ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
ANN M. SUTTON KAREN M. FREEMAN-WILSON
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana JANET PARSANKO
Deputy Attorney General
SUPREME COURT OF INDIANA
Appellant-Respondent, ) Supreme Court Cause Number
STATE OF INDIANA, ) Court of Appeals Cause Number
APPEAL FROM THE MARION SUPERIOR COURT
JUVENILE DIVISION, ROOM 2
The Honorable Julie Cartmel, Magistrate
Cause No. 49D09-9907-JD-2958
ON PETITION TO TRANSFER
October 7, 2002
Under the juvenile determinate sentencing statute, a juvenile court may send a juvenile
to the Department of Correction for a fixed term of two years provided,
among other things, the juvenile has accumulated two (2) unrelated prior adjudications of
delinquency. We hold today that despite similar wording in the adult habitual
offender statute, the meaning of the phrase in the juvenile context is that
the earlier adjudications of delinquency are independent of the offense that is currently
Facts and Procedural History
The record shows that in the evening hours of June 9, 1999, sixteen-year-old
N.D.F. and her fourteen-year-old accomplice severely beat a teenage victim after demanding money
that the victim said she did not have. In due course, the
State filed a petition alleging that N.D.F. was a delinquent child who had
committed an act that would constitute attempted robbery as a Class B felony
if committed by an adult. After a fact-finding hearing, the juvenile court
adjudicated N.D.F. a juvenile delinquent. At the subsequent dispositional hearing, the trial
court found that N.D.F. had a prior history of acts that would constitute
felonies if committed by adults, namely: robbery as a Class C felony and
possession of cocaine as a Class D felony. As a result, the
trial court remanded N.D.F. to the custody of the Indiana Department of Correction
for a fixed term of two years.
On appeal to the Court of Appeals, N.D.F. challenged the sufficiency of the
evidence supporting the current charge and also contended that the State failed to
present any evidence demonstrating that she had accumulated two unrelated prior adjudications of
delinquency justifying her placement with the Department of Correction. The Court of
Appeals rejected the sufficiency claim and affirmed the juvenile court on that point.
However, relying on its earlier opinion in W.T.J. v. State, 713 N.E.2d
938 (Ind. Ct. App. 1999), trans. not sought, the court determined that the
sequential requirements of the adult habitual offender statute also apply to the juvenile
determinate sentencing statute.
See footnote The court also determined that the juvenile court erred
in sentencing N.D.F. because the State failed to present any evidence demonstrating that
her two unrelated prior adjudications met the requirements of the statute.
v. State, 735 N.E.2d 321, 324 (Ind. Ct. App. 2000). As a
result, the Court of Appeals affirmed in part and reversed in part the
judgment of the juvenile court and remanded the cause for further proceedings.
Having previously granted the States petition to transfer, we now affirm in its
entirety the judgment of the juvenile court.
Under the juvenile determinate sentencing statute, a juvenile may be remanded to the
custody of the Indiana Department of Correction for housing in an appropriate correctional
facility for up to two years provided, among other things: (1) the
juvenile is adjudicated a delinquent because she committed a felony against another person;
(2) the juvenile was at least fourteen years of age at the time
the act was committed; and (3) the juvenile has two (2) unrelated prior
adjudications of delinquency for acts that would be felonies if committed by an
adult. I.C. § 31-37-19-10(a)(3) (emphasis added).
See footnote A critical issue in this
case is the meaning of the phrase unrelated prior adjudications of delinquency.
According to the Court of Appeals, it is analogous to the phrase unrelated
prior felony offenses under the adult habitual offender statute.
N.D.F., 735 N.E.2d
at 324. Accordingly, the State is required to prove that the commission,
adjudication, and disposition of the juveniles first offense preceded the commission of the
juveniles second offense, and the commission of the juveniles principal offense followed the
commission, adjudication, and disposition on the juveniles second offense. Based on tenets
of statutory construction, we disagree with our colleagues.
The goal of statutory construction is to determine, give effect to, and implement
the intent of the legislature. Mayes v. State, 744 N.E.2d 390, 393
(Ind. 2001). When interpreting the words of a single section of a
statute, this Court must construe them with due
regard for all other sections of the act and with regard for the
legislative intent to carry out
the spirit and purpose of the act. Park 100 Dev. Co. v.
