                                                                 FILED
                                                             Jan 17 2017, 5:50 am

                                                                 CLERK
                                                             Indiana Supreme Court
                                                                Court of Appeals
                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Deborah Markisohn                                          Curtis T. Hill, Jr.
Marion County Public Defender Agency                       Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                      Matthew R. Elliot
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

S.S.,                                                      January 17, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A05-1605-JV-1070
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Marilyn A.
Appellee-Plaintiff.                                        Moores, Judge;
                                                           The Honorable Geoffrey Gaither,
                                                           Magistrate
                                                           Trial Court Cause No.
                                                           49D09-1601-JD-150



May, Judge.




Court of Appeals of Indiana | Opinion 49A05-1605-JV-1070 | January 17, 2017              Page 1 of 6
[1]   S.S. appeals the trial court’s order requiring him to pay restitution. S.S.

      presents two issues for our review, one of which we find dispositive - whether

      the juvenile court abused its discretion when it ordered him to pay restitution

      after it determined he did not have the ability to pay restitution. We reverse.



                             Facts and Procedural History
[2]   On February 2, 2016, the State filed a delinquency petition alleging S.S.

      committed acts that, if committed by an adult, would be Level 3 felony burglary

      and Level 3 felony robbery resulting in bodily injury, based on his taking a cell

      phone from M.H. On March 22, S.S. entered into an admission agreement

      with the State, agreeing to adjudication for an act that would be Class A

      misdemeanor theft, 1 which is a lesser included offense of Level 3 felony

      burglary. The State moved to dismiss the Level 3 felony robbery allegation, and

      the juvenile court granted that motion. As part of the admission agreement,

      S.S. agreed to make “[r]estitution for the LG4 Cell Phone, documentation and

      valuation to be determined [sic] disposition or restitution hearing.” (App. at

      48.)


[3]   On April 19, 2016, the juvenile court held a dispositional hearing. The juvenile

      court accepted the admission agreement and discussed restitution. After




      1
       This admission agreement also included S.S.’s admission to an act that, if committed by an adult, would be
      Class A misdemeanor possession of marijuana. This act was alleged in a delinquency petition under another
      cause number. The record before us does not indicate whether S.S. appeals that adjudication separately, but
      he does not raise herein any issues related to that admission.

      Court of Appeals of Indiana | Opinion 49A05-1605-JV-1070 | January 17, 2017                     Page 2 of 6
      hearing argument of the parties, the Court attempted to set the issue of

      restitution for hearing in thirty days, to which S.S. objected. The juvenile court

      then ordered S.S. to pay $200.00 in restitution “to at least cover some loss of the

      phone according to the contract.” (Tr. at 13.) The parties and the juvenile

      court discussed the possibility of S.S.’s participation in a “restitution work

      program that allows for anybody that has to pay restitution, they can do

      community service work at five dollars an hour.” (Id.) However, the juvenile

      court noted, “that program is coming to an end.” (Id.) The juvenile court

      further stated the $200.00 “may not be the total amount of compensation

      because it is kind of unknown what that is at this time. . . . but it is at least

      that.” (Id.)


[4]   Regarding payment of the restitution, the trial court told S.S.’s mother, “if there

      is some sort of delay on your part on behalf of [S.S.’s] part, you run the risk of

      not being able to participate in the [restitution work] program which means

      [S.S.] will be on the hook, in parenthesis, ‘you’ for the restitution.” (Id. at 14.)

      The juvenile court then allowed S.S. to make “a brief record as to restitution,”

      (id.), and presented testimony S.S. was fifteen years old, lived with his mother,

      did not have a job, did not have a bank or savings account, and did not own

      property. S.S. then asked the juvenile court to “make a finding of inability to

      pay.” (Id. at 15.)


[5]   The juvenile court entered its dispositional order the same day. It ordered S.S.

      to: “1. Complete 40 hours of restitution work program . . . 4. Pay to the Clerk



      Court of Appeals of Indiana | Opinion 49A05-1605-JV-1070 | January 17, 2017   Page 3 of 6
      $200.00 restitution to be withdrawn by [A.H. 2].” (App. at 14) (footnote added).

      The juvenile court also noted: “[S.S.’s counsel] requests that the youth be found

      indigent as he does not have [t]he ability to pay restitution. Court notes same.

      Court authorizes the release of youth’s documents to the victim for civil

      litigation.” (Id. at 15.)



                                     Discussion and Decision
[6]   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 loss, which

      evidence 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.
                 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.


      J.H. v. State, 950 N.E.2d 731, 734 (Ind. Ct. App. 2011) (internal citations

      omitted). It is well-established “equal 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.” M.L. v.

      State, 838 N.E.2d 525, 527 (Ind. Ct. App. 2005), reh’g denied, trans. denied.




      2
          A.H. is M.H.’s sibling and the owner of the phone S.S. stole.


      Court of Appeals of Indiana | Opinion 49A05-1605-JV-1070 | January 17, 2017     Page 4 of 6
[7]   Here, S.S. made a record regarding his ability to pay wherein he testified he was

      fifteen years old, did not have a job, did not have a bank account or savings,

      and lived with his mother. The juvenile court stated in its dispositional order,

      “[S.S.’s counsel] requests that the youth be found indigent as he does not have

      [t]he ability to pay restitution. Court notes same. Court authorizes the release

      of youth’s documents to the victim for civil litigation.” (App. at 15.) As the

      juvenile court noted S.S. was not able to pay restitution, and S.S. presented

      evidence of his indigency, the juvenile court abused its discretion in ordering

      him to pay restitution. See Bell v. State, 59 N.E.3d 959, 966 (Ind. 2016)

      (vacating trial court’s restitution order because Bell presented “sufficient and

      unrebutted testimony” of her inability to pay). 3



                                                   Conclusion
[8]   The juvenile court abused its discretion when it ordered S.S. to pay restitution

      after it found S.S. did not have the ability to pay restitution. We accordingly

      vacate the portion of the dispositional order dealing with the payment of

      restitution.


[9]   Reversed.




      3
        As an aside, we note the juvenile court’s comment during the dispositional hearing regarding mother’s
      responsibility for the payment of S.S.’s restitution. (See Tr. at 14) (trial court, addressing S.S.’s mother, states,
      “if there is some sort of delay on your part on behalf of [S.S.’s] part, you run the risk of not being able to
      participate in the [restitution work] program which means [S.S.] will be on the hook, in parenthesis, ‘you’ for
      the restitution”). This comment was not correct as a matter of law. See M.L., 838 N.E.2d at 530 n.10
      (parents are not liable for payment of child’s restitution obligation).

      Court of Appeals of Indiana | Opinion 49A05-1605-JV-1070 | January 17, 2017                              Page 5 of 6
Najam, J., and Bailey, J., concur.




Court of Appeals of Indiana | Opinion 49A05-1605-JV-1070 | January 17, 2017   Page 6 of 6
