Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any Apr 30 2013, 9:31 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KIMBERLY A. JACKSON GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOSHUA D. GAUNT, )
)
Appellant-Defendant, )
)
vs. ) No. 90A02-1210-CR-847
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WELLS CIRCUIT COURT
The Honorable Kenton W. Kiracofe, Judge
Cause No. 90C01-1204-FC-10
April 30, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Joshua D. Gaunt pleaded guilty pursuant to a plea agreement to aiding, inducing, or
causing burglary, as a class C felony. The trial court sentenced Gaunt to six years, with two
years suspended to probation. Gaunt presents the following restated issues for review:
1. Is Gaunt’s sentence inappropriate in light of the nature of the offense
and his character?
2. Is Probation Condition 18 (Condition 18) overly broad, ambiguous,
unreasonable, or impermissibly vague?
3. Did the trial court abuse its discretion in ordering Gaunt to pay
restitution?
4. Did the trial court abuse its discretion in ordering Gaunt to pay a
supplemental public defender fee?
We affirm in part, reverse in part, and remand with instructions.
The facts of the underlying occurrence, as admitted by Gaunt, are that on October 17,
2011, Chase Starr asked Gaunt to drive him to a motel located adjacent to a restaurant.
Gaunt agreed. Once there, Gaunt assisted Starr, Brandon Hall, and Samantha Cole in loading
items stolen from the nearby restaurant into the back of a red Durango parked behind a
business near the motel. The items taken included a safe that contained over $7000.
As a result of his participation, the State charged Gaunt with class C felony aiding,
inducing, or causing burglary. Gaunt entered into a guilty plea that left his sentence to the
trial court’s discretion and provided that the State would not make a specific sentencing
recommendation. As a condition of his plea, Gaunt agreed to provide a statement to police
prior to sentencing that implicated his co-defendants in the burglary. He also agreed to
testify against all three at trial. The issue of restitution, “including whether to order it and the
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amount of restitution,” was also left to the trial court’s discretion. Appellant’s Appendix at
50.
At sentencing, the trial court identified as aggravating circumstances Gaunt’s history
of juvenile delinquent and criminal behavior and his recent violation of “the conditions of his
probation, parole, or community corrections placement or any pretrial release that were
granted to him[.]” Transcript at 53. The trial court identified as mitigators the facts that
Gaunt pleaded guilty and that he cooperated with police. The trial court also noted at the
time of sentencing that Gaunt was serving a sentence in Allen County. Finally, the court
noted that Gaunt’s sentence was not suspendable. The trial court imposed a six-year
sentence, with two years suspended to probation. The trial court also determined that Gaunt
may serve two years of the four executed years on home detention through community
corrections, if he qualified and if he could pay the costs associated with the program. As
conditions of probation, the court ordered Gaunt to pay restitution in the amount of
$10,868.82, payable jointly and severally with his co-defendants, and ordered him to pay a
supplemental public defender fee of $300. The court also imposed Condition 18, which
stated that Gaunt “shall not associate with any person having a questionable reputation or
criminal record.” Appellant’s Appendix at 15.
1.
Gaunt contends his sentence is inappropriate in light of the nature of the offense and
his character. Article 7, section 4 of the Indiana Constitution grants our Supreme Court the
power to review and revise criminal sentences. Pursuant to Ind. Appellate Rule 7, the
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Supreme Court authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d
1219 (Ind. 2008). Per App. R. 7(B), we may revise a sentence “if, after due consideration of
the trial court’s decision, the Court finds that the sentence is inappropriate in light of the
nature of the offense and the character of the offender.” Wilkes v. State, 917 N.E.2d 675, 693
(Ind. 2009), cert. denied, 131 S.Ct. 414 (2010). “[S]entencing is principally a discretionary
function in which the trial court’s judgment should receive considerable deference.”
Cardwell v. State, 895 N.E.2d at 1223. Gaunt bears the burden on appeal of persuading us
that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind. 2006).
We agree with Gaunt’s assertion that, considered by itself, the nature of his offense
does not support a sentence in excess of the advisory sentence. We do not agree, however,
with his claim that there are no grounds for enhancing his sentence based upon a
consideration of his character. He cites several unfortunate facets of his childhood as
mitigators. Although lamentable, those circumstances cannot be viewed as having played a
causal role in his later brushes with the juvenile and criminal justice systems and thus are of
negligible mitigating weight. By the time he was only nineteen years old, Gaunt had already
received seven juvenile-delinquency adjudications. These included adjudications for
residential entry, multiple acts of receiving stolen property, escape, resisting law
enforcement, and possession of paraphernalia. As an adult, Gaunt was recently convicted of
felony corrupt business influence, as a class C felony. He was arrested on that charge a mere
six months after his release from incarceration from the Indiana Department of Correction.
