Phillip Brown v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Nov 17 2017, 10:04 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Barbara J. Simmons Curtis T. Hill, Jr.
Oldenburg, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Phillip Brown, November 17, 2017
Appellant-Defendant, Court of Appeals Case No.
49A04-1703-CR-441
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Angela Dow-
Appellee-Plaintiff. Davis, Judge
Trial Court Cause No.
49G16-1609-CM-35452
Pyle, Judge.
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Statement of the Case
[1] Phillip Brown (“Brown”) appeals the trial court’s order that he pay restitution
to the victim of the Class B misdemeanor criminal mischief offense for which
he was convicted.1 He argues that the trial court abused its discretion when it
ordered him to pay $139.18 in restitution because there was not sufficient
evidence of the actual losses the victim had incurred and because the trial court
did not inquire into his ability to pay the restitution. We agree that there was
not sufficient evidence of the victim’s actual losses. Accordingly, we reverse
and remand for the trial court to conduct a new restitution hearing. Because we
remand for a new hearing, we need not address Brown’s second argument
regarding the trial court’s inquiry into his ability to pay.
[2] We reverse and remand.
Issue
Whether the trial court abused its discretion when it ordered
Brown to pay restitution in the amount of $139.18.
Facts
[3] On December 20, 2016, Brown was convicted, following a bench trial, of Class
A misdemeanor battery resulting in bodily injury and Class B misdemeanor
criminal mischief. His Class B misdemeanor criminal mischief conviction was
based on his act of throwing a sledgehammer through the window of a truck
1
IND. CODE § 35-43-1-2(a).
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belonging to Denise White (“White”), a woman he had been dating. The Court
sentenced him to 365 days with 351 days suspended to probation for the battery
resulting in bodily injury conviction and to 180 days suspended to probation for
the criminal mischief conviction. The trial court ordered the sentences to run
concurrently and for the battery sentence to run consecutively to Brown’s
sentence in another cause. In addition, the trial court ordered Brown to pay
restitution for White’s broken truck window. The court set the matter for a
restitution hearing and told Brown that if he paid the restitution in full and had
served at least six months of his sentence, the trial court would close out his
probation.
Thereafter, on February 7, 2017, the trial court held a restitution hearing. At
the hearing, the State told the trial court that it had several estimates of how
much it would cost for White to replace her truck window. The State requested
that the court order restitution in the amount of the lowest estimate, $139.18,
but did not introduce the estimate as an exhibit. Brown objected to the estimate
on the grounds that White was not “[t]here to say these are actually her receipts
or where she got them from.” (Tr. Vol. 2 at 55). The State responded that the
trial court “ha[d] the names of the company,” and the trial court ordered
restitution of $139.18 over Brown’s objection. (Tr. Vol. 2 at 55). Brown now
appeals.
Decision
[4] On appeal, Brown argues that the trial court abused its discretion in ordering
restitution of $139.18 because there was not sufficient evidence that it would
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cost $139.18 to repair White’s truck window. Specifically, the State presented
several estimates at the sentencing hearing but did not introduce those estimates
into evidence. Brown objected to the estimates, noting that White was not
present to say whether the estimates were hers or to clarify where she got them. 2
The State responded that the trial court “ha[d] the names of the company,” and
the trial court ordered restitution over Brown’s objection. (Tr. Vol. 2 at 55).
[5] As part of a sentence or as a condition of probation, a trial court may order a
defendant to pay restitution to a victim. Morgan v. State, 49 N.E.3d 1091, 1093
(Ind. Ct. App. 2016). “The principal purpose of restitution is to vindicate the
rights of society and to impress upon the defendant the magnitude of the loss
the crime has caused.” Pearson v. State, 883 N.E.2d 770, 772 (Ind. 2008), reh’g
denied. “Restitution also serves to compensate the offender’s victim.” Id.
Pursuant to INDIANA CODE § 35-50-5-3(a)(1), when ordering restitution, a trial
court shall consider “property damages of the victim incurred as a result of the
2
On appeal, the State argues that Brown waived his argument because he objected on different grounds at
the restitution hearing. However, our supreme court recently clarified the issue of waiver within the context
of restitution in Bell v. State, 59 N.E.3d 959 (Ind. 2016). It noted that “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
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. (quoting Rich v. State, 890
N.E.2d 44, 48 (Ind. Ct. App. 2008)). We also reject the State’s argument that Brown invited any restitution
error by stating “I’ll pay for it” during the restitution hearing. (Tr. Vol. 2 at 55). Brown did not make this
statement within the context of determining the amount of White’s actual losses. Moreover, it is clear that
Brown did not invite the trial court to determine that White’s actual losses totaled $139.18 as Brown objected
to the State’s estimate.
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crime, based on the actual cost of repair (or replacement if repair is
inappropriate).”
[6] An order of restitution lies within the trial court’s discretion and will be
reversed only where there has been an abuse of that discretion. Kays v. State,
963 N.E.2d 507, 509 (Ind. 2012). A “trial court abuses its discretion in ordering
restitution ‘only if no evidence or reasonable inferences therefrom support the
trial court’s decision[.]’” Archer v. State, 81 N.E.3d 212, 216 (Ind. 2017)
(quoting Little v. State, 839 N.E.2d 807, 809 (Ind. Ct. App. 2005)). A trial court
also abuses its discretion if it misinterprets or misapplies the law. Baker v. State,
70 N.E.3d 388, 390 (Ind. Ct. App. 2017), trans. denied.
[7] Here, Brown challenges the sufficiency of the State’s evidence of White’s loss.
