      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                    Mar 27 2015, 10:33 am
      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
      Steven J. Halbert                                         Gregory F. Zoeller
      Carmel, Indiana                                           Attorney General of Indiana
                                                                Brian Reitz
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      D.M.,                                                    March 27, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A05-1408-JV-386
              v.                                               Appeal from the Marion Superior
                                                               Court

      State of Indiana,                                        The Honorable Gary Chavers, Judge
                                                               Pro Tem, and the Honorable
      Appellee-Plaintiff                                       Geoffrey Gaither, Magistrate
                                                               Trial Court Case No.
                                                               49D09-1406-JD-1461




      Mathias, Judge.

[1]   D.M. was adjudicated a delinquent child in Marion Superior Court and ordered

      to pay restitution to the victim as a condition of probation. D.M. appeals the




      Court of Appeals of Indiana | Memorandum Decision 49A05-1408-JV-386 | March 27, 2015    Page 1 of 6
      restitution order and argues that he is indigent; therefore, the trial court abused

      its discretion when it ordered D.M. to pay restitution.

[2]   We affirm.


                                    Facts and Procedural History

[3]   On June 4, 2014, a Marion County Sheriff’s Deputy observed an illegally

      parked moped at Arlington High School. After the deputy learned that the

      moped had been reported stolen, the deputy asked a school employee if she

      knew who had driven the moped to the school. The employee stated that D.M.,

      a seventh grade student, had parked the moped illegally on the sidewalk.


[4]   At 3:04 p.m., when the students were released, the deputy saw D.M. mount the

      moped. When D.M. saw the officer, he sped away. The deputy ordered D.M.

      to stop, but he refused, and a chase ensued. D.M. eventually threw the moped

      to the ground and ran into a heavily wooded area. D.M. damaged the moped’s

      ignition switch, front tire, and light and battery covers.

[5]   On June 11, 2014, the State filed a petition alleging that D.M. was a delinquent

      child for resisting law enforcement and engaging in criminal mischief, which

      are criminal offenses if committed by an adult. D.M. subsequently entered into

      a delinquent child admission agreement. The juvenile court adjudicated D.M. a

      delinquent child on July 7, 2014, and he was placed on probation.


[6]   In the admission agreement, D.M. agreed to pay restitution to the victim for

      damages to the moped in an amount “[t]o be determined at a restitution


      Court of Appeals of Indiana | Memorandum Decision 49A05-1408-JV-386 | March 27, 2015   Page 2 of 6
      hearing.” Appellant’s App. p. 37. At the July 28, 2014 restitution hearing, the

      owner of the moped testified to damages in the amount of $481.00. D.M.

      argued that he did not have the ability to pay restitution. As a condition of his

      probation, D.M. was ordered to pay restitution in the amount of $481.00.

      D.M. appeals the restitution order.


                                        Discussion and Decision

[7]   Although D.M. agreed to pay restitution in an unspecified amount, he argues

      that the trial court abused its discretion when it ordered him to pay $481.00

      because he has no ability to pay restitution. “‘The purpose behind an order of

      restitution is to impress upon the criminal defendant the magnitude of the loss

      he has caused and to defray costs to the victim caused by the offense.’” Rich v.

      State, 890 N.E.2d 44, 50 (Ind. Ct. App. 2008) (quoting Carswell v. State, 721

      N.E.2d 1255, 1259 (Ind. Ct. App. 1999)), trans. denied.


[8]   Pursuant to Indiana Code section 31-37-19-5(b)(4), a juvenile court may order a

      child to “pay restitution if the victim provides reasonable evidence of the

      victim’s loss, which the child may challenge at the dispositional hearing.” The

      restitution order is within the court’s discretion, and this Court will reverse only

      upon a showing of an abuse of discretion. P.J. v. State, 955 N.E.2d 234, 235

      (Ind. Ct. App. 2011). An abuse of discretion occurs when the trial court’s

      determination 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. Id.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1408-JV-386 | March 27, 2015   Page 3 of 6
[9]    “[E]qual protection and fundamental fairness concerns require that a juvenile

       court must inquire into a juvenile’s ability to pay before the court can order

       restitution as a condition of probation.”1 M.L. v. State, 838 N.E.2d 525, 529

       (Ind. Ct. App. 2005), trans. denied. “[A]s a general rule, ‘when restitution is

       ordered as a condition of probation, the trial court must inquire into the

       defendant’s ability to pay in order to prevent indigent [juveniles] from being

       imprisoned because of their inability to pay.’” J.H. v. State, 950 N.E.2d 731, 735

       (Ind. Ct. App. 2011) (quoting M.L., 838 N.E.2d at 528).


[10]   Moreover, a juvenile does not waive his right to have the juvenile court inquire

       into his ability to pay even though he agrees to pay restitution in an amount to

       be determined by the court. Id. at 529-30 (stating that “leaving the amount of

       restitution to the discretion of the trial court is not tantamount to waiving one’s

       right to have the trial court inquire into his ability to pay”); Cf. P.J. v. State 955

       N.E.2d 234, 235-36 (Ind. Ct. App. 2011) (concluding that the juvenile waived

       his right to have the juvenile court inquire into his ability to pay where he

       entered into an admission agreement and agreed to pay a specific amount of

       restitution).


[11]   D.M. is fourteen years old. He does not have a bank account, a job, or any

       assets. Tr. p. 11.



       1
         In M.L. v. State, our court also observed that when “restitution is not a condition of probation, but rather a
       part of an executed sentence, an inquiry into the defendant's ability to pay is not required. In such a
       situation, restitution is merely a money judgment, and a defendant cannot be imprisoned for non-payment.
       838 N.E.2d 525, 529 (Ind. Ct. App. 2005) (internal citations and quotations omitted).


       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-JV-386 | March 27, 2015                  Page 4 of 6
[12]   The State argues that D.M. might be able to obtain employment in the future.

       Moreover, the State asserts that D.M.’s failure to pay restitution will not result

       in detention and/or revocation of his probation if D.M. “makes every effort to

       obtain employment[.]” Appellee’s Br. at 5-6 (citing Ind. Code § 35-38-2-3(g)).

[13]   The statute authorizing restitution in juvenile proceedings does not refer to a

       juvenile’s ability to pay restitution. See I.C. § 31-37-19-5(b)(4). However, in

       adult criminal proceedings, the trial court may order the defendant to pay

       restitution after considering what the person can or “will be able to pay.” See

       Indiana Code § 35-38-2-2.3(a)(6). In the absence of clear statutory direction, we

       believe we should draw guidance from adult restitution proceedings on this

       issue. We therefore conclude that juvenile courts may consider the delinquent

       child’s current and future ability to pay restitution. See M.L. v. State, 838 N.E.2d

       525, 528-529 (Ind. Ct. App. 2005), (holding that the adult statute is instructive

       when the juvenile statute is silent), trans. denied.


[14]   The State has essentially conceded that fourteen-year-old D.M. is not currently

       able to pay restitution. However, on the record before us, we may reasonably

       conclude that D.M. has the ability to obtain future employment. Requiring

       D.M. to be responsible for the consequences of his delinquent conduct is

       consistent with the purpose of restitution. We therefore conclude that the




       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-JV-386 | March 27, 2015   Page 5 of 6
       juvenile court did not abuse its discretion when it ordered D.M. to pay

       restitution.2

[15]   Affirmed.


       Najam, J., and Bradford, J., concur.




       2
         Importantly, D.M. may not be detained or have his probation revoked if he remains unable to pay
       restitution despite his best efforts. See e.g. M.L., 838 N.E.2d at 528.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-JV-386 | March 27, 2015           Page 6 of 6
