                                                                                Apr 22 2015, 9:32 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Laura M. Taylor                                            Gregory F. Zoeller
      Indianapolis, Indiana                                      Attorney General of Indiana

                                                                 Jonathan R. Sichtermann
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      M.M.,                                                      April 22, 2015

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A02-1409-JV-639
              v.                                                 Appeal from the Marion Superior
                                                                 Court

      State of Indiana,                                          The Honorable Marilyn A. Moores,
      Appellee-Plaintiff                                         Judge, The Honorable Geoffrey A.
                                                                 Gaither, Magistrate

                                                                 Cause No. 49D09-1308-JD-2364




      Najam, Judge.


                                         Statement of the Case
[1]   After adjudicating M.M. a delinquent for failing to stop after an accident, a

      Class C misdemeanor when committed by an adult, the juvenile court ordered

      M.M. to serve probation and, as a condition of that probation, to pay restitution

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      to his victim. Thereafter, the court discharged M.M. from probation, but it did

      not terminate his obligation to make restitution.1 M.M. appeals the court’s

      order and argues that Indiana law required the juvenile court to terminate his

      restitution obligation upon his discharge from probation. On this question of

      first impression, we hold that, when restitution is a condition of a juvenile’s

      probation, Indiana law does not require that the restitution obligation terminate

      upon the juvenile’s discharge from probation. Accordingly, we affirm on the

      merits of this appeal, but we remand with instructions that the court correct an

      error in one of its orders.


                                     Facts and Procedural History
[2]   On August 16, 2013, while driving a vehicle, M.M. struck a vehicle driven by

      Sherrie Cannon. M.M. did not stop immediately after the accident but was

      forced to stop shortly after a witness, Dawn Abbey, blocked M.M.’s vehicle

      with her own vehicle. Police arrived soon after and arrested M.M.


      1
        At its final dispositional hearing, the juvenile court stated that it was “reduc[ing]” the balance of M.M.’s
      restitution “to [a] civil judgment,” Tr. at 19, and the parties on appeal follow that language. While this
      language is common, we decline to use it on appeal because, as we explain below, the restitution obligation
      continued to be in full force and effect against M.M. despite his discharge from probation. The restitution
      order did not become a new “civil judgment,” nor did the juvenile court lose its jurisdiction over the order.
      See Wininger v. Purdue Univ., 666 N.E.2d 455, 457-58 (Ind. Ct. App. 1996) (discussing Indiana Code Section
      35-50-5-3), trans. denied. As we have explained in the context of Indiana Code Section 35-50-5-3, the adult
      restitution statute, a “restitution order is a judgment lien” and “may be enforced in the same manner as a
      judgment lien created in a civil proceeding,” but, while
               [a] restitution order is the practical equivalent of a civil money judgment, . . . for purposes
               of the restitution statute, I.C. 35-50-5-3, it substitutes for the civil judgment which is normally
               the basis for a judgment lien. Because the trial court must base its restitution order upon
               evidence of the crime victim’s actual loss, the victim is not obliged to subsequently pursue
               an independent civil action for money damages to enforce the restitution order, when the
               sole purpose of such an action would be to establish the amount of its loss.
      Id. at 458-59 (emphases added).

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[3]   On August 19, the State alleged M.M. to be a delinquent on the grounds that he

      had committed various traffic offenses. On September 13, M.M. admitted to

      the State’s allegation that he had failed to stop pursuant to Indiana Code

      Section 9-26-1-2, a Class C misdemeanor when committed by an adult.

      Pursuant to his admission agreement, M.M. agreed to pay $500 in restitution to

      Cannon. The court accepted M.M.’s admission agreement and placed M.M.

      on probation. The court ordered that restitution be made as a condition of

      M.M.’s probation.


