                                                                                      FILED
                                                                                  Aug 08 2018, 9:31 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
      Indianapolis, Indiana
                                                                 Jesse R. Drum
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      D.M.,                                                      August 8, 2018
      Appellant-Respondent,                                      Court of Appeals Case No.
                                                                 49A02-1711-JV-2708
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Marilyn Moores,
      Appellee-Petitioner.                                       Judge
                                                                 The Honorable Gary Chavers,
                                                                 Magistrate
                                                                 Trial Court Cause No.
                                                                 49D09-1710-JD-1487



      Darden, Senior Judge.


                                       Statement of the Case
[1]   D.M. appeals the juvenile court’s disposition of his case following a

      determination that he is a juvenile delinquent. We affirm.
      Court of Appeals of Indiana | Opinion 49A02-1711-JV-2708 | August 8, 2018                           Page 1 of 8
                                                       Issue
[2]   D.M. raises one issue, which we restate as: whether the juvenile court

      committed fundamental error by its failure to specifically ask D.M. whether he

      wanted to address the court to make a statement in allocution at the

      dispositional hearing.


                                Facts and Procedural History
[3]   On October 19, 2017, the State submitted to the juvenile court a petition

      alleging that seventeen-year-old D.M. was a delinquent child for committing an

      act that, if committed by an adult, would have amounted to battery by bodily

      waste, a Level 6 felony. The State alleged that D.M. threw a cup of urine at an

      employee of the juvenile facility where he was being detained. The juvenile

      court found probable cause to support the State’s petition and approved it for

      filing.


[4]   Next, the parties executed an admission agreement, wherein, D.M. agreed to

      admit that he committed the act described by the State in the delinquency

      petition. The parties further agreed that final disposition of the matter would be

      left to the discretion of the juvenile court, with both sides free to present

      argument. The juvenile court accepted the admission agreement and

      determined that D.M. was a juvenile delinquent.


[5]   The juvenile court then held a dispositional hearing on November 3, 2017.

      Both the State and the probation department recommended to the juvenile

      court that wardship of D.M. be granted to the Indiana Department of

      Court of Appeals of Indiana | Opinion 49A02-1711-JV-2708 | August 8, 2018       Page 2 of 8
      Correction (DOC). By contrast, D.M., through his attorney, asked that D.M.

      be released to probation as the least restrictive and most safe environment, and

      to remain with his family. D.M.’s attorney further submitted a proposed

      community supervision plan and argued for the juvenile court’s approval.


[6]   At that point, D.M.’s attorney stated, “I’ll defer to any comments today your

      Honor for – that [D.M.] or his family may have.” Tr. Vol. II, p. 7. The

      juvenile court specifically asked D.M.’s mother if she wanted to make a

      statement, and she declined. The juvenile court did not specifically ask D.M. if

      he wanted to make a statement. Rather, the juvenile court then announced its

      disposition, granting wardship of D.M. to the DOC for a period of time up to

      his twenty-first birthday, unless released earlier by the DOC. The juvenile court

      further stated that it would recommend that the DOC release D.M. after twelve

      months, thus showing some compassion, but the length of D.M.’s wardship

      would be left to the discretion of the DOC. This appeal followed.


                                    Discussion and Decision
[7]   D.M. argues that the juvenile court deprived him of his right to due process of

      law under the Fourteenth Amendment by failing to specifically ask him if he

      wanted to address the court prior to announcing its disposition of the case.

      D.M. concedes that he failed to raise this issue in the juvenile court and is

      entitled to reversal only if he demonstrates that the court’s omission amounted

      to fundamental error. Reply Br. p. 4.




      Court of Appeals of Indiana | Opinion 49A02-1711-JV-2708 | August 8, 2018   Page 3 of 8
[8]   Fundamental error is an “‘extremely narrow exception’” to the

      contemporaneous objection rule that allows a defendant to avoid waiver of an

      issue. Neville v. State, 976 N.E.2d 1252, 1258 (Ind. Ct. App. 2012) (quoting

      Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)), trans. denied. Fundamental

      error occurs when an error constitutes a blatant violation of basic principles, the

      harm or potential for harm is substantial, and the error deprives a party of

      fundamental due process. S.D. v. State, 937 N.E.2d 425, 429 (Ind. Ct. App.

      2010), trans. denied. The fundamental error exception is available only in

      egregious circumstances. Id.


[9]   In criminal cases involving adults, a defendant’s right to offer a statement on his

      or her behalf before the trial court pronounces sentence is known as the right of

      allocution, which has been recognized in the common law since at least 1682.

      Vicory v. State, 802 N.E.2d 426, 428 (Ind. 2004). As a general rule, “[t]he

      standard for determining what due process requires in a particular juvenile

      proceeding is ‘fundamental fairness.’” D.A. v. State, 967 N.E.2d 59, 64 (Ind. Ct.

      App. 2012) (quoting S.L.B. v. State, 434 N.E.2d 155, 156 (Ind. Ct. App. 1982)).

      The General Assembly has specifically explained who must be allowed to speak

      at juvenile dispositional hearings, as follows:


              (a) The prosecuting attorney or probation department of the
              juvenile court shall provide notice of the date, time, place, and
              purpose of the dispositional hearing under this chapter to each:

              (1) party or person for whom a summons is required to be issued
              under IC 31-37-12-2; and



      Court of Appeals of Indiana | Opinion 49A02-1711-JV-2708 | August 8, 2018   Page 4 of 8
               (2) foster parent or other caretaker with whom the child is placed
               for temporary care;

               at the time the dispositional hearing is scheduled.

