Kenneth W. Gilland v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
FILED
be regarded as precedent or cited Oct 31 2012, 9:09 am
before any court except for the purpose
of establishing the defense of res CLERK
of the supreme court,
court of appeals and
judicata, collateral estoppel, or the law tax court
of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PAULA M. SAUER GREGORY F. ZOELLER
Danville, Indiana Attorney General of Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KENNETH W. GILLAND, )
)
Appellant-Defendant, )
)
vs. ) No. 32A01-1203-CR-143
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable Mark A. Smith, Judge
Cause No. 32D04-1007-FC-15
October 31, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Kenneth Gilland appeals the trial court’s order requiring him to pay $20,541.62 in
restitution. We affirm in part, reverse in part, and remand.
Issue
Gilland raises two issues, which we consolidate and restate as whether the trial
court properly ordered him to pay $20,541.62 in restitution.
Facts
On April 16, 2010, after injuring James Sprague in an automobile accident,
Gilland was charged with Class A misdemeanor operating a motor vehicle while
endangering a person, which was enhanced to a Class D felony based on a prior
conviction, and Class A misdemeanor driving while suspended. The State later added
charges of Class A misdemeanor operating a vehicle with an alcohol concentration
equivalent of at least .15, which was enhanced to a Class D felony based on a prior
conviction, Class D felony causing serious bodily injury when operating a motor vehicle
while intoxicated, which was enhanced to a Class C felony based on a prior conviction,
and Class D felony causing serious bodily injury when operating a vehicle with an
alcohol concentration equivalent of .08 or more, which was also enhanced to a Class C
felony based on a prior conviction.
On October 4, 2011, a written plea agreement was filed with trial court showing
that Gilland would plead guilty to Class C felony operating a motor vehicle while
intoxicated causing serious bodily injury. The agreement specified Gilland’s sentence
and required him to pay “restitution in the amount of $9949.62 to James Sprague.” App.
2
p. 86 (capitalization altered). A handwritten question mark was written by the restitution
term.
At an October 8, 2011 change of plea hearing, the terms of the plea agreement
were discussed. On the issue of restitution, the following exchange took place:
Court: Alright, well, let’s deal with the restitution just for a
second. The plea agreement says ninety-nine hundred and
forty-nine dollars and sixty-two cents. I understand from our
discussion in chambers that there may be an issue and I just
want to make a clear record of that, I want you to tell me what
is going on with restitution, and I will decide what I’m going
to do here.
State: Judge, I think the reason why there is a dispute in the
restitution is that there is a legal issue. Uh, Mr. Gill.., or not
Mr. Gilland, Mr. Sprague has received a settlement, civil
settlement from uh, the Defendant’s insurance company. And
that he was after, everything was devyied [sic] up between
payment to the insurance company, uh, for medical expenses,
and to his attorney fees. He received a significant amount left
over for pain and suffering. Um, he is now asking for an
additional amount that is out of pocket cost, um, expenses
that he has since incurred, uh, in addition to what was paid
directly to the insurance company for the portion that they
actual paid themselves. Uh, there is a case that, I think, the
disagreement is that since he has already received a portion
from his civil settlement, and he is now asking for additional
money from uh, the criminal restitution, that there may be a
legal issue uh, for you to decide. I have case law that
supports my position that he is allowed to ask for this
additional amount of money.
Court: [Defense Counsel]?
[Defense Counsel]: Judge, that is correct, it needs to be
reviewed by the attorneys and then submitted to the Court to
see whether or not he can get additional restitution after there
has been a settlement through an insurance company and he
was given a check for those issues.
3
Tr. pp. 62-63. The trial court took the plea under advisement, and the parties agreed to
submit case law and brief on what the trial court characterized as the “legal issue with
regard to restitution.” Id. at 65. The trial court set the sentencing hearing for November
1, 2011, and explained that it would “review the case law on the issue of the restitution
and determine whether or not that is a valid claim for restitution, whether or not [it] can
order restitution.” Id.
On October 14, 2011, the State submitted a notice identifying three cases in
support of its position on restitution. Gilland did not file a brief or a written response on
the issue of restitution.
At the November 1, 2011 hearing, the State explained that it believed the hearing
was going to be legal argument about restitution and asked the trial court to accept the
plea and to set the matter for a restitution hearing. The trial court then accepted the plea,
entered judgment of conviction, and sentenced Gilland to the term specified in the plea
agreement. Defense counsel then asked the trial court to “leave the restitution amount
open right now” and to resolve it after a hearing. Id. at 80.
