E.H. v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 27 2017, 9:07 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Robert J. Hardy Curtis T. Hill, Jr.
Hardy Law Office Attorney General of Indiana
Auburn, Indiana
Matthew B. Mackenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
E.H., December 27, 2017
Appellant-Respondent, Court of Appeals Case No.
57A05-1708-JV-2047
v. Appeal from the Noble Superior
Court
State of Indiana, The Honorable Robert E. Kirsch,
Appellee-Petitioner. Judge
Trial Court Cause No.
57D01-1612-JD-50
Bradford, Judge.
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Case Summary
[1] On December 14, 2016, Appellant-Petitioner the State of Indiana (“the State”)
filed a delinquency petition alleging that Appellee-Respondent E.H. had
committed what would be the following crimes if committed by an adult: (1)
Level 5 felony dealing in marijuana, (2) Class B misdemeanor possession of
marijuana, and (3) Class C misdemeanor possession of paraphernalia. On July
5, 2017, E.H. admitted that he had committed what would be Level 5 felony
dealing in marijuana if committed by an adult. Following a dispositional
hearing, the juvenile court committed E.H. to the Indiana Department of
Correction (“DOC”) for placement in the Indiana Boys’ School. On appeal,
E.H. challenges his commitment to the DOC, arguing that he should have
received a less restrictive placement. We affirm.
Facts and Procedural History
[2] In the Fall of 2016, school officials initiated an investigation into drug use by
students at West Noble Middle and High Schools. During the course of this
investigation, a number of the students who were questioned indicated that they
had purchased marijuana from E.H.1 Based on this information, School
Resource Officer Brandon Chordas2 obtained a search warrant for E.H.’s home.
1
At the time of the investigation, E.H. was sixteen years old.
2
Officer Chordas is employed by the Noble County Sheriff’s Department and has been assigned to his
placement as a school resource officer since the beginning of the 2014/2015 school year.
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[3] During execution of the search warrant, investigating officers found a large
quantity of marijuana. They also found drug paraphernalia, scales, and wax
marijuana. The items were all found in an upstairs bedroom “where [E.H.] was
located.” Tr. Vol. II, p. 17.
[4] E.H. cooperated with the officers and informed Officer Chordas as follows:
That he goes to Ft. Wayne and he meets a guy by the name of T
and buys a pound of marijuana at a time, usually, roughly a
pound of marijuana for anywhere between Twenty-Five Hundred
($2,500.00) and Twenty-Seven Hundred Dollars ($2,700.00) a
pound depending on the market and then he takes it home and
divvies it up from there.
Tr. Vol. II, pp. 21–22. E.H. “divvies” up the marijuana by breaking “it down
into quarter pound” increments. Tr. Vol. II, p. 22. E.H. then sells each quarter
pound increment for “anywhere from $750.00 to $900.00 [d]ollars.” Tr. Vol. II,
p. 22. E.H. also indicated that, on one occasion, he had “gone out toe [sic]
Colorado with his brother to purchase” edible marijuana products. Tr. Vol. II,
p. 23. E.H. estimated that he had been selling marijuana for approximately six
months and provided the names of numerous individuals to whom he had sold
marijuana.
[5] On December 14, 2016, the State filed a delinquency petition alleging that E.H.
had committed what would be the following crimes if committed by an adult:
(1) Level 5 felony dealing in marijuana, (2) Class B misdemeanor possession of
marijuana, and (3) Class C misdemeanor possession of paraphernalia. On July
5, 2017, E.H. admitted that he had committed what would be Level 5 felony
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dealing in marijuana if committed by an adult. Following his admission, E.H.
was placed on home detention until his dispositional hearing. E.H. submitted
to a drug screen on August 4, 2017. The results of this screen tested positive for
methamphetamine and amphetamine.
[6] During the dispositional hearing, Paul Winebrenner, the probation officer
assigned to E.H.’s case, made the following recommendation:
So, my recommendation is for Boy’s School. I think it is most
appropriate and affords him the opportunity to get an education.
He will have the opportunity to get substance abuse counseling if
he or they believe that that is an issue, and it will give him the
ability to daily examine his choices and how they will affect his
life, his family’s life and his future. In doing community
supervision I am not sure that it is a daily focus. As a matter of
fact, I know it is not a daily focus because he is not going to
counseling every single day. So, I do believe that that is the most
appropriate option available to the Court and I recommend that
the Court adopt that recommendation.
Tr. Vol. II, pp. 80–81. In making this recommendation, Winebrenner noted (1)
the seriousness of E.H.’s offense, (2) E.H.’s minimal compliance with the terms
of his home detention, (3) E.H.’s failure to acknowledge that he had a substance
abuse problem, and (4) the difficulty in determining whether E.H. was being
truthful during assessments. Winebrenner further noted E.H.’s assertion that “I
know that I am on house arrest, but guess what I am going to do what I want.”
Tr. Vol. II, p. 80.