[4]   On August 21, 2014, the court held a compliance hearing. At that hearing, the

      court discharged M.M. from probation but, over M.M.’s objection, refused to

      terminate his remaining restitution obligation of $473.2 That same day, the

      court entered two written orders reflecting its judgment at the hearing. Its

      “review order” (“the review order”) states, as the court did at the hearing, that

      M.M.’s restitution obligation remained in effect but that the “[c]ourt waive[d]

      fees and costs” against M.M. based on the court’s finding at the hearing that

      M.M. was “indigent to those matters.” Appellant’s App. at 119; Tr. at 19. But

      the court’s other order, titled its “judgment order for payment of unpaid court-

      ordered financial obligations” (“the judgment order”), states that, in addition to

      the $473 in remaining restitution, M.M. was required to pay an additional



      2
        The State does not suggest that the issue raised by M.M. on appeal—the juvenile court’s authority to
      continue his restitution obligation despite M.M.’s discharge from probation—is moot in light of M.M.’s
      discharge from probation. Cf. Tharp v. State, 942 N.E.2d 814, 816 n.1 (Ind. 2011) (holding that a
      probationer’s challenge to a condition of his probation was moot in light of the supreme court’s “[r]eversal of
      [the underlying] conviction and [the probationer’s] apparent completion of probation . . . .”) (emphasis
      added).

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      $118.25 in court fees. The judgment order simply identifies the remaining

      amount of restitution and the amount in court fees and then totals that amount.

      Appellant’s App. at 17. This appeal ensued.


                                      Discussion and Decision
[5]   M.M. asserts that the juvenile court erred as a matter of law when it refused to

      terminate his restitution obligation after it had discharged him from probation.

      We generally review a juvenile court’s restitution order for an abuse of

      discretion. T.C. v. State, 839 N.E.2d 1222, 1224 (Ind. Ct. App. 2005). “The

      purpose behind an order of restitution is to impress upon” a juvenile delinquent

      “the magnitude of the loss he has caused and to defray costs to the victim”

      caused by the delinquent act. Carswell v. State, 721 N.E.2d 1255, 1259 (Ind. Ct.

      App. 1999).


[6]   But M.M.’s argument on appeal requires this court to interpret various

      provisions of the Indiana Code. Statutory interpretation is a question of law

      and is reviewed de novo, or without deference to the trial court’s interpretation.

      Curley v. Lake Cnty. Bd. of Elections & Registration, 896 N.E.2d 24, 34 (Ind. Ct.

      App. 2008), trans. denied. “When a statute has not previously been construed,

      our interpretation is controlled by the express language of the statute and the

      rules of statutory construction.” State v. Prater, 922 N.E.2d 746, 748 (Ind. Ct.

      App. 2010), trans. denied. “If a statute is unambiguous, that is, susceptible to but

      one meaning, we must give the statute its clear and plain meaning.” Curley, 896

      N.E.2d at 34 (quotations omitted). “If a statute is susceptible to multiple


      Court of Appeals of Indiana | Opinion 49A02-1409-JV-639| April 22, 2015    Page 4 of 10
      interpretations, we must try to ascertain the legislature’s intent and interpret the

      statute so as to effectuate that intent.” Id. (quotation omitted). “We review the

      statute as a whole and presume the legislature intended a logical application of

      the language used in the statute, so as to avoid unjust or absurd results.” Prater,

      922 N.E.2d at 748. “[W]e must consider not only what the statute says but

      what it does not say.” Curley, 896 N.E.2d at 37. In other words, “we are

      obliged to suppose that the General Assembly chose the language it did for a

      reason.” Prater, 922 N.E.2d at 750.


