from the Lawrence Circuit Court The Honorable John M.
Plummer, III, Judge Pro Tempore Trial Court Cause Nos.
Attorney for Appellant Cara Schaefer Wieneke Wieneke Law
Office, LLC Brooklyn, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
Laura R. Anderson Deputy Attorney General Indianapolis,
When R.R., a seventeen-year-old juvenile, did not appear for
the combined factfinding hearings in his juvenile delinquency
and probation violation cases, the trial court held the
hearings in his absence and found that he committed the
charged offenses and violated his probation. R.R. now
appeals, arguing that he had a constitutional right to be
present at the hearings and that the trial court violated
that right by holding them in his absence. The State argues
that R.R. waived any such right by refusing to appear. In
response, R.R. argues that under the juvenile waiver statute,
Indiana Code Section 31-32-5-1, he could not validly waive
that right because he was not emancipated.
We hold that although juveniles have a constitutional right
to be present at factfinding hearings in delinquency and
probation proceedings, the trial court had the authority to
find R.R. to be in a position of procedural default under the
particular facts of this case, where R.R. knowingly and
intentionally refused to appear. The legislature would not
have intended for the juvenile waiver statute to allow nearly
emancipated young adults to ignore trial court orders and
thwart the operation of the juvenile justice system by
intentionally refusing to appear at dispositional hearings.
Therefore, we affirm.
and Procedural History
In September 2014, under cause number 47C01-1409-JD-294
("JD-294"), the State filed a petition alleging
that R.R. was a delinquent child for committing criminal
mischief, a class B misdemeanor if committed by an adult.
R.R. admitted to the allegation and was placed on supervised
probation until the following September.
Between May and September 2015, the State filed seven
petitions to modify R.R.'s probation. Eventually the
trial court placed R.R. in residential treatment at Southwest
Indiana Regional Youth Village. In June 2016, the court
released R.R. from residential treatment and ordered him to
remain on supervised probation for six months.
Between August 2016 and January 2017, the State filed four
additional petitions to modify R.R.'s probation in
JD-294. In September 2016, under cause number
47C01-1609-JD-342 ("JD-342"), the State filed a
petition alleging that R.R. was a delinquent child for
committing the new offenses of auto theft, a class D felony
if committed by an adult, and false informing, a class B
misdemeanor if committed by an adult.
On October 31, 2016, a joint pretrial conference was held in
JD-294 and JD-342; R.R. was present at this hearing along
with his attorney and his mother, with whom he lived. Tr.
Vol. 2 at 183. The trial court went off the record and
scheduled factfinding hearings in both cases for January 17,
2017. Id. at 188; Appellant's App. Vol. 2 at 127
(JD-294), 157 (JD-342). On January 5, the State filed a
motion to continue the hearings. The next day, the court
granted the State's motion and issued an order
rescheduling the hearings for February 7 and directing R.R.
and his mother to appear. Id. at 129 (JD-294), 157
On January 20, 2017, in JD-294, the State requested an order
from the trial court to take R.R. into custody. The State
alleged that R.R. "ha[d] not been in compliance with the
terms and conditions of probation since he was discharged
from the Southwest Indiana Regional Youth Village on June 23,
2016[, ]" in that he had failed to attend his probation
appointments on January 6 and 20 and failed to attend his
urine drug screen on January 17. Id. at 133; see
also id. at 131-32 (alleging that R.R. had also failed
to attend GED classes and complete community service). The
court issued an order authorizing law enforcement to take
R.R. into custody and detain him at the Jackson County
Juvenile Detention Center. Id. at 135. As it turned
out, R.R. remained at large for over two months.
R.R., who by then was nearly seventeen and a half years old,
not appear at the factfinding hearings on February 7.
R.R.'s attorney and mother both appeared. When the trial
court asked R.R.'s mother if she knew where R.R. was, she
responded, "No. He hasn't even called me since he
left. I thought we had an appointment on the 30th and I tried
to make him go and he took off and I haven't seen him
since." Tr. Vol. 3 at 2. The court responded,
"Well, let the record reflect that this child's
whereabouts are unknown. The child's mother is here. She
doesn't know where he is. Sounds like he's been gone
for seven (7) or eight (8) days." Id. The court
then confirmed with R.R.'s mother that she had not heard
from him at all. The court asked the prosecutor what she
wanted to do, and the prosecutor said that she wanted to
proceed in R.R.'s absence. Defense counsel objected and
requested a continuance "so that [R.R.] can be present
at his hearing." Id. at 3. Notably, neither
defense counsel nor R.R.'s mother alleged that R.R. did
not have notice of the rescheduled factfinding hearings. The
court denied defense counsel's motion to continue because
"the child's whereabouts are unknown, mother is
present, [and] the child has taken off." Id.
