MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                 FILED
regarded as precedent or cited before any                                   Dec 11 2017, 10:14 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
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

J.W.,                                                    December 11, 2017
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         33A04-1708-JV-1934
        v.                                               Appeal from the Henry Circuit
                                                         Court
State of Indiana,                                        The Honorable Bob A. Witham,
Appellee-Petitioner.                                     Judge
                                                         Trial Court Cause No.
                                                         33C01-1707-JD-38



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 33A04-1708-JV-1934 | December 11, 2017             Page 1 of 8
                                             Case Summary
[1]   The State of Indiana alleged J.W. to be a delinquent child because he had, after

      a suspected suicide attempt, falsely informed medical personnel that he was his

      eighteen-year-old brother; the State also alleged that J.W. had left home

      without permission. At the initial hearing, the trial court discussed with J.W.’s

      appointed counsel J.W.’s oral agreement with the State and J.W.’s purported

      desires to waive a formal initial hearing, waive the compilation of a pre-

      dispositional report, and admit his delinquency. 1 Upon receiving testimony

      from J.W. to establish a factual basis for the false informing allegation, the trial

      court adjudicated J.W. delinquent, dismissed the runaway allegation, and

      summarily ordered that J.W. be committed to the Indiana Department of

      Correction (“the DOC”). J.W. now brings a direct appeal, attempting to raise

      multiple issues. Concluding that J.W. has not pursued the appropriate remedy,

      a motion for relief from judgment pursuant to Indiana Trial Rule 60, we dismiss

      this purported appeal and remand this cause to the trial court to permit J.W. to

      file such a motion.




      1
        The State alleged that J.W. had, by giving false information to emergency room nurses, committed an act
      that would be False Informing, a Class B misdemeanor, if committed by an adult. Ind. Code § 35-44.1-2-
      3(d)(1). This statute provides that a person commits false informing when he: “gives a false report of the
      commission of a crime or gives false information in the official investigation of the commission of a crime,
      knowing the report or information to be false.” J.W. now denies that he engaged in conduct that would be
      criminal, if he were an adult, because the nurses were not investigating a crime.

      Court of Appeals of Indiana | Memorandum Decision 33A04-1708-JV-1934 | December 11, 2017           Page 2 of 8
                            Facts and Procedural History
[2]   According to J.W.’s testimony, offered to establish a factual basis for the

      delinquency allegation against him, the following events occurred. J.W. had, in

      July of 2017, gone to the Henry County Hospital and identified himself as his

      brother. When providing his birth date, J.W. had “subtracted a year from [his]

      date of birth” and he knew that the information he provided was false. (Tr. at

      18.)


[3]   When J.W. was released from the hospital, he was taken into state custody and

      alleged to be a delinquent. At a detention hearing conducted on July 24, 2017,

      New Castle Police Officer Chase Koger testified that he had detained J.W. after

      receiving a report that J.W. had inflicted injury upon himself and threatened

      suicide. Officer Koger had also learned that J.W. misidentified himself at the

      Henry County Hospital. Juvenile probation officer Tiffany Byers (“Byers”)

      testified that J.W. had prior contacts with the juvenile system. She

      recommended that J.W. be continued in secure detention. The juvenile court

      adopted the recommendation and continued J.W.’s placement in secure

      detention at the Delaware County Juvenile Detention Center.


[4]   On August 3, 2017, counsel for the State, Byers, J.W., his mother, and his

      appointed counsel appeared for an initial hearing and the following colloquy

      ensued:


              Court: [D]id you have a chance to discuss the matter with [J.W.]
              and his mother?


      Court of Appeals of Indiana | Memorandum Decision 33A04-1708-JV-1934 | December 11, 2017   Page 3 of 8
        Appointed Counsel: Yes Your Honor.


        Court: After talking to them and explaining to them what their
        options would be in the case and explaining the potential
        penalties [that] could be imposed, my understanding is that you
        will be asking to waive formal Initial hearing and I believe there’s
        a potential agreement with respect to a disposition, is that
        correct?


        Appointed Counsel: Yes Your Honor. [J.W.] discussed with me
        that in order to get things moving along faster he would be
        willing to admit today to Count 1, False Informing, we would
        agree to waive the pre-dispositional report and the tentative
        agreement with the State would be that [J.W.] would be
        transported to Department of Corrections and that [is] to happen
        relatively quickly.


        Court: [State Counsel], is that what’s been discussed with
        [Appointed Counsel]?


        State Counsel: It is Judge.


(Tr. at 16.) Byers acknowledged her assent to the disposition and J.W.’s

counsel elicited some brief testimony from J.W. relative to a factual basis.

When J.W. concluded his testimony, the trial court stated:


        I will find that the admission that [sic] there is a factual basis for
        the admission to the False Informing charge. I will find the
        admission is freely and voluntarily made, and I based upon that
        admission find that [J.W.] is a delinquent child as alleged in
        Count 1 of the complaint that was filed.




Court of Appeals of Indiana | Memorandum Decision 33A04-1708-JV-1934 | December 11, 2017   Page 4 of 8
      (Tr. at 18-19.) Upon the State’s motion, the second allegation was dismissed

      and the court “proceed[ed] to disposition” and committed J.W. to the DOC “at

      the earliest possible opportunity.” (Tr. at 19.) J.W. now appeals.



