                                                                             FILED
                                                                        Feb 13 2019, 8:34 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.                                         Joel M. Schumm
Attorney General of Indiana
                                                            Riley L. Parr
Justin F. Roebel                                            Certified Legal Intern
Supervising Deputy Attorney General                         Appellate Clinic
Indianapolis, Indiana                                       Indiana University
                                                            McKinney School of Law
                                                            Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                           February 13, 2019
Appellant-Petitioner,                                       Court of Appeals Case No.
                                                            18A-JV-1608
        v.                                                  Appeal from the Vigo Circuit
                                                            Court
D.R.,                                                       The Honorable Sarah K. Mullican,
Appellee-Respondent.                                        Judge
                                                            The Honorable Daniel W. Kelly,
                                                            Magistrate
                                                            Trial Court Cause No.
                                                            84C01-1804-JD-417



Sharpnack, Senior Judge.




Court of Appeals of Indiana | Opinion 18A-JV-1608 | February 13, 2019                            Page 1 of 14
                                       Statement of the Case
[1]   The State filed a petition alleging that D.R. is a juvenile delinquent. The State

      also moved the juvenile court to waive jurisdiction over D.R. and transfer the

      case to criminal court. The court denied the State’s motion. In this

      discretionary interlocutory appeal, the State asks this Court to determine that

      the juvenile court should have waived jurisdiction over D.R. D.R. cross-

      appeals, requesting dismissal of the State’s appeal. We deny D.R.’s request to

      dismiss the appeal and affirm the judgment of the juvenile court.


                                                      Issues
[2]   The State raises one issue, which we restate as: whether the juvenile court

      abused its discretion in denying the State’s request to waive juvenile jurisdiction

      over D.R. On cross-appeal, D.R. argues that the State has no authority to seek

      discretionary interlocutory review of a juvenile court’s refusal to waive

      jurisdiction over a juvenile.


                                Facts and Procedural History
[3]   We set forth the facts as alleged in the probable cause affidavit and at the

      evidentiary hearing on the State’s motion to waive jurisdiction, keeping in mind

      that the juvenile court has not yet held a final hearing on the merits of the

      State’s case. On April 6, 2018, an officer was dispatched to investigate an

      automobile accident in Vigo County. One of the drivers, Regina Hair, was

      trapped in her vehicle, unconscious. She died later that day.



      Court of Appeals of Indiana | Opinion 18A-JV-1608 | February 13, 2019       Page 2 of 14
[4]   Seventeen-year-old D.R., who was standing near his vehicle with another

      minor, stated that he had also been involved in the accident. He told the officer

      that he was driving when he crossed the center line and struck Hair’s car head-

      on. A witness at the scene stated that D.R. had passed him on a double-yellow

      line at a high rate of speed prior to the accident. The witness “suspected” that

      D.R. had been racing another vehicle that had also passed him. Tr. p. 57.


[5]   D.R. had dilated pupils and bloodshot eyes, but a portable breath test showed

      .000% blood alcohol content. D.R.’s passenger told an officer that D.R. had

      smoked marijuana earlier that day. Emergency medical personnel transported

      D.R. to a hospital for treatment. Hospital personnel tested D.R.’s urine and

      discovered the presence of marijuana. Later in the evening, an assessment

      worker with the Vigo County Department of Child Services (DCS) performed a

      drug screen on D.R., and the screen showed 3.3 nanograms of THC in his

      blood. The DCS employee characterized the result as “low level.” Id. at 40.


[6]   The State took D.R. into custody after he was released from medical care. On

      April 10, 2018, the State filed a petition alleging D.R. was a delinquent child.

      The State claimed D.R. had committed acts that, if committed by an adult,

      would have amounted to the offenses of reckless homicide, a Level 5 felony;

      and operating a vehicle with a controlled substance or its metabolite in the

      person’s blood resulting in death, a Level 5 felony. The State also filed a

      motion for waiver of juvenile court jurisdiction. The court determined there

      was probable cause to detain D.R. D.R., by counsel, requested a psychological

      evaluation, and the court granted his request.