The court then held factfinding hearings in both JD-294 and
JD-342. At the conclusion of the hearings, the court entered
true findings for auto theft and false informing in JD-342
and found that R.R. violated his probation in JD-294.
Appellant's App. Vol. 2 at 136 (JD-294), 180 (JD-342).
R.R. was finally detained on the outstanding pick-up order on
March 29, 2017, and he appeared in court the next day with
his attorney and mother for the dispositional hearings in
JD-294 and JD-342. At the beginning of the hearing, the
prosecutor reiterated R.R.'s failure to appear on
February 7. When R.R. took the stand, he testified that
"[a]bout two (2) weeks ago, " he started
"hanging out at a boys home in Bedford." Tr. Vol. 3
at 74. However, R.R. proffered no reason for his failure to
appear on February 7. The director of the Bedford Boys Home
then testified that R.R. "came to us about … five
(5) days ago" and that after talking with R.R. he
learned that there was an outstanding pick-up order for him.
Id. at 80. The director testified that he told R.R.
that he should turn himself in. The trial court awarded
wardship of R.R. to the Department of Correction in both
cases. This appeal ensued.
R.R. contends that he had a constitutional right to be
present at the factfinding hearings in JD-294 and JD-342 and
that the trial court violated that right by holding them in
his absence. He first notes that "the right of a child
to be present at delinquency fact-finding [hearings] has not
been squarely addressed by [Indiana] appellate
courts[.]" Appellant's Br. at 9. It is well
established that defendants in criminal proceedings have the
constitutional right to be present at all stages of their
trial. See Jackson v. State, 868 N.E.2d 494, 498
(Ind. 2007) (citing U.S. Const. amend. VI and Ind. Const.
art. 1, § 13). And although probation revocation
hearings are in the nature of a civil action, probationers
have the constitutional right to be present because
revocation implicates their liberty interest. Mathews v.
State, 907 N.E.2d 1079, 1081-82 (Ind.Ct.App. 2009).
"Juvenile delinquency proceedings are civil proceedings,
not criminal proceedings, and are based on a philosophy of
social welfare rather than criminal punishment."
D.M. v. State, 949 N.E.2d 327, 333 n.6 (Ind. 2011).
Nevertheless, because delinquency and probation proceedings
threaten a juvenile's loss of liberty, we see no reason
why juveniles should not be afforded the same constitutional
right as criminal defendants and probationers and therefore
recognize that juveniles have a general right to be present
at delinquency and probation factfinding hearings.
Cf. In re Gault, 387 U.S. 1, 31-57 (1967)
(holding that juveniles in delinquency proceedings are
constitutionally entitled to notice of charges, right to
counsel, rights of confrontation and cross-examination, and
privilege against self-incrimination).Notably, the State
does not argue otherwise. See Appellee's Br. at
15 (State assuming arguendo that juveniles have right to be
present at delinquency factfinding hearings).
Having established that R.R. had the right to be present at
the February 7 factfinding hearings, the question then
becomes whether a hearing can ever be held in his absence. If
a criminal defendant knowingly and voluntarily waives the
right to be present, a trial may occur in the defendant's
absence. Jackson, 868 N.E.2d at 498. As the Indiana
Supreme Court has stated:
When a defendant fails to appear for trial and fails to
notify the trial court or provide it with an explanation of
his absence, the trial court may conclude that
defendant's absence is knowing and voluntary and proceed
with trial when there is evidence that the defendant knew of
his scheduled trial date.
Id. (quoting Freeman v. State, 541 N.E.2d
533, 535 (Ind. 1989)). "The best evidence that a
defendant knowingly and voluntarily waived his or her right
to be present at trial is the 'defendant's presence
in court on the day the matter is set for trial.'"
Lampkins v. State, 682 N.E.2d 1268, 1273 (Ind. 1997)
(quoting Fennell v. State, 492 N.E.2d 297, 299 (Ind.
1986)), modified on other grounds on reh'g, 685
N.E.2d 698. Thus, when a defendant knows of the trial date
but fails to appear, the trial court may presume that the
defendant knowingly and voluntarily waived the right to be
present at the trial and try the defendant in absentia.
Brown v. State, 839 N.E.2d 225, 227 (Ind.Ct.App.
2005), trans. denied (2006). A defendant who has
been tried in absentia "must be afforded an opportunity
to explain his absence and thereby rebut the initial
presumption of waiver." Id. This, however, does
not require a sua sponte inquiry from the trial court.
Holtz v. State, 858 N.E.2d 1059, 1063 (Ind.Ct.App.
2006), trans. denied (2007). ...