MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                                 FILED
this Memorandum Decision shall not be
                                                                                   Jan 31 2019, 7:22 am
regarded as precedent or cited before any
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
Renee M. Ortega                                           Curtis T. Hill, Jr.
Lake County Juvenile Public Defender’s                    Attorney General of Indiana
Office
Crown Point, Indiana                                      Monika Prekopa Talbot
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

J.F.,                                                     January 31, 2019
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          18A-JV-2016
        v.                                                Appeal from the Lake Superior
                                                          Court
State of Indiana,                                         The Honorable Robert G. Vann,
Appellee-Petitioner.                                      Magistrate
                                                          The Honorable Thomas P.
                                                          Stefaniak, Judge
                                                          Trial Court Cause No.
                                                          45D06-1801-JD-15



Brown, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-JV-2016 | January 31, 2019                    Page 1 of 15
[1]   J.F. appeals the juvenile court’s dispositional order awarding wardship of him

      to the Department of Correction (the “DOC”) for housing in any correctional

      facility for children. J.F. raises two issues which we revise and restate as:


            I.    Whether J.F. received ineffective assistance of counsel; and

           II.    Whether the juvenile court abused its discretion when it
                  awarded wardship to the DOC.

      We affirm.


                                       Facts and Procedural History

[2]   On January 16, 2018, a pizza was ordered to be delivered to the Merrillville,

      Indiana, apartment of J.F., born on December 1, 2002. J.F. was armed with a

      deadly weapon, to wit a “B.B. gun,” threatened Javier Guana, Jr., the pizza

      delivery driver, with the gun and to use force against him, and took $50.00 from

      Guana. Transcript at 4.


[3]   On January 19, 2018, the State filed a delinquency petition under cause number

      45D06-1801-JD-15 (“Cause No. 15”), alleging J.F. committed what would be a

      level 3 felony if committed by an adult. On the same day, a Probation Officer

      Hearing Report was filed which states J.F. “has a lengthy history with this

      court,” he “is currently before this Court for a detention hearing for the Armed

      Robbery-Complaint #6,” “[t]his is his 6th Delinquency with a 7th is [sic]

      pending,” “[p]robation has been advised by the prosecutor[’]s office that there

      will be an 8th Complaint for Armed Robbery as well which hasn’t been entered




      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2016 | January 31, 2019   Page 2 of 15
into QUEST yet.” 1 Appellant’s Appendix Volume II at 61. The report further

states that J.F.’s “prior history with the court is Complaint #5 (Unauthorized

Entry of a Motor Vehicle) opened as of 12/12/17,” that J.F. was “currently on

In-House Detention, Level 2,” that his “first involvement with a delinquency in

this court was when he was 12 years old,” and that he had returned from living

with his aunt in Florida and been in Indiana for two days before he was arrested

“for Complaint #4 in Lake County.” Id. at 61-62. The report indicates that

J.F. denied any involvement with gangs although he has previously self

reported to be involved with the Gangster Disciples and that he had a history of

being involved with a gang along with his older brother. It states that J.F. has

had eleven positive drug screens while on probation supervision, that he tested

positive for marijuana on December 11, 2017, that J.F.’s home frequently

smells of marijuana, and that J.F. has presented as “being very high with erratic

behaviors.” Id. at 62. It observes that, during the intake also on December 11,

2017, J.F. stated “he only used marijuana when he needed to ‘calm down’,” he

stated he uses maybe once every three months, and when asked how old he was

when he first tried marijuana he stated he had never used. Id. It further states

J.F.’s monitor has “shown Master Tamper on multiple occasions,” he had

admitted to messing with the monitor, and that “[a]fter inspection, it was clear

that [J.F.] had tampered with his monitor.” Id.




1
 In his appellant’s brief, J.F. states that “[t]here were also additional charges pending under a separate cause
number for an additional charge of Armed Robbery.” Appellant’s Brief at 5 (citing Appellant’s Appendix
Volume II at 5, 62-63).

