                                                                        May 28 2014, 9:34 am
FOR PUBLICATION


ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

DEBORAH MARKISOHN                               GREGORY F. ZOELLER
Marion County Public Defender Agency            Attorney General of Indiana
Indianapolis, Indiana
                                                MICHAEL GENE WORDEN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

A.H.,                                           )
                                                )
        Appellant-Respondent,                   )
                                                )
               vs.                              )      No. 49A05-1309-JV-450
                                                )
STATE OF INDIANA,                               )
                                                )
        Appellee-Petitioner.                    )


                     APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Geoffrey A. Gaither, Magistrate
                             Cause No. 49D09-1302-JD-383



                                       May 28, 2014

                               OPINION–FOR PUBLICATION

BAKER, Judge
       Appellant-respondent A.H. asks this Court to vacate the juvenile court’s restitution

order, which required her to provide restitution to the probation department for the

electronic monitoring bracelet she cut off and left at a park. More particularly, A.H.

argues that the trial court erred when it ordered restitution that was not part of the

admission agreement and failed to inquire into her ability to pay. However, the juvenile

court ordered A.H. to perform 100 hours of community service in lieu of monetary

payment. Further, A.H. contends that the State failed to present sufficient evidence of the

actual amount of loss incurred to support the restitution order.

       We find that the juvenile court did not err in ordering restitution as the admission

agreement left disposition open to the juvenile court. Moreover, we conclude that it did

not fail to inquire into A.H.’s ability to pay when her financial information was before the

juvenile court, and it did not require monetary restitution. Further, we find that there was

sufficient evidence to demonstrate the actual loss to the probation department for the

electronic monitoring bracelet. Therefore, we affirm the judgment of the juvenile court.

                                          FACTS

       On February 19, 2013, the State submitted a delinquency petition that alleged A.H.

had committed what would have been class B felony burglary and class D felony theft

had she been an adult. On February 22, 2013, the juvenile court issued an order to file

the delinquency petition and held the initial hearing. A.H. was released to her mother on

electronic monitoring. A.H. signed an electronic monitoring agreement that stated A.H.



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was responsible for any damage to the monitoring device, which had a replacement cost

of $575.

      On April 4, 2013, the parties tendered an admission agreement to the court, which

stated that A.H. would admit to the theft count in exchange for the dismissal of the

burglary count. On April 18, 2013, the juvenile court held a dispositional hearing and

imposed a suspended commitment to the Indiana Department of Correction.

      On June 5, 2013, the juvenile probation department filed a petition to modify the

dispositional decree.   The petition alleged that A.H. had violated her probation by

running away from home. On June 17, 2013, a pre-trial hearing was held and A.H.

submitted an admission agreement admitting to the allegations in the modification

petition. A.H., with her mother’s permission, had gone to Anderson to visit with her

older sister but instead stayed elsewhere for a week. The juvenile court ordered A.H’s

suspended commitment continued and placed A.H. on electronic monitoring.                A.H.

signed an agreement that stated:

      You are responsible for your electronic monitoring equipment and must pay
      for any damage that is caused by tampering with or trying to remove the
      equipment. If the equipment is not returned in good working order, you
      will be required to pay for the cost of replacing it. If the equipment is lost,
      you will also be required to pay the replacement costs. Depending on the
      type of equipment you are on, the replacement costs are:
      a. HG 206 unit: $1,620, Transmitter: $575

Appellant’s App. p. 124.

      On July 8, 2013, the juvenile probation department filed another petition to modify

the dispositional decree, alleging that A.H. had run away from home again in violation of

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her probation. A pre-trial hearing was held on August 8, 2013, and A.H. again submitted

an admission agreement. She admitted to running away from home and to cutting off the

electronic monitoring device and leaving it in a park.

       On August 15, 2013, the juvenile court held a dispositional hearing, at which it

continued A.H’s suspended commitment and ordered her to pay $575 in restitution for

the electronic monitoring device by way of performing community service. The juvenile

court brought up the issue of restitution, noting that probation had recommended

restitution in its report. The amount of $575 was decided upon when a probation officer

told the juvenile court that it was the amount specified in the electronic monitoring

agreement signed by A.H. A.H. objected to the restitution, arguing that it was not in the

admission agreement. The court noted the objection, but ordered A.H. to pay the $575 in

restitution through community service.

       A.H. now appeals.

                             DISCUSSION AND DECISION

                                       I. Restitution

                            A. Admission Agreement and Restitution

       A.H. argues that the juvenile court improperly imposed restitution when it was not

specifically mentioned in her admission agreement. She contends that the juvenile court

could not impose additional penalties not included in the agreement.