[7]   We first consider Indiana Code Section 31-37-19-5(b)(4), which states in

      relevant part that the juvenile court may “[o]rder [a child found to be a

      delinquent] to pay restitution if the victim provides reasonable evidence of the

      victim’s loss, which the child may challenge at the dispositional hearing.” 3 No

      other applicable provision of the juvenile code on delinquency discusses

      restitution imposed during a delinquency proceeding. See generally Ind. Code

      art. 31-37. Although Section 31-37-19-5(b)(4) generally allows the juvenile

      court to order a juvenile to pay restitution, the statute is silent as to whether the

      court must terminate that obligation upon the juvenile’s discharge from

      probation when the restitution had been made a condition of the juvenile’s

      probation. Because Section 31-37-19-5(b)(4) is silent in this regard, M.M.

      asserts that “the juvenile court has not been granted authority” to continue the

      restitution obligation. Appellant’s Br at 3.



      3
          M.M. does not challenge the amount of his restitution.

      Court of Appeals of Indiana | Opinion 49A02-1409-JV-639| April 22, 2015     Page 5 of 10
[8]    But this court has held that “[t]he adult [restitution] statute is instructive when

       the juvenile statute is silent.” S.G. v. State, 956 N.E.2d 668, 683 (Ind. Ct. App.

       2011), trans. denied. Indeed, it is common in adult criminal proceedings for

       restitution to be made a condition of probation. See Ind. Code § 35-50-5-3(a).

       While the juvenile court’s order that restitution be a condition of M.M.’s

       probation is not within the plain text of Section 31-37-19-5(b)(4), M.M. does

       not suggest that the juvenile court erred when it made restitution a condition of

       his probation.


[9]    Instead, M.M. argues that the adult restitution statute, Section 35-50-5-3,

       cannot apply to him because, as a matter of law, “[p]roceedings in juvenile

       court are civil proceedings, not criminal in nature. An act of juvenile

       delinquency is not a crime.” M.R. v. State, 605 N.E.2d 204, 207 (Ind. Ct. App.

       1992). In contrast, the adult restitution statute is premised upon a criminal

       conviction. In this regard, Section 35-50-5-3 provides in relevant part:


               Except as provided [elsewhere], in addition to any sentence imposed
               under this article for a felony or misdemeanor, the court may, as a
               condition of probation or without placing the person on
               probation, order the person to make restitution to the victim of
               the crime, the victim’s estate, or the family of a victim who is
               deceased.


[10]   I.C. § 35-50-5-3(a) (emphasis added). Thus, because M.M.’s act of delinquency

       is not “a felony or misdemeanor,” M.M. contends that Section 35-50-5-3 does

       not apply to him.



       Court of Appeals of Indiana | Opinion 49A02-1409-JV-639| April 22, 2015       Page 6 of 10
[11]   M.M.’s reading of “felony or misdemeanor” supposes that the Indiana General

       Assembly used that language to distinguish the adult restitution statute from

       civil proceedings. But we think it is more plausible that the “felony or

       misdemeanor” language was intended to distinguish felonies and

       misdemeanors from infractions and ordinance violations. And while an act of

       juvenile delinquency is not a felony or a misdemeanor, this is not because the

       act did not harm the victim in the same manner as a felony or misdemeanor

       committed by an adult. Therefore, we hold that the General Assembly did not

       intend that Section 35-50-5-3 not apply to a delinquent act that would be a

       felony or misdemeanor if committed by an adult. Thus, we agree with S.G. that

       Section 35-50-5-3 “is instructive when the juvenile [restitution] statute is silent.”

       956 N.E.2d at 683.


[12]   Under the adult restitution statute, when restitution is made a condition of an

       adult’s probation the probationer is “not relieved of his obligation to make

       restitution when his probation end[s].” Wininger v. Purdue Univ., 666 N.E.2d

       455, 457 (Ind. Ct. App. 1996), trans. denied. Indeed, Indiana Code Section 35-

       50-5-3(f) states that a “restitution order is not discharged by the completion of

       any probationary period or other sentence imposed for a felony or

       misdemeanor.” As we have explained:


               Generally, once a term of probation has expired, the court loses
               all jurisdiction over the defendant and is powerless to enforce any
               conditions of the probation, even though it is aware the
               defendant has failed to meet a condition. White v. State, 560
               N.E.2d 45, 46 (Ind. 1990). However, the expiration of a
               probation period does not terminate an obligation to make
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        restitution to a crime victim.


