MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 11 2020, 8:51 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kelly Starling Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Appellate Division
Indianapolis, Indiana J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
A.W., February 11, 2020
Appellant-Respondent, Court of Appeals Case No.
19A-JV-1792
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marilyn A.
Appellee-Petitioner Moores, Judge
The Honorable Geoffrey A.
Gaither, Magistrate
Trial Court Cause No.
49D09-1902-JD-146
Crone, Judge.
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Case Summary
[1] Sixteen-year-old A.W. was adjudicated delinquent for conduct amounting to
level 5 felony robbery if committed by an adult. He now appeals, claiming that
the trial court erred in granting the State’s oral motion for continuance and in
ordering his placement in the Indiana Department of Correction (“DOC”). We
affirm.
Facts and Procedural History
[2] A.W. was born in November 2002. At age three, he lost his father, who was
killed in a police shooting. He was raised by his mother, with assistance from
his grandparents. By age sixteen, he had accumulated ten delinquency
referrals, some of which involved multiple allegations of delinquent behavior.
A.W.’s referrals began at age twelve, when he was adjudicated delinquent for
truancy. At ages fourteen and fifteen, he had two true findings for conduct
amounting to level 5 felony battery resulting in bodily injury to a public safety
officer, one for level 6 felony receiving stolen auto parts, one for level 6 felony
escape, and one for class A misdemeanor battery resulting in bodily injury, all if
committed by an adult. At age sixteen, he faced three different referrals that
ultimately resulted in four true findings, one for conduct amounting to level 6
felony escape, one for conduct amounting to level 6 felony resisting law
enforcement, one for conduct amounting to class C misdemeanor operating a
motor vehicle without ever receiving a license, all if committed by an adult, and
the present cause, which resulted in a true finding for conduct amounting to
level 5 felony robbery if committed by an adult.
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[3] The facts underlying A.W.’s true finding for robbery are as follows. On
December 16, 2018, Jasmine Burch pushed her eighty-year-old, wheelchair-
bound mother, Janja Jordan, into an Indianapolis discount store. When the
two were between the double entrance doors, an assailant later identified as
A.W. grabbed the elderly Jordan’s purse, which she had on her lap, clutched in
her left hand. A.W. ran out the front entrance, and Burch chased him outside.
A.W. eventually dropped the purse as well as a cell phone. Police obtained a
search warrant for the phone and ascertained that it belonged to A.W.’s
mother. Jordan suffered injury to her left hand, on which she had recently had
surgery. Burch positively identified A.W. from a photo array, and A.W. was
taken into custody.
[4] The State charged A.W. with a delinquent act that would amount to level 5
felony robbery if committed by an adult. A.W. was released on electronic
monitoring on February 12, 2019. Two weeks later, he removed his electronic
monitoring device, and his whereabouts were unknown. He eventually was
apprehended, detained, and charged in another cause (“Cause 215”) with a
delinquent act amounting to level 6 felony escape if committed by an adult.
The trial court set a factfinding hearing for May 23, 2019, for the current cause,
Cause 215, and a third cause (“Cause 467”). 1
1
Cause 467 involved five alleged acts of delinquency against A.W., three of which were dismissed and two
of which resulted in true findings: one for conduct amounting to level 6 felony resisting law enforcement and
the other for conduct amounting to class C misdemeanor operating a motor vehicle without ever having
received a license, if committed by an adult.
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[5] On May 23, the State requested a continuance in the current cause and Cause
467. Cause 215 was litigated that day and resulted in a true finding against
A.W. for escape. The State’s oral request for continuance in the current cause
was due to the absence of Jordan, the victim. The State explained that Jordan
had notified the prosecutor’s office the day before that she would not be able to
attend the factfinding hearing because her husband had been diagnosed with
cancer. The prosecutor stated that she believed that she could procure Jordan’s
attendance with a continuance of about a week. A.W. objected, requested that
the court require the State to submit its motion in writing as required by statute,
and requested a discharge. The trial court did not order the State to submit a
written motion and instead granted its motion for continuance. At the June 25,
2019 factfinding hearing in the current cause, A.W. renewed his request for
discharge, and the prosecutor explained in greater detail the circumstances that
precipitated Jordan’s absence from the May 23 hearing. The trial court denied
A.W.’s motion for discharge, conducted the hearing, and entered a true finding
for conduct amounting to level 5 felony robbery if committed by an adult.