      Court of Appeals of Indiana | Opinion 18A-JV-1608 | February 13, 2019    Page 3 of 14
[7]    On May 24, 2018, the juvenile court held a hearing on the State’s motion to

       waive jurisdiction. That same day, the court denied the motion, concluding

       “the minor has proven by a preponderance of the evidence that waiver of

       juvenile jurisdiction would not be in the best interests of the minor and the

       safety and welfare of the community.” Appellant’s App. Vol. 2, p. 44.


[8]    The State filed a motion to correct error. On June 6, 2018, the juvenile court

       denied the State’s motion to correct error, reaffirming that “the presumption in

       favor of waiver has been overcome.” Id. at 55. The court later ordered D.R. to

       be placed in a residential treatment facility pending disposition of the case and,

       at D.R.’s request, further ordered that he be enrolled in a high school

       equivalency program while at the facility.


[9]    Next, the State filed a motion to certify orders for interlocutory appeal. The

       juvenile court granted the motion, and the State asked this Court to accept

       jurisdiction over the appeal. On August 3, 2018, this Court’s motions panel

       accepted the appeal.


                                      Discussion and Decision
                          I. Cross-Appeal - Appellate Jurisdiction
[10]   We first address D.R.’s cross-appeal claim. D.R. argues that the State lacks the

       authority to seek interlocutory review of the juvenile court’s denial of a motion

       to waive jurisdiction. Whether the State may appeal the court’s order is a

       question of law. State v. I.T., 4 N.E.3d 1139, 1142 (Ind. 2014). We review the

       court’s decision de novo. Id.

       Court of Appeals of Indiana | Opinion 18A-JV-1608 | February 13, 2019     Page 4 of 14
[11]   It is well established that the State may appeal only when authorized by statute.

       Id. Indiana Code section 35-38-4-2 (2015) governs the State’s right to appeal in

       criminal cases. In State v. I.T., the Indiana Supreme Court applied that statute

       to a juvenile proceeding. 4 N.E.3d at 1142. We will do the same, keeping in

       mind that the State’s statutory right of appeal contravenes common law

       principles and must be strictly construed. State v. Holland, 273 Ind. 284, 286,

       403 N.E.2d 832, 833 (1980). At the same time, when a statute is unambiguous

       we merely apply its plain language, and we will not “expand or contract” the

       meaning of a statute by adding language that the legislature did not provide.

       Grody v. State, 257 Ind. 651, 659, 278 N.E.2d 280, 285 (1972).


[12]   Indiana Code section 35-38-4-2 provides:


               Appeals to the supreme court or to the court of appeals, if the
               court rules so provide, may be taken by the state in the following
               cases:


               (1) From an order granting a motion to dismiss one (1) or more
               counts of an indictment or information.


               (2) From an order or judgment for the defendant, upon the
               defendant’s motion for discharge because of delay of the
               defendant’s trial not caused by the defendant’s act, or upon the
               defendant’s plea of former jeopardy, presented and ruled upon
               prior to trial.


               (3) From an order granting a motion to correct errors.


               (4) Upon a question reserved by the state, if the defendant is
               acquitted.
       Court of Appeals of Indiana | Opinion 18A-JV-1608 | February 13, 2019        Page 5 of 14
                (5) From an order granting a motion to suppress evidence, if the
                ultimate effect of the order is to preclude further prosecution of
                one (1) or more counts of an information or indictment.


                (6) From any interlocutory order if the trial court certifies and the
                court on appeal or a judge thereof finds on petition that:


                (A) the appellant will suffer substantial expense, damage, or
                injury if the order is erroneous and the determination thereof is
                withheld until after judgment;


                (B) the order involves a substantial question of law, the early
                determination of which will promote a more orderly disposition
                of the case; or


                (C) the remedy by appeal after judgment is otherwise
                inadequate.1


[13]   Indiana Code section 35-38-4-2(6) does not place any limits on the types of trial

       court orders that may be appealed. We should not read restrictions into the
                                                              2
       statute where none are explicitly stated.