Court of Appeals of Indiana | Memorandum Decision 18A-JV-2016 | January 31, 2019                    Page 3 of 15
[4]   On June 19, 2018, the juvenile court held an omnibus hearing, at which J.F.

      tendered a plea of guilty in Cause No. 15 and the court found an adequate

      factual basis and adjudicated J.F. delinquent of the act of armed robbery, a level

      3 felony, if committed as an adult. The State moved to dismiss cause numbers

      45D06-1712-JD-755 and 45D06-1801-JD-25, and the court granted the motions

      and dismissed the cases. The court then asked counsel, “[a]re we prepared to

      go to Disposition, or do I need to order a Pre-Dispositional Report, and set it

      for Disposition,” J.F.’s counsel stated, “[i]t was our intent to proceed today,

      Judge,” and the prosecutor agreed. Id.


[5]   The Court then asked for “[r]ecommendations, Probation,” and Beth Lynn

      Rechlicz testified:


              Your Honor, packets were sent to multiple residential facilities,
              including SEQUEL, Gibault’s, Wernle, White’s (Wabash), Rite
              of Passage (South Bend), Rite of Passage (Hillcrest), Youth
              Villages, um, and all of these facilities have denied [J.F.] into
              their program. They felt that he was not amenable to treatment;
              therefore, probation is recommending Department of
              Corrections. We’re asking that [J.F.] remain detained pending
              transportation, as he’s a danger to the community and unlikely to
              appear for future hearings. We’re asking that [J.F.] be released
              from probation as failed. Um, prior to his successful release from
              the Department of Corrections, probation recommends that he
              participate in TRP services through NYAP. We feel that [J.F.]
              has displayed an unwillingness to participate in services that have
              been provided through this court. We’re asking for DOC.


      Id. at 7-8. At the conclusion of Rechlicz’s statement, J.F.’s counsel asked to

      cross-examine her, the court asked the State if it had any recommendations that

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2016 | January 31, 2019   Page 4 of 15
      “differ from those,” and the State replied in the negative and stated that it

      “would agree with probation at this time.” Id. at 8. Rechlicz later indicated

      during her examination by J.F.’s counsel that she did not interview any staff

      members at the Lake County Juvenile Detention Center and that the staff

      members “provide[d] a report, which I placed in . . . the body of my report.”

      Id. at 10.


[6]   J.F. presented the testimony of Eric Hamilton, assistant director of Juvenile

      Services for the Lake County Juvenile Detention Center, who indicated that he

      saw and had contact with J.F. every week since he was “detained on

      12/11/2017.” Id. at 13. When asked to describe how J.F. had been doing,

      Hamilton stated:


              On February 22nd, 2018, [J.F.] was named in an incident where
              he would not follow directions, and continued to try and take
              supplies from the therapist that comes in that works with the
              residents. On . . . February 26th, 2018, [J.F.] was named in an
              incident where he attempted to steal the pencil lead from a pencil
              he was using during class. Upon returning the pencil, when class
              was over, Detention Officer noticed that the pencil was damaged,
              and missing a portion of the lead. [J.F.] eventually returned the
              lead after not telling the truth and stating that he threw it away.
              On March 11th, 2018, [J.F.] was named in an incident where he
              went into another resident’s room and threw all the blankets and
              the mattresses on the floor. When the resident was told to go
              down and clean his room, [the staff] was unaware that [J.F.] had
              messed it up, and [J.F.] ran down to the room and attacked this




      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2016 | January 31, 2019   Page 5 of 15
         resident.[ 2] When confronted, [J.F.] stated that they were shadow
         boxing and that . . . it wasn’t anything serious; however, sayer
         (sic) resident was sent on a medical run to the E.R. and visible
         swelling and bruising was left to, was left to his left eye. Staff
         was later advised by other residents present on the POD at that
         time that the altercation started because [J.F.] was attempting to
         bully this resident for his snacks. This resident confirmed that he
         was being bullied by [J.F.].


Id. at 13-14. When asked whether J.F. has “progressed, has he gotten better

since being in your facility,” Hamilton stated:


         Uh, yes, sir. He’s turned it around. He’s taken advantage of our
         programs. He’s currently on Phase 4. Uh, when he first came in,
         he was a little reckless, he was hardheaded, but now I think [J.F.]
         has matured a little bit, and he assists staff now; he’s become
         more of a role model in the back; and his progress has become
         positive.


