                                                                            FILED
                                                                      Mar 31 2016, 8:31 am

                                                                            CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Peter D. Todd                                             Gregory F. Zoeller
Elkhart, Indiana                                          Attorney General of Indiana
                                                          J.T. Whitehead
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jack L. Fisher,                                           March 31, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A03-1509-CR-1373
        v.                                                Appeal from the Elkhart Superior
                                                          Court
State of Indiana,                                         The Honorable Teresa L. Cataldo,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          20D03-1402-FA-6



Baker, Judge.




Court of Appeals of Indiana | Opinion 20A03-1509-CR-1373 | March 31, 2016                      Page 1 of 5
[1]   Jack Fisher was found driving a vehicle that contained a methamphetamine lab.

      A State Police Clandestine Lab Team had to clean up the lab, and incurred

      costs in doing so. After Fisher pleaded guilty, the trial court ordered him to pay

      restitution to the lab team in the amount of those costs.


[2]   Fisher appeals the restitution order imposed by the trial court after Fisher

      pleaded guilty to Attempted Dealing in Methamphetamine, 1 a class B felony.

      Fisher argues that the restitution order was improper because there was no

      victim to whom restitution should be paid. Finding that the trial court was

      statutorily required to order restitution in this case, we affirm.


                                                            Facts
[3]   On February 11, 2014, Fisher was driving a vehicle and was pulled over by a

      police officer. The vehicle contained a number of precursors used in the

      manufacture of methamphetamine as well as methamphetamine itself. The

      Indiana State Police Clandestine Lab Team was called to clean up the mobile

      methamphetamine lab; the amount of costs the team incurred in the cleanup

      totaled $1,432.49.


[4]   On February 18, 2014, the State charged Fisher with class A felony dealing in

      methamphetamine. On June 19, 2015, Fisher pleaded guilty to class B felony

      attempted dealing in methamphetamine pursuant to a plea agreement. 2 As part



      1
          Ind. Code § 35-48-4-1.1; Ind. Code § 35-41-5-1.
      2
          The State dismissed the class A felony charge in exchange for the guilty plea.


      Court of Appeals of Indiana | Opinion 20A03-1509-CR-1373 | March 31, 2016            Page 2 of 5
      of the plea agreement, Fisher waived any appellate argument related to whether

      the sentence imposed by the trial court was erroneous or inappropriate pursuant

      to Indiana Appellate Rule 7(B). Appellant’s App. p. 75. On June 23, 2015, the

      trial court sentenced Fisher to twelve years imprisonment, with four years

      executed, two years in alternate placement, and six years suspended to

      probation. The trial court also ordered Fisher to pay restitution to the

      Clandestine Lab Team in the amount of $1,432.49. Fisher now appeals.


                                    Discussion and Decision
[5]   Fisher’s sole argument on appeal is that the restitution order was erroneous.

      We review a trial court’s order of restitution for an abuse of discretion, and will

      affirm if sufficient evidence exists to support its decision. Rich v. State, 890

      N.E.2d 44, 49 (Ind. Ct. App. 2008).


[6]   The parties dispute whether Fisher has waived this appeal by entering into the

      plea agreement. We decline to resolve this case on grounds of waiver.


[7]   Initially, we note that restitution was not mentioned in the plea agreement or at

      the guilty plea hearing. Under these circumstances, the general rule is that the

      trial court may not order restitution. See Edsall v. State, 983 N.E.2d 200, 208-09

      (Ind. Ct. App. 2013). In this case, however, there is a specific statute

      mandating trial court action:

              (a)      In addition to any other penalty imposed for conviction of
                       an offense under this chapter involving the manufacture or
                       intent to manufacture methamphetamine, a court shall
                       order restitution under IC 35-50-5-3 to cover the costs, if
      Court of Appeals of Indiana | Opinion 20A03-1509-CR-1373 | March 31, 2016      Page 3 of 5
                       necessary, of an environmental cleanup incurred by a law
                       enforcement agency or other person as a result of the
                       offense.


              (b)      The amount collected under subsection (a) shall be used to
                       reimburse the law enforcement agency that assumed the
                       costs associated with the environmental cleanup described
                       in subsection (a).


      Ind. Code § 35-48-4-17 (emphasis added).


[8]   We acknowledge an apparent conflict between the case law, which provides

      that restitution may not be ordered unless it is included in the plea agreement,

      and the statute, which requires the trial court to order restitution in

      methamphetamine cleanup cases. It is well established that plea agreements are

      contractual in nature. E.g., Lee v. State, 816 N.E.2d 35, 38 (Ind. 2004). It is also

      well established that a contract must be construed as having been made in

      contemplation of applicable law. E.g., Mouch v. Ind. Rolling Mill Co., 93 Ind.

      App. 540, 151 N.E. 137, 138-29 (1926) (holding that statutes that exist at the

      time a contract is made must be read into the contract unless expressly excluded

      by the contractual language). In this case, Fisher’s plea agreement was entered

      into in 2015, more than a decade after the 2003 enactment of Indiana Code

      section 35-48-4-17. Under these circumstances, we find that the plea agreement

      implicitly incorporated the statutory restitution requirement. See Lee, 816

      N.E.2d at 38 (holding that “precisely because plea agreements are contracts, the

      principles of contract law can provide guidance in the consideration of the

      agreement”). Therefore, the trial court did not err by ordering restitution.

      Court of Appeals of Indiana | Opinion 20A03-1509-CR-1373 | March 31, 2016     Page 4 of 5
[9]    Finally, Fisher’s argument focuses on whether or not there is a victim to whom

       restitution is owed. 3 This Court has already addressed this precise issue. In

       Bulthuis v. State, the defendant appealed the trial court’s order of restitution

       following the cleanup of a methamphetamine lab. 17 N.E.3d 378 (Ind. Ct.

       App. 2014), trans. denied. Among other things, Bulthuis contended that the

       State was not a “victim” for the purpose of restitution. We disagreed, observing

       that the restitution award was “not only permitted, but required by the relevant

       statute[.]” Id. at 389 (emphasis added).4 Therefore, we found that the trial

       court did not abuse its discretion by ordering Bulthuis to pay restitution for the

       cost of the methamphetamine cleanup. Id. Here, the Clandestine Lab Team

       agency is the statutorily mandated victim to whom restitution is owed. We find

       no error in this regard.


[10]   The judgment of the trial court is affirmed.


       May, J., and Brown, J., concur.




       3
         Fisher does not challenge the amount of the restitution order, which is supported by information contained
       in the Presentence Investigation Report, to which Fisher did not object. Appellant’s App. p. 77.
       4
         As noted above, Indiana Code section 35-48-4-17(b) provides that the mandatory restitution ordered
       following a methamphetamine cleanup “shall be used to reimburse the law enforcement agency that assumed
       the costs” of the cleanup.

       Court of Appeals of Indiana | Opinion 20A03-1509-CR-1373 | March 31, 2016                         Page 5 of 5
