MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                  Jan 18 2017, 8:58 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                             CLERK
                                                                  Indiana Supreme Court
court except for the purpose of establishing                         Court of Appeals
                                                                       and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kristin A. Mulholland                                    Curtis T. Hill, Jr.
Appellate Public Defender                                Attorney General of Indiana
Crown Point, Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

John Paul Garcia,                                        January 18, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A04-1607-CR-1738
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Diane Ross
Appellee-Plaintiff.                                      Boswell, Judge
                                                         Trial Court Cause No.
                                                         45G03-1303-FC-41



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A04-1607-CR-1738 | January 18, 2017   Page 1 of 7
                                           Case Summary
[1]   John Paul Garcia (“Garcia”) appeals a restitution order following his plea of

      guilty to Forgery, a Class C felony.1 He presents the sole 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]   The relevant facts were summarized by a panel of this Court in Garcia’s prior

      appeal, which challenged both his sentence and a restitution order:2

                 On several occasions in early 2009, Garcia sold to Bruce
                 Petrovich silver dollar coins purporting to be issued by the
                 United States Department of the Treasury. After purchasing the
                 coins, Petrovich had them tested for authenticity and discovered
                 they were counterfeit. Petrovich said Garcia “conned [him] out
                 of all [his] life savings” by selling him the coins, which amounted
                 to $360,000.00. Transcript at 31.


                 The State charged Garcia with forgery and theft, both Class C
                 felonies, and counterfeiting, a Class D felony. The State and
                 Garcia reached a plea agreement pursuant to which Garcia
                 would plead guilty to forgery, the State would dismiss the



      1
          Ind. Code § 35-43-5-2.
      2
       On January 8, 2015, Garcia and the State filed with the trial court a “Stipulated Plea and Agreement” in
      two cause numbers, No. 45G03-1303-FC-00041 and 45G03-1302-FC-00020. (App. at 51.) Garcia agreed to
      plead guilty to one count of forgery in each cause number. On February 6, 2015, Garcia was sentenced in
      Cause No. 45G03-1303-FC-00041, receiving a sixty-six month sentence to be served concurrently with that
      imposed in Cause No. 45G03-1302-FC-00020. The trial court also ordered restitution in the amount of
      $360,000.00. The February 6, 2015 order was the order on appeal.

      Court of Appeals of Indiana | Memorandum Decision 45A04-1607-CR-1738 | January 18, 2017        Page 2 of 7
              remaining counts, and the parties agreed “they are free to fully
              argue their respective positions as to the sentence to be imposed
              by the Court; [h]owever, there shall be a cap of [s]ixty six (66)
              months (or 5.5 years).” Appendix at 46. The trial court accepted
              Garcia’s guilty plea, and following a sentencing hearing at which
              both Garcia and Petrovich gave statements, sentenced him to
              sixty-six months in [the] DOC. The trial court also entered a
              judgment in the amount of $360,000.00 against Garcia in favor of
              Petrovich.


      Garcia v. State, No. 45A03-1503-CR-85, slip op at 2-3 (Ind. Ct. App. Nov. 18,

      2015). Garcia’s sentence was affirmed. However, this Court remanded the

      matter for a new restitution hearing after observing that the restitution order

      was supported only by Petrovich’s unsworn statement unaccompanied by

      documentation. Id. at 8.


[3]   At a hearing on remand, Petrovich was placed under oath and testified that

      Garcia owed him $360,000.00. The trial court ordered Garcia to pay

      $265,000.00 in restitution. The trial court derived that sum by adding

      Petrovich’s checks for a series of cash withdrawals and deducting $3,000.00, the

      sales price of a diamond ring that Garcia gave Petrovich. This appeal ensued.



                                 Discussion and Decision
[4]   Garcia challenges the $265,000.00 restitution order as unsupported by the

      evidence and requests that we remand the case for an additional hearing. In the

      Stipulated Factual Basis for his guilty plea, incorporated into the plea




      Court of Appeals of Indiana | Memorandum Decision 45A04-1607-CR-1738 | January 18, 2017   Page 3 of 7
      agreement,3 Garcia and the State stipulated that Garcia sold fake Morgan silver

      dollars to Petrovich. Garcia argues that the State failed to meet its burden of

      showing the amount of the loss incurred as a result of that particular conduct,

      where Petrovich testified as to his aggregate loss and the State produced copies

      of numerous small coins previously submitted for authentication.


[5]   A trial court has the authority to order a defendant convicted of a crime to

      make restitution to the victim of the crime. Ind. Code § 35-50-5-3(a). 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).


[6]   “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



      3
       Paragraph 6, sub-paragraph I. provides: “Attached hereto and incorporated herein as Exhibit ‘A’ is the
      Stipulated Factual Basis.” (App. at 46.)

      Court of Appeals of Indiana | Memorandum Decision 45A04-1607-CR-1738 | January 18, 2017          Page 4 of 7
      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).


[7]   The Stipulated Factual Basis, with reference to Cause No. 45G03-1303-FC-

      00041, provides in relevant part:


              That between February 5, 2009 and June 6, 2009, John P. Garcia
              sold Morgan silver dollars to Bruce Petrovich at locations located
              in Schererville and Highland, Lake County, Indiana.


              That Bruce Petrovich subsequently had these coins tested to
              determine their authenticity which determined they were fake
              coins.


              That John P. Garcia did, with intent to defraud, make utter or
              possess these coins in such a manner that they purport to have
              been made by the United States Department of the Treasury.


      (App. at 48.) The Stipulated Factual Basis was incorporated into the plea

      agreement. The plea agreement did not specifically address restitution.


[8]   At the restitution hearing, Petrovich testified, without specificity, that he had

      purchased coins from Garcia and that he had taken cash withdrawals from his

      retirement account for that purpose. He produced bank records indicating that

      he had made withdrawals aggregating to $268,000.00. When asked on cross-

      examination if he knew what he had paid Garcia for Morgan silver dollars,

      Petrovich responded: “For Morgan Silver Dollars specifically, no, there was no

      Court of Appeals of Indiana | Memorandum Decision 45A04-1607-CR-1738 | January 18, 2017   Page 5 of 7
       specific price on any one coin. It was a group of coins was so much money.”

       (Tr. at 29.) Some copies of fake coins were produced, not limited to Morgan

       silver dollars.


[9]    At the conclusion of the hearing, the trial court ordered restitution and

       explained the basis for its calculation:


               So between the sworn testimony, the documentation that’s been
               provided today, the Court is confident that those checks made
               out to cash were for the purchase of these silver dollars. And I’m
               gonna order two hundred and sixty-five thousand dollars in
               restitution. That accounts for the discrepancy in the addition of
               the checks. It accounts for the three thousand dollars that the
               victim says he received for the ring, for the diamond ring that he
               was able to sell.


       (Tr. at 40.)


[10]   The conduct to which Garcia pled guilty was the selling of fake Morgan silver

       dollar coins with intent to defraud, not to the selling of other coins. The trial

       court’s conclusion that all the cash withdrawal amounts were “for the purchase

       of silver dollars” is contrary to the testimonial and documentary evidence. We

       find the order for the payment of $265,000.00 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


       Court of Appeals of Indiana | Memorandum Decision 45A04-1607-CR-1738 | January 18, 2017   Page 6 of 7
       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.



                                               Conclusion
[11]   We remand for a hearing on the actual loss Petrovich suffered as a result of

       Garcia’s forgery and sale of Morgan silver dollars.


[12]   Reversed and remanded.


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




       Court of Appeals of Indiana | Memorandum Decision 45A04-1607-CR-1738 | January 18, 2017   Page 7 of 7
