MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                    Dec 27 2017, 9:07 am

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




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Robert J. Hardy                                          Curtis T. Hill, Jr.
Hardy Law Office                                         Attorney General of Indiana
Auburn, Indiana
                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

E.H.,                                                    December 27, 2017
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         57A05-1708-JV-2047
        v.                                               Appeal from the Noble Superior
                                                         Court
State of Indiana,                                        The Honorable Robert E. Kirsch,
Appellee-Petitioner.                                     Judge
                                                         Trial Court Cause No.
                                                         57D01-1612-JD-50



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 57A05-1708-JV-2047 | December 27, 2017             Page 1 of 9
                                               Case Summary
[1]   On December 14, 2016, Appellant-Petitioner the State of Indiana (“the State”)

      filed a delinquency petition alleging that Appellee-Respondent E.H. had

      committed what would be the following crimes if committed by an adult: (1)

      Level 5 felony dealing in marijuana, (2) Class B misdemeanor possession of

      marijuana, and (3) Class C misdemeanor possession of paraphernalia. On July

      5, 2017, E.H. admitted that he had committed what would be Level 5 felony

      dealing in marijuana if committed by an adult. Following a dispositional

      hearing, the juvenile court committed E.H. to the Indiana Department of

      Correction (“DOC”) for placement in the Indiana Boys’ School. On appeal,

      E.H. challenges his commitment to the DOC, arguing that he should have

      received a less restrictive placement. We affirm.



                                Facts and Procedural History
[2]   In the Fall of 2016, school officials initiated an investigation into drug use by

      students at West Noble Middle and High Schools. During the course of this

      investigation, a number of the students who were questioned indicated that they

      had purchased marijuana from E.H.1 Based on this information, School

      Resource Officer Brandon Chordas2 obtained a search warrant for E.H.’s home.




      1
          At the time of the investigation, E.H. was sixteen years old.
      2
        Officer Chordas is employed by the Noble County Sheriff’s Department and has been assigned to his
      placement as a school resource officer since the beginning of the 2014/2015 school year.

      Court of Appeals of Indiana | Memorandum Decision 57A05-1708-JV-2047 | December 27, 2017      Page 2 of 9
[3]   During execution of the search warrant, investigating officers found a large

      quantity of marijuana. They also found drug paraphernalia, scales, and wax

      marijuana. The items were all found in an upstairs bedroom “where [E.H.] was

      located.” Tr. Vol. II, p. 17.


[4]   E.H. cooperated with the officers and informed Officer Chordas as follows:


              That he goes to Ft. Wayne and he meets a guy by the name of T
              and buys a pound of marijuana at a time, usually, roughly a
              pound of marijuana for anywhere between Twenty-Five Hundred
              ($2,500.00) and Twenty-Seven Hundred Dollars ($2,700.00) a
              pound depending on the market and then he takes it home and
              divvies it up from there.


      Tr. Vol. II, pp. 21–22. E.H. “divvies” up the marijuana by breaking “it down

      into quarter pound” increments. Tr. Vol. II, p. 22. E.H. then sells each quarter

      pound increment for “anywhere from $750.00 to $900.00 [d]ollars.” Tr. Vol. II,

      p. 22. E.H. also indicated that, on one occasion, he had “gone out toe [sic]

      Colorado with his brother to purchase” edible marijuana products. Tr. Vol. II,

      p. 23. E.H. estimated that he had been selling marijuana for approximately six

      months and provided the names of numerous individuals to whom he had sold

      marijuana.


[5]   On December 14, 2016, the State filed a delinquency petition alleging that E.H.

      had committed what would be the following crimes if committed by an adult:

      (1) Level 5 felony dealing in marijuana, (2) Class B misdemeanor possession of

      marijuana, and (3) Class C misdemeanor possession of paraphernalia. On July

      5, 2017, E.H. admitted that he had committed what would be Level 5 felony
      Court of Appeals of Indiana | Memorandum Decision 57A05-1708-JV-2047 | December 27, 2017   Page 3 of 9
      dealing in marijuana if committed by an adult. Following his admission, E.H.

      was placed on home detention until his dispositional hearing. E.H. submitted

      to a drug screen on August 4, 2017. The results of this screen tested positive for

      methamphetamine and amphetamine.


