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

MEMORANDUM DECISION FILED
Jul 03 2018, 10:15 am
Pursuant to Ind. Appellate Rule 65(D), this
CLERK
Memorandum Decision shall not be regarded as Indiana Supreme Court
Court of Appeals
precedent or cited before any court except for the and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Nancy A. McCaslin Curtis T. Hill, Jr.
McCaslin & McCaslin Attorney General of Indiana
Elkhart, Indiana
Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
A.S., July 3, 2018
Appellant-Respondent, Court of Appeals Case No.
17A-JV-3037
v. Appeal from the Elkhart Circuit
Court
State of Indiana, The Honorable Michael A.
Christofeno, Judge
Appellee-Petitioner.
The Honorable Deborah A. Domine,
Magistrate
Trial Court Cause No.
20C01-1702-JD-48
Barteau, Senior Judge
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Statement of the Case
[1] A.S. appeals the juvenile court’s order determining that he violated the terms of
probation and placing him in the custody of the Indiana Department of
Correction. We affirm.
Issues
[2] A.S. raises three claims, which we restate as:
I. Whether A.S. received ineffective assistance of counsel.
II. Whether the juvenile court deprived A.S. of his right to
due process.
III. Whether the juvenile court abused its discretion by placing
A.S. in the custody of the Department of Correction.
Facts and Procedural History
[3] On February 2, 2017, the State filed a delinquency petition against A.S. The
State alleged A.S. was a delinquent child for committing acts at the age of
fifteen that, if committed by an adult, would have amounted to operating a
vehicle while intoxicated, a Class A misdemeanor; operating a vehicle while
never having been licensed, a Class C misdemeanor; and failure to stop after an
accident, a Class B misdemeanor. The State claimed A.S. drove while drunk,
struck a utility pole, and fled the scene on foot.
[4] On March 14, 2017, A.S. appeared in juvenile court and admitted he
committed the acts described in the delinquency petition. The court ordered
him to take a drug test during a break in the proceedings, and he tested positive
for marijuana, amphetamines, and methamphetamine. A.S. also answered a
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drug and alcohol use questionnaire and indicated he was “unlikely” to quit
using drugs. Tr. Vol. II, p. 21. The court determined A.S. was a delinquent
child and placed him in the juvenile detention center (JDC) until he produced a
clean drug screen, at which time he would be released to probation with
electronic monitoring. Among other conditions of probation, the court ordered
A.S. to: (1) complete an addictions assessment and follow all treatment
recommendations; (2) participate in therapy; and (3) avoid unlawful behavior.
[5] A.S. produced a clean drug screen on March 24, 2017, and was released from
the JDC. On June 7, 2017, the juvenile court released A.S. from electronic
monitoring at the request of A.S.’s case manager but kept A.S. on probation.
[6] On June 23, 2017, A.S.’s probation officer filed with the juvenile court a request
to modify A.S.’s placement. During a June 27, 2017 hearing, the officer
testified that A.S. had tested positive for marijuana five times in two months
and had canceled or missed several appointments for court-ordered drug
counseling. Further, A.S. had showed up for one counseling appointment
under the influence of marijuana and had further admitted to consuming
alcohol the night before. A.S.’s mother had not attended any family counseling
sessions. The State asserted that A.S. was not benefitting from being placed at
home and requested that A.S. be returned to the JDC until an inpatient
treatment center agreed to accept him. The court granted the State’s request
and placed A.S. in the JDC pending placement in an inpatient facility.
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[7] On July 13, 2017, A.S.’s probation officer notified the juvenile court that the
DePaul Academy (DePaul) had agreed to accept A.S. for its inpatient treatment
program. The court ordered that A.S. be placed at DePaul. A.S. arrived at
DePaul on July 20, 2017. Appellant’s App. Vol. 2, p. 70.
[8] On November 16, 2017, A.S.’s probation officer reported to the juvenile court
that A.S. had been discharged from DePaul for serious violations of the
facility’s rules. Among other acts of misconduct, which we discuss in more
detail below, DePaul employees discovered A.S. was helping to plan an escape
from the facility. The plan involved potentially assaulting DePaul employees.
