to
adequately explain its reasons for imposing the most severe disposition, despite the existence
of intermediary dispositional alternatives that had not yet been utilized. Our Court of
Appeals rejected these arguments, which we summarily affirm. See Ind. Appellate Rule
58(A)(2).
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to decide the following unanswered question of Indiana law: What review
standard controls juvenile ineffective-assistance-of-counsel claims?2
Standard of Review
A juvenile’s constitutional and statutory rights to effective counsel are
issues of law, which we review de novo. R.R. v. State, 106 N.E.3d 1037,
1040 (Ind. 2018); see generally Bridges v. State, 260 Ind. 651, 299 N.E.2d 616
(1973); Ind. Code §§ 31-32-2-2, -4-1.
Discussion and Decision
The parties agree the United States Constitution guarantees A.M. the
right to effective assistance of counsel. They even agree that the
Fourteenth Amendment’s due process clause affords A.M. that right. They
disagree, however, over the proper standard courts should employ when
evaluating whether counsel renders ineffective assistance to a juvenile,
like A.M.
A.M. contends his ineffective-assistance-of-counsel claim must be
evaluated under the Supreme Court’s well-established Sixth Amendment
standard in Strickland v. Washington—i.e., deficient attorney performance
that prejudices the client’s criminal defense.3 See 466 U.S. 668, 687 (1984).
The State counters that, because his right to counsel flows from the
2Since A.M. challenges his counsel’s performance in the disposition-modification hearing
only, and not the prior adjudicative or dispositional phases, we confine this opinion to claims
of ineffective assistance of counsel during a disposition-modification hearing. As the State
acknowledged at oral argument, the adjudicative and dispositional phases differ from
disposition modification and the question of what constitutes ineffective assistance in those
phases may not be the same. But, more importantly, the State noted how the question of
ineffectiveness in those phases is not properly before us. See Oral Argument at 17:50–18:50,
34:20–34:35. Therefore, we leave for another day the decision of what ineffective-assistance-of-
counsel standard governs in the adjudicative and initial dispositional phases, particularly
whether our opinion in S.T. v. State, 764 N.E.2d 632 (Ind. 2002), was rightly decided.
A.M. makes no separate ineffective-assistance-of-counsel claim under the Indiana
3
Constitution.
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Fourteenth Amendment, A.M.’s claims of ineffectiveness must be
evaluated under a due process standard governing civil proceedings, not
Strickland’s standard for criminal proceedings.
According to the State, the distinction between these two standards is
important because the latter applies to civil proceedings (as in the juvenile
justice context), which impose a less stringent standard. The due process
standard for evaluating ineffective assistance of counsel—though applied
in various contexts and using varying language—essentially asks whether
counsel represented the client in a procedurally fair proceeding that
yielded a reliable judgment from the trial court. See, e.g., Baum v. State, 533
N.E.2d 1200, 1201 (Ind. 1989) (declining to apply Strickland’s “rigorous
standard” to assess the performance of counsel in post-conviction cases);
Graves v. State, 823 N.E.2d 1193, 1196 (Ind. 2005) (applying Baum rather
than Strickland to claims of ineffective post-conviction counsel); Baker v.
Marion Cty. Office of Family and Children, 810 N.E.2d 1035, 1039–41 (Ind.
2004) (declining to apply Strickland to assess counsel’s performance in
cases involving termination of parental rights); Childers v. State, 656 N.E.2d
514, 517 (Ind. Ct. App. 1995) (declining to apply Strickland to assess
counsel’s performance in probation revocation case).
On one hand, we agree with the State that the constitutional genesis for
a child’s right to effective counsel differs from that for the criminal
defendant—and different origins yield different tests. But on the other
hand, we cannot endorse a less stringent standard for children, given their
vulnerability and the special relationship children share with the State by
way of the parens patriae doctrine. Looking both at the constitutional and
statutory origins for a child’s right to counsel, along with the juvenile
system in which that right manifests, we see that a child’s attorney
assumes a role in a disposition-modification hearing that is altogether
different from an attorney in a criminal proceeding. Accordingly, we
conclude that a child’s ineffective-assistance-of-counsel claim in a
disposition-modification hearing is better evaluated under a Fourteenth
Amendment due process standard, not the Sixth Amendment’s Strickland
test.
