MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Feb 11 2020, 8:51 am
court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kelly Starling                                            Curtis T. Hill, Jr.
Marion County Public Defender Agency                      Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                     J.T. Whitehead
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

A.W.,                                                     February 11, 2020
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          19A-JV-1792
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Marilyn A.
Appellee-Petitioner                                       Moores, Judge
                                                          The Honorable Geoffrey A.
                                                          Gaither, Magistrate
                                                          Trial Court Cause No.
                                                          49D09-1902-JD-146



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020                  Page 1 of 12
                                             Case Summary
[1]   Sixteen-year-old A.W. was adjudicated delinquent for conduct amounting to

      level 5 felony robbery if committed by an adult. He now appeals, claiming that

      the trial court erred in granting the State’s oral motion for continuance and in

      ordering his placement in the Indiana Department of Correction (“DOC”). We

      affirm.


                                  Facts and Procedural History
[2]   A.W. was born in November 2002. At age three, he lost his father, who was

      killed in a police shooting. He was raised by his mother, with assistance from

      his grandparents. By age sixteen, he had accumulated ten delinquency

      referrals, some of which involved multiple allegations of delinquent behavior.

      A.W.’s referrals began at age twelve, when he was adjudicated delinquent for

      truancy. At ages fourteen and fifteen, he had two true findings for conduct

      amounting to level 5 felony battery resulting in bodily injury to a public safety

      officer, one for level 6 felony receiving stolen auto parts, one for level 6 felony

      escape, and one for class A misdemeanor battery resulting in bodily injury, all if

      committed by an adult. At age sixteen, he faced three different referrals that

      ultimately resulted in four true findings, one for conduct amounting to level 6

      felony escape, one for conduct amounting to level 6 felony resisting law

      enforcement, one for conduct amounting to class C misdemeanor operating a

      motor vehicle without ever receiving a license, all if committed by an adult, and

      the present cause, which resulted in a true finding for conduct amounting to

      level 5 felony robbery if committed by an adult.

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020   Page 2 of 12
[3]   The facts underlying A.W.’s true finding for robbery are as follows. On

      December 16, 2018, Jasmine Burch pushed her eighty-year-old, wheelchair-

      bound mother, Janja Jordan, into an Indianapolis discount store. When the

      two were between the double entrance doors, an assailant later identified as

      A.W. grabbed the elderly Jordan’s purse, which she had on her lap, clutched in

      her left hand. A.W. ran out the front entrance, and Burch chased him outside.

      A.W. eventually dropped the purse as well as a cell phone. Police obtained a

      search warrant for the phone and ascertained that it belonged to A.W.’s

      mother. Jordan suffered injury to her left hand, on which she had recently had

      surgery. Burch positively identified A.W. from a photo array, and A.W. was

      taken into custody.


[4]   The State charged A.W. with a delinquent act that would amount to level 5

      felony robbery if committed by an adult. A.W. was released on electronic

      monitoring on February 12, 2019. Two weeks later, he removed his electronic

      monitoring device, and his whereabouts were unknown. He eventually was

      apprehended, detained, and charged in another cause (“Cause 215”) with a

      delinquent act amounting to level 6 felony escape if committed by an adult.

      The trial court set a factfinding hearing for May 23, 2019, for the current cause,

      Cause 215, and a third cause (“Cause 467”). 1




      1
        Cause 467 involved five alleged acts of delinquency against A.W., three of which were dismissed and two
      of which resulted in true findings: one for conduct amounting to level 6 felony resisting law enforcement and
      the other for conduct amounting to class C misdemeanor operating a motor vehicle without ever having
      received a license, if committed by an adult.

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020                Page 3 of 12
[5]   On May 23, the State requested a continuance in the current cause and Cause

      467. Cause 215 was litigated that day and resulted in a true finding against

      A.W. for escape. The State’s oral request for continuance in the current cause

      was due to the absence of Jordan, the victim. The State explained that Jordan

      had notified the prosecutor’s office the day before that she would not be able to

      attend the factfinding hearing because her husband had been diagnosed with

      cancer. The prosecutor stated that she believed that she could procure Jordan’s

      attendance with a continuance of about a week. A.W. objected, requested that

      the court require the State to submit its motion in writing as required by statute,

      and requested a discharge. The trial court did not order the State to submit a

      written motion and instead granted its motion for continuance. At the June 25,

      2019 factfinding hearing in the current cause, A.W. renewed his request for

      discharge, and the prosecutor explained in greater detail the circumstances that

      precipitated Jordan’s absence from the May 23 hearing. The trial court denied

      A.W.’s motion for discharge, conducted the hearing, and entered a true finding

      for conduct amounting to level 5 felony robbery if committed by an adult.


[6]   The trial court conducted a dispositional hearing and, due largely to A.W.’s

      lengthy history of true findings and of violating less restrictive placements,

      placed A.W. in the DOC until age twenty-one, with a recommendation of a six-

      month term. A.W. now appeals. Additional facts will be provided as

      necessary.




