H.D.P. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Feb 28 2018, 9:53 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
H.D.P., February 28, 2018
Appellant-Respondent, Court of Appeals Case No.
47A04-1710-JV-2351
v. Appeal from the Lawrence Circuit
Court
State of Indiana, The Honorable Andrea K.
Appellee-Petitioner. McCord, Judge
The Honorable John M. Plummer,
III, Referee
Trial Court Cause No.
47C01-1705-JD-272
Najam, Judge.
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Statement of the Case
[1] H.D.P. appeals the juvenile court’s entry of a restitution order against him.
H.D.P. raises one issue for our review, which we restate as the following two
issues:
1. Whether the juvenile court abused its discretion when it
ordered him to pay restitution and detention costs.
2. Whether he was denied the effective assistance of counsel.
[2] We affirm.
Facts and Procedural History
[3] On March 1, 2017, H.D.P., then sixteen years old, and Kurt Kimberly, an
adult, broke into a barn that belonged to Joyce Chenowith and took her truck.
The next day, law enforcement officers recovered the truck. One of the officers
received an estimate of the damages to the truck from a body shop. The body
shop estimated that it would cost $26,676.64 to fix the vehicle. Chenowith
indicated to the State that her insurance company had reimbursed her for all but
$8,701.10 of her losses. On May 31, 2017, the State filed a request to file a
delinquency petition against H.D.P., which alleged that H.D.P. had committed
what would be burglary, as a Level 5 felony, and auto theft, as a Level 6 felony,
if committed by an adult. The juvenile court approved that filing the same day.
[4] The juvenile court held a pretrial conference on August 31. At the pretrial
conference, H.D.P.’s counsel stated that H.D.P. “intends to admit to an
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amended specification” under which he agreed to admit to criminal trespass, as
a Class A misdemeanor, if committed by an adult. Tr. Vol. II at 20. The court
then asked if there was an agreed upon disposition. H.D.P.’s attorney
responded: “The only agreement is concerning [sic] he will pay restitution and
we understand the balance to be eight-thousand-seven-hundred-and-seven
dollars and ten cents ($8,707.10).” Id. The State then confirmed that H.D.P.’s
counsel had accurately described the agreement.
[5] In exchange for his agreement to admit to criminal trespass, as a Class A
misdemeanor, the State moved to dismiss the charge for burglary, as a Level 5
felony, and it moved to amend the charge for auto theft, as a Level 6 felony,
down to criminal trespass, as a Class A misdemeanor. The juvenile court
granted the State’s motion. The court accepted H.D.P.’s admission and
adjudicated him to be a delinquent child.
[6] On September 5, the juvenile court’s probation department filed a
predispositional report. In that report, the probation department recommended
that the juvenile court order H.D.P. to “pay Court costs in the amount of
$176.00; to serve four (4) days, with credit for four (4) days served, at the
Jackson County Juvenile Detention Center, with costs in the amount of
$400.00[.]” Appellant’s App. Vol. II at 60. It also recommended that the court
order H.D.P. “to pay restitution for the losses caused as a result of his actions in
the amount of $8,707.10, jointly and severally with all co-defendants.” Id. It
further recommended that the court hold a review hearing in sixty days for
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H.D.P.’s mother to review payments on any outstanding and owed fees, costs,
and restitution.
[7] On September 7, the juvenile court held a dispositional hearing. The court
asked H.D.P. if he had any argument to present. In response, H.D.P.’s counsel
stated: “Your Honor, after consultation with my client, we are in agreement
with the recommendation made by Probation.” Tr. Vol. II at 27. The juvenile
court then stated: “I’m going to go ahead and issue that order then.” Id. The
State then asked if the court was “just ordering restitution and everything else as
recommended by Probation?” Id. at 28. The court responded and stated: “All
recommendations made by Probation are now reduced to the orders of the
Court.” Id. The juvenile court then issued a written dispositional order and an
order for payment in which the court ordered “restitution of $8,707.10 to
victim, Joyce Chenowith, jointly and severally with all co-defendants, detention
fees of $400.00, Court costs of $176.00 to be paid in this cause and orders
[H.D.P.’s mother] to ensure and guarantee that all fees and costs are paid as
ordered.”1 Appellant’s App. Vol. II at 65. This appeal ensued.
1
H.D.P. claims that the juvenile court abused its discretion when it ordered his mother to guarantee the
restitution award because he “was not living with his parents at the time of the offense . . . and was a ward of
DCS” or because the “restitution award violates I.C. § 34-31-4-1.” But H.D.P. does not have standing to
bring that claim.
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Discussion and Decision
Issue One: Restitution and Detention Costs
[8] H.D.P. first contends that the juvenile court abused its discretion when it
ordered him to pay restitution and detention costs. An order of restitution lies
within the trial court’s discretion and will be reversed only where there has been
an abuse of that discretion. Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012). A
“trial court abuses its discretion in ordering restitution ‘only if no evidence or
reasonable inferences therefrom support the trial court’s decision[.]’” Archer v.