DePaul employees reported that A.S. “makes zero effort in participating in any
way” and “is making no progress in the program.” Id. at 80. Based on the
information from DePaul, the State recommended modifying A.S.’s placement
by sending him to the Indiana Department of Correction (DOC). The juvenile
court ordered that A.S. be placed in the JDC pending adjudication of the State’s
request to modify placement.
[9] On November 20, 2017, the court held an evidentiary hearing on the State’s
request to modify A.S.’s placement. At the end of the hearing, the court
awarded wardship of A.S. to the DOC and issued an order to that effect on the
same day. On December 20, 2017, the court issued an amended order placing
A.S. in the DOC, recommending that he be placed in a “community based
regional campus.” Id. at 99. The court identified the following reasons for
modifying placement:
1. Community Resources have been exhausted.
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2. Minor’s behavior is dangerous to the community and minor
requires the most restrictive placement available to the Court.
3. Placement is in minor’s best interest because it will give the
minor the opportunity for more intensive treatment in a
secure setting.
Id. This appeal followed.
Discussion and Decision
I. Assistance of Counsel
[10] A.S. argues he received ineffective assistance of counsel during the November
20, 2017 modification hearing. To establish ineffective assistance, a claimant
must prove both elements of the test set forth in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). Timberlake v. State, 690
N.E.2d 243, 259 (Ind. 1997). The claimant must show, first, that counsel’s
actions fell below an objective standard of reasonableness, and second, that the
substandard performance was so prejudicial as to deny the claimant a fair trial.
Id. To establish prejudice, a claimant must demonstrate a reasonable
probability that, but for counsel’s errors, the result of the proceeding would
have been different. McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002). We can
dispose of a claim of ineffective assistance upon the failure of either element.
Walker v. State, 988 N.E.2d 1181, 1186 (Ind. Ct. App. 2013), trans. denied.
[11] We presume counsel is competent. Johnson v. State, 674 N.E.2d 180, 184 (Ind.
Ct. App. 1996), trans. denied. Evidence of isolated poor strategy, inexperience,
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or bad tactics will not support an ineffective assistance claim; instead, we
evaluate counsel’s performance as a whole. Walker, 988 N.E.2d at 1186.
[12] The State argues A.S. may not present a claim of ineffective assistance of
counsel under the Strickland standard because the right to effective assistance of
counsel, as set forth in Strickland, is grounded in criminal law, and juvenile
delinquency proceedings are civil in nature.1 In S.T. v. State, 764 N.E.2d 632(Ind. 2002), the Indiana Supreme Court considered an appeal by a juvenile who
claimed he had received ineffective assistance of counsel, and the Court
squarely addressed the claim. Following precedent, we reject the State’s
argument and turn to the merits of A.S.’s claim.
[13] Attorney Kelly Stansbury represented A.S. throughout the juvenile court
proceedings. A.S. argues that during the November 20, 2017 hearing, he
testified that he did not think he should go to the DOC, but Attorney Stansbury
effectively agreed with the State that placement at the DOC was the only
appropriate outcome. Attorney Stansbury told the juvenile court, “with these
violations, it’s really hard to recommend an alternative that’s not been tried and
that’s kind of all we’re really left with other than the Department of
Corrections, which hasn’t been tried.” Tr. Vol. II, p. 79. He further stated that
other residential inpatient facilities would likely refuse to accept A.S. based on
his record. Attorney Stansbury concluded, “unfortunately, I don’t know what
1
The State concedes that respondents in juvenile delinquency proceedings have a statutory right to counsel.
See Ind. Code §§ 31-32-2-2 (1997), 31-32-4-1 (1997).
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else to – to recommend.” Id. at 80. A.S. claims his attorney “failed to subject
the prosecutor’s case to meaningful adversarial testing.” Appellant’s Br. p. 25.
[14] Even if Attorney Stansbury’s statements to the juvenile court fell below an
objective standard of reasonableness, A.S. must demonstrate prejudice. That is,
A.S. must demonstrate a reasonable probability that if his attorney had argued
against sending A.S. to the DOC, then the court would not have sent him there.
