Paris Hardy v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Jan 29 2016, 9:38 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
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
Joel M. Schumm Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Paris Hardy, January 29, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1506-CR-496
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Amy J. Barbar,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
49G02-1408-F2-40117
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-496| January 29, 2016 Page 1 of 7
Statement of the Case
[1] Paris Hardy appeals the trial court’s order that he pay $2,000 in restitution
following his conviction for burglary, as a Level 2 felony, and carrying a
handgun without a license, as a Class A misdemeanor. Hardy raises a single
issue for our review, namely, whether the State presented sufficient evidence to
show that he owed $2,000 in restitution. We reverse and remand with
instructions.
Facts and Procedural History
[2] On August 11, 2014, Hardy and his brother, Patrick, broke into and entered the
home of the Abplanalp family in Indianapolis. The Hardy boys stole a Kindle
tablet, an iPhone 5, and a Nikon camera from inside the home. The front door
and frame as well as an interior window were damaged during the incident.
[3] On August 21, the State charged Hardy with burglary, as a Level 2 felony;
robbery, as a Level 3 felony; and carrying a handgun without a license, as a
Class A misdemeanor. The court found Hardy guilty as charged following a
bench trial.
[4] At the ensuing sentencing hearing, the parties and the court engaged in the
following colloquy regarding the State’s request for restitution:
MR. WILEY [for the State]: Judge, that would be $1,000.00 for
the front door and door frame, $500.00 for the damage to the
interior door, and $150.00 for the Kindle that was stolen.
***
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-496| January 29, 2016 Page 2 of 7
MR. WILEY: $200.00 for the iPhone 5, $150.00 for a Nikon
camera that was stolen. That would be a grand total of
$2,000.00.
THE COURT: Have you shared these figures with Defense
counsel?
MR. WILEY: I did just before the hearing started.
THE COURT: Do you have any objection?
MR. HALATA [for Hardy]: Your Honor, I guess my one
objection would be to the Kindle, I guess, in the fact that I
remember in the trial, there was never possession I guess of that
proved, that Kindle.
THE COURT: Yeah. And my Kindle only cost $99.00. So I
don’t know what kind of Kindle it was, but—yeah. The Court
did find that it hadn’t been shown the—the pawned Kindle?
MR. HALATA: And I don’t remember the camera ever being
shown either as being claimed of being stolen.
***
MR. WILEY: The camera came to light later . . . . I think there
was evidence that the Kindle was stolen. . . . And so we would
be seeking the full $2,000.00.
Tr. at 187-88. After that exchange, the court entered its judgment of conviction
and sentence against Hardy. In relevant part, the court ordered Hardy to pay
$2,000 in restitution. This appeal ensued.
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-496| January 29, 2016 Page 3 of 7
Discussion and Decision
[5] Hardy appeals the trial court’s restitution order. An order of restitution is
within the trial court’s discretion, and it will be reversed only upon a finding of
an abuse of that discretion. Green v. State, 811 N.E.2d 874, 877 (Ind. Ct. App.
2004). An abuse of discretion occurs when the trial court misinterprets or
misapplies the law. Id.
[6] Hardy asserts that the State failed to present sufficient evidence to support the
order that he pay $2,000 in restitution. Specifically, Hardy notes that the
deputy prosecutor’s statements, which were the only apparent basis for the
amount of restitution, are not evidence. This is obviously correct; we have long
recognized that “the unsworn statements of the deputy prosecutor” regarding
the appropriate amount for restitution provide “no basis upon which restitution
could be made.” Smith v. State, 471 N.E.2d 1245, 1248-49 (Ind. Ct. App. 1984),
trans. denied. Rather, “[t]he amount of actual loss is a factual matter which can
be determined only upon presentation of evidence,” and, to support a claim for
restitution, the State must present evidence that “affords a reasonable basis for
estimating loss and does not subject the trier of fact to mere speculation or
conjecture.” T.C. v. State, 839 N.E.2d 1222, 1225, 1227 (Ind. Ct. App. 2005)
(internal quotation marks omitted).
