May, J.
The State of Indiana appeals the Putnam Circuit Court’s dismissal of one count of Class B felony child molesting alleged to have been committed by twenty- appeal, the State asserts that dismissal was an error because circuit courts have original and concurrent jurisdiction over all criminal matters. Pemberton responds by asserting Indiana Code section 31-30-1-11(a) divests criminal courts of jurisdiction over adults who committed delinquent acts as children, and in support he cites our court’s recent decision in State v. Neukam, 174 N.E.3d 1098 (Ind. Ct. App. 2021), reh’g denied, trans. granted. The State, on reply, presents multiple arguments challenging Pemberton’s interpretation of Section 31-30-1-11(a).
At the heart of the issue before us is a lack of clarity in the Indiana Code about whether the legislature intends adult criminal courts to have jurisdiction over individuals who allegedly committed delinquent acts as juveniles but were not identified as having allegedly committed those acts before turning twenty-one years of age. We, like the Putnam Circuit Court, are uncomfortable with the lack of an explicit indication of our legislature’s intent in these circumstances. Nevertheless, the judiciary is not the branch of government the State should petition to correct statutory inadequacies, as our authority is limited to interpreting laws, not to creating the statutes themselves. See D.P. v. State, 151 N.E.3d 1210, 1217 (Ind. 2020) (refusing to “violate separation-of-power principles” by rewriting statutes).
In light of the “exclusive original jurisdiction” given to Indiana’s juvenile courts, Ind. Code § 31-30-1-1, and the fact that “children are constitutionally different from adults[,]” Miller v. Alabama, 567 U.S. 460, 471, 132 S. Ct. 2455, 2464 (2012), we infer the legislature did not intend criminal courts to have jurisdiction over adults who allegedly committed delinquent acts as juveniles, unless the alleged delinquent act was an offense over which the legislature explicitly gave jurisdiction to criminal courts when the actors were younger than age eighteen. As the criminal court would not have automatically had jurisdiction of Pemberton when he allegedly committed Class B felony child molesting as a sixteen-year-old, we affirm the criminal court’s dismissal of the State’s criminal charge against Pemberton for an alleged act of juvenile delinquency.
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Pemberton’s motion to dismiss rested on an allegation that the adult criminal court did not have jurisdiction over the charge filed against him. “Subject matter jurisdiction refers to a court’s constitutional or statutory power to hear and adjudicate a certain type of case.” In re D.P., 151 N.E.3d at 1213.
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Pemberton’s motion to dismiss relied on Indiana Code section 31-30-1-11(a), which states: Except as provided in section 9 of this chapter, if a court having criminal jurisdiction determines that a defendant is alleged to have committed a crime before the defendant is eighteen (18) years of age, the court shall immediately transfer the case, together with certified copies of all papers, documents, and testimony, to the juvenile court. The juvenile court shall proceed as if it had received a referral under IC 31-37-8.
Pemberton asserts that statutory language required the adult criminal court to transfer the charge against him to the juvenile court because he was alleged to have committed the crime before he was eighteen years old, and in support he cites our court’s recent decision in Neukam, 174 N.E.3d 1098, which has since been vacated by our Indiana Supreme Court’s grant of transfer. See also State v. Dibble, 177 N.E.3d 832 (Ind. Ct. App. 2021) (affirming criminal court’s dismissal of adult charge of Class B felony child molesting against Dibble for act committed before Dibble was eighteen years old based on Section 31-30-111(a)).
The State asserts Pemberton misreads Indiana Code section 31-30-1-11(a) when he infers that it divests criminal courts of jurisdiction over defendants whose alleged delinquent acts were committed before age eighteen. According to the State, the statute requires a criminal court to transfer a case to juvenile court only if the State’s criminal allegation is filed before the defendant turns eighteen years old. We reject the State’s reading of Indiana Code section 31-30-1-11(a) for a plethora of interrelated reasons, the most important of which is how the transfer statute fits into the broader purpose of the juvenile code, and we begin with that discussion.
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To interpret the transfer statute in the manner the State proposes would allow the State to drag into adult court not just those adults who committed acts over which adult courts had jurisdiction if the juvenile was at least sixteen when the act was committed, see Ind. Code § 31-30-1-4, but literally any juvenile delinquent for whom the statute of limitations on adult crimes had not yet run. Thus, for example, if a seventeen-year-old foolishly committed Level 6 felony theft by shop-lifting – which has a five year statute of limitations for adults, see Ind. Code § 35-41-4-2 – and if the transfer statute is given the reading urged by the State and the dissent, then the State could bring an adult criminal charge of theft when that foolish teenager is twenty-one or twenty-two years old, even though Indiana Code section 31-30-1-4 would not have allowed the adult court to have jurisdiction over the shoplifter at age seventeen, and even if that foolish teenager had gone on to become a decorated military officer or employed college graduate. If the legislature intended to sweep into adult court all unpunished acts of juvenile delinquency for which the statute of limitation had not yet run, we trust the legislature would do so in a more direct fashion than by use of a heretofore unacknowledged loophole in Indiana Code section 31-301-11 that divests the juvenile court of its exclusive jurisdiction of all acts committed by children that would have been crimes if committed by an adult. We, accordingly, hold Section 31-30-1-11(a) prohibits the adult criminal court from taking jurisdiction of charges against Pemberton for an act of child molesting that he allegedly committed when he was sixteen years old. See Dibble, 177 N.E.3d 832 (affirming criminal court’s dismissal of adult charge of Class B felony child molesting against Dibble for act committed before Dibble was eighteen years old based on Section 31-30-1-11(a)).