      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020   Page 4 of 12
                                     Discussion and Decision

          Section 1 – We find no reversible error in the trial court’s
              grant of the State’s oral motion for continuance.
[7]   A.W. contends that the trial court committed reversible error in granting the

      State’s oral motion for continuance. Rulings on non-statutory motions for

      continuance lie within the trial court’s discretion and will be reversed only for

      an abuse of that discretion and resulting prejudice. Barber v. State, 911 N.E.2d

      641, 645-46 (Ind. Ct. App. 2009). Where, as here, a statute governs the grant or

      denial of a continuance, we apply a de novo standard, interpreting the language

      of the statute. Day v. State, 57 N.E.3d 809, 811 (Ind. 2016).


[8]   Indiana Code Section 31-37-11-8 governs circumstances in which a juvenile

      seeks discharge and the State seeks a continuance due to the absence of a

      witness:


              (a) If a child moves for discharge, the prosecuting attorney may
              move for a continuance of the factfinding hearing or waiver
              hearing because of the absence of a witness if the prosecuting
              attorney makes an official statement:


              (1) setting forth the name and address of the witness if known;


              (2) indicating the probability of procuring the witness’s testimony
              within a reasonable time;


              (3) showing that the absence of the witness has not been procured
              by the act of the prosecuting attorney;



      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020   Page 5 of 12
               (4) stating the facts to which the prosecuting attorney believes the
               witness will testify and the prosecuting attorney’s belief that the
               facts are true; and


               (5) stating that the prosecuting attorney is unable to prove the
               facts specified under subdivision (4) through the use of any other
               witness whose testimony may be as readily procured.


               (b) Upon the child’s request, the court shall order that the
               prosecuting attorney’s motion and official statement be made in
               writing.


       (Emphasis added.)


[9]    The highlighted portion of the statute indicates that its language is mandatory

       rather than discretionary. See Taylor v. State, 7 N.E.3d 362, 365 (Ind. Ct. App.

       2014) (“It is well settled that the use of the word ‘shall’ is construed as

       ‘mandatory language creating a statutory right to a particular outcome after

       certain conditions are met.’”) (quoting Alden v. State, 983 N.E.2d 186, 189 (Ind.

       Ct. App. 2013), trans. denied). A.W. objected to the State’s oral motion to

       continue, requested a discharge, and requested that the court order the State to

       submit the motion in writing. The trial court was required by statute to order

       the State to submit its motion in writing and erred when it failed to do so.


[10]   The State contends that any error in this regard is harmless. Harmless error is

       error that does not affect the substantial rights of a party. Camm v. State, 908

       N.E.2d 215, 225 (Ind. 2009). The May 23 factfinding hearing involved three

       separate causes against A.W. The present cause and Cause 467 were continued

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020   Page 6 of 12
       as a result of the State’s oral motion. The remaining cause, Cause 215, was

       heard that day and resulted in a true finding for escape. Having been found

       true, A.W. was detained in that cause, not as a result of the continuance in the

       present cause or Cause 467.


[11]   Moreover, the continued factfinding hearing was ultimately commenced within

       the statutorily prescribed period. See Ind. Code § 31-37-11-9 (requiring court to

       commence continued factfinding hearing within ninety days; court shall

       discharge the juvenile if it does not do so within ninety days). Here, the

       prosecutor verbally requested a continuance due to Jordan’s absence at the

       beginning of the May 23 factfinding hearing. At that time, the prosecutor

       indicated her belief that she could secure Jordan’s attendance with a

       continuance of about one week. The hearing ultimately was commenced thirty-

       three days after the grant of the continuance, well within the statutory limit.

       Additionally, we note that of the five items of information that must be

       included in a written motion for continuance, per Indiana Code Section 31-37-

       11-8(a), Jordan’s address appears to be the only one missing from the

       prosecutor’s oral motion. A.W. was well aware of Jordan’s identity and has

       not demonstrated prejudice regarding the lack of a written motion containing

       her address. The prosecutor’s explanation that the elderly Jordan had notified

       her by phone the previous day she would not be able to attend the factfinding

       hearing because her husband had been diagnosed with cancer is sufficient to

       show that the prosecutor did not procure Jordan’s absence. The prosecutor also

       indicated that she believed that she could secure Jordan’s participation within a


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020   Page 7 of 12
       reasonable time. In short, A.W. has failed to demonstrate prejudice resulting

       from the trial court’s failure to order the State to submit its continuance motion

       in writing. As such, the error was harmless.


             Section 2 – The trial court acted within its discretion in
                    ordering A.W.’s placement in the DOC.
[12]   A.W. also asserts that the trial court abused its discretion in ordering his

       placement in the DOC. The disposition of a juvenile adjudicated a delinquent

       is a matter committed to the trial court’s discretion, subject to the statutory

       considerations of the child’s welfare, community safety, and the policy favoring

       the least harsh disposition. J.S. v. State, 110 N.E.3d 1173, 1175 (Ind. Ct. App.

