D.M. v. State of Indiana , 108 N.E.3d 393 ( 2018 )

FILED
Aug 08 2018, 9:31 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Deborah Markisohn Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.M., August 8, 2018
Appellant-Respondent, Court of Appeals Case No.
49A02-1711-JV-2708
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marilyn Moores,
Appellee-Petitioner. Judge
The Honorable Gary Chavers,
Magistrate
Trial Court Cause No.
49D09-1710-JD-1487
Darden, Senior Judge.
Statement of the Case
[1] D.M. appeals the juvenile court’s disposition of his case following a
determination that he is a juvenile delinquent. We affirm.
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Issue
[2] D.M. raises one issue, which we restate as: whether the juvenile court
committed fundamental error by its failure to specifically ask D.M. whether he
wanted to address the court to make a statement in allocution at the
dispositional hearing.
Facts and Procedural History
[3] On October 19, 2017, the State submitted to the juvenile court a petition
alleging that seventeen-year-old D.M. was a delinquent child for committing an
act that, if committed by an adult, would have amounted to battery by bodily
waste, a Level 6 felony. The State alleged that D.M. threw a cup of urine at an
employee of the juvenile facility where he was being detained. The juvenile
court found probable cause to support the State’s petition and approved it for
filing.
[4] Next, the parties executed an admission agreement, wherein, D.M. agreed to
admit that he committed the act described by the State in the delinquency
petition. The parties further agreed that final disposition of the matter would be
left to the discretion of the juvenile court, with both sides free to present
argument. The juvenile court accepted the admission agreement and
determined that D.M. was a juvenile delinquent.
[5] The juvenile court then held a dispositional hearing on November 3, 2017.
Both the State and the probation department recommended to the juvenile
court that wardship of D.M. be granted to the Indiana Department of
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Correction (DOC). By contrast, D.M., through his attorney, asked that D.M.
be released to probation as the least restrictive and most safe environment, and
to remain with his family. D.M.’s attorney further submitted a proposed
community supervision plan and argued for the juvenile court’s approval.
[6] At that point, D.M.’s attorney stated, “I’ll defer to any comments today your
Honor for – that [D.M.] or his family may have.” Tr. Vol. II, p. 7. The
juvenile court specifically asked D.M.’s mother if she wanted to make a
statement, and she declined. The juvenile court did not specifically ask D.M. if
he wanted to make a statement. Rather, the juvenile court then announced its
disposition, granting wardship of D.M. to the DOC for a period of time up to
his twenty-first birthday, unless released earlier by the DOC. The juvenile court
further stated that it would recommend that the DOC release D.M. after twelve
months, thus showing some compassion, but the length of D.M.’s wardship
would be left to the discretion of the DOC. This appeal followed.
Discussion and Decision
[7] D.M. argues that the juvenile court deprived him of his right to due process of
law under the Fourteenth Amendment by failing to specifically ask him if he
wanted to address the court prior to announcing its disposition of the case.
D.M. concedes that he failed to raise this issue in the juvenile court and is
entitled to reversal only if he demonstrates that the court’s omission amounted
to fundamental error. Reply Br. p. 4.
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[8] Fundamental error is an “‘extremely narrow exception’” to the
contemporaneous objection rule that allows a defendant to avoid waiver of an
issue. Neville v. State, 976 N.E.2d 1252, 1258 (Ind. Ct. App. 2012) (quoting
Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)), trans. denied. Fundamental
error occurs when an error constitutes a blatant violation of basic principles, the
harm or potential for harm is substantial, and the error deprives a party of
fundamental due process. S.D. v. State, 937 N.E.2d 425, 429 (Ind. Ct. App.
2010), trans. denied. The fundamental error exception is available only in
egregious circumstances. Id.
[9] In criminal cases involving adults, a defendant’s right to offer a statement on his
or her behalf before the trial court pronounces sentence is known as the right of
allocution, which has been recognized in the common law since at least 1682.
Vicory v. State, 802 N.E.2d 426, 428 (Ind. 2004). As a general rule, “[t]he
standard for determining what due process requires in a particular juvenile
proceeding is ‘fundamental fairness.’” D.A. v. State, 967 N.E.2d 59, 64 (Ind. Ct.
App. 2012) (quoting S.L.B. v. State, 434 N.E.2d 155, 156 (Ind. Ct. App. 1982)).
The General Assembly has specifically explained who must be allowed to speak
at juvenile dispositional hearings, as follows:
(a) The prosecuting attorney or probation department of the
juvenile court shall provide notice of the date, time, place, and
purpose of the dispositional hearing under this chapter to each:
(1) party or person for whom a summons is required to be issued
under IC 31-37-12-2; and
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(2) foster parent or other caretaker with whom the child is placed
for temporary care;
at the time the dispositional hearing is scheduled.
