MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jan 31 2019, 7:22 am
regarded as precedent or cited before any
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
Renee M. Ortega Curtis T. Hill, Jr.
Lake County Juvenile Public Defender’s Attorney General of Indiana
Office
Crown Point, Indiana Monika Prekopa Talbot
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
J.F., January 31, 2019
Appellant-Respondent, Court of Appeals Case No.
18A-JV-2016
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Robert G. Vann,
Appellee-Petitioner. Magistrate
The Honorable Thomas P.
Stefaniak, Judge
Trial Court Cause No.
45D06-1801-JD-15
Brown, Judge.
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[1] J.F. appeals the juvenile court’s dispositional order awarding wardship of him
to the Department of Correction (the “DOC”) for housing in any correctional
facility for children. J.F. raises two issues which we revise and restate as:
I. Whether J.F. received ineffective assistance of counsel; and
II. Whether the juvenile court abused its discretion when it
awarded wardship to the DOC.
We affirm.
Facts and Procedural History
[2] On January 16, 2018, a pizza was ordered to be delivered to the Merrillville,
Indiana, apartment of J.F., born on December 1, 2002. J.F. was armed with a
deadly weapon, to wit a “B.B. gun,” threatened Javier Guana, Jr., the pizza
delivery driver, with the gun and to use force against him, and took $50.00 from
Guana. Transcript at 4.
[3] On January 19, 2018, the State filed a delinquency petition under cause number
45D06-1801-JD-15 (“Cause No. 15”), alleging J.F. committed what would be a
level 3 felony if committed by an adult. On the same day, a Probation Officer
Hearing Report was filed which states J.F. “has a lengthy history with this
court,” he “is currently before this Court for a detention hearing for the Armed
Robbery-Complaint #6,” “[t]his is his 6th Delinquency with a 7th is [sic]
pending,” “[p]robation has been advised by the prosecutor[’]s office that there
will be an 8th Complaint for Armed Robbery as well which hasn’t been entered
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into QUEST yet.” 1 Appellant’s Appendix Volume II at 61. The report further
states that J.F.’s “prior history with the court is Complaint #5 (Unauthorized
Entry of a Motor Vehicle) opened as of 12/12/17,” that J.F. was “currently on
In-House Detention, Level 2,” that his “first involvement with a delinquency in
this court was when he was 12 years old,” and that he had returned from living
with his aunt in Florida and been in Indiana for two days before he was arrested
“for Complaint #4 in Lake County.” Id. at 61-62. The report indicates that
J.F. denied any involvement with gangs although he has previously self
reported to be involved with the Gangster Disciples and that he had a history of
being involved with a gang along with his older brother. It states that J.F. has
had eleven positive drug screens while on probation supervision, that he tested
positive for marijuana on December 11, 2017, that J.F.’s home frequently
smells of marijuana, and that J.F. has presented as “being very high with erratic
behaviors.” Id. at 62. It observes that, during the intake also on December 11,
2017, J.F. stated “he only used marijuana when he needed to ‘calm down’,” he
stated he uses maybe once every three months, and when asked how old he was
when he first tried marijuana he stated he had never used. Id. It further states
J.F.’s monitor has “shown Master Tamper on multiple occasions,” he had
admitted to messing with the monitor, and that “[a]fter inspection, it was clear
that [J.F.] had tampered with his monitor.” Id.
1
In his appellant’s brief, J.F. states that “[t]here were also additional charges pending under a separate cause
number for an additional charge of Armed Robbery.” Appellant’s Brief at 5 (citing Appellant’s Appendix
Volume II at 5, 62-63).
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[4] On June 19, 2018, the juvenile court held an omnibus hearing, at which J.F.
tendered a plea of guilty in Cause No. 15 and the court found an adequate
factual basis and adjudicated J.F. delinquent of the act of armed robbery, a level
3 felony, if committed as an adult. The State moved to dismiss cause numbers
45D06-1712-JD-755 and 45D06-1801-JD-25, and the court granted the motions
and dismissed the cases. The court then asked counsel, “[a]re we prepared to
go to Disposition, or do I need to order a Pre-Dispositional Report, and set it
for Disposition,” J.F.’s counsel stated, “[i]t was our intent to proceed today,
Judge,” and the prosecutor agreed. Id.
[5] The Court then asked for “[r]ecommendations, Probation,” and Beth Lynn
Rechlicz testified:
Your Honor, packets were sent to multiple residential facilities,
including SEQUEL, Gibault’s, Wernle, White’s (Wabash), Rite
of Passage (South Bend), Rite of Passage (Hillcrest), Youth
Villages, um, and all of these facilities have denied [J.F.] into
their program. They felt that he was not amenable to treatment;
therefore, probation is recommending Department of
Corrections. We’re asking that [J.F.] remain detained pending
transportation, as he’s a danger to the community and unlikely to
appear for future hearings. We’re asking that [J.F.] be released
from probation as failed. Um, prior to his successful release from
the Department of Corrections, probation recommends that he
participate in TRP services through NYAP. We feel that [J.F.]
has displayed an unwillingness to participate in services that have
been provided through this court. We’re asking for DOC.
