J.H. v. State

950 N.E.2d 731, 2011 Ind. App. LEXIS 991

• Court: Indiana Court of Appeals
• Decided: June 3, 2011
• Docket: No. 49A02-1005-JV-560
• Status: Published

Opinions

OPINION

SHARPNACK, Senior Judge.

STATEMENT OF THE CASE

Respondent-Appellant J.H. appeals the restitution order issued by the Marion Superior Court, Juvenile Division. We reverse and remand with instructions.

ISSUES

The following issues are dispositive:

I. Whether the trial court’s $1,117.65 restitution order was based on reasonable evidence.

II. Whether the trial court failed to inquire into the juvenile’s ability to pay the ordered restitution.

FACTS AND PROCEDURAL HISTORY

On February 25, 2010, sixteen-year-old J.H. attempted to enter a neighbor’s home without the neighbor’s permission. In doing so, J.H. damaged a rear door of the neighbor’s residence.

The State filed a petition alleging that J.H. had committed the offenses of attempted unlawful residential entry, a Class D felony if committed by an adult, Indiana Code section 35-43-2-1.5 (1991); and criminal mischief for causing damage in an amount less than $250.00, a Class B misdemeanor if committed by an adult, Indiana Code section 35-43-1-1 (2007). J.H. and the State reached a plea agreement whereby J.H. admitted to attempted unlawful residential entry, and the State dismissed the criminal mischief allegation. The plea agreement left open the issue of restitution.

Shortly before the initial hearing, the victim gave the deputy prosecutor a piece of paper that she described as an “estimate.” No copies were provided to the defense or the court, and no additional evidence was offered in support of the estimate. The estimate, from a person identified as “Mr. Fix It,” stated that it would take $850.00 to replace the door’s window and $150.00 to tint the window.

J.H.’s counsel requested the setting of a restitution hearing so that Mr. Fix It and his estimate could be investigated. Counsel noted that $1,000 seemed “like an awfully large sum of money for a door.” Tr. p. 7. After some discussion, a disposition hearing was set, with the possibility of a hearing on restitution.

Immediately before the disposition hearing, the victim again gave the deputy prosecutor a piece of paper she described as an “estimate.” This time the estimate was for $1,117.65 from Tucker’s Construction. Again no copies were provided to defense counsel or to the court, and no additional evidence or testimony regarding either estimate was presented. Defense counsel informed the court that it had subpoenaed the man identifying himself as “Mr. Fix It,” but the man did not show up for court. When defense counsel objected to the new estimate, the court commented that it was “just $117 more” than the first estimate. Tr. p. 20.

The court entered a dispositional order finding that J.H. had entered an admission to the delinquent act and adjudicating J.H. a delinquent who committed attempted residential entry, a Class D felony if committed by an adult. The court committed J.H. to the Department of Correction, suspended the sentence, and placed J.H. on probation. As a condition of probation, J.H. was ordered to pay restitution in the amount of $1,117.65. In the disposition order, the court made the following statement:

The Court notes that there is a dispute as to the restitution claim for [the victim]. [Defense counsel] objects to the additional restitution claim presented by the victim as it was just presented to parties [on] this date. The additional restitution claim is for $1,117.65.

Appellant’s App. p. 10.

DISCUSSION AND DECISION

I. REASONABLENESS OF THE RESTITUTION ORDER

Pursuant to Indiana Code section 81-37-19-5 (2008), a juvenile court may order the 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. M.L. v. State, 838 N.E.2d 525, 528 (Ind.Ct.App.2005), trans. denied. 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.

The adult restitution statute, Indiana Code section 35-50-5-3 (2006), requires that a restitution order for property damages be based on actual loss incurred by the claimant. See Shane v. State, 769 N.E.2d 1195, 1201 (Ind.Ct.App.2002). The adult statute is instructive when the juvenile statute is silent. M.L., 838 N.E.2d at 528-29. Evidence supporting a restitution order is sufficient “if it affords a reasonable basis for estimating loss and does not subject the trier of fact to mere speculation or conjecture.” T.C. v. State, 839 N.E.2d 1222, 1227 (Ind.Ct.App.2005) (quoting State v. Kinneman, 155 Wash.2d 272, 119 P.3d 350, 357 (2005)).

Here, on two separate occasions, the victim waited until shortly before the hearing to give the deputy prosecutor a piece of paper with a dollar amount on it. The deputy prosecutor informed the juvenile court of the victim’s late submissions and of the amount on the papers. The deputy prosecutor made no other statements and presented no other evidence to show the legitimacy of the pieces of paper.¹ Neither of the purported estimates was placed into evidence and neither is available for our review, so we cannot determine whether the dollar amounts were listed on papers containing any information, such as a letterhead, which would show the court that the paper came from a legitimate business. Furthermore, neither “estimate” showed the cost of labor and materials. Most importantly, the juvenile court failed to recognize that the State held the burden to establish the validity of the “estimates.” We can come to no other conclusion than that the “estimates” were mere speculation or conjecture and that the juvenile court’s order 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.

The State argues that J.H. is making an argument on appeal that was not presented to the trial court. Thus, the State contends that the issue of the order’s propriety is waived on appeal. We disagree. The argument below is the same as the argument on appeal — that the State failed to present sufficient evidence to support the trial court’s order.

II. INQUIRY INTO THE JUVENILE’S ABILITY TO PAY

Equal protection and fundamental fairness concerns require that a juvenile court inquire into a juvenile’s ability to pay before the court can order restitution as a condition of probation. M.L., 838 N.E.2d at 529. In addition, while the juvenile court has “the discretion to set the amount of restitution, it [is] constrained by principles of equal protection and fundamental fairness to set an amount within [the juvenile’s] ability to pay [when] restitution [is] made a condition of probation.” Id. at 530. This is so because, as 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.” Id. at 528.

Here, the juvenile court conducted a thorough inquiry of J.H.’s mother’s ability to pay. However, it is the juvenile’s ability which is relevant. See T.C., 839 N.E.2d at 1224-25. The juvenile court did ask J.H. why he did not get a job, and upon hearing that J.H. had applied for jobs but had found none, the court remarked, ‘You can’t get a job when you are young black male with no high school education .... You know, there’s [sic] just no jobs available.... They closed the auto plants, everybody’s looking for a job. You can shovel snow. You can do that easy [sic].... ” Tr. p. 4. The juvenile court later asked J.H. what he was doing during the summer, and J.H. replied that he was going to get a summer job. The juvenile court then changed the subject to J.H.’s schooling and did not return to its inquiry into J.H.’s ability to pay restitution.

It is difficult to ascertain the intent of the court’s comments. Perhaps, the court was attempting to inform J.H. that he would have to lower his sights and take whatever job was available. No matter the intent of the comments, we cannot say that the court engaged in an inquiry sufficient to ascertain whether J.H. would be able to pay restitution. Indeed, the court’s comments seem to indicate the opposite.

CONCLUSION

We reverse and remand with instructions that the juvenile court vacate its restitution order. If the State so desires, a new restitution hearing, consistent with this opinion, shall be conducted.

Reversed and remanded.

FRIEDLANDER, J., concurs. MAY, J., concurring with separate opinion.

1 . The victim was present at both hearings and was presumably available for questioning. Indeed, the court did ask the victim during the first hearing whether she received a written estimate, to which he received an affirmative response. No questions were asked of the victim pertaining to the second “estimate,” which was the document accepted by the court.