MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
Oct 29 2015, 9:50 am
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
Megan Shipley Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
J. K., October 29, 2015
Appellant-Respondent, Court of Appeals Case No.
49A02-1504-JV-231
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marilyn A.
Appellee-Petitioner. Moores, Judge
The Honorable Scott Stowers,
Magistrate
Trial Court Cause No.
49D09-1412-JD-2876
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Respondent, J.K., appeals the trial court’s order of restitution
following his adjudication as a juvenile delinquent for the offense of theft,
which would be a Class A misdemeanor if committed by an adult, Ind. Code §
§ 35-43-4-2(a).
[2] We affirm in part and remand in part.
ISSUE
[3] J.K. raises two issues on appeal, which we consolidate and restate as the
following single issue: Whether the trial court abused its discretion by ordering
J.K. to pay $800.00 in restitution as a condition of his probation.
FACTS AND PROCEDURAL HISTORY
[4] On September 28, 2014, fourteen-year-old J.K. grabbed an iPod out of a
schoolmate’s hands while they were riding the school bus, and he refused to
return it upon the owner’s request. After the theft was reported, the
Indianapolis Metropolitan Police Department (IMPD) made contact with
J.K.’s mother, who explained that she had confiscated an iPod from J.K. after
discovering it in his possession. The stolen iPod was turned over to the IMPD. 1
On December 4, 2014, the State filed a petition alleging J.K. to be a delinquent
child. Specifically, the petition charged that J.K. had committed Count I, theft,
1
The IMPD also recovered several other electronic devices, which had been reported stolen following an
earlier break-in at the same schoolmate’s home, from J.K.’s bedroom.
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a Level 6 felony if committed by an adult, I.C. § 35-43-4-2(a)(1)(A); and Count
II, theft, a Class A misdemeanor if committed by an adult, I.C. § 35-43-4-2(a).
[5] On March 3, 2015, the State and J.K. entered into an Admission Agreement,
whereby J.K. admitted to the allegation of Count II, theft as a Class A
misdemeanor if committed by an adult, in exchange for the State’s dismissal of
Count I, theft as a Level 6 felony if committed by an adult. The Admission
Agreement further provided that the State would recommend a disposition of
formal probation, and J.K. “agree[d] to make restitution to the victim(s) for the
following amount: parties stipulate the amount [of] $800.00. Parties left the
ability to pay to [the] court.” (Appellant’s App. p. 48). On March 31, 2015, the
trial court conducted a dispositional hearing and accepted the Admission
Agreement, placing J.K. on probation until September 29, 2015. As a special
condition of probation, the trial court ordered J.K. to “[p]ay to the Clerk
$800.00 restitution to be withdrawn by [the theft victim and his father].”
(Appellant’s App. p. 10).
[6] J.K. now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[7] A restitution order is a matter within the discretion of the trial court, and our
court will reverse only upon a showing of an abuse of that discretion. M.L. v.
State, 838 N.E.2d 525, 528 (Ind. Ct. App. 2005), reh’g denied, trans. denied. We
will find an abuse of discretion if “the trial court’s determination is clearly
against the logic and effect of the facts and circumstances before the court or the
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reasonable, probable, and actual deductions to be drawn therefrom.” Id. J.K.
claims that the trial court abused its discretion by ordering J.K. to pay $800.00
in restitution “because the evidence establishes that J.K. is indigent and cannot
pay restitution.” (Appellant’s Br. p. 3).
[8] A juvenile court is authorized to “[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.” I.C. § 31-37-19-5(b)(4). “The purpose
behind an order of restitution is to impress upon a juvenile delinquent the
magnitude of the loss he has caused and to defray costs to the victim caused by
the delinquent act.” M.M. v. State, 31 N.E.3d 516, 519 (Ind. Ct. App. 2015)
(internal quotation marks omitted). Here, J.K. specifically agreed in his plea
agreement that he owed restitution in the amount of $800.00, contingent upon
the trial court’s determination that he has the ability to make such a payment.
The issue of whether J.K. is able to pay $800.00 in restitution “is a question of
fact to be resolved by the trier of fact.” M.L., 838 N.E.2d at 530.
[9] “Equal protection and fundamental fairness concerns require that a juvenile
court inquire into a juvenile’s ability to pay before the court can order
restitution as a condition of probation.” J.H. v. State, 950 N.E.2d 731, 735 (Ind.
Ct. App. 2011). This inquiry is intended “to prevent indigent [juveniles] from
being imprisoned because of their inability to pay.” Id. (alteration in original).
