MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                   Apr 30 2018, 9:09 am

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
Victoria L. Bailey                                       Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Charlene Lewis,                                          April 30, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1712-CR-2776
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Jose D. Salinas,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G14-1611-F6-42945



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1712-CR-2776 | April 30, 2018                Page 1 of 6
[1]   Charlene Lewis appeals following her plea of guilty to Level 6 Felony

      Maintaining a Common Nuisance.1 Lewis argues that the amount of restitution

      ordered by the trial court exceeded the amount she agreed to pay. Finding no

      error, we affirm.


                                                        Facts
[2]   On October 26, 2016, Indianapolis Police Officer Brady Ball sustained a dog

      bite in the process of serving a search warrant at Lewis’s residence. On

      November 1, 2016, the State charged Lewis with Level 6 felony maintaining a

      common nuisance and Level 6 felony neglect of a dependent.


[3]   Lewis agreed to plead guilty to maintaining a common nuisance in exchange

      for the dismissal of the neglect of a dependent charge. The plea agreement

      states that Lewis would pay “Restitution to the City of Indianapolis in the

      amount of $ TBD thru probation.” Appellant’s App. Vol. II p. 46.


[4]   At the December 8, 2016, guilty plea hearing, the following exchange occurred:


                 Court:               . . . Also there’s an issue perhaps of restitution to the
                                      City of Indianapolis; is that correct?

                 State:               That’s correct, Judge.

                 Court:               Okay.

                 Defense:             And we just thought that to be determined through
                                      probation. If there was some sort of issue,



      1
          Ind. Code § 35-45-1-5(c).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1712-CR-2776 | April 30, 2018   Page 2 of 6
                         probation could let the Court know that we needed
                         a hearing on the matter.

        Court:           What do we expect that number to be, in the
                         hundreds or thousands or tens of thousands?

        State:           I don’t know. I received a preliminary letter from
                         the City informing me that they would be requesting
                         restitution and they would get a number to me. We
                         just decided on this plea today and so I don’t have a
                         number before me. I don’t know what that is. It’s
                         for medical treatment for one of the officers.

        Court:           Okay. Okay. For medical treatment for one of the
                         officers.

        Lewis:           They just showed me a paper that said that it was
                         for $310.00.

        Court:           Okay. So you’ve got an idea of where you’re
                         talking about?

        Lewis:           Yes.

        Court:           So –

        Defense:         So long as it’s not out of that range, she’s in
                         agreement.

        Court:           Okay. That’s what you want to do with this; right?

        Lewis:           Yes, sir.


Tr. Vol. II p. 6-7. At the conclusion of that hearing, the trial court advised the

defendant as follows:


        Court:           . . . You will pay restitution to the City of
                         Indianapolis in an amount to be determined
                         through probation. If for some reason they
Court of Appeals of Indiana | Memorandum Decision 49A04-1712-CR-2776 | April 30, 2018   Page 3 of 6
                               determine that number and they think it is
                               drastically different than what you are expecting,
                               talk to them politely about it and they can file a
                               memo with the court and they’ll set it for a hearing
                               and you can have a hearing with the Court. Okay?


              Lewis:           Yes, sir.


      Id. at 15.


[5]   The following day, counsel for the City of Indianapolis submitted a letter to the

      Marion County Probation Department requesting restitution in the amount of

      $677.46 for Officer Ball’s medical expenses. On January 24, 2017, the

      probation department submitted a memorandum and a request for restitution in

      that amount to the trial court. The trial court informed Lewis that she could

      either agree to that amount or contest it. Lewis indicated that she would

      contest the amount, and the trial court responded as follows:


              Understand what I’m saying. Probation was—restitution was
              agreed to. Okay. In other words, you agreed to pay restitution.
              Now what you didn’t agree to is what the amount would be at
              because we didn’t know it. Okay. So if you’re saying you don’t
              agree to that amount, your lawyer on March 10th needs to have
              reasons why you don’t—you’re not agreeing to that amount.


              The issue of restitution is not what you’re fighting. You agreed
              to pay restitution. What that issue is is what the amount is going
              to be.


      Id. at 28-29.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1712-CR-2776 | April 30, 2018   Page 4 of 6
[6]   At the March 10, 2017, restitution hearing, Officer Ball testified that he had

      sustained a dog bite while serving the warrant at Lewis’s residence. Counsel for

      the city testified that the city paid $677.46 in medical expenses for treatment of

      the officer’s injuries. The trial court bifurcated the hearing to allow Lewis and

      her attorney time to prepare their witnesses. On May 5, 2017, the hearing

      resumed. Lewis did not contest the amount of restitution ordered; instead, she

      argued that she should not be required to pay it at all. Ultimately, the trial

      court ordered Lewis to pay restitution in the amount of $677.46. Lewis now

      appeals.


                                   Discussion and Decision
[7]   On appeal, Lewis argues that the trial court improperly ordered restitution in

      the amount of $677.46. A restitution order is within the trial court’s discretion,

      and we will reverse only when the trial court’s order is against the logic and

      effect of the facts and circumstances before it. Garcia v. State, 47 N.E.3d 1249,

      1252 (Ind. Ct. App. 2015). The State bears the burden of submitting evidence

      to support a restitution order. J.H. v. State, 950 N.E.2d 731, 734 (Ind. Ct. App.

      2011). Evidence supporting a restitution order is sufficient “‘if it affords a

      reasonable basis for estimating loss and does not subject the trier of fact to mere

      speculation or conjecture.’” Id. (quoting T.C. v. State, 839 N.E.2d 1222, 1227

      (Ind. Ct. App. 2005)).


[8]   Here, the plea agreement signed by Lewis stated that she would pay restitution

      to the city “in the amount of $ TBD[.]” Appellant’s App. Vol. II p. 46. Once


      Court of Appeals of Indiana | Memorandum Decision 49A04-1712-CR-2776 | April 30, 2018   Page 5 of 6
       the trial court accepted that agreement, its terms became binding on the trial

       court, the State, and Lewis. E.g., Bethea v. State, 983 N.E.2d 1134, 1144 (Ind.

       2013). Lewis argues that this agreement was orally modified at the plea hearing

       when she stated that she had received some indication that the restitution

       amount would be $310 and her attorney stated that she agreed to pay the

       amount “so long as it’s not out of that range[.]” Tr. Vol. II p. 6-7.


[9]    We disagree that Lewis’s statements orally modified the plea agreement. The

       State did not agree to any modification; indeed, the prosecutor stated at the plea

       hearing that the State was still awaiting information from the city regarding the

       amount of Officer Ball’s medical expenses. Id. The parties agreed that Lewis

       must pay restitution to the city, that the amount was still unknown, and that if

       the amount differed from the “range” of $310, Lewis could request a hearing to

       contest the amount. In other words, there was no agreement—oral or

       otherwise—to cap the restitution at $310.


[10]   Lewis does not argue that she is unable to pay the amount of restitution

       ordered, that the amount is unreasonable or unsupported by the evidence, or

       that her plea agreement was not entered into knowingly or voluntarily. Under

       these circumstances, the trial court did not err by ordering Lewis to pay

       restitution in the amount of $677.46.


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


       Kirsch, J., and Bradford, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1712-CR-2776 | April 30, 2018   Page 6 of 6