He committed the present offense less than seven months after he was released from
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incarceration for violating the dispositional order on his adjudication for residential entry.
In view of his history of juvenile delinquent and criminal behavior, which is not
insubstantial when considered in relation to his relative youth, the sentence imposed by the
trial court is not inappropriate.
2.
As a condition of probation, the trial court ordered that Gaunt “shall not associate with
any person of questionable reputation or criminal record”, i.e., Condition 18. Appellant’s
Appendix at 15. Essentially, Gaunt challenges the portion of Condition 18 that forbids his
association with “persons of questionable reputation” on the ground that this aspect of
Condition 18 is overly broad, ambiguous, unreasonable, or impermissibly vague.
The trial court is vested with the discretion to determine the conditions of probation.
Heaton v. State, 984 N.E.2d 614 (Ind. 2013). We review for abuse of discretion, which
occurs when the decision is clearly against the logic and effect of the facts and circumstances
or when the trial court misinterprets the law. Id.
We agree with the State’s assertion that the two prohibited associations, i.e., with
persons having a questionable reputation and with persons having a criminal record, are set
out in the same sentence and therefore the former must be interpreted with the latter in mind.
Thus, the phrase “persons of questionable character” should not be understood as subject to
the vagaries of individualized notions of what constitutes character that is beyond reproach,
and that which is not. Rather, read in context, we think it clear that by “persons of
questionable character,” the court was referring to persons who are known to engage in
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criminal activity. Understood as such, the condition is not impermissibly vague.
3.
Gaunt contends the trial court abused its discretion by ordering him to pay restitution.
Gaunt contends that the restitution order is defective because: (1) the record does not support
a finding that the restaurant owner suffered $10,868.82 in actual losses; (2) the trial court
failed to inquire about Gaunt’s ability to pay; and 3) the trial court did not fix the manner of
payment.
An order of restitution is a matter committed to the trial court’s discretion. Sickels v.
State, 982 N.E.2d 1010 (Ind. 2013). We will reverse the trial court’s ruling only upon a
showing of abuse of discretion, which occurs when the decision is clearly against the logic
and effect of the facts and circumstances before the trial court. Id.
We begin with Gaunt’s claim that the record does not support a finding that the victim
of his crime suffered $10,868.82 – the amount of restitution he was ordered to pay – in actual
losses. A restitution order must be supported by sufficient evidence of actual loss sustained
by the victim or victims of a crime. See Lohmiller v. State, 884 N.E.2d 903 (Ind. Ct. App.
2008). “The amount of actual loss is a factual matter that can be determined only upon the
presentation of evidence.” Bennett v. State, 862 N.E.2d 1281, 1286 (Ind. Ct. App. 2007).
The victim of this offense, Ugaldes Family Restaurant, LLC (the Restaurant), was
owned by Fernando Ugalde. The Restaurant was insured by State Farm Auto Insurance
Companies. Ugalde filed a restitution claim form with the court and the probation
department. The form included a contents inventory generated by State Farm Auto Insurance
6
Companies in relation to this incident. The inventory listed the following missing items and
their respective values: Two Samsung cash registers, valued at $549 apiece; a safe, $2500;
and $7100 in cash. Ugalde also submitted an invoice for $728.40 for what appears to be
repair of damages to the building that resulted from the forced entry into the restaurant. It is
not clear to us how those individual amounts totaled $10,868.82 – the amount indicated on
Ugalde’s restitution claim form. What is clear to us, however, is that a substantial amount of
the Restaurant’s loss was covered by insurance. The form reflects that all but a $500
deductible was covered by insurance. Indeed, it appears that the restitution claim form was
completed incorrectly in that the “TOTAL RESTITUTION REQUESTED” was not reduced
by the amount of loss covered by insurance. 1 Appellant’s Appendix at 43. Even if we were
to ignore the discrepancy between the amount of the restitution order and sum of the
inventory sheet and repair invoice, the trial court abused its discretion in ordering Gaunt to
pay the Restaurant for losses that were covered by insurance.
In Little v. State, 839 N.E.2d 807 (Ind. Ct. App. 2005), we concluded that an order of
restitution provided for duplicate recovery when it ordered the defendant to pay restitution to
the victim for expenses that had been covered by insurance. We further concluded that this
1
The line immediately above the line reflecting the total amount requested appears as follows:
INSURANCE COVERAGE (Deduct total amount paid by insurance) SUBTRACT: $______________
Appellant’s Appendix at 43. Although the preparer of the form correctly entered $10,368.82 on this line, that
amount was not subtracted from the total amount of loss, but instead added to the $500 deductible recorded
several lines above on the appropriate line. Thus, the “total restitution requested” on the next line down
incorrectly reflected the sum of the deductible plus the covered amount ($10,368.82 + $500 = $10,868.82),
rather than the total loss, plus the deductible, minus the amount covered by insurance (10,368.82 + $500 -
$10,368.82 = $500).
