Robert A. Carmer v. State of Indiana ( 2013 )

Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
Feb 21 2013, 9:07 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DONALD S. EDWARDS GREGORY F. ZOELLER
Columbus, Indiana Attorney General of Indiana
JONATHAN R. SICHTERMANN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROBERT A. CARMER, )
)
Appellant-Defendant, )
)
vs. ) No. 03A04-1208-CR-427
)
STATE OF INDIANA, )
)
Appellee-Defendant. )
APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT
The Honorable Stephen R. Heimann, Judge
Cause No. 03C01-1203-FB-1187
February 21, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
Pursuant to a plea agreement with Appellee-Plaintiff the State of Indiana,
Appellant-Defendant Robert Carmer pled guilty to Class B felony dealing in
methamphetamine and agreed to pay “full restitution” in exchange for the State’s
dismissal of two additional felony charges, and a maximum executed sentence of ten
years. The trial court accepted the agreement and sentenced Carmer to eighteen years
with ten years executed and eight years suspended to probation, including three years
with community corrections. The court also ordered that Carmer pay $15,812.54 in
restitution. Carmer appeals his sentence, arguing that the trial court exceeded the ten-
year maximum executed sentence provided for in his plea agreement by sentencing him
to both ten years executed and three years with community corrections. Carmer also
argues that the trial court abused its discretion in ordering him to pay restitution as a
condition of probation without first inquiring into his ability to pay. We affirm.
FACTS AND PROCEDURAL HISTORY
On March 2, 2012, the State charged Carmer with Class B felony dealing in
methamphetamine, Class D felony possession of chemical reagents or precursors with
intent to manufacture a controlled substance, and Class D felony receiving stolen auto
parts. Pursuant to a plea agreement with the State, Carmer pled guilty to the dealing
charge and agreed to pay “full restitution” in exchange for the State’s dismissal of the
remaining two charges, and a maximum executed sentence of ten years. Appellant’s
App. p. 19.
The trial court accepted Carmer’s plea agreement and sentenced him to eighteen
years with ten years executed and the remaining eight suspended to probation. As
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“[s]pecial terms of probation,” the court ordered the following:
C. The defendant shall pay restitution totaling Fifteen Thousand Eight
Hundred Twelve Dollars and Fifty Four Cents ($15,812.54) as follows:
Jeff Roach – Five Hundred Dollars ($500.00) (paid from cash bond posted);
Indiana State Police – One Thousand Two Hundred Thirty Seven Dollars
and Fifty Four Cents ($1,237.54) (paid from cash bond posted)[;] and
Hastings Mutual Insurance Company – [(]$14, 075.00). Said restitution to
Hastings Mutual Insurance Company shall be paid at the rate of Twenty
Dollars ($20.00) per week until paid in full. The first payment is due 60
days after release.
….
F. The defendant shall be placed with Community Corrections for a
period of three (3) years for purposes of assessment and determination of
appropriate programming. The defendant is required to comply with the
specific programs recommended by Community Corrections, which may
include work release/residential placement, day reporting, electronic
monitoring, counseling or education programs.
Appellant’s App. p. 25.
At his sentencing hearing, Carmer acknowledged that his plea agreement required
him to pay “full restitution.” Tr. p. 3. Carmer also stated that he did not “have … any
objection to the [restitution] numbers,” Tr. p. 17, and he affirmed that $15,812.54 was the
correct amount owed.
DISCUSSION AND DECISION
“[S]entencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868 N.E.2d
482, 490 (Ind. 2007). “An abuse of discretion occurs if the decision is clearly against the
logic and effect of the facts and circumstances before the court, or the reasonable,
probable, and actual deductions to be drawn therefrom.” Id.I. Maximum Executed Sentence
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Carmer argues that the trial court abused its discretion in sentencing him to ten
years executed while also placing him with community corrections for three years of his
probationary term. Carmer contends that this amounts to a thirteen-year executed
sentence, in violation of the ten-year maximum provided for in his plea agreement. We
disagree.
Indiana Code section 35-38-2.6-3(a) allows the court, “at the time of sentencing,
[to] suspend the sentence and order a person to be placed in a community corrections
program as an alternative to commitment to the department of correction.” (emphasis
added). Likewise, section 35-38-2.6-4 provides, “If the court places a person in a
community corrections program … the court shall suspend the sentence for a fixed
period to end not later than the date the suspended sentence expires.” (emphasis added).
Indiana Courts have interpreted these Code provisions to mean that “a person is serving
the executed portion of his sentence when he is committed to the Department of
Correction” and “that the portion of a defendant’s sentence involving placement [with
community corrections] does not constitute a part of the executed sentence.” Shaffer v.
State, 755 N.E.2d 1193, 1995 (Ind. Ct. App. 2001); see Purcell v. State, 721 N.E.2d 220,
223 (Ind. 1999). The trial court did not err and, thus, did not abuse its discretion in
sentencing Carmer to both ten years executed and three years with community
corrections.
II. Ability to Pay Restitution
Carmer argues that the trial court abused its discretion in ordering him to pay
restitution as a condition of probation without first inquiring into his ability to pay.
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“When restitution is ordered as a condition of probation, the trial court must inquire into
the defendant’s ability to pay restitution in order to prevent indigent defendants from
being imprisoned because of their inability to pay.” Shaffer v. State, 674 N.E.2d 1, 9
(Ind. Ct. App. 1996). Our review of the record reveals that the trial court did not inquire
into Carmer’s ability to pay $15,812.54 in restitution; however, we conclude that Carmer
waived his right to that inquiry.
This court has held that, by entering into a plea agreement whereby a defendant
agrees to pay a specific amount of restitution instead of leaving the amount to the
discretion of the court, the defendant acknowledges his ability to pay restitution and
thereby waives his right to have the court inquire into that ability. P.J. v. State, 955
N.E.2d 234, 235 (Ind. Ct. App. 2011); see M.L. v. State, 838 N.E.2d 525, 530 n.9 (Ind.
Ct. App. 2005). Here, Carmer agreed to pay “full restitution” as part of his plea
agreement and acknowledged doing so before the court. Tr. p. 19. Moreover, Carmer
affirmed to the court that $15,812.54 was the correct amount of restitution owed, and he
told the court he did not “have … any objection to the [restitution] numbers.” Tr. p. 17.
Further, and without considering Carmer’s waiver, we conclude that remand for
the trial court’s inquiry into Carmer’s ability to pay restitution would not be necessary.
In Pearson v. State, 883 N.E.2d 770, 774 (Ind. 2008), the Indiana Supreme Court held
that, although the trial court failed to inquire into defendant’s ability to pay restitution,
remand for that inquiry was not required because the defendant did not challenge the
amount of restitution or his ability to discharge that obligation on appeal. Such is the
case in the instant matter. Carmer simply challenges the procedural error alleged above;
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he does not assert an inability to pay the ordered amount. Therefore, we cannot say that
the trial court abused its discretion in not inquiring into Carmer’s ability to pay
restitution.
The judgment of the trial court is affirmed.
NAJAM, J., and FRIEDLANDER, J., concur.
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