MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Dec 26 2018, 8:39 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Andrew K. Porter Curtis T. Hill, Jr. Feavel & Porter Attorney General of Indiana Vincennes, Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
M.W., December 26, 2018 Appellant-Respondent, Court of Appeals Case No. 18A-JV-1507 v. Appeal from the Gibson Circuit Court State of Indiana, The Honorable Jeffrey F. Meade, Appellee-Petitioner. Judge Trial Court Cause No. 26C01-1712-JD-393
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1507 | December 26, 2018 Page 1 of 7 Case Summary [1] While juvenile M.W. was on informal adjustment, police searched a vehicle he
was driving and discovered a controlled substance, marijuana, and drug
paraphernalia. The State filed a delinquency petition alleging that M.W.
committed offenses that, if committed by an adult, would be Class A
misdemeanor possession of a schedule IV controlled substance, two counts of
Class B misdemeanor possession of marijuana, and Class C misdemeanor
possession of paraphernalia. M.W. admitted to all allegations, and the juvenile
court deferred final disposition to continue monitoring his behavior. During the
deferral period, M.W. was alleged to have taken his grandmother’s vehicle and
broken into her home. The juvenile court ordered wardship of M.W. to the
Indiana Department of Correction (“DOC”) for an indeterminate period. M.W.
contends, inter alia, that the juvenile court abused its discretion by placing him
in the DOC. Because we disagree, we affirm.
Facts and Procedural History [2] In May of 2017, M.W. was placed on informal adjustment with the Gibson
County probation department for six months as a result of being caught
smoking marijuana with friends. While on informal adjustment, M.W. was
found in possession of a controlled substance, marijuana, and drug
paraphernalia by police following a traffic stop. On December 6, 2017, the State
filed a delinquency petition alleging that M.W. committed acts that, if
committed by an adult, would be Class A misdemeanor possession of a
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1507 | December 26, 2018 Page 2 of 7 schedule IV controlled substance, two counts of Class B misdemeanor
possession of marijuana (one for the May 2017 incident), Class C misdemeanor
possession of paraphernalia, and Class C infraction improper license plate light.
On February 15, 2018, M.W. admitted to all counts alleged in the delinquency
petition. The juvenile court set a dispositional hearing for March 23, 2018, and
ordered a pre-dispositional report.
[3] On March 20, 2018, M.W.’s probation officer Deborah Bryant filed her pre-
dispositional report, recommending that M.W. be placed on probation until his
eighteenth birthday and that placement in the DOC might be necessary in the
future if he violates the terms of probation. Bryant noted that M.W.’s mother
reported that he had been attending school more frequently, staying at home,
and respecting her rules. At the request of M.W.’s counsel, the juvenile court
ordered that disposition of the matter be deferred until May 29, 2018, to allow
further monitoring of M.W.’s behavior at school and home.
[4] On April 9, 2018, the State requested that the dispositional hearing be reset for
an earlier date due to M.W.’s alleged bad acts. On April 4, 2018, M.W.’s
grandmother and her husband had signed a letter, which was admitted at
M.W.’s dispositional hearing, summarizing M.W.’s alleged bad acts as follows:
This letter is [to] inform [M.W.], the Police Dept. of Princeton, IN and the Probation office of the necessity to make sure [M.W.], or his friends, are not on, in or near the property of Mark Cultice and Mary Jill Wright, his grandmother.
[address omitted]
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1507 | December 26, 2018 Page 3 of 7 The only exception, at the request of his grandmother, is to allow [M.W.] to come over when invited by his grandmother while she is in the house and cognizant of his actions.
[M.W.] has recently stolen his grandmother’s car, invited friends into our house without our knowledge or presence, consumed our liquor, damaged property, broken into our house, consumed codeine, stolen money and has no regard or acknowledgment of these actions even in the presence of witnesses.
If [M.W.] is found in violation of our request, the police are to take action to remove him from the property and use their judgment in any further prosecution. We will pursue prosecution if the terms of this letter are not followed. The intent is not to harm him, but to protect our home, its contents and our peace of mind from his behaviors.
State’s Ex. 1. At M.W.’s dispositional hearing, his grandmother
testified that she signed the letter and that it was accurate. When asked
whether it was M.W. who had committed the bad acts at her home
while she was on vacation, she replied, “We don’t know exactly if it
was him, one of his friends, but we highly suspect.” Tr. Vol. II p. 7. She
further testified that when she confronted M.W. about it over text
messages he did not respond. Upon consideration of M.W.’s
grandmother’s letter, Bryant testified that contrary to her previous
recommendation in the pre-dispositional report, she recommended that
he be placed in the DOC. The juvenile court ordered that M.W. be
placed in the DOC because it was in his best interest to be removed
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1507 | December 26, 2018 Page 4 of 7 from his home given the allegations admitted and the inability to
provide shelter, care, and/or supervision at the present time.
