                                                                Aug 23 2013, 5:34 am



FOR PUBLICATION


ATTORNEY FOR APPELLANT:                   ATTORNEYS FOR APPELLEE:

J. DIRK CARNAHAN                          GREGORY F. ZOELLER
Vincennes, Indiana                        Attorney General of Indiana

                                          ERIC P. BABBS
                                          Deputy Attorney General
                                          Indianapolis, Indiana


                            IN THE
                  COURT OF APPEALS OF INDIANA


ADAM MORRIS,                              )
                                          )
     Appellant-Defendant,                 )
                                          )
            vs.                           )       No. 14A05-1209-CR-495
                                          )
STATE OF INDIANA,                         )
                                          )
     Appellee-Plaintiff.                  )


                  APPEAL FROM THE DAVIESS SUPERIOR COURT
                      The Honorable Mark R. McConnell, Judge
                           Cause No. 14D01-0910-FC-806


                                August 23, 2013

                  OPINION ON REHEARING - FOR PUBLICATION


BARNES, Judge
       The State petitions for rehearing following our decision in Morris v. State, 985

N.E.2d 364 (Ind. Ct. App. 2013). We now issue this opinion granting rehearing on the

issue of restitution only.

       In our original decision, we held that, because the plea agreement was completely

silent on the issue of restitution, the trial court lacked the authority to order Morris to pay

$14,972.45 in restitution toward the burial expenses of Morris’s fiancée, Jennifer, who

was killed when she was thrown from the ATV that Morris was operating while

intoxicated. Morris, 985 N.E.2d at 369. For this holding we cited Sinn v. State, 693

N.E.2d 78, 80 (Ind. Ct. App. 1998). On rehearing, the State argues that we should instead

follow Huddleston v. State, 764 N.E.2d 655 (Ind. Ct. App. 2002), and Gil v. State, 988

N.E.2d 1231 (Ind. Ct. App. 2013).

       In both Huddleston and Gil, this court allowed awards of restitution following

guilty pleas even though the pleas were completely silent on the issue of restitution. See

Huddleston, 764 N.E.2d at 657; Gil, 988 N.E.2d at 1235. The reason for these holdings

was that the pleas were “open,” meaning they left sentencing entirely to the trial court’s

discretion. And, there are a number of cases stating that “‘restitution is as much a part of

a criminal sentence as a fine or other penalty.’” Pearson v. State, 883 N.E.2d 770, 773

(Ind. 2008) (quoting Miller v. State, 502 N.E.2d 92, 95 (Ind. 1986)); but see Ind. Code §

35-50-5-3(a) (stating that trial court may award restitution “in addition to any sentence

imposed under this article for a felony or misdemeanor . . . .”) (emphasis added). Sinn,

by contrast, concerned a plea with a recommended sentence, not an open plea. Gil

                                              2
explicitly held that Sinn and similar cases involving guilty pleas with fixed or

recommended sentences should not apply in open plea cases. Gil, 988 N.E.2d at 1235.

Upon careful consideration, we agree that because Morris’s guilty plea was entirely open

and left his sentence entirely to the trial court’s discretion, that court was free to enter an

award of restitution as part of Morris’s sentence, in accord with Huddleston and Gil.1

        Because of our original holding, we did not address Morris’s arguments that the

restitution award was improper because it related to Jennifer’s death and because there

allegedly was insufficient evidence to support the award. The first argument is based on

the fact that the charge of Class C felony operating a vehicle while intoxicated resulting

in death was dismissed as part of the plea agreement and Morris pled guilty only to Class

A misdemeanor operating while intoxicated. At the sentencing hearing, the prosecutor

argued that Morris should be required to pay restitution for Jennifer’s funeral expenses.

The prosecutor then questioned Morris’s mother about those expenses and referred to

“Sentencing Exhibits” presented to the trial court and Morris’s attorney prior to

sentencing. App. p. 39. The trial court explicitly stated it had reviewed those documents,

which contained invoices listing a total of $14,972.45 in funeral expenses.                      These

documents were not officially introduced into evidence during the sentencing hearing.




