Jim A. Edsall v. State of Indiana

FOR PUBLICATION

APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:

JIM A. EDSALL GREGORY F. ZOELLER
Pendleton, Indiana Attorney General of Indiana

MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana

FILED
Feb 18 2013, 9:21 am

IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court

JIM A. EDSALL, )
)
Appellant-Defendant, )
)
vs. ) No. 57A03-1205-CR-240
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )

APPEAL FROM THE NOBLE SUPERIOR COURT
The Honorable Robert S. Kirsch, Judge
Cause No. 57D01-0608-FA-7

February 18, 2013

OPINION - FOR PUBLICATION

KIRSCH, Judge
 Jim A. Edsall (“Edsall”) pleaded guilty in January 2008 to five counts of Class A

felony delivery of methamphetamine1 and one count of Class A felony conspiracy to

manufacture methamphetamine.2 In this belated appeal, Edsall raises two sentencing issues

that we restate as:

I. Whether the trial court’s imposition of six concurrent thirty-year terms
of imprisonment at the Indiana Department of Correction (“IDOC”)
was either an abuse of discretion or inappropriate based on the nature of
the offense and character of the offender; and

II. Whether the trial court exceeded its statutory authority when it ordered
restitution as part of Edsall’s sentence.

We affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

This is Edsall’s second appeal to this court. On August 3, 2006, the State charged

Edsall with five counts of Class A felony delivery of methamphetamine and four counts of

Class A felony conspiracy to manufacture methamphetamine. On January 4, 2008, the

parties appeared for a guilty plea hearing and filed a plea agreement (“Plea Agreement”), in

which Edsall agreed to plead guilty to five counts of Class A felony delivery of

methamphetamine and one count of Class A felony conspiracy to manufacture

methamphetamine, and the State agreed to dismiss the remaining charges. With regard to

sentencing, the Plea Agreement provided:

Upon the Defendant’s plea of guilty to Counts 1, 3, 4, 5, 7 and 9 he shall
receive a concurrent maximum sentence of thirty (30) years in IDOC and the
parties will argue all terms at sentencing.

1
See Ind. Code § 35-48-4-1.
2
See Ind. Code §§ 35-49-4-1, 35-41-5-2.

2
Appellant’s App. at 42. The Plea Agreement stated that the sentence imposed would be

served consecutive to Edsall’s sentence from a prior Michigan conviction. The trial court

advised Edsall of his rights, including the range of penalties. Specifically, the trial court told

Edsall that the term of imprisonment for a Class A felony ranges from twenty to fifty years

with the advisory term being thirty years. The trial court also told Edsall that for each count

to which he was pleading guilty there was a potential fine from zero to ten thousand dollars.

There was no mention of restitution at the guilty plea hearing. Following examination of

Edsall under oath to establish a factual basis, the trial court accepted the Plea Agreement,

ordered the preparation of a presentence investigation report (“PSI”), and set the matter for a

sentencing hearing.

In January 2008, the probation department filed Edsall’s PSI with the trial court. The

victim’s impact statement portion of the PSI stated, “To date, a restitution request has not

been received from I.M.A.G.E.3 Drug Task Force; they plan to submit a restitution amount to

the prosecutor’s office.” Id. at 64. Thereafter, at the February 8, 2008 sentencing hearing,

the State presented Exhibit A, entitled Edsall Investigation Costs, a copy of which had been

provided earlier that morning to Edsall’s counsel. The trial court asked Edsall’s attorney if

there was “any argument or objection” to the total restitution amount, which was $19,581.40,

and Edsall’s counsel responded, “at this point I certainly won’t stipulate to the amount,” but

did not pose any objection to the exhibit or the matter of restitution being sought. Tr. at 81.

3
I.M.A.G.E. stands for Image Multi Agency Group Enforcement. Appellant’s App. at 14.

3
 Thereafter, the State presented the testimony of Steuben County Sheriff’s Deputy Tim

Troyer (“Deputy Troyer”), who testified about the undercover operation in which he and at

least four other law enforcement officers infiltrated, over a fifty-seven-day period, Edsall’s

manufacturing operation. Deputy Troyer testified that Edsall’s operation was sophisticated

and the largest he has ever seen in his twenty-one years of law enforcement experience. As

part of the undercover operation, Deputy Troyer, known to Edsall as “Hawk,” agreed to

provide pseudoephedrine pills, or “red things,” to Edsall, who would then give a portion of

the finished product back to Hawk. Tr. at 89, 91, 94. According to testimony, Deputy Troyer

provided a total of 16,308 red pills, in 96-count boxes, to Edsall during the investigation.