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Yet we also conclude that Baum’s standard, which basically asks only
whether the attorney was present, provides too low a benchmark for
measuring counsel’s performance in juvenile proceedings. So today we
apply a due process test assessing the ineffective assistance of counsel that
takes into account the distinguishing features of juvenile law. This test
considers counsel’s overall performance and then focuses on whether that
performance ensured the juvenile received a fundamentally fair hearing
that resulted in a disposition serving the child’s best interests.
I. A.M.’s right to effective counsel comes from the
Fourteenth Amendment’s due process guarantee
and, therefore, must be evaluated under a due
process standard and not the Strickland standard.
Over fifty years ago, the Supreme Court of the United States handed
down its landmark decision in In re Gault, holding that juveniles have a
constitutional right to counsel in delinquency proceedings. 387 U.S. 1, 36–
37 (1967), abrogated on other grounds by Allen v. Illinois, 478 U.S. 364 (1986).
Recognizing that juvenile delinquents could potentially face a “loss of . . .
liberty . . . comparable in seriousness to . . . felony prosecution[s],” the
high Court concluded the due process clause of the Fourteenth
Amendment requires that juveniles have counsel to ensure they receive
fair proceedings. Id. at 36, 41. As with an adult criminal defendant, the
Court explained, a “juvenile needs the assistance of counsel to cope with
problems of law, to make skilled inquiry into the facts, to insist upon
regularity of the proceedings, and to ascertain whether he has a defense
and to prepare and submit it.” Id. at 36 (footnote omitted).
Though at the time Gault was decided, Indiana had long “followed the
‘fair treatment’ under ‘due process’ rule in dealing with juvenile
problems,” this Court, in Bible v. State, expressly acknowledged the
Supreme Court’s mandate that “Fourteenth Amendment standards of
procedural due process are applicable to juvenile proceedings.” 253 Ind.
373, 385, 387–88, 254 N.E.2d 319, 325, 326 (1970). In evaluating the due
process demands for juveniles (in the context of a child’s right to a jury
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trial), this Court—citing the State’s parens patriae power—rejected an
approach of grafting criminal standards wholesale onto juvenile matters
because significant differences separate juvenile from criminal
proceedings. Id. at 321–23 (discussing the history of juvenile law in
Indiana). Unlike their criminal counterparts, Indiana’s juvenile courts
provide a child “the closest scrutiny and care in order to help him to avoid
a life of crime.” Id. at 323. To that end, under Indiana law, juvenile
delinquency hearings are “conducted free from the formalities, procedural
complexities, and inflexible aspects of criminal proceedings.” Id.
Considering these differences this Court concluded that “the
constitutional safeguards vouchsafed a juvenile in [delinquency]
proceedings are determined from the requirements of due process and fair
treatment, and not by the direct application of the clauses of the
Constitution which in terms apply to criminal cases.” Id. at 326 (internal
quotation marks omitted) (quoting Pee v. United States, 274 F.2d 556, 559
(D.C. Cir. 1959)).
In the years since Bible, we’ve elaborated on the differences between the
juvenile and criminal systems, namely how the parens patriae doctrine
animates the former system, setting it apart from the latter in both theory
and practice. We’ve explained that Indiana’s juvenile justice system gives
“the court the power to step into the shoes of the parents” in order to
“further the best interests of the child.” In re K.G., 808 N.E.2d 631, 635, 636
(Ind. 2004). This foundation for juvenile law distinguishes it from criminal
law because, while children generally enjoy the same constitutional
guarantees against governmental deprivation as adults, “the State is
entitled to adjust its legal system to account for children’s vulnerability
and their needs for ‘concern, . . . sympathy, and . . . paternal attention.’” Id.
at 636 (quoting Bellotti v. Baird, 443 U.S. 622, 635 (1979)). Reflecting this
goal, our statutory law gives judges “broad discretion” over juvenile
proceedings. Id.