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[7] Following the dispositional hearing, the juvenile court committed E.H. to DOC
for placement in the Indiana Boys’ School. In committing E.H. to DOC, the
juvenile court made the following statement:
Your sister indicated that she still has hope, well we all have
hope. Without hope we are nothing. We all have hope. We all
want you to recover from any addiction that you are suffering
from and I do not look at Boys’ School as being punishment, not
direct punishment. There may be a punitive aspect to it, but no
Boys’ School is one of the tools available to the juvenile justice
system that provides us an opportunity to provide you with the
structure, supervision, direction, programs that are necessary to
recover. It is one of the many things that we can look at. I don’t
like the idea, I mean I like to avoid taking somebody, a young
man out of the community or out away from his family, but on
occasion that is necessary. In this particular case, I believe it is
necessary. I believe that we’ve reached a point where you have
demonstrated through your positive drug screen that you have a
very serious problem, number one, uh, that that problem exists
even while you are in the community and we’ve got you on
home detention and we, uh, you are in treatment but yet you are
still using. And also, then tied with the nature of the offense
itself, the dealing in marijuana and the scope of that enterprise,
uh, I don’t think I can keep you in the community at this point in
time. Now once again, Boys’ School is just a treatment option
and in my opinion and at this point it is the best treatment option
I have because at least at Boys’ School I number one know you
are going to get an education, number two, I know you are going
to be safe and you are not going to have access to
methamphetamine at least that is my sincere hope. Uh, you are
going to get treatment for your addiction. That is the best thing I
have available to me at this time. So, the Court is going to enter
a commitment to the [DOC] for placement of the juvenile at the
Indiana Boys’ School.
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Tr. Vol. II, pp. 90–91. This appeal follows.
Discussion and Decision
[8] E.H. contends that the juvenile court abused its discretion in committing him to
the DOC for placement at the Indiana Boys’ School. In determining whether
the juvenile court properly placed E.H. with the DOC, “we note that the choice
of the specific disposition of a juvenile adjudicated a delinquent child is a matter
within the sound discretion of the juvenile court and will only be reversed if
there has been an abuse of that discretion.” J.S. v. State, 881 N.E.2d 26, 28
(Ind. Ct. App. 2008) (citing E.L. v. State, 783 N.E.2d 360, 366 (Ind. Ct. App.
2003)).
The juvenile court’s discretion is subject to the statutory
considerations of the welfare of the child, the safety of the
community, and the policy of favoring the least harsh
disposition. C.C. v. State, 831 N.E.2d 215, 216–17 (Ind. Ct. App.
2005). An abuse of discretion occurs when the juvenile court’s
action is clearly erroneous and against the logic and effect of the
facts and circumstances before the court or the reasonable,
probable, and actual inferences that can be drawn therefrom. Id.
Hence, the juvenile court is accorded wide latitude and great
flexibility in its dealings with juveniles. C.T.S. v. State, 781
N.E.2d 1193, 1203 (Ind. Ct. App. 2003).
Id.
[9] Indiana Code section 31-37-18-6 sets forth the following factors that a juvenile
court must consider when entering a dispositional decree:
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If consistent with the safety of the community and the best
interest of the child, the juvenile court shall enter a dispositional
decree that:
(1) is:
(A) in the least restrictive (most family like) and most
appropriate setting available; and
(B) close to the parents’ home, consistent with the
best interest and special needs of the child;
(2) least interferes with family autonomy;
(3) is least disruptive of family life;
(4) imposes the least restraint on the freedom of the child and the
child’s parent, guardian, or custodian; and
(5) provides a reasonable opportunity for participation by the
child’s parent, guardian, or custodian.
As we noted in J.S., Indiana Code section 31-37-18-6 requires the juvenile court
to select the least restrictive placement in most situations. 881 N.E.2d at 28–29.
However, the statute contains language that reveals that a more restrictive
placement might be appropriate under certain circumstances. “That is, the
statute requires placement in the least restrictive setting only “[i]f consistent
with the safety of the community and the best interest of the child.’” Id. at 29
(quoting Indiana Code § 31-37-18-6). “Thus, the statute recognizes that in
certain situations the best interest of the child is better served by a more
restrictive placement.” Id. (citing K.A. v. State, 775 N.E.2d 382, 386–87 (Ind.
Ct. App. 2002)).
[10] E.H. claims that the juvenile court abused its discretion in committing him to
the DOC because a less restrictive option, i.e., home detention, was available.
The record, however, shows that the juvenile court found that given the
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circumstances of this case, home detention was not a viable option. First,
E.H.’s criminal actions negatively impacted the community. E.H. admitted to
selling relatively large quantities of marijuana. E.H. also admitted that a
number of his customers were juveniles. The record reveals that at least some
of these juveniles have faced suspension or expulsion from school because of
their purchases of marijuana from E.H.
[11] Second, E.H. was placed on home detention following his admission and prior
to the dispositional hearing. During this time, he showed minimal compliance
with the terms of his home detention and tested positive for drugs, including
methamphetamine. E.H. also failed to acknowledge that he had a substance
abuse problem. Service providers expressed difficulty in determining whether
E.H. was being truthful during assessments. E.H. also displayed a disregard for
the conditions of his home detention, telling his probation officer “I know that I
am on house arrest, but guess what I am going to do what I want.” Tr. Vol. II,
p. 80. Third, although no formal legal action had previously been taken, E.H.
had been referred to the Noble County Probation Department on three separate
occasions before the State initiated the instant juvenile proceedings.
[12] The juvenile court expressed its reluctance to remove a juvenile from his family,
but found that such was necessary here. Based on our review of the record, we
cannot say that such a finding constituted an abuse of the juvenile court’s
discretion.
[13] The judgment of the juvenile court is affirmed.
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Robb, J., and Crone, J., concur.
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