MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),                                 Apr 29 2016, 9:31 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
court except for the purpose of establishing                                 and Tax Court

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Benjamin Loheide                                         Gregory F. Zoeller
Law Office of Benjamin Loheide                           Attorney General of Indiana
Columbus, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Andrew Tyler Fisher,                                     April 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         03A01-1510-CR-1768
        v.                                               Appeal from the Bartholomew
                                                         Circuit Court
State of Indiana,                                        The Honorable Stephen R.
Appellee-Plaintiff.                                      Heimann, Judge
                                                         Trial Court Cause No.
                                                         03C01-1411-F5-5142



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 03A01-1510-CR-1768 | April 29, 2016           Page 1 of 9
[1]   At some point on or before September 7, 2014, Appellant-Defendant Andrew

      Tyler Fisher broke into the Bartholomew County home of Alfred Catlin and

      stole over $100,000.00 worth of tools and other personal property. As a result

      of Fisher’s actions, Appellee-Plaintiff the State of Indiana (the “State”) charged

      Fisher with Level 5 felony burglary and Level 6 felony theft. Fisher pled guilty

      to Level 6 felony theft on August 17, 2015. Pursuant to the terms of Fisher’s

      plea agreement, Fisher agreed to pay restitution to Catlin and the State agreed

      to dismiss the Level 5 felony burglary charge. The trial court accepted Fisher’s

      guilty plea, sentenced Fisher to a term of two years, with one year executed in

      the Bartholomew County Jail and one year suspended to probation, and

      ordered Fisher to pay $124,740.00 in restitution to Catlin.


[2]   On appeal, Fisher contends that the trial court abused its discretion in ordering

      him to pay restitution to Catlin. Specifically, Fisher argues that the evidence is

      insufficient both to support the amount of the restitution order and to

      demonstrate that he has the ability to pay restitution. Concluding that the trial

      court did not abuse its discretion in ordering Fisher to pay $124,740.00 in

      restitution to Catlin, we affirm.



                            Facts and Procedural History
[3]   In September of 2014, Alfred Catlin was away from his home in Bartholomew

      County. On September 7, 2014, Catlin’s neighbor noticed that Catlin’s garage

      door was ajar. It was subsequently determined that over $100,000.00 worth of

      tools and other personal property had been stolen from Catlin’s home. The

      Court of Appeals of Indiana | Memorandum Decision 03A01-1510-CR-1768 | April 29, 2016   Page 2 of 9
      stolen property had been amassed by Catlin over thirty years of work, including

      running his own engine building business.


[4]   The theft was linked to Fisher and his co-defendant after they tried to sell some

      of the stolen items. Fisher admitted that he and his co-defendant had loaded a

      twenty-seven- or thirty-two-foot-long U-Haul truck full of Catlin’s tools and

      property. While some of Catlin’s property was subsequently recovered from

      Fisher’s co-defendant’s home, a large amount of the property was never

      recovered.


[5]   On November 10, 2014, the State charged Fisher with Level 5 felony burglary

      and Level 6 felony theft. Fisher pled guilty to Level 6 felony theft on August

      17, 2015. Pursuant to the terms of Fisher’s plea agreement, Fisher agreed to

      pay restitution to Catlin and the State agreed to dismiss the Level 5 felony

      burglary charge. The trial court subsequently accepted Fisher’s guilty plea and

      sentenced him to a term of two years, with one year executed in the

      Bartholomew County Jail and one year suspended to probation. The trial court

      also ordered that Fisher

              shall make restitution to [Catlin] in the amount of One Hundred
              Twenty Four Thousand Seven Hundred Forty Dollars
              ($124,740.00). Said restitution shall be paid at the rate of Fifty
              Dollars ($50.00) per week until paid in full. The first payment is
              due four (4) weeks after probation begins.… Restitution shall be
              owed by [Fisher] and be paid jointly and severally by all
              convicted co-defendants.


      Appellant’s App. p. 33. This appeal follows.

      Court of Appeals of Indiana | Memorandum Decision 03A01-1510-CR-1768 | April 29, 2016   Page 3 of 9
                                 Discussion and Decision
[6]   Fisher contends that the restitution order imposed by the trial court should be

      vacated because the trial court abused its discretion in ordering him to pay

      $124,700.00 in restitution to Catlin. Specifically, Fisher argues that the

      restitution order should be vacated for two reasons: (1) the evidence is

      insufficient to support the amount of restitution ordered and (2) the trial court

      did not inquire into his ability to pay. The State responds that the trial court’s

      order should be upheld because Fisher waived his appellate challenge to the

      trial court’s restitution order by agreeing to pay restitution to Catlin.