       2018), trans. denied (2019). We review a trial court’s disposition for an abuse of

       discretion, which occurs if the decision is clearly against the logic and effect of

       the facts and circumstances before it or the reasonable inferences that may be

       drawn therefrom. Id. In determining whether a trial court has abused its

       discretion, we neither reweigh evidence nor judge witness credibility. Id.


[13]   The crux of A.W.’s argument is that the trial court chose the harshest

       placement option when less restrictive alternatives were available. Juvenile

       court proceedings are civil, not criminal, in nature. Id. “[T]he goal of the

       juvenile process is rehabilitation so that the youth will not become a criminal as

       an adult.” Id. at 1175-76 (quoting R.H. v. State, 937 N.E.2d 386, 388 (Ind. Ct.

       App. 2010)). Thus, juvenile courts have a variety of placement choices.

       Indiana Code Section 31-37-18-6 reads,



       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020   Page 8 of 12
               If consistent with the safety of the community and the best
               interest of the child, the juvenile court shall enter a dispositional
               decree that:

               (1) is:


               (A) in the least restrictive (most family like) and most appropriate
               setting available; and


               (B) close to the parents’ home, consistent with the best interest
               and special needs of the child;


               (2) least interferes with family autonomy;


               (3) is least disruptive of family life;


               (4) imposes the least restraint on the freedom of the child and the
               child’s parent, guardian, or custodian; and


               (5) provides a reasonable opportunity for participation by the
               child’s parent, guardian, or custodian.


[14]   Indiana Code Section 31-37-18-9(a) requires the trial court to state its reasons

       for the disposition chosen. This involves the trial court’s issuance of written

       findings and conclusions concerning the child’s care, treatment, rehabilitation,

       or placement; parental participation in the plan; efforts made to prevent the

       child’s removal from the parent; family services offered; and the court’s reasons

       for its disposition. Ind. Code § 31-37-18-9(a)(1)-(5).




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020   Page 9 of 12
[15]   Here, the trial court’s findings indicate its consideration of the statutory factors

       and its reasons for ordering A.W.’s placement in the DOC. For example, by

       age sixteen, A.W. had accumulated ten delinquency referrals, the recitation of

       which comprises a significant portion of the dispositional order. The nature of

       his delinquent conduct has been serious and sometimes violent. For example,

       his record includes two true findings for conduct amounting to level 5 felony

       battery with injury to a public safety official if committed by an adult. He has

       four true findings for conduct amounting to a level 6 felony if committed by an

       adult, i.e., resisting law enforcement, receiving stolen property, and escape, and

       two for misdemeanor level conduct. Most of his previous dispositions were

       modified due to his commission of each new offense. He had two additional

       causes pending in addition to the current delinquency petition, and those causes

       resulted in two felony true findings and one misdemeanor true finding. The

       trial court emphasized that less restrictive placements of home care and

       placement outside the home at Youth Outlook and Options had already been

       tried and had proven unsuccessful. Appealed Order at 4-5; see also Tr. Vol. 2 at

       115 (court’s emphasis at dispositional hearing that DOC was only option not

       yet tried and DOC would provide structure, security, separation, and

       programming).


[16]   A.W. points to his high level of family support as evidence that he deserves

       another chance at community and structured home placement. Our review of

       the record leaves no doubt as to his family’s strong support. At the

       dispositional hearing, various family members pled for mercy on A.W.’s behalf


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020   Page 10 of 12
       and testified concerning their love and support for him throughout his

       childhood, with particular emphasis on his father’s death when he was just

       three years old. However, the number and recent escalation of A.W.’s

       delinquency referrals indicate that the family’s efforts, well-meaning though

       they are, have failed to produce more positive results for A.W.


[17]   A.W. also relies on psychologist Dr. Jim L. Dalton’s report as support for a less

       restrictive placement. Dr. Dalton reported that A.W.’s mental status and

       presentation had improved since his previous evaluation in 2017. Respondent’s

       Ex. B. However, Dr. Dalton ultimately found that A.W. was an “increasing

       delinquency risk,” had a longstanding “penchant toward elopement,” and

       presents “some danger to others as he has been willing to violate the rights of

       others for his own personal gain.” Id. Dr. Dalton explained that because A.W.

       “appears to present risks to the community, it is difficult to support another try

       at community-based services. Especially given the increase in antisocial interest

       and trajectory for this young man.” Id. He ultimately concluded that the

       “updated assessment findings would support commitment to the [DOC].” Id.


[18]   Simply put, the trial court did not choose the most restrictive placement in a

       vacuum, but rather made a measured decision representing “the least restrictive

       and most appropriate setting” based on A.W.’s history, community safety, and

       A.W.’s best interest. Appealed Order at 4. Based on the foregoing, we

       conclude that the trial court acted within its discretion in ordering A.W.’s

       placement in the DOC. Accordingly, we affirm.



       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020   Page 11 of 12
[19]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020   Page 12 of 12
