Andrew Tyler Fisher v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 29 2016, 9:31 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
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
Benjamin Loheide Gregory F. Zoeller
Law Office of Benjamin Loheide Attorney General of Indiana
Columbus, Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Andrew Tyler Fisher, April 29, 2016
Appellant-Defendant, Court of Appeals Case No.
03A01-1510-CR-1768
v. Appeal from the Bartholomew
Circuit Court
State of Indiana, The Honorable Stephen R.
Appellee-Plaintiff. Heimann, Judge
Trial Court Cause No.
03C01-1411-F5-5142
Bradford, Judge.
Case Summary
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[1] At some point on or before September 7, 2014, Appellant-Defendant Andrew
Tyler Fisher broke into the Bartholomew County home of Alfred Catlin and
stole over $100,000.00 worth of tools and other personal property. As a result
of Fisher’s actions, Appellee-Plaintiff the State of Indiana (the “State”) charged
Fisher with Level 5 felony burglary and Level 6 felony theft. Fisher pled guilty
to Level 6 felony theft on August 17, 2015. Pursuant to the terms of Fisher’s
plea agreement, Fisher agreed to pay restitution to Catlin and the State agreed
to dismiss the Level 5 felony burglary charge. The trial court accepted Fisher’s
guilty plea, sentenced Fisher to a term of two years, with one year executed in
the Bartholomew County Jail and one year suspended to probation, and
ordered Fisher to pay $124,740.00 in restitution to Catlin.
[2] On appeal, Fisher contends that the trial court abused its discretion in ordering
him to pay restitution to Catlin. Specifically, Fisher argues that the evidence is
insufficient both to support the amount of the restitution order and to
demonstrate that he has the ability to pay restitution. Concluding that the trial
court did not abuse its discretion in ordering Fisher to pay $124,740.00 in
restitution to Catlin, we affirm.
Facts and Procedural History
[3] In September of 2014, Alfred Catlin was away from his home in Bartholomew
County. On September 7, 2014, Catlin’s neighbor noticed that Catlin’s garage
door was ajar. It was subsequently determined that over $100,000.00 worth of
tools and other personal property had been stolen from Catlin’s home. The
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stolen property had been amassed by Catlin over thirty years of work, including
running his own engine building business.
[4] The theft was linked to Fisher and his co-defendant after they tried to sell some
of the stolen items. Fisher admitted that he and his co-defendant had loaded a
twenty-seven- or thirty-two-foot-long U-Haul truck full of Catlin’s tools and
property. While some of Catlin’s property was subsequently recovered from
Fisher’s co-defendant’s home, a large amount of the property was never
recovered.
[5] On November 10, 2014, the State charged Fisher with Level 5 felony burglary
and Level 6 felony theft. Fisher pled guilty to Level 6 felony theft on August
17, 2015. Pursuant to the terms of Fisher’s plea agreement, Fisher agreed to
pay restitution to Catlin and the State agreed to dismiss the Level 5 felony
burglary charge. The trial court subsequently accepted Fisher’s guilty plea and
sentenced him to a term of two years, with one year executed in the
Bartholomew County Jail and one year suspended to probation. The trial court
also ordered that Fisher
shall make restitution to [Catlin] in the amount of One Hundred
Twenty Four Thousand Seven Hundred Forty Dollars
($124,740.00). Said restitution shall be paid at the rate of Fifty
Dollars ($50.00) per week until paid in full. The first payment is
due four (4) weeks after probation begins.… Restitution shall be
owed by [Fisher] and be paid jointly and severally by all
convicted co-defendants.
Appellant’s App. p. 33. This appeal follows.
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Discussion and Decision
[6] Fisher contends that the restitution order imposed by the trial court should be
vacated because the trial court abused its discretion in ordering him to pay
$124,700.00 in restitution to Catlin. Specifically, Fisher argues that the
restitution order should be vacated for two reasons: (1) the evidence is
insufficient to support the amount of restitution ordered and (2) the trial court
did not inquire into his ability to pay. The State responds that the trial court’s
order should be upheld because Fisher waived his appellate challenge to the
trial court’s restitution order by agreeing to pay restitution to Catlin.