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constituted an abuse of discretion. Id. The remedy in Little was a remand to the trial court
with instructions to amend the restitution order such that there was no duplicate recovery.
The same remedy is appropriate in the present case.
We acknowledge the possibility that State Farm might have subrogation rights in the
event the Restaurant recovers some or all of its losses from the perpetrators of this incident.
This situation has also been discussed before. In Little, we directed the trial court upon
remand to enter an order that did not provide double recovery to the victim. In doing so, we
made the following observation: “Two means by which the court could accomplish this task
are ordering the amounts paid directly to the insurance companies or reducing the payment to
[the victim] to include only those amounts he owes the insurance companies under the
subrogation liens.” Id. at 810 n.2.
We note the State’s contention that because Gaunt acquiesced in the amount of
restitution to be paid, he may not now challenge the restitution order on this basis. Although
the record does reflect that Gaunt acknowledged the obligation to pay restitution, it is not
clear that he specifically acknowledged an obligation to pay a specific amount, including the
amount the trial court ultimately ordered him to pay to Ugalde. Rather, we understand his
acknowledgement of an obligation to pay restitution as confirming that the affected parties
must be reimbursed commensurate with the amount of their loss. We do not wish to be
understood to hold that Gaunt is not liable for reimbursing the appropriate parties the entire
amount of the loss caused by his criminal acts. Instead, we clarify that reimbursement must
be made to the parties that actually suffered a loss and must be in the amount of the actual
8
loss suffered by that party. This will be the trial court’s task upon remand.
We turn now to Gaunt’s claim that the order of restitution is not sustainable because
the trial court did not inquire about Gaunt’s ability to pay. Ind. Code Ann. § 35-38-2-2.3
(West, Westlaw current with all 2012 legislation) provides, “[w]hen restitution... is a
condition of probation, the court shall fix the amount, which may not exceed an amount the
person can or will be able to pay, and shall fix the manner of performance.” Pursuant to this
provision, a trial court is required to inquire about the defendant’s ability to pay whenever it
orders restitution as a condition of probation or a suspended sentence. Kays v. State, 963
N.E.2d 507 (Ind. 2012). “The statute sets forth no particular procedure the trial court must
follow in determining the defendant’s ability to pay[.]” Id. at 509.
In the present case, the trial court asked Gaunt, “what do you think your employment
opportunities are?” Transcript at 53. Gaunt responded that he had a job secured at an auto
parts store upon his release from incarceration and that it paid minimum wage. He also
informed the court that he might have a paper route as well. Gaunt also informed the court
he was enrolled in college, which in context implied that such would increase his future
earning potential. The presentence investigation report also indicated that Gaunt was in good
health. This information, in the aggregate, was adequate to permit the trial court to make an
informed decision with respect to the amount of restitution to be paid and the manner in
which it would be paid. See Mitchell v. State, 559 N.E.2d 313 (Ind. Ct. App. 1990) (a review
of the defendant’s presentence report, which contained information concerning defendant’s
financial status and employment history, and also indicated that the defendant was in good
9
health, was adequate inquiry into the defendant’s ability to pay), trans. denied.
Lastly, Gaunt contends the restitution order was erroneous because it did not fix the
manner of payment as required by I.C. § 35-38-2-2.3. The State contends that the trial
court’s order comported with the statutory requirement because “the trial court set both the
amount of amount of restitution, $10,868.82, and the manner in which it was to be paid,
jointly and severally with the other co-defendants[.]” Appellee’s Brief at 13. In the present
case, this is not enough. Depending upon facts that presumably will be developed upon
remand, Gaunt will owe between $500 and $10,368.82 in restitution. Depending upon his
means at the time, it may be too much to ask that he pay even the lowest possible amount in a
single, lump-sum payment. Yet, the current order would permit such. Upon remand, the trial
court is directed to establish a payment plan or payment schedule that is fashioned with
Gaunt’s financial circumstances in mind. See Savage v. State, 650 N.E.2d 1156, 1164 (Ind.
Ct. App. 1995) (Sullivan, J., dissenting) aff’d in part, vacated in part, dissenting opinion
adopted, 655 N.E.2d 1223 (Ind. 1995) (the trial court did not comply with the mandate to fix
the manner of payment by merely stating the total amount of restitution owed and directing
that it be mailed via the United States Mail; instead, the trial court was required to establish
an appropriate payment plan or payment schedule tailored to the defendant’s financial
circumstances).
4.
