                                                                              FILED
                                                                          Mar 22 2019, 7:36 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Leanna Weissmann                                          Curtis T. Hill, Jr.
      Lawrenceburg, Indiana                                     Attorney General of Indiana

                                                                Tyler G. Banks
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
             COURT OF APPEALS OF INDIANA

      Steven Linville,                                          March 22, 2019
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-CR-983
                 v.                                             Appeal from the Ripley Circuit
                                                                Court
      State of Indiana,                                         The Honorable Ryan King, Special
      Appellee-Plaintiff                                        Judge
                                                                Trial Court Cause No.
                                                                69D01-1601-F6-20



      May, Judge.


[1]   Steven Linville appeals following his convictions of three counts of Level 6

      felony theft 1 and three counts of Level 6 felony making or delivering a false



      1
          Ind. Code 35-43-4-2(a) (2014).


      Court of Appeals of Indiana | Opinion 18A-CR-983 | March 22, 2019                           Page 1 of 22
      sales document. 2 He argues his fifteen-year sentence is inappropriate and the

      order that he pay $98,310.30 in restitution is “obvious error.” (Br. of Appellant

      at 12.) We affirm in part, and we reverse and remand in part.



                                Facts and Procedural History
[2]   For about sixteen years, Linville was employed by Laughery Valley AG

      (hereinafter, “Laughery Valley”). On behalf of Laughery Valley, Linville

      delivered fuel, oil, washer fluid, and antifreeze to about four hundred

      customers. In 2015, Laughery Valley began to suspect that Linville had been

      issuing false receipts to customers so that he could steal money from the

      payments due to Laughery Valley. When Laughery Valley confronted Linville,

      he admitted he took the money.


[3]   On January 29, 2016, the State filed thirty-four counts against Linville for

      events occurring on seventeen separate dates between October 6, 2014, and

      October 21, 2015. Seventeen of the counts alleged Linville committed Level 6

      felony theft because he “sold property belonging to Laughery Valley AG to

      Bob’s Service Station and accepted a check totaling [date-specific amount].

      Steven D. Linville did not turn the funds over to the Laughery Valley AG.”

      (Appellant’s App. Vol. 2 at 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27,

      28, 29, 30.) Seventeen other counts alleged Linville, on the same dates as the




      2
          Ind. Code 35-43-5-2(b)(1) (2014).


      Court of Appeals of Indiana | Opinion 18A-CR-983 | March 22, 2019          Page 2 of 22
      seventeen thefts, “delivered a false receipt to Bob’s Service Station for property

      belonging to Laughery Valley AG.” (Id. at 31, 32, 33, 34, 35, 36, 37, 38, 39, 40,

      41, 42, 43, 44, 45, 46, 47.)


[4]   On October 23, 2017, Linville entered an agreement whereby he would plead

      guilty to three counts of Level 6 felony theft 3 and three counts of Level 6 felony

      delivering a false sales document, 4 in exchange for the State dismissing the

      remaining twenty-eight counts. The agreement left the sentence for each count

      to the Court’s discretion but required all counts be served consecutively.

      Finally, the agreement provided: “Defendant shall pay restitution to Laughery

      Valley AG. The restitution amount shall be determined by the Court following

      a Restitution Hearing.” (Id. at 119.)


[5]   On October 24, 2017, the trial court accepted that agreement, entered those six

      convictions, and ordered the production of a presentence investigation report.

      The victim impact statement filed by Laughery Valley indicated that, between

      May of 2011 and November of 2015, Linville “stole at least $369,426.59 worth

      of sales proceeds through his scheme.” (Id. at 127.) At sentencing, Linville

      argued the court could not order him to pay more than $35,729.00, based on




      3
       Linville pleaded guilty to Counts 1, 8, and 17, which occurred on October 6, 2014, March 19, 2015, and
      October 21, 2015, respectively.
      4
       Linville pleaded guilty to Counts 20, 26, and 31, which occurred on November 13, 2014, April 16, 2015,
      and August 10, 2015, respectively.

      Court of Appeals of Indiana | Opinion 18A-CR-983 | March 22, 2019                              Page 3 of 22
the six counts to which Linville pled guilty. The trial court entered lengthy

findings in support of its sentencing decision:


        I.     Under the terms of the Plea Agreement, Defendant faces a
        minimum sentence of 3 years and a maximum sentence of 15
        years (180 days to 910 days on each count), with a total Advisory
        Sentence of 6 years.