        Unlike other conditions of probation, fines and restitution,
        because they can stand alone as a sentencing alternative, are
        considered “independent dispositions” which survive the
        expiration of the period of probation. People v. Bertalot, 518
        N.E.2d 467, 470 (Ill. App. Ct. 1987). Therefore, action can be
        taken either during or after the probationary period to recover
        restitution which was made a condition of the probation. Id.
        Our supreme court has implicitly recognized that the obligation
        to pay restitution survives the expiration of the probationary
        period. In Savage v. State, 655 N.E.2d 1223 (Ind. 1995), the
        defendant received a six year sentence, with two years suspended
        subject to specified conditions of probation. One of the
        conditions was that Savage make restitution in the amount of
        almost $165,000.00. The court upheld the restitution order even
        though it would likely require Savage to pay 100% of his
        discretionary income for a period longer than he could be
        expected to live, id. at 1224, and identified the trial court’s error
        as [a] failure to incorporate in its restitution order a periodic
        payment amount that Savage could afford. Id. at 1225. Any
        such payment schedule would necessarily require that the
        payments continue well beyond Savage’s period of probation.


        Further, our legislature has created an explicit exception to the
        general rule when restitution is a condition of probation. A court
        may order restitution either as a condition of probation or
        without placing the offender on probation. I.C. 35-50-5-3(a).
        But regardless of whether restitution is required as a condition of
        probation or as an independent sentence, the restitution order is
        not discharged by the completion of any probationary period.
        I.C. 35-50-5-3(f). One goal of restitution, as a condition of
        probation, is to compensate the aggrieved victim for monetary
        loss. See generally 24 C.J.S. Criminal Law sec. 1556 (1989). The
        legislature could not have intended that the amount of a victim’s
        compensation ultimately depend upon whether a restitution

Court of Appeals of Indiana | Opinion 49A02-1409-JV-639| April 22, 2015     Page 8 of 10
               order was imposed as a condition of probation or as an
               independent sentence. The plain language of the statute leaves
               no doubt that the legislature intended the victim’s compensation
               to be the same in either circumstance.


       Id. at 457-58.


[13]   A juvenile restitution order results from an act that would be a crime if

       committed by an adult, and, thus, it is equivalent to an adult restitution order.

       The rationale for not terminating a restitution obligation upon the discharge of

       an adult probationer from his probation applies with equal force in the juvenile

       context. Cf. M.L. v. State, 838 N.E.2d 525, 529 (Ind. Ct. App. 2005) (holding

       that, although the juvenile restitution statute does not expressly require the

       juvenile court to determine whether the juvenile has the ability to pay the

       restitution ordered as a condition of probation, the policies underlying the adult

       restitution’s command that a trial court make such an inquiry applies with

       equal force to juvenile courts), trans. denied. Thus, we hold that, as a matter of

       law, M.M’s restitution obligation did not terminate upon his discharge from

       probation, and we affirm the juvenile court.


[14]   Although we affirm on the merits of this appeal, in a footnote in his brief M.M.

       asserts that the juvenile court’s judgment order erroneously states that M.M. is

       obliged to pay court fees and costs in addition to his remaining restitution. As

       noted above, the juvenile court expressly found at the final dispositional hearing

       that M.M. is indigent as to court fees and costs. And the State does not dispute

       M.M.’s assertion that the judgment order is erroneous in this regard. Thus,


       Court of Appeals of Indiana | Opinion 49A02-1409-JV-639| April 22, 2015     Page 9 of 10
       although we affirm the court’s judgment, we remand with instructions that the

       court correct this error concerning court fees and costs in its judgment order.


[15]   Affirmed and remanded with instructions.


[16]   Baker, J., and Friedlander, J., concur.




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