Alternatively, the State argues that (1) the evidence is sufficient to support the
imposed restitution order, and (2) the trial court adequately inquired into
Fisher’s ability to pay the ordered restitution.
[7] Pursuant to Indiana Code § 35-50-5-3, a trial court has the authority to order a
defendant to pay restitution to the victim of a crime. “‘The purpose behind an
order of restitution is to impress upon the criminal defendant the magnitude of
the loss he has caused and to defray costs to the victim caused by the offense.’”
C.H. v. State, 15 N.E.3d 1086, 1096 (Ind. Ct. App. 2014) (quoting Carswell v.
State, 721 N.E.2d 1255, 1259 (Ind. Ct. App. 1999)), trans. denied. It is well-
settled that a restitution order must reflect the actual loss incurred by the victim
and that any loss proven attributable to the defendant’s charged crimes is
recoverable as restitution. Smith v. State, 990 N.E.2d 517, 520 (Ind. Ct. App.
2013).
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[8] The imposition of an order of restitution is a matter within the trial court’s
sound discretion and will only be reversed upon a showing of an abuse of that
discretion. Henderson v. State, 848 N.E.2d 341, 346 (Ind. Ct. App. 2006). “An
abuse of discretion occurs when the trial court’s determination 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.” C.H., 15
N.E.3d at 1096 (citing P.J. v. State, 955 N.E.2d 234, 235 (Ind. Ct. App. 2011)).
“Under our abuse of discretion standard, we will affirm the trial court’s decision
if there is any evidence supporting the decision.” Smith, 990 N.E.2d at 520. If,
however, the evidence supporting a restitution order is found lacking, the
appropriate remedy is to remand to the trial court for additional evidence.
Iltzsch v. State, 981 N.E.2d 55, 57 (Ind. 2013).
I. Waiver
[9] The State argues that Fisher waived the instant challenge to the trial court’s
restitution order because he agreed to pay restitution “as the Court might
order.” Tr. p. 11. The State cites to our conclusion in C.H. in support of this
argument. In C.H., we concluded that although “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[,]” the defendant had, nonetheless,
waived his appellate challenge to the trial court’s restitution order by
affirmatively agreeing to the imposition of restitution. 15 N.E.3d at 1096. We
further concluded that C.H. “waived error by not objecting to the restitution
order and invited error by affirmatively agreeing to the terms which he [later]
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argue[d] were erroneous.” Id. at 1097. Thus, because C.H. invited error, and
invited error is not reversible error, C.H. waived his appellate challenge to the
restitution order. Id.; see also Mitchell v. State, 730 N.E.2d 197, 200-01 (Ind. Ct.
App. 2000) (providing that Mitchell waived his appellate challenge to the trial
court’s restitution order by agreeing to pay restitution), trans. denied.
[10] Here, the terms of Fisher’s plea agreement demonstrate that Fisher
affirmatively agreed to pay restitution. In exchange, the State agreed that
should Fisher “successfully complete his sentence/probation including payment
of restitution to [Catlin,]” his conviction may be modified from a Level 6 felony
to a Class A misdemeanor. Appellant’s App. p. 16. Furthermore, during the
sentencing hearing, Fisher reiterated that he agreed to pay restitution “as the
Court might order.” Tr. p. 10. Fisher indicated that he would be able to
support himself and pay restitution following his release from incarceration
because he had secured employment following release. The trial court accepted
Fisher’s plea agreement and ordered Fisher to pay $124,700.00 in restitution to
Catlin.
