MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                     Dec 30 2016, 9:00 am

court except for the purpose of establishing                       CLERK
                                                               Indiana Supreme Court
the defense of res judicata, collateral                           Court of Appeals
                                                                    and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Hilary Bowe Ricks                                       Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Monika Prekopa Talbot
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

L.P.,                                                   December 30, 2016
Appellant-Respondent,                                   Court of Appeals Case No.
                                                        49A04-1606-JV-1472
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Marilyn A.
Appellee-Petitioner.                                    Moores, Judge
                                                        The Honorable Scott Stowers,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        49D09-1603-JD-462



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1606-JV-1472 | December 30, 2016   Page 1 of 6
                                         Statement of the Case
[1]   L.P. appeals the juvenile court’s order that he pay restitution after L.P.

      admitted to having committed criminal mischief and criminal trespass, Class A

      misdemeanors if committed by an adult.1 L.P. raises a single issue for our

      review, namely, whether the juvenile court erred when it ordered him to pay

      $796 in restitution. We affirm.


                                  Facts and Procedural History
[2]   On March 18, 2016, L.P. and an associate broke into a vehicle owned by

      Bradley Bishop and took numerous articles of clothing of substantial value out

      of the vehicle. The damage to the vehicle and the value of the clothing

      collectively was about $1,600. Three days later, the State alleged L.P. to be a

      delinquent, and, thereafter, L.P. admitted to criminal mischief and criminal

      trespass, Class A misdemeanors if committed by an adult. L.P.’s admission

      agreement provided for argument to be heard by the juvenile court on an

      appropriate amount of restitution to the victim.


[3]   On June 15, the juvenile court held a dispositional hearing. At that hearing,

      L.P.’s attorney informed the court that, “as far as the restitution goes, . . . the

      only issue is [L.P.’s] ability to pay.” Tr. at 56. L.P.’s attorney then argued that




      1
        L.P. appeals only the court’s order that he pay restitution in lower cause number 49D09-1603-JD-462.
      Although the juvenile court entered a dispositional order against L.P. in both that cause number and cause
      number 49D09-1605-JD-708 on the same day, L.P. presents no issue on appeal under cause number 49D09-
      1605-JD-708.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1606-JV-1472 | December 30, 2016        Page 2 of 6
L.P. had no ability to pay restitution. The court then engaged L.P. directly in

the following colloquy:


        THE COURT: So if the Court ordered you to pay a bunch of
        restitution, how would you pay it?

        [L.P.]: . . . I’m seventeen. I don’t think it’d be that hard for me
        to find a job.

        THE COURT: Where?

        [L.P.]: I mean, anywhere, there’s hiring.

        THE COURT: Who’s hiring?

        [L.P.]: . . . any Taco Bell, any fast food restaurant. Meijer’s . . .
        I heard the Mayor was giving out a thousand jobs to help out in
        parks or something like that.

        THE COURT: . . . what makes you think you’re go[ing] to get
        one of those jobs?

        [L.P.]: . . . I got a responsibility, which is paying the money I
        half owe, so . . . I mean, either way, I’m seventeen. I feel like I
        should be working already.

        THE COURT: I agree with that. . . . [Y]ou’re right, . . . the city
        is supposed to be announcing some sort of . . . program for . . .
        young people to try and work during the summer. I don’t know
        how you go about doing that. All right. Court proceed[s] to
        disposition . . . . Under [this cause number] . . . we’ll order
        restitution in the amount of [$]796 . . . .


Id. at 56-58. This appeal ensued.



Court of Appeals of Indiana | Memorandum Decision 49A04-1606-JV-1472 | December 30, 2016   Page 3 of 6
                                     Discussion and Decision
[4]   L.P. asserts on appeal that the juvenile court erred when it ordered him to pay

      restitution. An order of restitution lies within the trial court’s discretion and

      will be reversed on appeal only for an abuse of discretion. Bell v. State, 59

      N.E.3d 959, 961 (Ind. 2016). Where, as here, a trial court sets restitution as a

      condition of probation, “our trial courts are required to consider the defendant’s

      ability to pay.” Id. at 963; see also A.H. v. State, 10 N.E.3d 37, 40 (Ind. Ct. App.

      2014) (“When a juvenile court orders restitution as part of a juvenile’s

      probation, it must inquire into the juvenile’s ability to pay the restitution.”),

      trans. denied. An abuse of discretion occurs if the trial court’s judgment is

      clearly against the logic and effects of the facts and circumstances before it.

      E.g., State v. Collier, 61 N.E.3d 265, 268 (Ind. 2016).


[5]   Here, L.P. argues that the juvenile court abused its discretion when it ordered

      him to pay restitution because, according to L.P., he “did not have the present

      ability to pay . . . and was not likely to have the ability to pay . . . in the

      foreseeable future.” Appellant’s Br. at 11. In support of his argument, he relies

      on T.H. v. State, in which we reversed the juvenile court’s order on restitution

      for the following reasons:

              In this case, the evidence is undisputed. At the time of the
              dispositional hearing, T.H. was fifteen years old, did not have a
              work permit, did not have a job, did not have a bank account, did
              not have any money in savings, owned no property, and did not
              have anything else in his name. He has numerous disabilities,
              and his monthly SSI disability benefit is used by his mother to
              support T.H. and his six siblings. Although T.H. testified that he
      Court of Appeals of Indiana | Memorandum Decision 49A04-1606-JV-1472 | December 30, 2016   Page 4 of 6
              would “try to” get a job when he reached the age of sixteen, tr. p.
              18, it is undisputed that at the time of the dispositional hearing,
              he was unemployed. There is no evidence in the record
              whatsoever that remotely tends to establish that T.H. is able to
              pay restitution in any amount, much less an aggregate amount of
              $1,500. On this record, we find that the juvenile court abused its
              discretion by ordering T.H. to pay restitution as a condition of
              probation.


      33 N.E.3d 374, 376 (Ind. Ct. App. 2015).


[6]   We conclude that the facts of T.H. are not analogous to L.P.’s circumstances.

      Unlike in T.H., L.P. is seventeen; he is not disabled; and, at the time of the

      dispositional hearing, he was aware of specific employment opportunities that

      were available to him. Further, the restitution order here is nearly half the

      amount ordered in T.H. We cannot say that the juvenile court’s order on

      restitution here was clearly against the logic and effect of the facts and

      circumstances before it.


[7]   L.P. also asserts that the juvenile court’s restitution order violates Article 1,

      Section 18 of the Indiana Constitution, which provides that our penal code shall

      be founded on the principles of reformation and not vindictive justice.

      According to L.P., “[s]etting [him] up to fail by requiring him to pay more than

      realistically possible does more to discourage rehabilitation than contribute” to

      it. Appellant’s Br. at 12. But, as we conclude that the juvenile court’s

      restitution is not unreasonable in light of the facts before the court, we cannot

      agree that the court’s order is contrary to Article 1, Section 18. Accordingly, we

      affirm the juvenile court’s judgment.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1606-JV-1472 | December 30, 2016   Page 5 of 6
[8]   Affirmed.


      Bailey, J., and May, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1606-JV-1472 | December 30, 2016   Page 6 of 6
