                                                                                  FILED
                                                                             Oct 02 2017, 8:49 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Cara Schaefer Wieneke                                      Curtis T. Hill, Jr.
      Wieneke Law Office, LLC                                    Attorney General of Indiana
      Brooklyn, Indiana
                                                                 Angela Sanchez
                                                                 Supervising Deputy Attorney
                                                                 General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      J.G.,                                                      October 2, 2017
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 43A03-1705-JV-957
              v.                                                 Appeal from the Kosciusko
                                                                 Superior Court
      State of Indiana,                                          The Honorable David C. Cates,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 43D01-1509-JD-352



      Najam, Judge.


                                         Statement of the Case
[1]   J.G. appeals from the juvenile court’s order modifying a dispositional decree

      following his adjudication as a delinquent child for intimidation, as a Level 5

      felony when committed by an adult; criminal mischief, as a Class A
      Court of Appeals of Indiana | Opinion 43A03-1705-JV-957 | October 2, 2017                       Page 1 of 4
      misdemeanor when committed by an adult; battery, as a Class B misdemeanor

      when committed by an adult; criminal mischief, as a Class B misdemeanor

      when committed by an adult; and a compulsory school attendance violation.

      J.G. presents a single dispositive issue for our review, namely, whether the

      juvenile court erred when it conducted a modification hearing when J.G. was

      not represented by counsel and had not waived his right to counsel. We reverse

      and remand for a new modification hearing.


                                     Facts and Procedural History
[2]   On November 5, 2015, during a hearing on the State’s delinquency petition,

      J.G. admitted all but one of the allegations in the State’s petition.1 The juvenile

      court adjudicated J.G. to be a juvenile delinquent, and, on December 22, the

      court ordered J.G. to be placed on formal supervision until the age of eighteen,2

      unless sooner discharged.


[3]   On September 17, 2016, J.G. engaged in a physical altercation with his parents.

      Thereafter, J.G. was detained in the Juvenile Justice Center for three weeks.

      Following a hearing in November, the court lifted the detention order and

      continued J.G. on supervised probation. Following that November hearing,

      J.G.’s counsel withdrew as his counsel.




      1
        The State alleged three acts of criminal mischief, but J.G. only admitted to two. The juvenile court
      adjudicated him to be a delinquent on two acts of criminal mischief.
      2
          J.G. will turn eighteen on April 15, 2018.


      Court of Appeals of Indiana | Opinion 43A03-1705-JV-957 | October 2, 2017                          Page 2 of 4
[4]   In April 2017, J.G.’s probation officer filed a modification report stating that

      J.G. had not complied with the terms of his supervised probation, including

      having missed several days of school and therapy sessions. The juvenile court

      held a modification hearing on April 19. J.G. was not represented by counsel

      at that hearing, the trial court did not advise him of his right to counsel, and

      J.G. did not waive his right to counsel. At the conclusion of the hearing, the

      juvenile court awarded wardship of J.G. to the Department of Correction. This

      appeal ensued.3


                                      Discussion and Decision
[5]   J.G. contends, and the State agrees, that he was entitled to counsel at the

      dispositional modification hearing. Both J.G. and the State ask that we remand

      this case to the juvenile court for a new hearing. Indeed, Criminal Rule

      25(B)(3)(a) expressly states that “counsel for the child must be appointed . . .

      before convening any hearing in which the court may find facts (or the child may

      admit to facts) on the basis of which the court may impose . . . wardship of the

      child to the Department of Correction[.]” (Emphases added). And Criminal

      Rule 25(C) provides that, following the appointment of counsel under subsection

      (B), any waiver of the right to counsel shall be made in open court, on the record

      and confirmed in writing, and in the presence of the child’s attorney. Here, it is

      undisputed both that J.G. was not represented by counsel at the modification




      3
        The State filed a motion to remand to the trial court for a new modification hearing. We deny that motion
      by separate order.

      Court of Appeals of Indiana | Opinion 43A03-1705-JV-957 | October 2, 2017                       Page 3 of 4
      hearing and that he did not waive his right to counsel. Accordingly, we reverse

      the modification order and remand for a new hearing.


[6]   Reversed and remanded for further proceedings.


      Kirsch, J., and Brown, J., concur.




      Court of Appeals of Indiana | Opinion 43A03-1705-JV-957 | October 2, 2017   Page 4 of 4
