D.M. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 27, 2015
• Docket: 49D05-1408-JV-386
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Mar 27 2015, 10:33 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven J. Halbert Gregory F. Zoeller Carmel, Indiana Attorney General of Indiana Brian Reitz Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

D.M., March 27, 2015

Appellant-Defendant, Court of Appeals Case No. 49A05-1408-JV-386 v. Appeal from the Marion Superior Court

State of Indiana, The Honorable Gary Chavers, Judge Pro Tem, and the Honorable Appellee-Plaintiff Geoffrey Gaither, Magistrate Trial Court Case No. 49D09-1406-JD-1461

Mathias, Judge.

[1] D.M. was adjudicated a delinquent child in Marion Superior Court and ordered

to pay restitution to the victim as a condition of probation. D.M. appeals the

Court of Appeals of Indiana | Memorandum Decision 49A05-1408-JV-386 | March 27, 2015 Page 1 of 6 restitution order and argues that he is indigent; therefore, the trial court abused

its discretion when it ordered D.M. to pay restitution.

[2] We affirm.

Facts and Procedural History

[3] On June 4, 2014, a Marion County Sheriff’s Deputy observed an illegally

parked moped at Arlington High School. After the deputy learned that the

moped had been reported stolen, the deputy asked a school employee if she

knew who had driven the moped to the school. The employee stated that D.M.,

a seventh grade student, had parked the moped illegally on the sidewalk.

[4] At 3:04 p.m., when the students were released, the deputy saw D.M. mount the

moped. When D.M. saw the officer, he sped away. The deputy ordered D.M.

to stop, but he refused, and a chase ensued. D.M. eventually threw the moped

to the ground and ran into a heavily wooded area. D.M. damaged the moped’s

ignition switch, front tire, and light and battery covers.

[5] On June 11, 2014, the State filed a petition alleging that D.M. was a delinquent

child for resisting law enforcement and engaging in criminal mischief, which

are criminal offenses if committed by an adult. D.M. subsequently entered into

a delinquent child admission agreement. The juvenile court adjudicated D.M. a

delinquent child on July 7, 2014, and he was placed on probation.

[6] In the admission agreement, D.M. agreed to pay restitution to the victim for

damages to the moped in an amount “[t]o be determined at a restitution

Court of Appeals of Indiana | Memorandum Decision 49A05-1408-JV-386 | March 27, 2015 Page 2 of 6 hearing.” Appellant’s App. p. 37. At the July 28, 2014 restitution hearing, the

owner of the moped testified to damages in the amount of $481.00. D.M.

argued that he did not have the ability to pay restitution. As a condition of his

probation, D.M. was ordered to pay restitution in the amount of $481.00.

D.M. appeals the restitution order.

Discussion and Decision

[7] Although D.M. agreed to pay restitution in an unspecified amount, he argues

that the trial court abused its discretion when it ordered him to pay $481.00

because he has no ability to pay restitution. “‘The purpose behind an order of

restitution is to impress upon the criminal defendant the magnitude of the loss

he has caused and to defray costs to the victim caused by the offense.’” Rich v.

State, 890 N.E.2d 44, 50 (Ind. Ct. App. 2008) (quoting Carswell v. State, 721

N.E.2d 1255, 1259 (Ind. Ct. App. 1999)), trans. denied.

[8] Pursuant to Indiana Code section 31-37-19-5(b)(4), a juvenile court may order a

child to “pay restitution if the victim provides reasonable evidence of the

victim’s loss, which the child may challenge at the dispositional hearing.” The

restitution order is within the court’s discretion, and this Court will reverse only

upon a showing of an abuse of discretion. P.J. v. State, 955 N.E.2d 234, 235

(Ind. Ct. App. 2011). An abuse of discretion occurs when the trial court’s

determination is clearly against the logic and effect of the facts and

circumstances before the court, or the reasonable, probable, and actual

deductions to be drawn therefrom. Id.