Ind. Dept of State Revenue, 429 N.E.2d 220, 222-23 (Ind. 1981). Further,
we will not read into the statute that which is not the expressed
intent of the legislature. Ind. Civil Rights Commn v. Indianapolis Newspapers, Inc.,
716 N.E.2d 943, 946 (Ind. 1999). As such, it is just as
important to recognize what the statute does not say as it is to
recognize what it does say. Clifft v. Ind. Dept of State Revenue,
660 N.E.2d 310, 316 (Ind. 1995).
Our legislature has declared that it is the policy of this State and
the purpose of our juvenile code to ensure that children within the juvenile
justice system are treated as persons in need of care, protection, treatment, and
rehabilitation. I.C. § 31-10-2-1(5). This policy is grounded in the Progressive
Movement of the late 19th and early 20th centuries, when American society rejected
treating juvenile law violators the same as adult criminals in favor of individualized
diagnosis and treatment. State ex rel. Camden v. Gibson Cir. Ct., 640
N.E.2d 696, 697 (Ind. 1994). Consequently, a juvenile court judge:
must seek to instill in the child a sense of value, impart a
feeling of security and belonging, communicate the importance and dignity of being a
member of society and, hopefully, in this manner, prevent the child from pursuing
a criminal and anti-social career. A juvenile court judge must, in a
unique manner, establish a relationship that will permanently alter the behavior patterns of
the child. He must have patience, understanding, and a genuine interest in
the welfare of the child and must direct all of his efforts toward
Bible v. State, 253 Ind. 373, 254 N.E.2d 319, 327 (1970) (citation omitted).
To aid juvenile court judges, the legislature has put at their disposal
a myriad of dispositional alternatives to fit the unique and varying circumstances of
each childs problems. Madaras v. State, 425 N.E.2d 670, 671 (Ind. Ct.
App. 1981). It is against this backdrop of flexibility that the legislature
enacted the juvenile determinate sentencing statute, which recognizes that [i]n some instances, confinement
may be one of the most effective rehabilitative techniques available. Id. at
By contrast, the purpose of the adult habitual offender statute is to penalize
more severely those persons whom prior sanctions have failed to deter from committing
felonies. Marsillett v. State, 495 N.E.2d 699, 705 (Ind. 1986). In
fact, [p]unishment will be enhanced only when a person who has been given
two distinct opportunities to reform persists in his criminality and commits a third
separate and unrelated felony act thereby proving himself incorrigible and a most serious
threat to our society. Graham v. State, 435 N.E.2d 560, 561 (Ind.
1982). These concerns are not implicated in juvenile proceedings.
For instance, the juvenile determinate sentencing statute is not equipped to deal with
juveniles who are a most serious threat to our society. Instead, the
legislature has provided that these juveniles, who meet certain age requirements, are either
automatically subject to the jurisdiction of an adult court or can be waived
there. See I.C. § 31-30-1-4 (West Supp. 2002); I.C. § 31-30-3-5.
In addition to the differences in the purposes of the statutes is the
content of the statutes themselves. We find it significant that the adult
habitual offender statute defines two (2) prior unrelated felony convictions. The statute
A person has accumulated two (2) prior unrelated felony convictions for purposes of
this section only if:
(1) the second prior unrelated felony conviction was committed after sentencing for the
first prior unrelated felony conviction; and
(2) the offense for which the State seeks to have the person sentenced
as a habitual offender was committed after sentencing for the second prior unrelated
I.C. § 35-50-2-8(c) (West Supp. 2002). There is no corollary definition of
two (2) unrelated prior adjudications of delinquency in the juvenile determinate sentencing statute.
Further, the adult habitual offender statute (1) requires the State to file
a separate charging information that alleges that the defendant is a habitual offender;
(2) puts the burden on the State to prove beyond a reasonable doubt
that the defendant has accumulated two prior unrelated felony convictions; and (3) gives
the defendant the right to a separate jury determination that he is a
habitual offender. See I.C. § 35-50-2-8(a), (f), (g) (West Supp. 2002).
These procedural requirements are absent in the juvenile determinate sentencing statute.
Construing two (2) unrelated prior adjudications of delinquency consistently with the spirit and
purpose of the juvenile code and being cognizant of the significant differences between
the statutes, we conclude that the legislature did not intend that the sequential
requirements of the adult habitual offender statute apply to the juvenile determinate sentencing
statute. Rather, we conclude the legislature intended to afford juvenile court judges
greater flexibility in that regard. Accordingly, we hold that two (2) unrelated
prior adjudications of delinquency simply means that the earlier adjudications of delinquency are
independent of the offense that is currently charged.
