Jerry Baker v. State of Indiana

FILED
Jan 25 2017, 8:04 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Mitchell L. Osterday Curtis T. Hill, Jr.
Joel M. Schumm Attorney General of Indiana
Indianapolis, Indiana Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jerry Baker, January 25, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1605-CR-1154
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable David Certo, Judge
Appellee-Plaintiff Trial Court Cause No.
49G12-1511-CM-40727
Altice, Judge.
Case Summary
[1] Jerry Baker pled guilty to operating a vehicle while intoxicated as a Class A
misdemeanor. Following a restitution hearing, the trial court ordered Baker to
pay restitution in the amount of $2,082.00, which was the difference between
the insurance payout for the totaled vehicle and the cost of a replacement
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vehicle. On appeal, Baker argues that the trial court abused its discretion in
ordering him to pay restitution in the amount of $2,082.00.
[2] We reverse and remand.
Facts & Procedural History
[3] On November 16, 2015, Baker was involved in an automobile accident with
Nancy Apollos at the intersection of Rockville Road and Lynhurst Avenue in
Indianapolis. An officer who responded to the scene observed that Baker
exhibited signs of intoxication. Baker failed several field sobriety tests and a
breathalyzer indicated he had an alcohol concentration equivalent to .209
grams of alcohol per 210 liters of breath. Baker was arrested and charged with
two counts relating to his operation of a vehicle while intoxicated.
[4] Pursuant to a plea agreement, Baker pled guilty to operating a vehicle while
intoxicated endangering a person, a Class A misdemeanor, and the State
dismissed the second charged offense. The plea agreement and subsequent
probation order provided that Baker would pay restitution in an amount to be
determined. On May 4, 2016, the trial court held a restitution hearing at which
Apollos testified that she was driving her father’s 1996 Buick Park Avenue at
the time of the accident and that the car was totaled. Insurance paid her father
$1,718.81 for the Park Avenue. As a replacement for her father’s car, Apollos
purchased a 2002 Buick Century for $3,800.00. Apollos paid the $2,082
difference between the insurance payout and the cost of the Buick Century with
her own funds. Apollos asked the trial court to award her restitution to cover
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this out-of-pocket expense. The trial court stated, “I’m concerned of a windfall,
but going out and buying a car at $3800 is reasonable enough, and she should
be reimbursed by the defendant.” Transcript at 34-35. The trial court, while
noting that Apollos may never “see a dime in the first place,” ordered Baker to
pay $2,082.00 in restitution to Apollos. Id. at 34. Baker appeals from the trial
court’s restitution order. Additional facts will be provided as necessary.
Discussion & Decision
[5] Baker argues that the trial court abused its discretion in determining the amount
of restitution he owed to Apollos.
[6] “[T]he 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, and
that restitution also serves to compensate the victim.” Morgan v. State, 49
N.E.3d 1091, 1093-94 (Ind. Ct. App. 2016) (quoting Iltzsch v. State, 981 N.E.2d
55, 56 (Ind. 2013)). Pursuant to Ind. Code § 35-50-5-3(a)(1), in ordering
restitution, a trial court shall consider “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).” Because restitution is penal in nature, the statute
providing for restitution must be strictly construed against the State to avoid
enlarging it beyond the fair meaning of the language used. Morgan, 49 N.E.3d
at 1094.
[7] Accordingly, a restitution order must reflect a loss sustained by the victim “as a
direct and immediate result” of the defendant’s criminal acts. Rich v. State, 890
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N.E.2d 44, 51 (Ind. Ct. App. 2008), trans. denied. The amount of actual loss is a
factual matter to be determined upon the presentation of evidence. Id. at 49.
We review a trial court’s order of restitution for an abuse of discretion. Bockler
v. State, 908 N.E.2d 342, 348 (Ind. Ct. App. 2009). An abuse of discretion
occurs when the trial court misinterprets or misapplies the law. Id.[8] In S.G. v. State, 956 N.E.2d 668 (Ind. Ct. App. 2011), trans. denied, the victim’s
iPhone 3G was stolen from her handbag by a juvenile. The victim replaced her
stolen phone with the newer iPhone 4G model. The victim testified that she
had paid $399 for the stolen iPhone 3G and $29.99 for a case. She further
testified that the replacement iPhone 4G and a case cost about $450. In
addition to this amount, the victim’s request for restitution also included the
cost associated with a technology plan and sales tax, for a total of $500.76. As
a condition of the juvenile’s probation, the court ordered the juvenile to pay
$501.00 in restitution to the victim. This court reversed the trial court’s
restitution order, holding that the victim was entitled to only the actual
replacement cost (i.e., value) of the phone that was stolen, not the cost of the
newer model that the victim purchased. The court held that “[r]estitution is not
a means by which a victim may obtain better or more state of the art
equipment.” Id. at 684.
