MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be
                                                                     Feb 06 2020, 6:20 am
regarded as precedent or cited before any
court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Deborah Markisohn                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Andrew Lee Kimmons,                                      February 6, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1887
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia Gooden,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Richard
                                                         Hagenmaier, Commissioner
                                                         Trial Court Cause No.
                                                         49G21-1811-F2-39687



Tavitas, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1887 | February 6, 2020              Page 1 of 9
                                               Case Summary

[1]   Andrew Kimmons appeals the trial court’s restitution order, which required

      Kimmons to pay $5,000.00 after Kimmons’ guilty plea pursuant to a plea

      agreement. The State asks us to remand for a new sentencing hearing;

      however, we reverse the trial court’s entry of a restitution order and remand.


                                                      Issue

[2]   Kimmons raises one issue on appeal, which we restate as whether the trial court

      erred in ordering Kimmons to pay $5,000.00 in restitution.


                                                      Facts

[3]   On November 10, 2018, Kimmons hit the parked vehicle of Kristin Towe while

      driving in his vehicle on East Michigan Street in Marion County. Kimmons

      drove away from the scene of the accident. Law enforcement later found

      Kimmons in possession of several illegal substances. On November 13, 2018,

      Kimmons was charged with Count I, dealing in a narcotic drug, a Level 2

      felony; Count II, possession of a narcotic drug, a Level 4 felony; Count III,

      dealing in methamphetamine, a Level 4 felony; Count IV, possession of

      methamphetamine, a Level 6 felony; Count V, possession of cocaine, a Level 6

      felony; and Count VI, leaving the scene of an accident, a Class B misdemeanor,

      under cause number 49G21-1811-F2-039687 (“Cause 687”). On November 16,

      2018, the State filed a notice of intent to file an habitual offender enhancement.


[4]   The State also made a motion to consolidate the instant cause, Cause 687, with

      Kimmons’ other pending causes under cause numbers 49G14-1412-CM-055668

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1887 | February 6, 2020   Page 2 of 9
      (“Cause 668”), 49G14-1611-F6-043556 (“Cause 556”), and 49G14-1801-F6-

      002956 (“Cause 956”).


[5]   On June 11, 2019, Kimmons entered into a plea agreement in the above cause

      numbers. Pursuant to the plea agreement, Kimmons pleaded guilty to

      possession of a narcotic drug, a Level 6 felony, and theft, a Level 6 felony,

      under Cause 956; and dealing a narcotic drug, a Level 2 felony, and leaving the

      scene of an accident, a Class B misdemeanor, under Cause 687. In exchange,

      the State agreed to dismiss Cause 668, Cause 556, and the remaining counts

      under Cause 687.


[6]   The State and Kimmons agreed to the following sentence:


              a. [Cause 956]


              1. Count I


                       a. A total sentence of 910 days with


                                i. Two (2) years monitored by Marion County
                                   Community Corrections Home Detention;


                               ii. 180 days suspended with all time monitored by
                                   Marion County Probation;


                       b. Defendant to pay statutory interdiction fee with
                          amount to be determined by the court;


              2. Count II


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1887 | February 6, 2020   Page 3 of 9
                 a. A total sentence of 910 days with


                          i. Two (2) years monitored by Marion County
                             Community Corrections Home Detention;


                 b. 180 days suspended with all time monitored by Marion
                    County Probation; and,


        3. Counts to run concurrent.


        b. [Cause 687]


            1. Count I


                     a. A total sentence of fifteen (15) years


                              i. Five (5) years shall [be] executed with
                                 placement to be determined by the court after
                                 argument from the parties;


                             ii. The remaining ten (10) years shall be
                                 suspended;


                                      1. Three (3) years shall be monitored by
                                         Marion County Probation;


                     b. Defendant to complete substance abuse evaluation
                        and treatment as recommended;


                     c. Defendant to pay statutory interdiction fee with
                        amount to be determined by the Court;



Court of Appeals of Indiana | Memorandum Decision 19A-CR-1887 | February 6, 2020   Page 4 of 9
                  2. Count VI


                           a. A total sentence of 180 days;


                                    i. No additional executed time with all
                                       remaining time to be suspended;


                  3. Sentence on [Cause 687] is statutorily consecutive to
                     [Cause 956].


                                                    *****


              13. This agreement embodies the entire agreement between the
              parties and no promises or inducements have been made or given
              to the Defendant by the State which is not part of this written
              agreement.


      Appellant’s App. Vol. II pp. 57-58.


[7]   On June 11, 2019, the trial court orally accepted Kimmons’ plea agreement,

      finding that: (1) Kimmons “understands his rights”; (2) Kimmons “understands

      the possible sentencing and fines they are under”; and (3) Kimmons’ plea “is

      freely and voluntarily made and that a factual basis exists” for the plea. Tr.

      Vol. II pp. 12-13. On July 17, 2019, the trial court held a sentencing hearing.

      At the sentencing hearing, the State called Towe, who made a victim impact

      statement. The trial court then asked Towe “how much [Towe] th[ought] the

      car was worth at the time it was hit,” to which Towe responded: “I would say

      probably around five thousand.” Id. at 38. Subsequently, while making its oral

      sentencing statement, the trial court stated: “I am going to award $5,000.00 for

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1887 | February 6, 2020   Page 5 of 9
       restitution to [Towe].” Id. at 48-49. Kimmons’ attorney objected to the reward

       of the restitution award, which the trial court overruled. Kimmons now appeals

       the restitution order.