        II.   The Defense asked for a sentence of probation or
        community corrections. The Prosecutor asked for a sentence of
        15 years with 5 years suspended.


        III.     The AGGRAVATING FACTOR(S) are as follows:


                 a.     The facts and circumstances of the crime go far
                 beyond that necessary to prove Level 6 Felony Thefts.
                 The offenses to which the Defendant pleaded guilty could
                 have been proven by Defendant having stolen just a few
                 thousand dollars. The facts of this case show that the
                 Defendant stole tens of thousands of dollars that he was
                 charged with and the evidence further shows that he had
                 been stealing from the victim well before the period for
                 which he was charged. These facts are substantially more
                 egregious than what would be necessary to prove the
                 commission of the six Level 6 felonies. The significant
                 value of the Defendant’s theft is an aggravating factor of
                 great weight.


                 b.     Defendant violated a position of trust. First,
                 Defendant violated his employer’s trust when he, on many
                 occasions, misappropriated the employer’s property
                 knowing his employer had entrusted him to provide a
                 service to their customers. Second, Defendant violated the
                 trust of his employer’s customers. Because the Defendant

Court of Appeals of Indiana | Opinion 18A-CR-983 | March 22, 2019             Page 4 of 22
                 violated the position entrusted to him to serve as the
                 middle-man between his employer (the victim herein) and
                 a significant number (approximately 350-400) of
                 customers, the Court considers this two-prong violation of
                 trust to be a significant aggravating factor of great weight.


                 c.     Defendant committed the crime of theft outside the
                 times alleged in this Cause. Defendant is charged with
                 committing crimes within a very narrow window of time;
                 specifically, the theft of over $98,000 over the period of
                 one year (October 2014 to October 2015). Defendant held
                 his position for Laughery Valley for several years and
                 other thefts, not brought within this case, were committed.
                 The Court also recognizes that this aggravator is a basis for
                 not affording the Defendant’s lack of criminal history
                 more weight, otherwise, this aggravator would have been
                 heavier. Therefore, the Court considers this an
                 aggravating factor and affords it moderate weight.


                 d.     Defendant’s actions have damaged Laughery
                 Valley’s business reputation in the community. According
                 to Keith Everheart [sic], Laughery Valley has lost
                 customers due to the Defendant’s actions. Further,
                 customers of Laughery Valley, not alleged victims herein,
                 appeared in the court room at sentencing, as they believe
                 that they too have been wronged by the Defendant’s
                 actions. The damage done to the victim from the wedge
                 driven by the Defendant between the victim and its
                 customers is palpable. The Court gives this aggravating
                 factor moderate weight.


        IV.      The MITIGATING FACTOR(S) are as follows:


                 a.   Defendant lacks criminal history. Although the
                 Defendant does not have any previous convictions, the

Court of Appeals of Indiana | Opinion 18A-CR-983 | March 22, 2019            Page 5 of 22
                 Court finds this mitigating factor should be viewed within
                 the light that the evidence (Everhart testimony, Main PC,
                 and Boring Letter) shows that he had committed
                 numerous offenses over the course of many years against
                 the victim herein. Although Defendant is only charged
                 with the commission of crimes occurring between October
                 2014, and October 2015, the evidence shows thefts over
                 the course of years. While the Court recognizes that the
                 Defendant has no previous criminal convictions, the Court
                 also recognizes that Defendant had been victimizing
                 Laughery Valley for years before October of 2014.
                 Therefore, the Court does not give this mitigating factor
                 much weight.


                 b.     Defendant shows remorse for the commission of the
                 offense. Defendant recognizes that his crimes have
                 embarrassed certain persons that had nothing to do with
                 his criminal enterprise. The Court recognizes this as a
                 mitigating factor, but because he’s now before the Court
                 for sentencing under the terms of a favorable plea
                 agreement, the Court does not believe this factor to be of
                 substantial weight. Further, it appears that the Defendant
                 is more remorseful for humiliating other persons and
                 himself than he is remorseful for stealing from the victim.
                 Therefore, this is a mitigating factor, but not of substantial
                 weight.


        V. Defendant’s guilty plea is not a mitigating factor because he
        already received a benefit of a Plea Agreement; namely the
        dismissal of 28 counts. This was a significant benefit to the
        Defendant.


(App. at 129-30 (emphases in original) (formatting altered).) The trial court

found the aggravators “significantly outweigh” the mitigators, (id. at 130), and


Court of Appeals of Indiana | Opinion 18A-CR-983 | March 22, 2019             Page 6 of 22
      imposed a fifteen-year sentence with three years suspended to probation. The

      court also ordered Linville to “pay restitution to Laughery Valley . . . in the

      amount of $98,310.30.” (Id. at 131.)


