Troy E. Reik v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before Sep 12 2012, 9:53 am
any court except for the purpose of
establishing the defense of res judicata, CLERK
collateral estoppel, or the law of the case. of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CARA SCHAEFER WIENEKE GREGORY F. ZOELLER
Wieneke Law Office, LLC Attorney General of Indiana
Plainfield, Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TROY E. REIK, )
)
Appellant-Defendant, )
)
vs. ) No. 11A01-1203-CR-134
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE CLAY CIRCUIT COURT
The Honorable Joseph D. Trout, Judge
Cause No. 11C01-1102-FC-102
September 12, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
After entering into a plea agreement, Troy E. Reik pled guilty to Class C felony
burglary. As a condition of his probation, Reik was ordered to pay restitution in an
amount to be determined by Victims Assistance within thirty days; Reik was then
allowed thirty days to request a hearing to determine the reasonableness of the restitution.
Reik contends that the trial court abused its discretion in ordering him to pay restitution
as a condition of his probation by failing to fix the amount and inquire into his ability to
pay. Finding the trial court did not abuse its discretion, we affirm.
Facts and Procedural History
On February 15, 2011, Reik and Joshua Walls went to the residence of Dennis
McWilliams in Clay County. Reik helped Walls remove a dryer, a freezer, and a metal
filing cabinet from the property without McWilliams’ consent. The State charged Reik
with Class C felony burglary, Class D felony theft, and Class A misdemeanor criminal
trespass.
Reik entered into a plea agreement and sentencing recommendation with the State
whereby Reik would plead guilty to Class C felony burglary and the State would dismiss
the other two counts. Reik would receive a four-year sentence, but the parties would
argue the executed portion and how it would be served to the trial court. As part of his
probation, Reik agreed to “Make restitution in an amount to be determined by Victims
Assistance, to the victim(s) commencing with pro-rated payments within 30 days.”
Appellant’s App. p. 43.
The trial court accepted the plea agreement and sentenced Reik to 180 days
executed, one and one-half years on electronic in-home detention as a condition of
2
probation, and two years on unsupervised probation. At the sentencing hearing, Reik
voiced his willingness to pay restitution for any damage that he caused, and the trial court
affirmed restitution as a condition of probation. However, the trial court did not set an
amount of restitution because the victim had not yet provided an amount of damages –
the items taken by Reik and Wells were returned to McWilliams undamaged. Instead, the
trial court noted in its order that if an amount of restitution was determined within thirty
days, Reik would have thirty days to request a hearing to determine the reasonableness of
the restitution.
Reik now appeals.
Discussion and Decision
Reik contends that the trial court abused its discretion in ordering him to pay
restitution as a condition of his probation by failing to fix the amount and inquire into his
ability to pay. We disagree. A restitution order is within the trial court’s discretion, and
we will only review the order for an abuse of that discretion. Rich v. State, 890 N.E.2d
44, 49 (Ind. Ct. App. 2008), trans. denied.
As a condition of probation, the trial court may order a defendant to:
[m]ake restitution or reparation to the victim of the crime for damage or
injury that was sustained by the victim. When restitution or reparation is a
condition of probation, the court shall fix the amount, which may not
exceed an amount the person can or will be able to pay, and shall fix the
manner of performance.
Ind. Code § 35-38-2-2.3(a)(5). Notably, the statute does not set a timeframe during
which the amount of restitution shall be fixed and during which the defendant’s ability to
pay shall be examined.
3
Reik’s plea agreement provides that the amount of restitution was to be set by
Victims Assistance within thirty days, Appellant’s App. p. 43, and Reik then had thirty
days to request a hearing to determine the reasonableness of the restitution and
consequently his ability to pay. Id. at 50. Therefore, although they were to take place in
the future, the plea agreement met the statutory requirements of setting the amount of
restitution and inquiring into Reik’s ability to pay. Additionally, by entering into such an
agreement and expressly voicing his willingness to pay restitution at the sentencing
hearing, Tr. p. 24, Reik has waived any argument that the plea agreement was
insufficient. See Miller v. State, 730 N.E.2d 197, 201 (Ind. Ct. App. 2000) (defendant’s
failure to object to restitution order at trial waived the issue for appeal), trans. denied.
Therefore, Reik agreed to pay restitution, and the trial court entered instructions
for the amount to be fixed and provided Reik the opportunity to determine the
reasonableness and his ability to pay the restitution as required under Indiana Code
section 35-38-2-2.3(a)(5). Because the trial court met the statutory requirements, we
affirm.
Affirmed.
BARNES, J., concurs.
MATHIAS, J., concurs in result with separate opinion.
4
IN THE
COURT OF APPEALS OF INDIANA
TROY E. REIK, )
)
Appellant-Defendant, )
)
vs. ) No. 11A01-1203-CR-134
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
MATHIAS, Judge concurring in result.
I write separately to express my concern that the practice of ordering a defendant
to pay restitution in an amount to be determined by Victims Assistance may make it
impossible for the defendant to appeal the amount of restitution. For example, on
February 27, 2012, the trial court sentenced Reik to 180 days executed, one and one-half
years on electronic in-home detention as a condition of probation, and two years on
unsupervised probation. Reik voiced his willingness to pay restitution for any damages
that he caused, and the trial court ordered restitution as a condition of probation in an
amount to be determined by Victims Assistance.
Reik had thirty days, or until March 26, 2012, to appeal the sentencing order,
including the terms and conditions of his probation. If Victims Assistance assessed
restitution costs after March 26, 2012, it would be impossible for Reik to appeal the
5
amount of the restitution. A Victims Assistance determination of restitution is not a final
appealable order.
Nevertheless, Reik voiced his willingness to pay restitution at the sentencing
hearing. He therefore waived appellate review of this issue. See Mitchell v. State, 730
N.E.2d 197, 201 (Ind. Ct App. 2000) (explaining that Mitchell waived appellate review of
the trial court’s restitution order at sentencing when he expressed his willingness to pay
restitution), trans. denied.
6