S.S. v. State of Indiana (mem. dec.) ( 2019 )

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.
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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.
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[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
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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
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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
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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.
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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
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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
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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.
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[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.
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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
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