                                                                       FILED
                                                                Jan 10 2020, 6:17 am

                                                                       CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                      Leanna Weissmann
Attorney General of Indiana                              Lawrenceburg, Indiana
Angela N. Sanchez
Assistant Section Chief, Criminal Appeals
Deputy Attorney General
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                        January 10, 2020
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         19A-JV-1659
        v.                                               Appeal from the Madison Circuit
                                                         Court
N.B.,                                                    The Honorable G. George Pancol,
Appellee-Defendant,                                      Judge
                                                         Trial Court Cause No.
                                                         48C02-1811-JD-390



Robb, Judge.




Court of Appeals of Indiana | Opinion 19A-JV-1659 | January 10, 2020                     Page 1 of 9
                                Case Summary and Issue
[1]   The State filed a delinquency petition alleging that N.B. had committed acts

      that, if committed by an adult, would constitute child molesting, a Class B

      felony, and also filed a petition to waive juvenile jurisdiction. N.B. filed a

      motion to dismiss for lack of subject matter jurisdiction due to his age, and the

      juvenile court granted the motion. The State appeals and presents one issue for

      our review, which we restate as whether the juvenile court had subject matter

      jurisdiction to entertain the State’s delinquency petition and request for waiver

      of juvenile jurisdiction. Concluding the juvenile court had jurisdiction to

      entertain the petition and determine whether N.B. should be waived to adult

      criminal court, we reverse and remand for further proceedings.



                            Facts and Procedural History
[2]   In June 2018, T.C. informed her therapist that her cousin, N.B., had fondled

      her vagina about six years prior. T.C. stated that N.B. had been fifteen or

      sixteen at the time of the offense and, at the time of her disclosure, N.B. was

      twenty-one or twenty-two years old. Law enforcement began investigating

      T.C.’s allegations.


[3]   On November 5, 2018, the State filed a request for authorization to file a

      petition alleging that N.B. is a delinquent child for committing acts that, if

      committed by an adult, would constitute child molesting. See State’s Appendix

      of Appellant, Volume II at 13. The same day, the juvenile court approved the


      Court of Appeals of Indiana | Opinion 19A-JV-1659 | January 10, 2020       Page 2 of 9
      request and the State filed its petition alleging delinquency. On November 13,

      N.B. pleaded guilty to criminal confinement resulting in bodily injury, a Level 5

      felony, in an unrelated matter.1 The State subsequently filed a motion for

      waiver of juvenile jurisdiction and the juvenile court scheduled a hearing on the

      matter.


[4]   While the State’s motion was pending, on February 26, 2019, the State filed an

      amended motion for waiver of juvenile jurisdiction asserting that N.B. was a

      child who had been previously convicted of a felony – specifically, N.B. had

      been convicted of criminal confinement resulting in bodily injury, a Level 5

      felony, on November 13, 2018. See id. at 33.2 The State subsequently submitted

      a brief in which it argued that, due to N.B.’s prior felony conviction, the

      juvenile court must waive N.B. to adult criminal court pursuant to Indiana

      Code section 31-30-3-6.3 See id. at 48-49. The scheduled waiver hearing was

      continued several times.


[5]   On May 24, 2019, N.B. filed a motion to dismiss alleging that the juvenile court

      lacked jurisdiction over him because he cannot be considered a “child” under




      1
        In March 2017, N.B. was charged with rape, incest, and sexual battery for acts allegedly committed against
      his mother when he was nineteen years old. See State’s Appendix of Appellant, Volume II at 55-58.
      However, on November 13, 2018, N.B. pleaded guilty to an amended charge of criminal confinement and
      the remaining charges were dismissed. See id. at 54.
      2
       The State did not explicitly state in its amended motion that this conviction compelled mandatory waiver to
      adult criminal court.
      3
       “Upon motion by the prosecuting attorney, the juvenile court shall waive jurisdiction if it finds that: (1) the
      child is charged with an act which would be a felony if committed by an adult; and (2) the child has
      previously been convicted of a felony or a nontraffic misdemeanor.” Ind. Code 31-30-3-6 (emphasis added).

      Court of Appeals of Indiana | Opinion 19A-JV-1659 | January 10, 2020                                 Page 3 of 9
the delinquency statute as he was no longer under age twenty-one. See id. at 66.

