MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Oct 14 2015, 9:44 am
this Memorandum Decision shall not be Oct 14 2015, 9:44 am
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
Timothy J. O’Connor Gregory F. Zoeller
O’Connor & Auersch Attorney General of Indiana
Indianapolis, Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
M.H., October 14, 2015
Appellant-Respondent, Court of Appeals Case No.
49A02-1503-JV-168
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marilyn A.
Appellee-Petitioner Moores, Judge
The Honorable Jennifer Hubartt,
Magistrate
Trial Court Cause No.
49D09-1412-JD-2909
Baker, Judge.
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[1] On December 5, 2014, the State filed a petition alleging that M.H. had
committed an act that would have been Level 6 felony battery had it been
committed by an adult. On February 5, 2015, M.H. admitted to the allegations
and was adjudicated delinquent.
[2] The juvenile court held a dispositional hearing on February 26, 2015. At that
hearing, the following undisputed evidence was admitted:
The victim of the offense sustained injuries causing her to incur medical
expenses totaling $1,340.58.
M.H. was unemployed and had no bank accounts and no savings.
M.H. had applied for a job at Papa John’s but did not get the job.
M.H. lived with his grandmother, who receives Social Security income
and adoption assistance but no other income. No one in M.H.’s
household receives income aside from government assistance.
M.H. occasionally gets pocket money of around $20.
M.H. smokes two blunts of marijuana every two or three days. He does
not know where he finds the money to purchase the marijuana.
The juvenile court entered a dispositional order placing M.H. on probation.
Among other things, a “special condition” of M.H.’s probation is that he pay
restitution in the amount of $1,340.58. Appellant’s App. p. 10.
[3] It is well established that when a juvenile court orders restitution as part of a
juvenile’s probation, it must inquire into the juvenile’s ability to pay the
restitution. T.H. v. State, 33 N.E.3d 374, 376 (Ind. Ct. App. 2015). This inquiry
must occur because of concerns about equal protection and fundamental
fairness. Id. The juvenile is entitled not only to an inquiry into his ability to
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pay, but also to a modification of an existing restitution order if the court
determines he is unable to meet its terms. Id.
[4] The State argues that we should find the juvenile court’s restitution order to be
a standalone restitution order as opposed to a condition of M.H.’s probation.
We decline this invitation. The disposition order clearly lists the restitution
payment under the “special conditions” of M.H.’s probation. Appellant’s App.
p. 10. Therefore, it is apparent that restitution was a condition of probation.
[5] The evidence is undisputed that M.H. is unemployed and has no bank account
and no savings. No one in his household receives income other than
government assistance. While he somehow finds the money to smoke
marijuana regularly, there was no evidence regarding the cost of a marijuana
blunt, and no evidence that he was being dishonest with the court regarding the
sole source of his spending money—occasional pocket money totaling
approximately $20. Under these circumstances, there is no evidence in the
record supporting a conclusion that he is remotely able to pay restitution in any
amount, much less an aggregate amount exceeding $1,000. We can only
conclude that the juvenile court abused its discretion in ordering restitution as a
condition of probation.
[6] The judgment of the juvenile court is reversed and remanded with instructions
to modify M.H.’s dispositional order consistent with this opinion.
Bailey, J., and Mathias, J., concur.
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