[6]   Linville then filed a motion to correct error that challenged both his sentence

      and the restitution order. He argued the court “relied on aggravating

      circumstances that are not supported by the record or are improper as a matter

      of law.” (Id. at 138.) As to restitution, Linville asserted the court’s ruling was

      “incorrect as a matter of law. Under Indiana law the restitution order could not

      have exceeded $35,729.00.” (Id.) The trial court denied Linville’s motion to

      correct error in a lengthy order that will be quoted where relevant to the issues

      raised on appeal.



                                 Discussion and Decision
[7]   Linville appeals from the denial of his motion to correct error. We generally

      review the trial court’s grant or denial of a motion to correct error for an abuse

      of the trial court’s discretion. State v. Johnston, 65 N.E.3d 1061, 1062 (Ind. Ct.

      App. 2016). An abuse of discretion has occurred if the trial court’s decision is

      “clearly against the logic and effect of the facts and circumstances before the

      court, or the reasonable, probable, and actual deductions to be drawn

      therefrom.” State v. Collier, 61 N.E.3d 265, 268 (Ind. 2016) (quoting McElfresh v.

      State, 51 N.E.3d 103, 107 (Ind. 2016)). If, however, the issues raised on appeal

      are pure questions of law, we review those issues de novo. Johnston, 65 N.E.3d

      at 1062.

      Court of Appeals of Indiana | Opinion 18A-CR-983 | March 22, 2019         Page 7 of 22
                                                Sentence Length

[8]   Linville first argues his fifteen-year sentence is inappropriate. Pursuant to

      Indiana Appellate Rule 7(B), we “may revise a sentence authorized by statute

      if, after due consideration of the trial court’s decision, [we] find that the

      sentence is inappropriate in light of the nature of the offense and the character

      of the offender.” As we conduct our review, we give “substantial deference” to

      the decision of the trial court. Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014),

      cert. denied 135 S. Ct. 978 (2015). “The principal role of appellate review should

      be to attempt to leaven the outliers . . . but not to achieve some perceived

      ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

      2008).


               Ultimately the length of the aggregate sentence and how it is to
               be served are the issues that matter. In the vast majority of cases,
               whether these are derived from multiple or single counts, involve
               maximum or minimum sentence, and are concurrent or
               consecutive is of far less significance than the aggregate term of
               years. And whether we regard a sentence as appropriate at the
               end of the day turns on our sense of the culpability of the
               defendant, the severity of the crime, the damage done to others,
               and myriad other factors that come to light in a given case.


      Id. at 1224. We “focus on the forest—the aggregate sentence—rather than the

      trees—consecutive or concurrent, number of counts, or length of the sentence

      on any individual count.” Id. at 1225.


[9]   Linville was convicted of six Level 6 felonies, each of which carried a potential

      sentence of six months to two-and-a-half years, with the advisory sentence

      Court of Appeals of Indiana | Opinion 18A-CR-983 | March 22, 2019           Page 8 of 22
       being eighteen months. See Ind. Code § 35-50-2-7(b). The court imposed two-

       and-a-half years for each conviction and, pursuant to the plea agreement,

       ordered those sentences served consecutively. Thus, Linville received the

       maximum possible aggregate sentence for his convictions, fifteen years. 5


[10]   As to the nature of his crime, Linville notes he “caused only pecuniary loss and

       not physical damage to the crime victim.” (Br. of Appellant at 11.) However,

       as the trial court noted in its sentencing order, Linville’s crimes constituted a

       “two-prong violation of trust,” (App. Vol. 2 at 130), because Linville was the

       middle man between Laughery Valley and nearly 400 of its customers, so he

       violated the trust of his employer and the trust of the employer’s customers.

       Evidence of this extended impact of Linville’s crimes was presented in the

       victim impact letter presented on behalf of Laughery Valley, which stated:


                . . . Laughery Valley wants the Court to know that the seventeen
                charged instances of theft/making or delivering a false sales
                document represents but a fraction of the overall harm Steve
                Linville has caused to Laughery Valley.


