Opinion
24A-JV-1226
11-13-2024
J.M., Appellant-Respondent v. State of Indiana, Appellee-Petitioner
ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jesse R. Drum Assistant Section Chief, Criminal Appeals Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Vanderburgh Superior Court The Honorable Renee A. Ferguson, Magistrate Trial Court Cause No. 82D04-2405-JD-796
ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jesse R. Drum Assistant Section Chief, Criminal Appeals Indianapolis, Indiana
Judges Bailey and Foley concur.
MEMORANDUM DECISION
Bradford, Judge.
Case Summary
[¶1] J.M. was born on December 5, 2006, and was first referred to the juvenile court at the age of fifteen. After several more delinquency allegations and various residential placements, J.M. escaped from one such placement and was given an eleven-month commitment to the Indiana Department of Correction ("the DOC"). In May of 2024, J.M. struck his guardian, took the keys to her truck, drove away, evaded police, and was eventually located after getting into a fight with an employee of a nearby restaurant.
[¶2] Later that month, J.M. admitted that he had committed what would be resisting law enforcement, operating a motor vehicle without a license, and reckless driving if committed by an adult. After J.M.'s probation officer and the State recommended that he again be committed to the DOC, his counsel said "No comments" when asked for a response. The juvenile court ordered J.M. committed to the DOC. J.M. contends that he received ineffective assistance of counsel. We affirm.
Facts and Procedural History
[¶3] J.M. was born in 2006 and was placed in the care of Richard and Linda Sumner in 2012. According to Linda, J.M.'s behavior had changed after Richard passed away in 2020. J.M. has been diagnosed with disruptive mood dysregulation disorder, uncomplicated bereavement, and conduct disorder. In February of 2022, J.M. was first referred to the juvenile court and has been referred several more times since:
[J.M.] received his FIRST and SECOND referral to this court on 2/22/2022 for Domestic Battery, Interference With reporting and Theft. [J.M.] was adjudicated under cause 82D04-2202-JD-000276, court ordered to be placed on 6 months probation, comply with all doctors and therapy arrangements and to comply with services provided by Youth Village, as well as random urine drug screens. [J.M.] received his THIRD referral on 3/9/2022 for Domestic Battery, Criminal Mischief, Battery on a Public Safety Official, and Resisting Law Enforcement, [J.M.] was placed at the United Methodist Home until 5/27/2022, and ordered to comply with the []rules of probation. [J.M.] received his FOURTH and FIFTH referrals on 6/21/2022 to which [J.M.] was adjudicated under cause 82D04-2206-JD-000956, for Fraud, and Intimidation and Escape. [J.M.] was court ordered to placement at Gibault.
[J.M.] received his SIXTH referral to this court on 1/9/2023 for Auto Theft Leaving Home, while in placement at Gibault. [J.M.] and another juvenile in the residential faculty, had left the campus without permission, ta[]king a vehicle that belonged to the facility. Due to this incident, Gibault requested for the removal of [J.M.]. On April of 2023 [J.M. w]as court ordered to be placed at the Department of Corrections. [J.M.] was released [from] the [DOC] on 3/11/2024.Appellant's App. Vol. II p. 20.
[¶4] Over the past few years, J.M. has received numerous services: J.M. has been placed in secure detention at the Youth Care Center and the Department of Correction, including in the Temporary Segregation Unit and the Making a Change Unit. J.M. has also been placed in residential placements at the United Methodist Youth Home and Gibault. J.M. has participated in individual therapy; group therapy, including InsideOut Dad, Anger Management, Why Try, and Aggression Replacement; and family therapy. J.M. has participated in drug screens and substance-abuse treatment, including at Southwestern Behavioral Home Healthcare, Logansport Juvenile Correctional Facility, Gibault, and United Methodist Group Home.
[¶5] To address J.M.'s mental-health issues, he has had medication management and home-based case management at Youth Villages. J.M. has received community-based mental-health services at Southwestern Behavioral Healthcare, acute inpatient hospitalization at the University of Louisville Peace Hospital, and psychiatric residential treatment facility placement at Bellewood and Brooklawn. J.M. has had safety plans and an individualized action plan, mentoring with Youth Crusaders, probation supervision and parole supervision, and alternative school placement.
