MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D), this                        Dec 14 2018, 9:40 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                      CLERK
                                                                    Indiana Supreme Court
purpose of establishing the defense of res judicata,                   Court of Appeals
                                                                         and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark K. Leeman                                           Curtis T. Hill, Jr.
Logansport, Indiana                                      Attorney General of Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Peggy Campbell,                                          December 14, 2018
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         18A-CR-1273
        v.
                                                         Appeal from the Cass
State of Indiana,                                        Superior Court
Appellee-Plaintiff.                                      The Honorable James K.
                                                         Muehlhausen, Judge
                                                         Trial Court Cause No.
                                                         09D01-1702-F6-77



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1273 | December 14, 2018           Page 1 of 6
                                  STATEMENT OF THE CASE
[1]   Appellant-Defendant, Peggy Campbell (Campbell), appeals from the trial

      court’s restitution order entered following her guilty plea to exploitation of an

      endangered adult, a Level 6 felony, Ind. Code § 35-46-1-12(a).


[2]   We affirm in part, reverse in part, and remand with instructions.


                                                       ISSUE
[3]   Campbell presents one issue on appeal, which we restate as: Whether the trial

      court abused its discretion when it ordered her to pay the victim $10,900 in

      restitution.


                         FACTS AND PROCEDURAL HISTORY
[4]   In 2016, Campbell worked as a home health care worker providing daily living

      support to W.B. in W.B.’s home. W.B. was ninety-five years old and had

      dementia. From January 4, 2016, to November 15, 2016, Campbell and her

      husband cashed checks that they either wrote for W.B. to sign or had W.B.

      herself sign over to them. 1 Campbell cashed forty-four checks totaling $8,200.

      W.B.’s daughter, B.E., who lived out-of-state, visited in November of 2016 and

      found her mother to be living in unsanitary conditions, including a bed bug




      1
          Campbell’s husband was also criminally charged for this conduct.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1273 | December 14, 2018   Page 2 of 6
      infestation. B.E. also examined her mother’s financial records and discovered

      Campbell’s theft.


[5]   On February 22, 2017, the State filed an Information, charging Campbell with

      exploitation of an endangered adult, a Level 6 felony; and neglect of a

      dependent, a Level 6 felony. On March 29, 2018, Campbell pleaded guilty to

      the exploitation charge pursuant to an agreement whereby the State dismissed

      the neglect of a dependent charge. While establishing a factual basis for her

      plea, Campbell stated that, as W.B.’s home health care worker, she was

      instructed not to touch W.B. Campbell’s plea agreement provided that

      “[s]entences and restitution shall be argued.” (Appellant’s App. Vol. II, p. 65).


[6]   The pre-sentence investigation report (PSI) filed in advance of Campbell’s

      sentencing hearing contained a victim’s questionnaire completed by B.E., who

      requested $10,900 in restitution. On April 24, 2018, the trial court held

      Campbell’s sentencing hearing. The State presented evidence showing that

      Campbell cashed $8,200 in checks written on W.B.’s account. Campbell denied

      being responsible for infesting W.B.’s home with bed bugs, but she agreed to

      pay $8,200 in restitution. The State requested that the trial court order

      Campbell to pay $10,900, which consisted of the $8,200 Campbell had stolen

      from W.B. and $2,700 of “cleanup cost” that W.B.’s family incurred addressing

      the condition of her home. (Transcript Vol. II, p. 66). The trial court sentenced

      Campbell to 912 days, with 547 of those days suspended to probation. The trial

      court also ordered Campbell to pay W.B. $10,900 in restitution.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1273 | December 14, 2018   Page 3 of 6
[7]    Campbell now appeals. Additional facts will be added as necessary.


                               DISCUSSION AND DECISION
[8]    Campbell appeals from the trial court’s restitution order. A restitution order

       lies within a trial court’s discretion, and we will reverse such an order only

       where there has been an abuse of that discretion. Dull v. State, 44 N.E.3d 823,

       829 (Ind. Ct. App. 2015). An abuse of the trial court’s discretion occurs when

       its decision is clearly against the logic and effect of the facts and circumstances

       or when the trial court has misinterpreted the law. Id.


[9]    A trial court may order a defendant to make restitution to the victim based on

       consideration of “property damages of the victim incurred as a result of the crime .

       . . ” Ind. Code § 35-50-5-3(a)(1) (emphasis added). However, absent an

       agreement by the defendant, a trial court may not order restitution in an

       amount greater than that involved in the crimes to which a defendant has

       pleaded guilty. Polen v. State, 578 N.E.2d 755, 756-58 (Ind. Ct. App. 1991),

       trans. denied; see also Dull, 44 N.E.3d at 832 (collecting cases on this principle

       and reversing a restitution order based partially on uncharged conduct where

       defendant did not agree to pay a greater amount).


[10]   Here, Campbell pleaded guilty to the exploitation charge based on her theft of

       money from W.B. Campbell did not plead guilty to the neglect of a dependent

       charge, and, at her guilty plea and sentencing hearings, she denied neglecting

       W.B. In addition, Campbell did not agree to pay an amount of restitution

       greater than the $8,200 she stole from W.B. Contrary to the State’s contention

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1273 | December 14, 2018   Page 4 of 6
       on appeal, the term of Campbell’s plea agreement that provided that the parties

       would argue restitution at sentencing did not constitute an agreement on her

       part to pay restitution for a crime to which she did not plead guilty. See Kinkead

       v. State, 791 N.E.2d 243, 246 (Ind. Ct. App. 2003) (holding that plea agreement

       term that the parties would argue restitution at sentencing was not an

       agreement by defendant to pay restitution amount greater than that resulting

       from his crime), trans. denied.


[11]   Therefore, we conclude that the trial court abused its discretion when it ordered

       Campbell to pay $2,700 based on cleanup costs which were not associated with

       the exploitation charge to which Campbell pleaded guilty. Polen, 578 N.E.2d at

       756-58; Dull, 44 N.E.3d at 832. We affirm the trial court’s restitution order of

       $8,200 based on the exploitation charge, we reverse the trial court’s restitution

       order of $2,700 based on cleanup costs unrelated to the exploitation charge, and

       we remand with instruction to the trial court to enter a corrected restitution

       order consistent with this opinion.


                                             CONCLUSION
[12]   Based on the foregoing, we conclude that the trial court abused its discretion

       when it entered its restitution order of $10,900. We affirm the trial court’s

       restitution order in the amount of $8,200, reverse as to the additional $2,700,

       and remand with instruction that the trial court enter a corrected restitution

       order consistent with this opinion.


[13]   Affirmed in part, reversed in part, and remanded.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1273 | December 14, 2018   Page 5 of 6
[14]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1273 | December 14, 2018   Page 6 of 6