Id. at 14. After additional questioning, J.F.’s counsel asked Hamilton if he had

recommendations for the court and Hamilton stated, “Um, well, I would have

to concur with probation at this time, um, but I do believe [J.F.] has made leaps

and bounds, has become a better individual, and if given a second chance, I

believe he will do good in society.” Id. at 15.




2
  The transcript indicates that Hamilton testified “When the resident was told to go down and clean his
room, [J.F.] was unaware that he had messed it up, and [J.F.] ran down to the room and attacked this
resident.” Transcript Volume II at 14. A copy of a Resident Behavioral Overview for J.F., dated June 18,
2018, states with regard to the March 11, 2018 incident that “[w]hen [the other resident] was told by staff to
go down and clean his room, as they were unaware [J.F.] as [sic] messed it up, [J.F.] ran down to the room
and jumped [the other resident].” Exhibits Volume at 4.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-2016 | January 31, 2019                   Page 6 of 15
[7]   During cross-examination, Hamilton testified that J.F.’s last incident in the

      juvenile center occurred on May 26, 2018, that he “was named in an incident

      where he came into the possession of contraband that had been smuggled into

      the facility,” that “[i]t was recorded on camera that resident was going to Room

      H-104 on Hotel Pod, that individual bent over and grabbed something that was

      placed under the door by a weekend resident showering next door, and passed

      it to [J.F.], while he was in Room H-105,” and that it “was never confirmed

      exactly what was passed to [J.F.].” Id. at 17. When the prosecutor later asked

      Hamilton if he felt that J.F. was still aggressive, he stated that J.F. becomes

      aggressive in certain situations, “but overall, his attitude has changed from

      when he first came here.” Id. at 18. He answered affirmatively to the question

      “[b]ut he’s still getting himself in to situations that are against the rules of

      LCJC” and stated that J.F. had at least six infractions since he had been in the

      facility. Id. At the conclusion of Hamilton’s testimony, J.F.’s counsel indicated

      he “was going to call mom” to testify, and Keshuna Billingley testified she

      thought J.F. had learned a lesson and was asking if he could come home. Id. at

      19.


[8]   At the conclusion of J.F.’s evidence, his counsel asked that the court place him

      on probation supervision and the probation department requested placement at

      the DOC when asked by the court to respond. On July 20, 2018, the court

      issued a dispositional order in which it awarded wardship of J.F. to the DOC

      for housing in any correctional facility for childen, found it was in J.F.’s best

      interests to be removed from the home environment and that remaining in the


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2016 | January 31, 2019   Page 7 of 15
       home would be contrary to his welfare because he was engaging in dangerous

       behaviors which jeopardize his physical and mental health, and recommended

       that the DOC determine if he “meets criteria according to DOC policy to be

       placed on parole supervision.” Appellant’s Appendix Volume II at 139.


                                                    Discussion

                                                          I.

[9]    The first issue is whether J.F. received ineffective assistance of counsel. J.F.

       argues that he received ineffective assistance during the June 19, 2018 omnibus

       hearing when his counsel waived the pre-dispositional report and proceeded to

       disposition with no prepared report “other than []Rechlicz’s probation reports

       which contain[ed] information on placements that were four months old.”

       Appellant’s Brief at 8. According to J.F., his outcome “may have been

       substantially different” but for counsel not waiving the pre-dispositional report.

       Id.


[10]   J.F. maintains that his counsel’s performance be assessed under the two-prong

       standard found in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984),

       reh’g denied, but contends it would also fail under a due process standard “which

       states that ‘if counsel appeared and represented the petitioner in a procedurally

       fair setting which resulted in a judgment of the court, it is not necessary to judge

       his performance by rigorous standards.’” Appellant’s Brief at 7 (quoting A.M. v.

       State, 109 N.E.3d 1034, 1041 (Ind. Ct. App. 2018) (quoting Jordan v. State, 60

       N.E.3d 1062, 1068 (Ind. Ct. App. 2016)), reh’g denied, trans. pending.