Almost half a century removed from Gault and Bible, we heed their
lessons still. Though parallels exist between Indiana’s criminal and
juvenile systems, there remain significant differences separating the two,
not least of which are the constitutional origins for criminal and juvenile
rights. Since a juvenile’s constitutional rights arise from the Fourteenth
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Amendment’s due process guarantee, they must be applied and assessed
through a due process lens. Nevertheless, as we discuss below, we do not
see the Baum standard as a suitable test to evaluate A.M.’s (and similarly
situated juveniles’) ineffective-assistance-of-counsel claims.
II. A test founded in due process that ensures the
juvenile fundamental fairness must be applied to
assess counsel’s effectiveness in a disposition-
modification hearing.
Though we decline to adopt the Sixth Amendment’s rigorous Strickland
standard, we do not believe due process provides juveniles—vulnerable
as they are—with “lesser standard[s].” See Baum, 533 N.E.2d at 1201. As
the Supreme Court of the United States said in Gault, the child needs
counsel’s “guiding hand” to navigate “every step in the proceedings
against him.” 387 U.S. at 36 (citation omitted). We do not see Baum’s
standard—which essentially asks only whether the attorney appeared to
represent her client in a fair proceeding that resulted in a judgment—as an
adequate measure of counsel’s performance in juvenile matters. We,
therefore, elect to bypass Baum’s test and apply a different due process
standard to assess whether counsel rendered the juvenile ineffective
assistance in the disposition-modification hearing.
We find that standard in cases evaluating parents’ right to counsel in
termination-of-parental-rights (TPR) proceedings. On first impression, it
may seem inapt to compare a parent’s right to effective assistance of
counsel in a TPR matter to a child’s right to effective counsel in a
delinquency-modification proceeding. But these two groups of litigants
share striking similarities. First, both the parents’ and the child’s rights to
counsel share the same statutory and constitutional origins. I.C. § 31-32-4-
1; see U.S. Const. amend. XIV, § 1. Second, these statutory and
constitutional rights are vindicated in parallel proceedings that are
“dramatically different from criminal proceedings” because they focus on
the best interests of the child and not the child’s guilt or innocence. See
Baker, 810 N.E.2d at 1037, 1039.
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In Baker, this Court, when considering the method of assessing an
ineffective-assistance-of-counsel claim in TPR proceedings, rejected both
the Strickland and Baum standards. Id. at 1036–37. The Court opted instead
to tweak Baum’s due process test to address the important interests at
stake:
Where parents whose rights were terminated upon trial
claim on appeal that their lawyer underperformed, we
deem the focus of the inquiry to be whether it appears
that the parents received a fundamentally fair trial
whose facts demonstrate an accurate determination. The
question is not whether the lawyer might have objected
to this or that, but whether the lawyer’s overall
performance was so defective that the appellate court
cannot say with confidence that the conditions leading
to the removal of the children from parental care are
unlikely to be remedied and that termination is in the
child’s best interest.
Id. at 1041 (footnote omitted).4 In articulating this test, this Court reasoned
that, “[b]ecause of the doctrine of Parens Patriae and the need to focus on
the best interest of the child, the trial judge, who is the fact finder, is
required to be an attentive and involved participant in the process.” Id.
(quoting In re Adoption of T.M.F., 573 A.2d 1035, 1042–43 (Pa. Super. 1990)).
We observed that, since TPR and juvenile proceedings require “judicial
involvement that is much more intensive” than in most criminal cases,
“the role of the lawyer, while important, does not carry the deleterious
impact of ineffectiveness that may occur in criminal proceedings.” Id.
(quoting In re Adoption of T.M.F., 573 A.2d at 1042–43).
