Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                  Dec 10 2014, 6:29 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.



ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

CHRIS M. TEAGLE                                  GREGORY F. ZOELLER
Muncie, Indiana                                  Attorney General of Indiana

                                                 KATHERINE MODESITT COOPER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JEFFREY REEL,                                    )
                                                 )
        Appellant-Defendant,                     )
                                                 )
               vs.                               )       No. 05A02-1405-CR-337
                                                 )
STATE OF INDIANA,                                )
                                                 )
        Appellee-Plaintiff.                      )


                     APPEAL FROM THE BLACKFORD SUPERIOR COURT
                            The Honorable J. Nicholas Barry, Judge
                               Cause No. 05D01-1308-FD-287




                                      December 10, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge



                                      Case Summary

       Jeffrey Reel appeals his three-year sentence for one count of Class D felony theft

and the trial court’s order directing him to pay $1,364.00 in restitution. We affirm in part,

reverse in part, and remand.

                                            Issues

       The restated issues before us are:

              I.     whether the trial court properly ordered Reel to pay
                     $1,364.00 in restitution related to a count to which he
                     did not plead guilty; and

              II.    whether Reel’s sentence is inappropriate.

                                            Facts

       On or about July 29, 2013, Reel broke into two different cars, one of which was

owned by Jesse Jones and the other by John Norton, Sr. Reel stole a cell phone from

Jones’s car and a shirt from Norton’s car. The State charged Reel with two counts of Class

D felony theft and two counts of Class B misdemeanor unauthorized entry of a motor

vehicle for these incidents. It also alleged that Reel was an habitual offender.

       On February 25, 2014, Reel pled guilty to Count 1, theft, related to his theft of

Jones’s cell phone, with the State dismissing the remaining charges and habitual offender

allegation. There is no written plea agreement in the record. At the change of plea hearing,

the prosecutor stated, “Your Honor I would like to make note that, ah, restitution would be

for Count 1 and 3 but he’d only pleading to Count 1.” Tr. p. 5. Count 3 was the theft

                                              2
charge alleging Reel had stolen Norton’s shirt. The trial court then directly asked Reel,

“And then restitution, whatever that amount may be, you are agreeing to . . . pay in Count

3 even though the State has agreed to dismiss it?” Id. at 5-6. Reel responded, “Yes sir.”

Id. at 6.

        At the later sentencing hearing, the prosecutor stated, “I do have a restitution request

from the victim of, ah, John Norton, Sr. That amount is $1,364.00.” Id. at 21. There was

no evidence as to how this amount was calculated, nor any evidence of a restitution request

from Jones. Reel’s attorney originally objected to this restitution amount because he

thought it pertained to Jones, who by then was incarcerated, but withdrew the objection

when it was clarified that the restitution was to be paid to Norton. The trial court then

asked Reel’s attorney if he wanted “to be heard on the restitution amount?” Id. at 22.

Counsel responded, “No. I guess not.” Id. The trial court then sentenced Reel to a term

of three years executed and ordered him to pay $1,364.00 in restitution to Norton. Reel

now appeals.

                                           Analysis

                                        I. Restitution

        We first address Reel’s claim that the restitution order is erroneous. A trial court

may order a defendant convicted of a crime to make restitution to the crime victim. Smith

v. State, 990 N.E.2d 517, 520 (Ind. Ct. App. 2013), trans. denied. A restitution award must

reflect actual losses incurred by the victim for actions attributable to the defendant’s

charged crimes. Id. Where property loss or damage is concerned, restitution shall be based



                                               3
upon consideration of “the actual cost of repair (or replacement if repair is inappropriate) .

. . .” Ind. Code § 35-50-5-3(a)(1).

       The amount of loss is a factual matter that must be determined by the presentation

of evidence. Smith, 990 N.E.2d at 520. We will reverse a trial court’s restitution order

only for an abuse of discretion. Id. An abuse of discretion occurs if the trial court’s order

is clearly against the logic and effect of the circumstances before the court or the

reasonable, probable, and actual inferences to be drawn therefrom. Id.

       Reel first contends the trial court could not order him to pay restitution to Norton

pursuant to Count 3 of the information, which was dismissed as part of the plea agreement.

The general rule is that a trial court cannot order restitution for crimes to which a defendant

has not pled guilty, has not been convicted, or did not agree to repay as restitution. Polen

v. State, 578 N.E.2d 755, 756-57 (Ind. Ct. App. 1991), trans. denied. A defendant may

expressly agree to pay a restitution amount exceeding the amount related to a crime to

which he or she has pled guilty. See Kinkead v. State, 791 N.E.2d 243, 246 (Ind. Ct. App.

2003), trans. denied; see also In re Flatt-Moore, 959 N.E.2d 241, 244-45 (Ind. 2012)

(holding that a defendant may consent in a plea agreement to pay restitution in excess of

that provided by statute, but that it is unethical for a prosecutor to allow crime victim

complete control of plea negotiations with respect to restitution amount).

       Here, there is no written plea agreement in the record. However, at the change of

plea hearing the prosecutor stated that part of the plea bargain included Reel’s agreement

to pay restitution under both Counts 1 and 3, despite Count 3 being dismissed. The trial

court then expressly and clearly asked Reel personally, and not through counsel, whether

                                              4
he was agreeing to pay restitution under Count 3 even though it was being dismissed. Reel

responded, “Yes sir.” Tr. p. 6. We conclude that Reel’s express agreement to pay

restitution for his charged crime under Count 3, despite it being dismissed, allowed the trial

court to order restitution related to that count.

           Reel also challenges the amount of the restitution award, noting there was no

submitted evidence that Norton suffered a loss of $1,364.00.1 The State responds that Reel

waived his ability to challenge the restitution amount by failing to make any challenge to

the prosecutor’s statement that Norton had requested restitution in that amount and failing

to present any evidence on the point.

