ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
ANN M. SUTTON KAREN M. FREEMAN-WILSON
Marion County Public Defender Attorney General of Indiana
Agency
Indianapolis, Indiana JANET PARSANKO
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
N.D.F., )
)
Appellant-Respondent, ) Supreme Court Cause Number
) 49S02-0103-JV-144
v. )
)
STATE OF INDIANA, ) Court of Appeals Cause Number
) 49A02-0003-JV-164
Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
JUVENILE DIVISION, ROOM 2
The Honorable Julie Cartmel, Magistrate
Cause No. 49D09-9907-JD-2958
ON PETITION TO TRANSFER
October 7, 2002
RUCKER, Justice
Summary
Under the juvenile determinate sentencing statute, a juvenile court
may send a juvenile to the Department of Correction for a fixed term of two
years provided, among other things, the juvenile has accumulated “two (2)
unrelated prior adjudications of delinquency.” We hold today that despite
similar wording in the adult habitual offender statute, the meaning of the
phrase in the juvenile context is that the earlier adjudications of
delinquency are independent of the offense that is currently charged.
Facts and Procedural History
The record shows that in the evening hours of June 9, 1999, sixteen-
year-old N.D.F. and her fourteen-year-old accomplice severely beat a
teenage victim after demanding money that the victim said she did not have.
In due course, the State filed a petition alleging that N.D.F. was a
delinquent child who had committed an act that would constitute attempted
robbery as a Class B felony if committed by an adult. After a fact-finding
hearing, the juvenile court adjudicated N.D.F. a juvenile delinquent. At
the subsequent dispositional hearing, the trial court found that N.D.F. had
a prior history of acts that would constitute felonies if committed by
adults, namely: robbery as a Class C felony and possession of cocaine as a
Class D felony. As a result, the trial court remanded N.D.F. to the
custody of the Indiana Department of Correction for a fixed term of two
years.
On appeal to the Court of Appeals, N.D.F. challenged the sufficiency
of the evidence supporting the current charge and also contended that the
State failed to present any evidence demonstrating that she had accumulated
two unrelated prior adjudications of delinquency justifying her placement
with the Department of Correction. The Court of Appeals rejected the
sufficiency claim and affirmed the juvenile court on that point. However,
relying on its earlier opinion in W.T.J. v. State, 713 N.E.2d 938 (Ind. Ct.
App. 1999), trans. not sought, the court determined that the sequential
requirements of the adult habitual offender statute also apply to the
juvenile determinate sentencing statute.[1] The court also determined that
the juvenile court erred in sentencing N.D.F. because the State failed to
present any evidence demonstrating that her two unrelated prior
adjudications met the requirements of the statute. N.D.F. v. State, 735
N.E.2d 321, 324 (Ind. Ct. App. 2000). As a result, the Court of Appeals
affirmed in part and reversed in part the judgment of the juvenile court
and remanded the cause for further proceedings. Having previously granted
the State’s petition to transfer, we now affirm in its entirety the
judgment of the juvenile court.
Discussion
Under the juvenile determinate sentencing statute, a juvenile may be
remanded to the custody of the Indiana Department of Correction for housing
in an appropriate correctional facility for up to two years provided, among
other things: (1) the juvenile is adjudicated a delinquent because she
committed a felony against another person; (2) the juvenile was at least
fourteen years of age at the time the act was committed; and (3) the
juvenile “has two (2) unrelated prior adjudications of delinquency for acts
that would be felonies if committed by an adult.” I.C. § 31-37-19-10(a)(3)
(emphasis added).[2] A critical issue in this case is the meaning of the
phrase “unrelated prior adjudications of delinquency.” According to the
Court of Appeals, it is analogous to the phrase “unrelated prior felony
offenses” under the adult habitual offender statute. N.D.F., 735 N.E.2d at
324. Accordingly, the State is required to prove that the commission,
adjudication, and disposition of the juvenile’s first offense preceded the
commission of the juvenile’s second offense, and the commission of the
juvenile’s principal offense followed the commission, adjudication, and
disposition on the juvenile’s second offense. Based on tenets of statutory
construction, we disagree with our colleagues.
The goal of statutory construction is to determine, give effect to,
and implement the intent of the legislature. Mayes v. State, 744 N.E.2d
390, 393 (Ind. 2001). When interpreting the words of a single section of a
statute, this Court must construe them with due
regard for all other sections of the act and with regard for the
legislative intent to carry out
the spirit and purpose of the act. Park 100 Dev. Co. v. Ind. Dep’t of
State Revenue, 429 N.E.2d 220, 222-23 (Ind. 1981). Further, we will not
read into the statute that which is not the expressed intent of the
legislature. Ind. Civil Rights Comm’n v. Indianapolis Newspapers, Inc.,
716 N.E.2d 943, 946 (Ind. 1999). As such, it is just as important to
recognize what the statute does not say as it is to recognize what it does
say. Clifft v. Ind. Dep’t of State Revenue, 660 N.E.2d 310, 316 (Ind.
