Charlene Lewis v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 30 2018, 9:09 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 L. Bailey Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charlene Lewis, April 30, 2018
Appellant-Defendant, Court of Appeals Case No.
49A04-1712-CR-2776
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Jose D. Salinas,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G14-1611-F6-42945
Baker, Judge.
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[1] Charlene Lewis appeals following her plea of guilty to Level 6 Felony
Maintaining a Common Nuisance.1 Lewis argues that the amount of restitution
ordered by the trial court exceeded the amount she agreed to pay. Finding no
error, we affirm.
Facts
[2] On October 26, 2016, Indianapolis Police Officer Brady Ball sustained a dog
bite in the process of serving a search warrant at Lewis’s residence. On
November 1, 2016, the State charged Lewis with Level 6 felony maintaining a
common nuisance and Level 6 felony neglect of a dependent.
[3] Lewis agreed to plead guilty to maintaining a common nuisance in exchange
for the dismissal of the neglect of a dependent charge. The plea agreement
states that Lewis would pay “Restitution to the City of Indianapolis in the
amount of $ TBD thru probation.” Appellant’s App. Vol. II p. 46.
[4] At the December 8, 2016, guilty plea hearing, the following exchange occurred:
Court: . . . Also there’s an issue perhaps of restitution to the
City of Indianapolis; is that correct?
State: That’s correct, Judge.
Court: Okay.
Defense: And we just thought that to be determined through
probation. If there was some sort of issue,
1
Ind. Code § 35-45-1-5(c).
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probation could let the Court know that we needed
a hearing on the matter.
Court: What do we expect that number to be, in the
hundreds or thousands or tens of thousands?
State: I don’t know. I received a preliminary letter from
the City informing me that they would be requesting
restitution and they would get a number to me. We
just decided on this plea today and so I don’t have a
number before me. I don’t know what that is. It’s
for medical treatment for one of the officers.
Court: Okay. Okay. For medical treatment for one of the
officers.
Lewis: They just showed me a paper that said that it was
for $310.00.
Court: Okay. So you’ve got an idea of where you’re
talking about?
Lewis: Yes.
Court: So –
Defense: So long as it’s not out of that range, she’s in
agreement.
Court: Okay. That’s what you want to do with this; right?
Lewis: Yes, sir.
Tr. Vol. II p. 6-7. At the conclusion of that hearing, the trial court advised the
defendant as follows:
Court: . . . You will pay restitution to the City of
Indianapolis in an amount to be determined
through probation. If for some reason they
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determine that number and they think it is
drastically different than what you are expecting,
talk to them politely about it and they can file a
memo with the court and they’ll set it for a hearing
and you can have a hearing with the Court. Okay?
Lewis: Yes, sir.
Id. at 15.
[5] The following day, counsel for the City of Indianapolis submitted a letter to the
Marion County Probation Department requesting restitution in the amount of
$677.46 for Officer Ball’s medical expenses. On January 24, 2017, the
probation department submitted a memorandum and a request for restitution in
that amount to the trial court. The trial court informed Lewis that she could
either agree to that amount or contest it. Lewis indicated that she would
contest the amount, and the trial court responded as follows:
Understand what I’m saying. Probation was—restitution was
agreed to. Okay. In other words, you agreed to pay restitution.
Now what you didn’t agree to is what the amount would be at
because we didn’t know it. Okay. So if you’re saying you don’t
agree to that amount, your lawyer on March 10th needs to have
reasons why you don’t—you’re not agreeing to that amount.
The issue of restitution is not what you’re fighting. You agreed
to pay restitution. What that issue is is what the amount is going
to be.
Id. at 28-29.
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[6] At the March 10, 2017, restitution hearing, Officer Ball testified that he had
sustained a dog bite while serving the warrant at Lewis’s residence. Counsel for
the city testified that the city paid $677.46 in medical expenses for treatment of
the officer’s injuries. The trial court bifurcated the hearing to allow Lewis and
her attorney time to prepare their witnesses. On May 5, 2017, the hearing
resumed. Lewis did not contest the amount of restitution ordered; instead, she
argued that she should not be required to pay it at all. Ultimately, the trial
court ordered Lewis to pay restitution in the amount of $677.46. Lewis now
appeals.
Discussion and Decision
[7] On appeal, Lewis argues that the trial court improperly ordered restitution in
the amount of $677.46. A restitution order is within the trial court’s discretion,
and we will reverse only when the trial court’s order is against the logic and
effect of the facts and circumstances before it. Garcia v. State, 47 N.E.3d 1249,
1252 (Ind. Ct. App. 2015). The State bears the burden of submitting evidence
to support a restitution order. J.H. v. State, 950 N.E.2d 731, 734 (Ind. Ct. App.
2011). Evidence supporting a restitution order is sufficient “‘if it affords a
reasonable basis for estimating loss and does not subject the trier of fact to mere
speculation or conjecture.’” Id. (quoting T.C. v. State, 839 N.E.2d 1222, 1227
(Ind. Ct. App. 2005)).
[8] Here, the plea agreement signed by Lewis stated that she would pay restitution
to the city “in the amount of $ TBD[.]” Appellant’s App. Vol. II p. 46. Once
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the trial court accepted that agreement, its terms became binding on the trial
court, the State, and Lewis. E.g., Bethea v. State, 983 N.E.2d 1134, 1144 (Ind.
2013). Lewis argues that this agreement was orally modified at the plea hearing
when she stated that she had received some indication that the restitution
amount would be $310 and her attorney stated that she agreed to pay the
amount “so long as it’s not out of that range[.]” Tr. Vol. II p. 6-7.
[9] We disagree that Lewis’s statements orally modified the plea agreement. The
State did not agree to any modification; indeed, the prosecutor stated at the plea
hearing that the State was still awaiting information from the city regarding the
amount of Officer Ball’s medical expenses. Id. The parties agreed that Lewis
must pay restitution to the city, that the amount was still unknown, and that if
the amount differed from the “range” of $310, Lewis could request a hearing to
contest the amount. In other words, there was no agreement—oral or
otherwise—to cap the restitution at $310.
[10] Lewis does not argue that she is unable to pay the amount of restitution
ordered, that the amount is unreasonable or unsupported by the evidence, or
that her plea agreement was not entered into knowingly or voluntarily. Under
these circumstances, the trial court did not err by ordering Lewis to pay
restitution in the amount of $677.46.
[11] The judgment of the trial court is affirmed.
Kirsch, J., and Bradford, J., concur.
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