        MEMORANDUM DECISION

        Pursuant to Ind. Appellate Rule 65(D),
        this Memorandum Decision shall not be                            Sep 30 2015, 9:21 am
        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.


        ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
        William J. Cohen                                         Gregory F. Zoeller
        Cohen Law Offices                                        Attorney General of Indiana
        Elkhart, Indiana                                         Chandra K. Hein
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                   IN THE
            COURT OF APPEALS OF INDIANA

        Gerald Binfet,                                           September 30, 2015
        Appellant-Defendant,                                     Court of Appeals Case No.
                                                                 20A03-1412-CR-442
                v.                                               Appeal from the Elkhart Superior
                                                                 Court
        State of Indiana,                                        The Honorable Charles Carter
        Appellee-Plaintiff                                       Wicks, Judge
                                                                 Trial Court Cause No.
                                                                 20D05-1310-FD-1110



        Mathias, Judge.


[1]     Gerald Binfet (“Binfet”) pleaded guilty in Elkhart Superior Court to Class D

        felony theft. He was ordered to serve a two-year sentence with six months


        Court of Appeals of Indiana | Memorandum Decision 20A03-1412-CR-442 | September 30, 2015   Page 1 of 8
        executed on home detention and the remainder of the sentence suspended to

        probation. Binfet was ordered to pay restitution to the victim in the amount of

        $27,974.57 by making payments in the amount of $300 per month. Binfet

        appeals the restitution order and raises the following three issues:

                I. Whether the trial court violated Binfet’s Sixth Amendment right to
                confront witnesses against him when it admitted hearsay testimony at the
                restitution hearing;

                II. Whether the restitution order is supported by sufficient evidence; and,

                III. Whether the trial court abused its discretion when it ordered Binfet to
                pay $300 per month toward the restitution judgment.

[2]     We affirm.


                                      Facts and Procedural History

[3]     Binfet was a plant manager for Valmont Industries in 2012 through 2013. On

        several occasions during his employment, Binfet sold copper and scrap

        aluminum metal owned by Valmont, which he was not authorized to do, and

        kept the proceeds from the sales for himself.

[4]     Binfet was charged with Class D felony theft on October 14, 2013, and on

        February 4, 2014, he pleaded guilty as charged. The plea agreement provided

        that Binfet would receive a two-year sentence with a six-month cap on executed

        time and eighteen months suspended to probation. Binfet also agreed to pay

        restitution in an amount to be determined by the trial court.


[5]     Binfet was sentenced on March 10, 2014, but the restitution hearing was not

        held until October 10, 2014. At the restitution hearing, a detective with the

        Court of Appeals of Indiana | Memorandum Decision 20A03-1412-CR-442 | September 30, 2015   Page 2 of 8
        Elkhart County Sheriff’s Department testified concerning his investigation of

        Binfet’s scrap metal sales. Over Binfet’s objection on right of confrontation

        grounds, the detective testified that Binfet sold copper and scrap aluminum to

        John Brockleman. Brockleman then sold the copper and scrap metal to Sam

        Winer’s & Sons. The detective obtained “scrap tickets” from Sam Winer’s

        during the time period when Binfet worked for Valmont. After the detective

        obtained the “scrap tickets,” he showed them to Brockleman, who verified that

        the tickets listed the copper or scrap aluminum that Binfet sold to Brockleman

        without Valmont’s permission.


[6]     Binfet argued that Brockleman bought scrap metal from many customers, not

        just Binfet. Binfet claimed that the scrap aluminum that he sold to Brockleman

        was likely co-mingled with scrap metal from Brockleman’s other customers.

        Therefore, the amounts of scrap aluminum metal represented on the “scrap

        tickets” included more than Valmont’s scrap aluminum. Binfet admitted that he

        received approximately $15,000 total for Valmont’s copper and scrap aluminum

        that he stole and sold. Valmont argued that Binfet should be ordered to pay

        approximately $100,000 in restitution. The trial court took the matter under

        advisement.


[7]     On November 6, 2014, the court issued an order calculating restitution in the

        amount of $27,974.57. The trial court found that Binfet had the ability to pay

        $300 per month toward the restitution judgment. Binfet then filed a motion to

        correct error, which the trial court denied. Binfet now appeals.



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                                                    Restitution

[8]      In his plea agreement, Binfet agreed to pay restitution in an amount to be

         determined by the trial court. The trial court concluded that Valmont Industries

         was owed $27,974.57 in restitution and ordered Binfet to make payments on

         that judgment in the amount of $300 per month.

[9]      Restitution orders are within the discretion of the trial court. Sickels v. State, 982

         N.E.2d 1010, 1013 (Ind. 2013). Indiana Code section 35-50-5-3(a) provides that

         a trial court may order a defendant “to make restitution to the victim of the

         crime[.]” The statute does not define the term “victim,” but our supreme court

         has held that “restitution is properly payable to those shown to have suffered

         injury, harm or loss as a direct and immediate result of the criminal acts of a

         defendant.” Sickels, 982 N.E.2d at 1013 (citations omitted).


[10]     First, Binfet argues that his Sixth Amendment right of confrontation was

         violated when the trial court allowed the detective to testify concerning his

         transactions with Brockleman and Brockleman’s sale of the copper and

         aluminum scrap to Sam Winer’s. Also, over Binfet’s continuing objection, the

         trial court admitted State’s Exhibits One through Fourteen, which are records

         of Brockleman’s sales to Sam Winer’s on the dates that Binfet sold Valmont’s

         copper or aluminum scrap. The trial court utilized these exhibits to calculate the

         restitution judgment.


