Gingerich v. State

• Citation: 979 N.E.2d 694
• Decision Date: 11 December 2012
• Docket Number: No. 43A05–1101–CR–27.,43A05–1101–CR–27.
• Parties: Paul Henry GINGERICH, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

979 N.E.2d 694

Paul Henry GINGERICH, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 43A05–1101–CR–27.

Court of Appeals of Indiana.

Dec. 11, 2012.

Monica Foster, Indianapolis, IN, Attorney for Appellant.

Marsha L. Levick, Juvenile Law Center, Philadelphia, PA, Joel M. Schumm, Indianapolis, IN, Attorneys for Amicus Curiae.

Robert J. Hill, Victoria L. Bailey, Indianapolis, IN, Attorneys for Amicus Curiae, Marion County Public Defender Agency.

Erin Davies, Children's Law Center, Inc., Covington, KY, Michael Jenuwine, Notre Dame Legal Aid Clinic, South Bend, IN, Attorneys for Amicus Curiae, Children's Law Center, Inc., National Juvenile Defender Center, and Campaign for Youth Justice.

Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BROWN, Judge.

Paul Henry Gingerich appeals his conviction for conspiracy to commit murder as a class A felony.¹ Gingerich raises five issues, one of which we find dispositive and which we revise and restate as whether the juvenile court abused its discretion when it denied Gingerich's request for a continuance of the waiver hearing.² We reverse and remand.

FACTS AND PROCEDURAL HISTORY

In April 2010, Gingerich was twelve years and two months old, stood about 5' 2?, weighed about eighty pounds, and was a sixth grader at Wawassee Middle School. On April 20, 2010, Gingerich and Colt Lundy shot and killed Philip Danner, Lundy's stepfather, and they were subsequently apprehended in Peru, Illinois, while traveling to Arizona.

On April 22, 2010, the court held a detention/probable cause hearing in which Gingerich was represented by Thomas W. Earhart. Detention of Gingerich was authorized, the State requested to file a delinquency petition, the court authorized the filing of the petition, and the State filed a motion to waive juvenile jurisdiction pursuant to Ind.Code § 31–30–3–4. That same day, the court set the matter for hearing on April 29, 2010. On April 27, 2010, Gingerich filed a motion to continue the waiver hearing, stating that "such hearing date does not allow Counsel ... sufficient time to prepare for such hearing" and noted specifically that "counsel needs time to (a) identify and interview potential witness[es] on behalf of [Gingerich]; (b) obtain and review exhibits for presentation; [and] (c) conduct its own investigations as it has not received from the State any witness or client statements, autopsy reports, coroner reports, ballistic reports or forensic reports." Appellant's Appendix at 10. Gingerich's counsel also stated in the motion that he "believes that it is in the best interest of his client that a psychological and/or psychiatric evaluation be done," that this could not be accomplished prior to the hearing, and concluded that "without additional time, the matters to be determined at the waiver hearing cannot be completely and fairly heard and determined." Id.

On April 29, 2010, the court denied Gingerich's motion to continue and held a waiver hearing. At the outset, Gingerich renewed his motion to continue the hearing, noting that "we are at a critical stage in these proceedings," that "[t]he decisions made by the Court today are going to be life altering," and that "we do not feel that we have had adequate time to prepare for this waiver hearing...." Waiver Transcript at 3.³ Gingerich noted that he had had only four business days to conduct any investigation,⁴ had not received any discovery materials from the State, and that because of this short timeframe he had not interviewed witnesses, obtained exhibits, done depositions, or obtained third party discovery. He also stated that he felt it important "to have evaluations done by the Bowen Center with respect particularly to our client and in talking with them, they indicated that once an appointment is made, it might be two or three weeks until they could do the evaluation and make the report." Id. at 4. Gingerich also argued that additional time to prepare was critical because, pursuant to statute, the burden of proof had shifted from the State to Gingerich. He also argued that a continuance would not result in prejudice or detriment to the State or other parties. The court denied the motion, stating:

[T]he reasons for the continuance go mainly to the underlying case and such discovery will be had if this Court does waive juvenile jurisdiction. Such discovery will be had if this Court does not waive juvenile jurisdiction. The full investigation is to this Court, the Court finds that it has been seven days since probable cause was filed and the petition was authorized to be filed....