[6]   During the dispositional hearing, Paul Winebrenner, the probation officer

      assigned to E.H.’s case, made the following recommendation:


              So, my recommendation is for Boy’s School. I think it is most
              appropriate and affords him the opportunity to get an education.
              He will have the opportunity to get substance abuse counseling if
              he or they believe that that is an issue, and it will give him the
              ability to daily examine his choices and how they will affect his
              life, his family’s life and his future. In doing community
              supervision I am not sure that it is a daily focus. As a matter of
              fact, I know it is not a daily focus because he is not going to
              counseling every single day. So, I do believe that that is the most
              appropriate option available to the Court and I recommend that
              the Court adopt that recommendation.


      Tr. Vol. II, pp. 80–81. In making this recommendation, Winebrenner noted (1)

      the seriousness of E.H.’s offense, (2) E.H.’s minimal compliance with the terms

      of his home detention, (3) E.H.’s failure to acknowledge that he had a substance

      abuse problem, and (4) the difficulty in determining whether E.H. was being

      truthful during assessments. Winebrenner further noted E.H.’s assertion that “I

      know that I am on house arrest, but guess what I am going to do what I want.”

      Tr. Vol. II, p. 80.




      Court of Appeals of Indiana | Memorandum Decision 57A05-1708-JV-2047 | December 27, 2017   Page 4 of 9
[7]   Following the dispositional hearing, the juvenile court committed E.H. to DOC

      for placement in the Indiana Boys’ School. In committing E.H. to DOC, the

      juvenile court made the following statement:


              Your sister indicated that she still has hope, well we all have
              hope. Without hope we are nothing. We all have hope. We all
              want you to recover from any addiction that you are suffering
              from and I do not look at Boys’ School as being punishment, not
              direct punishment. There may be a punitive aspect to it, but no
              Boys’ School is one of the tools available to the juvenile justice
              system that provides us an opportunity to provide you with the
              structure, supervision, direction, programs that are necessary to
              recover. It is one of the many things that we can look at. I don’t
              like the idea, I mean I like to avoid taking somebody, a young
              man out of the community or out away from his family, but on
              occasion that is necessary. In this particular case, I believe it is
              necessary. I believe that we’ve reached a point where you have
              demonstrated through your positive drug screen that you have a
              very serious problem, number one, uh, that that problem exists
              even while you are in the community and we’ve got you on
              home detention and we, uh, you are in treatment but yet you are
              still using. And also, then tied with the nature of the offense
              itself, the dealing in marijuana and the scope of that enterprise,
              uh, I don’t think I can keep you in the community at this point in
              time. Now once again, Boys’ School is just a treatment option
              and in my opinion and at this point it is the best treatment option
              I have because at least at Boys’ School I number one know you
              are going to get an education, number two, I know you are going
              to be safe and you are not going to have access to
              methamphetamine at least that is my sincere hope. Uh, you are
              going to get treatment for your addiction. That is the best thing I
              have available to me at this time. So, the Court is going to enter
              a commitment to the [DOC] for placement of the juvenile at the
              Indiana Boys’ School.



      Court of Appeals of Indiana | Memorandum Decision 57A05-1708-JV-2047 | December 27, 2017   Page 5 of 9
      Tr. Vol. II, pp. 90–91. This appeal follows.



                                 Discussion and Decision
[8]   E.H. contends that the juvenile court abused its discretion in committing him to

      the DOC for placement at the Indiana Boys’ School. In determining whether

      the juvenile court properly placed E.H. with the DOC, “we note that the choice

      of the specific disposition of a juvenile adjudicated a delinquent child is a matter

      within the sound discretion of the juvenile court and will only be reversed if

      there has been an abuse of that discretion.” J.S. v. State, 881 N.E.2d 26, 28

      (Ind. Ct. App. 2008) (citing E.L. v. State, 783 N.E.2d 360, 366 (Ind. Ct. App.