Gaunt contends the trial court abused its discretion by ordering him to pay a $300
supplemental public defender fee. Specifically, Gaunt contends this was improper because
10
the court did not first determine his ability to pay. Like other sentencing decisions, the
decision whether to impose restitution, fines, costs, or fees is generally committed to the trial
court’s discretion. Berry v. State, 950 N.E.2d 798 (Ind. Ct. App. 2011). A trial court does
not abuse its discretion if the fees imposed fall within the parameters provided by statute. Id.
Three statutory provisions address the imposition of public defender fees. Ind. Code
Ann. § 33-40-3-6 (West, Westlaw current with all 2012 legislation) authorizes the trial court
to impose reasonable attorney fees against the defendant at any phase of the proceedings if it
finds that the defendant has the ability to pay such fees. Ind. Code Ann. § 33-37-2-3 (West,
Westlaw current with all 2012 legislation) authorizes the trial court to impose part of the
attorney fees upon the defendant, provided the court determines the defendant is not indigent.
Ind. Code Ann. § 35-33-7-6 (West, Westlaw current with all 2012 legislation) authorizes the
trial court to impose public defender fees before completion of the initial hearing, so long as
it determines the defendant is not indigent. The trial court may order reimbursement under
any of these statutes, or a combination thereof. May v. State, 810 N.E.2d 741 (Ind. Ct. App.
2004).
The trial court did not specify which statute was the source of the order to pay public
defender fees. The parties agree that the trial court’s order was not sustainable under either
I.C. § 35-40-3-6 or I.C. § 35-37-7-6. We presume the trial court also knew this. See H.M. v.
State, 892 N.E.2d 679 (Ind. Ct. App. 2008) (a trial court is presumed to know the law and
apply it correctly), trans. denied. This leaves I.C. § 33-37-2-3, which provides, in pertinent
part, as follows:
11
(a) Except as provided in subsection (b), when the court imposes costs, it shall
conduct a hearing to determine whether the convicted person is indigent. If the
person is not indigent, the court shall order the person to pay:
(1) the entire amount of the costs at the time sentence is pronounced;
(2) the entire amount of the costs at some later date; or
(3) specified parts of the costs at designated intervals.
(b) A court may impose costs and suspend payment of all or part of the costs
until the convicted person has completed all or part of the sentence. If the
court suspends payment of the costs, the court shall conduct a hearing at the
time the costs are due to determine whether the convicted person is indigent. If
the convicted person is not indigent, the court shall order the convicted person
to pay the costs:
(1) at the time the costs are due; or
(2) in a manner set forth in subsection (a)(2) through (a)(3).
* * * * *
(e) If, after a hearing under subsection (a) or (b), the court determines that a
convicted person is able to pay part of the costs of representation, the court
shall order the person to pay an amount of not more than the cost of the
defense services rendered on behalf of the person. The clerk shall deposit the
amount paid by a convicted person under this subsection in the county’s
supplemental public defender services fund established under IC 33-40-3-1.
(Emphasis supplied.) This provision applies only to defendants the trial court has not found
to be indigent. See Banks v. State, 847 N.E.2d 1050 (Ind. Ct. App. 2006), trans. denied.
Although early in these proceedings the trial court found Gaunt to be indigent “at this
time” (i.e., at the time of the initial hearing), Transcript at 8, the court stated it would “revisit
this issue at a later date, to determine whether or not [Gaunt] should reimburse the County for
all or part of the cost of the Court appointed attorney.” Id. at 8-9. Reading subsections (a)
12
and (b) of I.C. § 33-37-2-3 in conjunction with each other, it is apparent that the statute
contemplates a situation in which indigency and the ability to pay may be determined at a
later date – specifically when the defendant has completed all or part of his or her executed
sentence. See I.C. § 33-37-2-3(b). By its own terms, I.C. § 33-37-2-3 does not require an
indigency determination for such orders until after the term has been completed – in other
words, an indigency determination is required in these circumstances at or near the time the
defendant will be expected to begin repayment. See Berry v. State, 950 N.E.2d at 801 (“Rich
[v. State, 890 N.E.2d 44 (Ind. Ct. App. 2008)] and Kimbrough [v. State, 911 N.E.2d 621 (Ind.
Ct. App. 2009)] mean that if the trial court suspends payment of costs [under I.C. § 33-37-2-
3] until the executed portion of the sentence has been served, then it must hold an indigency
hearing at the time the costs are due”). The trial court did not abuse its discretion in ordering
Gaunt to pay $300 in public defender fees without first holding a hearing concerning his
ability to pay.
Judgment affirmed in part, reversed in part, and remanded with instructions.
ROBB, C.J., and CRONE, J., concur.
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Joshua D. Gaunt v. State of Indiana
Combined Opinion