                                                                                    FILED
                                                                                Oct 12 2018, 6:59 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      Amy Karozos                                                 Curtis T. Hill, Jr.
      Greenwood, Indiana                                          Attorney General

                                                                  Ellen H. Meilaender
                                                                  Supervising Deputy Attorney General
                                                                  Indianapolis, Indiana


                                                     IN THE
              COURT OF APPEALS OF INDIANA

      J.S.,                                                       October 12, 2018
      Appellant-Respondent,                                       Court of Appeals Case No.
                                                                  18A-JV-1049
              v.                                                  Appeal from the Marion Superior
                                                                  Court
      State of Indiana,                                           The Honorable Gary Chavers, Judge
      Appellee-Petitioner                                         Pro Tempore
                                                                  Trial Court Cause Nos.
                                                                  49D09-1711-JD-1623
                                                                  49D09-1710-JD-1472



      Crone, Judge.


                                               Case Summary
[1]   J.S. appeals his placement in the Indiana Department of Correction (“DOC”)

      following his admission to delinquent acts that would have amounted to level 6

      felony receiving stolen auto parts, class A misdemeanor dangerous possession

      Court of Appeals of Indiana | Opinion 18A-JV-1049 | October 12, 2018                              Page 1 of 10
      of a firearm, and class A misdemeanor theft if committed by an adult. Finding

      that the trial court acted within its discretion in ordering J.S.’s placement in the

      DOC, we affirm.


                                   Facts and Procedural History
[2]   In 2017, fifteen-year-old J.S. lived with his mother in an Indianapolis

      apartment. He had a history of disciplinary incidents at school, generally

      involving fighting and resulting in suspension. He also used marijuana. On

      October 7, 2017, he attended a party at which firearms were present.

      Eyewitnesses reported seeing him fire gunshots into the air. A week later,

      police discovered J.S. sleeping in the front seat of a vehicle identified as one

      recently stolen in an armed carjacking. He told police that he knew that the

      vehicle had been stolen and that he and two friends had driven it around,

      parked it, and fallen asleep. He reported that he had won the vehicle in a dice

      game, but also said that it had been given to him. Police discovered a loaded

      handgun in plain view in the front passenger’s side floor area. On October 18,

      2017, under cause number 49D09-1710-JD-1472 (“Cause 1472”), the State filed

      a petition alleging that J.S. had committed acts amounting to level 6 felony

      receiving stolen auto parts and class A misdemeanor criminal trespass if

      committed by an adult. J.S. was placed on electronic monitoring pending his

      adjudication.


[3]   Three weeks later, police responded to a report of an armed robbery involving

      two armed juvenile boys who stole a woman’s purse, cell phone, and car keys

      and fled on foot to a nearby apartment. According to a predispositional report
      Court of Appeals of Indiana | Opinion 18A-JV-1049 | October 12, 2018       Page 2 of 10
      filed by the local probation department, a maintenance man observed the boys

      as they ran and identified one of the boys as J.S. J.S. said that he was inside his

      apartment when the boys (his friends) asked to enter. He allowed them to enter

      and stash a firearm and other contraband inside the apartment. Police

      recovered the firearm from his bedroom, and ballistics testing showed a match

      with bullet casings found at the scene of the October 7 party. Under cause

      number 49D09-1711-JD-1623 (“Cause 1623”), the State filed a petition alleging

      that J.S. had committed acts amounting to level 3 felony armed robbery, level 6

      felony pointing a firearm, class A misdemeanor carrying a handgun without a

      license, and class A misdemeanor theft if committed by an adult. The State

      also filed a notice of electronic monitoring violation, based on J.S.’s allowing

      individuals into his home and possessing a firearm.


[4]   At the end of 2017, J.S.’s mother found an apartment in another school district

      and enrolled J.S. for classes beginning in January 2018. During January, J.S.

      was written up for skipping classes and received one disciplinary referral for

      disruption on the bus.


[5]   In February 2018, under cause number 49D09-1802-JD-178 (“Cause 178”),

      stemming from the incident at the October 7 party, the State filed a petition

      alleging that J.S. had committed acts amounting to level 5 felony criminal

      recklessness, class A misdemeanor dangerous possession of a firearm, and class

      A misdemeanor carrying a handgun without a license if committed by an adult.

      The State removed J.S. from his home and placed him in pretrial detention,

      during which time he accumulated several incident reports.

