FILED
Jan 17 2017, 5:50 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Deborah Markisohn Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Appellate Division
Indianapolis, Indiana Matthew R. Elliot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
S.S., January 17, 2017
Appellant-Defendant, Court of Appeals Case No.
49A05-1605-JV-1070
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marilyn A.
Appellee-Plaintiff. Moores, Judge;
The Honorable Geoffrey Gaither,
Magistrate
Trial Court Cause No.
49D09-1601-JD-150
May, Judge.
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[1] S.S. appeals the trial court’s order requiring him to pay restitution. S.S.
presents two issues for our review, one of which we find dispositive - whether
the juvenile court abused its discretion when it ordered him to pay restitution
after it determined he did not have the ability to pay restitution. We reverse.
Facts and Procedural History
[2] On February 2, 2016, the State filed a delinquency petition alleging S.S.
committed acts that, if committed by an adult, would be Level 3 felony burglary
and Level 3 felony robbery resulting in bodily injury, based on his taking a cell
phone from M.H. On March 22, S.S. entered into an admission agreement
with the State, agreeing to adjudication for an act that would be Class A
misdemeanor theft, 1 which is a lesser included offense of Level 3 felony
burglary. The State moved to dismiss the Level 3 felony robbery allegation, and
the juvenile court granted that motion. As part of the admission agreement,
S.S. agreed to make “[r]estitution for the LG4 Cell Phone, documentation and
valuation to be determined [sic] disposition or restitution hearing.” (App. at
48.)
[3] On April 19, 2016, the juvenile court held a dispositional hearing. The juvenile
court accepted the admission agreement and discussed restitution. After
1
This admission agreement also included S.S.’s admission to an act that, if committed by an adult, would be
Class A misdemeanor possession of marijuana. This act was alleged in a delinquency petition under another
cause number. The record before us does not indicate whether S.S. appeals that adjudication separately, but
he does not raise herein any issues related to that admission.
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hearing argument of the parties, the Court attempted to set the issue of
restitution for hearing in thirty days, to which S.S. objected. The juvenile court
then ordered S.S. to pay $200.00 in restitution “to at least cover some loss of the
phone according to the contract.” (Tr. at 13.) The parties and the juvenile
court discussed the possibility of S.S.’s participation in a “restitution work
program that allows for anybody that has to pay restitution, they can do
community service work at five dollars an hour.” (Id.) However, the juvenile
court noted, “that program is coming to an end.” (Id.) The juvenile court
further stated the $200.00 “may not be the total amount of compensation
because it is kind of unknown what that is at this time. . . . but it is at least
that.” (Id.)
[4] Regarding payment of the restitution, the trial court told S.S.’s mother, “if there
is some sort of delay on your part on behalf of [S.S.’s] part, you run the risk of
not being able to participate in the [restitution work] program which means
[S.S.] will be on the hook, in parenthesis, ‘you’ for the restitution.” (Id. at 14.)
The juvenile court then allowed S.S. to make “a brief record as to restitution,”
(id.), and presented testimony S.S. was fifteen years old, lived with his mother,
did not have a job, did not have a bank or savings account, and did not own
property. S.S. then asked the juvenile court to “make a finding of inability to
pay.” (Id. at 15.)
[5] The juvenile court entered its dispositional order the same day. It ordered S.S.
to: “1. Complete 40 hours of restitution work program . . . 4. Pay to the Clerk
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$200.00 restitution to be withdrawn by [A.H. 2].” (App. at 14) (footnote added).
The juvenile court also noted: “[S.S.’s counsel] requests that the youth be found
indigent as he does not have [t]he ability to pay restitution. Court notes same.
Court authorizes the release of youth’s documents to the victim for civil
litigation.” (Id. at 15.)
Discussion and Decision
[6] Pursuant to Indiana Code Section 31-37-19-5(b)(4), a juvenile court may order a
child to pay restitution if the victim provides reasonable evidence of loss, which
evidence the child may challenge at the dispositional hearing.
The restitution order is within the court’s discretion, and this
court will reverse only upon a showing of an abuse of discretion.
An abuse of discretion occurs when the trial court’s
determination 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.
J.H. v. State, 950 N.E.2d 731, 734 (Ind. Ct. App. 2011) (internal citations
omitted). It is well-established “equal protection and fundamental fairness
concerns require that a juvenile court must inquire into a juvenile’s ability to
pay before the court can order restitution as a condition of probation.” M.L. v.
State, 838 N.E.2d 525, 527 (Ind. Ct. App. 2005), reh’g denied, trans. denied.
2
A.H. is M.H.’s sibling and the owner of the phone S.S. stole.
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[7] Here, S.S. made a record regarding his ability to pay wherein he testified he was
fifteen years old, did not have a job, did not have a bank account or savings,
and lived with his mother. The juvenile court stated in its dispositional order,
“[S.S.’s counsel] requests that the youth be found indigent as he does not have
[t]he ability to pay restitution. Court notes same. Court authorizes the release
of youth’s documents to the victim for civil litigation.” (App. at 15.) As the
juvenile court noted S.S. was not able to pay restitution, and S.S. presented
evidence of his indigency, the juvenile court abused its discretion in ordering
him to pay restitution. See Bell v. State, 59 N.E.3d 959, 966 (Ind. 2016)
(vacating trial court’s restitution order because Bell presented “sufficient and
unrebutted testimony” of her inability to pay). 3
Conclusion
[8] The juvenile court abused its discretion when it ordered S.S. to pay restitution
after it found S.S. did not have the ability to pay restitution. We accordingly
vacate the portion of the dispositional order dealing with the payment of
restitution.
[9] Reversed.
3
As an aside, we note the juvenile court’s comment during the dispositional hearing regarding mother’s
responsibility for the payment of S.S.’s restitution. (See Tr. at 14) (trial court, addressing S.S.’s mother, states,
“if there is some sort of delay on your part on behalf of [S.S.’s] part, you run the risk of not being able to
participate in the [restitution work] program which means [S.S.] will be on the hook, in parenthesis, ‘you’ for
the restitution”). This comment was not correct as a matter of law. See M.L., 838 N.E.2d at 530 n.10
(parents are not liable for payment of child’s restitution obligation).
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Najam, J., and Bailey, J., concur.
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