FILED
Feb 13 2019, 8:34 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr. Joel M. Schumm
Attorney General of Indiana
Riley L. Parr
Justin F. Roebel Certified Legal Intern
Supervising Deputy Attorney General Appellate Clinic
Indianapolis, Indiana Indiana University
McKinney School of Law
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, February 13, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-JV-1608
v. Appeal from the Vigo Circuit
Court
D.R., The Honorable Sarah K. Mullican,
Appellee-Respondent. Judge
The Honorable Daniel W. Kelly,
Magistrate
Trial Court Cause No.
84C01-1804-JD-417
Sharpnack, Senior Judge.
Court of Appeals of Indiana | Opinion 18A-JV-1608 | February 13, 2019 Page 1 of 14
Statement of the Case
[1] The State filed a petition alleging that D.R. is a juvenile delinquent. The State
also moved the juvenile court to waive jurisdiction over D.R. and transfer the
case to criminal court. The court denied the State’s motion. In this
discretionary interlocutory appeal, the State asks this Court to determine that
the juvenile court should have waived jurisdiction over D.R. D.R. cross-
appeals, requesting dismissal of the State’s appeal. We deny D.R.’s request to
dismiss the appeal and affirm the judgment of the juvenile court.
Issues
[2] The State raises one issue, which we restate as: whether the juvenile court
abused its discretion in denying the State’s request to waive juvenile jurisdiction
over D.R. On cross-appeal, D.R. argues that the State has no authority to seek
discretionary interlocutory review of a juvenile court’s refusal to waive
jurisdiction over a juvenile.
Facts and Procedural History
[3] We set forth the facts as alleged in the probable cause affidavit and at the
evidentiary hearing on the State’s motion to waive jurisdiction, keeping in mind
that the juvenile court has not yet held a final hearing on the merits of the
State’s case. On April 6, 2018, an officer was dispatched to investigate an
automobile accident in Vigo County. One of the drivers, Regina Hair, was
trapped in her vehicle, unconscious. She died later that day.
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[4] Seventeen-year-old D.R., who was standing near his vehicle with another
minor, stated that he had also been involved in the accident. He told the officer
that he was driving when he crossed the center line and struck Hair’s car head-
on. A witness at the scene stated that D.R. had passed him on a double-yellow
line at a high rate of speed prior to the accident. The witness “suspected” that
D.R. had been racing another vehicle that had also passed him. Tr. p. 57.
[5] D.R. had dilated pupils and bloodshot eyes, but a portable breath test showed
.000% blood alcohol content. D.R.’s passenger told an officer that D.R. had
smoked marijuana earlier that day. Emergency medical personnel transported
D.R. to a hospital for treatment. Hospital personnel tested D.R.’s urine and
discovered the presence of marijuana. Later in the evening, an assessment
worker with the Vigo County Department of Child Services (DCS) performed a
drug screen on D.R., and the screen showed 3.3 nanograms of THC in his
blood. The DCS employee characterized the result as “low level.” Id. at 40.
[6] The State took D.R. into custody after he was released from medical care. On
April 10, 2018, the State filed a petition alleging D.R. was a delinquent child.
The State claimed D.R. had committed acts that, if committed by an adult,
would have amounted to the offenses of reckless homicide, a Level 5 felony;
and operating a vehicle with a controlled substance or its metabolite in the
person’s blood resulting in death, a Level 5 felony. The State also filed a
motion for waiver of juvenile court jurisdiction. The court determined there
was probable cause to detain D.R. D.R., by counsel, requested a psychological
evaluation, and the court granted his request.
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[7] On May 24, 2018, the juvenile court held a hearing on the State’s motion to
waive jurisdiction. That same day, the court denied the motion, concluding
“the minor has proven by a preponderance of the evidence that waiver of
juvenile jurisdiction would not be in the best interests of the minor and the
safety and welfare of the community.” Appellant’s App. Vol. 2, p. 44.
[8] The State filed a motion to correct error. On June 6, 2018, the juvenile court
denied the State’s motion to correct error, reaffirming that “the presumption in
favor of waiver has been overcome.” Id. at 55. The court later ordered D.R. to
be placed in a residential treatment facility pending disposition of the case and,
at D.R.’s request, further ordered that he be enrolled in a high school
equivalency program while at the facility.
[9] Next, the State filed a motion to certify orders for interlocutory appeal. The
juvenile court granted the motion, and the State asked this Court to accept
jurisdiction over the appeal. On August 3, 2018, this Court’s motions panel
accepted the appeal.
