                                                                                 FILED
                                                                            Dec 07 2018, 11:06 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      William W. Gooden                                         Curtis T. Hill, Jr.
      Mt. Vernon, Indiana                                       Attorney General of Indiana

                                                                Jesse R. Drum
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Steven Akehurst,                                          December 7, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-CR-214
              v.                                                Appeal from the Posey Superior
      State of Indiana,                                         Court

      Appellee-Plaintiff                                        The Honorable S. Brent Almon,
                                                                Judge
                                                                Trial Court Cause No.
                                                                65D01-1612-CM-653



      May, Judge.


[1]   Steven Akehurst appeals the trial court’s order of restitution. He claims the

      court erred by ordering him to pay the victim’s lost earnings arising from the

      day of sentencing and to pay the difference between the insurance payment and




      Court of Appeals of Indiana | Opinion 18A-CR-214 | December 7, 2018                            Page 1 of 7
      the pay-off amount for the car loan. We reverse in part, affirm in part, and

      remand.



                               Facts and Procedural History                                 1




[2]   On December 19, 2016, Akehurst crashed his vehicle into Jennifer Noble’s van.

      Akehurst got out of his vehicle, surveyed the damage, “looked [Noble] straight

      in the face and then got back into his vehicle and took off.” (Tr. Vol. 2 at 6.)

      Noble was transported by ambulance to the hospital and treated for leg injuries

      and “whiplash kind of things.” (Id.)


[3]   Akehurst was apprehended later that day. On December 27, 2016, the State

      charged him with Class B misdemeanor leaving the scene of an accident. 2 On

      November 9, 2017, the trial court held a bench trial and found Akehurst guilty.

      On January 2, 2018, the trial court held a sentencing hearing.


[4]   At the sentencing hearing, Noble testified her medical bills had been paid.

      Although insurance had paid for her vehicle, it did not cover $616.28 of her

      vehicle loan. Noble works as a teacher and makes $18.25 per hour. Between

      the medical treatment and days in court, Noble had taken 2.5 days off work.



      1
        Akehurst filed a copy of the “MyCase” summary, representing such as the Chronological Case Summary
      required as part of the Appendix, despite the fact the summary clearly states at the top of the page: “This is
      not the official court record. Official records of court proceedings may only be obtained directly from the
      court maintaining a particular record.” (App. Vol. II at 2.) While not a violation of the Indiana Rules of
      Appellate Procedure, we note the Chronological Case Summary is the official record of the court. See
      Anderson v. Horizon Homes, 644 N.E.2d 1281, 1287 (Ind. Ct. App. 1995) (Chronological Case Summary is the
      official record of the court), trans. denied.
      2
          Ind. Code § 9-26-1-1.1 (2016).




      Court of Appeals of Indiana | Opinion 18A-CR-214 | December 7, 2018                                Page 2 of 7
      This time included the half-day she took off in order to attend the sentencing

      hearing. Noble had lost earnings of $318.80 - $63.25 of this amount was

      incurred on the day of sentencing. 3


[5]   The trial court sentenced Akehurst to six months in the Posey County Jail,

      suspended to probation. The trial court also ordered Akehurst to pay restitution

      in the sum of $935.08. This amount included the $616.28 not paid by insurance

      for Noble’s vehicle and $318.80 for her lost wages.



                                 Discussion and Decision
[6]   “Generally, an order of restitution is within the trial court’s discretion, and it

      will be reversed only upon a finding of an abuse of that discretion. An abuse of

      discretion occurs when the trial court misinterprets or misapplies the law.”

      Green v. State, 811 N.E.2d 874, 877 (Ind. Ct. App. 2004). A restitution order

      must be supported by sufficient evidence of actual loss sustained by the victim

      of a crime. Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct. App. 2008), trans. denied.

      “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.” J.H. v. State, 950 N.E.2d 731, 734 (Ind. Ct. App.

      2011). Traditional goals of restitution are to “impress upon a criminal

      defendant the magnitude of the loss he has caused and his responsibility to




      3
       Noble testified as to how many hours per day she worked and that she had an unpaid lunch period. The
      parties agree as to the dollar amounts of Noble’s lost earnings.




      Court of Appeals of Indiana | Opinion 18A-CR-214 | December 7, 2018                          Page 3 of 7
      make good that loss as completely as possible.” Kotsopoulos v. State, 654 N.E.2d

      44, 46 (Ind. Ct. App. 1995), reh’g denied, trans. denied.


                                                   Lost Wages

[7]   Akehurst claims the trial court “clearly misapplied the law” when it ordered

      him to pay Noble’s lost wages for the day of the sentencing because the

      restitution statute specifically limits restitution for lost earnings to “before the

      date of sentencing[.]” Ind. Code § 35-50-5-3(a)(4). Akehurst argues the trial

      court should not have included Noble’s lost wages incurred for the day of

      sentencing.


[8]   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 not, we need not and do not interpret it, but instead

      apply its plain and clear meaning. Id. 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

      statutory language to be applied in a logical manner consistent with the statute’s

      underlying policy and goals. B.K.C. v. State, 781 N.E.2d 1157, 1167 (Ind. Ct.

      App. 2003). “A trial court’s sentencing authority is limited to the statutory

      parameters prescribed by the General Assembly.” Roach v. State, 711 N.E.2d

      1237, 1238 (Ind. 1999).


