Jack L. Fisher v. State of Indiana , 2016 Ind. App. LEXIS 93 ( 2016 )

FILED
Mar 31 2016, 8:31 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Peter D. Todd Gregory F. Zoeller
Elkhart, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jack L. Fisher, March 31, 2016
Appellant-Defendant, Court of Appeals Case No.
20A03-1509-CR-1373
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Teresa L. Cataldo,
Appellee-Plaintiff Judge
Trial Court Cause No.
20D03-1402-FA-6
Baker, Judge.
Court of Appeals of Indiana | Opinion 20A03-1509-CR-1373 | March 31, 2016 Page 1 of 5
[1] Jack Fisher was found driving a vehicle that contained a methamphetamine lab.
A State Police Clandestine Lab Team had to clean up the lab, and incurred
costs in doing so. After Fisher pleaded guilty, the trial court ordered him to pay
restitution to the lab team in the amount of those costs.
[2] Fisher appeals the restitution order imposed by the trial court after Fisher
pleaded guilty to Attempted Dealing in Methamphetamine, 1 a class B felony.
Fisher argues that the restitution order was improper because there was no
victim to whom restitution should be paid. Finding that the trial court was
statutorily required to order restitution in this case, we affirm.
Facts
[3] On February 11, 2014, Fisher was driving a vehicle and was pulled over by a
police officer. The vehicle contained a number of precursors used in the
manufacture of methamphetamine as well as methamphetamine itself. The
Indiana State Police Clandestine Lab Team was called to clean up the mobile
methamphetamine lab; the amount of costs the team incurred in the cleanup
totaled $1,432.49.
[4] On February 18, 2014, the State charged Fisher with class A felony dealing in
methamphetamine. On June 19, 2015, Fisher pleaded guilty to class B felony
attempted dealing in methamphetamine pursuant to a plea agreement. 2 As part
1
Ind. Code § 35-48-4-1.1; Ind. Code § 35-41-5-1.
2
The State dismissed the class A felony charge in exchange for the guilty plea.
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of the plea agreement, Fisher waived any appellate argument related to whether
the sentence imposed by the trial court was erroneous or inappropriate pursuant
to Indiana Appellate Rule 7(B). Appellant’s App. p. 75. On June 23, 2015, the
trial court sentenced Fisher to twelve years imprisonment, with four years
executed, two years in alternate placement, and six years suspended to
probation. The trial court also ordered Fisher to pay restitution to the
Clandestine Lab Team in the amount of $1,432.49. Fisher now appeals.
Discussion and Decision
[5] Fisher’s sole argument on appeal is that the restitution order was erroneous.
We review a trial court’s order of restitution for an abuse of discretion, and will
affirm if sufficient evidence exists to support its decision. Rich v. State, 890
N.E.2d 44, 49 (Ind. Ct. App. 2008).
[6] The parties dispute whether Fisher has waived this appeal by entering into the
plea agreement. We decline to resolve this case on grounds of waiver.
[7] Initially, we note that restitution was not mentioned in the plea agreement or at
the guilty plea hearing. Under these circumstances, the general rule is that the
trial court may not order restitution. See Edsall v. State, 983 N.E.2d 200, 208-09
(Ind. Ct. App. 2013). In this case, however, there is a specific statute
mandating trial court action:
(a) In addition to any other penalty imposed for conviction of
an offense under this chapter involving the manufacture or
intent to manufacture methamphetamine, a court shall
order restitution under IC 35-50-5-3 to cover the costs, if
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necessary, of an environmental cleanup incurred by a law
enforcement agency or other person as a result of the
offense.
(b) The amount collected under subsection (a) shall be used to
reimburse the law enforcement agency that assumed the
costs associated with the environmental cleanup described
in subsection (a).
Ind. Code § 35-48-4-17 (emphasis added).
[8] We acknowledge an apparent conflict between the case law, which provides
that restitution may not be ordered unless it is included in the plea agreement,
and the statute, which requires the trial court to order restitution in
methamphetamine cleanup cases. It is well established that plea agreements are
contractual in nature. E.g., Lee v. State, 816 N.E.2d 35, 38 (Ind. 2004). It is also
well established that a contract must be construed as having been made in
contemplation of applicable law. E.g., Mouch v. Ind. Rolling Mill Co., 93 Ind.
App. 540, 151 N.E. 137, 138-29 (1926) (holding that statutes that exist at the
time a contract is made must be read into the contract unless expressly excluded
by the contractual language). In this case, Fisher’s plea agreement was entered
into in 2015, more than a decade after the 2003 enactment of Indiana Code
section 35-48-4-17. Under these circumstances, we find that the plea agreement
implicitly incorporated the statutory restitution requirement. See Lee, 816
N.E.2d at 38 (holding that “precisely because plea agreements are contracts, the
principles of contract law can provide guidance in the consideration of the
agreement”). Therefore, the trial court did not err by ordering restitution.
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[9] Finally, Fisher’s argument focuses on whether or not there is a victim to whom
restitution is owed. 3 This Court has already addressed this precise issue. In
Bulthuis v. State, the defendant appealed the trial court’s order of restitution
following the cleanup of a methamphetamine lab. 17 N.E.3d 378 (Ind. Ct.
App. 2014), trans. denied. Among other things, Bulthuis contended that the
State was not a “victim” for the purpose of restitution. We disagreed, observing
that the restitution award was “not only permitted, but required by the relevant
statute[.]” Id. at 389 (emphasis added).4 Therefore, we found that the trial
court did not abuse its discretion by ordering Bulthuis to pay restitution for the
cost of the methamphetamine cleanup. Id. Here, the Clandestine Lab Team
agency is the statutorily mandated victim to whom restitution is owed. We find
no error in this regard.
[10] The judgment of the trial court is affirmed.
May, J., and Brown, J., concur.
3
Fisher does not challenge the amount of the restitution order, which is supported by information contained
in the Presentence Investigation Report, to which Fisher did not object. Appellant’s App. p. 77.
4
As noted above, Indiana Code section 35-48-4-17(b) provides that the mandatory restitution ordered
following a methamphetamine cleanup “shall be used to reimburse the law enforcement agency that assumed
the costs” of the cleanup.
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