                [T]o this day Laughery Valley experiences the lasting effects of
                Steve’s crimes. Not only was Laughery Valley deprived of
                hundreds of thousands of dollars of potential revenue, but
                Laughery Valley has expended considerable resources pursuing



       5
         Linville argues his fifteen-year sentence is inappropriate because it is the same length “as people who have
       committed much more egregious crimes.” (Br. of Appellant at 15.) While the cases Linville cited involved
       rape, battery of a child, and dragging a police officer behind a car, which are more egregious, they all
       involved crimes that occurred in a single incident. Linville, by comparison, pled guilty to committing his
       crimes repeatedly over the course of one full year, such that his comparison to those other cases does not
       convince us that his sentence is inappropriate for his crimes.

       Court of Appeals of Indiana | Opinion 18A-CR-983 | March 22, 2019                                  Page 9 of 22
               the civil litigation against Steve and the other defendants, with no
               end in sight. Laughery Valley has also been forced to defend
               against counterclaims in that suit alleging that Laughery Valley
               was negligent in hiring, supervising, and retaining Steve as an
               employee.


               In addition, Laughery Valley continues to battle rumors in the
               community that one of its former delivery drivers stole fuel
               directly from Laughery Valley’s customers. In fact, just this
               month Laughery Valley received a new claim from a customer
               who says they believe that Steve stole fuel from them. Laughery
               Valley has turned that claim over to its insurance carrier.


               Steve’s crimes have caused ripples of consequences in the lives of
               everyone involved . . . . While many of those consequences are
               monetary and can be itemized and accounted for, others are
               more difficult to quantify. The full extent of reputational harm
               experienced by Laughery Valley, and the interference with its
               customer relationship, may never be known, but it will continue
               to be experienced for months and years to come. In determining
               Steve Linville’s sentence, Laughery Valley hopes the Court will
               fully consider both the direct, readily-quantifiable harms caused
               by Steve’s actions, as well as those that are more indirect and
               difficult to calculate, but no less real.


       (Id. at 128.) Based on the harm caused, and thus the nature of Linville’s

       offense, we cannot say a fifteen-year sentence is inappropriate for his crimes.


[11]   Regarding his character, Linville notes he “expressed genuine remorse and he

       has no criminal history.” (Br. of Appellant at 11.) However, the trial court

       explicitly found “it appears that the Defendant is more remorseful for

       humiliating other persons and himself than he is remorseful for stealing from


       Court of Appeals of Indiana | Opinion 18A-CR-983 | March 22, 2019         Page 10 of 22
       the victim.” (App. Vol. 2 at 130.) Furthermore, while Linville has no criminal

       history, he spent more than a year stealing repeatedly from his employer,

       creating false documents to facilitate his commission of theft, and involving his

       uncle, who owned Bob’s Service Station, in his scheme. Thus, we also cannot

       say a fifteen-year sentence is inappropriate for Linville’s character. We

       accordingly affirm the length of his sentence. See, e.g., Keller v. State, 987

       N.E.2d 1099, 1122 (Ind. Ct. App. 2013) (twenty-nine-year sentence not

       inappropriate for convictions of repeated acts of burglary and theft, where

       criminal history included only prior conviction of conversion), trans. denied.


                                                Restitution Order

[12]   “As part of a sentence or as a condition of probation, a trial court may order a

       defendant to pay restitution to a victim.” Morgan v. State, 49 N.E.3d 1091, 1093

       (Ind. Ct. App. 2016). Traditional goals of restitution are to “vindicate the rights

       of society[,]” Iltzsch v. State, 981 N.E.2d 55, 56 (Ind. 2013), and to “impress

       upon a criminal defendant the magnitude of the loss he has caused and his

       responsibility to make good that loss as completely as possible.” Kotsopoulos v.

       State, 654 N.E.2d 44, 46 (Ind. Ct. App. 1995), reh’g denied, trans. denied.


[13]   Orders of restitution are within the trial court’s discretion, and we will reverse

       only if the trial court has abused that discretion. Green v. State, 811 N.E.2d 874,

       877 (Ind. Ct. App. 2004). “An abuse of discretion occurs when the trial court

       misinterprets or misapplies the law.” Id. A restitution order must be supported

       by sufficient evidence. Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct. App. 2008),

       trans. denied. “Evidence supporting a restitution order is sufficient if it affords a
       Court of Appeals of Indiana | Opinion 18A-CR-983 | March 22, 2019          Page 11 of 22
       reasonable basis for estimating loss and does not subject the trier of fact to mere

       speculation or conjecture.” J.H. v. State, 950 N.E.2d 731, 734 (Ind. Ct. App.

       2011).


