Anton v. State

224 N.E.2d 516, 140 Ind. App. 574, 1967 Ind. App. LEXIS 419

• Court: Indiana Court of Appeals
• Decided: March 30, 1967
• Docket: 20,545
• Status: Published

Opinions

Pfaff, P. J.

— This is an appeal from the Porter County Juvenile Court by Robert Anton, a sixteen year old minor, who was charged with illegal possession of alcohol. Counsel for the appellant petitioned the court for a change of judge and the petition was denied. The court, having previously studied the submitted report of the probation officer, found the minor had “. . . committed an act of delinquency in that he entered the property of another without permission and consumed alcoholic beverages; and now orders that he report to the probation officer on Friday, January 28, 1966, at 4:00 P.M. to be then taken and placed in juvenile dentention until Sunday, January 30, 1966, provided, however, that if he desires to go to church and/or Sunday school, he will be released to attend such services and return to detention afterwards.

The appellant relied upon three grounds for appeal:

1. That the decision of the Juvenile Court is contrary to law and the evidence.

2. That the Juvenile Court improperly refused to grant the Petition for Change of Judge.

3. That the Juvenile Court has illegally instituted procedures whereby the probation officer conducts hearings and enforces a general order of uniform punishment for all alcohol violations.

In the appellant’s first allegation of error he contends the probation officer determines the evidence and makes his decision in accordance with a general order requiring detention for a week-end in all cases such as the case at bar.

A pre-hearing investigation is mandatory before a hearing may be granted as provided by Burns’ Indiana Statutes, 1966 Supplement, § 9-3113a. The evidence clearly shows the court entered judgment in accordance with the recommendation of the probation officer.

The transcript reveals that the court’s uniform penalty for first offenders is a mere policy of the court: (Tr. p. 60, 61).

“There isn’t any written law that says that every person under the age of eighteen that has taken liquor will spend time in jail. It has been a policy we follow here. Frankly, it has. worked out very well.

“We feel that so many of the cases of these young people getting involved with alcohol and becoming involved in more serious crime than merely being at a school dance drinking. Much more serious. Among which are automobile accidents, juvenile pregnancies, and many other problems that they come into have come from drinking.

“It is my feeling, and policy I follow, when they become involved with alcohol, we give these two nights, is really all it amounts to, in detention. Because we can get to them that way, have them realize what they have done wrong and see what they are getting into.”

Appellant argues that a Juvenile Court judge should analyze and investigate each individual case. The individual’s home, circumstances, environment and background should be considered. The psychological needs and problems of the child should be weighed. This court agrees with the appellant’s proposition but cannot find that it was not applied in the case at bar.

The second ground relied upon by the appellant was that the Juvenile Court improperly refused to grant Petition for Change of Judge. The basis of appellant’s argument is that the judgment of the court was too harsh and contrary to the recommendation of the probation officer. In our opinion, it is unnecessary to cite case law to substantiate the fact that the judgment entered by the court was entirely within the established bounds of the court’s discretion.

Appellant’s petition for change of judge was not presented until the beginning of the hearing of the case, and thus was waived in accordance with Supreme Court Rule 1-12 (B) sub. (2), which requires that:

“Any such application for a change of judge . . . shall be filed not later than ten (10) days after the issues are first closed on the merits.”

The exception to the rule is Rule 1-12 (b), sub. 7, which states:

“Provided further, a party shall be deemed to have waived a request for a change of judge or county if a cause is set for trial before the expiration of the date within which a party may ask for a change, evidenced by an order book entry and no objection is made thereto by a party as soon as such party learns of the setting for trial. Such objection, however, must be made promptly and entered of record accompanied with a motion for a change from the judge or county as the case may be, and filed with the court.”

The record clearly designates that the appellant did not meet this requirement.

Prior to the adoption of Supreme Court Rule 1-12, it was customary for trial courts to make rules concerning the time for application for change of venue from the judge and it was repeatedly held that these rules were not applicable when the alleged bias was discovered after the time for such filing. State ex rel. Chambers v. Heil (1951), 229 Ind. 176, 96 N. E. 2d 225. It was further held that where the affidavit stated that the cause for change had been discovered too late to comply with the rule, then the change must be granted. State ex rel. Van Horne v. Sullivan (1934), 206 Ind. 304, 188 N. E. 2d 672; Spencer v. Spencer (1894), 136 Ind. 414, 36 N. E. 210.

Although this precedent would be equally applicable to the case at bar, the appellant’s affidavit did not so allege. Thus, under the Supreme Court Rule 1-12 (b) and the exceptions thereto, the appellant waived his right to a change of judge.

We conclude, therefore, that the trial court did not err in denying the Petition for Change of Judge and that its decision was not contrary to law.

Judgment affirmed.

Bierly and Smith, JJ., concur.

Cook, J., concurs with opinion.