[7] Indeed, the State seems to concede as much in that its argument on appeal does
not actually challenge Hardy’s argument. Rather, the State contends that
Hardy has waived our review of his claim of error with respect to all but $300 of
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-496| January 29, 2016 Page 4 of 7
the restitution order. That $300 reflects the total alleged value of the Kindle
tablet and Nikon camera, the two items that Hardy’s counsel specifically
challenged in response to the State’s assertions for restitution.
[8] The State is mistaken. In support of the its argument that Hardy has waived
appellate review of the remaining $1,700 of the restitution order, the State cites
C.H. v. State, 15 N.E.3d 1086, 1095-97 (Ind. Ct. App. 2014), trans. denied. But
C.H. does not support the State’s position. To the contrary, C.H. explains that
the State’s argument for waiver is not correct. As we explained:
“Generally, failure to object to an award of restitution constitutes
waiver of a challenge to the award on appeal, unless a defendant
argues that the award was fundamentally erroneous and in excess
of statutory authority.” Morris v. State, 2 N.E.3d 7, 9 (Ind. Ct.
App. 2013). “[A] defendant’s failure to make a specific and
timely objection to the trial court’s receipt of evidence concerning
the amount of restitution constitutes waiver of the issue on
appeal.” Id. Nevertheless, 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. See e.g., Rich v.
State, 890 N.E.2d 44, 48-49 (Ind. Ct. App. 2008) (“the vast weight
of the recent caselaw . . . indicates that the appellate courts will review a
trial court’s restitution order even where the defendant did not object
based on the rationale that a restitution order is part of the sentence, and
it is [our] duty . . . to bring illegal sentences into compliance”)
(internal quotation marks and citations omitted), trans. denied.
Here, however, C.H. not only failed to object to restitution, but he
affirmatively agreed to the imposition of restitution. We addressed a
similar argument in Mitchell v. State, 730 N.E.2d 197, 201 (Ind.
Ct. App. 2000), trans. denied. In Mitchell, the trial court convicted
Mitchell of rape and criminal deviate conduct. Mitchell, 730
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-496| January 29, 2016 Page 5 of 7
N.E.2d at 201. At trial, Mitchell did not object to the issued
restitution order and agreed to pay for the victim’s counseling via
restitution. Id. On appeal, we held that Mitchell had waived
appellate review by both not objecting to the restitution order at trial and
by agreeing to pay restitution, thus inviting error. Id.
***
Here, C.H. waived error by not objecting to the restitution order and
invited error by affirmatively agreeing to the terms which he now argues
were erroneous. Because C.H. invited error, and invited error is
not reversible error, we concluded that C.H. has waived review
of this claim of error. . . .
Id. at 1096-97 (emphases added). As C.H. and its discussion of our case law
make clear, appellate review of the sufficiency of the evidence underlying a
restitution order is precluded only when the defendant both does not object and
expressly agrees to the terms of restitution. E.g., Mitchell, 730 N.E.2d at 201.
Failure to object, standing alone, does not forfeit appellate review. E.g., Rich,
890 N.E.2d at 48-49. Here, nothing in the parties’ colloquy with the trial court
can reasonably be interpreted as an agreement or stipulation by Hardy to the
amount of restitution demanded by the State. Accordingly, we reject the State’s
assertion on appeal that Hardy has not properly preserved his claim of error for
our review.
[9] In sum, we hold that Hardy’s argument on appeal is properly before us. On the
merits, we hold that the State did not present sufficient evidence to support the
amount of the restitution order. Accordingly, we reverse the restitution order
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-496| January 29, 2016 Page 6 of 7
and remand with instructions that the court hold a new restitution hearing. At
that hearing, the State must present evidence in support of its claimed amount
of restitution. We also note that, on appeal, the parties agree that the court on
remand should inquire into Hardy’s ability to pay a restitution award.
[10] Reversed and remanded with instructions.
Riley, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-496| January 29, 2016 Page 7 of 7