Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any               Jan 08 2015, 9:08 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

MICHELLE F. KRAUS                                GREGORY F. ZOELLER
Fort Wayne, Indiana                              Attorney General of Indiana

                                                 GRAHAM T. YOUNGS
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

KRISTOPHER SOUTER,                               )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 02A03-1405-CR-170
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                         The Honorable Wendy W. Davis, Judge
                            Cause No. 02D04-1312-FD-1333



                                      January 8, 2015

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Kristopher Souter appeals the $2500 restitution order imposed by trial court

following his guilty plea to class D felony Receiving Stolen Property1 and Class B

misdemeanor False Informing.2 Finding that the trial court erred in determining the

amount of restitution, we reverse and remand with instructions to recalculate the

restitution owed by Souter.

                                          FACTS

          On November 29, 2013, Yasas Pelendagama Arachchige called the Fort Wayne

Police Department to report that his apartment had been burglarized. Several items were

stolen, including a flat screen television, personal clothing, earphones, and iPods.

          Souter was located by police in the bathroom of a nearby apartment. He told

officers that his name was Kristopher Tolbert, and the officers later learned that his name

was Kristopher Souter. Officers found an iPod in the bathroom where Souter was found.

The serial number on the iPod matched the serial number of an iPod that had been stolen

from Arachchige.

          On December 5, 2013, the State charged Souter with receiving stolen property and

false informing. On March 3, 2014, Souter pleaded guilty to both counts. At his guilty

plea hearing, Souter admitted that he had had possessed an iPod that did not belong to

him and that it was the subject of a theft. At his sentencing hearing on April 28, 2014,

Souter was sentenced to one year and 183 days for the receiving stolen property


1
    Ind. Code § 35-43-4-2.
2
    Ind. Code § 35-44.1-2-3(d)(1).
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conviction and to 183 days for the false informing conviction, to run concurrently. The

sentence was suspended according to the terms of Souter’s plea agreement.

       In addition to the above sentence, the trial court also ordered Souter to pay $2500

in restitution. The plea agreement provided: “[t]he parties agree to have a hearing on

restitution. The Court shall determine the amount of restitution, if any.” Appellant’s

App. p. 15. The pre-sentencing investigation (PSI) report listed the amount of actual loss

reported by Arachchige as $2500. Souter argued that because he had returned the iPod to

Arachchige, there should be no restitution ordered. The trial court determined that Souter

would pay restitution because he was acting in concert with others and “they’re all

equally guilty.” Sentencing Tr. p. 15. Souter now appeals.

                              DISCUSSION AND DECISION

       Souter argues that the trial court erred when it ordered $2500 in restitution, which

exceeded the amount of loss caused by the crimes to which he pleaded guilty. A trial

court has the authority to order a defendant convicted of a crime to make restitution to the

victims of the crime. Ind. Code § 35-50-5-3. A restitution order is well within the trial

court’s sound discretion, and we will reverse only upon a showing of an abuse of that

discretion. Henderson v. State, 848 N.E.2d 341, 346 (Ind. Ct. App. 2006). An abuse of

discretion occurs if the court’s decision is clearly against the logic and effects of the facts

and circumstances before it. Id. An abuse of discretion may also occur where the trial

court misinterprets or misapplies the law. Kimbrough v. State, 911 N.E.2d 621, 639 (Ind.



                                              3
Ct. App. 2009). Additionally, the restitution order must be supported by sufficient

evidence of the victim’s loss. Gil v. State, 988 N.E.2d 1231, 1235 (Ind. Ct. App. 2013).

       The State argues that the probable cause affidavit and the amount of loss reported

by the victim in the PSI report provide sufficient evidence to support the trial court’s

restitution order. In the PSI report, Arachchige states that his losses from the burglary of

his residence totaled $2500, the deductible on the claim he sent to his insurance company

after the burglary. PSI report p. 40. The State maintains that this information, along with

information in the probable cause affidavit showing that police discovered Souter in an

apartment with other individuals who were talking about the burglary, one of whom was

wearing Arachchige’s clothing, is enough to support the restitution order.

        Souter argues that the trial court erred when it imposed restitution for the amount

of loss resulting from the burglary, a crime to which he did not plead guilty. In support

of this argument, Souter cites Polen v. State, 578 N.E.2d 755, 758 (Ind. Ct. App. 1991),

in which a panel of this Court determined that it was error for the trial court to order

restitution for losses due to crimes to which defendant did not plead guilty, of which she

was not convicted, and for which she did not agree to pay restitution.             The State

maintains that Polen does not apply, because here Souter agreed to be “bound by the

discretion of the trial court with respect to the restitution imposed.” Appellee’s Br. p. 10.

       We cannot agree with the State. While Arachchige’s losses from the burglary may

total $2500, Souter did not plead guilty to the burglary. He pleaded guilty to receiving

stolen property and admitted to possessing the iPod. We see no reason to distinguish the

                                              4
plea agreement in the instant case from that in Polen. Polen’s plea agreement stated

“there is no agreement as to the issue of restitution, other than it is agreed that each side

shall be allowed to present evidence regarding said issue for the Court to decide.” 578

N.E.2d at 757. Likewise, Souter’s plea agreement states: “[t]he parties agree to have a

hearing on restitution. The Court shall determine the amount of restitution, if any.”

Appellant’s App. p. 15. Both of these provisions have the same meaning: that evidence

regarding restitution will be presented, or that a hearing will be held, and that the trial

court will determine the amount of restitution. We do not find that Souter agreed to pay

restitution beyond the amount of loss caused by the crimes to which he pleaded guilty.

       We find that the trial court erred when it ordered restitution in an amount greater

than the sums involved in those crimes to which Souter actually pleaded guilty. We

reverse the restitution order imposed by the trial court and remand to the trial court the

recalculation of the restitution amount.

       The judgment of the trial court is reversed and remanded.

VAIDIK, C.J., and RILEY, J., concur.




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