Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
                                                               FILED
be regarded as precedent or cited                            Oct 31 2012, 9:09 am
before any court except for the purpose
of establishing the defense of res                                  CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
judicata, collateral estoppel, or the law                                tax court


of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

PAULA M. SAUER                                    GREGORY F. ZOELLER
Danville, Indiana                                 Attorney General of Indiana

                                                  AARON J. SPOLARICH
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

KENNETH W. GILLAND,                               )
                                                  )
        Appellant-Defendant,                      )
                                                  )
               vs.                                )       No. 32A01-1203-CR-143
                                                  )
STATE OF INDIANA,                                 )
                                                  )
        Appellee-Plaintiff.                       )


                     APPEAL FROM THE HENDRICKS SUPERIOR COURT
                             The Honorable Mark A. Smith, Judge
                                Cause No. 32D04-1007-FC-15


                                       October 31, 2012

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       Kenneth Gilland appeals the trial court’s order requiring him to pay $20,541.62 in

restitution. We affirm in part, reverse in part, and remand.

                                           Issue

       Gilland raises two issues, which we consolidate and restate as whether the trial

court properly ordered him to pay $20,541.62 in restitution.

                                           Facts

       On April 16, 2010, after injuring James Sprague in an automobile accident,

Gilland was charged with Class A misdemeanor operating a motor vehicle while

endangering a person, which was enhanced to a Class D felony based on a prior

conviction, and Class A misdemeanor driving while suspended. The State later added

charges of Class A misdemeanor operating a vehicle with an alcohol concentration

equivalent of at least .15, which was enhanced to a Class D felony based on a prior

conviction, Class D felony causing serious bodily injury when operating a motor vehicle

while intoxicated, which was enhanced to a Class C felony based on a prior conviction,

and Class D felony causing serious bodily injury when operating a vehicle with an

alcohol concentration equivalent of .08 or more, which was also enhanced to a Class C

felony based on a prior conviction.

       On October 4, 2011, a written plea agreement was filed with trial court showing

that Gilland would plead guilty to Class C felony operating a motor vehicle while

intoxicated causing serious bodily injury. The agreement specified Gilland’s sentence

and required him to pay “restitution in the amount of $9949.62 to James Sprague.” App.

                                             2
p. 86 (capitalization altered). A handwritten question mark was written by the restitution

term.

        At an October 8, 2011 change of plea hearing, the terms of the plea agreement

were discussed. On the issue of restitution, the following exchange took place:

              Court: Alright, well, let’s deal with the restitution just for a
              second. The plea agreement says ninety-nine hundred and
              forty-nine dollars and sixty-two cents. I understand from our
              discussion in chambers that there may be an issue and I just
              want to make a clear record of that, I want you to tell me what
              is going on with restitution, and I will decide what I’m going
              to do here.

              State: Judge, I think the reason why there is a dispute in the
              restitution is that there is a legal issue. Uh, Mr. Gill.., or not
              Mr. Gilland, Mr. Sprague has received a settlement, civil
              settlement from uh, the Defendant’s insurance company. And
              that he was after, everything was devyied [sic] up between
              payment to the insurance company, uh, for medical expenses,
              and to his attorney fees. He received a significant amount left
              over for pain and suffering. Um, he is now asking for an
              additional amount that is out of pocket cost, um, expenses
              that he has since incurred, uh, in addition to what was paid
              directly to the insurance company for the portion that they
              actual paid themselves. Uh, there is a case that, I think, the
              disagreement is that since he has already received a portion
              from his civil settlement, and he is now asking for additional
              money from uh, the criminal restitution, that there may be a
              legal issue uh, for you to decide. I have case law that
              supports my position that he is allowed to ask for this
              additional amount of money.

              Court: [Defense Counsel]?

              [Defense Counsel]: Judge, that is correct, it needs to be
              reviewed by the attorneys and then submitted to the Court to
              see whether or not he can get additional restitution after there
              has been a settlement through an insurance company and he
              was given a check for those issues.


                                              3
Tr. pp. 62-63. The trial court took the plea under advisement, and the parties agreed to

submit case law and brief on what the trial court characterized as the “legal issue with

regard to restitution.” Id. at 65. The trial court set the sentencing hearing for November

1, 2011, and explained that it would “review the case law on the issue of the restitution

and determine whether or not that is a valid claim for restitution, whether or not [it] can

order restitution.” Id.

          On October 14, 2011, the State submitted a notice identifying three cases in

support of its position on restitution. Gilland did not file a brief or a written response on

the issue of restitution.

          At the November 1, 2011 hearing, the State explained that it believed the hearing

was going to be legal argument about restitution and asked the trial court to accept the

plea and to set the matter for a restitution hearing. The trial court then accepted the plea,

entered judgment of conviction, and sentenced Gilland to the term specified in the plea

agreement. Defense counsel then asked the trial court to “leave the restitution amount

open right now” and to resolve it after a hearing. Id. at 80.