[11]     The Sixth Amendment right of confrontation does not apply to proceedings that

         are not criminal prosecutions. See Smith v. State, 971 N.E.2d 86, 89 (Ind. 2012).


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         This includes probation revocation and sentencing hearings. See id; Debro v.

         State, 821 N.E.2d 367, 374 (Ind. 2005). Similarly, restitution hearings are not

         criminal prosecutions; therefore, the trial court properly overruled Binfet’s

         objection to the admission of the detective’s testimony and accompanying

         exhibits on Sixth Amendment grounds.


[12]     Moreover, hearsay evidence is admissible at sentencing and restitution

         hearings. See Ladd v. State, 710 N.E.2d 188, 182 (Ind. Ct. App. 1999) (citing

         Kotsopoulos v. State, 654 N.E.2d 44, 46-47 (Ind. Ct. App. 1995)); Ind. Evid. Rule

         101(c)(2). However, the defendant must be given the opportunity to refute any

         information he claims is inaccurate. Cloum v. State, 779 N.E.2d 84, 92 (Ind. Ct.

         App. 2002); see also Moyer v. State, 796 N.E.2d 309, 313 (Ind. Ct. App. 2003)

         (observing that a criminal defendant is “entitled to be sentenced only on the

         basis of accurate information”).


[13]     In this case, Binfet was given the opportunity to cross-examine both the

         investigating detective and the representative from Valmont Industries, who

         testified at the restitution hearing. Also, Binfet testified concerning the amount

         of money he received after he stole and sold Valmont’s copper and aluminum

         scrap. Therefore, Binfet had the opportunity to present his own evidence to

         attempt to refute the State’s calculation of the restitution owed. The trial court

         also specifically concluded that the investigating detective’s testimony was

         reliable hearsay. Tr. p. 29.




         Court of Appeals of Indiana | Memorandum Decision 20A03-1412-CR-442 | September 30, 2015   Page 5 of 8
[14]     Binfet also argues that the trial court’s restitution order in the amount of

         $27,974.57 is not supported by sufficient evidence. “A restitution order must be

         supported by sufficient evidence of actual loss sustained by the victim or victims

         of a crime.” Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct. App. 2008), trans. denied.

         The amount of actual loss is a factual matter that can be determined only upon

         the presentation of evidence, and a trial court's order of restitution is reviewed

         for an abuse of discretion. Id. We will affirm the trial court's order if it is

         supported by sufficient evidence. Id.


[15]     The detective who investigated Binfet’s theft testified that he interviewed

         Brockleman and his employees and the employees from Sam Winer’s & Co.,

         the scrapyard that bought Valmont Industries’s copper and aluminum scrap

         from Brockleman. From those interviews, the detective obtained “scrap

         tickets,” which were admitted into evidence as State’s Exhibits One through

         Fourteen. The detective re-interviewed Brockleman after he obtained the scrap

         tickets to confirm that the load of copper or aluminum scrap sold to Sam

         Winer’s on the date noted on the ticket was scrap obtained from Valmont

         Industries. See e.g. tr. p. 26. For each of the fourteen transactions represented in

         Exhibits One through Fourteen, the detective testified that Binfet was the only

         employee from Valmont Industries from whom Brockleman bought the copper

         and aluminum scrap. Tr. p. 45.

[16]     The only evidence that the copper or scrap aluminum that Brockleman sold to

         Sam Winer’s came from Valmont Industries, was the detective’s testimony

         relaying what Brockleman and his employees reported to the detective. The

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         detective admitted he had no personal knowledge that the copper and scrap

         aluminum sold to Sam Winer’s as represented on Exhibits One through

         Fourteen belonged only to Valmont Industries.


[17]     However, “[e]vidence 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.’” S.G. v. State, 956 N.E.2d 668, 683 (Ind. Ct. App.

         2011) (citation omitted). The investigating detective personally spoke to

         Brockleman, his employees, and employees of Sam Winer’s & Co. He also

         obtained the “scrap tickets” directly from Sam Winer’s. From this evidence, the

         trial court had a reasonable basis for estimating Valmont Industries’ loss. For

         these reasons, we conclude that sufficient evidence supports the trial court’s

         $27,974.57 restitution judgment.


[18]     Finally, Binfet, who is gainfully employed, argues he is financially unable to

         pay $300 per month toward the restitution judgment.1 Binfet’s monthly income

         is $2975.05, and his total expenses are $2573.94; therefore, his income exceeds

         his expenses by $401.11 per month. Binfet has the ability to pay restitution, and

         the trial court acted within its discretion when it ordered him to pay $300 per




         1
           Binfet’s reliance on Indiana Code section 24-4.5-5-105 to argue that the trial court should have ordered him
         to pay only $229.45 per month based on his weekly wage is unavailing. As the State appropriately notes in its
         brief, civil creditor remedies concerning garnishment do not apply to a criminal restitution order. See Ind.
         Code § 24-4.5-1-201 (stating “this article applies to sales, leases, and loans made in this state and to
         modifications, including refinancings, consolidations, and deferrals, made in this state, of sales, leases, and
         loans, wherever made”).

         Court of Appeals of Indiana | Memorandum Decision 20A03-1412-CR-442 | September 30, 2015            Page 7 of 8
         month toward the $27,974.57 restitution judgment. At a rate of $300 per month,

         Binfet will pay the restitution judgment in full in 7 years and 10 months.

[19]     Affirmed.


         Baker, J., and Bailey, J., concur.




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