Austin A. McCarty v. State of Indiana (mem. dec.) ( 2021 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                             FILED
    regarded as precedent or cited before any                                    Jan 05 2021, 8:33 am
    court except for the purpose of establishing                                      CLERK
    Indiana Supreme Court
    the defense of res judicata, collateral                                          Court of Appeals
    and Tax Court
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
    Victoria Bailey Casanova                                Curtis T. Hill, Jr.
    Casanova Legal Services, LLC                            Attorney General of Indiana
    Indianapolis, Indiana
    Tyler G. Banks
    Supervising Deputy
    Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Austin A. McCarty,                                      January 5, 2021
    Appellant-Defendant,                                    Court of Appeals Case No.
    20A-CR-1231
    v.                                              Appeal from the Steuben Circuit
    Court
    State of Indiana,                                       The Honorable Allen N. Wheat,
    Appellee-Plaintiff,                                     Judge
    Trial Court Cause Nos.
    76C01-1809-F6-743
    76C01-1908-F6-618
    76C01-1909-F6-704
    76C01-1912-F6-912
    Robb, Judge.
    Court of Appeals of Indiana | Memorandum Decision 20A-CR-1231 | January 5, 2021                 Page 1 of 10
    Case Summary and Issue
    [1]   Austin McCarty pleaded guilty to various offenses in four separate cases. One
    of the plea agreements did not contain a restitution award. Despite the absence
    of such a provision, the trial court ordered McCarty to pay restitution as part of
    his sentence in that particular case. McCarty now appeals and raises the
    following issue for our review: whether the trial court abused its discretion in
    ordering McCarty to pay restitution where his plea agreement was silent on the
    issue. Concluding the trial court abused its discretion, we reverse and remand.
    Facts and Procedural History
    [2]   On September 23, 2018, McCarty stole a vehicle from Boyd’s Auto Recycling
    and Towing. The next day, the State charged McCarty with theft, a Level 6
    felony, and driving while suspended with a prior, a Class A misdemeanor, in
    Cause No. 76C01-1809-F6-743 (“Cause No. 743”). Bail was set in the amount
    of $3,000; McCarty was subsequently released on bond. Based on the damage
    to the stolen vehicle, Boyd’s reported to victim assistance that its monetary loss
    for the vehicle was $1,800. See Appellant’s Appendix, Volume II at 132-33.
    [3]   On August 19, 2019, in Cause No. 76C01-1908-F6-618 (“Cause No. 618”),
    McCarty was charged with auto theft, a Level 6 felony, and resisting law
    enforcement, a Class A misdemeanor. On September 17, in Cause No. 76C01-
    1909-F6-704 (“Cause No. 704”), McCarty was charged with auto theft, a Level
    6 felony, and two counts of theft, Class A misdemeanors. On December 10, in
    Court of Appeals of Indiana | Memorandum Decision 20A-CR-1231 | January 5, 2021   Page 2 of 10
    Cause No. 76C01-1912-F6-912 (“Cause No. 912”), McCarty was charged with
    auto theft, a Level 6 felony, and resisting law enforcement and driving while
    suspended, both Class A misdemeanors. Due to the new charges, the State
    filed a motion to revoke bond in Cause No. 743. Following a hearing on
    December 16, the trial court issued an order revoking McCarty’s bond.
    [4]   In February 2020, McCarty entered into a plea agreement in each case. The
    written plea agreements in Cause Nos. 618, 704, and 912 all contained a
    provision that the State would recommend as part of McCarty’s sentence that
    he pay “[r]estitution, if any, in an amount to be provided by victim assistance.”
    Appellant’s App., Vol. II at 139-141. McCarty’s plea agreement in Cause No.
    743 did not contain such a provision. In Cause No. 743, McCarty agreed to
    plead guilty to theft, a Level 6 felony, and the State agreed to recommend a one
    dollar fine, plus Court costs; “[a] term of imprisonment of 1 ½ years executed
    jail time; . . . no term of probation; cap on executed time;” and a $100 public
    defender fee. Id. at 67. McCarty also waived his right to appeal his conviction
    and sentence. See id. A guilty plea hearing on all four cases was held on
    February 10 at which the trial court went through the terms of the plea
    agreements. In reviewing the terms of the agreement in Cause No. 743, the
    trial court did not mention restitution as a term of the agreement. See
    Court of Appeals of Indiana | Memorandum Decision 20A-CR-1231 | January 5, 2021   Page 3 of 10
    Transcript, Volume 2 at 76-77.1 The trial court took the pleas under
    advisement.
    [5]   A pre-sentence investigation report was prepared, which contained documents
    indicating that Boyd’s reported $1,800 in damages as a result of McCarty’s
    offense. See Appellant’s App., Vol. II at 132-33. A sentencing hearing was held
    on May 29. McCarty did not object to the pre-sentence report. The trial court
