Peggy Campbell v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this Dec 14 2018, 9:40 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark K. Leeman Curtis T. Hill, Jr.
Logansport, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Peggy Campbell, December 14, 2018
Appellant-Defendant, Court of Appeals Cause No.
18A-CR-1273
v.
Appeal from the Cass
State of Indiana, Superior Court
Appellee-Plaintiff. The Honorable James K.
Muehlhausen, Judge
Trial Court Cause No.
09D01-1702-F6-77
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1273 | December 14, 2018 Page 1 of 6
STATEMENT OF THE CASE
[1] Appellant-Defendant, Peggy Campbell (Campbell), appeals from the trial
court’s restitution order entered following her guilty plea to exploitation of an
endangered adult, a Level 6 felony, Ind. Code § 35-46-1-12(a).
[2] We affirm in part, reverse in part, and remand with instructions.
ISSUE
[3] Campbell presents one issue on appeal, which we restate as: Whether the trial
court abused its discretion when it ordered her to pay the victim $10,900 in
restitution.
FACTS AND PROCEDURAL HISTORY
[4] In 2016, Campbell worked as a home health care worker providing daily living
support to W.B. in W.B.’s home. W.B. was ninety-five years old and had
dementia. From January 4, 2016, to November 15, 2016, Campbell and her
husband cashed checks that they either wrote for W.B. to sign or had W.B.
herself sign over to them. 1 Campbell cashed forty-four checks totaling $8,200.
W.B.’s daughter, B.E., who lived out-of-state, visited in November of 2016 and
found her mother to be living in unsanitary conditions, including a bed bug
1
Campbell’s husband was also criminally charged for this conduct.
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infestation. B.E. also examined her mother’s financial records and discovered
Campbell’s theft.
[5] On February 22, 2017, the State filed an Information, charging Campbell with
exploitation of an endangered adult, a Level 6 felony; and neglect of a
dependent, a Level 6 felony. On March 29, 2018, Campbell pleaded guilty to
the exploitation charge pursuant to an agreement whereby the State dismissed
the neglect of a dependent charge. While establishing a factual basis for her
plea, Campbell stated that, as W.B.’s home health care worker, she was
instructed not to touch W.B. Campbell’s plea agreement provided that
“[s]entences and restitution shall be argued.” (Appellant’s App. Vol. II, p. 65).
[6] The pre-sentence investigation report (PSI) filed in advance of Campbell’s
sentencing hearing contained a victim’s questionnaire completed by B.E., who
requested $10,900 in restitution. On April 24, 2018, the trial court held
Campbell’s sentencing hearing. The State presented evidence showing that
Campbell cashed $8,200 in checks written on W.B.’s account. Campbell denied
being responsible for infesting W.B.’s home with bed bugs, but she agreed to
pay $8,200 in restitution. The State requested that the trial court order
Campbell to pay $10,900, which consisted of the $8,200 Campbell had stolen
from W.B. and $2,700 of “cleanup cost” that W.B.’s family incurred addressing
the condition of her home. (Transcript Vol. II, p. 66). The trial court sentenced
Campbell to 912 days, with 547 of those days suspended to probation. The trial
court also ordered Campbell to pay W.B. $10,900 in restitution.
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[7] Campbell now appeals. Additional facts will be added as necessary.
DISCUSSION AND DECISION
[8] Campbell appeals from the trial court’s restitution order. A restitution order
lies within a trial court’s discretion, and we will reverse such an order only
where there has been an abuse of that discretion. Dull v. State, 44 N.E.3d 823,
829 (Ind. Ct. App. 2015). An abuse of the trial court’s discretion occurs when
its decision is clearly against the logic and effect of the facts and circumstances
or when the trial court has misinterpreted the law. Id.[9] A trial court may order a defendant to make restitution to the victim based on
consideration of “property damages of the victim incurred as a result of the crime .
. . ” Ind. Code § 35-50-5-3(a)(1) (emphasis added). However, absent an
agreement by the defendant, a trial court may not order restitution in an
amount greater than that involved in the crimes to which a defendant has
pleaded guilty. Polen v. State, 578 N.E.2d 755, 756-58 (Ind. Ct. App. 1991),
trans. denied; see also Dull, 44 N.E.3d at 832 (collecting cases on this principle
and reversing a restitution order based partially on uncharged conduct where
defendant did not agree to pay a greater amount).
[10] Here, Campbell pleaded guilty to the exploitation charge based on her theft of
money from W.B. Campbell did not plead guilty to the neglect of a dependent
charge, and, at her guilty plea and sentencing hearings, she denied neglecting
W.B. In addition, Campbell did not agree to pay an amount of restitution
greater than the $8,200 she stole from W.B. Contrary to the State’s contention
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1273 | December 14, 2018 Page 4 of 6
on appeal, the term of Campbell’s plea agreement that provided that the parties
would argue restitution at sentencing did not constitute an agreement on her
part to pay restitution for a crime to which she did not plead guilty. See Kinkead
v. State, 791 N.E.2d 243, 246 (Ind. Ct. App. 2003) (holding that plea agreement
term that the parties would argue restitution at sentencing was not an
agreement by defendant to pay restitution amount greater than that resulting
from his crime), trans. denied.
[11] Therefore, we conclude that the trial court abused its discretion when it ordered
Campbell to pay $2,700 based on cleanup costs which were not associated with
the exploitation charge to which Campbell pleaded guilty. Polen, 578 N.E.2d at
756-58; Dull, 44 N.E.3d at 832. We affirm the trial court’s restitution order of
$8,200 based on the exploitation charge, we reverse the trial court’s restitution
order of $2,700 based on cleanup costs unrelated to the exploitation charge, and
we remand with instruction to the trial court to enter a corrected restitution
order consistent with this opinion.
CONCLUSION
[12] Based on the foregoing, we conclude that the trial court abused its discretion
when it entered its restitution order of $10,900. We affirm the trial court’s
restitution order in the amount of $8,200, reverse as to the additional $2,700,
and remand with instruction that the trial court enter a corrected restitution
order consistent with this opinion.
[13] Affirmed in part, reversed in part, and remanded.
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[14] Kirsch, J. and Robb, J. concur
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