A.W. v. State of Indiana (mem. dec.)

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 11 2020, 8:51 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kelly Starling Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Appellate Division Indianapolis, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

A.W., February 11, 2020 Appellant-Respondent, Court of Appeals Case No. 19A-JV-1792 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Marilyn A. Appellee-Petitioner Moores, Judge The Honorable Geoffrey A. Gaither, Magistrate Trial Court Cause No. 49D09-1902-JD-146

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020 Page 1 of 12 Case Summary [1] Sixteen-year-old A.W. was adjudicated delinquent for conduct amounting to

level 5 felony robbery if committed by an adult. He now appeals, claiming that

the trial court erred in granting the State’s oral motion for continuance and in

ordering his placement in the Indiana Department of Correction (“DOC”). We

affirm.

Facts and Procedural History [2] A.W. was born in November 2002. At age three, he lost his father, who was

killed in a police shooting. He was raised by his mother, with assistance from

his grandparents. By age sixteen, he had accumulated ten delinquency

referrals, some of which involved multiple allegations of delinquent behavior.

A.W.’s referrals began at age twelve, when he was adjudicated delinquent for

truancy. At ages fourteen and fifteen, he had two true findings for conduct

amounting to level 5 felony battery resulting in bodily injury to a public safety

officer, one for level 6 felony receiving stolen auto parts, one for level 6 felony

escape, and one for class A misdemeanor battery resulting in bodily injury, all if

committed by an adult. At age sixteen, he faced three different referrals that

ultimately resulted in four true findings, one for conduct amounting to level 6

felony escape, one for conduct amounting to level 6 felony resisting law

enforcement, one for conduct amounting to class C misdemeanor operating a

motor vehicle without ever receiving a license, all if committed by an adult, and

the present cause, which resulted in a true finding for conduct amounting to

level 5 felony robbery if committed by an adult.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020 Page 2 of 12 [3] The facts underlying A.W.’s true finding for robbery are as follows. On

December 16, 2018, Jasmine Burch pushed her eighty-year-old, wheelchair-

bound mother, Janja Jordan, into an Indianapolis discount store. When the

two were between the double entrance doors, an assailant later identified as

A.W. grabbed the elderly Jordan’s purse, which she had on her lap, clutched in

her left hand. A.W. ran out the front entrance, and Burch chased him outside.

A.W. eventually dropped the purse as well as a cell phone. Police obtained a

search warrant for the phone and ascertained that it belonged to A.W.’s

mother. Jordan suffered injury to her left hand, on which she had recently had

surgery. Burch positively identified A.W. from a photo array, and A.W. was

taken into custody.

[4] The State charged A.W. with a delinquent act that would amount to level 5

felony robbery if committed by an adult. A.W. was released on electronic

monitoring on February 12, 2019. Two weeks later, he removed his electronic

monitoring device, and his whereabouts were unknown. He eventually was

apprehended, detained, and charged in another cause (“Cause 215”) with a

delinquent act amounting to level 6 felony escape if committed by an adult.

The trial court set a factfinding hearing for May 23, 2019, for the current cause,

Cause 215, and a third cause (“Cause 467”). 1

1 Cause 467 involved five alleged acts of delinquency against A.W., three of which were dismissed and two of which resulted in true findings: one for conduct amounting to level 6 felony resisting law enforcement and the other for conduct amounting to class C misdemeanor operating a motor vehicle without ever having received a license, if committed by an adult.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020 Page 3 of 12 [5] On May 23, the State requested a continuance in the current cause and Cause

467. Cause 215 was litigated that day and resulted in a true finding against

A.W. for escape. The State’s oral request for continuance in the current cause

was due to the absence of Jordan, the victim. The State explained that Jordan

had notified the prosecutor’s office the day before that she would not be able to

attend the factfinding hearing because her husband had been diagnosed with

cancer. The prosecutor stated that she believed that she could procure Jordan’s

attendance with a continuance of about a week. A.W. objected, requested that

the court require the State to submit its motion in writing as required by statute,

and requested a discharge. The trial court did not order the State to submit a

written motion and instead granted its motion for continuance. At the June 25,

2019 factfinding hearing in the current cause, A.W. renewed his request for

discharge, and the prosecutor explained in greater detail the circumstances that

precipitated Jordan’s absence from the May 23 hearing. The trial court denied

A.W.’s motion for discharge, conducted the hearing, and entered a true finding

for conduct amounting to level 5 felony robbery if committed by an adult.

