MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                             Feb 08 2017, 8:47 am
regarded as precedent or cited before any
                                                                      CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                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                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Justine Archer,                                          February 8, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1606-CR-1444
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Travis Sandifur,
Appellee-Plaintiff.                                      Commissioner
                                                         Trial Court Cause No.
                                                         49G05-1602-F6-5142



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1444 | February 8, 2017   Page 1 of 8
                                           Case Summary
[1]   Justine Archer (“Archer”) appeals a restitution order following her plea of

      guilty to Auto Theft, a Level 6 felony.1 She presents the issue of whether the

      trial court abused its discretion because the order is not supported by sufficient

      evidence. We reverse and remand for a new restitution hearing.



                                Facts and Procedural History
[2]   On February 9, 2016, the State of Indiana charged Archer as follows:

                 On or about February 5, 2016, JUSTINE N ARCHER did
                 knowingly exert unauthorized control over the motor vehicle of
                 Robin Boyer, to-wit: 2003 Chevrolet; with the intent to deprive
                 the person of the vehicle’s value or use[.]


      (App. at 16.) On March 31, 2016, Archer and the State appeared in open court

      and advised that they had reached a plea agreement with respect to the charged

      offense. The plea agreement indicated that the State would recommend a 545-

      day sentence with 180 days to be served on home detention and the balance

      suspended to probation. Additionally, the agreement provided:


                 $_____ to Robin Boyer, NCO with Robin Boyer, 80 hours CSW,
                 AMS upon completion of all CSW and full restitution with no




      1
          Ind. Code § 35-43-4-2.5(b)(1).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1444 | February 8, 2017   Page 2 of 8
              violations. Any outstanding CSW shall be waived upon full
              payment of restitution.


      (App. at 29.)


[3]   The trial court accepted Archer’s plea of guilty, establishing a factual basis as

      follows:

              Prosecutor: If this had proceeded to trial the State of Indiana
              would have proven beyond a reasonable doubt that in Marion
              County, Indiana, on or about February 5th, 2015, Justine Ann
              Archer did knowingly exert unauthorized control over the
              vehicle of Robin Boyer, to-wit, a 2013 [sic] Chevrolet with the
              intent to deprive the person of any value of the vehicle’s value or
              use. All of which is contrary to the statute against the peace and
              dignity of the State of Indiana.


              Court: And are those facts correct?


              Archer: Yes.


      (Tr. at 11-12.) Archer was sentenced in accordance with the State’s

      recommendation of 545 days, with 180 days on home detention and the

      balance suspended to probation. The trial court advised: “If the parties cannot

      reach an agreement on restitution by May the 5th, then I’m going to set this …

      for a hearing on restitution at which time we will determine the restitution

      amount.” (Tr. at 13.)


[4]   On June 16, 2016, the State, Archer, and the victim, Robin Boyer, appeared for

      a restitution hearing. Boyer testified that she received her vehicle back five

      Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1444 | February 8, 2017   Page 3 of 8
      hours after she discovered it missing. By that time, “the entire front” had been

      spray painted red. (Tr. at 20.) The State submitted into evidence an estimate

      from a body shop indicating that restoration would cost $5,240.32. The State

      also submitted into evidence a Kelley Blue Book estimate of value for a 2003

      Chevrolet Trail Blazer. The report indicated a fair market range of $3,853 to

      $5,730 and a suggested retail price of $5,251. Archer submitted into evidence

      estimates ranging from a trade-in value of $2,145 to a private party sale value of

      $3,591. The trial court ordered that Archer pay $5,240.32 in restitution. She

      now appeals.



                                 Discussion and Decision
[5]   At the outset, we address the State’s contention that Archer cannot appeal the

      restitution order because she affirmatively waived that right. The plea

      agreement included Archer’s acknowledgement:

              that he [sic] hereby waives the right to appeal any sentence
              imposed by the Court, including the right to seek appellate
              review of the sentence pursuant to Indiana Appellate Rule 7(B),
              so long as the Court sentences the Defendant within the terms of
              this plea agreement.


      (App. at 31.)


[6]   It is well-settled that plea agreements are in the nature of contracts entered into

      between the defendant and the State. Lee v. State, 816 N.E.2d 35, 38 (Ind.

      2004). If the court accepts a plea agreement, it shall be bound by its terms.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1444 | February 8, 2017   Page 4 of 8
      Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind. 1994). “In order to avoid

      mistakes and misrepresentations with regard to such a binding agreement,

      counsel should reduce to writing all terms of a plea agreement.” Griffin v. State,

      756 N.E.2d 572, 574 (Ind. Ct. App. 2001), trans. denied.


[7]   Here, while the parties settled upon other terms of the sentence, they simply left

      the amount of restitution as a blank item in the plea agreement. The amount of

      restitution was not fixed nor did the parties specifically agree to give the trial

      court the discretion to determine the amount of restitution without any prospect

      for appellate review. We cannot say that the restitution amount constitutes a

      “sentence within the terms of the plea agreement” such that Archer agreed to

      forgo its appeal.2 (App. at 31.)