[14]   Further, we note that if the State may not seek interlocutory review of a juvenile

       court’s decision to deny waiver of jurisdiction, then such a denial may be




       1
        The legislature added subsection (6) in 1983. Prior to that, the State could not take interlocutory appeals
       pursuant to the Indiana Rules of Appellate Procedure and had no statutory authority to take an interlocutory
       appeal. State v. Peters, 637 N.E.2d 145, 147 (Ind. Ct. App. 1994).
       2
         The State claims this Court’s decision in State v. C.K., 70 N.E.3d 900 (Ind. Ct. App. 2017), trans. denied,
       authorizes the current appeal. We disagree because that case is procedurally distinct from D.R.’s case. In
       C.K., the juvenile did not question the State’s authority to appeal a juvenile court’s refusal to waive
       jurisdiction over a juvenile.

       Court of Appeals of Indiana | Opinion 18A-JV-1608 | February 13, 2019                               Page 6 of 14
       effectively foreclosed from appellate review. Indiana Code section 35-38-4-2(4)

       allows the State to appeal reserved questions of law after an acquittal. Even so,

       as D.R. notes, if a juvenile court declines to waive jurisdiction and later issues a

       final judgment on the delinquency petition, the State may be barred by double

       jeopardy principles from trying the juvenile in adult court even if an appellate

       court should later determine the juvenile court erred in declining to waive

       jurisdiction. Appellee/Cross-Appellant’s Br. p. 14 n.3. The State’s right to

       appeal is strictly limited, but we are reluctant to conclude that a juvenile court’s

       decision to deny waiver may never be subjected to appellate review when the

       plain language of Indiana Code section 35-38-4-2(6) appears to allow such

       appeals. For these reasons, we conclude the State may seek discretionary

       interlocutory review of a juvenile court’s denial of the State’s motion to waive

       jurisdiction.


[15]   D.R. also argues the State should not be allowed to appeal a juvenile court’s

       denial of waiver because such an appeal would conflict with mandatory

       juvenile court deadlines. D.R. cites Indiana Code section 31-37-11-3 (1997),

       which provides: “If waiver is denied, the factfinding hearing must be

       commenced not later than ten (10) days, excluding Saturdays, Sundays, and

       legal holidays, after the denial.”


[16]   We disagree with D.R.’s argument that Section 31-37-11-3 bars an appeal under

       Section 35-38-4-2(6) in this context. Where two or more statutes contradict

       each other or are in apparent conflict, we attempt to construe them in a manner

       which reasonably brings them into harmony. Purcell v. State, 721 N.E.2d 220,

       Court of Appeals of Indiana | Opinion 18A-JV-1608 | February 13, 2019      Page 7 of 14
       223 (Ind. 1999). The General Assembly has explained the consequences when

       the State or a juvenile court fails to comply with Section 31-37-11-3’s ten-day

       deadline: “the child shall be released on the child’s own recognizance or to the

       child’s parents, guardian, or custodian.” Ind. Code § 31-37-11-7 (1997).

       Section 31-37-11-7 does not require dismissal of the petition. The statute is thus

       analogous to Indiana Criminal Rule 4(A), which requires a defendant to be

       released on his or her own recognizance if not brought to trial within six

       months of the date a charge is filed, if the delay is not caused by the defendant.


[17]   As a result, we read Sections 31-37-11-3 and 35-38-4-2(6) as follows: the State

       may seek interlocutory review of a juvenile court’s denial of a motion to waive

       jurisdiction, but the juvenile shall be released from custody pursuant to Indiana

       Code section 31-37-11-7 during the appeal if the ten-day limit is exceeded. We

       deny D.R.’s request to dismiss the State’s appeal, and we turn to the merits of

       the State’s claims.


