MEMORANDUM DECISION
                                                                             May 22 2015, 5:49 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be 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
Deborah Markisohn                                        Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

T.H.,                                                    May 22, 2015

Appellant-Respondent,                                    Court of Appeals Case No.
                                                         49A02-1409-JV-633
        v.                                               Appeal from the Marion Superior
                                                         Court.
State of Indiana,                                        The Honorable Marilyn Moores,
                                                         Judge.
Appellee-Petitioner                                      The Honorable Geoffrey Gaither,
                                                         Magistrate.
                                                         Cause No. 49D09-1405-JD-1319




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JV-633 | May 22, 2015           Page 1 of 6
[1]   T.H. appeals the juvenile court’s order requiring him to make restitution

      payments as a condition of probation, arguing that the evidence before the

      juvenile court establishes that he is indigent and unable to pay. The State cross-

      appeals, arguing that T.H.’s notice of appeal was untimely filed. We find as

      follows: (1) the notice of appeal was timely filed; and (2) the evidence before

      the juvenile court establishes that T.H. is indigent and unable to pay the

      restitution as ordered. Consequently, we reverse the portion of the juvenile

      court’s order requiring T.H. to make restitution payments as a condition of

      probation and remand with instructions to modify the dispositional order

      consistent with this opinion.


                                                     Facts
[2]   On May 24, 2014, fifteen-year-old T.H. drove his cousin’s car. While driving,

      he struck and damaged Patricia Anderson’s vehicle and Leon Ward’s garage.

      The amount of damage to Anderson’s vehicle totaled $3,400 to $7,000, and the

      amount of damage to Ward’s garage totaled $7,000.


[3]   On May 27, 2014, the State filed a petition alleging that T.H. committed the

      following delinquent acts: criminal recklessness, which would have been a class

      D felony had it been committed by an adult; four counts of criminal mischief,

      which would have been class A misdemeanors had they been committed by an

      adult; and driving without a license, which would have been a class C

      misdemeanor had it been committed by an adult.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JV-633 | May 22, 2015   Page 2 of 6
[4]   On July 22, 2014, T.H. and the State entered into an agreement whereby T.H.

      admitted to two allegations of criminal mischief in exchange for the dismissal of

      the remaining allegations. T.H. agreed to the imposition of probation, and the

      agreement made no mention of restitution. The juvenile court accepted the

      agreement and entered judgment accordingly.


[5]   On August 12, 2014, the juvenile court held a dispositional hearing. At the

      hearing, Anderson and Ward testified regarding their damages. T.H. testified

      that he 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 stated that he would

      be turning sixteen soon and would “try to” get a job. Tr. p. 18. T.H.’s mother

      testified that T.H. receives $700 a month in SSI disability benefits for a number

      of disabilities: “Learning disability. Speech Impairment. Communication

      disorder. It’s a list of them . . . .” Id. at 22. T.H.’s mother supports herself and

      seven children by working at Popeye’s, a fast food restaurant, and testified that

      she uses the monthly disability benefit to pay bills for the entire family.


[6]   The juvenile court found T.H. to be a delinquent child and placed him on

      supervised probation with the standard conditions of probation in place. As a

      special condition of probation, the juvenile court ordered T.H. to pay restitution

      to Anderson in the amount of $500 and to Ward in the amount of $1,000. T.H.

      now appeals.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JV-633 | May 22, 2015   Page 3 of 6
                                          I. Timeliness of Appeal
[7]   The State cross-appeals, arguing that T.H. did not file his notice of appeal in a

      timely fashion. Indiana Appellate Rule 9(A)(1) requires that a notice of appeal

      must be filed within thirty days after the entry of a final judgment. In this case,

      the magistrate’s order was issued on August 12, 2014, and T.H. filed his notice

      of appeal on September 12, 2014, thirty-one days after the entry of the

      magistrate’s order.


[8]   As T.H. notes, however, juvenile proceedings are civil in nature rather than

      criminal. E.g., K.M. v. State, 804 N.E.2d 305, 308 (Ind. Ct. App. 2004). As

      such, Indiana Code section 33-23-5-9(a)1 provides that the magistrate shall

      report its findings to the court and that it is the court, rather than the magistrate,

      that enters the final order.2


[9]   Here, the presiding magistrate entered the dispositional order on August 12,

      2014, but the presiding judge did not approve and enter the final, appealable

      order until August 14, 2014. For the purpose of Indiana Appellate Rule 9, the

      date on which the clock begins ticking is the date of the final, appealable

      order—August 14, 2014. As a result, the notice of appeal, which was filed on




      1
       Indiana Code section 35-23-5-9 was amended during the most recent legislative session, but the amendment
      does not affect the provisions relevant to this case and applies only after July 1, 2015.
      2
          In contrast, a magistrate who presides at a criminal trial may, in fact, enter a final order. I.C. § 35-23-5-9(a).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JV-633 | May 22, 2015                        Page 4 of 6
       September 12, 2014, was filed within the requisite thirty-day period. In other

       words, the appeal was timely filed. We now turn to T.H.’s arguments.


                                             II. Restitution
[10]   T.H. argues that the juvenile court erred by ordering him to make restitution

       payments as a condition of probation. An order of restitution is a matter within

       the discretion of the trial court. P.J. v. State, 955 N.E.2d 234, 235 (Ind. Ct. App.

       2011). We will reverse only upon finding an abuse of that discretion, which

       occurs when the trial court’s determination is clearly against the logic and effect

       of the facts and circumstances before the court. Id.


[11]   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. A.H. v. State, 10 N.E.3d 37, 40-41 (Ind. Ct. App. 2014), trans. denied.

       This inquiry must occur because of concerns about equal protection and

       fundamental fairness. Id.; M.L. v. State, 838 N.E.2d 525, 529 (Ind. Ct. App.

       2005). The juvenile is entitled not only to an inquiry into his ability to pay, but

       also to a modification of an existing restitution order if the court determines he

       is unable to meet its terms. T.C. v. State, 839 N.E.2d 1222, 1224-25 (Ind. Ct.

       App. 2005).


[12]   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

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JV-633 | May 22, 2015   Page 5 of 6
       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 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.


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

       to modify T.H.’s dispositional order consistent with this opinion.


       Najam, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JV-633 | May 22, 2015   Page 6 of 6