The restitution hearing was eventually held on February 21, 2012.1 Sprague
testified about his injuries and damages and about his civil settlement with Gilland’s
insurer. At this hearing, Sprague requested restitution in the amount of $4,088.04 for out-
of-pocket expenses, $5,861.58 for the difference between the purchase price and sale
price of the motorcycle he was riding at the time of the accident, and $10,800.00 for lost
1
Gilland had previously waived his right to be present at the hearing because of his incarceration.
4
overtime wages.2 The State then argued that Sprague was entitled to receive restitution in
addition to the civil settlement. Defense counsel argued that Sprague had been
compensated for his out of pocket expenses and the damage to his motorcycle through the
civil settlement. At the conclusion of the hearing, the trial court ordered Gilland to pay
restitution in the amount of $20,541.62 for the out-of-pocket expenses, the loss on the
sale of the motorcycle, and the lost overtime wages. Gilland now appeals.
Analysis
On appeal, Gilland asserts that the trial court had the discretion to order restitution
for the out-of-pocket expenses and the motorcycle’s loss in value up to the plea
agreement’s cap of $9,949.62. Gilland argues, however, that the trial court violated the
terms of the plea agreement by including lost overtime wages in the restitution order
because they were not contemplated by the agreement.3 He also claims that the evidence
does not support an award of restitution for the motorcycle’s loss in value or the lost
overtime wages.
In response, the State acknowledges that, if the amount of restitution was set in the
plea agreement, the trial court would have been required to order restitution in that
amount. The State argues, however, that the amount of restitution was not a term of the
plea agreement and was discretionary because at the November 1, 2011 hearing defense
2
The out-of-pocket expenses and loss in value of the motorcycle total $9,949.62, the amount of
restitution specified in the written plea agreement.
3
Gilland argues that, even though he did not object to the trial court’s inclusion of lost overtime wages in
the restitution order, it was fundamental error to do so. However, because Gilland argued throughout the
proceedings that no restitution should be ordered, the issue was properly preserved.
5
counsel requested to “leave the restitution amount open right now” and an evidentiary
hearing on restitution eventually was conducted. Tr. p. 80. The State also argues that the
evidence supports an award of restitution for the loss in value to the motorcycle and the
lost overtime wages.
It is well-settled that plea agreements are in the nature of contracts entered into
between the defendant and the State. Lee v. State, 816 N.E.2d 35, 38 (Ind. 2004). “[A]
plea agreement is contractual in nature, binding the defendant, the state and the trial
court.” Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind. 1994). “The prosecutor and the
defendant are the contracting parties, and the trial court’s role with respect to their
agreement is described by statute: ‘If the court accepts a plea agreement, it shall be bound
by its terms.’” Id. (quoting Ind. Code § 35-35-3-3(e)). The Pannarale court further
observed:
As the statute suggests, the trial court may at its
discretion reject the plea agreement and try the case or
consider any new plea agreement the parties negotiate. Once
it has accepted a plea agreement recommending a specific
sentence, however, the terms of the agreement constrain the
discretion the court would otherwise employ in sentencing.
*****
Goldsmith and its progeny each uphold the principle
that a deal is a deal. Once it has accepted a plea agreement,
the sentencing court possesses only that degree of discretion
provided in the plea agreement with regard to imposing an
initial sentence or altering it later.
Id. Indiana Code Section 35-35-3-3(a) requires that a plea agreement for a felony charge
be in writing.
6
Here, the written plea agreement specifically called for “restitution in the amount
of $9949.62 to James Sprague.” App. p. 86 (capitalization altered). Although the record
reflects the parties’ intent to argue the legal propriety of any award of restitution and the
plea agreement itself has a handwritten question mark by the restitution term, 4 nothing in
the plea agreement reflects an intent to leave the amount of restitution open to the trial
court’s discretion and capped at $9,949.62.
Had the parties intended to give the trial court discretion to determine the
appropriate amount of restitution, either capped at $9,949.62 or unlimited, they should
have included such terms in the written plea agreement. See Griffin v. State, 756 N.E.2d
572, 574 (Ind. Ct. App. 2001) (“In order to avoid mistakes and misrepresentations with
regard to such a binding agreement, counsel should reduce to writing all terms of a plea
agreement.”), trans. denied; Richardson v. State, 456 N.E.2d 1063, 1067 (Ind. Ct. App.
1983) (“Failure to reduce an agreement to writing, however, ‘can lead to
misapprehension, mistake, or even calculated misrepresentation.’ Thus, in the interests
of justice, the terms of such agreements should be placed of record before a sentence is
imposed on the one pleading guilty. It is incumbent on both parties to see that the
agreement’s terms are recorded accurately.” (citations omitted)). Based on the plain
language of the plea agreement, we conclude that the parties did not agree to give the trial
4
Gilland argues that the handwritten question mark on the agreement “indicated the parties’ intent to
argue the actual amount of restitution due.” Appellant’s Br. p. 7. Given the procedural posture of this
case, however, it is unclear who put the question mark there, when it was put there, or the specific context
in which it was put there. Under these circumstances, we decline to the give the question mark any legal
effect.