[14]   Herein, the State charged Linville with thirty-four crimes based on seventeen

       occurrences of theft, and on those seventeen dates Linville stole a total of

       $98,310.30 from Laughery Valley. 6 Pursuant to his plea agreement, Linville

       was convicted of six crimes. The trial court ordered Linville to pay $98,310.30,

       and Linville argues that was error under Dull v. State, 44 N.E.3d 823 (Ind. Ct.

       App. 2015).


[15]   Dull was indicted for one count of Class D felony theft for an act that occurred

       in the “summer or fall of 2013.” Id. at 825. He pled guilty to that crime and

       agreed the court could determine restitution. A witness from the business

       testified Dull committed additional thefts and had stolen $145,633.40. At the

       guilty plea hearing, Dull admitted two other thefts from the same business

       during the charged timeframe and “agreed to pay restitution for the grain he

       took . . . on three occasions.” Id. at 832. Cancelled checks demonstrated that

       “during the relevant time period in the indictment, there were fourteen

       transactions . . . that totaled $26,110.98.” Id. at 828. Dull’s counsel argued his




       6
         Laughery Valley’s investigation of Linville’s sales and behavior concluded that Linville began stealing from
       Laughery Valley in 2011 and that, all told, he had stolen around $350,000 in sixty-one acts that occurred over
       four years. As the trial court noted in its order on Linville’s motion to correct error, Indiana law prohibits the
       trial court from ordering Linville to pay restitution for those additional uncharged amounts. (See App. at 145
       (citing Dull v. State, 44 N.E.3d 823 (Ind. Ct. App. 2015).)

       Court of Appeals of Indiana | Opinion 18A-CR-983 | March 22, 2019                                   Page 12 of 22
       restitution should not be more than $26,110.98. The court ordered Dull to pay

       $145,633.40.


[16]   On appeal, we reversed the trial court’s order because the trial court could not

       order Dull to pay restitution for acts prior to the summer of 2013 when Dull

       had not pled guilty to committing theft before that summer and had not agreed

       to pay restitution for acts committed before that time. Id. at 832. In the process

       of so holding, we explained:


               Indiana Code § 35-50-5-3(a), which governs restitution, provides
               that a “court shall base its restitution order upon a consideration
               of: (1) 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).” (Emphasis added). The trial court cannot
               order a defendant to pay restitution for crimes to which he did
               not plead guilty, has not been convicted, or did not agree to pay
               as restitution. See Polen [v. State], 578 N.E.2d [755,] 756-57 [(Ind.
               Ct. App. 1991)]. See also Hill v. State, 25 N.E.3d 1280, 1283 (Ind.
               Ct. App. 2015) (“Absent an agreement to pay restitution, a
               defendant may not be ordered to pay restitution for an act that
               did not result in conviction.”).


       Id. at 831. Because Dull had agreed to pay restitution for the summer and fall

       of 2013 and, through counsel, had agreed the amount was the total of the

       fourteen checks written in that time period, the restitution order had to be

       reduced to $27,778.18. Id. at 832-33.


[17]   At the sentencing hearing, Linville argued: “Dull requires the Court to enter

       restitution in the amount of Thirty-Five Thousand Seven Hundred Twenty-



       Court of Appeals of Indiana | Opinion 18A-CR-983 | March 22, 2019          Page 13 of 22
Nine Dollars ($35,729.00) . . . for the six counts to which were pled.” 7 (Tr. at

61.) However, in pronouncing its order, the trial court said:


         [T]he law states the Trial Court cannot order a Defendant to pay
         restitution for crimes which he did not plead guilty, has not been
         convicted or did not agree to pay as restitution. Well, these
         proceedings got started a little late today because the Court went
         back and listened to the guilty plea hearing and at the guilty plea
         hearing, everybody was in agreement that your amount could be
         readily determined by the informations. There wasn’t such an
         argument. The argument there was between Ninety-Eight
         Thousand (98,000) and three hundred and forty-four thousand
         (344,000). So, you were in agreement at the time of the guilty
         plea that you owed Ninety-Eight Thousand Dollars ($98,000.00)
         and that is sufficient to find that that should be the amount of
         restitution that you should have to pay. . . . Specifically, it’s
         Ninety-Eight Three Ten and Thirty Cents ($98,310.30). So, the
         Court’s going to iss . . . enter a restitution order in that amount.


(Id. at 70.)




