ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEVEN J. HALBERT STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
COURT OF APPEALS OF INDIANA
Deputy Attorney General
vs. ) No. 49A02-0410-JV-817
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Scott Stowers, Magistrate
Cause No. 49D09-0406-JD-2730
May 24, 2005
OPINION - FOR PUBLICATION
S.S. entered a plea admitting to Carrying a Handgun Without a License, a
Class A misdemeanor
See footnote if committed by an adult, in exchange for receiving a
suspended commitment to the Department of Correction. The juvenile court accepted the
plea and ordered S.S. to be placed on informal home detention until the
first review hearing, which was scheduled approximately three months following the dispositional hearing.
The juvenile court also entered a parental participation order. We reverse.See footnote
S.S. raises two issues, which we restate:
(1) Whether the juvenile court violated the terms of the plea agreement by adding
informal home detention as a condition of probation; and
(2) Whether the juvenile court erred in ordering parental participation where it failed to
inform mother of her right to controvert an allegation concerning her participation or
Facts and Procedural History
On August 3, 2004, S.S., by counsel, agreed to admit to carrying a
handgun without a license in exchange for a suspended commitment. S.S. and
S.S.s mother (Mother) had previously signed an advisement of rights, which states, in
pertinent part, The child and/or parent(s) could be ordered to participate in a
plan of care, treatment, rehabilitation or treatment which could include financial responsibility for
any such services or programs as well as being made parties to the
action to require such participation. Appellants App. at 18. The juvenile
court accepted the plea agreement, and over objection by S.Ss counsel, imposed informal
home detention as a condition of probation until the first review hearing, scheduled
for December 9, 2004. The juvenile court also asked Mother if she
was willing to participate in S.S.s probation programs, and Mother agreed. This
Discussion and Decision
I. Violation of Plea Agreement
S.S. argues that the trial court violated the terms of the plea agreement
by placing S.S. on informal home detention until the first review hearing.
Generally, trial courts possess discretionary power to determine a sentence within statutorily prescribed
parameters. Gordy v. State, 674 N.E.2d 190, 191 (Ind. Ct. App. 1996).
The trial courts sentencing power includes the statutory discretion to order probation
and set out its terms, and trial courts have broad discretion in establishing
conditions of probation. Id.
However, when the trial court establishes terms of probation following the acceptance of
a plea agreement, a trial courts discretion is limited. Freije v. State,
709 N.E.2d 323, 325 (Ind. 1999); see also Ind. Code § 35-35-3-3(e) (If
the court accepts a plea agreement, it shall be bound by its terms.).
Trial courts are free to impose administrative or ministerial conditions as terms
of probation, even if such terms are not included in the plea agreement.
Freije, 709 N.E.2d at 325. However, a condition of probation which
imposes a substantial obligation of a punitive nature is indeed part of the
sentence and penalty and must be specified in the plea agreement. Id.
at 324 (quoting Disney v. State, 441 N.E.2d 489, 494 (Ind. Ct. App.
In Freije, our supreme court determined that the trial court erred by accepting
the parties plea agreement that only called for probation and then imposing home
detention and 650 hours of community service as terms of probation. The
Court noted that some terms of probation, i.e., the standard terms of probation,
which are mainly ministerial or administrative in nature, may be included by the
trial court even if a plea agreement makes no mention of such terms,
because a probationer should reasonably expect that the countys standard conditions may apply.
Freije, 709 N.E.2d at 325. However other special terms of probation
that are punitive in nature, such as home detention, may not be imposed
as a term of probation where the plea agreement is silent to such
The State cites to L.W. v. State, 798 N.E.2d 904 (Ind. Ct. App.
2003) to support its argument that the juvenile court had discretion to impose
informal home detention as a term of probation. In L.W., a different
panel of this court found no error where the juvenile court ordered informal
home detention after accepting a plea agreement calling for suspended commitment. The
court determined that informal home detention in that case was not punitive and
assisted the juvenile in meeting his probation obligations similar to other conditions of
probation approved in Freije. L.W., 798 N.E.2d at 908.
We find the facts of L.W. readily distinguishable. In L.W., the juveniles
father was available to accompany L.W. and acknowledged that informal home detention would
assist L.W. in meeting the terms of his probation. L.W., 798 N.E.2d
at 906. Here, Mother was responsible for three other adopted sons, an
adopted daughter, and two biological children. Appellants App. at 32. Further,
Mothers husband is disabled and resides in a nursing home. Id.