[¶6] On May 3, 2024, Evansville police responded to a report that J.M. had struck Linda, had taken the keys to her truck, and was in the truck. When police arrived, Linda was standing in front of the truck as J.M. revved the engine. When an officer pulled Linda out of the way, J.M., who has never had a driver's license, drove away at high speed. After returning, J.M. drove off again, parking in a gravel lot. When an Officer D. Murray approached and exited his car, J.M. accelerated, throwing gravel, which struck Officer Murray, causing him pain, and his car. Police received a report of J.M. doing "burnouts" in a Taco John's parking lot. Appellant's App. Vol. II p. 12. J.M. confronted and fought with a Taco John's employee, who managed to subdue J.M. until police arrived.
[¶7] On May 15, 2024, the State alleged that J.M. had committed what would be, if committed by an adult, Class A misdemeanor domestic battery, Level 6 felony auto theft, Level 6 felony resisting law enforcement, Level 6 felony battery of a public-safety official, Class C misdemeanor operating a motor vehicle without ever having received a license, Class A misdemeanor intimidation, Class B misdemeanor criminal mischief, and Class C misdemeanor reckless driving. J.M.'s probation officer opined that he was beyond Linda's control, there were no viable options for his care and treatment in the community, he was a serious danger to himself and the community, and it was in his and the community's best interests that he be recommitted to the DOC. A preliminary inquiry report indicated that J.M. had tested positive for marijuana when taken into custody on May 4, 2024, and that he had reported using heroin since his release from the DOC.
[¶8] On May 17, 2024, J.M. admitted to committing what would be resisting law enforcement, operating a motor vehicle without a license, and reckless driving if committed by an adult. J.M.'s probation officer and the prosecutor requested that he be recommitted to the DOC, and, when the juvenile court asked his counsel to respond, her reply was "No comments." Tr. Vol. II p. 10. The juvenile court ordered J.M. committed to the DOC.
Discussion and Decision
[¶9] J.M. argues that he received ineffective assistance of counsel at his dispositional hearing, specifically when his counsel responded to the recommendations that he be recommitted to the DOC with the statement "No comments." Tr. Vol. II p. 10. As an initial matter, the parties do not agree on the proper standard under which to review this claim: J.M. argues that he is entitled to have his claim evaluated pursuant to the Strickland standard for criminal proceedings, while the State urges us to apply the so-called "Baum-plus" standard, which the Indiana Supreme Court recently applied to a juvenile disposition-modification proceeding. See A.M. v. State, 134 N.E.3d 361, 369 (Ind. 2019) (Slaughter, J., concurring in result).
[¶10] In Strickland, the United States Supreme Court ruled that the proper standard for reviewing counsel's performance in a criminal proceeding was whether counsel's performance was deficient such that the client's criminal defense was prejudiced. Strickland v. Washington, 466 U.S. 668, 687 (1984). In A.M., the Indiana Supreme Court articulated the following test:
So, when a juvenile raises an ineffective-assistance-of-counsel claim following a modified disposition, we focus our inquiry on "whether it appears that the [juvenile] received a fundamentally fair [hearing where the] facts demonstrate" the court imposed an appropriate disposition considering the child's best interests. In assessing fundamental fairness, a court should not focus on what the child's lawyer might or might not have done to better represent the child. Rather, the court should consider "whether the lawyer's overall performance was so defective that the ... court cannot say with confidence that the" juvenile court imposed a disposition modification consistent with the best interests of the child.A.M., 134 N.E.3d at 368 (citations omitted, ellipsis in A.M.). The Court, however, limited its holding to disposition-modification proceedings (which are akin to probation revocation hearings in criminal cases), explicitly leaving open the question of which standard applies in the initial disposition phase, the proceeding at issue in this case. See id. at 364 n.2 ("Therefore, we leave for another day the decision of what ineffective-assistance-of-counsel standard governs in the adjudicative and initial dispositional phases[.]"). That said, we need not resolve this issue, as J.M.'s claim fails pursuant to either standard.