                                   Discussion and Decision
[5]   J.W. argues that his adjudication must be set aside because he did not receive

      requisite statutory advisements,2 the trial court did not determine that he had

      knowingly and voluntarily waived his right to trial,3 his counsel was ineffective,

      the court did not engage J.W. or his parent in discussion of dispositional




      2
       Indiana Code Section 31-37-12-5 requires the juvenile court to inform the child, and the child’s parent,
      guardian, or custodian, if present, of the following:
               (1) The nature of the allegations against the child.
               (2) The child’s right to the following:
                   (A) Be represented by counsel.
                   (B) Have a speedy trial.
                   (C) Confront witnesses against the child.
                   (D) Cross-examine witnesses against the child.
                   (E) Obtain witnesses or tangible evidence by compulsory process.
                   (F) Introduce evidence on the child’s own behalf.
                   (G) Refrain from testifying against himself or herself.
                   (H) Have the state prove beyond a reasonable doubt that the child committed the delinquent
                       act charged.
               (3) The possibility of waiver to a court having criminal jurisdiction.
               (4) The dispositional alternatives available to the juvenile court if the child is adjudicated a
                   delinquent child.
      3
        Indiana Code Section 31-32-5-1 provides in relevant part: “Any rights guaranteed to a child under the
      Constitution of the United States, the Constitution of the State of Indiana, or any other law may be waived
      only: (1) by counsel retained or appointed to represent the child if the child knowingly and voluntarily joins
      in the waiver[.]”

      Court of Appeals of Indiana | Memorandum Decision 33A04-1708-JV-1934 | December 11, 2017              Page 5 of 8
      alternatives, and J.W. did not commit an act that would have constituted a

      crime if committed by an adult.


[6]   In M.Y. v. State, 681 N.E.2d 1178, 1179 (Ind. Ct. App. 1997), a panel of this

      Court explained the avenue for relief available to a juvenile who has admitted

      to the allegations against him:


              As a general rule a criminal defendant is prohibited from
              challenging the validity of a guilty plea by direct appeal. Tumulty
              v. State, 666 N.E.2d 394, 395 (Ind. 1996). Rather any error
              premised upon a guilty plea must be brought by a petition for
              post-conviction relief. Id. at 396; Collins v. State, 676 N.E.2d 741,
              743 (Ind. Ct. App. 1996). However our supreme court has
              determined that a juvenile may not make use of the post-
              conviction procedures to redress alleged errors in a delinquency
              proceeding. Jordan v. State, 512 N.E.2d 407, 408 (Ind. 1987),
              reh’g denied, 516 N.E.2d 1054. In Jordan the court reasoned that
              juvenile adjudications do not constitute criminal convictions and
              therefore post-conviction remedies cannot be interpreted to apply
              to a juvenile adjudged to be a delinquent. Id.; see I.C. § 31-6-3-
              5(b). In an opinion concurring in the denial of rehearing, Chief
              Justice Shepard suggested that other avenues of relief, including
              Ind. Trial Rule 60, were available for Jordan to challenge his
              adjudication of delinquency. Jordan, 516 N.E.2d at 1054, 1055.
              Recently, in Haluska v. State, 663 N.E.2d 1193 (Ind. Ct. App.
              1996), a juvenile adjudicated a delinquent child filed a petition
              with this court seeking permission to file a belated appeal
              pursuant to Ind. Post-Conviction Rule 2(3). Following the
              supreme court’s ruling in Jordan and the Chief Justice’s opinion
              on rehearing, we reasoned that because delinquency
              adjudications are not convictions, the juvenile could not avail
              himself of the relief contained in P-C.R. 2(3). We further
              deemed the juvenile’s petition to file a belated appeal to be the
              equivalent of a petition for leave to seek T.R. 60 relief in the trial

      Court of Appeals of Indiana | Memorandum Decision 33A04-1708-JV-1934 | December 11, 2017   Page 6 of 8
              court. Thus, we remanded the case for the purpose of the
              juvenile filing a T.R. 60 motion for relief from judgment. Id. at
              1194.


[7]   M.Y.’s purported appeal was dismissed and the matter was remanded to allow

      M.Y. to file a Trial Rule 60 motion for relief from judgment. 681 N.E.2d at

      1179.


[8]   More recently, in J.H. v. State, 809 N.E.2d 456 (Ind. Ct. App. 2004), we

      addressed a purported appeal in similar circumstances. J.H. admitted the

      allegation against him and then appealed, arguing that his delinquency

      adjudication should be set aside because he did not freely and voluntarily waive

      his right to counsel at the initial hearing, inasmuch as he was not properly

      advised of the nature, extent and importance of his right to counsel. Id. at 457.

      He further claimed that the juvenile court erred in not warning him of the

      dangers of self-representation. Id. Observing that “the appropriate remedy for

      relief that a juvenile defendant must seek is through the filing of a Trial Rule 60

      motion,” the Court concluded that J.H. could not on direct appeal attack the

      validity of his admission to the juvenile offense. Id. at 458. The purported

      appeal was dismissed and the matter remanded for filing of a Trial Rule 60

      motion. Id.


[9]   Likewise, we are compelled to dismiss the instant purported appeal. We

      remand the cause to the trial court to permit J.W. to file a Trial Rule 60 motion

      to set aside the delinquency adjudication.



      Court of Appeals of Indiana | Memorandum Decision 33A04-1708-JV-1934 | December 11, 2017   Page 7 of 8
[10]   Dismissed and remanded.


       Kirsch, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A04-1708-JV-1934 | December 11, 2017   Page 8 of 8
