D.H. v. State of Indiana

Oct 08 2013, 5:25 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ERNEST P. GALOS GREGORY F. ZOELLER
Public Defender Attorney General of Indiana
South Bend, Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.H., )
)
Appellant-Respondent, )
)
vs. ) No. 71A03-1304-JV-137
)
STATE OF INDIANA, )
)
Appellee-Petitioner. )
APPEAL FROM THE ST. JOSEPH PROBATE COURT
The Honorable James N. Fox, Judge
Cause No. 71J01-1204-JD-182
October 8, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
D.H. admitted to the commission of a delinquent act that would constitute Class B
felony robbery1 if committed by an adult. D.H. appeals from his dispositional order
contending that it is inappropriate and violates Article I, Section 23 of the Indiana
Constitution and that the juvenile court erred in failing to grant him credit time.
We affirm.
FACTS AND PROCEDURAL HISTORY
The facts supporting D.H.’s adjudication are that around 8:40 p.m. on April 9, 2012,
D.H., who was fifteen years old at the time, walked into a Family Dollar store in Mishawaka,
Indiana. D.H. spoke to the cashier, Diane Brady (“Brady”), and asked her if the store carried
“Dickie” t-shirts. Brady informed him that they carried Hanes t-shirts and directed him to the
appropriate aisle of the store where they were located. A few minutes later, D.H. came up to
the register carrying a home pregnancy test box and asked Brady how one administers the
test. After Brady had explained the procedure, she bent to retrieve one of the tests from
behind the counter. D.H. stated, “I’m not gonna pee on it.” Appellant’s App. at 248.
When Brady looked up, she saw that D.H. had aimed a pistol at her. D.H. demanded
the money from the register, stating: “Give me all your money now or I swear on my
momma I’ll start shooting.” Id. Brady then called her manager over to open the register.
D.H. said: “You got five seconds to get that drawer open or I swear on my momma I’ll start
shooting.” Id. The drawer was opened, and D.H. was given the money. He then ran out of
the store and headed westbound in a car.
1
See Ind. Code § 35-42-5-1.
2
Police officers intercepted the car that D.H. was driving as D.H. traveled westbound at
a high rate of speed not far from the store. D.H. was in the car with two other individuals.
Brady was transported to the scene of the traffic stop where she identified D.H. as the person
who robbed her store. A handgun and a large sum of cash were found in the pocket of a
jacket in the vehicle near the driver’s seat. A check of the license plate of the vehicle
revealed that the car had been reported stolen during a carjacking incident in Indianapolis.
At his initial hearing, D.H. admitted that he had committed the robbery. The juvenile
court entered an order committing D.H. to the Department of Correction (“DOC”) for a
determinate sentence of two years. Because the juvenile court failed to inform D.H. of his
right to appeal, D.H.’s petition to have the judgment set aside was granted.
A second dispositional hearing was held on March 20, 2013, at which D.H. was again
committed to the DOC for a two-year determinate term. At the second dispositional hearing,
on March 20, 2013, D.H. presented his mother’s testimony about her efforts to have D.H.
placed at the Damar Charter Academy in the Indianapolis area. She further testified that
Cummins Behavioral systems could handle D.H.’s medication needs. D.H.’s mother had also
investigated the possibility of placing D.H. at Resource Residential Treatment Facility, a
facility that had been willing to accept D.H. at the time of his first dispositional hearing.
However, none of the options his mother mentioned were immediately available. The
juvenile court again committed D.H. to the DOC for a two-year determinate term and
awarded him credit for the time spent in the DOC between his first dispositional hearing and
the second hearing. D.H. now appeals.
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DISCUSSION AND DECISION
D.H. claims that the juvenile court abused its discretion by placing him in the DOC for
a determinate sentence of two years instead of an alternative placement outside of the DOC.