       An order of restitution is a matter within the juvenile court's discretion, and this

Court will reverse only upon a showing of an abuse of that discretion. J.H v. State, 950

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N.E.2d 731, 734 (Ind. Ct. App. 2011). An abuse of discretion occurs when the juvenile

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.

       A.H. is correct that, when a juvenile enters into a plea agreement in a juvenile

proceeding, the juvenile court is bound by the terms of the agreement. In re J.A.W., 504

N.E.2d 334 (Ind. Ct. App. 1987). However, as the State notes in its brief, when, in a

criminal case, the plea agreement does not include restitution but the sentence is left

open, the trial court is free to award restitution as part of the sentence. Morris v. State, 2

N.E.3d 7 (Ind. Ct. App. 2013). We agree with the State’s argument that the same rule

should apply in juvenile cases.

       Here, there was an admission agreement.            Appellant’s App. p. 113.       That

agreement left the disposition of the case open to the juvenile court. Id.       A.H. agreed

that the disposition would be determined by open argument. Therefore, even though no

restitution was mentioned in the admissions agreement, the juvenile court could properly

order restitution because the disposition was left open; it did not abuse its discretion in

doing so.

                                      B. Ability to Pay

       A.H. also contends that the juvenile court abused its discretion when it failed to

make an inquiry into her ability to pay restitution.



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       When a juvenile court orders restitution as part of a juvenile’s probation, it must

inquire into the juvenile’s ability to pay the restitution. P.J. v. State, 955 N.E.2d 234.

This is because 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, 529 (Ind. Ct. App. 2005).

       In J.H. v. State, a panel of the Court vacated a restitution agreement when the

juvenile court failed to make an inquiry into J.H.’s ability to pay. 930 N.E.2d at 735. The

juvenile court ordered J.H. to pay restitution for a broken door in the amount of

$1,117.65. Id. at 734. While the juvenile court inquired about J.H.’s mother’s ability to

pay, it did not make an adequate inquiry into J.H.’s ability to pay. Id. at 734. The J.H.

court held that it was the juvenile’s ability to pay that was relevant. Id.

       Here, the juvenile court did not make a direct inquiry into A.H.’s ability to pay.

Tr. p. 65. However, unlike J.H., A.H. was not required to make monetary restitution. Id.

at 66. During the dispositional hearing, A.H.’s mother stated “[s]he’s the one that cut this

off and threw it, I think she needs to do some community service to pay for it.” Id. at 65.

The trial court then determined that it would “follow mom’s lead,” and ordered A.H. to

pay restitution by means of community service. Id. at 66. Therefore, A.H. is not required

to pay any monetary restitution, and her ability to pay is not relevant to restitution

imposed as community service.




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                          III. Lack of Evidence to Show Amount of Loss

       A.H. argues that the juvenile court failed to hold the State to its burden to establish

the actual amount of loss that occurred when A.H. cut off her electronic monitoring

device.

       A juvenile court may order a child to pay restitution if the victim provides

reasonable evidence of the victim’s loss, and the child may challenge the amount of loss

at the dispositional hearing. J.H. v. State, 950 N.E.2d 731, 734 (Ind. Ct. App. 2011). The

adult restitution statute, Indiana Code section 35-50-5-3, requires that a restitution order

for property damages be based on actual loss incurred. The adult statute is instructive

when the juvenile statute is silent. J.H., 950 N.E.2d at 734. Evidence supporting a

restitution order is sufficient if it affords a reasonable basis for estimating loss and does

not subject the trier of fact to mere speculation or conjecture. Id.

       In J.H., cited above, a restitution order was vacated when the juvenile court was

not presented with reasonable evidence to support the juvenile court’s determination of

the value of loss to the victim. Id. In that case, the victim gave the prosecutor two

different sheets of paper purporting to give an estimate of loss for the broken door. Id.

The estimates differed by $117, and neither was submitted to the juvenile court or to

defense counsel.     Under those circumstances, the J.H. Court determined that “the

‘estimates’ were mere speculation or conjecture and that the juvenile court’s order 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.

                                              7
      Here, the evidence shows that A.H. signed an agreement that stated the electronic

monitoring device was worth $575. Appellant’s App. p. 124. A.H. stipulated to that

amount when she signed the electronic monitoring agreement. Id. This agreement was

before the trial court, and the amount was repeated by the probation officer. Tr. p. 65.

Thus, unlike the circumstances in J.H., the trier of fact was not required to engage in

speculation or conjecture.   Therefore, we find that there was sufficient evidence to

establish the amount of loss that occurred when A.H. cut off her electronic monitoring

device.

      The judgment of the juvenile court is affirmed.

BARNES, J., and CRONE, J., concur.




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