A. Strickland
[¶11] To prevail on an ineffective-assistance-of-counsel claim, a criminal defendant must demonstrate that (1) counsel's performance was deficient and (2) the deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687. Prejudice arises when a defendant shows that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. However, when analyzing an ineffective assistance claim, we begin with the presumption that counsel rendered effective representation. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998). Moreover, counsel has "considerable discretion in choosing strategy and tactics[.]" Stevens v. State, 770 N.E.2d 739, 746-47 (Ind. 2002). "Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective." Id. at 747. "The two elements of Strickland are separate and independent inquiries. Thus, if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed." Clarke v. State, 974 N.E.2d 562, 564 (Ind.Ct.App. 2012) (citing Landis v. State, 749 N.E.2d 1130 (Ind. 2001)).
J.M. contends that he should not be required to show any prejudice pursuant to United States v. Cronic, 466 U.S. 648 (1984), which discussed three circumstances under which prejudice will be presumed and need not be established, one of which is when "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing[.]" Id. at 659. This, however, is not established in this case by a failure to mention allegedly mitigating circumstances, especially when they were detailed in a report already in front of the juvenile court. In light of the evidence and J.M.'s history, it seems to us very likely that his counsel thought that the best strategy was for him to throw himself upon the mercy of the court.
[¶12] J.M. has failed to establish that he suffered any prejudice from his counsel's failure to make an argument against his commitment to the DOC. Simply put, the evidence that J.M. required placement in a more restrictive setting was such that we are convinced that even a vigorous argument against a DOC placement would not have changed the outcome of the dispositional proceeding. Over the course of approximately two years, J.M. had been referred to the juvenile justice system seven times, had escaped from Gibault after stealing a facility vehicle, and had already been committed to DOC for approximately eleven months. Within two months of his initial release from DOC, J.M. committed the delinquent acts that are the subject of this proceeding. Moreover, the record contains ample evidence that J.M. suffers from mental-health and substance-abuse issues that are, so far, inadequately addressed.
[¶13] Several less-restrictive attempts at reformation have been unsuccessful, including attempts at therapy and treatment and residential placements of various kinds. Indeed, the only placement that seems to have any measure of success to date is J.M.'s previous DOC placement, which lasted for approximately eleven months and produced no referrals to the juvenile court. Finally, Linda reported that she had begun investigating relinquishing custody of J.M., as she believed herself incapable of "tak[ing] care of [J.M.] and all his behaviors." Appellant's App. Vol. II p. 18. In short, the record clearly supports the juvenile court's conclusion that, under the circumstances, the only viable option for J.M.'s placement was the DOC.
[¶14] J.M. points to his counsel's failure to bring various mitigating circumstances to the juvenile court's attention. As the State points out, however, all of this potentially mitigating information was in his preliminary inquiry report, which the juvenile court reviewed before issuing its dispositional order. J.M. also contends that his counsel failed to thoroughly investigate whether placement in a residential treatment facility was an option. As the State points out regarding this contention, it is pure speculation, unsupported by anything in the record. See Burt v. Titlow, 571 U.S. 12, 23 (2013) ("It should go without saying that the absence of evidence cannot overcome the 'strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance.'") (quoting Strickland, 466 U.S. at 689) (alteration in Titlow).
B. Baum-Plus
[¶15] As mentioned, pursuant to the Baum-plus test, we should consider "'whether the lawyer's overall performance was so defective that the ... court cannot say with confidence that the' juvenile court imposed a disposition modification consistent with the best interests of the child." A.M., 134 N.E.3d at 368 (citation omitted, ellipsis in A.M.). We resolve J.M.'s Baum-plus argument in a fashion similar to our resolution of his Strickland claim, i.e., without evaluating his counsel's performance. We conclude that J.M.'s Baum-plus argument fails because we can say with confidence that the juvenile court's disposition is consistent with his best interests.
[¶16] As covered in greater detail elsewhere, J.M.'s behavior has deteriorated to the extent that there are no viable, less-restrictive placement options left open to him, and Linda is exploring options to relinquish custody of him out of fear for her safety and her belief that she can no longer control him. Less-restrictive options have proven ineffective, and, if anything, J.M.'s behavior has become more dangerous to himself and others, and his issues with substance abuse have become more acute. Under the circumstances, we are confident that the juvenile court's disposition, i.e., a DOC placement, is in J.M.'s best interests.
[¶17] We affirm the judgment of the juvenile court.
Bailey, J., and Foley, J., concur.