Id. at 7-8. At the conclusion of Rechlicz’s statement, J.F.’s counsel asked to
cross-examine her, the court asked the State if it had any recommendations that
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“differ from those,” and the State replied in the negative and stated that it
“would agree with probation at this time.” Id. at 8. Rechlicz later indicated
during her examination by J.F.’s counsel that she did not interview any staff
members at the Lake County Juvenile Detention Center and that the staff
members “provide[d] a report, which I placed in . . . the body of my report.”
Id. at 10.
[6] J.F. presented the testimony of Eric Hamilton, assistant director of Juvenile
Services for the Lake County Juvenile Detention Center, who indicated that he
saw and had contact with J.F. every week since he was “detained on
12/11/2017.” Id. at 13. When asked to describe how J.F. had been doing,
Hamilton stated:
On February 22nd, 2018, [J.F.] was named in an incident where
he would not follow directions, and continued to try and take
supplies from the therapist that comes in that works with the
residents. On . . . February 26th, 2018, [J.F.] was named in an
incident where he attempted to steal the pencil lead from a pencil
he was using during class. Upon returning the pencil, when class
was over, Detention Officer noticed that the pencil was damaged,
and missing a portion of the lead. [J.F.] eventually returned the
lead after not telling the truth and stating that he threw it away.
On March 11th, 2018, [J.F.] was named in an incident where he
went into another resident’s room and threw all the blankets and
the mattresses on the floor. When the resident was told to go
down and clean his room, [the staff] was unaware that [J.F.] had
messed it up, and [J.F.] ran down to the room and attacked this
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resident.[ 2] When confronted, [J.F.] stated that they were shadow
boxing and that . . . it wasn’t anything serious; however, sayer
(sic) resident was sent on a medical run to the E.R. and visible
swelling and bruising was left to, was left to his left eye. Staff
was later advised by other residents present on the POD at that
time that the altercation started because [J.F.] was attempting to
bully this resident for his snacks. This resident confirmed that he
was being bullied by [J.F.].
Id. at 13-14. When asked whether J.F. has “progressed, has he gotten better
since being in your facility,” Hamilton stated:
Uh, yes, sir. He’s turned it around. He’s taken advantage of our
programs. He’s currently on Phase 4. Uh, when he first came in,
he was a little reckless, he was hardheaded, but now I think [J.F.]
has matured a little bit, and he assists staff now; he’s become
more of a role model in the back; and his progress has become
positive.
Id. at 14. After additional questioning, J.F.’s counsel asked Hamilton if he had
recommendations for the court and Hamilton stated, “Um, well, I would have
to concur with probation at this time, um, but I do believe [J.F.] has made leaps
and bounds, has become a better individual, and if given a second chance, I
believe he will do good in society.” Id. at 15.
2
The transcript indicates that Hamilton testified “When the resident was told to go down and clean his
room, [J.F.] was unaware that he had messed it up, and [J.F.] ran down to the room and attacked this
resident.” Transcript Volume II at 14. A copy of a Resident Behavioral Overview for J.F., dated June 18,
2018, states with regard to the March 11, 2018 incident that “[w]hen [the other resident] was told by staff to
go down and clean his room, as they were unaware [J.F.] as [sic] messed it up, [J.F.] ran down to the room
and jumped [the other resident].” Exhibits Volume at 4.
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[7] During cross-examination, Hamilton testified that J.F.’s last incident in the
juvenile center occurred on May 26, 2018, that he “was named in an incident
where he came into the possession of contraband that had been smuggled into
the facility,” that “[i]t was recorded on camera that resident was going to Room
H-104 on Hotel Pod, that individual bent over and grabbed something that was
placed under the door by a weekend resident showering next door, and passed
it to [J.F.], while he was in Room H-105,” and that it “was never confirmed
exactly what was passed to [J.F.].” Id. at 17. When the prosecutor later asked
Hamilton if he felt that J.F. was still aggressive, he stated that J.F. becomes
aggressive in certain situations, “but overall, his attitude has changed from
when he first came here.” Id. at 18. He answered affirmatively to the question
“[b]ut he’s still getting himself in to situations that are against the rules of
LCJC” and stated that J.F. had at least six infractions since he had been in the
facility. Id. At the conclusion of Hamilton’s testimony, J.F.’s counsel indicated
he “was going to call mom” to testify, and Keshuna Billingley testified she
thought J.F. had learned a lesson and was asking if he could come home. Id. at
19.
