T.C. v. State, 42A04-0503-JV-120.

• Decision Date: 30 December 2005
• Docket Number: No. 42A04-0503-JV-120.,42A04-0503-JV-120.
• Citation: 839 N.E.2d 1222
• Parties: T.C., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
• Court: Indiana Supreme Court

839 N.E.2d 1222

T.C., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.

No. 42A04-0503-JV-120.

Court of Appeals of Indiana.

December 30, 2005.

Stephen P. Murphy, Jr., Murphy & Murphy, Vincennes, for Appellant.

Steve Carter, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

T.C. appeals from his adjudication as a delinquent child for committing Receiving Stolen Property, as a Class D felony when committed by an adult. He presents the following issues for our review:

1. Whether the trial court erred when it ordered T.C. to pay restitution without inquiring into his ability to pay.

2. Whether the trial court erred when it ordered T.C. to serve one day in secured detention for each missed payment.

3. Whether the State presented sufficient evidence to support the restitution order.

4. Whether the appropriate measure of the victim's damages is the retail value of the stolen merchandise.

We affirm in part, reverse in part, and remand with instructions.

FACTS AND PROCEDURAL HISTORY

On August 7, 2004, T.C. and his friend T.T. broke into Bicycle Outfitters, which is a store located in Vincennes. The boys stole several items, including skateboards, skateboard accessories, clothing, and cash. The State filed a petition alleging T.C.'s delinquency for committing acts that would constitute receiving stolen property and theft if committed by an adult. T.C. admitted to having committed an act that would be receiving stolen property if committed by an adult, and the trial court adjudicated T.C. a delinquent child on that basis.

Following a hearing, the trial court ordered that T.C. be placed at Gibault's School for Boys, but the court suspended that placement and ordered that T.C. serve two years of formal supervised probation. The terms of his probation included: completing forty-nine hours of community service, continued counseling, paying restitution, and paying fees and costs. Following a restitution hearing, the trial court determined that Michael McLear, the owner of Bicycle Outfitters, sustained damages in the amount of $3120, and the court ordered T.C. to pay one-half of that amount in weekly payments of $12. This appeal ensued.

DISCUSSION AND DECISION

Standard of Review

An order of restitution is a matter within the trial court's discretion, and we reverse only upon a showing of abuse of that discretion. J.P.B. v. State, 705 N.E.2d 1075, 1077 (Ind.Ct.App.1999). An abuse of discretion occurs when the trial court's determination is clearly against the logic and effect of the facts and circumstances before the court or the reasonable, probable, and actual deductions to be drawn therefrom. Id.

Issue One: Ability to Pay

T.C. first contends that the trial court erred when it included restitution in the terms of his probation without first determining his ability to pay. The State asserts that the trial court was not required to determine T.C.'s ability to pay in ordering restitution. In the alternative, the State contends that any error was harmless. We agree with T.C.

Indiana Code Section 31-37-19-5 provides that a juvenile court may order a child "to pay restitution if the victim provides reasonable evidence of the victim's loss, which the child may challenge at the dispositional hearing." Unlike Indiana Code Section 35-38-2-2.3, which governs restitution in the context of adult offenders, there is no express statutory requirement that the trial court inquire whether a juvenile offender has the ability to pay before ordering restitution. But this court has recently held that "equal protection and fundamental fairness concerns require that a juvenile court must inquire into a juvenile's ability to pay before the court can order restitution as a condition of probation." M.L. v. State, 838 N.E.2d 525, 527 (Ind.Ct.App., 2005).

Here, because the trial court ordered restitution as a condition of T.C.'s probation, the court was required to determine his ability to pay but did not do so.¹ This was an abuse of discretion.² T.C. is entitled to a hearing on the issue of his ability to pay and to modification of the existing restitution order if the court determines that he is financially unable to meet its terms. See id. Therefore, we vacate the trial court's restitution order and remand for a new restitution order contingent upon the court's inquiry into T.C.'s ability to pay.

Issue Two: Detention

T.C. next contends that the trial court erred when it ordered that T.C. would serve one day in secured detention for any week that he fails to make a restitution payment. In particular, he maintains that the trial court cannot order that he be placed in detention without a hearing to determine whether he violated the terms of his probation. The State asserts that there is no error because the trial court's order does provide for such a hearing. We agree with the State.