      Court of Appeals of Indiana | Opinion 18A-JV-1049 | October 12, 2018      Page 3 of 10
[6]   J.S. entered into an admission agreement, pursuant to which he admitted to

      acts amounting to receiving stolen auto parts (Cause 1472), class A

      misdemeanor dangerous possession of a firearm (Cause 1623), and class A

      misdemeanor theft (Cause 1623) if committed by an adult. In exchange, the

      State agreed to dismiss the remaining counts in Causes 1472 and 1623 and all

      counts in Cause 178. The agreement specified that the disposition would be left

      open to the trial court’s discretion, and the trial court ordered a psychological

      evaluation.


[7]   At the dispositional hearing, the trial court admitted the psychologist’s report,

      in which the doctor expressed concern with J.S.’s antisocial behavior, peer

      associations, possession of firearms, and drug abuse. He also considered J.S.’s

      risk of recidivism to be moderate to high. Notwithstanding, the doctor

      recommended that if the court were to return J.S. to the community, he should

      be afforded close supervision, electronic monitoring, drug abuse screening, and

      frequent assessment and oversight from the probation department. Appellant’s

      App. Vol. 2 at 154. The public defender agency submitted a proposed plan for

      returning J.S. home with supervision from his mother, a neighbor, and a cousin

      and for court-ordered services, monitoring, and curfew. Id. at 135-36. The

      probation department submitted its predispositional report and testimony

      recommending that J.S. be placed in the DOC and be subject to a no-contact

      order concerning certain friends and victims. The trial court issued a

      dispositional order placing J.S. in the DOC. J.S. now appeals his disposition.

      Additional facts will be provided as necessary.


      Court of Appeals of Indiana | Opinion 18A-JV-1049 | October 12, 2018      Page 4 of 10
                                      Discussion and Decision
[8]   J.S. contends that the trial court abused its discretion in placing him 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. R.H. v. State, 937 N.E.2d 386, 388 (Ind. Ct. App. 2010). We

      review a trial court’s disposition for an abuse of discretion, which occurs if its

      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. Ripps v. State, 968 N.E.2d 323, 326 (Ind.

      Ct. App. 2014).


[9]   Juvenile court proceedings are civil, not criminal, in nature. T.K. v. State, 899

      N.E.2d 686, 687-88 (Ind. Ct. App. 2009). “[T]he goal of the juvenile process is

      rehabilitation so that the youth will not become a criminal as an adult.” R.H.,

      937 N.E.2d at 388. As such, juvenile courts have a variety of placement

      choices. Id. Indiana Code Section 31-37-18-6 reads,


              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

      Court of Appeals of Indiana | Opinion 18A-JV-1049 | October 12, 2018            Page 5 of 10
               (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.


[10]   Indiana Code Section 31-37-18-9(a)(5) 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). Here, the trial court issued

       findings indicating its consideration of the statutory factors and its reasons for

       ordering placement in the DOC. These include the seriousness of the

       circumstances surrounding J.S.’s offenses, that J.S. was on electronic

       monitoring when he committed the offenses in Cause 1623, that he was deemed

       a moderate to high risk for continued delinquency recidivism, that he needs

       services that cannot be provided in the home, and that he had an onslaught of

       referrals, all of which were firearms-related. Appellant’s App. Vol. 2 at 24-25.




       Court of Appeals of Indiana | Opinion 18A-JV-1049 | October 12, 2018        Page 6 of 10
[11]   J.S. challenges the trial court’s finding that “[a]ll three referrals before the court

       were firearms related.” Id. at 25. He claims that the presence and/or

       involvement of a firearm was factually determined only as to Cause 1623, in

       which he confessed, as part of his admission agreement, to knowing that a

       firearm used in an armed robbery was present in his bedroom. He therefore

       maintains that the trial court could not properly consider the presence or

       involvement of a firearm in the remaining referrals against him. In addressing

       this argument, we first note that J.S. did not object when the prosecutor

       referenced his arrest in another case involving a gun while his first gun-related

       case was pending. Tr. Vol. 2 at 17-18. Nor did he object or seek a clarification

       when the trial court referenced his “culture of guns,” his admission that he had

       driven the stolen vehicle with a handgun located under the seat, or the presence

       of guns at the October party in connection with his penchant for being around

       firearms. See id. at 23-24. Instead, he now appears to assert that when a trial

       court is considering placement options for a juvenile offender, it may not

       consider evidence beyond that which formed the factual basis for the juvenile’s

       agreed admissions. We disagree.


