                                                                                  Oct 08 2013, 5:25 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:

ERNEST P. GALOS                                     GREGORY F. ZOELLER
Public Defender                                     Attorney General of Indiana
South Bend, Indiana
                                                    KARL M. SCHARNBERG
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

D.H.,                                               )
                                                    )
        Appellant-Respondent,                       )
                                                    )
               vs.                                  )      No. 71A03-1304-JV-137
                                                    )
STATE OF INDIANA,                                   )
                                                    )
        Appellee-Petitioner.                        )


                     APPEAL FROM THE ST. JOSEPH PROBATE COURT
                            The Honorable James N. Fox, Judge
                              Cause No. 71J01-1204-JD-182



                                         October 8, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge
       D.H. admitted to the commission of a delinquent act that would constitute Class B

felony robbery1 if committed by an adult. D.H. appeals from his dispositional order

contending that it is inappropriate and violates Article I, Section 23 of the Indiana

Constitution and that the juvenile court erred in failing to grant him credit time.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       The facts supporting D.H.’s adjudication are that around 8:40 p.m. on April 9, 2012,

D.H., who was fifteen years old at the time, walked into a Family Dollar store in Mishawaka,

Indiana. D.H. spoke to the cashier, Diane Brady (“Brady”), and asked her if the store carried

“Dickie” t-shirts. Brady informed him that they carried Hanes t-shirts and directed him to the

appropriate aisle of the store where they were located. A few minutes later, D.H. came up to

the register carrying a home pregnancy test box and asked Brady how one administers the

test. After Brady had explained the procedure, she bent to retrieve one of the tests from

behind the counter. D.H. stated, “I’m not gonna pee on it.” Appellant’s App. at 248.

       When Brady looked up, she saw that D.H. had aimed a pistol at her. D.H. demanded

the money from the register, stating: “Give me all your money now or I swear on my

momma I’ll start shooting.” Id. Brady then called her manager over to open the register.

D.H. said: “You got five seconds to get that drawer open or I swear on my momma I’ll start

shooting.” Id. The drawer was opened, and D.H. was given the money. He then ran out of

the store and headed westbound in a car.


       1
           See Ind. Code § 35-42-5-1.

                                              2
       Police officers intercepted the car that D.H. was driving as D.H. traveled westbound at

a high rate of speed not far from the store. D.H. was in the car with two other individuals.

Brady was transported to the scene of the traffic stop where she identified D.H. as the person

who robbed her store. A handgun and a large sum of cash were found in the pocket of a

jacket in the vehicle near the driver’s seat. A check of the license plate of the vehicle

revealed that the car had been reported stolen during a carjacking incident in Indianapolis.

       At his initial hearing, D.H. admitted that he had committed the robbery. The juvenile

court entered an order committing D.H. to the Department of Correction (“DOC”) for a

determinate sentence of two years. Because the juvenile court failed to inform D.H. of his

right to appeal, D.H.’s petition to have the judgment set aside was granted.

       A second dispositional hearing was held on March 20, 2013, at which D.H. was again

committed to the DOC for a two-year determinate term. At the second dispositional hearing,

on March 20, 2013, D.H. presented his mother’s testimony about her efforts to have D.H.

placed at the Damar Charter Academy in the Indianapolis area. She further testified that

Cummins Behavioral systems could handle D.H.’s medication needs. D.H.’s mother had also

investigated the possibility of placing D.H. at Resource Residential Treatment Facility, a

facility that had been willing to accept D.H. at the time of his first dispositional hearing.

However, none of the options his mother mentioned were immediately available. The

juvenile court again committed D.H. to the DOC for a two-year determinate term and

awarded him credit for the time spent in the DOC between his first dispositional hearing and

the second hearing. D.H. now appeals.


                                              3
                              DISCUSSION AND DECISION

       D.H. claims that the juvenile court abused its discretion by placing him in the DOC for

a determinate sentence of two years instead of an alternative placement outside of the DOC.

