Kristopher Souter v. State of Indiana ( 2015 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Jan 08 2015, 9:08 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHELLE F. KRAUS GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
GRAHAM T. YOUNGS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KRISTOPHER SOUTER, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1405-CR-170
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Wendy W. Davis, Judge
Cause No. 02D04-1312-FD-1333
January 8, 2015
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Kristopher Souter appeals the $2500 restitution order imposed by trial court
following his guilty plea to class D felony Receiving Stolen Property1 and Class B
misdemeanor False Informing.2 Finding that the trial court erred in determining the
amount of restitution, we reverse and remand with instructions to recalculate the
restitution owed by Souter.
FACTS
On November 29, 2013, Yasas Pelendagama Arachchige called the Fort Wayne
Police Department to report that his apartment had been burglarized. Several items were
stolen, including a flat screen television, personal clothing, earphones, and iPods.
Souter was located by police in the bathroom of a nearby apartment. He told
officers that his name was Kristopher Tolbert, and the officers later learned that his name
was Kristopher Souter. Officers found an iPod in the bathroom where Souter was found.
The serial number on the iPod matched the serial number of an iPod that had been stolen
from Arachchige.
On December 5, 2013, the State charged Souter with receiving stolen property and
false informing. On March 3, 2014, Souter pleaded guilty to both counts. At his guilty
plea hearing, Souter admitted that he had had possessed an iPod that did not belong to
him and that it was the subject of a theft. At his sentencing hearing on April 28, 2014,
Souter was sentenced to one year and 183 days for the receiving stolen property
1
Ind. Code § 35-43-4-2.
2
Ind. Code § 35-44.1-2-3(d)(1).
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conviction and to 183 days for the false informing conviction, to run concurrently. The
sentence was suspended according to the terms of Souter’s plea agreement.
In addition to the above sentence, the trial court also ordered Souter to pay $2500
in restitution. The plea agreement provided: “[t]he parties agree to have a hearing on
restitution. The Court shall determine the amount of restitution, if any.” Appellant’s
App. p. 15. The pre-sentencing investigation (PSI) report listed the amount of actual loss
reported by Arachchige as $2500. Souter argued that because he had returned the iPod to
Arachchige, there should be no restitution ordered. The trial court determined that Souter
would pay restitution because he was acting in concert with others and “they’re all
equally guilty.” Sentencing Tr. p. 15. Souter now appeals.
DISCUSSION AND DECISION
Souter argues that the trial court erred when it ordered $2500 in restitution, which
exceeded the amount of loss caused by the crimes to which he pleaded guilty. A trial
court has the authority to order a defendant convicted of a crime to make restitution to the
victims of the crime. Ind. Code § 35-50-5-3. A restitution order is well within the trial
court’s sound discretion, and we will reverse only upon a showing of an abuse of that
discretion. Henderson v. State, 848 N.E.2d 341, 346 (Ind. Ct. App. 2006). An abuse of
discretion occurs if the court’s decision is clearly against the logic and effects of the facts
and circumstances before it. Id. An abuse of discretion may also occur where the trial
court misinterprets or misapplies the law. Kimbrough v. State, 911 N.E.2d 621, 639 (Ind.
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Ct. App. 2009). Additionally, the restitution order must be supported by sufficient
evidence of the victim’s loss. Gil v. State, 988 N.E.2d 1231, 1235 (Ind. Ct. App. 2013).
The State argues that the probable cause affidavit and the amount of loss reported
by the victim in the PSI report provide sufficient evidence to support the trial court’s
restitution order. In the PSI report, Arachchige states that his losses from the burglary of
his residence totaled $2500, the deductible on the claim he sent to his insurance company
after the burglary. PSI report p. 40. The State maintains that this information, along with
information in the probable cause affidavit showing that police discovered Souter in an
apartment with other individuals who were talking about the burglary, one of whom was
wearing Arachchige’s clothing, is enough to support the restitution order.
Souter argues that the trial court erred when it imposed restitution for the amount
of loss resulting from the burglary, a crime to which he did not plead guilty. In support
of this argument, Souter cites Polen v. State, 578 N.E.2d 755, 758 (Ind. Ct. App. 1991),
in which a panel of this Court determined that it was error for the trial court to order
restitution for losses due to crimes to which defendant did not plead guilty, of which she
was not convicted, and for which she did not agree to pay restitution. The State
maintains that Polen does not apply, because here Souter agreed to be “bound by the
discretion of the trial court with respect to the restitution imposed.” Appellee’s Br. p. 10.
We cannot agree with the State. While Arachchige’s losses from the burglary may
total $2500, Souter did not plead guilty to the burglary. He pleaded guilty to receiving
stolen property and admitted to possessing the iPod. We see no reason to distinguish the
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plea agreement in the instant case from that in Polen. Polen’s plea agreement stated
“there is no agreement as to the issue of restitution, other than it is agreed that each side
shall be allowed to present evidence regarding said issue for the Court to decide.” 578
N.E.2d at 757. Likewise, Souter’s plea agreement states: “[t]he parties agree to have a
hearing on restitution. The Court shall determine the amount of restitution, if any.”
Appellant’s App. p. 15. Both of these provisions have the same meaning: that evidence
regarding restitution will be presented, or that a hearing will be held, and that the trial
court will determine the amount of restitution. We do not find that Souter agreed to pay
restitution beyond the amount of loss caused by the crimes to which he pleaded guilty.
We find that the trial court erred when it ordered restitution in an amount greater
than the sums involved in those crimes to which Souter actually pleaded guilty. We
reverse the restitution order imposed by the trial court and remand to the trial court the
recalculation of the restitution amount.
The judgment of the trial court is reversed and remanded.
VAIDIK, C.J., and RILEY, J., concur.
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