4The Baker Court labeled its ineffective-assistance-of-counsel test as a “similar approach” to
Baum. 810 N.E.2d at 1041 n.6. And in Graves, this Court described our Baker test as “something
akin to the Baum standard.” 823 N.E.2d at 1196 n.4.
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We find Baker’s reasoning instructive and relevant to the question
before us now. Indeed, because of the similarities between parents’ and
children’s due process rights, and between the roles of the court and
counsel in TPR and juvenile proceedings, we draw on Baker to establish an
ineffective-assistance-of-counsel standard for cases like the one before us
today.
So, when a juvenile raises an ineffective-assistance-of-counsel claim
following a modified disposition, we focus our inquiry on “whether it
appears that the [juvenile] received a fundamentally fair [hearing where
the] facts demonstrate” the court imposed an appropriate disposition
considering the child’s best interests. See id.; I.C. § 31-37-18-6. In assessing
fundamental fairness, a court should not focus on what the child’s lawyer
might or might not have done to better represent the child. Rather, the
court should consider “whether the lawyer’s overall performance was so
defective that the . . . court cannot say with confidence that the” juvenile
court imposed a disposition modification consistent with the best interests
of the child. See Baker, 810 N.E.2d at 1041.
We now turn our attention to the facts before us to determine whether,
under this standard, A.M.’s counsel performed ineffectively.
III. A.M. received effective assistance of counsel
during his disposition-modification hearing.
A.M. believes his attorney failed to effectively assist him during the
modification hearing because his counsel expressed confusion at A.M.’s
downward-spiraling behavior rather than advocate for a placement other
than the DOC. See Oral Argument at 1:15–2:02. But counsel’s argument,
when considered in context, reflected what everybody else in the
courtroom already knew—that this was A.M.’s last chance. Parsing
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through the record,5 and considering counsel’s overall performance, we
see that counsel collaborated with the judge, the probation officer, and the
prosecutor to ensure A.M. received a fundamentally fair proceeding that
resulted in an appropriate disposition serving A.M.’s best interests.
The record shows that counsel negotiated an agreement in which the
burglary and drinking allegations against A.M. were dropped. What’s
more, counsel’s statement at the hearing acknowledged A.M.’s strengths
and weaknesses, offering a candid assessment of A.M.’s situation. Without
glossing over A.M.’s faults, counsel advocated for his client, calling him “a
good kid” with “a bright future ahead of him.” Tr. pp. 6–7. Counsel also
noted that A.M.’s best interests required that he attend school, which
meant receiving an education through the DOC since he’d been expelled
from the alternative program. Ultimately, counsel expressed hope that,
through a modified disposition to the DOC, A.M. could be rehabilitated
from a juvenile delinquent to a law-abiding adult.
When the judge sits in a parental role over a collaborative setting, good
advocacy may not include adversarial argument that highlights the
juvenile’s positive traits alone. In proceedings that turn on the best
interests of the child given the past and present circumstances, effective
assistance of counsel that ensures fundamental fairness may take different
forms and tones. Considering counsel’s overall performance here, we
cannot say he performed so defectively that we lose confidence in the
juvenile court’s disposition modification. Given A.M.’s inability to
rehabilitate in less-restrictive settings, his expulsion from school, and his
increasingly violent behavior, placement in the DOC proved consistent
with his best interests. In our view, A.M.’s counsel helped ensure A.M.
received a fundamentally fair hearing where the court reached an accurate
disposition that furthered his best interests.
5Because A.M. brought this ineffective-assistance-of-counsel claim on direct appeal rather
than a Trial Rule 60(B) motion, we have a limited record before us. For example, we do not
have the benefit of testimony revealing how the parties, probation, A.M.’s parents, and the
court arrived at the decision to make A.M. a ward of the DOC.
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Conclusion
For these reasons, we affirm the juvenile court’s order that modified
A.M.’s disposition to the DOC.
Rush, C.J., and David and Massa, JJ., concur.
Slaughter, J., concurs in judgment with separate opinion.