[6] The trial court conducted a dispositional hearing and, due largely to A.W.’s
lengthy history of true findings and of violating less restrictive placements,
placed A.W. in the DOC until age twenty-one, with a recommendation of a six-
month term. A.W. now appeals. Additional facts will be provided as
necessary.
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Discussion and Decision
Section 1 – We find no reversible error in the trial court’s
grant of the State’s oral motion for continuance.
[7] A.W. contends that the trial court committed reversible error in granting the
State’s oral motion for continuance. Rulings on non-statutory motions for
continuance lie within the trial court’s discretion and will be reversed only for
an abuse of that discretion and resulting prejudice. Barber v. State, 911 N.E.2d
641, 645-46 (Ind. Ct. App. 2009). Where, as here, a statute governs the grant or
denial of a continuance, we apply a de novo standard, interpreting the language
of the statute. Day v. State, 57 N.E.3d 809, 811 (Ind. 2016).
[8] Indiana Code Section 31-37-11-8 governs circumstances in which a juvenile
seeks discharge and the State seeks a continuance due to the absence of a
witness:
(a) If a child moves for discharge, the prosecuting attorney may
move for a continuance of the factfinding hearing or waiver
hearing because of the absence of a witness if the prosecuting
attorney makes an official statement:
(1) setting forth the name and address of the witness if known;
(2) indicating the probability of procuring the witness’s testimony
within a reasonable time;
(3) showing that the absence of the witness has not been procured
by the act of the prosecuting attorney;
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(4) stating the facts to which the prosecuting attorney believes the
witness will testify and the prosecuting attorney’s belief that the
facts are true; and
(5) stating that the prosecuting attorney is unable to prove the
facts specified under subdivision (4) through the use of any other
witness whose testimony may be as readily procured.
(b) Upon the child’s request, the court shall order that the
prosecuting attorney’s motion and official statement be made in
writing.
(Emphasis added.)
[9] The highlighted portion of the statute indicates that its language is mandatory
rather than discretionary. See Taylor v. State, 7 N.E.3d 362, 365 (Ind. Ct. App.
2014) (“It is well settled that the use of the word ‘shall’ is construed as
‘mandatory language creating a statutory right to a particular outcome after
certain conditions are met.’”) (quoting Alden v. State, 983 N.E.2d 186, 189 (Ind.
Ct. App. 2013), trans. denied). A.W. objected to the State’s oral motion to
continue, requested a discharge, and requested that the court order the State to
submit the motion in writing. The trial court was required by statute to order
the State to submit its motion in writing and erred when it failed to do so.
[10] The State contends that any error in this regard is harmless. Harmless error is
error that does not affect the substantial rights of a party. Camm v. State, 908
N.E.2d 215, 225 (Ind. 2009). The May 23 factfinding hearing involved three
separate causes against A.W. The present cause and Cause 467 were continued
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as a result of the State’s oral motion. The remaining cause, Cause 215, was
heard that day and resulted in a true finding for escape. Having been found
true, A.W. was detained in that cause, not as a result of the continuance in the
present cause or Cause 467.
[11] Moreover, the continued factfinding hearing was ultimately commenced within
the statutorily prescribed period. See Ind. Code § 31-37-11-9 (requiring court to
commence continued factfinding hearing within ninety days; court shall
discharge the juvenile if it does not do so within ninety days). Here, the
prosecutor verbally requested a continuance due to Jordan’s absence at the
beginning of the May 23 factfinding hearing. At that time, the prosecutor
indicated her belief that she could secure Jordan’s attendance with a
continuance of about one week. The hearing ultimately was commenced thirty-
three days after the grant of the continuance, well within the statutory limit.
Additionally, we note that of the five items of information that must be
included in a written motion for continuance, per Indiana Code Section 31-37-
11-8(a), Jordan’s address appears to be the only one missing from the
prosecutor’s oral motion. A.W. was well aware of Jordan’s identity and has
not demonstrated prejudice regarding the lack of a written motion containing
her address. The prosecutor’s explanation that the elderly Jordan had notified
her by phone the previous day she would not be able to attend the factfinding
hearing because her husband had been diagnosed with cancer is sufficient to
show that the prosecutor did not procure Jordan’s absence. The prosecutor also
indicated that she believed that she could secure Jordan’s participation within a
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reasonable time. In short, A.W. has failed to demonstrate prejudice resulting
from the trial court’s failure to order the State to submit its continuance motion
in writing. As such, the error was harmless.
Section 2 – The trial court acted within its discretion in
ordering A.W.’s placement in the DOC.