    accepted the terms of the plea agreements and entered judgment of conviction
    accordingly. During sentencing arguments, the parties briefly discussed
    restitution:
    [Defense]:        . . . Your Honor, there were some restitution
    documents provided. [W]e did look at those we
    have no objection to those amounts. We would just
    request the court under all the circumstances find
    that Mr. McCarty is indigent.
    [State]:          And, Your Honor, I thank [defense counsel] for
    mentioning that restitution. I had already given
    those to the reporter. We have four (4) cases, of
    course, but there’s only two (2) cases that we’ve
    received any restitution on. [S]pecifically for this
    case, it is one of them. I just want to make sure that
    there’s no objection. That amount in [Cause No.]
    743 was $1,8000.00 to Boyd’s Auto Recycling and
    Towing.
    1
    Restitution was discussed in Cause Nos. 618 and 704, which was to be determined at the time of
    sentencing. Id. at 77-78.
    Court of Appeals of Indiana | Memorandum Decision 20A-CR-1231 | January 5, 2021                Page 4 of 10
    [Defense]:       And the other one was to Baker’s Acres. . . .
    $363.65.
    Tr., Vol. 2 at 93-94. The trial court then sentenced McCarty in Cause No. 743
    to 365 days in the Department of Correction with credit for sixty-six days. At
    the conclusion of the trial court’s sentencing pronouncement, it stated, “Oh
    restitution, did I get the correct number in this case? Was it $1,800.00?” Id. at
    97. Defense counsel and the State both answered in the affirmative. The trial
    court then accepted the guilty pleas in the other cases and sentenced McCarty
    accordingly.
    [6]   The trial court later issued respective written sentencing orders. Notably, in
    Cause No. 743, the trial court ordered McCarty to (among other things) pay
    “[$]1,800 [r]estitution payable as set forth on attached Exhibit A.” Appealed
    Order [in Cause No. 743] at 2. McCarty now appeals.
    Discussion and Decision
    I. Standard of Review
    [7]   The purpose of a restitution order is to impress upon the criminal defendant the
    magnitude of the loss he has caused and to defray costs to the victims caused by
    the offense. Henderson v. State, 
    848 N.E.2d 341
    , 346 (Ind. Ct. App. 2006). An
    order of restitution is a matter within the trial court’s discretion and will only be
    reversed upon a showing of an abuse of discretion. Bell v. State, 
    59 N.E.3d 959
    ,
    962 (Ind. 2016). An abuse of discretion will be found where the trial court’s
    Court of Appeals of Indiana | Memorandum Decision 20A-CR-1231 | January 5, 2021   Page 5 of 10
    decision is clearly against the logic and effects of the facts and circumstances
    before it, Guzman v. State, 
    985 N.E.2d 1125
    , 1129 (Ind. Ct. App. 2013), or if it
    misinterpreted or misapplied the law, Gonzalez v. State, 
    3 N.E.3d 27
    , 30 (Ind. Ct.
    App. 2014).
    II. Restitution Order                     2
    [8]   As a threshold matter, the State contends that because McCarty failed to object
    to the restitution award and agreed to pay the restitution he now challenges on
    appeal, “any error . . . was invited and cannot be the basis for reversal.” Brief
    of Appellee at 9. We conclude that McCarty has not waived his ability to
    challenge the restitution order.
    [9]   Our supreme court has stated that an “order of restitution is as much a part of a
    criminal sentence as a fine or other penalty.” Bell, 59 N.E.3d at 962 (citation
    omitted). Our appellate courts review many sentencing error claims without
    requiring that the claim first be raised to the trial court. Id.
    Although there have been cases in which appeals on restitution
    were waived due to the failure to make an objection at trial, the
    vast weight of the recent case law in this state indicates that
    appellate courts will review a trial court’s restitution order even
    2
    McCarty contends that, despite the waiver of appeal provision in his plea agreement, his appeal is properly
    before this court. See Appellant’s Brief at 12-13. The State does not dispute this. It is well-established that a
    defendant may waive his right to appeal a sentence pursuant to a plea agreement and such waivers are valid
    and enforceable. Archer v. State, 
    81 N.E.3d 212
    , 216 (Ind. 2017). Because restitution was not a term of
    McCarty’s plea agreement, however, he may appeal the restitution order. See 
    id.
     (holding that, although the
    defendant was required to pay restitution as part of her plea agreement, the amount of the restitution was not
    a term of the agreement, and therefore, the defendant could appeal the amount of her restitution).
    Court of Appeals of Indiana | Memorandum Decision 20A-CR-1231 | January 5, 2021                      Page 6 of 10
    when the defendant did not object based on the rationale that a
    restitution order is part of the sentence, and it is the duty of the
    appellate courts to bring illegal sentences into compliance.
    