A juvenile court’s choice of the specific disposition of a juvenile adjudicated a delinquent
child is a matter left to the sound discretion of the juvenile court. J.S. v. State, 881 N.E.2d
26, 28 (Ind. Ct. App. 2008). We will reverse the juvenile court’s dispositional order only if
the juvenile court has abused its discretion. Id. A juvenile court abuses its discretion when
its action is clearly erroneous and against the logic and effect of the facts and circumstances
before the juvenile court or the reasonable, probable, and actual inferences that can be drawn
therefrom. C.C. v. State, 831 N.E.2d 215, 217 (Ind. Ct. App. 2005). “Hence, the juvenile
court is accorded wide latitude and great flexibility in its dealings with juveniles.” J.S., 881
N.E.2d at 28.
The juvenile court’s discretion is subject to three statutory considerations: 1) the
welfare of the child; 2) the safety of the community; and 3) the policy of favoring the least
harsh disposition. Id. Indiana Code section 31-37-18-6 provides that the least restrictive
placement of the juvenile is required only if it is consistent with the “safety of the community
and the best interest of the child. . . .” “To aid juvenile court judges, the legislature has put at
their disposal ‘a myriad of dispositional alternatives to fit the unique and varying
circumstances of each child’s problems.’” N.D.F. v. State, 775 N.E.2d 1085, 1089 (Ind.
2002) (quoting Madaras v. State, 435 N.E.2d 560, 561 (Ind. 1982)). With that flexibility in
mind, and guided by the overarching purpose of rehabilitation in the juvenile justice system,
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the legislature enacted the juvenile determinate sentencing statute, which is a statutory
recognition that “[i]n some instances, confinement may be one of the most effective
rehabilitative techniques available.” Id. (quoting Madaras v. State, 425 N.E.2d at 672)).
D.H. contends, however, that his determinate sentence in the DOC is not an effective
rehabilitative technique for him.
Here, D.H. had been released early from a commitment to the DOC for just two
months before he aimed a loaded handgun at an employee of a Family Dollar store,
demanded money, and threatened to kill her, and potentially others in the store. The conduct
that had led to his prior commitment in the DOC was an act that would constitute carjacking.
While committed to the DOC, D.H. had worked through his growth plan to a level four,
leading to a modification of his placement. Similarly, in his latest placement, D.H. had
worked his way to level four in his growth plan at the DOC.
D.H. argues that his ability to attain such growth in the DOC “had reached a
maximum level of help” and that he “was surrounded by people that had no intention of
reformation and would only corrupt him.” Appellant’s Br. at 13. To the extent that D.H.’s
argument suggests that he has received the complete benefits of resources available through
the DOC, we disagree. Even after previously achieving a favorable growth level through the
structure of the DOC, once removed from the DOC structure, D.H. pointed a loaded handgun
at a store employee in order to steal money, threatening to kill her if his demand was not met.
Furthermore, D.H.’s characterization of his demotion, just prior to the second dispositional
hearing, from growth level four to growth level three, as illustrative of something that “was
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unfortunate, but also reflects D.H.’s frustration” is likewise unpersuasive. Id. at 12.
D.H.’s behavioral choices demonstrate the difficulty he has maintaining good
behavior in a highly structured environment and that he is unlikely to conform his behavior in
a less-structured environment. D.H.’s behavior outside the DOC has led to criminal behavior
escalating from thefts and runaways, to carjacking and now armed robbery. D.H. was on
probation when he committed his most recent offense, the last of a history of offenses
totaling seventeen delinquency referrals and four prior adjudications; one for criminal
conversion, two for theft, and one for carjacking. The juvenile court reached an appropriate
disposition in light of D.H.’s welfare and the safety of the community.
D.H. also asserts that the juvenile court erred by failing to award him credit for time
served prior to the entry of any dispositional order. The State asserts, and we agree, that this
issue has been resolved contrary to D.H.’s position by our Supreme Court in J.D. v. State,
853 N.E.2d 945 (Ind. 2006). In that case a similar argument was presented and rejected as
follows:
We believe that the inherent differences between the juvenile delinquency and
adult criminal justice systems dictate that a juvenile offender is not entitled to
credit for time served in detention prior to sentencing. A key feature of the
Juvenile Code is the broad range of alternatives a juvenile court judge has
available once a child has been found by the court to be “a delinquent child,”
i.e., to have committed an act that would be a crime if committed by an adult.