Therefore, N.B. argued that the juvenile court lacked personal jurisdiction over

him and the court “may not proceed in this matter and must dismiss it with

prejudice.” Id. at 68.4 N.B. attached to his motion a copy of this court’s

decision in M.C. v. State, 127 N.E.3d 1178 (Ind. Ct. App. 2019), in which a

panel of this court agreed with the parties that the juvenile court lacked subject

matter jurisdiction to adjudicate a twenty-two year old defendant delinquent

and enter a disposition. The State filed a response and argued the following:


         4.   [N.B.] cites the case of M.C. v. State as support for his
         Motion to Dismiss which is inapplicable to the case at bar.


         5.     M.C. [v]. State merely stands for the proposition that the
         juvenile court lacks jurisdiction to enter an adjudication against
         an adult over the age of twenty-one (21) years of age.


         6.    The State of Indiana is not seeking an adjudication of
         [N.B.] in this case.


         7.    This case is a mandatory waiver matter pursuant to I.C.
         31-30-3-6.


State’s App. of Appellant, Vol. II at 81. The juvenile court held a hearing on

June 18 and took the matter under advisement. The juvenile court




4
 Although the substance of N.B.’s argument with respect to the juvenile court’s jurisdiction remains
unchanged, we note that N.B. argued to the juvenile court that it lacked personal jurisdiction over him, but
argues on appeal that the juvenile court lacked subject matter jurisdiction.

Court of Appeals of Indiana | Opinion 19A-JV-1659 | January 10, 2020                                Page 4 of 9
      subsequently entered an order in which it found that it lacked subject matter

      jurisdiction in the matter and granted N.B.’s motion to dismiss. The State now

      appeals.



                                 Discussion and Decision
                                     I. Standard of Review
[6]   The State appeals from the juvenile court’s grant of N.B.’s motion to dismiss for

      lack of subject matter jurisdiction. Juvenile courts are courts of limited

      jurisdiction and their jurisdiction must be invoked by establishing the statutory

      jurisdictional prerequisites. M.B. v. State, 815 N.E.2d 210, 213 (Ind. Ct. App.

      2004). “When jurisdictional facts are not in dispute, we apply a de novo

      standard of review on the question of whether a lower court had jurisdiction

      over a juvenile proceeding.” Id.


                              II. Subject Matter Jurisdiction
[7]   The State argues the juvenile court improperly granted N.B.’s motion to dismiss

      because the juvenile court did have subject matter jurisdiction to determine

      whether waiver of jurisdiction is appropriate. Further, the State maintains that

      if the juvenile court lacks jurisdiction, then jurisdiction must rest with the

      criminal court. Relying on M.C. v. State, N.B. argues the juvenile court loses all

      jurisdiction over juvenile offenses after the offender becomes twenty-one years

      old. We agree with the State.




      Court of Appeals of Indiana | Opinion 19A-JV-1659 | January 10, 2020         Page 5 of 9
[8]   The issue here stems from an apparent confusion between the juvenile court’s

      jurisdiction to enter an adjudication against an adult defendant and its ability to

      accept and entertain a delinquency petition and waiver to adult court. Our court

      recently clarified this very issue in D.P. v. State, a nearly identical case handed

      down after the parties in this case submitted their briefs.5 No. 19A-JV-690,

      2019 WL 6109276, at *2, *3 (Ind. Ct. App. Nov. 18, 2019). There, the State

      had filed a delinquency petition alleging that when D.P. was sixteen years old,

      he committed an act that would constitute child molesting as a Class B felony if

      committed by an adult; the State also filed a request to waive jurisdiction to

      adult criminal court. Id. at *1. At the time the State filed its petition, D.P. was

      twenty-three years old. Id. In response, D.P. filed a motion to dismiss arguing

      that the juvenile court lacked subject matter jurisdiction over him because he

      was twenty-three years old at the time the petition was filed. Id. Specifically,

      he argued that, pursuant to Indiana Code section 31-30-1-1, the juvenile court

      has exclusive original jurisdiction over proceedings when a person is alleged to

      be a delinquent child; however, the juvenile court’s jurisdiction continues only

      until the child becomes twenty-one years old. Id. The juvenile court denied

      D.P.’s motion, finding that it had original jurisdiction because the alleged crime

      occurred when D.P. was sixteen years old and the State properly filed a




      5
        Indiana Appellate Rule 48 states, “[w]hen pertinent and significant authorities come to the attention of a
      party after the party’s brief or Petition has been filed, . . . a party may promptly file with the Clerk a notice of
      those authorities setting forth the citations.” (emphasis added). Although discretionary, we note that neither
      party availed itself of the opportunity to present this significant precedent, which would have aided in our
      review of this case.