[8] At the conclusion of J.F.’s evidence, his counsel asked that the court place him
on probation supervision and the probation department requested placement at
the DOC when asked by the court to respond. On July 20, 2018, the court
issued a dispositional order in which it awarded wardship of J.F. to the DOC
for housing in any correctional facility for childen, found it was in J.F.’s best
interests to be removed from the home environment and that remaining in the
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home would be contrary to his welfare because he was engaging in dangerous
behaviors which jeopardize his physical and mental health, and recommended
that the DOC determine if he “meets criteria according to DOC policy to be
placed on parole supervision.” Appellant’s Appendix Volume II at 139.
Discussion
I.
[9] The first issue is whether J.F. received ineffective assistance of counsel. J.F.
argues that he received ineffective assistance during the June 19, 2018 omnibus
hearing when his counsel waived the pre-dispositional report and proceeded to
disposition with no prepared report “other than []Rechlicz’s probation reports
which contain[ed] information on placements that were four months old.”
Appellant’s Brief at 8. According to J.F., his outcome “may have been
substantially different” but for counsel not waiving the pre-dispositional report.
Id.
[10] J.F. maintains that his counsel’s performance be assessed under the two-prong
standard found in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984),
reh’g denied, but contends it would also fail under a due process standard “which
states that ‘if counsel appeared and represented the petitioner in a procedurally
fair setting which resulted in a judgment of the court, it is not necessary to judge
his performance by rigorous standards.’” Appellant’s Brief at 7 (quoting A.M. v.
State, 109 N.E.3d 1034, 1041 (Ind. Ct. App. 2018) (quoting Jordan v. State, 60
N.E.3d 1062, 1068 (Ind. Ct. App. 2016)), reh’g denied, trans. pending.
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[11] Observing that Indiana courts have not squarely addressed whether the
Strickland test or the due process test is the proper test to be used in analyzing
the effectiveness of juvenile counsel during the various phases of delinquency
proceedings, see A.M., 109 N.E.3d at 1041 (noting the same), and without
deciding that juveniles in the various phases of delinquency proceedings are
entitled to application of the same assistance of counsel standards as those
applied in adult criminal cases, we find that J.F. did not receive ineffective
assistance of counsel.
[12] Even reviewing counsel’s representation under the Strickland standard, which
both parties agree is more stringent than the due process alternative, we cannot
say that J.F. received ineffective assistance. Generally, to prevail on a claim of
ineffective assistance of counsel a petitioner must demonstrate both that his
counsel’s performance was deficient and that the petitioner was prejudiced by
the deficient performance. French v. State, 778 N.E.2d 816, 824 (Ind. 2002)
(citing Strickland, 466 U.S. 668, 104 S. Ct. 2052). A counsel’s performance is
deficient if it falls below an objective standard of reasonableness based on
prevailing professional norms. Id. To meet the appropriate test for prejudice,
the petitioner must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001)
(citing Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). Failure to satisfy either
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prong will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective
assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.
[13] When considering a claim of ineffective assistance of counsel, a “strong
presumption arises that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment.” Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s
performance is presumed effective, and a defendant must offer strong and
convincing evidence to overcome this presumption.” Williams v. State, 771
N.E.2d 70, 73 (Ind. 2002). Evidence of isolated poor strategy, inexperience, or
bad tactics will not support a claim of ineffective assistance of counsel. Clark v.
State, 668 N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S.
1171, 117 S. Ct. 1438 (1997). “Reasonable strategy is not subject to judicial
second guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not
lightly speculate as to what may or may not have been an advantageous trial
strategy as counsel should be given deference in choosing a trial strategy which,
at the time and under the circumstances, seems best.” Whitener v. State, 696
N.E.2d 40, 42 (Ind. 1998).
[14] Initially, we note the contrast between a reasonable probability, defined as “a
probability sufficient to undermine confidence in the outcome,” Perez, 748
N.E.2d at 854 (citing Strickland, 466 U.S. at 694, 104 S. Ct. at 2068), and J.F.’s
own position when he asserts that his outcome “may have been substantially
different” had counsel not waived the report. Appellant’s Brief at 8. Moreover,
while J.F. argues that his trial counsel’s waiver of the pre-dispositional report
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resulted in the lack of a report other than Rechlicz’s probation reports,
Hamilton, the assistant director of Juvenile Services for the Lake County
Juvenile Detention Center, where J.F. had been housed for the months
preceding the dispositional hearing, ultimately recommended placement in the
DOC. Under these circumstances, we cannot say that J.F. has demonstrated
that he was prejudiced.
II.