(b) The court shall:
(1) provide a person who is required to be notified under
subsection (a) an opportunity to be heard; and
(2) allow a person described in subdivision (1) to make
recommendations to the court;
at the dispositional hearing.
Ind. Code § 31-37-18-1.3 (2007). Indiana Code section 31-37-12-2 (2015)
requires a juvenile court to issue summons to the child, the child’s parent,
guardian, custodian, or guardian ad litem, and “any other person necessary for
the proceeding.”
[10] We find it to be indisputable that the better practice in this case would have
been for the juvenile court to have specifically asked D.M. if he wanted to make
a statement before pronouncing disposition of the case. It would not have
taken more than a few minutes and would have ensured that the court directly
heard one of the most important perspectives—that of the juvenile. As has been
stated in criminal cases, “‘The right of allocution is minimally invasive of the
sentencing proceeding; the requirement of providing the defendant a few
moments of court time is slight.’” Vicory, 802 N.E.2d at 429 (quoting United
States v. Barnes, 948 F.2d 325, 331 (7th Cir. 1991)). However, our analysis does
not end here. We must look at the totality of the facts and circumstances in this
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case in determining whether the trial court denied D.M. fundamental fairness
herein.
[11] After reviewing the arguments and recommendations of both parties, and
taking into consideration the totality of the facts and circumstances herein, we
cannot conclude that the juvenile court’s failure to specifically ask D.M. if he
wanted to make a statement prior to disposition amounted to fundamental
unfairness requiring reversal. During the dispositional hearing, it appears that
D.M.’s attorney vigorously argued in favor of placing D.M. on probation and
submitted a plan for the juvenile court’s review. The plan provided, among
other provisions, that D.M. would live with his mother, who would supervise
him and agreed to report D.M. to a probation officer if he violated any terms of
probation. It does not appear that D.M. was substantially harmed by not being
given an opportunity to personally address the court at the hearing. See S.L.B.,
434 N.E.2d at 157 (juvenile court did not violate juvenile’s due process rights by
not asking if she had a statement; juvenile’s attorney presented argument to the
court).
[12] Further, D.M.’s juvenile record is extensive, and it is thus highly unlikely that
allocution by D.M. would have persuaded the juvenile court to release him to
probation or some other commitment less strict than the DOC. D.M.’s record
began at age thirteen, when he was found to be a runaway. In 2014, D.M. was
determined to be a juvenile delinquent for two acts of resisting law
enforcement, both Class A misdemeanors, and criminal mischief, also a Class
A misdemeanor. In 2015, he was adjudicated a juvenile delinquent for
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committing an act that, if committed by an adult, would have constituted Level
5 felony robbery. In the current case, he admitted to committing an act of
battery by bodily waste while in juvenile detention. Further, while he was
being detained for the current case, the State alleged D.M. committed another
juvenile act, specifically battery resulting in injury to a public safety official.
D.M.’s misconduct is ongoing and escalating in severity.
[13] In addition, juvenile courts had imposed less restrictive alternatives than the
placement in DOC in the past, but D.M. persisted in his course of misconduct.
He was placed on formal probation in 2014, but he failed to comply with the
terms of probation and he was sent to an out-of-home placement. In 2015,
D.M. was returned to the out-of-home placement at the conclusion of another
juvenile case, but he violated the terms of his placement and was sent to the
DOC for fourteen months. Upon his release, he fled from another placement
and was sent to juvenile detention.
[14] Finally, D.M.’s proposed probation plan stated that he would live with his
mother and be subject to her oversight, but she had previously told probation
officers that D.M. had refused to comply with her curfews and had frequently
left home without permission. Based on this record, the juvenile court had
ample reason to conclude a placement less restrictive than the DOC would not
succeed, and it is unlikely D.M. could have changed the court’s mind via a
personal statement at the dispositional hearing.
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[15] We conclude that under the particular facts and circumstances of this case, the
juvenile court’s failure to specifically ask D.M. if he wanted to make a
statement was not a blatant violation of basic principles, did not pose a
potential of substantial harm, and did not deprive D.M. of fundamental due
process. We thus decline to apply the doctrine of fundamental error and/or
fundamental fairness in considering D.M.’s due process claim. On the other
hand, we strongly encourage juvenile courts to take into consideration affording
juvenile delinquents the opportunity to address the court before final
disposition.
Conclusion
[16] For the reasons stated above, we affirm the judgment of the juvenile court.
[17] Affirmed.
Pyle, J., and Altice, J., concur.
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