      Court of Appeals of Indiana | Opinion 19A-JV-1659 | January 10, 2020                                     Page 6 of 9
      delinquency petition and requested waiver to adult court. Id. In its order, the

      juvenile court found,


              It would be against public policy and legislative intent . . . to
              grant [D.P.’s motion]. If the court were to grant the [motion],
              that would mean that the statute of limitations for this type of
              crime for an 18 year old suspect would be approximately 20
              years, while for a 17 year old the limitation would be 4 years –
              clearly not the intent and full reading of the statutes.


      Id. at *2. Relying on M.C. v. State, D.P. appealed and asserted that the juvenile

      court did not have subject matter jurisdiction over him due to his age. Id. The

      State argued that the juvenile court had jurisdiction to waive the case to adult

      criminal court and if the juvenile court lacked jurisdiction, the criminal court

      must have it. Id.


[9]   A panel of this court held the juvenile court had subject matter jurisdiction to

      determine whether to waive D.P. to adult court and reasoned:


              Ind. Code § 31-30-1-1 provides that “[a] juvenile court has
              exclusive original jurisdiction . . . in . . . [o]ther proceedings
              specified by law,” Ind. Code § 31-30-1-4, specifies that a juvenile
              court lacks jurisdiction over certain offenses but does not list the
              relevant allegation of child molesting as a class B felony, Ind.
              Code § 31-30-3-5, provides “[e]xcept for those cases in which the
              juvenile court has no jurisdiction in accordance with IC 31-30-1-
              4, the court shall, upon motion of the prosecuting attorney and
              after full investigation and hearing, waive jurisdiction” under
              certain circumstances. Ind. Code § 31-30-1-11, provides that if a
              court having criminal jurisdiction determines that a defendant is
              alleged to have committed a crime before the defendant is
              eighteen (18) years of age, the court shall immediately transfer

      Court of Appeals of Indiana | Opinion 19A-JV-1659 | January 10, 2020           Page 7 of 9
               the case to the juvenile court. In light of these statutory
               provisions, we conclude that the juvenile court had jurisdiction to
               determine whether D.P. should be waived to adult criminal
               court. We cannot say it was the legislature’s intent for an act that
               would constitute child molesting as a class B felony if committed
               by an adult to go entirely unpunished. See C.C. v. State, 907
               N.E.2d 556, 559 (Ind. Ct. App. 2009) (“From a common sense
               standpoint, if we were to follow C.C.’s reasoning to its illogical
               conclusion, his misdemeanor violation of the firearm statute
               would not fall within the jurisdiction of either the juvenile court
               or the adult criminal court and thus would go unpunished. We
               do not think this was the legislature’s intent.”).


       Id. at *3 (footnotes omitted). Further, the court noted that M.C. was

       distinguishable because the juvenile court did not adjudicate D.P. a delinquent

       and enter a disposition; it “merely entered an order approving the filing of the

       delinquency petition and scheduled a hearing on the motion to waive juvenile

       jurisdiction.” Id. at *3 n.2. Such is the case here.


[10]   M.C. concerned the juvenile court’s ability to adjudicate a defendant over age

       twenty-one a delinquent child and enter a disposition, 127 N.E.3d at 1178,

       whereas D.P. and this case concern the juvenile court’s ability to entertain a

       delinquency petition and waive juvenile jurisdiction, 2019 WL 6109276, at *2.

       Together M.C. and D.P. stand for the proposition that a juvenile court has

       subject matter jurisdiction to entertain a delinquency petition and waive a

       defendant to adult criminal court but does not have jurisdiction to adjudicate a

       defendant over age twenty-one a delinquent child and enter a disposition.




       Court of Appeals of Indiana | Opinion 19A-JV-1659 | January 10, 2020       Page 8 of 9
[11]   Applying that proposition here, we conclude the juvenile court in this case had

       subject matter jurisdiction to entertain the State’s delinquency petition and

       determine whether to waive N.B. to adult criminal court. The juvenile court,

       however, would not have jurisdiction to adjudicate N.B. a delinquent and enter

       a disposition.



                                               Conclusion
[12]   We conclude the juvenile court had jurisdiction to accept and entertain the

       State’s delinquency petition and determine whether N.B. should be waived to

       adult criminal court. Therefore, the juvenile court erred in granting N.B.’s

       motion to dismiss for lack of subject matter jurisdiction. Accordingly, we

       reverse the juvenile court’s judgment and remand to the juvenile court with

       instructions to rule on the State’s motion for waiver.


[13]   Reversed and remanded.


       Bradford, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 19A-JV-1659 | January 10, 2020      Page 9 of 9