[9]   We have reversed restitution orders that have included costs that would not be

      incurred until after sentencing or were nebulous in nature, see, e.g. Creager v.



      Court of Appeals of Indiana | Opinion 18A-CR-214 | December 7, 2018           Page 4 of 7
       State, 737 N.E.2d 771, 781 (Ind. Ct. App. 2000) (reversed restitution order for

       child support that would not have accrued until after sentencing); see also

       Carswell v. State, 721 N.E.2d 1255, 1259 (Ind. Ct. App. 1999) (reversed

       restitution order requiring defendant to pay for counseling “victims may

       incur”). Indiana Code section 35-50-5-3(a)(4) allows the trial court to order

       restitution for “earnings lost by the victim (before the date of sentencing) as a

       result of the crime including earnings lost while the victim was hospitalized or

       participating in the investigation or trial of the crime.” (Emphasis added).


[10]   When construing a statute, “[w]ords and phrases shall be taken in their plain, or

       ordinary and usual, sense.” Ind. Code § 1-1-4-1. “Before” is defined as “in

       advance [or] at an earlier time.” https://www.merriam-

       webster.com/dictionary/before (last visited Nov. 26, 2018). The plain and

       ordinary definition of “before” is not ambiguous. Therefore, earnings lost on or

       after the date of sentencing are not included in the plain and ordinary meaning

       of this statute, and our inquiry is limited to a determination of whether lost

       earnings fall within the ambit of Indiana Code section 35-50-5-3(a)(4).


[11]   Here, the trial court exceeded its authority when it ordered Akehurst to make

       restitution for the lost wages incurred on the date of sentencing. Indiana Code

       section 35-50-5-3(a)(4) limits restitution to those earnings lost “before the date

       of sentencing[.]” Noble’s lost wages for the time she took off work to attend

       and testify at the sentencing hearing occurred concurrent with the sentencing

       date and not before. Therefore, the trial court erred when it ordered Akehurst to




       Court of Appeals of Indiana | Opinion 18A-CR-214 | December 7, 2018         Page 5 of 7
       pay Noble’s lost wages for the day of sentencing. 4 As the lost earnings for the

       day of sentencing were $63.25, the restitution for the lost earnings should be

       $255.55, rather than $318.80.


                                                  Property Damage

[12]   Akehurst argues the trial court abused its discretion when it ordered him to pay

       the $616.28 difference between what Noble’s insurance paid for her totaled car

       and what was still owed on the automobile loan. Without citation to any

       caselaw, Akehurst argues the “remaining balance on the victim’s loan was not

       part of the replacement cost contemplated by I.C. 35-50-5-3(a)(1).” (Br. of

       Appellant at 6.) Akehurst contends this could lead to absurd results, such as a

       restitution order to cover a loan amount thousands of dollars more than

       insurance coverage.


[13]   Indiana Code section 35-50-5-3(a)(1) allows the trial court to order restitution

       for property damage “incurred as a result of the crime, based on the actual cost

       of repair (or replacement if repair is inappropriate)[.]” A payment made by an

       insurance company “may or may not represent the actual replacement cost of

       the destroyed item[.]” Baker v. State, 70 N.E.3d 388, 391 (Ind. Ct. App. 2017),

       trans. denied. Restitution is not “precluded by . . . insurance payments.” Id.




       4
         As restitution provides a mechanism to compensate victims for the damage caused by those who commit
       crimes, we were surprised to find the restitution statute was written to prohibit victims from recovering wages
       lost for time spent attending the sentencing hearing. We invite the General Assembly to consider whether
       Indiana Code section 35-50-5-3 should be modified to permit victims to recover lost wages incurred “on or
       before” the date of sentencing.




       Court of Appeals of Indiana | Opinion 18A-CR-214 | December 7, 2018                                Page 6 of 7
[14]   Although Noble’s vehicle was insured, Akehurst is not entitled to “reap the

       benefits of the victim’s insurance policy.” Id. The statute allows the trial court

       to order restitution for the actual cost to replace Noble’s van. That actual cost

       “must reflect the actual loss incurred by the victim,” Rich, 890 N.E.2d at 51,

       and come as “a direct and immediate result of the criminal acts of the

       defendant.” Huddleston v. State, 764 N.E.2d 655, 657 (Ind. Ct. App. 2002).

       Here, the actual loss, as a direct result of Akehurst’s actions, was the van. The

       remaining loan balance for that van was $616.268 more than insurance would

       pay for the loss of the van. Therefore, the trial court did not abuse its discretion

       when it ordered Akehurst to pay the difference between what Noble’s insurance

       paid for the damage to her vehicle and what Noble owed on the loan.



                                                Conclusion
[15]   The trial court erred when it ordered Akehurst to pay restitution to Noble for

       lost wages incurred by Noble when she attended the sentencing hearing;

       however, the trial court did not abuse its discretion when it ordered Akehurst to

       pay the difference between the insurance payment for the car and the car loan

       pay-off amount. Accordingly, we reverse in part and affirm in part. In

       addition, we remand for the trial court to enter a corrected sentencing order to

       amend the restitution order for lost earnings from $318.80 to $255.55.


[16]   Reversed in part, affirmed in part, and remanded.


       Riley, J., and Mathias, J., concur.



       Court of Appeals of Indiana | Opinion 18A-CR-214 | December 7, 2018        Page 7 of 7