7
  On appeal, Linville argues the restitution order should have been only “$17,786.50.” (Br. of Appellant at
21.) Appellate counsel notes $17,786.50 is the total for the three thefts, and then she suggests “it is unclear
how [trial] counsel arrived at” $35,729.00, suggesting trial counsel may have added improperly. (Id. at 21
n.2.) However, on the same page of the Transcript to which appellate counsel cites, trial counsel explained
how he reached $35,729.00. (See Tr. Vol. 2 at 61 (explaining there were seventeen acts of theft and each
charge of making a false sales document had a corresponding theft that occurred on the same day, such that
the damages from each false document was that day’s theft).) (See also id. at 19-20 (discussing that there were
seventeen dates on which the two crimes occurred concurrently, resulting in thirty-four charged crimes).)
Linville was convicted of three counts of theft during which he stole a total of $17,786.50 and three counts of
making a false sales document, which facilitated his theft of an additional $17,942.50, bringing the damages
for his six crimes to a total of $35,729.00. On this basis, trial counsel urged the court to enter a restitution
order of $35,729.00, and Linville cannot now assert that amount is error. See Dull, 4 N.E.3d at 832-33
(Appellate court ordered Dull to pay restitution for fourteen transactions during summer and fall of 2013,
because that was the timeframe in which Dull admitted thefts and, through counsel, Dull had agreed the
amount he should be ordered to pay was the total of the fourteen checks written in that time period, even
though Dull was only convicted of three counts of theft).

Court of Appeals of Indiana | Opinion 18A-CR-983 | March 22, 2019                                  Page 14 of 22
[18]   Linville then filed a motion to correct error challenging the validity of the

       restitution order that required him to pay $98,310.30. In response, the trial

       court entered the following findings and conclusions:


               I.    $98,310.30 in restitution is supported by the law and
               evidence.


               1)     The Parties entered into a Plea Agreement wherein the
               parties agreed as follows: “Defendant shall pay restitution to
               Laughery Valley Ag. The restitution amount shall be determined by the
               Court following a Restitution Hearing.” The Plea Agreement was
               filed on October 23, 2017, and the Guilty Plea Hearing was held
               on October 24, 2017.


               2)     During the Guilty Plea Hearing, the defense stated that the
               restitution should be approximately $100,000. At that time, the
               State said it would be asking for $344,023.45. The defense
               contested a letter submitted by the victim who was asking for
               “much more restitution than what’s charged.” (asking for over
               $360,000)


               The Guilty Plea Hearing Transcript shows that the restitution
               dispute was in regards to the defense’s position that restitution
               was approximately $100,000 (the amount “charged”) versus the
               State’s position that the restitution was $344,023.45. Probative
               excerpts from the Guilty Plea Hearing include at least the
               following:


               Excerpt 1:


               MR. WATSON: “… I note that this letter that’s just been delivered to
               the Court is, I think, indicating much more restitution than what’s
               charged. I just would make that point.”

       Court of Appeals of Indiana | Opinion 18A-CR-983 | March 22, 2019            Page 15 of 22
        Excerpt 2 (State’s Statement and Defense Counsel’s Response
        thereto):


        MR. TUCKER: “Your Honor, I know what’s alleged in the probable
        cause affidavit … I know it’s $344,023.45.”


        MR. WATSON: But the counts look to me like they don’t add up to
        that ($344,023.45). Maybe I’m wrong… I mean, it looks to me like that
        the theft counts, seventeen (17) of them add up to, and these are rounded
        numbers, around a hundred thousand ($100,000).


        Excerpt 3:


        MR. WATSON: And then just roughing the seventeen (17) out and,
        again, this is not an exact number and everybody in this courtroom
        knows I’m not a mathematician, okay, but it looks to me like those
        seventeen (17) counts add up to about a hundred grand ($100,000).


        3)     Further, the Transcript of the Guilty Plea Hearing shows
        that the defense may have even agreed to the Court having the
        discretion to find a higher amount of, or additional, restitution as
        defense counsel referred to the “various ways” that restitution
        may be figured, including “loss of sale” and counsel further
        pondered that there could be a “combination request”. The
        defense certainly made no suggestion that restitution should be,
        or could be, limited to the $35,729.00 or that restitution was
        limited to the amounts Defendant pleaded guilty to. The
        dialogue in the Guilty Plea Hearing is absolutely contrary to that
        assertion.


        4)    During the Sentencing Hearing, the State and the Defense
        changed their positions wherein the State backed the victim’s
        request for over $360,000 and the Defense responded by
        requesting restitution of $35,729.00.

