                                                                Aug 07 2015, 8:22 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Peter D. Todd                                              Gregory F. Zoeller
Elkhart, Indiana                                           Attorney General of Indiana

                                                           Justin F. Roebel
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Keron D. Rodgers,                                         August 7, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A03-1412-CR-438
        v.                                                Appeal from the Elkhart Superior
                                                          Court;
                                                          The Honorable Stephen R. Bowers,
State of Indiana,                                         Judge;
Appellee-Plaintiff.                                       20D02-1408-F6-77




May, Judge.




Court of Appeals of Indiana | Opinion 20A03-1412-CR-438 | August 7, 2015                 Page 1 of 5
[1]   Keron D. Rodgers appeals the order that he participate in the Victim-Offender

      Reconciliation Program (“VORP”) in lieu of the court conducting a restitution

      hearing.


[2]   We reverse and remand.


                                     Facts and Procedural History
[3]   On August 4, 2014, Elkhart police saw a car Rodgers was driving turn without

      signaling. The officer initiated a traffic stop, but Rodgers sped away, driving

      fifty to sixty miles per hour through a residential zone with a thirty mile per

      hour speed limit. The car chase ended when Rodgers ran his car into a house.

      Rodgers then fled on foot. Police found him hiding in a backyard.


[4]   Rodgers was charged with Level 6 felony resisting law enforcement, 1 Class A

      misdemeanor resisting law enforcement, 2 Class C misdemeanor leaving the

      scene of an accident, 3 and Class C misdemeanor driving without a license. 4 A

      jury found Rodgers guilty on all counts. The trial court sentenced Rodgers to

      two years for resisting law enforcement, 180 days for leaving the scene of the

      accident, and sixty days for driving without a license, all to be served




      1
          Ind. Code § 35-44.1-3-1. (2014).
      2
          Ind. Code § 35-44.1-3-1 (2014).
      3
          Ind. Code § 9-26-1-2(2) (2012); Ind. Code § 9-26-1-9 (2008).
      4
          Ind. Code § 9-24-18-1 (2013).


      Court of Appeals of Indiana | Opinion 20A03-1412-CR-438 | August 7, 2015   Page 2 of 5
      concurrently. The State requested Rodgers pay restitution through VORP. The

      court so ordered. Rodgers did not object.


                                        Discussion and Decision
[5]   The trial court erred by ordering Rodgers to participate in VORP instead of

      conducting a hearing about restitution because the order that he participate in

      VORP was not permissible under the statutes creating VORP. 5


[6]   When faced with a question of statutory interpretation, our review is de novo. In

      re M.W., 913 N.E.2d 784, 786 (Ind. Ct. App. 2009). We first decide if the

      statute is ambiguous. Id. If it is not, we need not and do not interpret it, but

      instead apply its plain and clear meaning. Id. If the statute is susceptible to

      more than one reasonable interpretation, it is ambiguous, and we must

      determine the legislature’s intent so that we can give effect to that intent.

      Maroney v. State, 849 N.E.2d 745, 748 (Ind. Ct. App. 2006). Statutes must be

      read in harmony with related statutes. St. Margaret Mercy Healthcare Ctrs., Inc. v.

      Poland, 828 N.E.2d 396, 402 (Ind. Ct. App. 2005), trans. denied. We assume the

      legislature intended for the statutory language to be applied in a logical manner




      5
       The State argues Rodgers waived this matter because he did not object at sentencing. Rodgers did not
      object in open court, but “appellate courts will review a trial court’s restitution [order] even where the
      defendant did not object based on the rationale that a restitution order is part of the sentence, and it is the
      duty of the appellate court to bring illegal sentences into compliance.” Rich v. State, 890 N.E.2d 44, 48 (Ind.
      Ct. App. 2008) (internal citations omitted), trans. denied. We accordingly choose to address Rodgers’
      argument on its merits.

      Court of Appeals of Indiana | Opinion 20A03-1412-CR-438 | August 7, 2015                             Page 3 of 5
      consistent with the statute’s underlying policy and goals. B.K.C. v. State, 781

      N.E.2d 1157, 1167 (Ind. Ct. App. 2003).


[7]   The purpose of VORP is to:

              provide an opportunity for a victim, if the accused person or the offender
              agrees, to:
                       (A) meet with the accused person or the offender in a safe,
                       controlled environment;
                       (B) give to the accused person or the offender, either orally or in
                       writing, a summary of the financial, emotional, and physical
                       effects of the offense on the victim and the victim’s family; and
                       (C) negotiate a restitution agreement to be submitted to the
                       sentencing court for damages incurred by the victim as a result
                       of the offense.
      Ind. Code § 35-40-6-4(9) (1999) (emphasis added).


[8]   The legislature has provided, through VORP, a mechanism whereby an

      offender and victim can meet to negotiate a restitution agreement that is then

      submitted to the sentencing court. However, the plain language of the statute

      provides such a meeting can occur “if the accused person or the offender

      agrees” to do so. Id. Finding no ambiguity in that phrase, we may not interpret

      it; we instead apply the plain language. In re M.W., 913 N.E.2d at 786. Thus,

      without the agreement of the offender, VORP cannot be ordered.


[9]   Rodgers did not agree to participate in VORP negotiations. We therefore

      reverse the order that he participate in VORP and remand to the trial court for a

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

      proper a remand for restitution hearing).

      Court of Appeals of Indiana | Opinion 20A03-1412-CR-438 | August 7, 2015             Page 4 of 5
[10]   Reversed and remanded.


       Mathias, J., concurs. Robb, J., concurs in result without separate opinion.




       Court of Appeals of Indiana | Opinion 20A03-1412-CR-438 | August 7, 2015   Page 5 of 5