          The restitution hearing was eventually held on February 21, 2012.1                        Sprague

testified about his injuries and damages and about his civil settlement with Gilland’s

insurer. At this hearing, Sprague requested restitution in the amount of $4,088.04 for out-

of-pocket expenses, $5,861.58 for the difference between the purchase price and sale

price of the motorcycle he was riding at the time of the accident, and $10,800.00 for lost



1
    Gilland had previously waived his right to be present at the hearing because of his incarceration.
                                                       4
overtime wages.2 The State then argued that Sprague was entitled to receive restitution in

addition to the civil settlement.            Defense counsel argued that Sprague had been

compensated for his out of pocket expenses and the damage to his motorcycle through the

civil settlement. At the conclusion of the hearing, the trial court ordered Gilland to pay

restitution in the amount of $20,541.62 for the out-of-pocket expenses, the loss on the

sale of the motorcycle, and the lost overtime wages. Gilland now appeals.

                                                 Analysis

        On appeal, Gilland asserts that the trial court had the discretion to order restitution

for the out-of-pocket expenses and the motorcycle’s loss in value up to the plea

agreement’s cap of $9,949.62. Gilland argues, however, that the trial court violated the

terms of the plea agreement by including lost overtime wages in the restitution order

because they were not contemplated by the agreement.3 He also claims that the evidence

does not support an award of restitution for the motorcycle’s loss in value or the lost

overtime wages.

        In response, the State acknowledges that, if the amount of restitution was set in the

plea agreement, the trial court would have been required to order restitution in that

amount. The State argues, however, that the amount of restitution was not a term of the

plea agreement and was discretionary because at the November 1, 2011 hearing defense


2
   The out-of-pocket expenses and loss in value of the motorcycle total $9,949.62, the amount of
restitution specified in the written plea agreement.
3
  Gilland argues that, even though he did not object to the trial court’s inclusion of lost overtime wages in
the restitution order, it was fundamental error to do so. However, because Gilland argued throughout the
proceedings that no restitution should be ordered, the issue was properly preserved.


                                                     5
counsel requested to “leave the restitution amount open right now” and an evidentiary

hearing on restitution eventually was conducted. Tr. p. 80. The State also argues that the

evidence supports an award of restitution for the loss in value to the motorcycle and the

lost overtime wages.

       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). “[A]

plea agreement is contractual in nature, binding the defendant, the state and the trial

court.” Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind. 1994). “The prosecutor and the

defendant are the contracting parties, and the trial court’s role with respect to their

agreement is described by statute: ‘If the court accepts a plea agreement, it shall be bound

by its terms.’” Id. (quoting Ind. Code § 35-35-3-3(e)). The Pannarale court further

observed:

                        As the statute suggests, the trial court may at its
                 discretion reject the plea agreement and try the case or
                 consider any new plea agreement the parties negotiate. Once
                 it has accepted a plea agreement recommending a specific
                 sentence, however, the terms of the agreement constrain the
                 discretion the court would otherwise employ in sentencing.

                                           *****

                          Goldsmith and its progeny each uphold the principle
                 that a deal is a deal. Once it has accepted a plea agreement,
                 the sentencing court possesses only that degree of discretion
                 provided in the plea agreement with regard to imposing an
                 initial sentence or altering it later.

Id. Indiana Code Section 35-35-3-3(a) requires that a plea agreement for a felony charge

be in writing.


                                              6
        Here, the written plea agreement specifically called for “restitution in the amount

of $9949.62 to James Sprague.” App. p. 86 (capitalization altered). Although the record

reflects the parties’ intent to argue the legal propriety of any award of restitution and the

plea agreement itself has a handwritten question mark by the restitution term, 4 nothing in

the plea agreement reflects an intent to leave the amount of restitution open to the trial

court’s discretion and capped at $9,949.62.

        Had the parties intended to give the trial court discretion to determine the

appropriate amount of restitution, either capped at $9,949.62 or unlimited, they should

have included such terms in the written plea agreement. See Griffin v. State, 756 N.E.2d

572, 574 (Ind. Ct. App. 2001) (“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.”), trans. denied; Richardson v. State, 456 N.E.2d 1063, 1067 (Ind. Ct. App.