ATTORNEYS FOR APPELLANT
Cara Schaefer Wieneke
Joel C. Wieneke
Wieneke Law Office, LLC
Brooklyn, Indiana
ATTORNEYS FOR AMICI CURIAE JUVENILE LAW CENTER AND
NATIONAL JUVENILE DEFENDER CENTER
Amy Karozos,
Greenwood, Indiana
Marsha L. Levick
Juvenile Law Center
Philadelphia, Pennsylvania
ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General
Stephen R. Creason
Angela N. Sanchez
Lee M. Stoy, Jr.
Deputy Attorneys General
Indianapolis, Indiana
Indiana Supreme Court | Case No. 19S-JV-603 | November 12, 2019 Page 13 of 13
Slaughter, J., concurring in judgment.
I agree with the Court that A.M.’s ineffective-assistance-of-counsel
claim lacks merit. I also agree that A.M.’s claim is not governed by the
rigorous standard announced in Strickland v. Washington, 466 U.S. 668
(1984). Only cases implicating the Sixth Amendment’s right to counsel
trigger Strickland scrutiny. Instead, for non-criminal cases, counsel’s
effectiveness is subject to the minimal procedural-due-process standard
under the Fourteenth Amendment, which requires fundamental fairness.
As we have held, counsel meets this standard “if counsel in fact appeared
and represented the [client] in a procedurally fair setting which resulted in
a judgment of the court”. Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989).
Relief to the client is thus available only “in the ‘extraordinary
circumstances’” that the lawyer “abandoned the case and prevented the
client from being heard”. Graves v. State, 823 N.E.2d 1193, 1196 (Ind. 2005)
(quoting Harris v. United States, 367 F.3d 74, 77 (2d Cir. 2004)). See also
Waters v. State, 574 N.E.2d 911, 912 (Ind. 1991) (“Counsel, in essence,
abandoned his client and did not present any evidence in support of his
client’s claim.”). This is, to be sure, a low bar for assessing whether
counsel was constitutionally ineffective.
We have previously invoked Baum, or a standard like Baum, in other
fundamental-fairness inquiries. See Graves, 823 N.E.2d at 1196; Baker v.
Marion Cty. Office of Family & Children, 810 N.E.2d 1035, 1041 n.6 (Ind.
2004). But the Court today announces a heightened “Baum-plus” standard
for assessing counsel’s effectiveness in this juvenile, non-criminal
proceeding: whether counsel’s overall performance at the disposition
hearing “was so defective that . . . [we] cannot say with confidence that the
juvenile court imposed a disposition modification consistent with the best
interests of the child.” (Internal citation omitted).
My objection to the Court’s approach is that I do not perceive any
meaningful difference between the “Baum-plus” standard the Court
embraces today and the Strickland standard it purportedly rejects.
Strickland asks whether counsel’s performance fell below some minimal
level of competence, and whether the sub-par performance was
prejudicial. Today’s “Baum-plus” standard also is a two-prong inquiry,
asking whether counsel’s performance was deficient and, if so, whether
the client was prejudiced. Prejudice under Strickland is straightforward—
the result of the proceeding likely would have been different had counsel
performed capably. But prejudice under the Court’s “Baum-plus”
standard is unclear and prompts more questions than answers, including
what “best interests of the child” even means in these proceedings:
• Is it solely a results-based inquiry?
• Or does process matter?
Also unclear is what yardstick applies for assessing whether a given
disposition serves the child’s best interests:
• Is the child’s own view dispositive?
• Is the child’s view even relevant?
• Is it appropriate to ask the paternalistic question whether the
outcome is good for the child’s long-term interest, even if the child
does not presently see things that way?
Yet another question is whether there must be a causal link between the
lawyer’s deficient performance and the judicial outcome? In other words,
if the court would have decided the matter contrary to the child’s best
interests even if counsel had performed competently, should it matter that
counsel was not up to snuff? The answers to these questions are not self-
evident. Rather than wrestle with these questions, I would simply apply
the Baum standard and, on this record, affirm the trial court.
For these reasons, I concur in our Court’s judgment but do not join its
opinion.
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