[6] The trial court conducted a dispositional hearing and, due largely to A.W.’s

lengthy history of true findings and of violating less restrictive placements,

placed A.W. in the DOC until age twenty-one, with a recommendation of a six-

month term. A.W. now appeals. Additional facts will be provided as

necessary.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020 Page 4 of 12 Discussion and Decision

Section 1 – We find no reversible error in the trial court’s grant of the State’s oral motion for continuance. [7] A.W. contends that the trial court committed reversible error in granting the

State’s oral motion for continuance. Rulings on non-statutory motions for

continuance lie within the trial court’s discretion and will be reversed only for

an abuse of that discretion and resulting prejudice. Barber v. State, 911 N.E.2d

641, 645-46 (Ind. Ct. App. 2009). Where, as here, a statute governs the grant or

denial of a continuance, we apply a de novo standard, interpreting the language

of the statute. Day v. State, 57 N.E.3d 809, 811 (Ind. 2016).

[8] Indiana Code Section 31-37-11-8 governs circumstances in which a juvenile

seeks discharge and the State seeks a continuance due to the absence of a

witness:

(a) If a child moves for discharge, the prosecuting attorney may move for a continuance of the factfinding hearing or waiver hearing because of the absence of a witness if the prosecuting attorney makes an official statement:

(1) setting forth the name and address of the witness if known;

(2) indicating the probability of procuring the witness’s testimony within a reasonable time;

(3) showing that the absence of the witness has not been procured by the act of the prosecuting attorney;

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020 Page 5 of 12 (4) stating the facts to which the prosecuting attorney believes the witness will testify and the prosecuting attorney’s belief that the facts are true; and

(5) stating that the prosecuting attorney is unable to prove the facts specified under subdivision (4) through the use of any other witness whose testimony may be as readily procured.

(b) Upon the child’s request, the court shall order that the prosecuting attorney’s motion and official statement be made in writing.

(Emphasis added.)

[9] The highlighted portion of the statute indicates that its language is mandatory

rather than discretionary. See Taylor v. State, 7 N.E.3d 362, 365 (Ind. Ct. App.

2014) (“It is well settled that the use of the word ‘shall’ is construed as

‘mandatory language creating a statutory right to a particular outcome after

certain conditions are met.’”) (quoting Alden v. State, 983 N.E.2d 186, 189 (Ind.

Ct. App. 2013), trans. denied). A.W. objected to the State’s oral motion to

continue, requested a discharge, and requested that the court order the State to

submit the motion in writing. The trial court was required by statute to order

the State to submit its motion in writing and erred when it failed to do so.

[10] The State contends that any error in this regard is harmless. Harmless error is

error that does not affect the substantial rights of a party. Camm v. State, 908

N.E.2d 215, 225 (Ind. 2009). The May 23 factfinding hearing involved three

separate causes against A.W. The present cause and Cause 467 were continued

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020 Page 6 of 12 as a result of the State’s oral motion. The remaining cause, Cause 215, was

heard that day and resulted in a true finding for escape. Having been found

true, A.W. was detained in that cause, not as a result of the continuance in the

present cause or Cause 467.

[11] Moreover, the continued factfinding hearing was ultimately commenced within

the statutorily prescribed period. See Ind. Code § 31-37-11-9 (requiring court to

commence continued factfinding hearing within ninety days; court shall

discharge the juvenile if it does not do so within ninety days). Here, the

prosecutor verbally requested a continuance due to Jordan’s absence at the

beginning of the May 23 factfinding hearing. At that time, the prosecutor

indicated her belief that she could secure Jordan’s attendance with a

continuance of about one week. The hearing ultimately was commenced thirty-

three days after the grant of the continuance, well within the statutory limit.

Additionally, we note that of the five items of information that must be

included in a written motion for continuance, per Indiana Code Section 31-37-

11-8(a), Jordan’s address appears to be the only one missing from the

prosecutor’s oral motion. A.W. was well aware of Jordan’s identity and has

not demonstrated prejudice regarding the lack of a written motion containing

her address. The prosecutor’s explanation that the elderly Jordan had notified

her by phone the previous day she would not be able to attend the factfinding

hearing because her husband had been diagnosed with cancer is sufficient to

show that the prosecutor did not procure Jordan’s absence. The prosecutor also

indicated that she believed that she could secure Jordan’s participation within a

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020 Page 7 of 12 reasonable time. In short, A.W. has failed to demonstrate prejudice resulting

from the trial court’s failure to order the State to submit its continuance motion

in writing. As such, the error was harmless.

Section 2 – The trial court acted within its discretion in ordering A.W.’s placement in the DOC. [12] A.W. also asserts that the trial court abused its discretion in ordering his

placement in the DOC. The disposition of a juvenile adjudicated a delinquent

is a matter committed to the trial court’s discretion, subject to the statutory

considerations of the child’s welfare, community safety, and the policy favoring

the least harsh disposition. J.S. v. State, 110 N.E.3d 1173, 1175 (Ind. Ct. App.