Discussion and Decision [5] M.W. raises two issues on appeal. First, he contends that he was deprived due
process because the State failed to give him reasonable notice when Bryant
made a recommendation in her testimony that differed from her pre-
dispositional report. Second, he contends that the juvenile court abused its
discretion by placing him in the DOC.
I. Pre-Dispositional Report [6] M.W. contends that when Bryant testified that M.W. should be placed in the
DOC, she effectively amended the pre-dispositional report, which the State then
failed to provide to M.W. within a reasonable time before the disposition
hearing, as required. M.W., however, failed to raise this issue during the
dispositional hearing. “In order to properly preserve an issue on appeal, a party
must, at minimum, show that it gave the trial court a bona fide opportunity to
pass upon the merits of the claim before seeking an opinion on appeal.” Cavens
v. Zaberdac, 849 N.E.2d 526, 533 (Ind. 2006). Therefore, we conclude that
M.W. has waived the issue for appellate review.
II. DOC Commitment [7] M.W. also contends that the juvenile court abused its discretion by ordering
wardship of him to the DOC for an indeterminate period.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Dec 26 2018, 8:39 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Andrew K. Porter Curtis T. Hill, Jr. Feavel & Porter Attorney General of Indiana Vincennes, Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
M.W., December 26, 2018 Appellant-Respondent, Court of Appeals Case No. 18A-JV-1507 v. Appeal from the Gibson Circuit Court State of Indiana, The Honorable Jeffrey F. Meade, Appellee-Petitioner. Judge Trial Court Cause No. 26C01-1712-JD-393
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1507 | December 26, 2018 Page 1 of 7 Case Summary [1] While juvenile M.W. was on informal adjustment, police searched a vehicle he
was driving and discovered a controlled substance, marijuana, and drug
paraphernalia. The State filed a delinquency petition alleging that M.W.
committed offenses that, if committed by an adult, would be Class A
misdemeanor possession of a schedule IV controlled substance, two counts of
Class B misdemeanor possession of marijuana, and Class C misdemeanor
possession of paraphernalia. M.W. admitted to all allegations, and the juvenile
court deferred final disposition to continue monitoring his behavior. During the
deferral period, M.W. was alleged to have taken his grandmother’s vehicle and
broken into her home. The juvenile court ordered wardship of M.W. to the
Indiana Department of Correction (“DOC”) for an indeterminate period. M.W.
contends, inter alia, that the juvenile court abused its discretion by placing him
in the DOC. Because we disagree, we affirm.
Facts and Procedural History [2] In May of 2017, M.W. was placed on informal adjustment with the Gibson
County probation department for six months as a result of being caught
smoking marijuana with friends. While on informal adjustment, M.W. was
found in possession of a controlled substance, marijuana, and drug
paraphernalia by police following a traffic stop. On December 6, 2017, the State
filed a delinquency petition alleging that M.W. committed acts that, if
committed by an adult, would be Class A misdemeanor possession of a
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1507 | December 26, 2018 Page 2 of 7 schedule IV controlled substance, two counts of Class B misdemeanor
possession of marijuana (one for the May 2017 incident), Class C misdemeanor
possession of paraphernalia, and Class C infraction improper license plate light.
On February 15, 2018, M.W. admitted to all counts alleged in the delinquency
petition. The juvenile court set a dispositional hearing for March 23, 2018, and
ordered a pre-dispositional report.
[3] On March 20, 2018, M.W.’s probation officer Deborah Bryant filed her pre-
dispositional report, recommending that M.W. be placed on probation until his
eighteenth birthday and that placement in the DOC might be necessary in the
future if he violates the terms of probation. Bryant noted that M.W.’s mother
reported that he had been attending school more frequently, staying at home,
and respecting her rules. At the request of M.W.’s counsel, the juvenile court
ordered that disposition of the matter be deferred until May 29, 2018, to allow
further monitoring of M.W.’s behavior at school and home.
[4] On April 9, 2018, the State requested that the dispositional hearing be reset for
an earlier date due to M.W.’s alleged bad acts. On April 4, 2018, M.W.’s
grandmother and her husband had signed a letter, which was admitted at
M.W.’s dispositional hearing, summarizing M.W.’s alleged bad acts as follows:
This letter is [to] inform [M.W.], the Police Dept. of Princeton, IN and the Probation office of the necessity to make sure [M.W.], or his friends, are not on, in or near the property of Mark Cultice and Mary Jill Wright, his grandmother.