N.D.F. argued and the Court of Appeals agreed that the State produced no
evidence demonstrating that her two unrelated prior adjudications met the requirements of the
juvenile determinate sentencing statute. Rather, according to N.D.F, the State merely argued
in its recommendation to the juvenile court that N.D.F had accumulated two unrelated
prior adjudications of delinquency. In essence, N.D.F. seemed to contend that just
as with an adult alleged to be a habitual offender, here the State
was required to prove beyond a reasonable doubt, through testimony or certified records,
the existence of her alleged two prior adjudications. Again we disagree and
conclude that the differences between the texts and purposes of the habitual offender
statute versus the juvenile determinate sentencing statute compel a difference in the way
in which two prior adjudications are determined.
Rather than the habitual offender model, we believe that determining whether a juvenile
has accumulated two prior adjudications is more akin to the procedure the trial
court employs in sentencing a criminal defendant. That is, when sentencing a
defendant, a trial court may consider as an aggravating circumstance that the defendant
has a history of criminal or delinquent activity. I.C. § 35-38-1-7.1(b)(2) (West
Supp. 2002). Under this procedure, the trial court is merely required to
make a finding, based on the evidence of record, that the defendant has
such a history. And absent the defendants showing to the contrary, we
will assume the trial courts finding is correct. Noojin v. State, 730
N.E.2d 672, 679 (Ind. 2000) (recognizing the trial courts finding that the defendant
had a history of criminal activity that was supported by arguments of counsel
and the Presentence Investigation Report). A similar procedure is appropriate here.
A juvenile court can rely on arguments of counsel and the probation departments
report when ordering fixed placement. If the juvenile makes a showing that
she does not have two unrelated prior adjudications of delinquency, then the burden
shifts to the State to produce evidence in support of its claim, and
must do so by a preponderance of the evidence.
In this case, the record shows that at the dispositional hearing the State
argued N.D.F. had accumulated two unrelated prior adjudications of delinquency for acts that
would be felonies if committed by an adult. In addition, the juvenile
court adopted as findings the report of its probation department, referred to as
a Preliminary Inquiry. The report showed that on August 20, 1997, pursuant
to a plea agreement, the juvenile court entered a true finding against N.D.F
for possession of cocaine, a Class D felony if committed by an adult;
and on October 20, 1997, also pursuant to a plea agreement, the juvenile
court entered a true finding against N.D.F. for attempted robbery, a Class C
felony if committed by an adult. R. at 16-17. Both adjudications
were independent of the current offense and thus qualify as two unrelated prior
adjudications of delinquency under the juvenile determinate sentencing statute. At the dispositional
hearing, N.D.F. did not dispute the existence of the prior adjudications. Rather,
she requested leniency based on the facts surrounding the instant offense. Because
N.D.F. made no showing contrary to the courts finding, we assume they are
We affirm the judgment of the juvenile court.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
In that case, the Court of Appeals observed that the juvenile
determinate sentencing statute does not define two (2) unrelated prior adjudications of delinquency.
Therefore, the court applied the same interpretation used for analogous wording in
the adult habitual offender statute.
W.T.J., 713 N.E.2d at 941. Thereunder,
before a trial court can enhance a defendants sentence for his status as
a habitual offender, the State must prove that he has two (2) prior
unrelated felony convictions. Ind. Code § 35-50-2-8(a) (West Supp. 2002). That
is, the State must prove the commission, conviction, and sentencing on the defendants
first offense preceded the commission of the defendants second offense, and the commission
of the defendants principal offense followed the commission, conviction, and sentencing on the
defendants second offense. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).
The full text of the statute provides:
(a) This section applies to a child who:
(1) is adjudicated a delinquent child for an act that if committed by
an adult would be:
(A) a felony against a person;
(B) a Class A or Class B felony that is a controlled substances
offense under IC 35-48-4-1 through IC 35-48-4-5; or
(C) burglary as a Class A or Class B felony under IC 35-43-2-1;
(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.
(c) Notwithstanding IC 11-10-2-5, the department of correction may not reduce the period
ordered under this section .
I.C. § 31-37-19-10.