      MEMORANDUM DECISION
                                                                                       FILED
      Pursuant to Ind. Appellate Rule 65(D),                                      Mar 22 2017, 8:54 am

      this Memorandum Decision shall not be                                            CLERK
      regarded as precedent or cited before any                                    Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court
      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
      Victoria L. Bailey                                       Curtis T. Hill, Jr.
      Marion County Public Defender Agency                     Attorney General of Indiana
      Indianapolis, Indiana                                    Matthew B. MacKenzie
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Latosha Price,                                           March 22, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1609-CR-2010
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Amy M. Jones,
      Appellee-Plaintiff                                       Judge
                                                               Trial Court Cause No.
                                                               49G08-1507-CM-24698



      Mathias, Judge.


[1]   Latosha Price (“Price”) pleaded guilty in Marion Superior Court to Class B

      misdemeanor leaving the scene of an accident. Price’s plea agreement provided


      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2010 | March 22, 2017                Page 1 of 7
      that she would pay restitution to Jermane Douthit (“Douthit”) in an amount

      “TBD.” The trial court later determined that amount to be just short of $1,100.

      Price now denies that she owes Douthit anything.


[2]   We affirm.


                                 Facts and Procedural Posture

[3]   July 13, 2015, was a proverbially dark and stormy night. Shortly before

      midnight, Price drove her SUV into and through a stop sign and a fire hydrant

      at the intersection of Boulevard Place and 39th Street in Indianapolis. Price

      continued into the intersection without stopping then collided with a truck.

      Inside the truck were Douthit, the truck’s owner and driver, and Douthit’s six-

      year-old daughter. Price got out of her SUV and fled. A bystander gave chase

      but quickly tired and gave up. Soon after, Price’s husband arrived, inspected the

      crash, and left.

[4]   An officer of the Indianapolis Metropolitan Police Department was dispatched

      to the scene. Witnesses pointed the officer to a house down the road from the

      intersection. A different officer went to the house indicated. There, the officer

      found Price and her husband. Price explained that she ran the stop sign and fled

      from the accident because she was frightened of the storm and for her children.

      Her husband admitted to inspecting and then leaving the scene after Price came

      home but could not explain why neither he nor his wife, the driver, called the

      police.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2010 | March 22, 2017   Page 2 of 7
[5]   Price was arrested for leaving the scene of an accident causing injury, as

      Douthit’s daughter had been taken to the hospital for swelling to her forehead

      and right eye. Price’s SUV and Douthit’s truck were both towed from the

      intersection.

[6]   The State charged Price with Class A misdemeanor leaving the scene of an

      accident with bodily injury and two counts of Class B misdemeanor leaving the

      scene of an accident without reasonable effort to give notice to the owners of

      damaged property, one count for the stop sign and one for the fire hydrant.

      Price concluded a plea agreement with the State whereby she would plead

      guilty to one of the Class B misdemeanor charges, relating to the stop sign, and

      the State would dismiss the remaining charges.


[7]   The plea agreement further provided that Price would be sentenced to 180 days’

      confinement, all suspended; twenty-four hours’ community service; and

      restitution “in the amount of $ TBD [‘to be determined’] paid to Jermaine [sic]

      Douthit . . . .” Appellant’s App. p. 52. At a change of plea hearing on April 13,

      2016, Price pleaded guilty and was sentenced under the terms of the agreement.

      The court concluded, “[L]et’s do the [community service] compliance [hearing]

      in 60 days and then, State, you’ve got 30 days to get the restitution in if there is

      any; if there’s no[t], there’s not.” Tr. Vol. 2, p. 5.

[8]   A restitution hearing was held on August 10, 2016. Douthit testified that he had

      bought the truck for $4,200, but repairs to it were estimated to cost more.

      Douthit already owed the tow lot more than the truck’s value in storage fees,


      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2010 | March 22, 2017   Page 3 of 7
      and the lot had filed a lien against the truck. Douthit, intending to surrender the

      truck to the lot, therefore asked for $1,096.88 restitution, representing the

      amount he still owed on the original $4,200 purchase price. Price objected:


              [Price:]         [I]t’s my understanding that . . . restitution must be
                               represented by the damages to the vehicle; the
                               actual damages to the vehicle by the crash that
                               [was] referenced in the probable cause [affidavit]
                               and that our client plead[ed] to. They have provided
                               no proof of those damages, just verbal testimony of
                               them but no actual proof. Storage fees and the cost
                               of the vehicle are not represented by restitution. . . .

              [Court:]         [Y]ou’re asking the Court to find that no restitution
                               is required?

              [Price:]         Because of what’s been provided, no proof of
                               damages being provided; yes . . . .