[address omitted]
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1507 | December 26, 2018 Page 3 of 7 The only exception, at the request of his grandmother, is to allow [M.W.] to come over when invited by his grandmother while she is in the house and cognizant of his actions.
[M.W.] has recently stolen his grandmother’s car, invited friends into our house without our knowledge or presence, consumed our liquor, damaged property, broken into our house, consumed codeine, stolen money and has no regard or acknowledgment of these actions even in the presence of witnesses.
If [M.W.] is found in violation of our request, the police are to take action to remove him from the property and use their judgment in any further prosecution. We will pursue prosecution if the terms of this letter are not followed. The intent is not to harm him, but to protect our home, its contents and our peace of mind from his behaviors.
State’s Ex. 1. At M.W.’s dispositional hearing, his grandmother
testified that she signed the letter and that it was accurate. When asked
whether it was M.W. who had committed the bad acts at her home
while she was on vacation, she replied, “We don’t know exactly if it
was him, one of his friends, but we highly suspect.” Tr. Vol. II p. 7. She
further testified that when she confronted M.W. about it over text
messages he did not respond. Upon consideration of M.W.’s
grandmother’s letter, Bryant testified that contrary to her previous
recommendation in the pre-dispositional report, she recommended that
he be placed in the DOC. The juvenile court ordered that M.W. be
placed in the DOC because it was in his best interest to be removed
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1507 | December 26, 2018 Page 4 of 7 from his home given the allegations admitted and the inability to
provide shelter, care, and/or supervision at the present time.
Discussion and Decision [5] M.W. raises two issues on appeal. First, he contends that he was deprived due
process because the State failed to give him reasonable notice when Bryant
made a recommendation in her testimony that differed from her pre-
dispositional report. Second, he contends that the juvenile court abused its
discretion by placing him in the DOC.
I. Pre-Dispositional Report [6] M.W. contends that when Bryant testified that M.W. should be placed in the
DOC, she effectively amended the pre-dispositional report, which the State then
failed to provide to M.W. within a reasonable time before the disposition
hearing, as required. M.W., however, failed to raise this issue during the
dispositional hearing. “In order to properly preserve an issue on appeal, a party
must, at minimum, show that it gave the trial court a bona fide opportunity to
pass upon the merits of the claim before seeking an opinion on appeal.” Cavens
v. Zaberdac, 849 N.E.2d 526, 533 (Ind. 2006). Therefore, we conclude that
M.W. has waived the issue for appellate review.
II. DOC Commitment [7] M.W. also contends that the juvenile court abused its discretion by ordering
wardship of him to the DOC for an indeterminate period. Court of Appeals of Indiana | Memorandum Decision 18A-JV-1507 | December 26, 2018 Page 5 of 7 The specific disposition of a delinquent is within the juvenile court’s discretion, to be guided by the following considerations: the safety of the community, the best interests of the child, the least restrictive alternative, family autonomy and life, freedom of the child, and the freedom and participation of the parent, guardian, or custodian. We reverse only for an abuse of discretion, namely a decision that 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.
K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006) (internal citations and quotations
omitted).
[8] M.W. asserts that the juvenile court abused its discretion in failing to order a
more rehabilitative placement for him before DOC placement. We conclude,
however, that the juvenile court’s decision was reasonable given the facts and
circumstances before it. First, the juvenile court attempted to provide M.W.
with less-severe alternatives through informal adjustment and a period of
deferred disposition. Put another way, M.W. was given more than one
opportunity to prove that he could follow the rules, both in school and society,
but failed each time. Moreover, the acts he committed became more egregious
over time. He started with possession offenses, which elevated from marijuana
to controlled substances, until finally M.W. stole his grandmother’s car, broke
into her home causing property damage, stole her money, and consumed her
alcohol and codeine. Finally, M.W.’s request for us to consider the pre-
dispositional report findings, which indicate, inter alia, that he claimed to have
stopped using drugs, was a low risk of reoffending, and attended school more
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1507 | December 26, 2018 Page 6 of 7 regularly, is merely a request for us to reweigh the evidence, which we will not
do. Fields v. State, 888 N.E.2d 304, 307 (Ind. Ct. App. 2008). M.W. has failed to
establish that the juvenile court abused its discretion by ordering that he be
placed in the DOC.
[9] The judgment of the juvenile court is affirmed.
Bailey, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1507 | December 26, 2018 Page 7 of 7