[15] During his stint on probation A.S. established a record of noncompliance with
the terms of probation, including committing new unlawful acts. When A.S.
appeared in juvenile court on March 14, 2017, to admit to committing the acts
alleged in the State’s petition of delinquency, he was under the influence of
marijuana, amphetamines, and methamphetamines. He stated in a
questionnaire that he was “unlikely” to quit using controlled substances. The
court ordered A.S. to be confined in the JDC until he had a clean drug test and
stated that he would then be released to probation with electronic monitoring.
[16] A.S. initially performed well enough on probation that his probation officer
asked to have the electronic monitoring removed, but his performance took a
turn for the worse. He tested positive for marijuana on five occasions and was
discharged from his outpatient treatment facility for missing appointments. On
one occasion, A.S. showed up for an appointment under the influence of
marijuana and admitted to consuming alcohol the night before. During the
June 27, 2017 modification hearing, A.S. admitted to the court that he had used
marijuana while on probation. Use of marijuana and consumption of alcohol
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as a minor are both new offenses. Further, A.S.’s counselors reported that he
displayed “lack of motivation” and was uninterested in working on his
substance abuse issues. Tr. Vol. II, p. 47.
[17] Based on A.S.’s record of misconduct while on home placement, the court
placed him at DePaul for inpatient drug and behavioral treatment. During an
October 10, 2017 hearing, A.S.’s probation officer reported A.S. was
“struggling” with “doing things on his own time and pushing the limits with
staff about being able to accept redirection.” Id. at 62. The officer further stated
that A.S. was “lacking in motivation.” Id.
[18] After that hearing, A.S.’s misconduct intensified to the point that DePaul
expelled him. He: (1) assisted in plotting an escape attempt that could have
resulted in injury to DePaul employees; (2) tried to make alcohol in his room;
(3) was involved in an altercation with another resident that resulted in injury to
a DePaul employee; (4) failed to complete homework and was kicked out of
group therapy for sleeping; (5) encouraged other residents to act out; and (6)
attempted to share medicine with another resident. DePaul employees further
reported that A.S. “makes zero effort in participating in any way” and “is
making no progress in the program.” Appellant’s App. Vol. 2, p. 80. The
juvenile court told A.S.:
I’m making you a ward [of the DOC] because you attempted to
run from placement, because staff was assaulted, because you
made alcohol, I guess, in placement. You undermine the
treatment of others, you cheeked medication and gave it to peers
and that, too, put other people at risk of harm.
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Tr. Vol. II, p. 83.
[19] A.S. failed to comply with the terms of probation while living at home and
seeking treatment on an outpatient basis, and he further failed to comply with
the terms of probation while confined in an inpatient treatment center. Clearly,
he was unsuccessful in settings less restrictive than the DOC. In both settings,
A.S. demonstrated a lack of interest in making the necessary changes in his life
to avoid future misconduct. Further, he engaged in a pattern of misconduct
and committed acts involving marijuana and alcohol that could have supported
the filing of new delinquency petitions. We conclude from this extensive record
that the juvenile court would have most likely sent A.S. to the DOC after the
November 20, 2017 hearing even if A.S.’s counsel had urged the court to
choose a less restrictive placement. A.S. has failed to demonstrate prejudice
from his attorney’s decision not to challenge his placement at DOC, and his
claim of ineffective assistance of counsel fails.
II. Due Process
[20] A.S. claims that his attorney’s decision not to argue against placement at the
DOC violated his right to due process under the United States Constitution and
the Indiana Constitution. Whether a party was denied due process is a question
of law that we review de novo. Hillgoss v. State, 45 N.E.3d 1228, 1230 (Ind. Ct.
App. 2015); D.G. v. S.G., 82 N.E.3d 342, 347 (Ind. Ct. App. 2017), trans. denied.
[21] The Fourteenth Amendment bars states from depriving a person “of life,
liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.
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Article one, section twelve of the Indiana Constitution provides, in relevant
part, “All courts shall be open, and every person, for injury done to him in his
person, property, or reputation, shall have remedy by due course of law.” A.S.
also cites to article one, section thirteen of the Indiana Constitution, which
provides in relevant part: “In all criminal prosecutions, the accused shall have
the right . . . to be heard by himself and counsel . . . .”
