J.H. v. State

OPINION

BAKER, Judge.

Appellant-respondent J.H. appeals his adjudication for Driving a Vehicle Without a License,1 an offense that would be a class *457C misdemeanor had it been committed by an adult. Specifically, J.H. argues that the adjudication must be set aside because he did not freely and voluntarily waive his right to counsel at the initial hearing, inasmuch as he was not properly advised of the nature, extent and importance of his right to counsel. Moreover, J.H. contends that the delinquency determination must be set aside because the trial court erred in not warning him of the dangers or pitfalls of self-representation prior to pleading guilty. Concluding that J.H. has not filed a motion for relief from judgment pursuant to Indiana Trial Rule 60, we dismiss this appeal and remand this cause to the trial court for the purpose of permitting J.H. to file such a motion.

FACTS

On September 26, 2003, seventeen-year-old J.H. borrowed his girlfriend's automobile. At some point, J.H. collided with another vehicle, and it was later determined that he did not have a valid operator's license. As a result, the State filed a delinquency petition on September 29, 2003, charging him with the above offense.

When J.H. and his mother appeared at the initial hearing three days later, J.H. and his mother acknowledged to the trial judge that they understood the allegations set forth in the petition. The following colloquy then took place:

THE COURT: [J.H.], I need to advise you that you have the right to have an attorney, a continuance to get an attorney, and if you cannot afford an attorney, one will be appointed to you at public expense, do you understand that? RESPONDENT: Yes sir.

Tr. p. 4.

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THE COURT: And while you were in detention, did you watch a video tape in which the Judge - explained your rights and this Court's alternatives?
RESPONDENT: Yes sir.
THE COURT: Did you understand it?
RESPONDENT: Yes sir.
THE COURT:; And folks, did you also watch that video tape while you were out in the waiting room?
MOTHER: Yes.
THE COURT: Did you understand it?
MOTHER: Yes.
THE COURT: And are you satisfied that he understands it?
FATHER: Yes.
MOTHER: Yes.
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THE COURT: Alright [J.H.], among rights you have is the right to have an attorney a continuance to get an attorney, and if you cannot afford an attorney, one will be appointed to you at public expense. Do you think you need an attorney in this matter?
MOTHER: No, 'cause you guilty.
RESPONDENT: No sir, I'm going to plead guilty.
THE COURT: Alright. Folks, do you think he needs an attorney?

'MOTHER: No.

THE COURT: Alright, showing a knowing, lawful waiver of your right to have an attorney. [J.H.] do you wish to admit or do you wish to deny that violation? f
RESPONDENT: I admit siz. I admit.
THE COURT: Do you understand that by admitting that petition, you're waiving your rights and that the Court advisement of rights, including your right to remain silent and you're gonna have to tell the Court what happened here today, do you understand that?
*458RESPONDENT: Yes sic.

Tr. p. 5-6. Following this exchange, J.H. acknowledged to the trial court that he was admitting the allegations of the petition of his "own free will." Tr. p. 6. After informing the trial court that he did not have a driver's license when he took his girlfriend's automobile and slid into another vehicle, a sufficient factual basis was found to adjudicate J.H. a delinquent child. Finding that J.H. had been on parole when he committed the instant offense and further observing that he had a "lengthy history with this Court, with several violations," Tr. p. 9, the trial court recommitted J.H. to the Department of Correction with a recommendation that he serve twelve months. J.H. now appeals..

DISCUSSION AND DECISION

The dispositive issue here is whether, as the State argues, the appeal must be dismissed because J.H. was obligated to file a motion for relief from judgment in accordance with Indiana Trial Rule 60(B). As our supreme court observed in Tumulty v. State, "[olne consequence of pleading guilty is restriction of the ability to challenge the conviction on direct appeal." 666 N.E.2d 394, 395 (Ind.1996). So too, in juvenile cases, our supreme court has determined that a defendant may not appeal a delinquency adjudication following his admission to the facts of the offense. M.Y. v. State, 681 N.E.2d 1178, 1179 (Ind.Ct.App.1997). While post-conviction remedies are not available to juveniles, see Jordan v. State, 512 N.E.2d 407, 408 (Ind. 1987), the appropriate remedy for relief that a juvenile defendant must seek is through the filing of a Trial Rule 60 motion. See Haluska v. State, 668 N.E.2d 1193, 1194 (Ind.Ct.App.1996). Inasmuch as J.H. is attacking the validity of his admission to the offense and he has failed to file a motion pursuant to Trial Rule 60, we are compelled to dismiss this appeal. Thus, we remand this cause to the trial court for the purpose of permitting J.H. to file therein a motion for relief from judgment.

Appeal dismissed.

FRIEDLANDER, J., concurs. BAILEY, J., concurs with opinion.

. Ind.Code § 9-24-18-1.