Id. at 7–8.

The hearing proceeded and Karen Wenzelmaier, a neighbor of Gingerich, testified that she had been Gingerich's neighbor for eleven years, that her son frequently played with him, that she had never had problems with Gingerich, that she had never witnessed any violent acts or acts of cruelty or noticed character flaws which would make her feel uneasy, and that she felt that her children were safe being around Gingerich. She also testified that she believed he was a well-adjusted person and that the charges were out of character for him. Henry Witthoeft, who was Gingerich's maternal grandfather, testified that the two had a wonderful relationship and that he believed Gingerich was a "wholesome young man with a good attitude...." Id. at 37. Dave Yoder, Gingerich's uncle, testified that he would visit with Gingerich three times a month and that he believed Gingerich was an average twelve-year-old who was courteous and respectful.

The State called Robert Babcock, the Chief Probation Officer of the Kosciusko County Probation Department responsible for both the juvenile and adult divisions. Babcock testified that he was familiar with the different dispositional alternatives in both the juvenile and adult divisions. When asked whether it was in the boys' best interests and the safety and welfare of the community that they remain in the juvenile justice system, Babcock testified:⁵

We're limited in the juvenile justice system for a child that has been or alleged to have committed murder. If they were left in the juvenile system, a thirteen to sixteen year old that's going to be made a ward of the Department of Corrections, would only be given a determined sentence to the age of eighteen. If they are under the age of thirteen and made a ward of the Department of Corrections, then the Department of Corrections makes the determination upon their release which could be six months or the age of eighteen.... There is no longer parole in the Juvenile Department of Corrections, so [Lundy] basically would be released at the age of eighteen. [Gingerich], depending on his attitude, completion of whatever programs they have for him, he could be released in six months or he could be retained until the age of eighteen also. For residential facilities, I called Herb Hobson, he's the Director of Admissions at White's Residential, just to give me an idea of whether any residential facilities, I know White's would not take a juvenile that's involved in a gun violation or a homicide, to see if there was any residential facilities in Indiana that would take a juvenile that was involved in a homicide. He could only think of one which was in the South Regional Facility in Vincennes, Indiana.... To my knowledge, I don't know of any residential facilities that would take a homicide delinquent. We are also limited on private placements because we have to go through what's called a probation consultant. That probation consultant works with DCS and they determine if they meet the criteria because DCS, the State of Indiana, pays for that placement.

* * * * *

For private placement, [DCS pays] and make[s] the determination for us to decide whether we are going to place any child in a private facility in the State of Indiana and we're limited to the State of Indiana. I would think that they are few and far between that would accept a delinquent that's charged with homicide. We are limited based on that charge alone on what we can do for dispositions. If we were talking about a juvenile that had a gun, a juvenile that took a van, a juvenile that ran away from home, we would have unlimited dispositional alternatives, but when you throw homicide into the formula, we really have limited dispositional alternatives.

* * * * *

Even in private facilities, their treatment plan is usually nine to twelve months. Very few are longer than twelve months. That takes a review back to the Court and obviously, the State is going to monitor their performance because they're paying for it. So we're mandated by Statute to have reviews for any child that is placed on the delinquent side in private facilities.

Id. at 60–63. When asked about the dispositional alternatives in the adult criminal system, Babcock testified: "[I]t starts at fifty-five years, ten years reduction for mitigating, ten years for aggravating, so you're looking at a range from forty-five to sixty-five years. Not to say, that could be modified later on. County time, probation time, electronic monitoring could all be considered on a modification...." Id. at 63–64. Babcock also testified that the Department of Correction identifies the facility that best serves treatment of defendants given the nature of their offenses.

After Babcock offered his opinion that Lundy should be waived into the adult criminal system, the prosecutor asked him his opinion regarding Gingerich, to which he responded:

Again, if I would take the murder allegation out of there, he would be a perfect candidate for the juvenile system, but when you put in the murder allegation, and again we're limited in what we can do in the juvenile system, and the adult system in forty-five years to sixty-five years would give him the opportunity to have the treatment that's necessary for him and in the long term period versus the short term in the juvenile system.

Id. at...