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court the discretion to determine the amount of restitution; instead, the plea agreement
fixed the amount of restitution at $9,949.62.
Further, even if we assume the question of the legal propriety of a restitution
award was not required to be included in the written plea agreement, at all times prior to
the trial court’s acceptance of the guilty plea the record reflects the parties intent to argue
only the legal propriety of an award of restitution. The unresolved issue discussed at the
October 2011 guilty plea hearing was a legal question, which, if answered in Gilland’s
favor, would have precluded the trial court from ordering restitution at all. Thus, at most
the parties’ agreement authorized the trial court to order no restitution or to order
restitution in the amount of $9,949.62. When the trial court accepted the plea agreement,
it was bound by the terms of that agreement. See I.C. § 35-35-3-3(e); Pannarale, 638
N.E.2d at 1248. Thus, the trial court was not authorized to award restitution in the
amount of $20,547.62. See P.J. v. State, 955 N.E.2d 234, 235 (Ind. Ct. App. 2011)
(observing that, where juvenile court accepted a plea agreement calling for the payment
of a specific amount of restitution instead of leaving the amount to the court’s discretion,
the court was “strictly bound by the plea’s sentencing provisions and precluded from
exercising discretion to determine the amount of restitution”); Gipperich v. State, 658
N.E.2d 946, 950 (Ind. Ct. App. 1995) (reversing portion of sentencing order requiring
payment of fines where the accepted plea agreement contained no such provision and
only called for payment of counseling fees and costs), trans. denied.
We are not persuaded by the State’s argument that restitution was not a term of the
plea agreement because defense counsel requested the trial court to “leave the restitution
8
amount open right now”5 and an evidentiary hearing was eventually conducted. Tr. p. 80.
These events occurred after the trial court accepted the plea agreement. Without citation
to legal authority by the State, we fail to see how these events somehow altered the terms
of the accepted plea agreement so as to give the trial court the unfettered discretion to
award any amount of restitution.
As for Gilland’s challenge to the award of restitution for the motorcycle’s loss in
value, “[w]here a plea agreement includes a defendant’s agreement to a specific sentence,
such defendant may not challenge the sentence by means of a timely or belated direct
appeal.” Sholes v. State, 878 N.E.2d 1232, 1235 (Ind. 2008). “Direct appeal challenges
to sentences following guilty pleas have been permitted only in ‘open pleas,’ that is, for
sentences following plea agreements under which the trial court exercised sentencing
discretion.” Id. Thus, because Gilland agreed that the amount of restitution would be
fixed at $9,949.62 notwithstanding the unresolved legal question, he may not argue on
appeal that the trial court abused its discretion in ordering him to pay restitution for the
loss in value to the motorcycle.
In sum, the terms of the plea agreement specified restitution in the amount of
$9,949.49. To the extent the parties agreed to leave open the legal question regarding the
propriety of restitution, upon accepting the plea agreement, the trial court was permitted
to either deny restitution or award restitution in the amount of $9,949.62. The trial court
5
The State seems to suggest that this request indicates an intent by Gilland to give the trial court
discretion to determine the amount of restitution. This statement, however, could also be construed as
preserving the legal question the parties had previously discussed.
9
did not have the discretion to award restitution in any other amount. Therefore, the trial
court’s award of restitution for lost-overtime wages was improper. Similarly, because the
plea agreement fixed the amount of restitution at $9,949.62, Gilland may not now
challenge the sufficiency of the evidence to support restitution for the loss in value to the
motorcycle.6 Pursuant to the terms of the plea agreement, the proper amount of
restitution is $9,949.62.
Conclusion
Because the plea agreement called for restitution in the amount of $9,949.62, the
trial court did not have the authority to order restitution in the amount of $20,541.62.
Further, because Gilland agreed to pay restitution in the amount of $9,949.62, he may not
challenge the portion of that amount that relates to the loss in value of the motorcycle on
appeal. We affirm in part, reverse in part, and remand with instructions to reduce the
restitution order to $9,949.62.
Affirmed in part, reversed in part, and remanded.
VAIDIK, J., and MATHIAS, J., concur.
6
Gilland does not argue on appeal that an award of restitution is legally impermissible because Sprague
received a civil settlement. In fact, he does not challenge the award of restitution for the out-of-pocket
expenses.
10