[15] The second issue is whether the juvenile court abused its discretion in awarding
wardship of J.F. to the DOC for housing in any correctional facility for
children. The juvenile court is given “wide latitude and great flexibility” in
determining the specific disposition for a child adjudicated a delinquent. D.A. v.
State, 967 N.E.2d 59, 65 (Ind. Ct. App. 2012). However, its discretion is
circumscribed by Ind. Code § 31-37-18-6, which provides:
If consistent with the safety of the community and the best
interest of the child, the juvenile court shall enter a dispositional
decree that:
(1) is:
(A) in the least restrictive (most family like) and
most appropriate setting available; and
(B) close to the parents’ home, consistent with the
best interest and special needs of the child;
(2) least interferes with family autonomy;
(3) is least disruptive of family life;
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(4) imposes the least restraint on the freedom of the child
and the child’s parent, guardian, or custodian; and
(5) provides a reasonable opportunity for participation by
the child’s parent, guardian, or custodian.
[16] “Under the statute, placement in ‘the least restrictive (most family like) and
most appropriate setting available’ applies only ‘[i]f consistent with the safety of
the community and the best interest of the child.’” J.D. v. State, 859 N.E.2d
341, 346 (Ind. 2007) (quoting Ind. Code § 31-37-18-6).
[17] A disposition will not be reversed absent a showing of an abuse of the juvenile
court’s discretion, which occurs when the juvenile court’s order is clearly
against the logic and effect of the facts and circumstances before the court or the
reasonable inferences that can be drawn therefrom. R.H. v. State, 937 N.E.2d
386, 388 (Ind. Ct. App. 2010).
[18] J.F. argues that he did not have the benefit of availing himself of services and
showed himself to be amenable to treatment while detained. He contends that
his family did not cooperate with probation to obtain “those services in place
which may have made a difference.” Appellant’s Brief at 10. He also asserts
that the adjudication and dispositional hearings were held almost four months
after the packets for residential placements had been sent out and subsequently
rejected, that the new information “provided by Hamilton and the other
witness” as to how J.F.’s behavior and attitude had changed while detailed
could have been relevant had updated packets been sent out, and that a less
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restrictive placement could have been found had probation provided updated
information to the placements. Id. at 11.
[19] The State maintains that the DOC is the best option based on J.F.’s history of
felony level offenses and probation violations. The State contends in part that
the current delinquency petition against J.F. was its sixth; that two other
delinquency petitions were filed against him while he was in the juvenile
detention center, one of which involved another armed robbery; and that he
committed six infractions while in the juvenile facility. It contends further that
probation had proven unsuccessful because J.F. continued committing
delinquent acts and tampered with his ankle monitor.
[20] The January 19, 2018 Probation Officer Hearing Report states J.F. was serving
in-house detention, that his first involvement with a delinquency occurred at
age twelve, and that his prior history involved a fifth complaint opened as of
December 12, 2017, for unauthorized entry of a motor vehicle. It states that the
delinquency alleged in Cause No. 15 was his sixth, that a seventh delinquency
was pending, and that the prosecutor’s office had advised the probation
department that there was an eighth complaint for armed robbery which had
not yet been entered into QUEST. It states he had self-reported involvement
with the Gangster Disciples and had a history of being involved with a gang
along with his older brother, had tested positive for marijuana on December 11,
2017, as well as in eleven drug screens while on probation supervision, had
denied marijuana usage after having admitted it, and had admitted to messing
with his monitor.
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[21] J.F. tendered a plea of guilty in Cause No. 15, and the court adjudicated him
delinquent of armed robbery, a level 3 felony, if committed as an adult and
dismissed cause numbers 45D06-1712-JD-755 and 45D06-1801-JD-25. During
the hearing that followed, the probation department recommended placement
in the DOC, the State indicated it “would agree with probation,” and, when
asked during examination if he had recommendations for the court, Hamilton
stated he “would have to concur with probation at this time, um, but I do
believe [J.F.] has made leaps and bounds.” Id. at 8, 15. Hamilton also testified
to J.F.’s behavior and involvement in four incidents in the Lake County
Juvenile Detention Center. We note that the last of these incidents occurred
less than a month prior to the June 19, 2018 omnibus hearing and that the
March 11, 2018 incident resulted in a resident being sent to the E.R. and in
visible swelling and bruising to his left eye.
Conclusion
[22] Under these circumstances and in light of J.F.’s prior history of delinquent
behavior, we conclude that the disposition ordered by the juvenile court, which
awarded wardship of J.F. to the DOC and recommended a determination of
whether he met criteria to be placed on parole supervision, is consistent with his
best interest and the safety of the community. We find no abuse of discretion.
Conclusion
[23] For the foregoing reasons, we affirm the juvenile court’s order.
[24] Affirmed.
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Bailey, J., and Bradford, J., concur.
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