                                   II. Juvenile Court’s Judgment
[18]   The State argues the juvenile court should have waived jurisdiction over D.R.

       and transferred him to criminal court because waiver was necessary for “the

       safety of the community.” Appellant’s Br. p. 12. Under the facts of this case,

       waiver of juvenile jurisdiction is governed by Indiana Code section 31-30-3-5

       (2014). That statute provides, in relevant part:


               [The juvenile] court shall, upon motion of the prosecuting
               attorney and after full investigation and hearing, waive
               jurisdiction if it finds that:

       Court of Appeals of Indiana | Opinion 18A-JV-1608 | February 13, 2019     Page 8 of 14
               (1) the child is charged with an act that, if committed by an adult,
               would be:


               (A) a Level 1 felony, Level 2 felony, Level 3 felony, or Level 4
               felony, except a felony defined by IC 35-48-4;


               (B) involuntary manslaughter as a Level 5 felony under IC 35-42-
               1-4; or


               (C) reckless homicide as a Level 5 felony under IC 35-42-1-5;


               (2) there is probable cause to believe that the child has committed
               the act; and


               (3) the child was at least sixteen (16) years of age when the act
               charged was allegedly committed;


               unless it would be in the best interests of the child and of the
               safety and welfare of the community for the child to remain
               within the juvenile justice system.


       Id.


[19]   During proceedings in the juvenile court, D.R. did not dispute that the State

       alleged he committed an act that, if committed by an adult, would be reckless

       homicide. He further conceded the State demonstrated probable cause to

       believe he committed the act and that he was at least sixteen years of age at the

       time of the alleged act. Proof of these elements creates a presumption in favor

       of waiver. Moore v. State, 723 N.E.2d 442, 446 (Ind. Ct. App. 2000). The



       Court of Appeals of Indiana | Opinion 18A-JV-1608 | February 13, 2019       Page 9 of 14
       juvenile court determined D.R. had presented evidence that rebutted the

       presumption.


[20]   We review a juvenile court’s decision on waiver of jurisdiction for an abuse of

       discretion. Vance v. State, 640 N.E.2d 51, 57 (Ind. 1994). An abuse of

       discretion occurs when a decision is “‘clearly against the logic and effect of the

       facts and circumstances before the court, or the reasonable, probable, and actual

       deductions to be drawn therefrom.’” K.S. v. State, 849 N.E.2d 538, 544 (Ind.

       2006) (quoting In re L.J.M., 473 N.E.2d 637, 640 (Ind. Ct. App. 1985)). We will

       not weigh the evidence nor judge the credibility of witnesses, “considering both

       the record of the waiver hearing” and the reasons stated by the juvenile court.

       Goad v. State, 516 N.E.2d 26, 27 (Ind. 1987). It is for the juvenile court judge,

       after weighing the effects of retaining or waiving jurisdiction, to determine

       which is the more desirable alternative. Vance, 640 N.E.2d at 57.


[21]   In the waiver proceeding, the State as the proponent of waiver had the ultimate

       burden to prove waiver was appropriate. The denial of waiver by the juvenile

       court is, in effect, a negative judgment. As such, the State, must show us that

       the court’s decision was contrary to law, that there was no evidence to support

       the denial of waiver, and that all evidence and circumstances pointed to a grant

       of waiver. See State v. Rucker, 861 N.E.2d 1240, 1241 (Ind. Ct. App. 2007)

       (applying the negative judgment standard to the State’s appeal of a grant of a

       motion to suppress evidence) trans. denied.




       Court of Appeals of Indiana | Opinion 18A-JV-1608 | February 13, 2019    Page 10 of 14
[22]   When D.R. was eight, DCS removed him from his mother’s care and placed

       him with his paternal grandparents. DCS had substantiated allegations of

       neglect against D.R.’s parents. In addition, D.R. alleged he had been molested

       by a cousin at the age of eight. It is unclear whether the molestation allegation

       was part of the DCS investigation, but D.R. talked about it with Dr. Bridget

       Roberts-Pittman, a psychologist who performed D.R.’s court-ordered

       assessment in the current case.


[23]   D.R. also explained that he had witnessed his mother being beaten by her

       boyfriend when he was younger, to the point that she needed emergency

       hospitalization for head trauma. In addition, D.R. was treated for mental

       illness in 2009, 2010, and 2013. D.R. first smoked marijuana in the sixth grade,

       and by the ninth grade he smoked it regularly.


[24]   After D.R.’s grandmother died, he had few housing options. After turning

       fifteen, D.R. lived in a car for a period of time, and he lived with different

       family friends. Both of D.R.’s parents failed to remain involved in his life and

       had criminal records, including drug-related offenses. After D.R. was arrested,

       he explained he had not been in regular contact with either parent. D.R. had

       dropped out of high school in the eleventh grade.