    Id.
     (internal quotation omitted); see also Smith v. State, 
    44 N.E.3d 82
    , 86 (Ind. Ct.
    App. 2015), (“[A] number of cases have emphasized this court’s preference for
    reviewing a trial court’s restitution order even absent an objection by the
    defendant, unless a defendant has affirmatively agreed to the imposition of
    restitution.”), trans. denied.
    [10]   Here, at sentencing, McCarty stated he had no objection to the amount of
    restitution provided in the pre-sentence report documents in Cause No. 743.
    Contrary to the State’s assertion, our review of the record reveals that McCarty
    did not agree to pay the restitution. We therefore address the merits of
    McCarty’s argument that the trial court abused its discretion by ordering him to
    pay restitution in Cause No. 743 where his plea agreement was silent on the
    issue. We conclude the trial court abused its discretion.
    [11]   Plea agreements are contracts. Archer v. State, 
    81 N.E.3d 212
    , 215 (Ind. 2017).
    Once the trial court accepts a plea agreement, the agreement and its terms are
    binding upon the trial court, the State, and the defendant. Id. at 215-16; see also
    
    Ind. Code § 35-35-3-3
    (e). “Strict adherence to the agreement is essential. Once
    an agreement is accepted, the trial court is precluded from imposing any
    sentence other than that required by the plea agreement. . . . The trial court may
    not change the terms of the agreement.” Sinn v. State, 
    693 N.E.2d 78
    , 80 (Ind.
    Ct. App. 1998) (citations and internal quotation omitted).
    Court of Appeals of Indiana | Memorandum Decision 20A-CR-1231 | January 5, 2021   Page 7 of 10
    [12]   When a defendant enters into an “open” plea agreement, in which sentencing is
    left entirely to the trial court’s discretion, the trial court is free to enter an award
    of restitution as part of the defendant’s sentence. Morris v. State, 
    2 N.E.3d 7
    , 8
    (Ind. Ct. App. 2013) (opinion on reh’g); Gil v. State, 
    988 N.E.2d 1231
    , 1235
    (Ind. Ct. App. 2013); Huddleston v. State, 
    764 N.E.2d 655
    , 657 (Ind. Ct. App.
    2002). However, when a defendant enters into a plea agreement containing a
    recommended or fixed sentence, the trial court cannot impose restitution that
    was not provided for in the plea agreement. Gil, 988 N.E.2d at 1235.
    [13]   In this case, McCarty’s plea agreement contained a recommended or fixed
    sentence of “[a] term of imprisonment of 1 ½ years executed jail time; . . . no
    term of probation; cap on executed time[.]”3 Appellant’s App., Vol. II at 67. It
    did not include an award of restitution. The trial court was bound by the terms
    of the plea agreement, Archer, 81 N.E.3d at 216, and it did not have the
    authority to order a restitution award not provided by the plea agreement.
    Therefore, the trial court abused its discretion by ordering McCarty to pay
    $1,800 in restitution as part of his sentence in Cause No. 743. See Sinn, 
    693 N.E.2d at 80
     (holding that the trial court abused its discretion by ordering the
    3
    A sentence for a Level 6 felony can be up to two and one-half years. 
    Ind. Code § 35-50-2-7
    (b).
    Court of Appeals of Indiana | Memorandum Decision 20A-CR-1231 | January 5, 2021                      Page 8 of 10
    defendant to pay restitution when the plea agreement did not contain a
    provision allowing the imposition of restitution).4
    Conclusion
    [14]   The trial court abused its discretion by entering the restitution order in Cause
    No. 743. Therefore, we reverse the portion of McCarty’s sentence requiring the
    payment of restitution and remand with instructions to vacate the restitution
    order.
    [15]   Reversed and remanded.
    Bailey, J., concurs.
    Tavitas, J., dissents with opinion.
    4
    We note that three of McCarty’s four plea agreements contained restitution provisions. It is clear that the
    State knows how to pursue restitution and therefore, we “emphasize that plea agreements ideally should be
    more artfully drafted in cases such as this if the State wishes to seek restitution.” Morris, 2 N.E.3d at 9.
    Court of Appeals of Indiana | Memorandum Decision 20A-CR-1231 | January 5, 2021                   Page 9 of 10
    IN THE
    COURT OF APPEALS OF INDIANA
    Austin A. McCarty,                                      Court of Appeals Case No.
    20A-CR-1231
    Appellant-Defendant,
    v.
    State of Indiana,
    Appellee-Plaintiff.
    Tavitas, Judge, dissent.
    [16]   I respectfully dissent from the majority’s reversal of the restitution award here.
    McCarty challenges the trial court’s award of restitution in Cause No. 743
    because his plea agreement in that cause was silent on restitution. McCarty,
    however, did not raise this issue with the trial court. In fact, McCarty twice
    failed to object to the proposed restitution under that cause when it was
    discussed at the sentencing hearing. Under these circumstances, I agree with
    the State that McCarty waived his objection to the award of restitution in Cause
    No. 743. Appellee’s Br. p. 9; see, e.g., Durden v. State, 
    99 N.E.3d 645
    , 651 (Ind.
    2018) (holding that, “[w]hen the failure to object accompanies the party's
    affirmative requests of the court, ‘it becomes a question of invited error’”)
    (quoting Brewington v. State, 
    7 N.E.3d 946
    , 974 (Ind. 2014)). Accordingly, I
    respectfully dissent.
    Court of Appeals of Indiana | Memorandum Decision 20A-CR-1231 | January 5, 2021     Page 10 of 10
    

Document Info

Docket Number: 20A-CR-1231

Filed Date: 1/5/2021

Precedential Status: Precedential

Modified Date: 1/7/2021