Absent specific exceptions outlined by our legislature in other statutes, acts that would be criminal offenses if committed by adults are defined by Indiana law as delinquent acts when committed by individuals under age eighteen, and Indiana law gives exclusive jurisdiction of delinquency proceedings to juvenile courts. In accordance therewith, we read Indiana Code section 31-30-1-11(a) to prohibit criminal proceedings when the acts alleged as crimes were committed by an individual under age eighteen over whom the juvenile court was not deprived jurisdiction by our legislature. Neither the legislative history nor remaining subsections of Indiana Code section 31-30-1-11 convince us the legislature intended otherwise. Because transfer of this case to juvenile court would be futile, see D.P. v State, 151 N.E.3d at 1214, we affirm the trial court’s dismissal of the criminal charge brought against twenty-three-year-old Pemberton for the delinquent act he allegedly committed when he was sixteen years old.
Affirmed.
Vaidik, J., concurs.
Molter, J., dissents with opinion.
Molter, J., dissenting.
Pemberton’s motion to dismiss was based solely on Indiana Code section 31-30-1-11(a) (the “Transfer Statute”), which provides that “if a court having criminal jurisdiction determines that a defendant is alleged to have committed a crime before the defendant is eighteen (18) years of age, the court shall immediately transfer the case . . . to the juvenile court.” As I read that statute, it directs an adult criminal court to transfer a case to the juvenile court when the adult court discovers the accused is a child at the time the criminal court is considering the question of transfer, not at the time the relevant acts were allegedly committed. While the Transfer Statute’s first subsection directs the adult criminal court to transfer the case when “a defendant” is alleged to have committed a crime before age eighteen, every subsequent reference is to “the child,” and the entire statute presupposes the defendant is a child at the time transfer is being considered. Ind. Code § 31-30-1-11. Most notably, every subsection after the first governs what to do with the individual while the case is being transferred, and those subsections all pertain to handling someone who is currently a child. See, e.g., Ind. Code § 31-30-1-11(b) (“The court having criminal jurisdiction shall release the child on the child’s own recognizance or to the child’s parent, guardian, or custodian . . . .”).
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The majority worries my interpretation of the Transfer Statute could result in a scenario, for example, where a seventeen-year-old commits a Level 6 felony theft by shoplifting and is then prosecuted in adult court when they turn twenty-one because the statute of limitations would not have run yet. This concern is misplaced for two reasons.
To begin with, as I interpret the Transfer Statute, it does not speak to that question at all. If the defendant in that scenario were to be prosecuted in the adult criminal court, some other statute would have to confer jurisdiction. The majority suggests there is no such statute because Indiana Code section 31-30-11(a) grants “exclusive original jurisdiction” over delinquent acts to the juvenile court. As they interpret section 31-30-1-1, acts which would be criminal offenses if committed by adults are defined by Indiana law as delinquent acts when committed by individuals under age eighteen, and the juvenile court has exclusive jurisdiction over those acts with exceptions which do not apply here.
The majority may be right about that, and we may soon learn when the Supreme Court issues its decision in State v. Neukam, 178 N.E.3d 795 (Ind. 2021), which presents that question. But I would not get ahead of the Supreme Court in answering it here because that was not the basis of Pemberton’s motion to dismiss, he does not discuss that statute on appeal, and there are reasons to question whether that statute deprived the adult court of jurisdiction, including our Supreme Court’s statement in the past that both adult criminal courts and juvenile courts have subject matter jurisdiction “[w]hen a juvenile commits acts which would constitute a crime if he were an adult.” Twyman v. State, 459 N.E.2d 705, 708 (Ind. 1984).
Also, the question of whether it is good policy to prosecute the hypothetical seventeen-year-old felony shoplifter in adult court is beyond the judicial purview. I leave that for the legislature to determine, suggesting only that if they conclude the defendant should not be prosecuted in adult court, that legislative directive would likely take the form of a statute of limitations or some other age-based prosecutorial cut-off, not a direction to an adult court to first exercise subject matter jurisdiction by deciding to transfer the case, and then to transfer the case to a court which lacks jurisdiction to receive it.
In sum, if the adult criminal court lacked subject matter jurisdiction here, I do not believe the Transfer Statute was the reason, so I would reverse the trial court’s order dismissing the case on that basis without expressing an opinion as to whether other statutes deprive the court of jurisdiction. I therefore respectfully dissent.