               (b) The court shall:

               (1) provide a person who is required to be notified under
               subsection (a) an opportunity to be heard; and

               (2) allow a person described in subdivision (1) to make
               recommendations to the court;

               at the dispositional hearing.

       Ind. Code § 31-37-18-1.3 (2007). Indiana Code section 31-37-12-2 (2015)

       requires a juvenile court to issue summons to the child, the child’s parent,

       guardian, custodian, or guardian ad litem, and “any other person necessary for

       the proceeding.”


[10]   We find it to be indisputable that the better practice in this case would have

       been for the juvenile court to have specifically asked D.M. if he wanted to make

       a statement before pronouncing disposition of the case. It would not have

       taken more than a few minutes and would have ensured that the court directly

       heard one of the most important perspectives—that of the juvenile. As has been

       stated in criminal cases, “‘The right of allocution is minimally invasive of the

       sentencing proceeding; the requirement of providing the defendant a few

       moments of court time is slight.’” Vicory, 802 N.E.2d at 429 (quoting United

       States v. Barnes, 948 F.2d 325, 331 (7th Cir. 1991)). However, our analysis does

       not end here. We must look at the totality of the facts and circumstances in this



       Court of Appeals of Indiana | Opinion 49A02-1711-JV-2708 | August 8, 2018    Page 5 of 8
       case in determining whether the trial court denied D.M. fundamental fairness

       herein.


[11]   After reviewing the arguments and recommendations of both parties, and

       taking into consideration the totality of the facts and circumstances herein, we

       cannot conclude that the juvenile court’s failure to specifically ask D.M. if he

       wanted to make a statement prior to disposition amounted to fundamental

       unfairness requiring reversal. During the dispositional hearing, it appears that

       D.M.’s attorney vigorously argued in favor of placing D.M. on probation and

       submitted a plan for the juvenile court’s review. The plan provided, among

       other provisions, that D.M. would live with his mother, who would supervise

       him and agreed to report D.M. to a probation officer if he violated any terms of

       probation. It does not appear that D.M. was substantially harmed by not being

       given an opportunity to personally address the court at the hearing. See S.L.B.,

       434 N.E.2d at 157 (juvenile court did not violate juvenile’s due process rights by

       not asking if she had a statement; juvenile’s attorney presented argument to the

       court).


[12]   Further, D.M.’s juvenile record is extensive, and it is thus highly unlikely that

       allocution by D.M. would have persuaded the juvenile court to release him to

       probation or some other commitment less strict than the DOC. D.M.’s record

       began at age thirteen, when he was found to be a runaway. In 2014, D.M. was

       determined to be a juvenile delinquent for two acts of resisting law

       enforcement, both Class A misdemeanors, and criminal mischief, also a Class

       A misdemeanor. In 2015, he was adjudicated a juvenile delinquent for

       Court of Appeals of Indiana | Opinion 49A02-1711-JV-2708 | August 8, 2018   Page 6 of 8
       committing an act that, if committed by an adult, would have constituted Level

       5 felony robbery. In the current case, he admitted to committing an act of

       battery by bodily waste while in juvenile detention. Further, while he was

       being detained for the current case, the State alleged D.M. committed another

       juvenile act, specifically battery resulting in injury to a public safety official.

       D.M.’s misconduct is ongoing and escalating in severity.


[13]   In addition, juvenile courts had imposed less restrictive alternatives than the

       placement in DOC in the past, but D.M. persisted in his course of misconduct.

       He was placed on formal probation in 2014, but he failed to comply with the

       terms of probation and he was sent to an out-of-home placement. In 2015,

       D.M. was returned to the out-of-home placement at the conclusion of another

       juvenile case, but he violated the terms of his placement and was sent to the

       DOC for fourteen months. Upon his release, he fled from another placement

       and was sent to juvenile detention.


[14]   Finally, D.M.’s proposed probation plan stated that he would live with his

       mother and be subject to her oversight, but she had previously told probation

       officers that D.M. had refused to comply with her curfews and had frequently

       left home without permission. Based on this record, the juvenile court had

       ample reason to conclude a placement less restrictive than the DOC would not

       succeed, and it is unlikely D.M. could have changed the court’s mind via a

       personal statement at the dispositional hearing.




       Court of Appeals of Indiana | Opinion 49A02-1711-JV-2708 | August 8, 2018      Page 7 of 8
[15]   We conclude that under the particular facts and circumstances of this case, the

       juvenile court’s failure to specifically ask D.M. if he wanted to make a

       statement was not a blatant violation of basic principles, did not pose a

       potential of substantial harm, and did not deprive D.M. of fundamental due

       process. We thus decline to apply the doctrine of fundamental error and/or

       fundamental fairness in considering D.M.’s due process claim. On the other

       hand, we strongly encourage juvenile courts to take into consideration affording

       juvenile delinquents the opportunity to address the court before final

       disposition.


                                                  Conclusion
[16]   For the reasons stated above, we affirm the judgment of the juvenile court.


[17]   Affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1711-JV-2708 | August 8, 2018   Page 8 of 8