While the trial court must decide whether the defendant is able to pay the
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amount of restitution ordered, “the [restitution] statute[ 2] does not specify the
extent to which the trial court must inquire to determine the defendant’s
financial status.” Smith v. State, 990 N.E.2d 517, 522 (Ind. Ct. App. 2013),
trans. denied. However, “[o]ur decisions envision at least a minimal inquiry into
the defendant’s ability to pay restitution.” Kays v. State, 963 N.E.2d 507, 510
(Ind. 2012). In general, the inquiry should entail a consideration of factors
including the defendant’s financial status, health, and employment history.
Laker v. State, 869 N.E.2d 1216, 1221 (Ind. Ct. App. 2007).
[10] At the dispositional hearing, J.K. testified that he is unemployed and does not
possess a work permit, and he does not have a bank account or any money
saved. He stated that he sometimes receives an allowance of $10.00 from his
mother, but “not very often.” (Tr. p. 11). Although he voluntarily performs
community services such as sweeping the parking lot of a local barber shop and
assisting at a food bank and with Toys for Tots, these are unpaid positions.
[11] J.K. argues that this case is analogous to T.H. v. State, 33 N.E.3d 374, 376 (Ind.
Ct. App. 2015), in which our court reversed the trial court’s order for a fifteen-
year-old to pay $1,500.00 in restitution as a condition of his probation. In T.H.,
we found the undisputed evidence established that the fifteen-year-old “did not
2
Except for Indiana Code section 31-37-19-5(b)(4), “[n]o other applicable provision of the juvenile code on
delinquency discusses restitution imposed during a delinquency proceeding.” M.M., 31 N.E.3d at 519-20.
Nonetheless, we have previously held that the adult restitution statute, Indiana Code section 35-50-5-3, “is
instructive when the juvenile [restitution] statute is silent.” Id. at 520. In addition, we also look to Indiana
Code section 35-38-2-2.3(a)(6), which specifically discusses restitution as a condition of probation.
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have a work permit, did not have a job, did not have a bank account, did not
have any money in savings, owned no property, and did not have anything else
in his name.” Id. T.H. further suffered from “a list” of disabilities for which he
received $700.00 in monthly SSI disability benefits; however, T.H.’s mother
relied on this income to support T.H. and his six siblings. Id. at 375-76.
Despite T.H.’s testimony “that he would ‘try to’ get a job when he reached the
age of sixteen,” he was unemployed at the time of the dispositional hearing,
and we found “no evidence in the record whatsoever that remotely tends to
establish that T.H. is able to pay restitution in any amount, much less an
aggregate amount of $1,500.” Id. at 376.
[12] Although we agree with J.K. that T.H. is factually similar to the case at hand,
we nevertheless find important distinctions. First, although J.K. suggests that
“[t]here was no realistic possibility” that he could earn the money based on his
age and diagnoses of Asperger’s Syndrome and Disruptive Behavior Disorder,
he admitted during the dispositional hearing that he does not suffer from any
disability that would prevent him from working. (Appellant’s Br. p. 7). Based
on the fact that J.K. has already been working in several non-paid positions, it
is clear that he is able-bodied, willing to work, and capable of following the
instructions of would-be employers. Second, J.K. specifically testified that he
“wouldn’t have a problem doing” odd jobs around the neighborhood to earn
income, such as cleaning up trash, shoveling snow, or mowing grass. (Tr. p.
12). The trial court specifically questioned J.K.’s mother as to whether J.K.
would be “capable of earning some bucks in the neighborhood? You said he
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likes to sweep the barber shop, things like that. Any reason why he couldn’t go
out and earn some money of his own?” (Tr. p. 16). While J.K.’s mother noted
that “[m]ost [of] the people in our neighborhood have . . . lawn services and all
that[,]” she indicated that nothing would preclude him from seeking
opportunities in the neighborhood to earn income. (Tr. p. 16). Third, in T.H.,
the plea agreement “made no mention of restitution.” T.H., 33 N.E.3d at 375.
Here, however, J.K. specifically agreed that he owed $800.00 in restitution to
the victim(s) of his crime. While J.K. preserved the right to have the trial court
determine his ability to pay this restitution, the trial court clearly considered
several factors in determining that J.K. should “be responsible for paying” and
was capable of doing so in due course. (Tr. p. 16). Thus, we cannot say that
the trial court abused its discretion in determining J.K.’s ability to pay
restitution.
[13] Notwithstanding J.K.’s ability to pay the ordered restitution, J.K. contends that
a remand is necessary because the trial court failed to “fix the manner of
performance” as required by Indiana Code section 35-38-2-2.3(a)(6).
