S.S. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 8, 2019
• Docket: 18A-JV-1161
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 08 2019, 8:58 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John T. Wilson Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

S. S., February 8, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-JV-1161 v. Appeal from the Madison Circuit Court The Honorable G. George Pancol, State of Indiana, Judge Appellee-Plaintiff. Trial Court Cause No. 48C02-1611-JD-329

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-1161 | February 8, 2019 Page 1 of 11 STATEMENT OF THE CASE [1] Appellant-Defendant, S.S., brings an interlocutory appeal of the juvenile court’s

waiver of his cause to adult court.

[2] We affirm.

ISSUE [3] S.S. presents this court with one issue on appeal, which we restate as: Whether

the juvenile court abused its discretion by waiving S.S. into adult court, finding

that he is beyond rehabilitation in the juvenile justice system and that it is in the

best interest of the safety and the welfare of the community to try S.S. as an

adult.

FACTS AND PROCEDURAL HISTORY [4] On November 1, 2016, sixteen-year-old S.S. escaped from his court-ordered

placement at Lutherwood, a secure residential facility in Indianapolis, by

overpowering staff members and stealing the keys. Together with his brother

and another juvenile, S.S. subsequently stole a rental car from Hertz Car rental

and drove the vehicle to Anderson, Indiana where he picked up other female

juveniles and smoked marijuana. Around 12:15 a.m. on November 3, 2016, a

uniformed police officer in a marked vehicle attempted to conduct a traffic stop

of the rental car, but as soon as the vehicle came to a stop, S.S. and the other

boys fled from the officer on foot.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-1161 | February 8, 2019 Page 2 of 11 [5] Twelve days later, on November 15, 2016, at approximately 12:46 a.m., police

officers were dispatched to Crack Shot Guns in Anderson on a report of an

individual on the roof of the gun store. When a state police officer arrived at

the store, three juveniles—S.S., his brother, and a third juvenile—fled from the

gun store carrying duffel bags. Despite the officer’s command for the juveniles

to stop, they jumped a fence and continued running. S.S. was caught shortly

afterwards, hiding in the trees.

[6] On November 22, 2016, the juvenile court authorized the filing of a

delinquency petition, in which the State alleged that S.S. committed attempted

burglary, a Level 5 felony if committed by an adult; resisting law enforcement,

a Class A misdemeanor if committed by an adult; and a curfew violation

relating to the incident at the gun store. On November 29, 2016, the juvenile

court authorized the State to file a second delinquency petition, alleging that

S.S. committed auto theft, a Level 6 felony if committed by an adult; resisting

law enforcement, a Class A misdemeanor if committed by an adult; and

unauthorized entry of a motor vehicle, a Class B misdemeanor if committed by

an adult. Two weeks later, on December 15, 2016, the State filed a motion to

waive jurisdiction to adult court.

[7] At the juvenile court waiver hearing, S.S. stipulated to the probable cause on

the auto theft, resisting law enforcement, and unauthorized entry of a motor

vehicle. The juvenile court found probable cause on the attempted burglary

charge. According to S.S.’s probation report, which the juvenile court

considered in reaching its determination, S.S., between the ages of thirteen and

Court of Appeals of Indiana | Memorandum Decision 18A-JV-1161 | February 8, 2019 Page 3 of 11 fourteen, had been adjudicated a delinquent child for seven delinquent acts:

burglary, a Level 5 felony if committed by an adult; two charges of dangerous

possession of a firearm, Level 5 felonies if committed by an adult; theft of a

firearm, a Level 6 felony if committed by an adult; two charges of theft, as Class

A misdemeanors if committed by an adult; and leaving the home without the

permission of a parent or guardian. S.S. violated the terms of his probation in

five of the seven prior delinquency findings.

[8] S.S. was first arrested by police officers when he was thirteen years old, on

October 11, 2014, for criminal trespass, a Class A misdemeanor if committed

by an adult. He was offered an informal adjustment, which included an

apology letter and community service work. S.S. failed to complete these

requirements due to a new arrest, leaving home without the permission of a

parent on November 1, 2014. A month and a half later, on December 14, 2014,

S.S. was arrested again and was alleged to have committed acts which, if

committed by an adult, would be Level 5 burglary, Level 6 felony theft of a

firearm, a Class A misdemeanor carrying a handgun without a license, and

Level 5 felony dangerous possession of a firearm. S.S. was adjudicated a

delinquent child on these charges. He was ordered to formal probation and was

required to complete community service work, write an apology letter, and

complete the Thinking for a Change Program—an evidence-based, cognitive

behavioral program to change criminal thinking.