Discussion and Decision
I. Cross-Appeal - Appellate Jurisdiction
[10] We first address D.R.’s cross-appeal claim. D.R. argues that the State lacks the
authority to seek interlocutory review of the juvenile court’s denial of a motion
to waive jurisdiction. Whether the State may appeal the court’s order is a
question of law. State v. I.T., 4 N.E.3d 1139, 1142 (Ind. 2014). We review the
court’s decision de novo. Id.
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[11] It is well established that the State may appeal only when authorized by statute.
Id. Indiana Code section 35-38-4-2 (2015) governs the State’s right to appeal in
criminal cases. In State v. I.T., the Indiana Supreme Court applied that statute
to a juvenile proceeding. 4 N.E.3d at 1142. We will do the same, keeping in
mind that the State’s statutory right of appeal contravenes common law
principles and must be strictly construed. State v. Holland, 273 Ind. 284, 286,
403 N.E.2d 832, 833 (1980). At the same time, when a statute is unambiguous
we merely apply its plain language, and we will not “expand or contract” the
meaning of a statute by adding language that the legislature did not provide.
Grody v. State, 257 Ind. 651, 659, 278 N.E.2d 280, 285 (1972).
[12] Indiana Code section 35-38-4-2 provides:
Appeals to the supreme court or to the court of appeals, if the
court rules so provide, may be taken by the state in the following
cases:
(1) From an order granting a motion to dismiss one (1) or more
counts of an indictment or information.
(2) From an order or judgment for the defendant, upon the
defendant’s motion for discharge because of delay of the
defendant’s trial not caused by the defendant’s act, or upon the
defendant’s plea of former jeopardy, presented and ruled upon
prior to trial.
(3) From an order granting a motion to correct errors.
(4) Upon a question reserved by the state, if the defendant is
acquitted.
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(5) From an order granting a motion to suppress evidence, if the
ultimate effect of the order is to preclude further prosecution of
one (1) or more counts of an information or indictment.
(6) From any interlocutory order if the trial court certifies and the
court on appeal or a judge thereof finds on petition that:
(A) the appellant will suffer substantial expense, damage, or
injury if the order is erroneous and the determination thereof is
withheld until after judgment;
(B) the order involves a substantial question of law, the early
determination of which will promote a more orderly disposition
of the case; or
(C) the remedy by appeal after judgment is otherwise
inadequate.1
[13] Indiana Code section 35-38-4-2(6) does not place any limits on the types of trial
court orders that may be appealed. We should not read restrictions into the
2
statute where none are explicitly stated.
[14] Further, we note that if the State may not seek interlocutory review of a juvenile
court’s decision to deny waiver of jurisdiction, then such a denial may be
1
The legislature added subsection (6) in 1983. Prior to that, the State could not take interlocutory appeals
pursuant to the Indiana Rules of Appellate Procedure and had no statutory authority to take an interlocutory
appeal. State v. Peters, 637 N.E.2d 145, 147 (Ind. Ct. App. 1994).
2
The State claims this Court’s decision in State v. C.K., 70 N.E.3d 900 (Ind. Ct. App. 2017), trans. denied,
authorizes the current appeal. We disagree because that case is procedurally distinct from D.R.’s case. In
C.K., the juvenile did not question the State’s authority to appeal a juvenile court’s refusal to waive
jurisdiction over a juvenile.
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effectively foreclosed from appellate review. Indiana Code section 35-38-4-2(4)
allows the State to appeal reserved questions of law after an acquittal. Even so,
as D.R. notes, if a juvenile court declines to waive jurisdiction and later issues a
final judgment on the delinquency petition, the State may be barred by double
jeopardy principles from trying the juvenile in adult court even if an appellate
court should later determine the juvenile court erred in declining to waive
jurisdiction. Appellee/Cross-Appellant’s Br. p. 14 n.3. The State’s right to
appeal is strictly limited, but we are reluctant to conclude that a juvenile court’s
decision to deny waiver may never be subjected to appellate review when the
plain language of Indiana Code section 35-38-4-2(6) appears to allow such
appeals. For these reasons, we conclude the State may seek discretionary
interlocutory review of a juvenile court’s denial of the State’s motion to waive
jurisdiction.
[15] D.R. also argues the State should not be allowed to appeal a juvenile court’s
denial of waiver because such an appeal would conflict with mandatory
juvenile court deadlines. D.R. cites Indiana Code section 31-37-11-3 (1997),
which provides: “If waiver is denied, the factfinding hearing must be
commenced not later than ten (10) days, excluding Saturdays, Sundays, and
legal holidays, after the denial.”
