D.M. v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Mar 27 2015, 10:33 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven J. Halbert Gregory F. Zoeller
Carmel, Indiana Attorney General of Indiana
Brian Reitz
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.M., March 27, 2015
Appellant-Defendant, Court of Appeals Case No.
49A05-1408-JV-386
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Gary Chavers, Judge
Pro Tem, and the Honorable
Appellee-Plaintiff Geoffrey Gaither, Magistrate
Trial Court Case No.
49D09-1406-JD-1461
Mathias, Judge.
[1] D.M. was adjudicated a delinquent child in Marion Superior Court and ordered
to pay restitution to the victim as a condition of probation. D.M. appeals the
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restitution order and argues that he is indigent; therefore, the trial court abused
its discretion when it ordered D.M. to pay restitution.
[2] We affirm.
Facts and Procedural History
[3] On June 4, 2014, a Marion County Sheriff’s Deputy observed an illegally
parked moped at Arlington High School. After the deputy learned that the
moped had been reported stolen, the deputy asked a school employee if she
knew who had driven the moped to the school. The employee stated that D.M.,
a seventh grade student, had parked the moped illegally on the sidewalk.
[4] At 3:04 p.m., when the students were released, the deputy saw D.M. mount the
moped. When D.M. saw the officer, he sped away. The deputy ordered D.M.
to stop, but he refused, and a chase ensued. D.M. eventually threw the moped
to the ground and ran into a heavily wooded area. D.M. damaged the moped’s
ignition switch, front tire, and light and battery covers.
[5] On June 11, 2014, the State filed a petition alleging that D.M. was a delinquent
child for resisting law enforcement and engaging in criminal mischief, which
are criminal offenses if committed by an adult. D.M. subsequently entered into
a delinquent child admission agreement. The juvenile court adjudicated D.M. a
delinquent child on July 7, 2014, and he was placed on probation.
[6] In the admission agreement, D.M. agreed to pay restitution to the victim for
damages to the moped in an amount “[t]o be determined at a restitution
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hearing.” Appellant’s App. p. 37. At the July 28, 2014 restitution hearing, the
owner of the moped testified to damages in the amount of $481.00. D.M.
argued that he did not have the ability to pay restitution. As a condition of his
probation, D.M. was ordered to pay restitution in the amount of $481.00.
D.M. appeals the restitution order.
Discussion and Decision
[7] Although D.M. agreed to pay restitution in an unspecified amount, he argues
that the trial court abused its discretion when it ordered him to pay $481.00
because he has no ability to pay restitution. “‘The purpose behind an order of
restitution is to impress upon the criminal defendant the magnitude of the loss
he has caused and to defray costs to the victim caused by the offense.’” Rich v.
State, 890 N.E.2d 44, 50 (Ind. Ct. App. 2008) (quoting Carswell v. State, 721
N.E.2d 1255, 1259 (Ind. Ct. App. 1999)), trans. denied.
[8] Pursuant to Indiana Code section 31-37-19-5(b)(4), a juvenile court may order a
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. P.J. v. State, 955 N.E.2d 234, 235
(Ind. Ct. App. 2011). 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.Court of Appeals of Indiana | Memorandum Decision 49A05-1408-JV-386 | March 27, 2015 Page 3 of 6
[9] “[E]qual 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.”1 M.L. v. State, 838 N.E.2d 525, 529
(Ind. Ct. App. 2005), trans. denied. “[A]s 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.’” J.H. v. State, 950 N.E.2d 731, 735
(Ind. Ct. App. 2011) (quoting M.L., 838 N.E.2d at 528).
[10] Moreover, a juvenile does not waive his right to have the juvenile court inquire
into his ability to pay even though he agrees to pay restitution in an amount to
be determined by the court. Id. at 529-30 (stating that “leaving the amount of
restitution to the discretion of the trial court is not tantamount to waiving one’s
right to have the trial court inquire into his ability to pay”); Cf. P.J. v. State 955
N.E.2d 234, 235-36 (Ind. Ct. App. 2011) (concluding that the juvenile waived
his right to have the juvenile court inquire into his ability to pay where he
entered into an admission agreement and agreed to pay a specific amount of
restitution).
[11] D.M. is fourteen years old. He does not have a bank account, a job, or any
assets. Tr. p. 11.
1
In M.L. v. State, our court also observed that when “restitution is not a condition of probation, but rather a
part of an executed sentence, an inquiry into the defendant's ability to pay is not required. In such a
situation, restitution is merely a money judgment, and a defendant cannot be imprisoned for non-payment.
838 N.E.2d 525, 529 (Ind. Ct. App. 2005) (internal citations and quotations omitted).
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[12] The State argues that D.M. might be able to obtain employment in the future.
Moreover, the State asserts that D.M.’s failure to pay restitution will not result
in detention and/or revocation of his probation if D.M. “makes every effort to
obtain employment[.]” Appellee’s Br. at 5-6 (citing Ind. Code § 35-38-2-3(g)).
[13] The statute authorizing restitution in juvenile proceedings does not refer to a
juvenile’s ability to pay restitution. See I.C. § 31-37-19-5(b)(4). However, in
adult criminal proceedings, the trial court may order the defendant to pay
restitution after considering what the person can or “will be able to pay.” See
Indiana Code § 35-38-2-2.3(a)(6). In the absence of clear statutory direction, we
believe we should draw guidance from adult restitution proceedings on this
issue. We therefore conclude that juvenile courts may consider the delinquent
child’s current and future ability to pay restitution. See M.L. v. State, 838 N.E.2d
525, 528-529 (Ind. Ct. App. 2005), (holding that the adult statute is instructive
when the juvenile statute is silent), trans. denied.
[14] The State has essentially conceded that fourteen-year-old D.M. is not currently
able to pay restitution. However, on the record before us, we may reasonably
conclude that D.M. has the ability to obtain future employment. Requiring
D.M. to be responsible for the consequences of his delinquent conduct is
consistent with the purpose of restitution. We therefore conclude that the
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juvenile court did not abuse its discretion when it ordered D.M. to pay
restitution.2
[15] Affirmed.
Najam, J., and Bradford, J., concur.
2
Importantly, D.M. may not be detained or have his probation revoked if he remains unable to pay
restitution despite his best efforts. See e.g. M.L., 838 N.E.2d at 528.
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