N.G. v. State of Indiana (mem. dec.)

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Nov 01 2018, 9:03 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michelle Laux Curtis T. Hill, Jr. St. Joseph County Attorney General of Indiana Public Defender’s Office J.T. Whitehead South Bend, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

N.G., November 1, 2018 Appellant-Respondent, Court of Appeals Case No. 18A-JV-1471 v. Appeal from the St. Joseph Probate Court State of Indiana, The Honorable James N. Fox, Appellee-Petitioner Judge Trial Court Cause No. 71J01-1712-JD-466

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-1471 | November 1, 2018 Page 1 of 4 [1] N.G. appeals the restitution order imposed by the trial court, arguing that the

evidence did not support the amount of the order and that the evidence does not

support a conclusion that he is able to pay it. Finding no error, we affirm.

[2] On January 24, 2018, N.G. admitted to committing acts that would have been

Class A misdemeanor criminal mischief and Class A misdemeanor resisting law

enforcement had they been committed by an adult. N.G.’s dispositional and

restitution hearing took place on May 18, 2018. At that hearing, the evidence

showed that N.G. was fifteen years old, did not have a work permit, and was

unemployed. The State presented evidence that the aggregate amount of

damage to the victim, caused by N.G. and other perpetrators, totaled over

$17,000. The trial court capped the restitution order in the amount of $1,000

and ordered N.G. to get a work permit. The trial court also held that if N.G. is

“unsuccessful in paying the restitution in full by the deadline but is making an

attempt to pay, the Court reserves the right to extend the deadline.”

Appellant’s App. Vol. II p. 15. N.G. now appeals.

[3] An order of restitution is a matter within the discretion of the trial court. P.J. v.

State, 955 N.E.2d 234, 235 (Ind. Ct. App. 2011). We will reverse only when the

trial court’s determination is clearly against the logic and effect of the facts and

circumstances before the court. Id.

[4] N.G. first argues that the trial court erred in calculating the amount of the

restitution order to be $1,000. The victim provided evidence that his total

damages exceeded $17,000, to be divided among multiple perpetrators. N.G.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-1471 | November 1, 2018 Page 2 of 4 highlights certain issues regarding the specificity and accuracy of the victim’s

testimony and documentation, but we find that the trial court’s final restitution

order of $1,000 was well within the evidence before it and decline to reverse on

this basis.

[5] It is well established that when a juvenile court orders restitution as part of a

juvenile’s probation, it must inquire into the juvenile’s ability to pay the

restitution. T.H. v. State, 33 N.E.3d 374, 376 (Ind. Ct. App. 2015). This inquiry

must occur because of concerns about equal protection and fundamental

fairness. Id. The juvenile is entitled not only to an inquiry into his ability to

pay, but also to a modification of an existing restitution order if the court

determines he is unable to meet its terms. Id.

[6] N.G. directs our attention to T.H., but we find that case distinguishable. In that

case, T.H. was found to be delinquent and ordered to pay restitution in the

aggregate amount of $1,500. We reversed, finding as follows:

In this case, the evidence is undisputed. At the time of the dispositional hearing, T.H. was fifteen years old, did not have a work permit, did not have a job, did not have a bank account, did not have any money in savings, owned no property, and did not have anything else in his name. He has numerous disabilities, and his monthly SSI disability benefit is used by his mother to support T.H. and his six siblings. Although T.H. testified that he would “try to” get a job when he reached the age of sixteen, tr. p. 18, it is undisputed that at the time of the dispositional hearing, he was unemployed. There is no evidence in the record whatsoever that remotely tends to establish that T.H. is able to pay restitution in any amount, much less an aggregate amount of $1,500. Court of Appeals of Indiana | Memorandum Decision 18A-JV-1471 | November 1, 2018 Page 3 of 4 Id.

[7] In the instant appeal, as in T.H., N.G. was fifteen years old, did not have a

work permit, did not have a job, and did not have a bank account or any other

assets. Of significance, however, is the fact that while T.H. was disabled and

likely to have great difficulty finding employment, N.G. is not disabled. He

and his mother both stated that there is no reason to believe that he would be

unable to find employment. Tr. Vol. II p. 27. The trial court noted that N.G.

appeared to be “able bodied.” Id. Moreover, the trial court indicated that it

would be flexible with the payment deadline if N.G. had trouble making timely

payments. Under these circumstances, we find no error with respect to the trial

court’s restitution order.

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

May, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-1471 | November 1, 2018 Page 4 of 4