A juvenile court’s choice of the specific disposition of a juvenile adjudicated a delinquent

child is a matter left to the sound discretion of the juvenile court. J.S. v. State, 881 N.E.2d

26, 28 (Ind. Ct. App. 2008). We will reverse the juvenile court’s dispositional order only if

the juvenile court has abused its discretion. Id. A juvenile court abuses its discretion when

its action is clearly erroneous and against the logic and effect of the facts and circumstances

before the juvenile court or the reasonable, probable, and actual inferences that can be drawn

therefrom. C.C. v. State, 831 N.E.2d 215, 217 (Ind. Ct. App. 2005). “Hence, the juvenile

court is accorded wide latitude and great flexibility in its dealings with juveniles.” J.S., 881

N.E.2d at 28.

       The juvenile court’s discretion is subject to three statutory considerations: 1) the

welfare of the child; 2) the safety of the community; and 3) the policy of favoring the least

harsh disposition. Id. Indiana Code section 31-37-18-6 provides that the least restrictive

placement of the juvenile is required only if it is consistent with the “safety of the community

and the best interest of the child. . . .” “To aid juvenile court judges, the legislature has put at

their disposal ‘a myriad of dispositional alternatives to fit the unique and varying

circumstances of each child’s problems.’” N.D.F. v. State, 775 N.E.2d 1085, 1089 (Ind.

2002) (quoting Madaras v. State, 435 N.E.2d 560, 561 (Ind. 1982)). With that flexibility in

mind, and guided by the overarching purpose of rehabilitation in the juvenile justice system,


                                                 4
the legislature enacted the juvenile determinate sentencing statute, which is a statutory

recognition that “[i]n some instances, confinement may be one of the most effective

rehabilitative techniques available.” Id. (quoting Madaras v. State, 425 N.E.2d at 672)).

D.H. contends, however, that his determinate sentence in the DOC is not an effective

rehabilitative technique for him.

       Here, D.H. had been released early from a commitment to the DOC for just two

months before he aimed a loaded handgun at an employee of a Family Dollar store,

demanded money, and threatened to kill her, and potentially others in the store. The conduct

that had led to his prior commitment in the DOC was an act that would constitute carjacking.

While committed to the DOC, D.H. had worked through his growth plan to a level four,

leading to a modification of his placement. Similarly, in his latest placement, D.H. had

worked his way to level four in his growth plan at the DOC.

       D.H. argues that his ability to attain such growth in the DOC “had reached a

maximum level of help” and that he “was surrounded by people that had no intention of

reformation and would only corrupt him.” Appellant’s Br. at 13. To the extent that D.H.’s

argument suggests that he has received the complete benefits of resources available through

the DOC, we disagree. Even after previously achieving a favorable growth level through the

structure of the DOC, once removed from the DOC structure, D.H. pointed a loaded handgun

at a store employee in order to steal money, threatening to kill her if his demand was not met.

Furthermore, D.H.’s characterization of his demotion, just prior to the second dispositional

hearing, from growth level four to growth level three, as illustrative of something that “was


                                              5
unfortunate, but also reflects D.H.’s frustration” is likewise unpersuasive. Id. at 12.

       D.H.’s behavioral choices demonstrate the difficulty he has maintaining good

behavior in a highly structured environment and that he is unlikely to conform his behavior in

a less-structured environment. D.H.’s behavior outside the DOC has led to criminal behavior

escalating from thefts and runaways, to carjacking and now armed robbery. D.H. was on

probation when he committed his most recent offense, the last of a history of offenses

totaling seventeen delinquency referrals and four prior adjudications; one for criminal

conversion, two for theft, and one for carjacking. The juvenile court reached an appropriate

disposition in light of D.H.’s welfare and the safety of the community.

       D.H. also asserts that the juvenile court erred by failing to award him credit for time

served prior to the entry of any dispositional order. The State asserts, and we agree, that this

issue has been resolved contrary to D.H.’s position by our Supreme Court in J.D. v. State,

853 N.E.2d 945 (Ind. 2006). In that case a similar argument was presented and rejected as

follows:

       We believe that the inherent differences between the juvenile delinquency and
       adult criminal justice systems dictate that a juvenile offender is not entitled to
       credit for time served in detention prior to sentencing. A key feature of the
       Juvenile Code is the broad range of alternatives a juvenile court judge has
       available once a child has been found by the court to be “a delinquent child,”
       i.e., to have committed an act that would be a crime if committed by an adult.
       In the vocabulary of the Juvenile Code, these alternatives are called
       “dispositions” and the judge enters a “dispositional decree” (rather than a
       sentencing order). In its dispositional decree, depending upon the
       circumstances of the particular case, the court can, e.g., order supervision of
       the child by the probation department, order “wardship” of the child to the
       Department of Correction (“DOC”), or order confinement in a juvenile
       detention center, as well as order various other sanctions and treatment. See


                                               6
       Ind. Code §§ 31–37–19–5, 31–37–19–6, 31–37–19–8, 31–37–19–9 & 31–37–
       19–10 (2004).

853 N.E.2d at 947.

       Our review of the transcript of the sentencing hearing reveals the following exchange

between the parties and the juvenile court:

       THE COURT:           Sure. My order will indicate that he should receive
                            absolute credit for all the time he’s had; that even though
                            it’s a two[-]year sentence, that he’s already got 7 months
                            in, so I think everybody standing here understands that
                            it’s a one year and five months sentence at this point. Is
                            that fair enough? I don’t think anyone sees it
                            different[ly] than that.

       MR. GALOS:           The fact is, Your Honor, if you give him credit for all the
                            time he’s been in the JJC also, I mean it’s essentially I
                            think just a little over a year then in reality.

       MR. RAPER:           I think, Your Honor, what we’d be talking about is from
                            the date of disposition. It would be from August 17.

       MR. GALOS:           From disposition it’s not 215 days. He had 134 days in
                            prior to that also, so I didn’t know if that was going to be
                            counted toward--.

Tr. at 30.

       D.H. claims that he should be given credit time because he was given more than the

maximum allowable determinate sentence. See Ind. Code § 31-37-19-10(b) (“A court may

place the child in a facility authorized under this chapter for no more than two (2) years.”).

D.H.’s original dispositional hearing was on August 17, 2012. After that disposition was

entered, and subsequently overturned, a second dispositional hearing was held. At that

hearing, the juvenile court awarded D.H. credit for the time he spent in the DOC between his


                                              7
first, now overturned, dispositional hearing and the second hearing, a period of roughly seven

months. His birthday is June 7, 1996, and he will turn eighteen years old on June 7, 2014, or

forty days before he would have served a full two years on his determinate sentence. Under

the holding in J.D., the juvenile court could not award D.H. credit for the time he was

detained prior to his first dispositional hearing on August 17, 2012. However, the juvenile

court could, and did, give D.H. credit for the seven months he was confined between

dispositional hearings. Thus, D.H. has failed to establish juvenile court error here, as his

maximum, dispositional sentence did not exceed two years.

         D.H. further argues that D.H.’s inability to receive credit for pre-disposition

confinement constitutes disparate treatment in violation of Article I, Section 23 of the Indiana

Constitution. Article I, Section 23 provides that “The General Assembly shall not grant to

any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall

not equally belong to all citizens.” He argues that since an adult convicted of a crime is

granted credit for time served in confinement before sentencing, the same privilege should be

accorded to a juvenile who commits an offense that would be a crime if committed by an

adult.

         “When considering the constitutionality of a statute, we begin with the presumption of

constitutional validity, and therefore the party challenging the statute labors under a heavy

burden to show that the statute is unconstitutional.” Person v. State, 661 N.E.2d 587, 592

(Ind. Ct. App. 1996). “Notwithstanding that the privileges and immunities cases brought

under Section 23 have often assimilated federal equal protection analysis, we are under no


                                               8
obligation to follow Fourteenth Amendment jurisprudence in resolving a Section 23 issue.”

Collins v. Day, 644 N.E.2d 72, 75 (Ind. 1994). Our Supreme Court has concluded that “there

is no settled body of Indiana law that compels application of a federal equal protection

analytical methodology to claims alleging special privileges and immunities under Indiana

Section 23 and that Section 23 should be given independent interpretation and application.”

Id.   Where statutes appear to unequally burden two classes of people, here, adults and

juveniles, the Supreme Court has explained the following requirements under the Indiana

Constitution:

       First, the disparate treatment accorded by the legislation must be reasonably
       related to inherent characteristics which distinguish the unequally treated
       classes. Second, the preferential treatment must be uniformly applicable and
       equally available to all persons similarly situated. Finally, in determining
       whether a statute complies with or violates Section 23, courts must exercise
       substantial deference to legislative discretion.

