M.H. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Oct 14 2015, 9:44 am this Memorandum Decision shall not be Oct 14 2015, 9:44 am

regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. O’Connor Gregory F. Zoeller O’Connor & Auersch Attorney General of Indiana Indianapolis, Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

M.H., October 14, 2015 Appellant-Respondent, Court of Appeals Case No. 49A02-1503-JV-168 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Marilyn A. Appellee-Petitioner Moores, Judge The Honorable Jennifer Hubartt, Magistrate Trial Court Cause No. 49D09-1412-JD-2909

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 49A02-1503-JV-168 | October 14, 2015 Page 1 of 3 [1] On December 5, 2014, the State filed a petition alleging that M.H. had

committed an act that would have been Level 6 felony battery had it been

committed by an adult. On February 5, 2015, M.H. admitted to the allegations

and was adjudicated delinquent. [2] The juvenile court held a dispositional hearing on February 26, 2015. At that

hearing, the following undisputed evidence was admitted:

 The victim of the offense sustained injuries causing her to incur medical expenses totaling $1,340.58.  M.H. was unemployed and had no bank accounts and no savings.  M.H. had applied for a job at Papa John’s but did not get the job.  M.H. lived with his grandmother, who receives Social Security income and adoption assistance but no other income. No one in M.H.’s household receives income aside from government assistance.  M.H. occasionally gets pocket money of around $20.  M.H. smokes two blunts of marijuana every two or three days. He does not know where he finds the money to purchase the marijuana.

The juvenile court entered a dispositional order placing M.H. on probation.

Among other things, a “special condition” of M.H.’s probation is that he pay

restitution in the amount of $1,340.58. Appellant’s App. p. 10. [3] 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

Court of Appeals of Indiana | Memorandum Decision 49A02-1503-JV-168 | October 14, 2015 Page 2 of 3

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

determines he is unable to meet its terms. Id. [4] The State argues that we should find the juvenile court’s restitution order to be

a standalone restitution order as opposed to a condition of M.H.’s probation.

We decline this invitation. The disposition order clearly lists the restitution

payment under the “special conditions” of M.H.’s probation. Appellant’s App.

p. 10. Therefore, it is apparent that restitution was a condition of probation. [5] The evidence is undisputed that M.H. is unemployed and has no bank account

and no savings. No one in his household receives income other than

government assistance. While he somehow finds the money to smoke

marijuana regularly, there was no evidence regarding the cost of a marijuana

blunt, and no evidence that he was being dishonest with the court regarding the

sole source of his spending money—occasional pocket money totaling

approximately $20. Under these circumstances, there is no evidence in the

record supporting a conclusion that he is remotely able to pay restitution in any

amount, much less an aggregate amount exceeding $1,000. We can only

conclude that the juvenile court abused its discretion in ordering restitution as a

condition of probation. [6] The judgment of the juvenile court is reversed and remanded with instructions

to modify M.H.’s dispositional order consistent with this opinion.

Bailey, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1503-JV-168 | October 14, 2015 Page 3 of 3