MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              Oct 14 2015, 9:44 am
this Memorandum Decision shall not be                                         Oct 14 2015, 9:44 am




regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Timothy J. O’Connor                                       Gregory F. Zoeller
O’Connor & Auersch                                        Attorney General of Indiana
Indianapolis, Indiana
                                                          Justin F. Roebel
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

M.H.,                                                     October 14, 2015
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          49A02-1503-JV-168
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Marilyn A.
Appellee-Petitioner                                       Moores, Judge
                                                          The Honorable Jennifer Hubartt,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49D09-1412-JD-2909



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1503-JV-168 | October 14, 2015               Page 1 of 3
[1]   On December 5, 2014, the State filed a petition alleging that M.H. had

      committed an act that would have been Level 6 felony battery had it been

      committed by an adult. On February 5, 2015, M.H. admitted to the allegations

      and was adjudicated delinquent.


[2]   The juvenile court held a dispositional hearing on February 26, 2015. At that

      hearing, the following undisputed evidence was admitted:


           The victim of the offense sustained injuries causing her to incur medical
            expenses totaling $1,340.58.
           M.H. was unemployed and had no bank accounts and no savings.
           M.H. had applied for a job at Papa John’s but did not get the job.
           M.H. lived with his grandmother, who receives Social Security income
            and adoption assistance but no other income. No one in M.H.’s
            household receives income aside from government assistance.
           M.H. occasionally gets pocket money of around $20.
           M.H. smokes two blunts of marijuana every two or three days. He does
            not know where he finds the money to purchase the marijuana.

      The juvenile court entered a dispositional order placing M.H. on probation.

      Among other things, a “special condition” of M.H.’s probation is that he pay

      restitution in the amount of $1,340.58. Appellant’s App. p. 10.


[3]   It is well established that 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. T.H. v. State, 33 N.E.3d 374, 376 (Ind. Ct. App. 2015). This inquiry

      must occur because of concerns about equal protection and fundamental

      fairness. Id. The juvenile is entitled not only to an inquiry into his ability to



      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-JV-168 | October 14, 2015   Page 2 of 3
      pay, but also to a modification of an existing restitution order if the court

      determines he is unable to meet its terms. Id.


[4]   The State argues that we should find the juvenile court’s restitution order to be

      a standalone restitution order as opposed to a condition of M.H.’s probation.

      We decline this invitation. The disposition order clearly lists the restitution

      payment under the “special conditions” of M.H.’s probation. Appellant’s App.

      p. 10. Therefore, it is apparent that restitution was a condition of probation.


[5]   The evidence is undisputed that M.H. is unemployed and has no bank account

      and no savings. No one in his household receives income other than

      government assistance. While he somehow finds the money to smoke

      marijuana regularly, there was no evidence regarding the cost of a marijuana

      blunt, and no evidence that he was being dishonest with the court regarding the

      sole source of his spending money—occasional pocket money totaling

      approximately $20. Under these circumstances, there is no evidence in the

      record supporting a conclusion that he is remotely able to pay restitution in any

      amount, much less an aggregate amount exceeding $1,000. We can only

      conclude that the juvenile court abused its discretion in ordering restitution as a

      condition of probation.


[6]   The judgment of the juvenile court is reversed and remanded with instructions

      to modify M.H.’s dispositional order consistent with this opinion.


      Bailey, J., and Mathias, J., concur.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-JV-168 | October 14, 2015   Page 3 of 3