[12]   We find juvenile dispositional proceedings such as these to be analogous to

       sentencing hearings after an open plea agreement in adult court, where the trial

       court considers a broad range of information in evaluating aggravating and

       mitigating circumstances relevant to sentencing. In Bethea v. State, 983 N.E.2d

       1134, 1144 (Ind. 2013), the defendant bargained for the dismissal of seven of the

       nine counts against him, and the plea agreement did not limit the evidence that


       Court of Appeals of Indiana | Opinion 18A-JV-1049 | October 12, 2018         Page 7 of 10
       the State or the defendant could offer as aggravating or mitigating factors

       during sentencing. In sentencing Bethea, the trial court cited as an aggravating

       factor the injury to the victim, where the injury was an element of a burglary

       charge dismissed pursuant to Bethea’s plea agreement. Id. at 1142. Although

       Bethea involved a post-conviction claim of ineffective assistance of appellate

       counsel, the claim involved counsel’s allegedly deficient performance in failing

       to cogently challenge the trial court’s consideration of aggravating factors

       pertaining to counts that were dismissed pursuant to Bethea’s plea agreement.

       Id. at 1139, 1142. In analyzing the scope of information proper for

       consideration as aggravators and mitigators, the Bethea court explained that a

       plea agreement is a contract negotiated by the parties, and as such, the parties

       can agree to limit or otherwise exclude what may be considered by the trial

       court during sentencing. Id. at 1146. Unless the parties include language

       limiting the evidence that the trial court may consider during sentencing, the

       trial court may consider facts and circumstances surrounding the case, even

       those pertaining to underlying charges that were dismissed. Id. at 1144-45. The

       Bethea court held that the trial court did not err in giving significant

       consideration to the facts relating to dismissed charges.1 Id. at 1145.


[13]   Similarly, here, J.S. and the State entered into an admission agreement,

       functionally analogous to a plea agreement, in which J.S.’s




       1
         Thus, in the context of analyzing appellate counsel’s performance, counsel could not be said to have
       performed deficiently on that basis. Bethea, 983 N.E.2d at 1146.

       Court of Appeals of Indiana | Opinion 18A-JV-1049 | October 12, 2018                             Page 8 of 10
       disposition/placement was left open to the trial court’s discretion. See

       Appellant’s App. Vol. 3 at 3-5. The agreement did not include any language

       limiting the information that the State or J.S. could offer as factors relevant to

       the trial court’s determination regarding placement; rather, it simply limited the

       delinquent acts for which the court could enter true findings. We find Bethea

       instructive and conclude that the trial court could properly consider the overall

       narrative of the referrals against J.S. when evaluating what placement would

       best promote community safety and J.S.’s best interests. These narratives,

       memorialized and included in the probation department’s predispositional

       report and incorporated by reference by the trial court, include eyewitness

       accounts of J.S. firing a handgun into the air at a party, a maintenance man’s

       identification of J.S. as one of the boys running from the scene of an armed

       robbery with a black object in his hand, and officers’ discovery of a handgun in

       plain view in a stolen vehicle which J.S. had admitted to driving. This

       information implicated public safety as well as J.S.’s best interests, and the trial

       court did not err in considering it.


[14]   As evidence favoring family placement, J.S. cites his mother’s proactive steps in

       moving him to a new high school during the pendency of the juvenile

       proceedings. The record shows that in his first month at his new school, J.S.

       had several disciplinary entries for skipping classes and an entry for

       disruption/disrespect on the bus. The court considered the positive steps taken

       by J.S.’s mother but ultimately found that the educational opportunities

       available within the DOC would offer a level of structure that would better


       Court of Appeals of Indiana | Opinion 18A-JV-1049 | October 12, 2018       Page 9 of 10
       promote J.S.’s educational interests. We see nothing wrong with this

       assessment.


[15]   Finally, to the extent J.S. suggests that the trial court overlooked his lack of a

       prior juvenile record and thus failed to consider the least harsh disposition

       available, we disagree. The court specifically indicated its consideration of

       J.S.’s lack of criminal record but went on to note the factors that militated

       toward his placement in the DOC: three referrals in a month’s time, each

       involving multiple counts and the presence of a firearm, his commission of the

       acts in Cause 1623 while serving home detention pending trial, and his

       violation of home detention rules by allowing friends in his home and having a

       firearm in his bedroom. J.S.’s failure to abide by his pretrial home detention

       conditions does not bode well for his long-term prospects of success in less

       restrictive placements. Based on the foregoing, we conclude that the trial court

       acted within its discretion in ordering J.S.’s placement in the DOC.

       Accordingly, we affirm.


[16]   Affirmed.


       Najam, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 18A-JV-1049 | October 12, 2018      Page 10 of 10