Court of Appeals of Indiana | Opinion 18A-CR-983 | March 22, 2019              Page 16 of 22
        5)     Based upon Dull v. State, 44 N.E.[3]d 823 (Ind.
        App.2015), the Court found that the Court was limited to
        $98,310.30, which was the amount “charged” and the amount
        that the defense was advocating for during the Guilty Plea
        Hearing. Defendant had been agreeable to, or acquiesced in,
        restitution for the amount “charged”, but certainly contested the
        larger figures.


        6)      The Court also finds that the Probable Cause shows that
        the Defendant admitting to stealing at least $82,000. “STEVE
        LINVILLE further told MIKE BORING that he deposited $82,000 from
        the thefts into his and his wife’s bank account … from the stolen fuel, oil,
        washer fluid, and antifreeze … that belonged to LAUGHERY VALLEY
        AG”. Defendant’s admission in the Probable Cause is consistent
        with the defense’s Guilty Plea Hearing position.


        7)      Dull allows restitution to be determined in an amount
        beyond the offense(s) to which a Defendant pleaded guilty to, if
        the Defendant so agrees. Further, Kinkead v. State, supports a
        finding of restitution based upon statements made by the
        Defense. 791 N.E.2d 243 (Ind. App. 2003) (holding that the
        Defendant was appropriately ordered to pay restitution in a
        higher amount when he stated he would pay “whatever the Judge
        decides my restitution should be is what I, what I will . . . be willing to
        pay”. Here, during the Guilty Plea Hearing the Defense made
        several statements that restitution should be the amount
        “charged” in the 17 counts (approximately $100,000), not
        $344,023.45 or $360,000.


        8)     The record shows that the Defendant was correct during
        the Guilty Plea Hearing that appropriate restitution is $98,310.30
        and Dull prevented an award for $340,000 or more. The Court’s
        decision, now alleged to be error, actually provided a substantial
        benefit to Defendant.



Court of Appeals of Indiana | Opinion 18A-CR-983 | March 22, 2019                     Page 17 of 22
                      Where there is a Plea Agreement dismissing numerous
               counts and for a restitution hearing, and where, during the Guilty
               Plea Hearing, the defense made clear statements evidencing the
               Defendant’s position that restitution was the approximately
               $100,000 “charged”, and where the Court found that Dull
               significantly limits the Defendant’s restitution and the evidence,
               even by the Defendant[’s] own omission [sic], supports the
               amount of restitution awarded herein, the Court finds that the
               restitution award was the legally appropriate amount after
               considering the law and evidence.


               WHEREFORE, the Court DENIES the Motion to Correct Errors
               as to restitution.


       (App. Vol. 2 at 144-45 (emphases and errors in original).)


[19]   Our review of the transcript of the Guilty Plea Hearing leads us to a very

       different conclusion. At that hearing, defense counsel was discussing his need

       for further discovery to determine whether additional documentation existed to

       support an order of restitution greater than the amount charged as to each

       offense:


               I can tell the Court that one of [the] things I’m going to do in a
               response, it might just be there’s nothing new, but I probably will
               ask for an order for additional discovery to indicate any, you
               know, documentation that, if the State believes there’s any
               documentation for restitution that’s not already been discovered
               or sent to us that’s out there or anything that’s new that’s come
               into them, um, so I’ll probably be asking for that.


                                                      *****



       Court of Appeals of Indiana | Opinion 18A-CR-983 | March 22, 2019        Page 18 of 22
        But the counts look to me like they don’t add up to [the
        $344,023.45 alleged in the probable cause affidavit]. Maybe I’m
        wrong. In any event, it is what it is. I’m just . . . That’s my
        whole point. The restitution issue is . . . an issue in terms of
        trying to come down to an exact number or the various ways that
        restitution might be collected. For instance, um, it’s noted in the
        letter that, you know, there’s, there’s the actual dollar amounts
        that are alleged because of checks that were written, but then
        there’s the question of loss of sale in terms of, well, their
        allegation is that, you know, the, the gas being sold at a value
        lower than the, you know, than the market value. So, I’m not
        clear if there’s going to be a combination request based on that or
        if that maybe makes up a difference that I’m not seeing. I mean,
        it looks to me like that the theft counts, seventeen (17) of them
        add up to, and these are rounded numbers, around a hundred
        thousand (100,000). . . .


                                               *****


        . . . I just want to be clear before I come to the hearing, exactly
        what are the streams of restitution that Laughery is asking for. Is
        it just flat out the transaction that occurred on these individual
        dates? Are they also asking for loss related to the gas they could
        have sold at a higher price and how do we propose to prove that?
        That’s, that’s what some of the technicalities are here.