Specifically, J.K. asserts that the trial court did not establish a time frame or
payment plan for the payment of the restitution. In Laker, 869 N.E.2d at 1221,
our court noted that as part of its obligation to fix the manner of performance,
the trial court was required to “identify the manner and time frame in which [the
defendant] must pay [the ordered] restitution” (emphasis added). In this case,
the trial court ordered a six-month period of probation and instructed J.K. to
“[p]ay to the Clerk $800.00 restitution to be withdrawn by [the theft victim and
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his father].” (Appellant’s App. p. 10). While the trial court did not articulate
that the restitution was to be paid in full during J.K.’s probationary period, our
court has recently clarified that, as a matter of law, a juvenile’s restitution
obligation does “not terminate upon his discharge from probation.” M.M., 31
N.E.3d at 521-22. Rather, restitution is considered an “‘independent
disposition[]’ which survive[s] the expiration of the period of probation” so
“action can be taken either during or after the probationary period to recover
restitution which was made a condition of the probation.” Id. (quoting
Wininger v. Purdue Univ., 666 N.E.2d 455, 457-48 (Ind. Ct. App. 1996), reh’g
denied, trans. denied). Nonetheless, it is neither judicially efficient nor fair to the
victim to permit a defendant to prolong his obligation to pay for an indefinite
period of time. Therefore, we remand with instructions for the trial court to fix
a reasonable deadline for J.K. to satisfy his restitution obligation.
[14] Lastly, J.K. contends that the trial court “improperly considered J.K.’s mother’s
ability to pay and assumed J.K. would pay her back.” (Appellant’s Br. p. 8).
As J.K. correctly asserts, “it is the juvenile’s ability [to pay restitution] which is
relevant” because a juvenile’s “parents are not liable for [the juvenile’s]
restitution obligation.” J.H., 950 N.E.2d at 735; M.L., 838 N.E.2d at 530 n.10.
In particular, J.K. argues that the following colloquy between the trial court and
J.K.’s mother demonstrates that “the court was improperly focused on the
mother’s ability to pay” (Appellant’s Br. p. 9):
[COURT]: If [J.K.] owed a bunch of money, how would he get
it?
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[MOTHER]: If he owed a bunch of money?
[COURT]: Yeah.
[MOTHER]: He would have to get it from me.
[COURT]: What about mowing yards, things like that? He’s
capable of doing those sorts of things?
[MOTHER]: I don’t know if he know, we have a tractor lawn
mower. I don’t know that he knows about push mowers.
[COURT]: Well . . .
[MOTHER]: . . . I guess he’d be capable if he was taught how to
use it.
[COURT]: Would you make him work off some if you paid it?
Would you make him work off some money if you paid it?
[MOTHER]: If I paid.
[COURT]: He’s going to owe some restitution. I’m curious . . .
[MOTHER]: . . . Uh huh . . .
[COURT]: . . . You said that you’d pay it, well how’s he going
to pay you back?
[MOTHER]: He would have no way to pay me back.
[COURT]: What about free manual labor around the house?
Can he do chores?
[MOTHER]: He does chores now, yes.
[COURT]: Is he capable of earning some bucks in the
neighborhood? You said he likes to sweep the barber shop,
things like that. Any reason why he couldn’t go out and earn
some money of his own?
[MOTHER]: No, not if somebody gonna pay him to do
something around the neighborhood.
[COURT]: Alright.
[MOTHER]: Most the people in our neighborhood have
everything paid for. They have lawn services and all that . . .
[COURT]: . . . Alright. . .
[MOTHER]: . . . But, yeah. If someone’s willing to pay him to
clean up something or . . .
[COURT]: . . . He committed a theft and there are people that
are harmed because of it. Shouldn’t he be responsible for paying?
[MOTHER]: Yeah.
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(Tr. pp. 15-16) (ellipsis in original).
[15] We find that it was J.K.’s mother—not the trial court—who first suggested that
she would have to pay the restitution if it was ordered. In response, the trial
court focused on the fact that the restitution was J.K.’s responsibility and
geared its questions to J.K.’s mother as to J.K.’s ability to earn money.
Accordingly, we find no merit in J.K.’s contention that the trial court
improperly inquired into J.K.’s mother’s ability to pay the restitution on behalf
of J.K.
CONCLUSION
[16] Based on the foregoing, we conclude that the trial court acted within its
discretion in ordering J.K. to pay $800.00 in restitution, but we remand with
instructions for the trial court to fix a deadline by which J.K. must satisfy his
obligation.
[17] Affirmed in part and remanded in part.
[18] Brown, J. and Altice, J. concur
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J.K. v. State of Indiana (mem. dec.)
Combined Opinion