Jimmy Person v. State of Indiana

FILED
Feb 07 2018, 8:21 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Victoria L. Bailey Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Monika P. Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jimmy Person, February 7. 2018
Appellant-Defendant, Court of Appeals Case No.
49A02-1708-CR-1737
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Alicia Gooden,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G21-1503-F5-11184
49G21-1602-F4-7143
May, Judge.
[1] Jimmy Person appeals a portion of the trial court’s restitution order. He argues
the trial court abused its discretion when it ordered him to pay for Rosa Bailey’s
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pain and suffering and her use of public transportation. The State concedes the
trial court abused its discretion. We reverse and remand.
Facts and Procedural History
[2] On July 11, 2017, the trial court sentenced Person, pursuant to a plea
agreement, to an aggregate sentence of eleven years for Level 5 felony dealing
in cocaine, 1 Level 4 felony dealing in cocaine, 2 Level 6 felony resisting law
enforcement, 3 and Class A misdemeanor leaving the scene of an accident with
bodily injury. 4 Additionally, the trial court ordered Person to pay $7,284 in
restitution to Bailey, who was injured when Person crashed his car into Bailey’s
car while fleeing from police. The amount of restitution included $2,385 for
Bailey’s medical expenses; $600 for the value of her car; $1,914 for the cost of
Bailey’s use of public transportation for the days she did not have a vehicle; and
$2,385 for Bailey’s pain and suffering.
Discussion and Decision
[3] “Generally, 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. An abuse of
1
Ind. Code § 35-48-4-1(a) (2014).
2
Ind. Code § 35-48-4-1(c) (2014).
3
Ind. Code § 35-44.1-3-1(b)(1) (2014).
4
Ind. Code § 9-26-1-1.1(b)(1) (2015).
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discretion occurs when the trial court misinterprets or misapplies the law.”
Green v. State, 811 N.E.2d 874, 877 (Ind. Ct. App. 2004). Indiana Code section
35-50-5-3(a) governs restitution, and states in relevant part:
The court shall base its restitution order upon a consideration of:
(1) property damages of the victim incurred as a result of
the crime, based on the actual cost of repair (or
replacement if repair is inappropriate);
(2) medical and hospital costs incurred by the victim
(before the date of sentencing) as a result of the crime;
(3) the cost of medical laboratory tests to determine if the
crime has caused the victim to contract a disease or other
medical condition;
(4) earnings lost by the victim (before the date of
sentencing) as a result of the crime including earnings lost
while the victim was hospitalized or participating in the
investigation or trial of the crime; and
(5) funeral, burial, or cremation costs incurred by the
family or estate of a homicide victim as a result of the
crime.
[4] Person argues the trial court abused its discretion when it ordered him to pay
for Bailey’s public transportation expenses and her pain and suffering because
the restitution statute does not provide for payment of those expenses. The
State concedes the trial court abused its discretion, and we agree. See, e.g.,
Springer v. State, 798 N.E.2d 431, 436 (Ind. 2003) (reversing portion of
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restitution order requiring Springer to pay the cost of airline tickets for victim’s
father because “the General Assembly has not authorized the trial court to
include this expense in its restitution order because none of the statutory
restitution categories includes [sic] any language that could be construed to
authorize it”), reh’g denied; see also Rich v. State, 890 N.E.2d 44, 53 (Ind. Ct. App.
2008) (reversing trial court’s restitution order requiring Rich to pay for the cost
of victim’s security because no portion of the restitution statute could be
construed to require him to do so), trans. denied.
Conclusion
[5] The trial court abused its discretion when it ordered Person to pay restitution
for Bailey’s public transportation expenses and her pain and suffering. We
reverse the trial court’s restitution order in those respects and remand for
correction of the trial court’s restitution order to reflect the correct amount of
$2,985, which reimburses Bailey for the loss of her car and her medical
expenses.
[6] Reversed and remanded.
Vaidik, C.J., and Altice, J., concur.
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