MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                          FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                             Nov 01 2018, 9:03 am

court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michelle Laux                                            Curtis T. Hill, Jr.
St. Joseph County                                        Attorney General of Indiana
Public Defender’s Office
                                                         J.T. Whitehead
South Bend, Indiana                                      Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

N.G.,                                                    November 1, 2018
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         18A-JV-1471
        v.                                               Appeal from the St. Joseph Probate
                                                         Court
State of Indiana,                                        The Honorable James N. Fox,
Appellee-Petitioner                                      Judge
                                                         Trial Court Cause No.
                                                         71J01-1712-JD-466



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JV-1471 | November 1, 2018              Page 1 of 4
[1]   N.G. appeals the restitution order imposed by the trial court, arguing that the

      evidence did not support the amount of the order and that the evidence does not

      support a conclusion that he is able to pay it. Finding no error, we affirm.


[2]   On January 24, 2018, N.G. admitted to committing acts that would have been

      Class A misdemeanor criminal mischief and Class A misdemeanor resisting law

      enforcement had they been committed by an adult. N.G.’s dispositional and

      restitution hearing took place on May 18, 2018. At that hearing, the evidence

      showed that N.G. was fifteen years old, did not have a work permit, and was

      unemployed. The State presented evidence that the aggregate amount of

      damage to the victim, caused by N.G. and other perpetrators, totaled over

      $17,000. The trial court capped the restitution order in the amount of $1,000

      and ordered N.G. to get a work permit. The trial court also held that if N.G. is

      “unsuccessful in paying the restitution in full by the deadline but is making an

      attempt to pay, the Court reserves the right to extend the deadline.”

      Appellant’s App. Vol. II p. 15. N.G. now appeals.


[3]   An order of restitution is a matter within the discretion of the trial court. P.J. v.

      State, 955 N.E.2d 234, 235 (Ind. Ct. App. 2011). We will reverse only when the

      trial court’s determination is clearly against the logic and effect of the facts and

      circumstances before the court. Id.


[4]   N.G. first argues that the trial court erred in calculating the amount of the

      restitution order to be $1,000. The victim provided evidence that his total

      damages exceeded $17,000, to be divided among multiple perpetrators. N.G.


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1471 | November 1, 2018   Page 2 of 4
      highlights certain issues regarding the specificity and accuracy of the victim’s

      testimony and documentation, but we find that the trial court’s final restitution

      order of $1,000 was well within the evidence before it and decline to reverse on

      this basis.


[5]   It is well established that 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. T.H. v. State, 33 N.E.3d 374, 376 (Ind. Ct. App. 2015). This inquiry

      must occur because of concerns about equal protection and fundamental

      fairness. Id. The juvenile is entitled not only to an inquiry into his ability to

      pay, but also to a modification of an existing restitution order if the court

      determines he is unable to meet its terms. Id.


[6]   N.G. directs our attention to T.H., but we find that case distinguishable. In that

      case, T.H. was found to be delinquent and ordered to pay restitution in the

      aggregate amount of $1,500. We reversed, finding as follows:


              In this case, the evidence is undisputed. At the time of the
              dispositional hearing, T.H. was fifteen years old, did not have a
              work permit, did not have a job, did not have a bank account, did
              not have any money in savings, owned no property, and did not
              have anything else in his name. He has numerous disabilities,
              and his monthly SSI disability benefit is used by his mother to
              support T.H. and his six siblings. Although T.H. testified that he
              would “try to” get a job when he reached the age of sixteen, tr. p.
              18, it is undisputed that at the time of the dispositional hearing,
              he was unemployed. There is no evidence in the record
              whatsoever that remotely tends to establish that T.H. is able to
              pay restitution in any amount, much less an aggregate amount of
              $1,500.
      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1471 | November 1, 2018   Page 3 of 4
      Id.


[7]   In the instant appeal, as in T.H., N.G. was fifteen years old, did not have a

      work permit, did not have a job, and did not have a bank account or any other

      assets. Of significance, however, is the fact that while T.H. was disabled and

      likely to have great difficulty finding employment, N.G. is not disabled. He

      and his mother both stated that there is no reason to believe that he would be

      unable to find employment. Tr. Vol. II p. 27. The trial court noted that N.G.

      appeared to be “able bodied.” Id. Moreover, the trial court indicated that it

      would be flexible with the payment deadline if N.G. had trouble making timely

      payments. Under these circumstances, we find no error with respect to the trial

      court’s restitution order.


[8]   The judgment of the trial court is affirmed.


      May, J., and Robb, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1471 | November 1, 2018   Page 4 of 4