[9] On January 20, 2015, six days after the disposition of these delinquency

charges, S.S. was arrested again, alleged to have committed the adult equivalent

Court of Appeals of Indiana | Memorandum Decision 18A-JV-1161 | February 8, 2019 Page 4 of 11 of Level 6 felony theft of a firearm, Level 3 felony conspiracy to commit armed

robbery, and Level 5 felony dangerous possession of a firearm. The juvenile

court entered a true finding for the Level 5 felony, and dismissed the remaining

allegations.

[10] Less than a month after the disposition of S.S.’s third felony case, on February

6, 2015, S.S. was arrested again and was alleged to have committed battery

resulting in bodily injury, a Class A misdemeanor if committed by an adult. In

March 2015, S.S. was placed in the Evening Reporting Program and was

ordered to complete Project Hope, a faith-based mentoring program. Although

S.S. participated in the programs, he was arrested again on July 25, 2015,

alleged to have committed an act that would have been a Class A misdemeanor

theft, if committed by an adult. The juvenile court returned a true finding on

September 4, 2015. Nevertheless, prior to this true finding, on August 21, 2015,

S.S. was arrested for the seventh time in a year and was alleged to have

committed theft and false informing, respectively a Class A misdemeanor and a

Class B misdemeanor if committed by an adult. The juvenile court entered a

true finding for Class A misdemeanor theft on October 16, 2015. That same

day, S.S. was placed at Rite of Passage, a juvenile residential facility.

[11] During S.S’s eight-month placement, “he did not make any significant progress,

was non-compliant with medication management, gave his medication away

and went AWOL three times.” (Appellant’s App. Vol. II, p. 43). As a result,

S.S. was moved to the secure unit at Lutherwood from which he absconded on

Court of Appeals of Indiana | Memorandum Decision 18A-JV-1161 | February 8, 2019 Page 5 of 11 November 1, 2016 after overpowering staff and stealing the keys, and before

committing the instant offenses.

[12] Since S.S. came in contact with the juvenile justice system, he has been offered

informal adjustment, formal probation, pre-trial house arrest and electronic

monitoring, residential placement at Rite of Passage, and secure residential

placement at Lutherwood. He has been detained six times in the Madison

County Youth Secure Detention Unit, ordered to attend the Evening Reporting

Program, complete community service, and write apology letters. He was

provided with behavioral health services, counseling, and placement in

Thinking for a Change and Project Hope.

[13] During the waiver hearing, S.S.’s probation officer thought it “not likely” that

there were other programs left to offer S.S. based on his history. She explained

that the Youth Opportunity Center was not an option because it would not

accept S.S. but also noted that S.S. had not yet been committed to the Indiana

Department of Correction. At the conclusion of the hearing, the juvenile court

entered findings, waiving S.S. into adult court.

[14] On January 10, 2018, the trial court granted S.S.’s request to file a belated

interlocutory appeal. After filing a request with this court, we accepted S.S.’s

interlocutory appeal on June 15, 2018. Additional facts will be provided as

necessary.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-1161 | February 8, 2019 Page 6 of 11 DISCUSSION AND DECISION [15] S.S. contends that the juvenile court abused its discretion by waiving him to

adult court after finding that he is beyond rehabilitation in the juvenile justice

system and that it is in the best interest of the safety and welfare of the

community to try him as an adult.

[16] Upon appellate review of claims alleging insufficient evidence to support

waiver, we will not weigh the evidence or judge the credibility of witnesses.

S.W.E. v. State, 563 N.E.2d 1318, 1322 (Ind. Ct. App. 1990). We look only to

the evidence most favorable to the State and reasonable inferences to be drawn

therefrom, considering both the record of the waiver hearing and the reasons

given by the court. Id.

[17] Unlike criminal proceedings, juvenile proceedings are civil in nature, and the

burden is on the State to establish by a preponderance of the evidence that

juvenile jurisdiction should not be waived. Phelps v. State, 969 N.E.2d 1009,

1016 (Ind. Ct. App. 2012), trans. denied. We review the juvenile court’s decision

to waive exclusive original jurisdiction for an abuse of discretion. Id. The

juvenile court is entitled to give the evidence before it whatever weight it deems

appropriate. Id.

[18] In general, juvenile courts have exclusive original jurisdiction over juvenile

delinquency proceedings. Ind. Code § 31-30-1-1. Under certain circumstances,

however, juvenile courts may waive this exclusive original jurisdiction. Waiver

of jurisdiction is for the offense charged and all included offenses and is

Court of Appeals of Indiana | Memorandum Decision 18A-JV-1161 | February 8, 2019 Page 7 of 11 accomplished by an order of the juvenile court waiving the case to adult court.

I.C. § 31-30-3-1. The order must include specific findings of fact to support the

order. I.C. § 31-30-3-10.