[25]   The neglect of D.R. during his childhood left its mark. Dr. Roberts-Pittman

       diagnosed D.R. as having dysthymia, a mood disorder “evidenced by low-

       grade, chronic depression.” Tr. p. 20. She further determined D.R. had

       “cannabis use disorder” and met some of the criteria for posttraumatic stress


       Court of Appeals of Indiana | Opinion 18A-JV-1608 | February 13, 2019     Page 11 of 14
       disorder. Id. In addition, a week prior to the incident at issue, D.R. reportedly

       attempted to commit suicide and, after a brief hospital stay, was transferred to

       an inpatient mental health center for four days. Dr. Roberts-Pittman noted that

       D.R. had no behavior disorders, which is unusual for an alleged juvenile

       delinquent.


[26]   Despite these challenges, D.R. had made positive strides in his life. He

       reported to Dr. Roberts-Pittman that he had two jobs and had begun working

       on his GED before the incident at issue. He planned to attend community

       college after getting his GED. Furthermore, D.R. had no juvenile history. A

       DCS caseworker described D.R. as “motivated” to improve his life. Tr. p. 33.


[27]   Dr. Roberts-Pittman concluded the most appropriate treatment for D.R.’s

       dysthymia and cannabis use disorder would be “intensive individual therapy,”

       Id. at 21. For that reason, she recommended a placement outside of the home.

       Dr. Roberts-Pittman further noted D.R. was thoughtful and “regretful” during

       his mental health assessment, Tr. p. 30, and was working on his GED. She

       arranged for D.R. to see a counselor, which is the first time she had done so for

       a juvenile in detention. She further recommended that he be placed in a setting

       where he could continue educational pursuits because he had the skills to

       complete his high school education. Dr. Roberts-Pittman also recommended

       that D.R. remain in juvenile court, noting that she had encountered very few

       juveniles who displayed his “thoughtfulness.” Id. at 16.




       Court of Appeals of Indiana | Opinion 18A-JV-1608 | February 13, 2019   Page 12 of 14
[28]   The juvenile court heard testimony about the nature of the alternatives D.R.

       could face and their possible impacts. Public Defender Michael Brewer, a

       witness for D.R., explained that if the juvenile court waived jurisdiction over

       D.R., he would face felony criminal charges but would not serve a long

       sentence. D.R. could receive mental health services, but he might have to pay

       for a portion of his care, and the supervision would not be as intensive as in

       juvenile court. Brewer further explained that several of his clients had been

       waived to adult court and, after being convicted of felonies, had difficulty

       getting jobs and becoming productive members of society. By contrast, if D.R.

       remained in the juvenile system and was placed on probation, he could be sent

       to a residential treatment center at no cost to him and, further, could be kept on

       probation until age twenty-one to monitor him.


[29]   The State claims D.R. is “a danger to himself and to the safety of the

       community.” Appellant’s Br. p. 12. The State also repeatedly characterizes

       D.R. as a “drug dealer” because he admitted during his mental health

       assessment that he had sold marijuana in the ninth grade. Id. There is no

       evidence as to how often and for how long he had sold marijuana, and there is

       no indication that he was dealing in marijuana at the time of the incident at

       issue here. On the other hand, there was evidence that if D.R. remained under

       the juvenile court’s jurisdiction, he would be provided with services and an

       opportunity to rehabilitate himself more effectively than in adult court. Under

       these circumstances, including D.R.’s complete lack of a juvenile record and his

       attempts to overcome an unstable and traumatic childhood, the trial court’s


       Court of Appeals of Indiana | Opinion 18A-JV-1608 | February 13, 2019    Page 13 of 14
       determination that D.R. overcame the presumption of waiver is not against the

       facts and circumstances of this case. The juvenile court can effectively address

       the deeply serious allegations against D.R.


                                                  Conclusion
[30]   For the reasons stated above, we affirm the judgment of the trial court.


[31]   Affirmed.


[32]   Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 18A-JV-1608 | February 13, 2019   Page 14 of 14