[9] Baker argues that S.G. is controlling here and limits restitution to the
replacement cost of the 1996 Buick Park Avenue, not the value of the 2002
Buick Century that the trial court used in deciding the amount of restitution. In
response, the State does not attempt to distinguish S.G., but rather argues that
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to limit restitution to that paid by the insurance company would provide Baker
with “a huge windfall in that he would not be required to pay any restitution
whatsoever.” Appellee’s Brief at 10 (emphasis in original). This, the State
asserts, runs counter to the purposes of restitution, those being to impress upon
the defendant the magnitude of the loss that his crime has caused and to
compensate the victim.1
[10] As noted above, the standard followed in Indiana is that restitution shall be
based on the “actual cost of repair (or replacement if repair is inappropriate).”
I.C. § 35-50-5-3(a)(1). S.G. makes clear that for restitution purposes, the
replacement cost is the value of the destroyed item at the time of the loss. Here,
that amount would be the value of the Park Avenue at the time of the accident.
The State’s only evidence in this regard is the $1,718.81 amount paid by
insurance. The trial court, however, improperly based its restitution order on
the $3,800 cost of 2002 Buick Century Apollos purchased as a replacement
minus the insurance payment. The $1,718.81 paid by the insurance company
may or may not represent the actual replacement cost of the destroyed item, but
even if it does, Baker is not entitled to a credit for the victim’s insurance
payment. See Dupin v. State, 524 N.E.2d 329, 331 (Ind. Ct. App. 1988) overruled
on other grounds by Kelly v. State, 539 N.E.2d 25 (Ind. 1989).
1
We reject the State’s argument that Baker’s challenge to the amount of restitution is “essentially an attempt
to breach one of the substantial terms of his plea agreement.” Appellee’s Brief at 10. We find this to be an
inaccurate characterization of Baker’s argument. Baker does not argue that he is not required to pay
restitution. His challenge is only to the trial court’s method of calculation.
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[11] As observed by our Supreme Court, restitution is “part and parcel to our system
of criminal punishment” and it cannot be precluded by civil settlements, or as in
this case, insurance payments. Haltom v. State, 832 N.E.2d 969, 971 (Ind. 2005).
Baker may not now shield himself from a restitution order by arguing that the
victim was already compensated in the form of insurance payments. Indeed, it
seems incongruous with the purposes of restitution that the defendant should
reap the benefits of the victim’s insurance policy. Thus, contrary to the State’s
argument, Baker will not receive “a huge windfall” as he can still be ordered to
pay restitution as a matter of criminal punishment. Cf. Little v. State, 839
N.E.2d 807, 810 (Ind. Ct. App. 2005) (holding that restitution order was an
abuse of discretion where it provided victim with duplicate recovery for medical
expenses covered by insurance, but noting that duplicate recovery could be
avoided by ordering restitution amounts be paid directly to insurance company
or reducing restitution amount to victim to include only those amounts victim
owed to insurance companies under subrogation liens). 2
[12] In sum, the trial court abused its discretion in basing its restitution order on the
amount Apollos paid for the Buick Century and then awarding her the
difference between the insurance payout and the cost of that car. We remand to
the trial court with instructions to enter a restitution order for the value of the
Park Avenue prior to the accident.
2
It is unclear from the record whether a subrogation lien exists in this case.
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[13] As a second issue, Baker argues that the trial court erred by not inquiring into
his ability to pay the restitution awarded to Apollos. Restitution may be
awarded as a condition of probation or as a part of a defendant’s sentence
wholly apart from probation. See Pearson v. State, 883 N.E.2d 770, 772 (Ind.
2008). When the trial court orders restitution as a condition of probation, the
court is required to inquire into the defendant’s ability to pay. See Ind. Code §
35-38-2-2.3(a)(6) (“[w]hen 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”). Where
restitution is ordered as part of an executed sentence, an inquiry into the
defendant’s ability to pay is not required. Pearson, at 773 (citing Shaffer v. State,
674 N.E.2d 1, 9 (Ind. Ct. App. 1996)).
[14] The parties make competing arguments as to how to classify the restitution
order—as a condition of probation or a part of the executed sentence. A review
of the record reveals that Baker agreed to the standard conditions and fees of
probation, which included the requirement that he “pay all Court-ordered fines,
costs, fees and restitution as directed.” Appellant’s Appendix at 33. Further, in
the written sentencing order, the court noted “restitution to [N]ancy Apollos
TBD” in a comment section for probation. Id. at 13-14. This same notation is
included in a description of terms of probation on the Standard Conditions
form. Thus, despite the fact that the trial court did not check a separate box
indicating restitution was a condition of probation, we think that restitution was
clearly intended as such. Consequently, it was incumbent on the trial court to
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inquire into Baker’s ability to pay and to fix the manner of performance with
regard to the payment of restitution.3 See Bell v. State, 59 N.E.3d 959, 963 (Ind.
2016) (citing Pearson, 883 N.E.2d at 772). On remand, the trial court is directed
to make such inquiry.
[15] Judgment reversed and remanded.
[16] Riley, J. and Crone, J., concur.
3
We note that Baker was fully aware of the date and time of the restitution hearing, and yet he failed to
appear for the hearing, thereby depriving the trial court of the opportunity to make the necessary inquiry into
his ability to pay at that time.
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