In the vocabulary of the Juvenile Code, these alternatives are called
“dispositions” and the judge enters a “dispositional decree” (rather than a
sentencing order). In its dispositional decree, depending upon the
circumstances of the particular case, the court can, e.g., order supervision of
the child by the probation department, order “wardship” of the child to the
Department of Correction (“DOC”), or order confinement in a juvenile
detention center, as well as order various other sanctions and treatment. See
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Ind. Code §§ 31–37–19–5, 31–37–19–6, 31–37–19–8, 31–37–19–9 & 31–37–
19–10 (2004).
853 N.E.2d at 947.
Our review of the transcript of the sentencing hearing reveals the following exchange
between the parties and the juvenile court:
THE COURT: Sure. My order will indicate that he should receive
absolute credit for all the time he’s had; that even though
it’s a two[-]year sentence, that he’s already got 7 months
in, so I think everybody standing here understands that
it’s a one year and five months sentence at this point. Is
that fair enough? I don’t think anyone sees it
different[ly] than that.
MR. GALOS: The fact is, Your Honor, if you give him credit for all the
time he’s been in the JJC also, I mean it’s essentially I
think just a little over a year then in reality.
MR. RAPER: I think, Your Honor, what we’d be talking about is from
the date of disposition. It would be from August 17.
MR. GALOS: From disposition it’s not 215 days. He had 134 days in
prior to that also, so I didn’t know if that was going to be
counted toward--.
Tr. at 30.
D.H. claims that he should be given credit time because he was given more than the
maximum allowable determinate sentence. See Ind. Code § 31-37-19-10(b) (“A court may
place the child in a facility authorized under this chapter for no more than two (2) years.”).
D.H.’s original dispositional hearing was on August 17, 2012. After that disposition was
entered, and subsequently overturned, a second dispositional hearing was held. At that
hearing, the juvenile court awarded D.H. credit for the time he spent in the DOC between his
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first, now overturned, dispositional hearing and the second hearing, a period of roughly seven
months. His birthday is June 7, 1996, and he will turn eighteen years old on June 7, 2014, or
forty days before he would have served a full two years on his determinate sentence. Under
the holding in J.D., the juvenile court could not award D.H. credit for the time he was
detained prior to his first dispositional hearing on August 17, 2012. However, the juvenile
court could, and did, give D.H. credit for the seven months he was confined between
dispositional hearings. Thus, D.H. has failed to establish juvenile court error here, as his
maximum, dispositional sentence did not exceed two years.
D.H. further argues that D.H.’s inability to receive credit for pre-disposition
confinement constitutes disparate treatment in violation of Article I, Section 23 of the Indiana
Constitution. Article I, Section 23 provides that “The General Assembly shall not grant to
any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall
not equally belong to all citizens.” He argues that since an adult convicted of a crime is
granted credit for time served in confinement before sentencing, the same privilege should be
accorded to a juvenile who commits an offense that would be a crime if committed by an
adult.
“When considering the constitutionality of a statute, we begin with the presumption of
constitutional validity, and therefore the party challenging the statute labors under a heavy
burden to show that the statute is unconstitutional.” Person v. State, 661 N.E.2d 587, 592
(Ind. Ct. App. 1996). “Notwithstanding that the privileges and immunities cases brought
under Section 23 have often assimilated federal equal protection analysis, we are under no
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obligation to follow Fourteenth Amendment jurisprudence in resolving a Section 23 issue.”
Collins v. Day, 644 N.E.2d 72, 75 (Ind. 1994). Our Supreme Court has concluded that “there
is no settled body of Indiana law that compels application of a federal equal protection
analytical methodology to claims alleging special privileges and immunities under Indiana
Section 23 and that Section 23 should be given independent interpretation and application.”
Id. Where statutes appear to unequally burden two classes of people, here, adults and
juveniles, the Supreme Court has explained the following requirements under the Indiana
Constitution:
First, the disparate treatment accorded by the legislation must be reasonably
related to inherent characteristics which distinguish the unequally treated
classes. Second, the preferential treatment must be uniformly applicable and
equally available to all persons similarly situated. Finally, in determining
whether a statute complies with or violates Section 23, courts must exercise
substantial deference to legislative discretion.