      2003)).


              The juvenile court’s discretion is subject to the statutory
              considerations of the welfare of the child, the safety of the
              community, and the policy of favoring the least harsh
              disposition. C.C. v. State, 831 N.E.2d 215, 216–17 (Ind. Ct. App.
              2005). An abuse of discretion occurs when the juvenile court’s
              action is clearly erroneous and against the logic and effect of the
              facts and circumstances before the court or the reasonable,
              probable, and actual inferences that can be drawn therefrom. Id.
              Hence, the juvenile court is accorded wide latitude and great
              flexibility in its dealings with juveniles. C.T.S. v. State, 781
              N.E.2d 1193, 1203 (Ind. Ct. App. 2003).


      Id.


[9]   Indiana Code section 31-37-18-6 sets forth the following factors that a juvenile

      court must consider when entering a dispositional decree:


      Court of Appeals of Indiana | Memorandum Decision 57A05-1708-JV-2047 | December 27, 2017   Page 6 of 9
               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;
               (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.


       As we noted in J.S., Indiana Code section 31-37-18-6 requires the juvenile court

       to select the least restrictive placement in most situations. 881 N.E.2d at 28–29.

       However, the statute contains language that reveals that a more restrictive

       placement might be appropriate under certain circumstances. “That is, the

       statute requires placement in the least restrictive setting only “[i]f consistent

       with the safety of the community and the best interest of the child.’” Id. at 29

       (quoting Indiana Code § 31-37-18-6). “Thus, the statute recognizes that in

       certain situations the best interest of the child is better served by a more

       restrictive placement.” Id. (citing K.A. v. State, 775 N.E.2d 382, 386–87 (Ind.

       Ct. App. 2002)).


[10]   E.H. claims that the juvenile court abused its discretion in committing him to

       the DOC because a less restrictive option, i.e., home detention, was available.

       The record, however, shows that the juvenile court found that given the


       Court of Appeals of Indiana | Memorandum Decision 57A05-1708-JV-2047 | December 27, 2017   Page 7 of 9
       circumstances of this case, home detention was not a viable option. First,

       E.H.’s criminal actions negatively impacted the community. E.H. admitted to

       selling relatively large quantities of marijuana. E.H. also admitted that a

       number of his customers were juveniles. The record reveals that at least some

       of these juveniles have faced suspension or expulsion from school because of

       their purchases of marijuana from E.H.


[11]   Second, E.H. was placed on home detention following his admission and prior

       to the dispositional hearing. During this time, he showed minimal compliance

       with the terms of his home detention and tested positive for drugs, including

       methamphetamine. E.H. also failed to acknowledge that he had a substance

       abuse problem. Service providers expressed difficulty in determining whether

       E.H. was being truthful during assessments. E.H. also displayed a disregard for

       the conditions of his home detention, telling his probation officer “I know that I

       am on house arrest, but guess what I am going to do what I want.” Tr. Vol. II,

       p. 80. Third, although no formal legal action had previously been taken, E.H.

       had been referred to the Noble County Probation Department on three separate

       occasions before the State initiated the instant juvenile proceedings.


[12]   The juvenile court expressed its reluctance to remove a juvenile from his family,

       but found that such was necessary here. Based on our review of the record, we

       cannot say that such a finding constituted an abuse of the juvenile court’s

       discretion.


[13]   The judgment of the juvenile court is affirmed.


       Court of Appeals of Indiana | Memorandum Decision 57A05-1708-JV-2047 | December 27, 2017   Page 8 of 9
Robb, J., and Crone, J., concur.




Court of Appeals of Indiana | Memorandum Decision 57A05-1708-JV-2047 | December 27, 2017   Page 9 of 9