Given these constraints, the juvenile courts imposition of informal home detention constituted an
impermissible punitive condition outside of the plea agreement and was akin to formal
home detention. Accordingly, the juvenile court abused its discretion by imposing informal
home detention as a term of S.S.s probation.
II. Parental Participation Order
S.S. also argues that the juvenile court erred in ordering Mothers participation without
informing her that she has a right to contest an allegation concerning her
participation and financial responsibility.
Indiana Code Section 31-37-12-6 provides:
The juvenile court shall inform the parent or guardian of the estate of
the following if a child is adjudicated a delinquent child:
The parent, guardian, or custodian of the child may be required to participate
in a program of care, treatment, or rehabilitation for the child.
The parent or guardian may be held financially responsible for services provided for
the child or the parent or guardian.
The parent, guardian, or custodian of the child may controvert:
an allegation made at the dispositional or other hearing concerning the participation of
the parent, guardian, or custodian; or
an allegation concerning the financial responsibility of the parent, guardian, or custodian for
services that would be provided.
S.S. argues that M.T. v. State, 787 N.E.2d 509 (Ind. Ct. App. 2003)
requires reversal of the parental participation order. In M.T., the State failed
to file a proper petition for parental participation, and failed to inform the
parents of their right to contest allegations concerning their participation and financial responsibility.
Id. at 515-16. Because a proper petition was not filed, we
found that the juvenile court was without jurisdiction to order parental participation.
Id. at 515. Conclusion
Here, the State concedes that the juvenile court did not advise Mother of
her right to contest an allegation concerning her participation and financial responsibility.
However, the State argues that the juvenile court had proper jurisdiction over Mother
because a proper petition for parental participation had been filed, unlike the situation
in M.T. Further, the State asserts that because Mother ultimately agreed to
participate in S.S.s probation, the juvenile courts failure to properly advise Mother is
harmless. See Ind. App. R. 66(A) (error is harmless if it is
so minor as not to affect a partys substantial rights). We disagree.
In M.T., we specifically held that it was error for the juvenile court
to not advise M.T.s mother of her rights regarding the effect of his
adjudication. M.T., 787 N.E.2d at 516. We have previously held that
[f]ailure to comply with the statutory scheme is fatal. Carnahan v.
State, 558 N.E.2d 845, 847 (Ind. Ct. App. 1990) (analyzing predecessor statute, Indiana
Code § 31-6-4-13). Accordingly, the juvenile courts error in failing to advise
Mother of her rights was not harmless.
Finally, with respect to Mothers financial responsibility, we note that the juvenile court
did not advise Mother of her right to contest this aspect of the
juvenile courts disposition. This was error, as the juvenile court did not
comply with the clear mandate of Indiana Code Section 31-37-12-6. See M.T.,
787 N.E.2d at 516. Nevertheless, although the probation department, through its petition
for parental participation, requested that Mother be financially responsible for S.S.s probation expenses,
the juvenile court did not include this term in its parental participation order.
Accordingly, the juvenile courts error in failing to advise Mother of her
right to contest an allegation concerning her financial responsibility was harmless.
Based upon the foregoing, the juvenile court erred by imposing home detention as
a term of probation where the plea agreement did not provide the juvenile
court with discretion to impose punitive conditions. Moreover, to the extent that
the juvenile court erred in failing to inform Mother of her right to
contest the parental participation order, such error was harmless. Finally, although the
juvenile court erred by failing to inform Mother of her right to contest
financial responsibility, the juvenile courts participation order did not require Mother to be
financially responsible for S.S.s probation expenses, and thus, the error was harmless.
BAKER, J., and MAY, J., concur.
Ind. Code § 35-47-2-1.
Footnote: On April 29, 2005, we heard oral argument in this case at
the Harrison County courthouse in Corydon, Indiana. We thank counsel for their
advocacy and extend our appreciation to Judge H. Lloyd Whitis and the Harrison-Crawford
County Bar Association for hosting the event.
Footnote: The supreme court noted that some special terms of probation, such as
requirements to attend a victim impact panel or to complete counseling or educational
programs, are rehabilitative in nature and do not materially add to the punitive
obligation of a probationer.
Freije, 709 N.E.2d at 325. The trial
court may impose such terms in the absence of a provision in the
plea agreement giving the trial court discretion to impose conditions of probation. Id.
Because S.S.s home detention ended in December of 2004, our reversal of
the juvenile courts imposition of home detention provides no practical relief to S.S.,
and S.S. does not seek any particular relief in his appellate brief.
However, we address this issue as it appears likely to recur.
v. State, 736 N.E.2d 1274, 1276 (Ind. Ct. App. 2000).