      Alternatively, the State argues that (1) the evidence is sufficient to support the

      imposed restitution order, and (2) the trial court adequately inquired into

      Fisher’s ability to pay the ordered restitution.


[7]   Pursuant to Indiana Code § 35-50-5-3, a trial court has the authority to order a

      defendant to pay restitution to the victim of a crime. “‘The purpose behind an

      order of restitution is to impress upon the criminal defendant the magnitude of

      the loss he has caused and to defray costs to the victim caused by the offense.’”

      C.H. v. State, 15 N.E.3d 1086, 1096 (Ind. Ct. App. 2014) (quoting Carswell v.

      State, 721 N.E.2d 1255, 1259 (Ind. Ct. App. 1999)), trans. denied. It is well-

      settled that a restitution order must reflect the actual loss incurred by the victim

      and that any loss proven attributable to the defendant’s charged crimes is

      recoverable as restitution. Smith v. State, 990 N.E.2d 517, 520 (Ind. Ct. App.

      2013).



      Court of Appeals of Indiana | Memorandum Decision 03A01-1510-CR-1768 | April 29, 2016   Page 4 of 9
[8]   The imposition of an order of restitution is a matter within the trial court’s

      sound discretion and will only be reversed upon a showing of an abuse of that

      discretion. Henderson v. State, 848 N.E.2d 341, 346 (Ind. Ct. App. 2006). “An

      abuse of discretion occurs when the trial court’s determination is clearly against

      the logic and effect of the facts and circumstances before the court, or the

      reasonable, probable, and actual deductions to be drawn therefrom.” C.H., 15

      N.E.3d at 1096 (citing P.J. v. State, 955 N.E.2d 234, 235 (Ind. Ct. App. 2011)).

      “Under our abuse of discretion standard, we will affirm the trial court’s decision

      if there is any evidence supporting the decision.” Smith, 990 N.E.2d at 520. If,

      however, the evidence supporting a restitution order is found lacking, the

      appropriate remedy is to remand to the trial court for additional evidence.

      Iltzsch v. State, 981 N.E.2d 55, 57 (Ind. 2013).


                                                 I. Waiver
[9]   The State argues that Fisher waived the instant challenge to the trial court’s

      restitution order because he agreed to pay restitution “as the Court might

      order.” Tr. p. 11. The State cites to our conclusion in C.H. in support of this

      argument. In C.H., we concluded that although “a number of cases have

      emphasized this Court’s preference for reviewing a trial court’s restitution order

      even absent an objection by the defendant[,]” the defendant had, nonetheless,

      waived his appellate challenge to the trial court’s restitution order by

      affirmatively agreeing to the imposition of restitution. 15 N.E.3d at 1096. We

      further concluded that C.H. “waived error by not objecting to the restitution

      order and invited error by affirmatively agreeing to the terms which he [later]

      Court of Appeals of Indiana | Memorandum Decision 03A01-1510-CR-1768 | April 29, 2016   Page 5 of 9
       argue[d] were erroneous.” Id. at 1097. Thus, because C.H. invited error, and

       invited error is not reversible error, C.H. waived his appellate challenge to the

       restitution order. Id.; see also Mitchell v. State, 730 N.E.2d 197, 200-01 (Ind. Ct.

       App. 2000) (providing that Mitchell waived his appellate challenge to the trial

       court’s restitution order by agreeing to pay restitution), trans. denied.


[10]   Here, the terms of Fisher’s plea agreement demonstrate that Fisher

       affirmatively agreed to pay restitution. In exchange, the State agreed that

       should Fisher “successfully complete his sentence/probation including payment

       of restitution to [Catlin,]” his conviction may be modified from a Level 6 felony

       to a Class A misdemeanor. Appellant’s App. p. 16. Furthermore, during the

       sentencing hearing, Fisher reiterated that he agreed to pay restitution “as the

       Court might order.” Tr. p. 10. Fisher indicated that he would be able to

       support himself and pay restitution following his release from incarceration

       because he had secured employment following release. The trial court accepted

       Fisher’s plea agreement and ordered Fisher to pay $124,700.00 in restitution to

       Catlin.


[11]   Similar to the situations presented in C.H. and Mitchell, the facts of the instant

       matter demonstrate that Fisher invited any alleged error with regard to the trial

       court’s restitution order by agreeing to pay restitution “as the Court might

       order.” Tr. p. 10. Again, invited error is not reversible error. See C.H., 15

       N.E.2d at 1097; Mitchell, 730 N.E.2d at 201. We therefore conclude that Fisher

       waived the instant appellate challenge to the trial court’s restitution order

       because he invited the claimed error by affirmatively agreeing to pay restitution.