State, 81 N.E.3d 212, 216 (Ind. 2017) (quoting Little v. State, 839 N.E.2d 807,
809 (Ind. Ct. App. 2005)). A trial court also abuses its discretion if it
misinterprets or misapplies the law. Baker v. State, 70 N.E.3d 388, 390 (Ind. Ct.
App. 2017), trans. denied.
[9] H.D.P. specifically contends that the trial court abused its discretion when it
ordered him to pay restitution because the State did not present any evidence of
the nature or amount of the victim’s loss and because the juvenile court did not
conduct an inquiry into the ability of him or his parents to pay restitution. He
also contends that the juvenile court abused its discretion when it imposed joint
and several liability on H.D.P. and his co-defendant because the order did not
specify the exact amount that H.D.P. was required to pay. He further asserts
that the juvenile court abused its discretion when it ordered his mother to
guarantee the fees because he was a ward of the Indiana Department of Child
Services at the time. Finally, he asserts that the juvenile court abused its
discretion when it ordered him to pay four hundred dollars in detentions costs.
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[10] At the pretrial conference, H.D.P.’s counsel represented to the court that
H.D.P. had agreed to pay restitution in the amount of $8,707.10. Then, prior to
the dispositional hearing, the probation department filed its predispositional
report and recommended that the juvenile court order H.D.P. to pay Court
costs in the amount of $176.00; detention costs in the amount of $400.00; and
restitution for the losses caused as a result of his actions in the amount of
$8,707.10, jointly and severally with all co-defendants. At the dispositional
hearing on September 7, H.D.P.’s counsel represented that H.D.P. agreed “with
the recommendation made by Probation.” Tr. Vol. II at 27.
[11] The juvenile court relied on those representations when it issued its order for
payment of restitution and detention costs. Thus, H.D.P. has invited any error
in the court’s order for restitution. The invited error doctrine forbids a party
from taking advantage of an error that he “commits, invites, or which is the
natural consequence of [his] own neglect or misconduct.” Brewington v. State, 7
N.E.3d 946, 975 (Ind. 2014) (quoting Wright v. State, 828 N.E.2d 904, 907 (Ind.
2005)). See, e.g., Wright, 828 N.E.2d at 907.
[12] In his reply brief, H.D.P. contends that the “invited error doctrine does not
apply in light of the requirements” of Indiana Code Section 31-37-19-5. Reply
Br. at 5. Indiana Code Section 31-37-16-5(b)(4) provides that the juvenile court
may “[o]rder the child to pay restitution if the victim provides reasonable
evidence of the victim’s loss, which the child may challenge at the dispositional
hearing.” In essence, H.D.P. contends that any admission or agreement by him
was irrelevant and did not negate the statutory requirement that the victim
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provide reasonable evidence of her loss at a dispositional hearing. However,
H.D.P. does not cite any case law that supports his contention. Rather, H.D.P.
cites Stockert v. State, 44 N.E.3d 78, 82 (Ind. Ct. App. 2015), in which this court
held that a sex offender’s placement on the sex offender registry is mandatory,
and that the Sex Offender Registry Act does not afford the trial court discretion
in the matter of registration requirements. H.D.P. also cites Bennett v. State, 862
N.E.2d 1281, 1288 (Ind. Ct. App. 2007), in which this court reversed the trial
court’s order that the defendant pay for the victim’s out-of-pocket therapy
expenses when the defendant did not object because the order did not set an
amount that the defendant was to pay or an end date to the requirement.
Neither of those cases support H.D.P.’s contention that Chenowith was
required to present evidence of her loss at a hearing even though H.D.P. had
twice affirmatively agreed to the amount of restitution.
[13] H.D.P. contends, however, that, to the extent he agreed to pay restitution, he
did not agree to pay $8,707.10, but, instead, “he only agreed to the amount of
restitution that the Probation Department Recommended.” Appellant’s Br. at
18. And he claims that “the only restitution which the Probation Department
recommended H.D.P. pay was restitution ‘caused as a result of [H.D.P.’s]
actions’” and that the record does not contain any evidence as to what portion,
if any, of the damages were a result of his actions. Id. (quoting Appellant’s
App. Vol. II at 60). However, the probation department recommended that the
juvenile court order H.D.P. “to pay restitution for the losses caused as a result
of his actions in the amount of $8,707.10[.]” Id. (emphasis added). And H.D.P.
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agreed to the probation department’s recommendation. As such, it is clear that
H.D.P. agreed to pay $8,707.10 in restitution, and his assertions to the contrary
on appeal are without merit.
[14] Still, H.D.P. further contends that his agreement to pay restitution “does not
change the necessity for reversal” because appellate courts can review a trial
court’s restitution order even when the defendant did not object. Appellant’s
Br. at 16. To support his contention, H.D.P. relies on Bell v. State, 59 N.E.3d
959 (Ind. 2016). In Bell, the Indiana Supreme Court held:
Although there have been cases in which appeals on restitution
were waived due to the failure to make an objection at trial, “the
vast weight of the recent case law in this state indicates that
appellate courts will review a trial court’s restitution order even
when the defendant did not object based on the rationale that a
restitution order is part of the sentence, and it is the duty of the
appellate courts to bring illegal sentences into compliance.”