Court of Appeals of Indiana | Memorandum Decision 49A05-1408-JV-386 | March 27, 2015 Page 3 of 6 [9] “[E]qual protection and fundamental fairness concerns require that a juvenile

court must inquire into a juvenile’s ability to pay before the court can order

restitution as a condition of probation.”1 M.L. v. State, 838 N.E.2d 525, 529

(Ind. Ct. App. 2005), trans. denied. “[A]s a general rule, ‘when restitution is

ordered as a condition of probation, the trial court must inquire into the

defendant’s ability to pay in order to prevent indigent [juveniles] from being

imprisoned because of their inability to pay.’” J.H. v. State, 950 N.E.2d 731, 735

(Ind. Ct. App. 2011) (quoting M.L., 838 N.E.2d at 528).

[10] Moreover, a juvenile does not waive his right to have the juvenile court inquire

into his ability to pay even though he agrees to pay restitution in an amount to

be determined by the court. Id. at 529-30 (stating that “leaving the amount of

restitution to the discretion of the trial court is not tantamount to waiving one’s

right to have the trial court inquire into his ability to pay”); Cf. P.J. v. State 955

N.E.2d 234, 235-36 (Ind. Ct. App. 2011) (concluding that the juvenile waived

his right to have the juvenile court inquire into his ability to pay where he

entered into an admission agreement and agreed to pay a specific amount of

restitution).

[11] D.M. is fourteen years old. He does not have a bank account, a job, or any

assets. Tr. p. 11.

1 In M.L. v. State, our court also observed that when “restitution is not a condition of probation, but rather a part of an executed sentence, an inquiry into the defendant's ability to pay is not required. In such a situation, restitution is merely a money judgment, and a defendant cannot be imprisoned for non-payment. 838 N.E.2d 525, 529 (Ind. Ct. App. 2005) (internal citations and quotations omitted).

Court of Appeals of Indiana | Memorandum Decision 49A05-1408-JV-386 | March 27, 2015 Page 4 of 6 [12] The State argues that D.M. might be able to obtain employment in the future.

Moreover, the State asserts that D.M.’s failure to pay restitution will not result

in detention and/or revocation of his probation if D.M. “makes every effort to

obtain employment[.]” Appellee’s Br. at 5-6 (citing Ind. Code § 35-38-2-3(g)).

[13] The statute authorizing restitution in juvenile proceedings does not refer to a

juvenile’s ability to pay restitution. See I.C. § 31-37-19-5(b)(4). However, in

adult criminal proceedings, the trial court may order the defendant to pay

restitution after considering what the person can or “will be able to pay.” See

Indiana Code § 35-38-2-2.3(a)(6). In the absence of clear statutory direction, we

believe we should draw guidance from adult restitution proceedings on this

issue. We therefore conclude that juvenile courts may consider the delinquent

child’s current and future ability to pay restitution. See M.L. v. State, 838 N.E.2d

525, 528-529 (Ind. Ct. App. 2005), (holding that the adult statute is instructive

when the juvenile statute is silent), trans. denied.

[14] The State has essentially conceded that fourteen-year-old D.M. is not currently

able to pay restitution. However, on the record before us, we may reasonably

conclude that D.M. has the ability to obtain future employment. Requiring

D.M. to be responsible for the consequences of his delinquent conduct is

consistent with the purpose of restitution. We therefore conclude that the

Court of Appeals of Indiana | Memorandum Decision 49A05-1408-JV-386 | March 27, 2015 Page 5 of 6 juvenile court did not abuse its discretion when it ordered D.M. to pay

restitution.2

[15] Affirmed.

Najam, J., and Bradford, J., concur.

2 Importantly, D.M. may not be detained or have his probation revoked if he remains unable to pay restitution despite his best efforts. See e.g. M.L., 838 N.E.2d at 528.

Court of Appeals of Indiana | Memorandum Decision 49A05-1408-JV-386 | March 27, 2015 Page 6 of 6