FOR PUBLICATION


ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

JODI KATHRYN STEIN    KAREN M. FREEMAN-WILSON
Indianapolis, Indiana    Attorney General of Indiana

JANET L. PARSANKO
Deputy Attorney General
Indianapolis, Indiana

N.D.F.,                 )
                             )
Appellant-Respondent,        )
                             )
vs.                          )    No. 49A02-0003-JV-164
                             )
STATE OF INDIANA,            )
                             )
Appellee-Petitioner.         )

                         

(1) by using or threatening the use of force on any person; or

(2) by putting any person in fear;

commits robbery, a Class C felony. However, the offense is a Class B felony if it is committed while armed with a deadly weapon or results in bodily injury to any person other than a defendant…

Ind. Code § 35-41-5-1 defines attempt as follows:
A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same class as the crime attempted…

    The evidence supports N.D.F.’s conviction. By repeatedly asking Massing for money and using force which resulted in bodily injury to Massing, N.D.F. and C.Y. took a substantial step toward knowingly or intentionally taking property from another. The Record clearly shows from the testimony of N.D.F., C.Y and Massing that the two girls wanted money from Massing and used force to try to obtain the money.
Consequently, we find that there was sufficient evidence to support N.D.F.’s conviction for attempted robbery, a Class B felony if committed by an adult.

(1) is adjudicated a delinquent child for an act that if committed by an adult would be:

(A) a felony against a person;

(2) is at least fourteen (14) years of age at the time the child committed the act for which the child is being placed; and

(3) has two (2) unrelated prior adjudications of delinquency for acts that would be felonies if committed by an adult.

(b) A court may place the child in a facility authorized under this chapter for not more than two (2) years.

    In W.T.J. v. State, 713 N.E.2d 938, 941 (Ind. Ct. App. 1999), this court compared this statute to the habitual offender statute, Ind. Code § 35-50-2-8. To prove a defendant’s habitual offender status pursuant to Ind. Code § 35-50-2-8, the State must prove that 1) the commission, conviction and sentencing on the defendant’s first offense preceded the commission of the second offense, and 2) the commission of the principal offense followed the commission, conviction and sentencing on his second offense. Id. In W.T.J., we held that the juvenile determinate sentencing statute is an expression of legislative intent to permit the juvenile a reasonable opportunity to reform through less severe dispositional alternatives before a more severe penalty may be imposed. Id. at 942. The court further stated that by requiring two unrelated prior determinations, it is clear that the legislature intended to afford the juvenile two distinct opportunities for reforming before proving himself incorrigible and a threat to society by committing a third serious offense. Id.
    We agree with this court’s interpretation of the juvenile determinate sentencing statute in W.T.J. We further agree with N.D.F. that if the court is going to determine that the statute is comparable to the habitual offender statute, the sequential requirements of the habitual offender statute also apply to the juvenile determinate sentencing statute. Thus, the State must prove that the two unrelated prior adjudications of the juvenile defendant occurred. N.D.F. argues that the State failed to present evidence demonstrating that her disposition fell under the determinate sentencing statute. The Record shows that the State merely argued in their recommendation to the court that N.D.F. had accumulated two unrelated prior adjudications of delinquency for acts that would be felonies if committed by an adult. The State showed no evidence to support its claim. Furthermore, N.D.F. was not given an opportunity to rebut the State’s assertion.
The juvenile court placed N.D.F. with the Indiana Department of Correction for the maximum time allowed under Ind. Code §31-37-19-10 (24 months). It did this without requiring the State to prove the elements of the statute and without giving N.D.F. an opportunity to rebut the claims made by the State, regarding her two unrelated prior adjudications. Consequently, N.D.F.’s rights under the Fourteenth Amendment of the United States Constitution See footnote have been violated. Therefore, we remand this case to the Superior Court of Marion County, Juvenile Division to hear evidence as to whether N.D.F. had two unrelated prior adjudications of delinquency in order to sentence her under Ind. Code § 31-37-19-10.