Any change in a juvenile's disposition order, including revoking his probation, should be treated as a modification of the original order. In the Matter of L.J.M., 473 N.E.2d 637, 639 (Ind.Ct.App.1985). Indiana Code Section 31-37-22-3 provides:

(a) If the petitioner requests an emergency change in the child's residence, the court may issue a temporary order. However, the court shall then give notice to the persons affected and shall hold a hearing on the question if requested.

(b) If the petition requests any other modification, the court shall give notice to the persons affected and may hold a hearing on the question.

Here, the trial court's order states in relevant part:

That further, the Court determines that [T.C.] shall serve one (1) day in secured detention at the Southwest Indiana Regional Youth Village at the Court's discretion for any week that the Juvenile fails to make a restitution payment. In the event the Court imposes this penalty upon [T.C.] following a hearing, the parents of [T.C.] shall be financially responsible for the cost of said placement at the rate of one hundred ten dollars ($110.00) per day.

Appellant's App. at 48 (emphasis added). Because the trial court expressly provides for a hearing in the event that T.C. misses a restitution payment, there is no error.

Issue Three: Restitution Amount

T.C. next contends that the trial court abused its discretion in arriving at the amount of restitution. In particular, he maintains that the evidence is insufficient to support the award of $3120. We must agree.

Indiana Code Section 31-37-19-5(b)(4) provides that the trial court may order a juvenile delinquent to pay restitution if the victim provides reasonable evidence of the victim's loss, which the child may challenge at the dispositional hearing. It is well settled that restitution must reflect actual loss incurred by a victim. Smith v. State, 471 N.E.2d 1245, 1248 (Ind.Ct.App.1984). The amount of actual loss is a factual matter which can be determined only upon presentation of evidence. Id.

Here, at the restitution hearing, the State submitted an itemized list of merchandise that T.C. and T.T. had stolen from Bicycle Outfitters, and the total amount of stolen cash and merchandise was $2741. Michael McLear testified in relevant part as follows:

Q: Could you go through that list and tell us, first of all, have all these items been returned to you?

A: No, I've got . . . I'd say about half to three-quarters have been returned.

* * * * * *

Q: Okay. Now you've listed a price number for each of these items which according to your inventory were not there after the theft, is that correct?

A: That's correct.

Q: Now is that your cost on that?

A: Oh no, that's the retail price.

* * * * * *

Q: Okay. Now you said about half of these items you believe were returned to you, is that correct?

A: Yes.

Q: And are they in salable condition, the items that were returned to you?

A: Some are. For instance, I received 11 of the MOB grip tape back and I have been able to sell 11 or all 11 pieces of that. The other six pieces are missing or I guess this would be one of them that I'd gotten back and I really can't sell it as an individual piece of grip tape.

Q: Okay. So when you say you've sold those, have you been able to realize your cost on those or did you have to sell it at a discount or . . .

A: No, I was able to sell them at my regular price. They were still in good condition.

* * * * * *

Q: Do you think you could go through the list and by memory tell us what items have been recovered or at least your best effort at that?

A: I can make a best effort at it, yeah.

* * * * * *

A: . . . The Full Skull Classic [deck], I don't know if I have that one or not.

* * * * * *

A: So as far as the decks go, that's what I have. The rest of it, I'm not real familiar with what I have and what I don't. I know I did have a trash bag full of miscellaneous items that the police recovered.

* * * * * *

A: I think I . . . some of the boards, like those, the mini-logo decks, they look new. I haven't really examined them closely, but they look new. I think I can sell a couple of those.

* * * * * *

Q: Mr. McLear, if I understand correctly, do you have all but one of the decks back?

A: Yes.

* * * * * *

Q: But you don't know exactly, you couldn't tell us line for line which items you have recovered and which ones you have not, is that correct?

A: That's correct.

* * * * * *

Q: Now the items that are on [the list of stolen merchandise], other than going through the [skateboard] decks you've already gone through, you don't know what items you have back and items you do not have?

A: No, I know I have some of the items back, but I couldn't tell you. . . . I know I've got a few sets of wheels because they're on the actual skateboards that I recovered so I don't know exactly. . . . I haven't gone through and said, oh I've got spitfire wheels versus the black label wheels, no.

Q: When you got those items back, you did not check it with your...