[19] One of the waiver statutes provides that after the State files its motion

requesting waiver, and after a full investigation and hearing, the juvenile court

may waive jurisdiction upon a finding that:

(1) The child is charged with an act that is a felony:

(A) That is heinous or aggravated, with greater weight given to acts against the person than to acts against property; or

(B) That is part of a repetitive pattern of delinquent acts, even though less serious;

(2) The child was at least fourteen (14) years of age when the act charged was allegedly committed;

(3) There is probable cause to believe that the child committed the act;

(4) The child is beyond rehabilitation under the juvenile justice system; and

(5) It is in the best interests of the safety and welfare of the community that the child stand trial as an adult.

I.C. § 31-30-3-2. S.S. concedes that he was over fourteen years of age, that he

was facing allegations of felony acts that are part of a repetitive pattern of

Court of Appeals of Indiana | Memorandum Decision 18A-JV-1161 | February 8, 2019 Page 8 of 11 delinquent acts, even though some of his prior delinquent acts were less serious,

and there was probable cause to believe he committed the instant charges. S.S.

specifically challenges the sufficiency of the evidence supporting the juvenile

court’s findings under subsections 4 and 5.

I. Beyond Rehabilitation

[20] The determination of whether a juvenile is beyond rehabilitation of the juvenile

justice system is fact sensitive and can vary widely from individual to individual

and circumstance to circumstance. Jordan v. State, 62 N.E.3d 401, 405 (Ind. Ct.

App. 2016) (citing Hall v. State, 870 N.E.2d 449, 457 (Ind. Ct. App. 2007), trans.

denied), trans. denied. Turning to the evidence, we note that, between the ages of

thirteen and fourteen, S.S. was adjudicated a delinquent child for seven

offenses, four of which were acts that would have been felonies, if committed

by an adult: Level 5 felony burglary, two charges of Level 5 felony dangerous

possession of a firearm, Level 6 felony theft of a firearm, two charges of Class A

misdemeanor theft, and leaving home without the permission of a parent or

guardian. As a result of S.S.’s repeated violations of the law, he was offered an

informal adjustment, formal probation, pre-trial house arrest and electronic

monitoring, residential placement at Rite of Passage, secure residential

placement at Lutherwood, detained in the Madison County Youth Secure

Detention Unit, ordered to the Evening Reporting Program, ordered to

complete community service, and ordered to write apology letters. S.S. was

also provided behavioral health services and other counseling services.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-1161 | February 8, 2019 Page 9 of 11 [21] None of these rehabilitative services curbed S.S.’s determination to engage in

unlawful behavior. Although S.S. did successfully complete the Thinking for a

Change and Project Hope programs, shortly after completing the programs he

resumed his criminal behavior. S.S. has made no progress since; to the

contrary, his behavior escalated to overpowering staff and absconding from a

secure residential facility to commit the instant allegations. After receiving two

years of rehabilitative programming through the juvenile justice system, the

evidence overwhelmingly shows that S.S. has no interest in adhering to the

rules or in reforming his delinquent ways. Accordingly, we conclude that the

juvenile court properly found that S.S. is beyond the reach of the juvenile justice

system based on S.S.’s escalating pattern of delinquent behavior, in defiance of

the rehabilitation opportunities afforded to him. See Jonaitis v. State, 437 N.E.2d

140, 143-44 (Ind. Ct. App. 1982) (“It is not necessary for the trial court to

recount all possible alternative juvenile dispositions available to it before

concluding that none are appropriate.”).

II. Community Safety and Welfare

[22] S.S.’s repetitive pattern of delinquent acts are particularly troubling because of

the involvement of firearms. S.S. was adjudicated a delinquent child for, if

committed by an adult, level 5 felony dangerous possession of a firearm on two

occasions and for Level 6 felony theft of a firearm, before the instant offense of

attempted burglary of Crack Shot Guns, a gun store. S.S.’s other adjudications

involve violence directed at persons, as evidenced by true findings of resisting

law enforcement, as well as evidence of assault of Lutherwood staff.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-1161 | February 8, 2019 Page 10 of 11 Accordingly, S.S.’s conduct shows a propensity to direct force at premises and

people, combined with an alarming desire to acquire firearms to continue his

pattern of unlawful acts.

[23] Overall, there have been a myriad of efforts to help S.S. to adjust his behavior—

all to no avail. Rather, to the contrary, instead of rehabilitating himself, S.S. is

determined to continue his unlawful behavior, regardless of the consequences.

We find that there is sufficient evidence to support the juvenile court’s

conclusion that it is in the best interests of the safety and welfare of the

community to waive S.S. to adult court.

CONCLUSION [24] Based on the foregoing, we hold that the juvenile court did not abuse its

discretion by waiving S.S. into adult court.

[25] Affirmed.

[26] Kirsch, J. and Robb, J. concur

Court of Appeals of Indiana | Memorandum Decision 18A-JV-1161 | February 8, 2019 Page 11 of 11