MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Dec 18 2017, 11:09 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jennifer G. Schlegelmilch Curtis T. Hill, Jr.
Lawrence County Attorney General of Indiana
Public Defender Agency
Katherine Cooper
Bedford, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: The Matter of D.A. a December 18, 2017
Child Alleged to be a Delinquent Court of Appeals Case No.
Child, 47A01-1705-JV-1109
Appellant-Respondent, Appeal from the Lawrence Circuit
Court
v. The Honorable Andrea McCord,
Judge
State of Indiana, Trial Court Cause No.
Appellee-Petitioner. 47C01-1608-JD-266
Bradford, Judge.
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Case Summary
[1] Appellant-Respondent D.A. was adjudicated to be a delinquent child for
committing what would be Class A misdemeanor criminal trespass if
committed by an adult. The juvenile court, following a hearing, ordered D.A.
to pay restitution. D.A. argues that the trial court abused its discretion when it
found that he had the ability to pay restitution. Concluding there is sufficient
evidence, we affirm.
Facts and Procedural History
[2] On January 23, 2017, D.A. admitted to the allegations that formed the basis for
an act that would be Class A misdemeanor criminal trespass if committed by an
adult, and the State dismissed the allegations that formed the basis for an act
that would be Level 6 felony auto theft if committed by an adult. On April 20,
2017, the juvenile court held a restitution hearing in which Shelby Pritchett
testified that her car had been stolen and that items from her vehicle were
missing when her vehicle was returned to her. According to Pritchett’s
testimony, the missing items consisted of CDs, shoes, a phone charger, and
various charms and trinkets. The State also presented evidence that it would
cost Pritchett $363 to replace the missing items.
[3] D.A. also testified during the hearing. In his testimony, D.A. told the juvenile
court that he was sixteen years old and lived at the Jackson County Juvenile
Home. D.A. stated that he did not have a job, was completing his GED, and
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expected to take the GED test in four or five months. D.A. further testified that
he did not own any property in the form of bank accounts, a vehicle, a house,
jewelry, or stocks and bonds. After hearing the evidence, the juvenile court
ordered D.A. to pay restitution in the amount of $363.
Discussion and Decision
[4] D.A. raises the following restated issue on appeal: whether the juvenile court
abused its discretion when it ordered him to pay restitution.1 Specifically, D.A.
asserts that the evidence did not show that he had an ability to pay the
restitution. An order of restitution is a matter well within the juvenile court’s
discretion. T.C. v. State, 839 N.E.2d 1222, 1225 (Ind. Ct. App. 2005). 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 the court, or
the reasonable, probable, and actual deductions to be drawn therefrom. C.C. v.
State, 831 N.E.2d 215, 217 (Ind. Ct. App. 2005).
[5] Indiana Code § 31-37-19-5(b)(4) provides that the trial court may order a
juvenile delinquent to pay restitution if the victim provides reasonable evidence
of the victim’s loss, which the child may challenge at the dispositional hearing.
“Unlike Indiana Code Section 35-38-2-2.3, which governs restitution in the
1
D.A. also argues for the first time on appeal that the victim’s loss was not a result of his criminal trespass.
See Indiana Code § 35-50-5-3(a). He did not raise this issue at the juvenile court thereby waiving it for
appellate review. See Veerkamp v. State, 7 N.E.3d 390, 395 (Ind. Ct. App. 2014).
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context of adult offenders, there is no express statutory requirement that the
trial court inquire whether a juvenile offender has the ability to pay before
ordering restitution.” T.C., 839 N.E.2d at 1224. However, this court has held
that “equal protection and fundamental fairness concerns require that a juvenile
court must inquire into a juvenile’s ability to pay before the court can order
restitution as a condition of probation.” M.L. v. State, 838 N.E.2d 525, 527
(Ind. Ct. App. 2005).
[6] Here, the juvenile court did inquire into D.A.’s ability to pay during a hearing.
After hearing all of the evidence, including D.A.’s own testimony, the juvenile
court made specific findings with respect to D.A.’s ability to pay:
[T]his child is a member and participant in the Juvenile Problem
Solving Court. This child will be on probation for a lengthy
period of time. This Court monitors this child’s progress on a
weekly basis at Problem Solving Court staffing. The Court is
aware of where this child has been placed because this court
placed this child there. This court is also aware that this child
has been ordered to find a job while he’s in the Jackson County
Group Home. So, I’m not ordering this child to pay the three-
hundred-and-sixty-three dollars ($363.00) right now, but I am
certainly ordering him to find a job and pay the three-hundred-
and-sixty-three dollars ($363.00) in restitution before he is done
with probation and that is a condition of his probation.
Tr. Vol. II p. 17.
[7] In fact, at the time of the hearing, D.A. testified that he was in the process of
applying for jobs. Furthermore, D.A. did not present any evidence that he
suffered from any physical, mental, or emotional disability that would prevent
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him from obtaining employment. Based on all of the evidence presented during
the hearing, there was sufficient evidence for the trial to conclude that D.A. had
an ability to pay. Consequently, the juvenile court did not abuse its discretion
when it found that D.A. had an ability to pay the restitution.
[8] The judgment of the juvenile court is affirmed.
Riley, J., and Pyle, J., concur.
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