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2016 | January 31, 2019   Page 8 of 15
[11]   Observing that Indiana courts have not squarely addressed whether the

       Strickland test or the due process test is the proper test to be used in analyzing

       the effectiveness of juvenile counsel during the various phases of delinquency

       proceedings, see A.M., 109 N.E.3d at 1041 (noting the same), and without

       deciding that juveniles in the various phases of delinquency proceedings are

       entitled to application of the same assistance of counsel standards as those

       applied in adult criminal cases, we find that J.F. did not receive ineffective

       assistance of counsel.


[12]   Even reviewing counsel’s representation under the Strickland standard, which

       both parties agree is more stringent than the due process alternative, we cannot

       say that J.F. received ineffective assistance. Generally, to prevail on a claim of

       ineffective assistance of counsel a petitioner must demonstrate both that his

       counsel’s performance was deficient and that the petitioner was prejudiced by

       the deficient performance. French v. State, 778 N.E.2d 816, 824 (Ind. 2002)

       (citing Strickland, 466 U.S. 668, 104 S. Ct. 2052). A counsel’s performance is

       deficient if it falls below an objective standard of reasonableness based on

       prevailing professional norms. Id. To meet the appropriate test for prejudice,

       the petitioner must show that there is a reasonable probability that, but for

       counsel’s unprofessional errors, the result of the proceeding would have been

       different. Id. A reasonable probability is a probability sufficient to undermine

       confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001)

       (citing Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). Failure to satisfy either




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2016 | January 31, 2019   Page 9 of 15
       prong will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective

       assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.


[13]   When considering a claim of ineffective assistance of counsel, a “strong

       presumption arises that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional

       judgment.” Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s

       performance is presumed effective, and a defendant must offer strong and

       convincing evidence to overcome this presumption.” Williams v. State, 771

       N.E.2d 70, 73 (Ind. 2002). Evidence of isolated poor strategy, inexperience, or

       bad tactics will not support a claim of ineffective assistance of counsel. Clark v.

       State, 668 N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S.

       1171, 117 S. Ct. 1438 (1997). “Reasonable strategy is not subject to judicial

       second guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not

       lightly speculate as to what may or may not have been an advantageous trial

       strategy as counsel should be given deference in choosing a trial strategy which,

       at the time and under the circumstances, seems best.” Whitener v. State, 696

       N.E.2d 40, 42 (Ind. 1998).


[14]   Initially, we note the contrast between a reasonable probability, defined as “a

       probability sufficient to undermine confidence in the outcome,” Perez, 748

       N.E.2d at 854 (citing Strickland, 466 U.S. at 694, 104 S. Ct. at 2068), and J.F.’s

       own position when he asserts that his outcome “may have been substantially

       different” had counsel not waived the report. Appellant’s Brief at 8. Moreover,

       while J.F. argues that his trial counsel’s waiver of the pre-dispositional report

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2016 | January 31, 2019   Page 10 of 15
       resulted in the lack of a report other than Rechlicz’s probation reports,

       Hamilton, the assistant director of Juvenile Services for the Lake County

       Juvenile Detention Center, where J.F. had been housed for the months

       preceding the dispositional hearing, ultimately recommended placement in the

       DOC. Under these circumstances, we cannot say that J.F. has demonstrated

       that he was prejudiced.


                                                         II.

[15]   The second issue is whether the juvenile court abused its discretion in awarding

       wardship of J.F. to the DOC for housing in any correctional facility for

       children. The juvenile court is given “wide latitude and great flexibility” in

       determining the specific disposition for a child adjudicated a delinquent. D.A. v.

       State, 967 N.E.2d 59, 65 (Ind. Ct. App. 2012). However, its discretion is

       circumscribed by Ind. Code § 31-37-18-6, which provides:


               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

                                  (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;



       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2016 | January 31, 2019   Page 11 of 15
                        (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.