Id. at 80.

       Looking to the first requirement, we conclude that Indiana Code section 31-37-19-10

applies to all juveniles who possess two prior felony-level adjudications and who commit

certain offenses. The absence of a statutory provision awarding pre-disposition credit is

applicable to all juveniles in every case. Furthermore, juvenile proceedings are unlike

criminal proceedings because they are civil in nature. J.V. v. State, 766 N.E.2d 412, 414

(Ind. Ct. App. 2002). An act of juvenile delinquency is not a crime. Id. Nonetheless, the

State bears the burden of proving the delinquent act beyond a reasonable doubt in order to

obtain a true finding. Id. at 415. “As such, the statutory scheme for dealing with minors who

commit crimes is vastly different from the statutory scheme directed to adults who commit

                                             9
crimes. . . . This policy is consistent with the State’s primary interest in rehabilitation, rather

than the punishment of juvenile delinquents.” J.C.C. v. State, 897 N.E.2d 931, 935 (Ind.

2008).

         In J.D., our Supreme Court quoted from its opinion in In re Tina T., 579 N.E.2d 48, 61

(Ind. 1991), another appeal challenging certain juvenile code provisions as unconstitutional,

as follows:

         Unlike the [adult] criminal justice system, where a defendant serves a finite
         sentence and can anticipate release upon a day certain, a ward of the juvenile
         court remains under the court’s continuing jurisdiction until he reaches the age
         of majority, the court discharges the ward in the exercise of its discretion, or
         guardianship is awarded by the court to the Department of Corrections. I.C.
         31–6–2–3. Rather than a determinate term of imprisonment which can be
         shortened by good time credit, the continuous judicial oversight of a ward
         under the jurisdiction of the juvenile court extends over a variety of settings
         and can be terminated at any point at which the court determines that it is no
         longer necessary or appropriate. Even if the ward is committed to Boys or
         Girls School and guardianship is awarded to the Department of Corrections,
         appellees themselves point out that such commitment does not necessarily
         extend until the juvenile reaches the age of majority, but may be terminated
         upon the determination of the DOC that a less restrictive placement has
         become appropriate.

853 N.E.2d at 948. The Supreme Court further concluded “that the enactment of these

‘determinate sentencing’ provisions” affected the holding that juveniles should not be

awarded credit time for pre-dispositional confinement. Id. at 949. We reject this aspect of

D.H.’s argument along this vein.

         D.H. claims that by being denied credit time for pre-dispositional confinement he is

being treated more harshly than if he were an adult. We are unpersuaded by this argument

because an adult who committed robbery while armed with a handgun, who had two prior


                                                10
unrelated felony convictions, and who was on probation at the time of the commission of the

offense, would be subject to a minimum of six years executed in the DOC, and up to a

maximum of fifty years executed in the DOC. Ind. Code §35-42-5-1; Ind. Code §§ 35-50-2-5

& 8. Thus, if D.H. had been subject to adult criminal proceedings, he would not have

received a sentence of two years and ninety-four days in the DOC. He would have had to

have been confined pre-disposition for four years before it would be possible for an adult to

receive such a sentence as D.H. received.

       This would be so for any juvenile found delinquent for committing what would be

Class B felony robbery and who had two prior felony-equivalent adjudications. A juvenile

would have to have his disposition no later than his sixteenth birthday in order to receive a

full two-year disposition. That, coupled with the four years of pre-disposition confinement

necessary to make the sentences equal, would mean that only juveniles less than twelve years

of age could be in such a position. However, twelve-year-olds are not eligible for

determinate sentencing. Ind. Code § 31-37-19-9. Every offense eligible for determinate

sentencing in the juvenile context, would relate to a Class B felony offense or higher if

committed by an adult. Accordingly, there are no set of juveniles who could be treated as

harshly as the most leniently treated adult in the same situation. We conclude that there was

no constitutional violation in the dispositional order entered in D.H.’s adjudication.

       Affirmed.

ROBB, C.J., and RILEY,J., concur.




                                             11