1995).
Our legislature has declared that it is the policy of this State and
the purpose of our juvenile code to “ensure that children within the
juvenile justice system are treated as persons in need of care, protection,
treatment, and rehabilitation.” I.C. § 31-10-2-1(5). This policy is
grounded in the Progressive Movement of the late 19th and early 20th
centuries, when American society rejected treating juvenile law violators
the same as adult criminals in favor of individualized diagnosis and
treatment. State ex rel. Camden v. Gibson Cir. Ct., 640 N.E.2d 696, 697
(Ind. 1994). Consequently, a juvenile court judge:
must seek to instill in the child a sense of value, impart a feeling
of security and belonging, communicate the importance and dignity of
being a member of society and, hopefully, in this manner, prevent the
child from pursuing a criminal and anti-social career. A juvenile
court judge must, in a unique manner, establish a relationship that
will permanently alter the behavior patterns of the child. He must
have patience, understanding, and a genuine interest in the welfare of
the child and must direct all of his efforts toward rehabilitation.
Bible v. State, 253 Ind. 373, 254 N.E.2d 319, 327 (1970) (citation
omitted). To aid juvenile court judges, the legislature has put at their
disposal “a myriad of dispositional alternatives to fit the unique and
varying circumstances of each child’s problems.” Madaras v. State, 425
N.E.2d 670, 671 (Ind. Ct. App. 1981). It is against this backdrop of
flexibility that the legislature enacted the juvenile determinate
sentencing statute, which recognizes that “[i]n some instances, confinement
may be one of the most effective rehabilitative techniques available.” Id.
at 672.
By contrast, the purpose of the adult habitual offender statute is to
penalize more severely those persons whom prior sanctions have failed to
deter from committing felonies. Marsillett v. State, 495 N.E.2d 699, 705
(Ind. 1986). In fact, “[p]unishment will be enhanced only when a person
who has been given two distinct opportunities to reform persists in his
criminality and commits a third separate and unrelated felony act thereby
proving himself incorrigible and a most serious threat to our society.”
Graham v. State, 435 N.E.2d 560, 561 (Ind. 1982). These concerns are not
implicated in juvenile proceedings. For instance, the juvenile
determinate sentencing statute is not equipped to deal with juveniles who
are “a most serious threat to our society.” Instead, the legislature has
provided that these juveniles, who meet certain age requirements, are
either automatically subject to the jurisdiction of an adult court or can
be waived there. See I.C. § 31-30-1-4 (West Supp. 2002); I.C. § 31-30-3-5.
In addition to the differences in the purposes of the statutes is the
content of the statutes themselves. We find it significant that the adult
habitual offender statute defines “two (2) prior unrelated felony
convictions.” The statute expressly provides:
A person has accumulated two (2) prior unrelated felony convictions
for purposes of this section only if:
(1) the second prior unrelated felony conviction was committed after
sentencing for the first prior unrelated felony conviction; and
(2) the offense for which the State seeks to have the person sentenced
as a habitual offender was committed after sentencing for the second
prior unrelated felony conviction.
I.C. § 35-50-2-8(c) (West Supp. 2002). There is no corollary definition of
“two (2) unrelated prior adjudications of delinquency” in the juvenile
determinate sentencing statute. Further, the adult habitual offender
statute (1) requires the State to file a separate charging information that
alleges that the defendant is a habitual offender; (2) puts the burden on
the State to prove beyond a reasonable doubt that the defendant has
accumulated two prior unrelated felony convictions; and (3) gives the
defendant the right to a separate jury determination that he is a habitual
offender. See I.C. § 35-50-2-8(a), (f), (g) (West Supp. 2002). These
procedural requirements are absent in the juvenile determinate sentencing
statute.
Construing “two (2) unrelated prior adjudications of delinquency”
consistently with the spirit and purpose of the juvenile code and being
cognizant of the significant differences between the statutes, we conclude
that the legislature did not intend that the sequential requirements of the
adult habitual offender statute apply to the juvenile determinate
sentencing statute. Rather, we conclude the legislature intended to afford
juvenile court judges greater flexibility in that regard. Accordingly, we
hold that “two (2) unrelated prior adjudications of delinquency” simply
means that the earlier adjudications of delinquency are independent of the
offense that is currently charged.