Id. at 80.
Looking to the first requirement, we conclude that Indiana Code section 31-37-19-10
applies to all juveniles who possess two prior felony-level adjudications and who commit
certain offenses. The absence of a statutory provision awarding pre-disposition credit is
applicable to all juveniles in every case. Furthermore, juvenile proceedings are unlike
criminal proceedings because they are civil in nature. J.V. v. State, 766 N.E.2d 412, 414
(Ind. Ct. App. 2002). An act of juvenile delinquency is not a crime. Id. Nonetheless, the
State bears the burden of proving the delinquent act beyond a reasonable doubt in order to
obtain a true finding. Id. at 415. “As such, the statutory scheme for dealing with minors who
commit crimes is vastly different from the statutory scheme directed to adults who commit
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crimes. . . . This policy is consistent with the State’s primary interest in rehabilitation, rather
than the punishment of juvenile delinquents.” J.C.C. v. State, 897 N.E.2d 931, 935 (Ind.
2008).
In J.D., our Supreme Court quoted from its opinion in In re Tina T., 579 N.E.2d 48, 61
(Ind. 1991), another appeal challenging certain juvenile code provisions as unconstitutional,
as follows:
Unlike the [adult] criminal justice system, where a defendant serves a finite
sentence and can anticipate release upon a day certain, a ward of the juvenile
court remains under the court’s continuing jurisdiction until he reaches the age
of majority, the court discharges the ward in the exercise of its discretion, or
guardianship is awarded by the court to the Department of Corrections. I.C.
31–6–2–3. Rather than a determinate term of imprisonment which can be
shortened by good time credit, the continuous judicial oversight of a ward
under the jurisdiction of the juvenile court extends over a variety of settings
and can be terminated at any point at which the court determines that it is no
longer necessary or appropriate. Even if the ward is committed to Boys or
Girls School and guardianship is awarded to the Department of Corrections,
appellees themselves point out that such commitment does not necessarily
extend until the juvenile reaches the age of majority, but may be terminated
upon the determination of the DOC that a less restrictive placement has
become appropriate.
853 N.E.2d at 948. The Supreme Court further concluded “that the enactment of these
‘determinate sentencing’ provisions” affected the holding that juveniles should not be
awarded credit time for pre-dispositional confinement. Id. at 949. We reject this aspect of
D.H.’s argument along this vein.
D.H. claims that by being denied credit time for pre-dispositional confinement he is
being treated more harshly than if he were an adult. We are unpersuaded by this argument
because an adult who committed robbery while armed with a handgun, who had two prior
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unrelated felony convictions, and who was on probation at the time of the commission of the
offense, would be subject to a minimum of six years executed in the DOC, and up to a
maximum of fifty years executed in the DOC. Ind. Code §35-42-5-1; Ind. Code §§ 35-50-2-5
& 8. Thus, if D.H. had been subject to adult criminal proceedings, he would not have
received a sentence of two years and ninety-four days in the DOC. He would have had to
have been confined pre-disposition for four years before it would be possible for an adult to
receive such a sentence as D.H. received.
This would be so for any juvenile found delinquent for committing what would be
Class B felony robbery and who had two prior felony-equivalent adjudications. A juvenile
would have to have his disposition no later than his sixteenth birthday in order to receive a
full two-year disposition. That, coupled with the four years of pre-disposition confinement
necessary to make the sentences equal, would mean that only juveniles less than twelve years
of age could be in such a position. However, twelve-year-olds are not eligible for
determinate sentencing. Ind. Code § 31-37-19-9. Every offense eligible for determinate
sentencing in the juvenile context, would relate to a Class B felony offense or higher if
committed by an adult. Accordingly, there are no set of juveniles who could be treated as
harshly as the most leniently treated adult in the same situation. We conclude that there was
no constitutional violation in the dispositional order entered in D.H.’s adjudication.
Affirmed.
ROBB, C.J., and RILEY,J., concur.
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