           This court and our supreme court addressed a similar issue in Iltzsch v. State, 972

N.E.2d 409 (Ind. Ct. App. 2012), summarily aff’d in part and vacated in part, 981 N.E.2d

55 (Ind. 2013). There, the defendant was ordered to pay restitution of $711.95 in property

loss and damages based solely on a victim impact statement included in a presentence

investigation report. The defendant objected to paying any restitution because he was

maintaining his innocence, but otherwise did not object to the amount of restitution. On

appeal, the defendant challenged the amount of restitution. We held that the defendant had

not waived that argument, despite his failure to make any challenge to the amount of

restitution before the trial court. Iltzsch, 972 N.E.2d at 412. We further concluded that the

victim impact statement in the presentence investigation report by itself was insufficient to

support the restitution amount because it was based on unsworn assertions, without any



1
    Again, we note that this restitution award related solely to Reel’s alleged theft of Norton’s shirt.

                                                         5
supporting documentation or testimony, and without any explanation of how the property

damage occurred or how the valuations were arrived at. Id. at 413-14. We reversed the

restitution award and held the State was not entitled to another hearing to present additional

evidence on restitution. Id. at 415.

       Our supreme court granted transfer. It summarily affirmed our holdings that the

defendant had not waived his challenge to the sufficiency of the evidence supporting

restitution and that there was in fact insufficient evidence to support it. Iltzsch, 981 N.E.2d

at 56-57. However, it disagreed with our holding that the State was precluded from

presenting additional evidence on restitution. Id. Instead, it remanded the case to the trial

court “with instructions to conduct a new restitution hearing at which the State will be

permitted to present, and Iltzsch will be allowed to confront, any additional evidence

supporting the victim’s property loss.” Id. at 57.

       Here, as in Iltzsch, Reel is not precluded on appeal from challenging the amount of

the restitution award, despite his failure to challenge the amount before the trial court.

Also, there clearly is insufficient evidence to support restitution in the amount of $1,364.00.

Indeed, there is even less evidence than was present in Iltzsch. Instead of a formal victim

impact statement that at least gave some explanation of the requested restitution amount,

there simply was a statement by the prosecutor that Norton had requested $1,364.00 in

restitution, with no explanation of how that amount related to Reel’s theft of Norton’s shirt.

Pursuant to both Iltzsch opinions, we reverse the restitution award and remand to give the

State an opportunity for a new hearing to address the amount of restitution, which must be

supported by admissible evidence from the State that is subject to confrontation by Reel.

                                              6
                                        II. Sentence

       Reel also contends that his three-year sentence is inappropriate under Indiana

Appellate Rule 7(B) in light of his character and the nature of the offense. Although Rule

7(B) does not require us to be “extremely” deferential to a trial court’s sentencing decision,

we still must give due consideration to that decision. Rutherford v. State, 866 N.E.2d 867,

873 (Ind. Ct. App. 2007). We also understand and recognize the unique perspective a trial

court brings to its sentencing decisions. Id. “Additionally, a defendant bears the burden

of persuading the appellate court that his or her sentence is inappropriate.” Id.

       The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,

and identify some guiding principles for trial courts and those charged with improvement

of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—

the aggregate sentence—rather than the trees—consecutive or concurrent, number of

counts, or length of the sentence on any individual count.” Id. Whether a sentence is

inappropriate ultimately turns on the culpability of the defendant, the severity of the crime,

the damage done to others, and myriad other factors that come to light in a given case. Id.

at 1224. When reviewing the appropriateness of a sentence under Rule 7(B), we may

consider all aspects of the penal consequences imposed by the trial court in sentencing the

defendant, including whether a portion of the sentence was suspended. Davidson v. State,

926 N.E.2d 1023, 1025 (Ind. 2010).

       Regarding the nature of the offense, Reel broke into Jones’s car and stole Jones’s

cell phone. We would agree there is nothing especially heinous about this offense.

                                              7
       However, Reel’s character warrants imposition of the maximum sentence for a

Class D felony. Reel turned eighteen in 2001. Since that time, he has accumulated

convictions for Class C felony carrying a handgun without a license, Class C felony

robbery, Class D felony escape, Class C felony possession of methamphetamine, and Class

C misdemeanor illegal possession of an alcoholic beverage. Reel was on probation for the

methamphetamine conviction at the time of this offense. He also has a child for whom he

has been ordered to pay support, but he does not pay any support and was making no effort

to find employment at the time of this offense. In sum, Reel has displayed repeated

disregard of the law and his multiple previous stints of incarceration did nothing to dissuade

him from committing the current offense. At some point, despite the apparently minor

nature of a crime, there is nothing inappropriate in imposing the maximum penalty upon a

person who has proven to be unable to obey the law for any significant period of time.

       Additionally, although Reel notes that he pled guilty, we do not believe that it

warrants a lesser sentence. In exchange for Reel’s guilty plea, the State agreed to dismiss

three other pending charges, as well as an habitual offender allegation. When a defendant

significantly benefits from a plea agreement, there is no requirement that it be considered

a positive reflection on character for sentencing purposes. See Page v. State, 878 N.E.2d

404, 409 (Ind. Ct. App. 2007), trans. denied. Such is the case here. Reel’s sentence is not

inappropriate.




                                              8
                                        Conclusion

       The restitution order of $1,364.00 is not supported by the evidence. We reverse that

order and remand for further proceedings consistent with this opinion. We find Reel’s

sentence of three years not to be inappropriate and affirm it.

       Affirmed in part, reversed in part, and remanded.

BRADFORD, J., and BROWN, J., concur.




                                             9