[8]   Archer challenges the restitution order as unsupported by the evidence.

      Specifically, she observes that she pled guilty to theft, not criminal mischief,

      and argues that the State failed to meet its burden of showing the amount of the

      loss incurred as a result of the particular conduct of theft.


[9]   Indiana law authorizes the trial court to order restitution for damages incurred

      “as a result of the crime.” Ind. Code § 35-50-5-3(a). Because restitution is

      penal in nature, the statute providing for restitution must be strictly construed




      2
        We cannot accept the State’s rationale that there is no practical difference between the sentencing
      components of incarceration and restitution. The terms of incarceration are strictly circumscribed by statute;
      thus, if a term of incarceration is left “open,” our Legislature has provided parameters. On the other hand,
      restitution is not circumscribed by a statutory cap. Allowing “open” restitution to become a non-appealable
      term in an agreement could incentivize the use of a blank check with no recourse.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1444 | February 8, 2017            Page 5 of 8
       against the State to avoid enlarging it beyond the fair meaning of the language

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


[10]   An order of restitution is within the trial court’s discretion and will be reversed

       only for an abuse of that discretion. Kays v. State, 963 N.E.2d 507, 509 (Ind.

       2012). A trial court abuses its discretion when its decision is clearly against the

       logic and effect of the facts and circumstances or when the trial court has

       misinterpreted the law. Dull v. State, 44 N.E.3d 823, 829 (Ind. Ct. App. 2015).


[11]   “The 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.”

       Pearson v. State, 883 N.E.2d 770, 772 (Ind. 2008). “Restitution also serves to

       compensate the offender’s victim.” Id. The restitution order must reflect the

       actual loss suffered by the victim, which is a factual matter that can only be

       determined by the presentation of evidence. Smith v. State, 990 N.E.2d 517, 520

       (Ind. Ct. App. 2013), trans. denied. A restitution order is sufficiently supported if

       there is a reasonable basis for estimating loss and the fact-finder is not required

       to engage in speculation or conjecture. Guzman v. State, 985 N.E.2d 1125, 1130

       (Ind. Ct. App. 2013) (quotation omitted). The victim’s in-court testimony may

       be sufficient to support a restitution order. Blixt v. State, 872 N.E.2d 149, 153-54

       (Ind. Ct. App. 2007).


[12]   Here, “the crime” was Auto Theft. The factual basis for that crime, upon

       which the trial court could award restitution, is that “Archer did knowingly

       exert unauthorized control over the vehicle of Robin Boyer … with intent to


       Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1444 | February 8, 2017   Page 6 of 8
       deprive [Boyer] … of the vehicle’s value or use.” (Tr. at 11.) At the restitution

       hearing, the State asked Archer if she drove the Chevy and “saw” red spray

       paint “all over the truck.” (Tr. at 39.) The State did not otherwise develop facts

       that would arguably support the restitution order based upon spray paint

       damage. On appeal, the State invites us to fill in evidentiary gaps by assuming

       that Archer spray-painted Boyer’s vehicle in the course of the auto theft.


[13]   The conduct to which Archer pled guilty was the theft of Boyer’s 2003 Chevy.

       The trial court’s conclusion that all the costs of repair and replacement items

       enumerated in State’s Exhibit 1 (repair estimate) are attributable to the theft

       goes beyond the evidence of record. We find the order for the payment of

       $5,240.32 to be an abuse of discretion under these circumstances. See e.g., Dull,

       44 N.E.3d at 832 (“Because Dull did not plead guilty to committing theft of

       Beshears’s grain prior to the summer of 2013 and because he did not agree to

       pay restitution for grain sold prior to that time period, the trial court abused its

       discretion by ordering him to do so.”); 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 a conviction.”);

       Polen v. State, 578 N.E.2d 755, 757 (Ind. Ct. App. 1991) (holding that the trial

       court erred in ordering restitution in an amount greater than sums involved in

       those crimes to which Polen actually pled guilty), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1444 | February 8, 2017   Page 7 of 8
                                                   Conclusion
[14]   We remand for a hearing on the actual loss Boyer suffered as a result of

       Archer’s theft of her vehicle.3


[15]   Reversed and remanded.


       Najam, J., and May, J., concur.




       3
        In Iltzsch v. State, 961 N.E.2d 55, 57 (Ind. 2013), our supreme court observed that a remand for new
       evidence pertinent to restitution is not, in appropriate circumstances, allowing a “second bite at the apple.”
       Here, where Archer agreed to pay restitution, we conclude that remand is appropriate.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1444 | February 8, 2017              Page 8 of 8