[16]   “Under the statute, placement in ‘the least restrictive (most family like) and

       most appropriate setting available’ applies only ‘[i]f consistent with the safety of

       the community and the best interest of the child.’” J.D. v. State, 859 N.E.2d

       341, 346 (Ind. 2007) (quoting Ind. Code § 31-37-18-6).


[17]   A disposition will not be reversed absent a showing of an abuse of the juvenile

       court’s discretion, which occurs when the juvenile court’s order is clearly

       against the logic and effect of the facts and circumstances before the court or the

       reasonable inferences that can be drawn therefrom. R.H. v. State, 937 N.E.2d

       386, 388 (Ind. Ct. App. 2010).


[18]   J.F. argues that he did not have the benefit of availing himself of services and

       showed himself to be amenable to treatment while detained. He contends that

       his family did not cooperate with probation to obtain “those services in place

       which may have made a difference.” Appellant’s Brief at 10. He also asserts

       that the adjudication and dispositional hearings were held almost four months

       after the packets for residential placements had been sent out and subsequently

       rejected, that the new information “provided by Hamilton and the other

       witness” as to how J.F.’s behavior and attitude had changed while detailed

       could have been relevant had updated packets been sent out, and that a less



       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2016 | January 31, 2019   Page 12 of 15
       restrictive placement could have been found had probation provided updated

       information to the placements. Id. at 11.


[19]   The State maintains that the DOC is the best option based on J.F.’s history of

       felony level offenses and probation violations. The State contends in part that

       the current delinquency petition against J.F. was its sixth; that two other

       delinquency petitions were filed against him while he was in the juvenile

       detention center, one of which involved another armed robbery; and that he

       committed six infractions while in the juvenile facility. It contends further that

       probation had proven unsuccessful because J.F. continued committing

       delinquent acts and tampered with his ankle monitor.


[20]   The January 19, 2018 Probation Officer Hearing Report states J.F. was serving

       in-house detention, that his first involvement with a delinquency occurred at

       age twelve, and that his prior history involved a fifth complaint opened as of

       December 12, 2017, for unauthorized entry of a motor vehicle. It states that the

       delinquency alleged in Cause No. 15 was his sixth, that a seventh delinquency

       was pending, and that the prosecutor’s office had advised the probation

       department that there was an eighth complaint for armed robbery which had

       not yet been entered into QUEST. It states he had self-reported involvement

       with the Gangster Disciples and had a history of being involved with a gang

       along with his older brother, had tested positive for marijuana on December 11,

       2017, as well as in eleven drug screens while on probation supervision, had

       denied marijuana usage after having admitted it, and had admitted to messing

       with his monitor.

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2016 | January 31, 2019   Page 13 of 15
[21]   J.F. tendered a plea of guilty in Cause No. 15, and the court adjudicated him

       delinquent of armed robbery, a level 3 felony, if committed as an adult and

       dismissed cause numbers 45D06-1712-JD-755 and 45D06-1801-JD-25. During

       the hearing that followed, the probation department recommended placement

       in the DOC, the State indicated it “would agree with probation,” and, when

       asked during examination if he had recommendations for the court, Hamilton

       stated he “would have to concur with probation at this time, um, but I do

       believe [J.F.] has made leaps and bounds.” Id. at 8, 15. Hamilton also testified

       to J.F.’s behavior and involvement in four incidents in the Lake County

       Juvenile Detention Center. We note that the last of these incidents occurred

       less than a month prior to the June 19, 2018 omnibus hearing and that the

       March 11, 2018 incident resulted in a resident being sent to the E.R. and in

       visible swelling and bruising to his left eye.


                                                    Conclusion

[22]   Under these circumstances and in light of J.F.’s prior history of delinquent

       behavior, we conclude that the disposition ordered by the juvenile court, which

       awarded wardship of J.F. to the DOC and recommended a determination of

       whether he met criteria to be placed on parole supervision, is consistent with his

       best interest and the safety of the community. We find no abuse of discretion.


                                                    Conclusion

[23]   For the foregoing reasons, we affirm the juvenile court’s order.


[24]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2016 | January 31, 2019   Page 14 of 15
Bailey, J., and Bradford, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-JV-2016 | January 31, 2019   Page 15 of 15