1
  In Edsall v. State, 983 N.E.2d 200, 208-09 (Ind. Ct. App. 2013), another panel of this court seemed to
agree that Sinn’s holding applied to a case involving an open plea and precluded an award of restitution,
similar to our original opinion. However, that statement appears to have been dicta, because the panel
went on to hold that restitution was improperly awarded to the State because it was not a victim of the
crime. Id. at 209.
                                                   3
       At no time did Morris lodge any objection to being asked to pay restitution for

those expenses, nor to the trial court’s consideration of the documents submitted before

the sentencing hearing. Generally, failure to object to an award of restitution constitutes

waiver of a challenge to the award on appeal, unless a defendant argues that the award

was fundamentally erroneous and in excess of statutory authority. See Lohmiller v. State,

884 N.E.2d 903, 915-16 (Ind. Ct. App. 2008). Morris makes no such arguments. Also, a

defendant’s failure to make a specific and timely objection to the trial court’s receipt of

evidence concerning the amount of restitution constitutes waiver of the issue on appeal.

Long v. State, 867 N.E.2d 606, 618 (Ind. Ct. App. 2007); but see Rich v. State, 890

N.E.2d 44, 48 (Ind. Ct. App. 2008), trans. denied. We decline to address Morris’s

argument that the trial court could not award restitution related to Jennifer’s death. Also,

the tendered pretrial documents, which the trial court and State referred to during the

hearing without objection, clearly constitute sufficient evidence to support the restitution

award. We therefore now affirm the award of restitution against Morris in the amount of

$14,972.45.

       Despite our grant of rehearing and ultimate affirmance of the restitution award, we

still wish to emphasize that plea agreements ideally should be more artfully drafted in

cases such as this if the State wishes to seek restitution. This is especially true here,

given the sizable restitution award and its only indirect relation to the crime to which

Morris ultimately pled guilty. See Polen v. State, 578 N.E.2d 755, 756-57 (Ind. Ct. App.

1991) (holding that restitution awards generally should not cover crimes to which a

                                             4
defendant does not plead guilty or is not convicted of, and does not explicitly agree to

pay restitution for), trans. denied.

RILEY, concurs.

BAKER, J., dissent with separate opinion.




                                            5
                                 IN THE
                      COURT OF APPEALS OF INDIANA

ADAM MORRIS,                                        )
                                                    )
         Appellant-Defendant,                       )
                                                    )
                vs.                                 )      No. 14A05-1209-CR-495
                                                    )
STATE OF INDIANA,                                   )
                                                    )
         Appellee-Plaintiff.                        )




BAKER, Judge, dissenting.

         I respectfully part ways with the majority’s decision to grant the State’s petition

for rehearing. I embrace the general notion that in most cases where there is an “open”

plea situation, the plea is silent on the issue of restitution, and the sentence is left entirely

to the trial court’s discretion, an award of restitution may be entered. Gil v. State, 988

N.E.2d 1231 (Ind. Ct. Ap. 2013); Huddleston v. State, 764 N.E.2d 655 (Ind. Ct. App.

2002).

         Although I initially intended to grant the State’s petition for rehearing in this case,

I note that Morris agreed to plead guilty to the lesser offense of class A misdemeanor

OWI, to which the plea agreement to that offense made no mention of the payment of


                                                6
restitution. Id. at 366.    And it is undisputed that the trial court’s order of restitution

regarding the payment of Jennifer’s burial expenses pertained to the charge that was

specifically dismissed under the plea agreement, i.e., operating a vehicle with a blood

alcohol equivalent of .08 or more causing death, a class C felony. (Emphasis added).

Morris v. State, 985 N.E.2d 3634, 365-66 (Ind. Ct. App. 2013).

       In my view, as we noted in our original opinion, applying the order of restitution

to the class C felony charge that was dismissed as a part of the plea bargain was error. As

a result, I vote to deny the State’s petition for rehearing. Finally, I would emphasize—as

does the majority—that “plea agreements ideally should be more artfully drafted in cases

such as this if the State wishes to seek restitution.” Slip op. at 4.




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