[16] We disagree with D.R.’s argument that Section 31-37-11-3 bars an appeal under
Section 35-38-4-2(6) in this context. Where two or more statutes contradict
each other or are in apparent conflict, we attempt to construe them in a manner
which reasonably brings them into harmony. Purcell v. State, 721 N.E.2d 220,
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223 (Ind. 1999). The General Assembly has explained the consequences when
the State or a juvenile court fails to comply with Section 31-37-11-3’s ten-day
deadline: “the child shall be released on the child’s own recognizance or to the
child’s parents, guardian, or custodian.” Ind. Code § 31-37-11-7 (1997).
Section 31-37-11-7 does not require dismissal of the petition. The statute is thus
analogous to Indiana Criminal Rule 4(A), which requires a defendant to be
released on his or her own recognizance if not brought to trial within six
months of the date a charge is filed, if the delay is not caused by the defendant.
[17] As a result, we read Sections 31-37-11-3 and 35-38-4-2(6) as follows: the State
may seek interlocutory review of a juvenile court’s denial of a motion to waive
jurisdiction, but the juvenile shall be released from custody pursuant to Indiana
Code section 31-37-11-7 during the appeal if the ten-day limit is exceeded. We
deny D.R.’s request to dismiss the State’s appeal, and we turn to the merits of
the State’s claims.
II. Juvenile Court’s Judgment
[18] The State argues the juvenile court should have waived jurisdiction over D.R.
and transferred him to criminal court because waiver was necessary for “the
safety of the community.” Appellant’s Br. p. 12. Under the facts of this case,
waiver of juvenile jurisdiction is governed by Indiana Code section 31-30-3-5
(2014). That statute provides, in relevant part:
[The juvenile] court shall, upon motion of the prosecuting
attorney and after full investigation and hearing, waive
jurisdiction if it finds that:
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(1) the child is charged with an act that, if committed by an adult,
would be:
(A) a Level 1 felony, Level 2 felony, Level 3 felony, or Level 4
felony, except a felony defined by IC 35-48-4;
(B) involuntary manslaughter as a Level 5 felony under IC 35-42-
1-4; or
(C) reckless homicide as a Level 5 felony under IC 35-42-1-5;
(2) there is probable cause to believe that the child has committed
the act; and
(3) the child was at least sixteen (16) years of age when the act
charged was allegedly committed;
unless it would be in the best interests of the child and of the
safety and welfare of the community for the child to remain
within the juvenile justice system.
Id.
[19] During proceedings in the juvenile court, D.R. did not dispute that the State
alleged he committed an act that, if committed by an adult, would be reckless
homicide. He further conceded the State demonstrated probable cause to
believe he committed the act and that he was at least sixteen years of age at the
time of the alleged act. Proof of these elements creates a presumption in favor
of waiver. Moore v. State, 723 N.E.2d 442, 446 (Ind. Ct. App. 2000). The
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juvenile court determined D.R. had presented evidence that rebutted the
presumption.
[20] We review a juvenile court’s decision on waiver of jurisdiction for an abuse of
discretion. Vance v. State, 640 N.E.2d 51, 57 (Ind. 1994). An abuse of
discretion occurs when a decision is “‘clearly against the logic and effect of the
facts and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.’” K.S. v. State, 849 N.E.2d 538, 544 (Ind.
2006) (quoting In re L.J.M., 473 N.E.2d 637, 640 (Ind. Ct. App. 1985)). We will
not weigh the evidence nor judge the credibility of witnesses, “considering both
the record of the waiver hearing” and the reasons stated by the juvenile court.
Goad v. State, 516 N.E.2d 26, 27 (Ind. 1987). It is for the juvenile court judge,
after weighing the effects of retaining or waiving jurisdiction, to determine
which is the more desirable alternative. Vance, 640 N.E.2d at 57.
[21] In the waiver proceeding, the State as the proponent of waiver had the ultimate
burden to prove waiver was appropriate. The denial of waiver by the juvenile
court is, in effect, a negative judgment. As such, the State, must show us that
the court’s decision was contrary to law, that there was no evidence to support
the denial of waiver, and that all evidence and circumstances pointed to a grant
of waiver. See State v. Rucker, 861 N.E.2d 1240, 1241 (Ind. Ct. App. 2007)
(applying the negative judgment standard to the State’s appeal of a grant of a
motion to suppress evidence) trans. denied.