[12] A.W. also asserts that the trial court abused its discretion in ordering his
placement in the DOC. The disposition of a juvenile adjudicated a delinquent
is a matter committed to the trial court’s discretion, subject to the statutory
considerations of the child’s welfare, community safety, and the policy favoring
the least harsh disposition. J.S. v. State, 110 N.E.3d 1173, 1175 (Ind. Ct. App.
2018), trans. denied (2019). We review a trial court’s disposition for an abuse of
discretion, which occurs if the decision is clearly against the logic and effect of
the facts and circumstances before it or the reasonable inferences that may be
drawn therefrom. Id. In determining whether a trial court has abused its
discretion, we neither reweigh evidence nor judge witness credibility. Id.
[13] The crux of A.W.’s argument is that the trial court chose the harshest
placement option when less restrictive alternatives were available. Juvenile
court proceedings are civil, not criminal, in nature. Id. “[T]he goal of the
juvenile process is rehabilitation so that the youth will not become a criminal as
an adult.” Id. at 1175-76 (quoting R.H. v. State, 937 N.E.2d 386, 388 (Ind. Ct.
App. 2010)). Thus, juvenile courts have a variety of placement choices.
Indiana Code Section 31-37-18-6 reads,
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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;
(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.
[14] Indiana Code Section 31-37-18-9(a) requires the trial court to state its reasons
for the disposition chosen. This involves the trial court’s issuance of written
findings and conclusions concerning the child’s care, treatment, rehabilitation,
or placement; parental participation in the plan; efforts made to prevent the
child’s removal from the parent; family services offered; and the court’s reasons
for its disposition. Ind. Code § 31-37-18-9(a)(1)-(5).
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[15] Here, the trial court’s findings indicate its consideration of the statutory factors
and its reasons for ordering A.W.’s placement in the DOC. For example, by
age sixteen, A.W. had accumulated ten delinquency referrals, the recitation of
which comprises a significant portion of the dispositional order. The nature of
his delinquent conduct has been serious and sometimes violent. For example,
his record includes two true findings for conduct amounting to level 5 felony
battery with injury to a public safety official if committed by an adult. He has
four true findings for conduct amounting to a level 6 felony if committed by an
adult, i.e., resisting law enforcement, receiving stolen property, and escape, and
two for misdemeanor level conduct. Most of his previous dispositions were
modified due to his commission of each new offense. He had two additional
causes pending in addition to the current delinquency petition, and those causes
resulted in two felony true findings and one misdemeanor true finding. The
trial court emphasized that less restrictive placements of home care and
placement outside the home at Youth Outlook and Options had already been
tried and had proven unsuccessful. Appealed Order at 4-5; see also Tr. Vol. 2 at
115 (court’s emphasis at dispositional hearing that DOC was only option not
yet tried and DOC would provide structure, security, separation, and
programming).
[16] A.W. points to his high level of family support as evidence that he deserves
another chance at community and structured home placement. Our review of
the record leaves no doubt as to his family’s strong support. At the
dispositional hearing, various family members pled for mercy on A.W.’s behalf
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and testified concerning their love and support for him throughout his
childhood, with particular emphasis on his father’s death when he was just
three years old. However, the number and recent escalation of A.W.’s
delinquency referrals indicate that the family’s efforts, well-meaning though
they are, have failed to produce more positive results for A.W.
[17] A.W. also relies on psychologist Dr. Jim L. Dalton’s report as support for a less
restrictive placement. Dr. Dalton reported that A.W.’s mental status and
presentation had improved since his previous evaluation in 2017. Respondent’s
Ex. B. However, Dr. Dalton ultimately found that A.W. was an “increasing
delinquency risk,” had a longstanding “penchant toward elopement,” and
presents “some danger to others as he has been willing to violate the rights of
others for his own personal gain.” Id. Dr. Dalton explained that because A.W.
“appears to present risks to the community, it is difficult to support another try
at community-based services. Especially given the increase in antisocial interest
and trajectory for this young man.” Id. He ultimately concluded that the
“updated assessment findings would support commitment to the [DOC].” Id.
[18] Simply put, the trial court did not choose the most restrictive placement in a
vacuum, but rather made a measured decision representing “the least restrictive
and most appropriate setting” based on A.W.’s history, community safety, and
A.W.’s best interest. Appealed Order at 4. Based on the foregoing, we
conclude that the trial court acted within its discretion in ordering A.W.’s
placement in the DOC. Accordingly, we affirm.
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[19] Affirmed.
May, J., and Pyle, J., concur.
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