[22] Although the due course of law clause differs from the Fourteenth
Amendment’s Due Process Clause, we apply the same analysis to claims under
either provision. Gingerich v. State, 979 N.E.2d 694, 710 (Ind. Ct. App. 2012),
trans. denied. We investigate whether a deprivation of life, liberty or property by
the state was “preceded by notice and an opportunity for hearing appropriate to
the nature of the case.” Id. (quotation omitted). Due process generally
includes: “representation by counsel, written notice of the claimed violations,
disclosure of the opposing evidence, an opportunity to be heard and present
evidence, and the right to confront and cross-examine witnesses in a neutral
hearing before the trial court.” Cox v. State, 706 N.E.2d 547, 550 (Ind. 1999).
[23] A.S.’s Fourteenth Amendment claim is intertwined with his claim of ineffective
assistance of counsel. In Strickland, the United States Supreme Court stated,
“The Constitution guarantees a fair trial through the Due Process Clauses, but
it defines the basic elements of a fair trial largely through the several provisions
of the Sixth Amendment, including the Counsel Clause . . . .” 466 U.S. at 684-
85, 104 S. Ct. at 2063. A.S.’s due process argument focuses on his Sixth
Amendment right to effective assistance of counsel: “When the Sixth
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Amendments [sic] rights to counsel are violated, fundamental fairness cannot
be the result.” Appellant’s Br. p. 31. Having determined that A.S. is not
entitled to prevail on his claim of ineffective assistance of counsel, we likewise
conclude that he is not entitled to prevail on his Fourteenth Amendment claim.
[24] Turning to A.S.’s due course of law clause claim, he cites to Edwards v. State,
902 N.E.2d 821 (Ind. 2009), and Sanchez v. State, 749 N.E.2d 509 (Ind. 2001), in
support. Those cases are factually distinguishable and addressed dissimilar due
process claims. Edwards addressed whether mentally impaired persons have a
broader right to self-representation under article one, section thirteen than those
afforded under the federal constitution. Sanchez addressed whether article one,
section twelve required the trial court to allow Sanchez to present a defense of
voluntary intoxication. A.S.’s case is different from those two cases, and they
do not mandate a conclusion that A.S. was deprived of due process under the
Indiana Constitution. We conclude that his due process claims must fail.
III. Modification of Placement
[25] A.S. argues the trial court erred in placing him at the DOC because he
acknowledged during the November 20, 2017 hearing that he had made poor
choices and was trying to change his negative behavior. Once a juvenile court
determines a child is a delinquent, the court must hold a dispositional hearing
to consider, among other topics, “[a]lternatives for the care, treatment,
rehabilitation, or placement of the child.” Ind. Code § 31-37-18-1 (1997).
When the State seeks to modify a child’s placement, the juvenile court must
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also hold a hearing. Ind. Code § 31-37-22-3 (2009). In deciding where a child
should be placed, the court must consider the following:
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.
Ind. Code § 31-37-18-6 (1997). Without question, the statute requires the
juvenile court to select the least restrictive placement in most situations;
however, the statute also permits a court to impose a more restrictive placement
under certain circumstances. J.S. v. State, 881 N.E.2d 26, 28-29 (Ind. Ct. App.
2008).
[26] Subject to these statutory considerations, we review the trial court’s choice of
disposition for an abuse of discretion. K.S. v. State, 849 N.E.2d 538, 544 (Ind.
2006). 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
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the court, or the reasonable, probable, and actual deductions to be drawn
therefrom. D.B. v. State, 842 N.E.2d 399, 404-05 (Ind. Ct. App. 2006).
[27] We have already discussed A.S.’s extensive pattern of misconduct while on
probation. Considering A.S.’s repeated and serious failures to comply with the
terms of probation while living at home and while living in an inpatient
treatment facility, the trial court acted well within its discretion in designating
A.S. as a ward of the DOC. Less restrictive placements had been tried and had
failed. See K.S., 849 N.E.2d at 544 (affirming juvenile court decision to place
K.S. with DOC after repeated violations of the terms of probation; commitment
to DOC was necessary to address juvenile’s counseling needs and the needs of
the community).
Conclusion
[28] For the reasons stated above, we affirm the judgment of the juvenile court.
[29] Affirmed.
Robb, J., and Brown, J., concur.
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