      Tr. Vol. 3, pp. 6-7.


[9]   The court then addressed Douthit:


              [Court:}         On [the] day [of the crash, the truck] was worth
                               more than a thousand and ninety-eight dollars?

              [Douthit:]       Yes, sir.

              [Court:]         And how much is it worth to you now?

              [Douthit:]       Zero.


      Id. p. 7.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2010 | March 22, 2017   Page 4 of 7
[10]   The court ordered restitution in the amount requested. Price now appeals the

       restitution order, claiming she owes Douthit nothing.


                                          Standard of Review

[11]   Orders to pay restitution are within the sound discretion of the trial court.

       Bennett v. State, 862 N.E.2d 1281, 1286 (Ind. Ct. App. 2007). The trial court

       abuses that discretion by reaching a decision clearly against the logic and effect

       of the facts before it, or by application of an incorrect legal standard. Id.


                                      Discussion and Decision

[12]   Restitution may be ordered paid either to the victim of a defendant’s convicted

       criminal conduct for actual losses caused by that conduct, or with the

       defendant’s explicit agreement. Smith v. State, 44 N.E.3d 82, 86 (Ind. Ct. App.

       2015), trans. denied. Here, it is uncontested that Douthit was not the victim of

       the criminal conduct for which Price was convicted. Price pleaded guilty only to

       damaging the stop sign, while the remaining charges, including the charge for

       hitting Douthit’s truck and injuring his daughter, were dismissed.


[13]   The question, therefore, is whether Price explicitly agreed to pay Douthit

       restitution. Price claims she agreed only to allow the trial court to determine

       whether and how much she owed Douthit in restitution. Appellant’s Reply Br.

       p. 4. Price’s argument continues that she presumed, as was her right, that the

       trial court would follow the law in enforcing her agreement. Id. at p. 6. The law

       permits restitution for convicted criminal conduct causing actual loss. Id. at p.

       7. However, according to Price, the criminal conduct for which she was

       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2010 | March 22, 2017   Page 5 of 7
       convicted did not cause Douthit’s actual loss; therefore, the restitution order is

       contrary to law. Id.


[14]   According to Price’s reading of the restitution provision, she in fact “agreed” to

       nothing at all when she negotiated its terms. The trial court did not need Price’s

       permission to determine whether the criminal conduct for which she was

       convicted caused Douthit’s losses; that power was conferred on it by statute.

       Ind. Code § 35-50-5-3(a). Moreover, Price and the State both knew when she

       pleaded guilty that the damage to Douthit’s truck was not caused by her

       running into the stop sign; it was caused by her running into Douthit’s truck.

       Plea agreements are generally read like contracts. Berry v. State, 10 N.E.3d 1243,

       1247 (Ind. 2014). We will not presume that Price contracted to give the court a

       power it already had to determine a result Price and the State already knew.


[15]   It is clear to us by the terms of Price’s plea agreement, providing for

       “[r]estitution in the amount of $ TBD paid to Jermaine [sic] Douthit . . . ,” that

       Price did not simply agree to allow the trial court to determine whether she owed

       restitution. The terms are unambiguous both as to the fact and the recipient of

       the restitution; the only matter unresolved is the amount. Price was free, both at

       the restitution hearing and on appeal, to challenge Douthit’s and the trial

       court’s valuation of his truck. She did so at the restitution hearing on the

       grounds of insufficient evidence but has not done so on appeal. The State and

       Douthit do not bear the risk of loss from Price’s erroneous argument below that

       “verbal testimony” is not “actual proof”; Price does. Tr. Vol. 3, p. 6. The trial



       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2010 | March 22, 2017   Page 6 of 7
       court was within its sound discretion to credit Douthit’s testimony as to the

       value of his truck.

[16]   While Price correctly points out that plea agreements are strictly construed

       against the State, Grider v. State, 976 N.E.2d 783, 786 (Ind. Ct. App. 2012), the

       trial court did not abuse its discretion in giving Price’s plea agreement the only

       construction it reasonably bears: that Price agreed to pay Douthit restitution in

       an amount to be determined as would reflect his actual loss, notwithstanding

       that, in Price’s case, the trial court could not have ordered such restitution

       absent Price’s agreement.


                                                 Conclusion

[17]   Price agreed, as a part of her plea agreement, to pay Douthit restitution in an

       amount to be determined, and the trial court did not abuse its discretion in

       when it held Price to her plea bargain terms or when it determined Douthit’s

       actual loss. The judgment is therefore in all respects affirmed.


[18]   Affirmed.


       Baker, J., and Pyle, J., concur.




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