N.D.F. argued and the Court of Appeals agreed that the State produced no
evidence demonstrating that her two unrelated prior adjudications met the
requirements of the juvenile determinate sentencing statute. Rather,
according to N.D.F, the State merely argued in its recommendation to the
juvenile court that N.D.F had accumulated two unrelated prior adjudications
of delinquency. In essence, N.D.F. seemed to contend that just as with an
adult alleged to be a habitual offender, here the State was required to
prove beyond a reasonable doubt, through testimony or certified records,
the existence of her alleged two prior adjudications. Again we disagree
and conclude that the differences between the texts and purposes of the
habitual offender statute versus the juvenile determinate sentencing
statute compel a difference in the way in which two prior adjudications are
determined.
Rather than the habitual offender model, we believe that determining
whether a juvenile has accumulated two prior adjudications is more akin to
the procedure the trial court employs in sentencing a criminal defendant.
That is, when sentencing a defendant, a trial court may consider as an
aggravating circumstance that the defendant “has a history of criminal or
delinquent activity.” I.C. § 35-38-1-7.1(b)(2) (West Supp. 2002). Under
this procedure, the trial court is merely required to make a finding, based
on the evidence of record, that the defendant has such a history. And
absent the defendant’s “showing to the contrary, we will assume the trial
court’s finding is correct.” Noojin v. State, 730 N.E.2d 672, 679 (Ind.
2000) (recognizing the trial court’s finding that the defendant had a
history of criminal activity that was supported by arguments of counsel and
the Presentence Investigation Report). A similar procedure is appropriate
here. A juvenile court can rely on arguments of counsel and the probation
department’s report when ordering fixed placement. If the juvenile makes a
showing that she does not have two unrelated prior adjudications of
delinquency, then the burden shifts to the State to produce evidence in
support of its claim, and must do so by a preponderance of the evidence.
In this case, the record shows that at the dispositional hearing the
State argued N.D.F. had accumulated two unrelated prior adjudications of
delinquency for acts that would be felonies if committed by an adult. In
addition, the juvenile court adopted as findings the report of its
probation department, referred to as a “Preliminary Inquiry.” The report
showed that on August 20, 1997, pursuant to a plea agreement, the juvenile
court entered a true finding against N.D.F for possession of cocaine, a
Class D felony if committed by an adult; and on October 20, 1997, also
pursuant to a plea agreement, the juvenile court entered a true finding
against N.D.F. for attempted robbery, a Class C felony if committed by an
adult. R. at 16-17. Both adjudications were independent of the current
offense and thus qualify as two unrelated prior adjudications of
delinquency under the juvenile determinate sentencing statute. At the
dispositional hearing, N.D.F. did not dispute the existence of the prior
adjudications. Rather, she requested leniency based on the facts
surrounding the instant offense. Because N.D.F. made no showing contrary
to the court’s finding, we assume they are correct.
Conclusion
We affirm the judgment of the juvenile court.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
[1] In that case, the Court of Appeals observed that the juvenile
determinate sentencing statute does not define “two (2) unrelated prior
adjudications of delinquency.” Therefore, the court applied the same
interpretation used for analogous wording in the adult habitual offender
statute. W.T.J., 713 N.E.2d at 941. Thereunder, before a trial court can
enhance a defendant’s sentence for his status as a habitual offender, the
State must prove that he has “two (2) prior unrelated felony convictions.”
Ind. Code § 35-50-2-8(a) (West Supp. 2002). That is, the State must prove
the commission, conviction, and sentencing on the defendant’s first offense
preceded the commission of the defendant’s second offense, and the
commission of the defendant’s principal offense followed the commission,
conviction, and sentencing on the defendant’s second offense. Weatherford
v. State, 619 N.E.2d 915, 917 (Ind. 1993).
[2] The full text of the statute provides:
(a) This section applies to a child who:
(1) is adjudicated a delinquent child for an act that if
committed by an adult would be:
(A) a felony against a person;
(B) a Class A or Class B felony that is a controlled substances
offense under IC 35-48-4-1 through IC 35-48-4-5; or
(C) burglary as a Class A or Class B felony under IC 35-43-2-1;
(2) is at least fourteen (14) years of age at the time the child
committed the act for which the child is being placed; and
(3) has two (2) unrelated prior adjudications of delinquency for
acts that would be felonies if committed by an adult.
(b) A court may place the child in a facility authorized under this
chapter for not more than two (2) years.
(c) Notwithstanding IC 11-10-2-5, the department of correction may not
reduce the period ordered under this section [].
I.C. § 31-37-19-10.