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[22] When D.R. was eight, DCS removed him from his mother’s care and placed
him with his paternal grandparents. DCS had substantiated allegations of
neglect against D.R.’s parents. In addition, D.R. alleged he had been molested
by a cousin at the age of eight. It is unclear whether the molestation allegation
was part of the DCS investigation, but D.R. talked about it with Dr. Bridget
Roberts-Pittman, a psychologist who performed D.R.’s court-ordered
assessment in the current case.
[23] D.R. also explained that he had witnessed his mother being beaten by her
boyfriend when he was younger, to the point that she needed emergency
hospitalization for head trauma. In addition, D.R. was treated for mental
illness in 2009, 2010, and 2013. D.R. first smoked marijuana in the sixth grade,
and by the ninth grade he smoked it regularly.
[24] After D.R.’s grandmother died, he had few housing options. After turning
fifteen, D.R. lived in a car for a period of time, and he lived with different
family friends. Both of D.R.’s parents failed to remain involved in his life and
had criminal records, including drug-related offenses. After D.R. was arrested,
he explained he had not been in regular contact with either parent. D.R. had
dropped out of high school in the eleventh grade.
[25] The neglect of D.R. during his childhood left its mark. Dr. Roberts-Pittman
diagnosed D.R. as having dysthymia, a mood disorder “evidenced by low-
grade, chronic depression.” Tr. p. 20. She further determined D.R. had
“cannabis use disorder” and met some of the criteria for posttraumatic stress
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disorder. Id. In addition, a week prior to the incident at issue, D.R. reportedly
attempted to commit suicide and, after a brief hospital stay, was transferred to
an inpatient mental health center for four days. Dr. Roberts-Pittman noted that
D.R. had no behavior disorders, which is unusual for an alleged juvenile
delinquent.
[26] Despite these challenges, D.R. had made positive strides in his life. He
reported to Dr. Roberts-Pittman that he had two jobs and had begun working
on his GED before the incident at issue. He planned to attend community
college after getting his GED. Furthermore, D.R. had no juvenile history. A
DCS caseworker described D.R. as “motivated” to improve his life. Tr. p. 33.
[27] Dr. Roberts-Pittman concluded the most appropriate treatment for D.R.’s
dysthymia and cannabis use disorder would be “intensive individual therapy,”
Id. at 21. For that reason, she recommended a placement outside of the home.
Dr. Roberts-Pittman further noted D.R. was thoughtful and “regretful” during
his mental health assessment, Tr. p. 30, and was working on his GED. She
arranged for D.R. to see a counselor, which is the first time she had done so for
a juvenile in detention. She further recommended that he be placed in a setting
where he could continue educational pursuits because he had the skills to
complete his high school education. Dr. Roberts-Pittman also recommended
that D.R. remain in juvenile court, noting that she had encountered very few
juveniles who displayed his “thoughtfulness.” Id. at 16.
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[28] The juvenile court heard testimony about the nature of the alternatives D.R.
could face and their possible impacts. Public Defender Michael Brewer, a
witness for D.R., explained that if the juvenile court waived jurisdiction over
D.R., he would face felony criminal charges but would not serve a long
sentence. D.R. could receive mental health services, but he might have to pay
for a portion of his care, and the supervision would not be as intensive as in
juvenile court. Brewer further explained that several of his clients had been
waived to adult court and, after being convicted of felonies, had difficulty
getting jobs and becoming productive members of society. By contrast, if D.R.
remained in the juvenile system and was placed on probation, he could be sent
to a residential treatment center at no cost to him and, further, could be kept on
probation until age twenty-one to monitor him.
[29] The State claims D.R. is “a danger to himself and to the safety of the
community.” Appellant’s Br. p. 12. The State also repeatedly characterizes
D.R. as a “drug dealer” because he admitted during his mental health
assessment that he had sold marijuana in the ninth grade. Id. There is no
evidence as to how often and for how long he had sold marijuana, and there is
no indication that he was dealing in marijuana at the time of the incident at
issue here. On the other hand, there was evidence that if D.R. remained under
the juvenile court’s jurisdiction, he would be provided with services and an
opportunity to rehabilitate himself more effectively than in adult court. Under
these circumstances, including D.R.’s complete lack of a juvenile record and his
attempts to overcome an unstable and traumatic childhood, the trial court’s
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determination that D.R. overcame the presumption of waiver is not against the
facts and circumstances of this case. The juvenile court can effectively address
the deeply serious allegations against D.R.
Conclusion
[30] For the reasons stated above, we affirm the judgment of the trial court.
[31] Affirmed.
[32] Baker, J., and Pyle, J., concur.
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State of Indiana v. D.R.
Combined Opinion