       Court of Appeals of Indiana | Memorandum Decision 03A01-1510-CR-1768 | April 29, 2016   Page 6 of 9
                               II. Sufficiency of the Evidence
[12]   Furthermore, even if we were to determine that Fisher preserved the instant

       challenge, the record demonstrates that the evidence presented before the trial

       court is sufficient to support the trial court’s restitution order.


                                   A. Amount of Catlin’s Loss
[13]   Fisher argues that the evidence is insufficient to support the trial court’s finding

       relating to Catlin’s loss. We disagree.


[14]   “The amount of a victim’s loss is a factual matter that can be determined only

       on presentation of evidence.” Smith, 990 N.E.2d at 520 (citing Rich v. State, 890

       N.E.2d 44, 49 (Ind. Ct. App. 2008)). “Evidence supporting a restitution order

       is sufficient ‘if it affords a reasonable basis for estimating loss and does not

       subject the trier of fact to mere speculation or conjecture.’” S.G. v. State, 956

       N.E.2d 668, 683 (Ind. Ct. App. 2011) (quoting T.C. v. State, 839 N.E.2d 1222,

       1227 (Ind. Ct. App. 2005)). Again, we will affirm the trial court’s decision if

       there is any evidence supporting the decision.” Smith, 990 N.E.2d at 520.


[15]   Here, Catlin testified that the value of his lost property, i.e., the property not

       recovered, was $138,589.00. In support of this testimony, Catlin provided an

       itemized list of all of the property still missing following the recovery of some of

       the stolen items from the home of Fisher’s co-defendant. This itemized list also

       included the value of missing property. Catlin testified that the values were

       based on what he paid for the property and asserted that the values were

       accurate to “within ten percent.” Tr. p. 30. The trial court considered Catlin’s

       Court of Appeals of Indiana | Memorandum Decision 03A01-1510-CR-1768 | April 29, 2016   Page 7 of 9
       testimony and ordered restitution in the amount of $124,740.00, or ninety

       percent of the value claimed by Catlin. Because the trial court’s order was

       based on Catlin’s testimony and detailed list of the value of the missing

       property, the trial court’s order cannot be said to be based merely on

       speculation or conjecture. As such, we conclude that the trial court’s order that

       Fisher pay $124,740.00 in restitution to Catlin, which reflected the amount of

       Catlin’s loss, was supported by the evidence.


                                     B. Fisher’s Ability to Pay
[16]   Fisher also argues that the evidence is insufficient to support the trial court’s

       finding relating to whether he had the ability to pay restitution. Again, we

       disagree.


[17]   “Although the trial court must determine the defendant’s ability to pay the

       amount of restitution ordered … the statute is not specific as to the form the

       court must follow in determining the defendant’s financial status.” Smith v.

       State, 655 N.E.2d 133, 134 (Ind. Ct. App. 1995) (citing Polen v. State, 578

       N.E.2d 755, 758 (Ind. Ct. App. 1991), trans. denied and Mitchell v. State, 559

       N.E.2d 313, 315 (Ind. Ct. App. 1990), trans. denied). “Thus, an order of

       restitution is a matter within the trial court’s discretion and we will reverse only

       when an abuse of discretion occurs.” Id. (citing Vanness v. State, 605 N.E.2d

       777, 783 (Ind. Ct. App. 1992), trans. denied). We have further recognized that

       the imposition of restitution is a form of punishment and “although it may

       cause some hardship, the trial court has discretion to determine the extent of the


       Court of Appeals of Indiana | Memorandum Decision 03A01-1510-CR-1768 | April 29, 2016   Page 8 of 9
       hardship and whether the defendant can still subsist after the payments.” Id.

       (quoting Mitchell, 559 N.E.2d at 315).


[18]   Here, the trial court heard testimony from Fisher that he secured employment

       following his release from prison and that this employment would enable him

       to support himself and to pay restitution. Although the trial court did not hear

       evidence relating specifically to the amount of compensation that Fisher would

       earn from this employment, given Fisher’s testimony, we conclude that the

       evidence was sufficient to support the trial court’s finding that Fisher would be

       able to pay the relatively low amount of $50.00 per week in restitution.



                                               Conclusion
[19]   The trial court did not abuse its discretion in ordering Fisher to pay $124,740.00

       in restitution to Catlin.


[20]   The judgment of the trial court is affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1510-CR-1768 | April 29, 2016   Page 9 of 9