2018), trans. denied (2019). We review a trial court’s disposition for an abuse of

discretion, which occurs if the decision is clearly against the logic and effect of

the facts and circumstances before it or the reasonable inferences that may be

drawn therefrom. Id. In determining whether a trial court has abused its

discretion, we neither reweigh evidence nor judge witness credibility. Id.

[13] The crux of A.W.’s argument is that the trial court chose the harshest

placement option when less restrictive alternatives were available. Juvenile

court proceedings are civil, not criminal, in nature. Id. “[T]he goal of the

juvenile process is rehabilitation so that the youth will not become a criminal as

an adult.” Id. at 1175-76 (quoting R.H. v. State, 937 N.E.2d 386, 388 (Ind. Ct.

App. 2010)). Thus, juvenile courts have a variety of placement choices.

Indiana Code Section 31-37-18-6 reads,

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020 Page 8 of 12 If consistent with the safety of the community and the best interest of the child, the juvenile court shall enter a dispositional decree that:

(1) is:

(A) in the least restrictive (most family like) and most appropriate setting available; and

(B) close to the parents’ home, consistent with the best interest and special needs of the child;

(2) least interferes with family autonomy;

(3) is least disruptive of family life;

(4) imposes the least restraint on the freedom of the child and the child’s parent, guardian, or custodian; and

(5) provides a reasonable opportunity for participation by the child’s parent, guardian, or custodian.

[14] Indiana Code Section 31-37-18-9(a) requires the trial court to state its reasons

for the disposition chosen. This involves the trial court’s issuance of written

findings and conclusions concerning the child’s care, treatment, rehabilitation,

or placement; parental participation in the plan; efforts made to prevent the

child’s removal from the parent; family services offered; and the court’s reasons

for its disposition. Ind. Code § 31-37-18-9(a)(1)-(5).

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020 Page 9 of 12 [15] Here, the trial court’s findings indicate its consideration of the statutory factors

and its reasons for ordering A.W.’s placement in the DOC. For example, by

age sixteen, A.W. had accumulated ten delinquency referrals, the recitation of

which comprises a significant portion of the dispositional order. The nature of

his delinquent conduct has been serious and sometimes violent. For example,

his record includes two true findings for conduct amounting to level 5 felony

battery with injury to a public safety official if committed by an adult. He has

four true findings for conduct amounting to a level 6 felony if committed by an

adult, i.e., resisting law enforcement, receiving stolen property, and escape, and

two for misdemeanor level conduct. Most of his previous dispositions were

modified due to his commission of each new offense. He had two additional

causes pending in addition to the current delinquency petition, and those causes

resulted in two felony true findings and one misdemeanor true finding. The

trial court emphasized that less restrictive placements of home care and

placement outside the home at Youth Outlook and Options had already been

tried and had proven unsuccessful. Appealed Order at 4-5; see also Tr. Vol. 2 at

115 (court’s emphasis at dispositional hearing that DOC was only option not

yet tried and DOC would provide structure, security, separation, and

programming).

[16] A.W. points to his high level of family support as evidence that he deserves

another chance at community and structured home placement. Our review of

the record leaves no doubt as to his family’s strong support. At the

dispositional hearing, various family members pled for mercy on A.W.’s behalf

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020 Page 10 of 12 and testified concerning their love and support for him throughout his

childhood, with particular emphasis on his father’s death when he was just

three years old. However, the number and recent escalation of A.W.’s

delinquency referrals indicate that the family’s efforts, well-meaning though

they are, have failed to produce more positive results for A.W.

[17] A.W. also relies on psychologist Dr. Jim L. Dalton’s report as support for a less

restrictive placement. Dr. Dalton reported that A.W.’s mental status and

presentation had improved since his previous evaluation in 2017. Respondent’s

Ex. B. However, Dr. Dalton ultimately found that A.W. was an “increasing

delinquency risk,” had a longstanding “penchant toward elopement,” and

presents “some danger to others as he has been willing to violate the rights of

others for his own personal gain.” Id. Dr. Dalton explained that because A.W.

“appears to present risks to the community, it is difficult to support another try

at community-based services. Especially given the increase in antisocial interest

and trajectory for this young man.” Id. He ultimately concluded that the

“updated assessment findings would support commitment to the [DOC].” Id.

[18] Simply put, the trial court did not choose the most restrictive placement in a

vacuum, but rather made a measured decision representing “the least restrictive

and most appropriate setting” based on A.W.’s history, community safety, and

A.W.’s best interest. Appealed Order at 4. Based on the foregoing, we

conclude that the trial court acted within its discretion in ordering A.W.’s

placement in the DOC. Accordingly, we affirm.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020 Page 11 of 12 [19] Affirmed.

May, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020 Page 12 of 12