      MEMORANDUM DECISION
                                                                       Feb 27 2015, 10:17 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Dave Welter                                               Gregory F. Zoeller
      Supervising Attorney                                      Attorney General of Indiana
      Ashley Gilbert-Johnson                                    Christina D. Pace
      Legal Intern                                              Deputy Attorney General
                                                                Indianapolis, Indiana
      Christina Espar
      Legal Intern
      Valparaiso University Law Clinic
      Valparaiso, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Colleen Chaplin,                                         February 27, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               64A03-1408-CR-276
              v.                                               Appeal from the Porter Superior
                                                               Court

      State of Indiana,                                        The Honorable Jeffrey Clymer,
                                                               Judge Pro Tempore
      Appellee-Plaintiff
                                                               Cause No. 64D02-1401-FC-649




      Mathias, Judge.

[1]   Colleen Chaplin (“Chaplin”) was convicted in Porter Superior Court of Class D

      felony theft. At sentencing, Chaplin was ordered to pay restitution in the

      amount of $54,378.25 to the Indiana Department of Workforce Development
      Court of Appeals of Indiana | Memorandum Decision 64A03-1408-CR-276 | February 27, 2015   Page 1 of 5
      (“IDWD”). Chaplin appeals the restitution order and argues that $54,378.25

      exceeds the actual loss suffered by the IDWD.

[2]   We reverse and remand for proceedings consistent with this opinion.


                                 Facts and Procedural History

[3]   In October 2010, Chaplin applied for unemployment compensation benefits

      with the IDWD. For approximately two years, Chaplin periodically received

      benefits in the amount of $390 per week. During that time period, Chaplin

      certified to the IDWD that she was unemployed and had no other earnings.


[4]   In September 2013, the IDWD discovered that Chaplin was employed at a

      hospital and that she had received weekly unemployment compensation

      benefits while she also earned wages from her employer. Ultimately, the IDWD

      determined that Chaplin wrongly received $34,145.00 in unemployment

      compensation benefits.

[5]   Thereafter, Chaplin was charged with Class C felony welfare fraud. She

      pleaded guilty to the lesser-included charge of Class D felony theft on May 23,

      2014. Chaplin agreed to pay restitution but in an amount to be determined at a

      later date.

[6]   The IDWD requested restitution in the amount of $54,831.92. In an itemized

      statement, the IDWD listed the “fraud overpayment total” as $34,145.00, a

      “penalty total” of $20,233.25, and total interest accrued in the amount of

      $453.67.


      Court of Appeals of Indiana | Memorandum Decision 64A03-1408-CR-276 | February 27, 2015   Page 2 of 5
[7]    At sentencing, the State argued that Chaplin should be ordered to pay the

       “fraud overpayment total” and the “penalty total” in the aggregate amount of

       $54,378.25. Chaplin objected to the amount and argued that it exceeded the

       IDWD’s actual loss. Chaplin argued she should only be ordered to pay

       restitution in the amount of $34,145.00, the “fraud overpayment” amount.


[8]    Pursuant to the terms of the plea agreement, the trial court ordered Chaplin to

       serve three years but suspended the sentence and placed her on formal

       probation. The trial court then ordered Chaplin to pay restitution in the amount

       of $54,378.25. Chaplin now appeals the restitution order.


                                      Discussion and Decision

[9]    Chaplin argues that the trial court’s restitution order was improper because

       $54,378.25 exceeds the IDWD’s actual loss. We reverse a trial court’s order to

       pay restitution only for an abuse of discretion. Gil v. State, 988 N.E.2d 1231,

       1234 (Ind. Ct. App. 2013). A trial court abuses its discretion if its “decision is

       clearly against the logic and effects of the facts and circumstances before it” or if

       it “misinterprets or misapplies the law.” Id.; see also Kelley v. State, 11 N.E.3d

       973, 977 (Ind. Ct. App. 2014) (stating that a trial court abuses its discretion if it

       misinterprets or misapplies a statute relating to a restitution order).


[10]   “[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.” Iltzsch v. State, 981 N.E.2d

       55, 56 (Ind. 2013) (citing Pearson v. State, 883 N.E.2d 770, 772 (Ind. 2008)). An

       Court of Appeals of Indiana | Memorandum Decision 64A03-1408-CR-276 | February 27, 2015   Page 3 of 5
       order of restitution is part of a criminal sentence. Gonzalez v. State, 3 N.E.3d 27,

       30 (Ind. Ct. App. 2014). “Because restitution is penal in nature, the restitution

       statute must be ‘strictly construed against the State to avoid enlarging [it] by

       intendment or implication beyond the fair meaning of the language used.’”

       Cherry v. State, 772 N.E.2d 433, 439 (Ind. Ct. App. 2002) (quoting State v.

       Shelton, 692 N.E.2d 947, 949 (Ind. Ct. App. 1998)), trans. denied.


[11]   Trial courts are statutorily required to base restitution orders “upon a

       consideration of . . . 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)[.]” Ind. Code § 35-50-5-3(a); see also Smith v. State, 990 N.E.2d

       517, 520 (Ind. Ct. App. 2013), trans. denied (stating that a restitution award must

       reflect actual losses incurred by the victim for actions attributable to the

       defendant’s crimes).


[12]   Here, the IDWD proved that Chaplin fraudulently received $34,145.00 in

       unemployment compensation benefits. This is the actual cost suffered by the

       IDWD.


[13]   The penalty total, i.e. $20,233.25, exceeds the IDWD’s actual loss caused by

       Chaplin’s crime. The penalty amount constitutes additional punishment the

       IDWD may statutorily impose on an individual who “knowingly fails to

       disclose or falsifies any fact that if accurately reported to the department would

       disqualify the individual for benefits, reduce the individual’s benefits, or render

       the individual ineligible for benefits or extended benefits[.]” Ind. Code § 22-4-


       Court of Appeals of Indiana | Memorandum Decision 64A03-1408-CR-276 | February 27, 2015   Page 4 of 5
       13-1.1. For each instance of false reporting, the penalty increases from an

       amount equal to 25% of the benefit overpayment for the first instance, to 50%

       of the benefit overpayment for the second instance, and finally to 100% of the

       benefit overpayment for the third and each subsequent instance. Id.


[14]   In addition to the character of the challenged amount as part of a restitution

       order, we are mindful that this case comes to us from a guilty plea, rather than

       as a result of a conviction after a trial. Because the penalty calculated by the

       IDWD and awarded by the court was not an actual cost incurred as a result of

       Chaplin’s crime, we reverse as to the restitution order only and remand this

       case with instructions to enter a restitution order in the reduced amount of

       $34,145.00.

[15]   Reversed and remanded for proceedings consistent with this opinion.


       Najam, J., and Bradford, J., concur.




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