Id. at 962 (quoting Rich v. State, 890 N.E.2d 44, 48 (Ind. Ct. App. 2008)). That
is, our Supreme Court held that an appellate court will review a restitution
order for the first time on appeal, which makes sense in that a restitution order
is usually a final judgment to which the defendant does not have a prior
opportunity to object. Here, however, H.D.P. did not simply fail to object to
the restitution order. He twice affirmatively stated that he agreed to pay
$8,707.10 in restitution.
[15] Finally, H.D.P. contends that, even if he waived any objection to the restitution
order, “reversal is still required because the juvenile court’s imposition of the
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$8,707.10 in restitution constitutes fundamental error.” Appellant’s Br. at 18.
“The fundamental error exception is ‘extremely narrow, and applies only when
the error constitutes a blatant violation of basic principles, the harm or potential
for harm is substantial, and the resulting error denies the defendant
fundamental due process.’” Cole v. State, 28 N.E.3d 1126, 1135 (Ind. Ct. App.
2015) (quoting Brown v. State, 929 N.E.2d 204, 2017 (Ind. 2010)). But, as
discussed above, H.D.P. invited any error in the juvenile court’s order that he
pay restitution and detention costs when he explicitly agreed to the probation
department’s recommendation. And “‘invited error is not fundamental error’
and is not subject to appellate review[.]” Id. (quoting Kingery v. State, 659
N.E.2d 490, 494 (Ind. 1995)). Because any error in the juvenile court’s order
for payment was invited by H.D.P., we decline to reverse on this basis.
Issue Two: Ineffective Assistance of Counsel
[16] H.D.P. next contends that, even if he “is deemed to have waived any objection
to the restitution order or the order is found to have been appropriately drafted
under the circumstances,” the order should be reversed because he did not
receive effective assistance from his counsel.
In reviewing a claim of ineffective assistance of counsel, we
initially presume that counsel’s representation was within the
wide range of reasonable professional assistance. S.E. [v. State],
744 N.E.2d [536,] 539 [(Ind. Ct. App. 2001)]. The defendant has
the burden to rebut the presumption of competence with strong
and convincing evidence. Id. In order to prevail on a claim of
ineffective assistance of counsel, the defendant must prove both
that counsel’s representation was deficient and that this deficient
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performance so prejudiced the defendant as to deprive him or her
of a fair proceeding. Id. Isolated poor strategy, inexperience, or
bad tactics do not necessarily constitute ineffective assistance of
counsel. Id. Counsel’s conduct is assessed by the facts known at
the time, not by later information or hindsight. State v. Moore,
678 N.E.2d 1258, 1261 (Ind.1997).
J.A. v. State, 904 N.E.2d 250, 254-55 (Ind. Ct. App. 2009), trans. denied.
[17] H.D.P. specifically contends that his counsel was ineffective because his
counsel did not offer evidence as to what portion of the damages was a direct
result of his actions, because his counsel did not request any inquiry into the
ability of H.D.P. to pay restitution, and because his counsel “agreed to the
Probation Department’s recommendation for restitution for which H.D.P. and
his co-defendant would have joint and several liability.” Appellant’s. Br. at 23.
He further claims that he was prejudiced by his counsel’s performance because
he is now obligated “to pay potentially all of the $8,707.10 restitution award”
for which he might otherwise not have been responsible. Id. at 24.
[18] H.D.P., however, does not direct us to anything in the record that would
indicate that counsel failed to inform him of the contents of the
recommendation, that he told counsel that he could not pay the restitution, that
he ever told counsel that he did not believe all of the damages were attributable
to his actions, or that he did not agree to that recommendation. On the
contrary, the only information in the record regarding whether H.D.P.’s
counsel advised him is from the dispositional hearing on September 7. At that
hearing, H.D.P.’s counsel specifically stated that “after consultation with my client,
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we are in agreement with the recommendation made by Probation.” Tr. Vol. II
at 27 (emphasis added).
[19] Further, in the predispositional report, the probation department stated that
Chenowith “was reimbursed by her insurance for a portion of her losses, but
insurance did not cover $8,707.10.” Appellant’s App. Vol. II at 51. And
H.D.P. does not direct us to any evidence that would suggest his attorney did
not obtain and review this document. On the contrary, it is clear that his
attorney did obtain the predispositional report. At the dispositional hearing on
September 7, H.D.P.’s counsel affirmatively stated that she had received a copy
of the dispositional report. Therefore, H.D.P. did not provide any evidence, let
alone strong and convincing evidence, that could rebut the presumption that his
attorney was competent or that he was prejudiced by his attorney’s
performance. J.A., 904 N.E.2d 254. As such, H.D.P. has not shown that he
received ineffective assistance of counsel. In conclusion, notwithstanding
H.D.P.’s excellent brief on appeal, we find no reversible error and affirm the
juvenile court’s entry of the restitution order against him
[20] Affirmed.
Mathias, J., and Barnes, J., concur.
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