[11] Similar to the situations presented in C.H. and Mitchell, the facts of the instant
matter demonstrate that Fisher invited any alleged error with regard to the trial
court’s restitution order by agreeing to pay restitution “as the Court might
order.” Tr. p. 10. Again, invited error is not reversible error. See C.H., 15
N.E.2d at 1097; Mitchell, 730 N.E.2d at 201. We therefore conclude that Fisher
waived the instant appellate challenge to the trial court’s restitution order
because he invited the claimed error by affirmatively agreeing to pay restitution.
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II. Sufficiency of the Evidence
[12] Furthermore, even if we were to determine that Fisher preserved the instant
challenge, the record demonstrates that the evidence presented before the trial
court is sufficient to support the trial court’s restitution order.
A. Amount of Catlin’s Loss
[13] Fisher argues that the evidence is insufficient to support the trial court’s finding
relating to Catlin’s loss. We disagree.
[14] “The amount of a victim’s loss is a factual matter that can be determined only
on presentation of evidence.” Smith, 990 N.E.2d at 520 (citing Rich v. State, 890
N.E.2d 44, 49 (Ind. Ct. App. 2008)). “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.’” S.G. v. State, 956
N.E.2d 668, 683 (Ind. Ct. App. 2011) (quoting T.C. v. State, 839 N.E.2d 1222,
1227 (Ind. Ct. App. 2005)). Again, we will affirm the trial court’s decision if
there is any evidence supporting the decision.” Smith, 990 N.E.2d at 520.
[15] Here, Catlin testified that the value of his lost property, i.e., the property not
recovered, was $138,589.00. In support of this testimony, Catlin provided an
itemized list of all of the property still missing following the recovery of some of
the stolen items from the home of Fisher’s co-defendant. This itemized list also
included the value of missing property. Catlin testified that the values were
based on what he paid for the property and asserted that the values were
accurate to “within ten percent.” Tr. p. 30. The trial court considered Catlin’s
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testimony and ordered restitution in the amount of $124,740.00, or ninety
percent of the value claimed by Catlin. Because the trial court’s order was
based on Catlin’s testimony and detailed list of the value of the missing
property, the trial court’s order cannot be said to be based merely on
speculation or conjecture. As such, we conclude that the trial court’s order that
Fisher pay $124,740.00 in restitution to Catlin, which reflected the amount of
Catlin’s loss, was supported by the evidence.
B. Fisher’s Ability to Pay
[16] Fisher also argues that the evidence is insufficient to support the trial court’s
finding relating to whether he had the ability to pay restitution. Again, we
disagree.
[17] “Although the trial court must determine the defendant’s ability to pay the
amount of restitution ordered … the statute is not specific as to the form the
court must follow in determining the defendant’s financial status.” Smith v.
State, 655 N.E.2d 133, 134 (Ind. Ct. App. 1995) (citing Polen v. State, 578
N.E.2d 755, 758 (Ind. Ct. App. 1991), trans. denied and Mitchell v. State, 559
N.E.2d 313, 315 (Ind. Ct. App. 1990), trans. denied). “Thus, an order of
restitution is a matter within the trial court’s discretion and we will reverse only
when an abuse of discretion occurs.” Id. (citing Vanness v. State, 605 N.E.2d
777, 783 (Ind. Ct. App. 1992), trans. denied). We have further recognized that
the imposition of restitution is a form of punishment and “although it may
cause some hardship, the trial court has discretion to determine the extent of the
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hardship and whether the defendant can still subsist after the payments.” Id.(quoting Mitchell, 559 N.E.2d at 315).
[18] Here, the trial court heard testimony from Fisher that he secured employment
following his release from prison and that this employment would enable him
to support himself and to pay restitution. Although the trial court did not hear
evidence relating specifically to the amount of compensation that Fisher would
earn from this employment, given Fisher’s testimony, we conclude that the
evidence was sufficient to support the trial court’s finding that Fisher would be
able to pay the relatively low amount of $50.00 per week in restitution.
Conclusion
[19] The trial court did not abuse its discretion in ordering Fisher to pay $124,740.00
in restitution to Catlin.
[20] The judgment of the trial court is affirmed.
Bailey, J., and Altice, J., concur.
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