In Re: The Matter of D.A. a Child Alleged to be a Delinquent Child v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 18, 2017
• Docket: 47A01-1705-JV-1109
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 18 2017, 11:09 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer G. Schlegelmilch Curtis T. Hill, Jr. Lawrence County Attorney General of Indiana Public Defender Agency Katherine Cooper Bedford, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re: The Matter of D.A. a December 18, 2017 Child Alleged to be a Delinquent Court of Appeals Case No. Child, 47A01-1705-JV-1109 Appellant-Respondent, Appeal from the Lawrence Circuit Court v. The Honorable Andrea McCord, Judge State of Indiana, Trial Court Cause No. Appellee-Petitioner. 47C01-1608-JD-266

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 47A01-1705-JV-1109| December 18, 2017 Page 1 of 5 Case Summary [1] Appellant-Respondent D.A. was adjudicated to be a delinquent child for

committing what would be Class A misdemeanor criminal trespass if

committed by an adult. The juvenile court, following a hearing, ordered D.A.

to pay restitution. D.A. argues that the trial court abused its discretion when it

found that he had the ability to pay restitution. Concluding there is sufficient

evidence, we affirm.

Facts and Procedural History [2] On January 23, 2017, D.A. admitted to the allegations that formed the basis for

an act that would be Class A misdemeanor criminal trespass if committed by an

adult, and the State dismissed the allegations that formed the basis for an act

that would be Level 6 felony auto theft if committed by an adult. On April 20,

2017, the juvenile court held a restitution hearing in which Shelby Pritchett

testified that her car had been stolen and that items from her vehicle were

missing when her vehicle was returned to her. According to Pritchett’s

testimony, the missing items consisted of CDs, shoes, a phone charger, and

various charms and trinkets. The State also presented evidence that it would

cost Pritchett $363 to replace the missing items.

[3] D.A. also testified during the hearing. In his testimony, D.A. told the juvenile

court that he was sixteen years old and lived at the Jackson County Juvenile

Home. D.A. stated that he did not have a job, was completing his GED, and

Court of Appeals of Indiana | Memorandum Decision 47A01-1705-JV-1109| December 18, 2017 Page 2 of 5 expected to take the GED test in four or five months. D.A. further testified that

he did not own any property in the form of bank accounts, a vehicle, a house,

jewelry, or stocks and bonds. After hearing the evidence, the juvenile court

ordered D.A. to pay restitution in the amount of $363.

Discussion and Decision [4] D.A. raises the following restated issue on appeal: whether the juvenile court

abused its discretion when it ordered him to pay restitution.1 Specifically, D.A.

asserts that the evidence did not show that he had an ability to pay the

restitution. An order of restitution is a matter well within the juvenile court’s

discretion. T.C. v. State, 839 N.E.2d 1222, 1225 (Ind. Ct. App. 2005). An abuse

of discretion occurs when the juvenile court’s action is clearly erroneous and

against the logic and effect of the facts and circumstances before the court, or

the reasonable, probable, and actual deductions to be drawn therefrom. C.C. v.

State, 831 N.E.2d 215, 217 (Ind. Ct. App. 2005).

[5] Indiana Code § 31-37-19-5(b)(4) provides that the trial court may order a

juvenile delinquent to pay restitution if the victim provides reasonable evidence

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

“Unlike Indiana Code Section 35-38-2-2.3, which governs restitution in the

1 D.A. also argues for the first time on appeal that the victim’s loss was not a result of his criminal trespass. See Indiana Code § 35-50-5-3(a). He did not raise this issue at the juvenile court thereby waiving it for appellate review. See Veerkamp v. State, 7 N.E.3d 390, 395 (Ind. Ct. App. 2014).

Court of Appeals of Indiana | Memorandum Decision 47A01-1705-JV-1109| December 18, 2017 Page 3 of 5 context of adult offenders, there is no express statutory requirement that the

trial court inquire whether a juvenile offender has the ability to pay before

ordering restitution.” T.C., 839 N.E.2d at 1224. However, this court has held

that “equal 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.” M.L. v. State, 838 N.E.2d 525, 527

(Ind. Ct. App. 2005).

[6] Here, the juvenile court did inquire into D.A.’s ability to pay during a hearing.

After hearing all of the evidence, including D.A.’s own testimony, the juvenile

court made specific findings with respect to D.A.’s ability to pay:

[T]his child is a member and participant in the Juvenile Problem Solving Court. This child will be on probation for a lengthy period of time. This Court monitors this child’s progress on a weekly basis at Problem Solving Court staffing. The Court is aware of where this child has been placed because this court placed this child there. This court is also aware that this child has been ordered to find a job while he’s in the Jackson County Group Home. So, I’m not ordering this child to pay the three- hundred-and-sixty-three dollars ($363.00) right now, but I am certainly ordering him to find a job and pay the three-hundred- and-sixty-three dollars ($363.00) in restitution before he is done with probation and that is a condition of his probation.

Tr. Vol. II p. 17.

[7] In fact, at the time of the hearing, D.A. testified that he was in the process of

applying for jobs. Furthermore, D.A. did not present any evidence that he

suffered from any physical, mental, or emotional disability that would prevent

Court of Appeals of Indiana | Memorandum Decision 47A01-1705-JV-1109| December 18, 2017 Page 4 of 5 him from obtaining employment. Based on all of the evidence presented during

the hearing, there was sufficient evidence for the trial to conclude that D.A. had

an ability to pay. Consequently, the juvenile court did not abuse its discretion

when it found that D.A. had an ability to pay the restitution.

[8] The judgment of the juvenile court is affirmed.

Riley, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 47A01-1705-JV-1109| December 18, 2017 Page 5 of 5