MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Nov 01 2018, 9:03 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michelle Laux Curtis T. Hill, Jr.
St. Joseph County Attorney General of Indiana
Public Defender’s Office
J.T. Whitehead
South Bend, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
N.G., November 1, 2018
Appellant-Respondent, Court of Appeals Case No.
18A-JV-1471
v. Appeal from the St. Joseph Probate
Court
State of Indiana, The Honorable James N. Fox,
Appellee-Petitioner Judge
Trial Court Cause No.
71J01-1712-JD-466
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1471 | November 1, 2018 Page 1 of 4
[1] N.G. appeals the restitution order imposed by the trial court, arguing that the
evidence did not support the amount of the order and that the evidence does not
support a conclusion that he is able to pay it. Finding no error, we affirm.
[2] On January 24, 2018, N.G. admitted to committing acts that would have been
Class A misdemeanor criminal mischief and Class A misdemeanor resisting law
enforcement had they been committed by an adult. N.G.’s dispositional and
restitution hearing took place on May 18, 2018. At that hearing, the evidence
showed that N.G. was fifteen years old, did not have a work permit, and was
unemployed. The State presented evidence that the aggregate amount of
damage to the victim, caused by N.G. and other perpetrators, totaled over
$17,000. The trial court capped the restitution order in the amount of $1,000
and ordered N.G. to get a work permit. The trial court also held that if N.G. is
“unsuccessful in paying the restitution in full by the deadline but is making an
attempt to pay, the Court reserves the right to extend the deadline.”
Appellant’s App. Vol. II p. 15. N.G. now appeals.
[3] An order of restitution is a matter within the discretion of the trial court. P.J. v.
State, 955 N.E.2d 234, 235 (Ind. Ct. App. 2011). We will reverse only when the
trial court’s determination is clearly against the logic and effect of the facts and
circumstances before the court. Id.
[4] N.G. first argues that the trial court erred in calculating the amount of the
restitution order to be $1,000. The victim provided evidence that his total
damages exceeded $17,000, to be divided among multiple perpetrators. N.G.
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highlights certain issues regarding the specificity and accuracy of the victim’s
testimony and documentation, but we find that the trial court’s final restitution
order of $1,000 was well within the evidence before it and decline to reverse on
this basis.
[5] 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
pay, but also to a modification of an existing restitution order if the court
determines he is unable to meet its terms. Id.
[6] N.G. directs our attention to T.H., but we find that case distinguishable. In that
case, T.H. was found to be delinquent and ordered to pay restitution in the
aggregate amount of $1,500. We reversed, finding as follows:
In this case, the evidence is undisputed. At the time of the
dispositional hearing, T.H. was fifteen years old, did not 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. He has numerous disabilities,
and his monthly SSI disability benefit is used by his mother to
support T.H. and his six siblings. Although T.H. testified that he
would “try to” get a job when he reached the age of sixteen, tr. p.
18, it is undisputed that at the time of the dispositional hearing,
he was unemployed. There is 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.
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Id.
[7] In the instant appeal, as in T.H., N.G. was fifteen years old, did not have a
work permit, did not have a job, and did not have a bank account or any other
assets. Of significance, however, is the fact that while T.H. was disabled and
likely to have great difficulty finding employment, N.G. is not disabled. He
and his mother both stated that there is no reason to believe that he would be
unable to find employment. Tr. Vol. II p. 27. The trial court noted that N.G.
appeared to be “able bodied.” Id. Moreover, the trial court indicated that it
would be flexible with the payment deadline if N.G. had trouble making timely
payments. Under these circumstances, we find no error with respect to the trial
court’s restitution order.
[8] The judgment of the trial court is affirmed.
May, J., and Robb, J., concur.
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