                                               *****


        . . . it looks to me like those seventeen (17) counts add up to
        about a hundred grand (100,000). Each one of those counts
        states a specific amount and the low amount running somewhere
        around Forty-Three Hundred Dollars ($4,300.00) and the high
        amount running as high as eighty-three (83), but most of them
        ranging between five and six or five and seven, I should say, and
        I just went through them again just to . . . So, you see, Judge,

Court of Appeals of Indiana | Opinion 18A-CR-983 | March 22, 2019        Page 19 of 22
               what I’m saying is there’s, there’s a lot of numbers here. The
               Proba . . .[sic] the PC Affidavit says one thing. I know what’s
               going on in the civil litigation, because I’m in it. There’s, in the
               letter they seem to be alleging there’s a different stream of
               restitution, which may be logical and reasonable and that might
               be that we intend to prove what the gas price was on each one of
               these days and what the difference was, we could have sold it for
               that too, and that our only loss is not the number here but it’s
               more because the gas itself was worth much more than what was
               taken. I’m not sure. That’s why I want to send a little discovery
               to make sure I know what the State intends to present, um-


       (Tr. Vol. 2 at 14-21.)


[20]   When considered within the context of his full arguments at the guilty plea

       hearing, we cannot agree Linville’s counsel agreed that his client was

       responsible for the nearly $100,000 alleged in support of the seventeen counts of

       theft. Rather, counsel was explaining that he needed additional discovery to

       understand why the probable cause affidavit indicated Linville had stolen

       $344,023.45 and the newly submitted letter indicated Linville had stolen more

       than $360,000, but the amounts listed in the criminal charges amounted to only

       approximately $100,000.00. He explained that, to represent Linville’s interests

       at the sentencing hearing, he needed to understand how the State intended to

       demonstrate the amounts of restitution it would be requesting, if that amount

       would be greater than the amounts alleged in the charging affidavits, which

       were supported by the checks that Linville received from Bob’s Service Station.

       At no point did counsel agree that Linville should be or would be responsible

       for the money alleged to have been stolen during all seventeen thefts. “The trial


       Court of Appeals of Indiana | Opinion 18A-CR-983 | March 22, 2019         Page 20 of 22
       court cannot order a defendant to pay restitution for crimes to which he did not

       plead guilty, has not been convicted, or did not agree to pay as restitution.”

       Dull, 44 N.E.3d 831. We therefore hold the trial court’s denial of Linville’s

       motion to correct error as to restitution was an abuse of discretion. See Wright v.

       Wright, 782 N.E.2d 363, 368 (Ind. Ct. App. 2002) (denial of father’s motion to

       correct error was abuse of discretion where evidence before trial court did not

       support denial).


[21]   Because Linville did not agree to pay restitution for all seventeen thefts that

       were charged, he could not be ordered to pay $98,310.30 in restitution when he

       was convicted of only six crimes. See Dull, 44 N.E.3d at 832 (court abused its

       discretion by ordering Dull to pay for more checks than those written during the

       timeframe he agreed to pay). Linville’s counsel did concede the restitution

       order for those six crimes should be $35,729.00, based on the amounts of the

       checks written by Bob’s Service Station to Linville on those dates. (See Tr. Vol.

       2 at 61.) At the restitution hearing, the witness for Laughery Valley testified the

       restitution it was requesting was based only on sixty-one checks written to

       Linville from Bob’s Service Station. (Id. at 40-41.) As such, Laughery Valley

       was not requesting reimbursement in this criminal context for any other form of

       loss caused by Linville’s actions. We therefore can determine that the trial

       court should have ordered Linville to pay $35,729.00 in restitution. We

       accordingly reverse the trial court’s order as to restitution and remand for the

       trial court to modify the judgment against Linville to indicate he must pay

       $35,729.00 in restitution to Laughery Valley.


       Court of Appeals of Indiana | Opinion 18A-CR-983 | March 22, 2019        Page 21 of 22
                                                Conclusion
[22]   In light of Linville’s character and offense, we see nothing inappropriate about

       his fifteen-year sentence, three of which were suspended to probation, and we

       affirm the length of his sentence. However, the trial court abused its discretion

       when it ordered Linville to pay $98,310.30 in restitution. We therefore reverse

       and remand for the trial court to enter a new order requiring Linville to pay

       $35,729.00 in restitution to Laughery Valley.


[23]   Affirmed in part, reversed and remanded in part.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-983 | March 22, 2019       Page 22 of 22