1983) (“Failure to reduce an agreement to writing, however, ‘can lead to

misapprehension, mistake, or even calculated misrepresentation.’ Thus, in the interests

of justice, the terms of such agreements should be placed of record before a sentence is

imposed on the one pleading guilty. It is incumbent on both parties to see that the

agreement’s terms are recorded accurately.” (citations omitted)). Based on the plain

language of the plea agreement, we conclude that the parties did not agree to give the trial




4
   Gilland argues that the handwritten question mark on the agreement “indicated the parties’ intent to
argue the actual amount of restitution due.” Appellant’s Br. p. 7. Given the procedural posture of this
case, however, it is unclear who put the question mark there, when it was put there, or the specific context
in which it was put there. Under these circumstances, we decline to the give the question mark any legal
effect.
                                                     7
court the discretion to determine the amount of restitution; instead, the plea agreement

fixed the amount of restitution at $9,949.62.

       Further, even if we assume the question of the legal propriety of a restitution

award was not required to be included in the written plea agreement, at all times prior to

the trial court’s acceptance of the guilty plea the record reflects the parties intent to argue

only the legal propriety of an award of restitution. The unresolved issue discussed at the

October 2011 guilty plea hearing was a legal question, which, if answered in Gilland’s

favor, would have precluded the trial court from ordering restitution at all. Thus, at most

the parties’ agreement authorized the trial court to order no restitution or to order

restitution in the amount of $9,949.62. When the trial court accepted the plea agreement,

it was bound by the terms of that agreement. See I.C. § 35-35-3-3(e); Pannarale, 638

N.E.2d at 1248. Thus, the trial court was not authorized to award restitution in the

amount of $20,547.62. See P.J. v. State, 955 N.E.2d 234, 235 (Ind. Ct. App. 2011)

(observing that, where juvenile court accepted a plea agreement calling for the payment

of a specific amount of restitution instead of leaving the amount to the court’s discretion,

the court was “strictly bound by the plea’s sentencing provisions and precluded from

exercising discretion to determine the amount of restitution”); Gipperich v. State, 658

N.E.2d 946, 950 (Ind. Ct. App. 1995) (reversing portion of sentencing order requiring

payment of fines where the accepted plea agreement contained no such provision and

only called for payment of counseling fees and costs), trans. denied.

       We are not persuaded by the State’s argument that restitution was not a term of the

plea agreement because defense counsel requested the trial court to “leave the restitution

                                                8
amount open right now”5 and an evidentiary hearing was eventually conducted. Tr. p. 80.

These events occurred after the trial court accepted the plea agreement. Without citation

to legal authority by the State, we fail to see how these events somehow altered the terms

of the accepted plea agreement so as to give the trial court the unfettered discretion to

award any amount of restitution.

       As for Gilland’s challenge to the award of restitution for the motorcycle’s loss in

value, “[w]here a plea agreement includes a defendant’s agreement to a specific sentence,

such defendant may not challenge the sentence by means of a timely or belated direct

appeal.” Sholes v. State, 878 N.E.2d 1232, 1235 (Ind. 2008). “Direct appeal challenges

to sentences following guilty pleas have been permitted only in ‘open pleas,’ that is, for

sentences following plea agreements under which the trial court exercised sentencing

discretion.” Id. Thus, because Gilland agreed that the amount of restitution would be

fixed at $9,949.62 notwithstanding the unresolved legal question, he may not argue on

appeal that the trial court abused its discretion in ordering him to pay restitution for the

loss in value to the motorcycle.

       In sum, the terms of the plea agreement specified restitution in the amount of

$9,949.49. To the extent the parties agreed to leave open the legal question regarding the

propriety of restitution, upon accepting the plea agreement, the trial court was permitted

to either deny restitution or award restitution in the amount of $9,949.62. The trial court



5
   The State seems to suggest that this request indicates an intent by Gilland to give the trial court
discretion to determine the amount of restitution. This statement, however, could also be construed as
preserving the legal question the parties had previously discussed.


                                                  9
did not have the discretion to award restitution in any other amount. Therefore, the trial

court’s award of restitution for lost-overtime wages was improper. Similarly, because the

plea agreement fixed the amount of restitution at $9,949.62, Gilland may not now

challenge the sufficiency of the evidence to support restitution for the loss in value to the

motorcycle.6      Pursuant to the terms of the plea agreement, the proper amount of

restitution is $9,949.62.

                                             Conclusion

        Because the plea agreement called for restitution in the amount of $9,949.62, the

trial court did not have the authority to order restitution in the amount of $20,541.62.

Further, because Gilland agreed to pay restitution in the amount of $9,949.62, he may not

challenge the portion of that amount that relates to the loss in value of the motorcycle on

appeal. We affirm in part, reverse in part, and remand with instructions to reduce the

restitution order to $9,949.62.

        Affirmed in part, reversed in part, and remanded.

VAIDIK, J., and MATHIAS, J., concur.




6
  Gilland does not argue on appeal that an award of restitution is legally impermissible because Sprague
received a civil settlement. In fact, he does not challenge the award of restitution for the out-of-pocket
expenses.
                                                   10