A restitution order must reflect a loss sustained by the victim “as a direct and
immediate result” of the defendant’s criminal acts. Id. (quoting Rich, 890
N.E.2d at 51). The amount of actual loss is a factual matter to be determined
upon the presentation of evidence. Id. 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. A.H. v. State, 10
N.E.3d 37, 41 (Ind. Ct. App. 2014).
[8] In support of Brown’s argument that White’s estimates were not sufficient
evidence of her actual losses, he cites to J.H. v. State, 950 N.E.2d 731 (Ind. Ct.
App. 2011). In J.H., J.H. damaged a neighbor’s door while attempting to enter
the neighbor’s home without permission. Id. at 733. At the initial hearing, the
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State presented a piece of paper containing an “estimate” of how much it would
cost a company named “Mr. Fix It” to fix the door. Id. The estimate stated
that it would cost $850 to replace the door’s window and $150 to tint the
window. Id. The State did not present any additional evidence in support of
the estimate, and J.H. requested a restitution hearing to investigate it. Id.
J.H.’s counsel noted that $1,000 seemed “like an awfully large sum of money
for a door.” Id.
[9] Subsequently, the trial court held a restitution hearing. Id. Immediately before
the hearing, the victim gave the State another piece of paper that she described
as an “estimate.” Id. This time the estimate was for $1,117.65 from “Tucker’s
Construction.” Id. Again, no copies were provided to the defense counsel or
the trial court, and no additional evidence or testimony regarding the estimate
was presented. Id. J.H. said that he had subpoenaed “Mr. Fix It,” but he had
not appeared for the hearing. Id.
[10] At the conclusion of the hearing, the trial court ordered J.H. to pay restitution
in the amount of $1,117.65. Id. at 734. On appeal, we held the trial court had
abused its discretion in ordering the restitution because it was not based on
sufficient evidence of the victim’s actual losses. See id. Specifically, we
reasoned:
Here, on two separate occasions, the victim waited until shortly
before the hearing to give the deputy prosecutor a piece of paper
with a dollar amount on it. The deputy prosecutor informed the
juvenile court of the victim’s late submissions and of the amount
on the papers. The deputy prosecutor made no other statements
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and presented no other evidence to show the legitimacy of the
pieces of paper. Neither of the purported estimates was placed
into evidence and neither is available for our review, so we
cannot determine whether the dollar amounts were listed on
papers containing any information, such as a letterhead, which
would show the court that the paper came from a legitimate
business. Furthermore, neither “estimate” showed the cost of
labor and materials. Most importantly, the juvenile court failed
to recognize that the State held the burden to establish the
validity of the “estimates.” We can come to no other conclusion
than that the “estimates” were mere speculation or conjecture
and that the juvenile court's order is clearly against the logic and
effect of the facts and circumstances before the court, or the
reasonable, probable, and actual deductions to be drawn
therefrom.
Id. at 734 (internal footnote omitted).
[11] The circumstances here are similar to those in J.H. The State said that it had
several “estimates” of the cost to fix White’s door but did not admit those
estimates into evidence or present any additional evidence or testimony
supporting them. Accordingly, we do not know, for example, details such as
whether the estimates were on letterhead or showed the cost of labor and
materials. The State argues that other factors provide a reasonable basis for the
$139.18 restitution order, including the pictures of the damaged truck that the
State entered into evidence. The State notes that, unlike in J.H. where the
estimate seemed “like an awfully large sum of money for a door,” $139.18 was
not an unlawfully large sum to fix a truck window based on the damage
depicted in the pictures. The State also notes that $139.18 was the lowest
estimate that it had provided. J.H., 950 N.E.2d at 733.
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[12] However, the State’s argument would require this Court to evaluate whether, as
it argues, $139.18 is a reasonable amount to fix a truck window. Such an
evaluation is not within this Court’s purview or expertise and would eliminate
the State’s burden of proving the victim’s actual costs. Instead, based on the
lack of evidence before us in the record, we conclude, like in J.H., that the
estimates the State presented were not sufficient to prove White’s actual costs.
We reverse and remand for the trial court to vacate its restitution order and to
hold a restitution hearing to determine a proper amount of restitution. 3 Garcia
v. State, 47 N.E.3d 1249, 1253 (Ind. Ct. App. 2015) (“[W]hen the record
contains insufficient evidence to support an order of restitution, the case may be
remanded for the trial court to hold another hearing.”), trans. denied.
[13] Reversed and remanded.
Riley, J., and Robb, J., concur.
3
Because we are remanding for the trial court to vacate its restitution order and to hold a new restitution
hearing, we need not address Brown’s argument that the trial court did not properly consider his ability to
pay restitution. However, we note that when the trial court enters a restitution order as a condition of
probation, it is required to inquire into the defendant’s ability to pay in order to prevent an indigent defendant
from being imprisoned because of a probation violation based on the defendant’s failure to pay restitution.
Archer, 81 N.E.3d at 217. This inquiry generally may include factors such as a defendant’s “‘financial status,
health, and employment history.’” Dull v. State, 44 N.E.3d 823, 830 (Ind. Ct. App. 2015) (quoting Laker v.
State, 869 N.E.2d 1216, 1221 (Ind. Ct. App. 2007)).
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