                                                    Analysis

[8]    Kimmons argues that the trial court erred in entering the restitution order when

       the plea agreement did not contemplate restitution. The State concedes that the

       record “does not do a very good job in this case of establishing proof of

       Defendant’s ability to pay restitution,” and that the sentencing order is less than

       clear regarding restitution, and thus, asks us to remand. Appellee’s Br. p. 6. In

       his reply brief, however, Kimmons argues that we should not remand, but,

       instead, should reverse the trial court’s entry of the restitution order because the

       trial court had no authority to impose it.


[9]    “An order of restitution is a matter within the trial court’s sound discretion and

       will only be reversed upon a showing of abuse of discretion.” Archer v. State, 81

       N.E.3d 212, 215 (Ind. 2017) (citing Bell v. State, 59 N.E.3d 959, 962 (Ind.

       2016)). Indiana Code Section 35-35-3-3(e) states: “If the court accepts a plea

       agreement, [the court] shall be bound by its terms.” Berry v. State, 10 N.E. 3d

       1243, 1246 (Ind. 2014); see Vaughn v. State, 982 N.E.2d 1071, 1073 (Ind. Ct.

       App. 2013) (“A plea agreement is contractual in nature, binding the defendant,

       the State and the trial court.”).


[10]   The State acknowledges that “[t]his Court has held that a trial court cannot

       order restitution following a plea agreement in cases in which the plea

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1887 | February 6, 2020   Page 6 of 9
       agreement is silent with respect to restitution.” Appellee’s Br. p. 6. The State

       also acknowledges, however, that “[t]his Court has also held that a trial court

       may order restitution, following a plea agreement, even though the plea

       agreement was completely silent on the issue of restitution.” Id.at 7. In support

       of this statement, the State cites three cases.


[11]   The first case is Huddleston v. State, 756 N.E.2d 1054 (Ind. Ct. App. 2001)

       (“Huddleston 1”), vacated on reh’g at Huddleston v. State, 764 N.E.2d 655, 657 (Ind.

       Ct. App. 2002) (“Huddleston 2”). 1 In Huddleston 1, our Court “concluded that

       the trial court abused its discretion in ordering restitution for the lost wages of .

       . . the mother of the victim” based on insufficient evidence. Huddleston, 764

       N.E.2d at 657. On rehearing, the State asked that we reconsider our decision

       because a clerical error prevented entry of appellee’s appendix on the docket,

       which resulted in our Court not having access to this portion of the record. Our

       Court held in Huddleston 2 that this portion of the record demonstrated sufficient

       evidence to support restitution in Huddleston’s open plea because the plea

       agreement specifically “left the issue of sentencing to the trial court’s

       discretion.” Id. at 657.


[12]   In the second case cited by the State, Gil v. State, 988 N.E.2d 1231, 1235 (Ind.

       Ct. App. 2013), the defendant entered an open guilty plea in which sentencing

       was left to the trial court’s discretion. Our Court held that “the trial court did




       1
           Although Huddleston 1 was vacated upon rehearing, we cite both to clarify the differences in the opinions.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1887 | February 6, 2020                     Page 7 of 9
       not abuse its discretion by imposing restitution and a fine because the open plea

       agreement left sentencing to the judge’s discretion.” 2 Gil, 988 N.E.2d at 1235.

       In doing so, our Court squarely contrasted an open plea case from cases in

       which “defendants [were] pleading guilty pursuant to recommended or fixed

       sentences.” Id.


[13]   In Morris v. State, 985 N.E.2d 364 (Ind. Ct. App. 2013) (“Morris 1”), clarified on

       reh’g in Morris v. State, 2 N.E.3d 7, 8-9 (Ind. Ct. App. 2013) (“Morris 2”), our

       Court held: “because the plea agreement was completely silent on the issue of

       restitution, the trial court lacked the authority to order Morris to pay $14,972.45

       in restitution toward the burial expenses of Morris’s fiancée, Jennifer, who was

       killed when she was thrown from the ATV that Morris was operating while

       intoxicated.” Morris, 2 N.E.3d at 8. On rehearing, the State argued that our

       Court should follow Huddleston and Gil and affirm the restitution order. In

       Morris 2, our Court did reconsider the restitution order stating, “[u]pon careful

       consideration, . . . Morris’s guilty plea was entirely open and left his sentence

       entirely to the trial court’s discretion[; therefore,] the court was free to enter an

       award of restitution as part of Morris’s sentence.” Id.


[14]   As shown above, these cases are readily distinguishable from Kimmons’ case,

       and the State’s reliance on these cases is misplaced. Kimmons entered into a

       fixed plea agreement, which clearly set forth his sentence and did not include an



       2
         Our Court did reverse the restitution order, however, as “the record was devoid of any evidence establishing
       the value” of the stolen property and damages at issue. Gil, 988 N.E.2d at 1236.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1887 | February 6, 2020                  Page 8 of 9
       award of restitution. See Sinn v. State, 693 N.E.2d 78, 80 (Ind. Ct. App. 1998)

       (finding “the trial court erred in ordering [the defendant] to pay restitution

       when the plea agreement contained no provision allowing such an order”).

       Accordingly, we “emphasize that plea agreements ideally should be more

       artfully drafted. . . . if the State wishes to seek restitution.” Morris, 2 N.E.3d at

       9. Based on the record before us, the trial court did not have the authority to

       enter the restitution order.


                                                  Conclusion

[15]   The trial court did not have the authority to enter the restitution order, and

       thus, we reverse the trial court’s entry of the restitution order only and remand

       with instructions to vacate the restitution order.


[16]   Reversed and remanded.


       Najam, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1887 | February 6, 2020   Page 9 of 9