State’s Ex. A. Walgreens Pharmacy donated 5,520 outdated pills, and undercover officers

purchased 10,788 pills at pharmacies. Exhibit A included the cost incurred to purchase the

pills, and the expenses and wages of those involved. Exhibit A was admitted without

objection. Tr. at 106.

Following the presentation of that evidence, counsel presented argument to the trial

court regarding sentencing. Edsall’s counsel expressed “concern” about the requested

restitution, questioning the extent and scope of the police conduct in the undercover

investigation, but he did not expressly object to the restitution request and asked the trial

court to impose an executed sentence of fifteen years. Tr. at 150. The State, in turn,

responded that the large-scale investigation was because Edsall’s manufacturing scheme was

“enormous” and “bigger than we’ve ever seen” in the surrounding four-county area. Id. at

154. The State asked the trial court to impose the maximum allowed under the plea

4
agreement, thirty years, and requested the court to order “restitution figures as laid out.” Id.

at 157.

The trial court identified aggravators and mitigators and determined that the

“aggravating circumstances . . . completely outweigh the mitigating circumstances.” Id. at

158. It sentenced Edsall to concurrent sentences of thirty years on each of the six counts, to

be served consecutive to Edsall’s Michigan sentence. The trial court also entered restitution

judgment in the amount of $19,581.40 and imposed a $2,000.00 fine. Edsall’s attorney asked

the court for a reasonable period of time upon his release from Indiana Department of

Correction for Edsall to take care of his financial obligations.

In August 2008, Edsall filed a pro se petition for post-conviction relief. Thereafter, in

August 2011, an attorney filed an appearance on Edsall’s behalf and filed a motion for

permission to file a belated notice of appeal. In September 2011, the trial court denied his

request to file a belated notice of appeal. Edsall appealed that decision to this court, and we

reversed by unpublished decision, finding that the trial court abused its discretion when it

denied his motion for permission to file a belated notice of appeal. Edsall v. State, No.

57A03-1110-CR-462 (Ind. Ct. App. Apr. 11, 2012). Having received that permission, Edsall

filed this appeal.

DISCUSSION AND DECISION

I. Sentencing

Edsall argues that the trial court abused its discretion by considering improper

aggravating circumstances and failing to consider mitigating ones, and he also argues that the

5
sentence was inappropriate based on the nature of the offense and character of the offender.

Initially, we must determine whether Edsall may appeal his sentence. A plea

agreement in which the trial court has discretion over the length of the sentence is referred to

as an “open plea.” Bowling v. State, 960 N.E.2d 837, 841 (Ind. Ct. App. 2012) (citing

Johnson v. State, 898 N.E.2d 290, 291 (Ind. 2008)), trans. denied. Where a plea agreement

leaves sentencing to the trial court’s discretion, a defendant is entitled to contest on direct

appeal the merits of a trial court’s sentencing decision. Id. (citing Collins v. State, 817

N.E.2d 230, 231 (Ind. 2004)). This includes a plea agreement wherein a defendant agrees to

a sentencing cap or range. Id. However, our Supreme Court has held that a defendant can

waive the right to appellate review of his sentence as a part of a written plea agreement as

long as such waiver is made knowingly and voluntarily. Id.

Here, in exchange for Edsall’s guilty plea to five charges of Class A felony delivery of

methamphetamine and one charge of Class A felony conspiracy to manufacture

methamphetamine, the State dismissed the other three Class A felony charges and agreed to a

thirty-year cap on the executed portion of his sentence. The Plea Agreement stated that

Edsall “shall receive a concurrent maximum sentence of thirty years in IDOC and the parties

will argue all terms at sentencing.” Appellant’s App. at 42. Although the Plea Agreement’s

use of the words “shall receive” a term of thirty years initially suggests that the terms of

imprisonment was “fixed” and non-appealable, the Plea Agreement also indicated “the

parties will argue all terms at sentencing,” thereby leaving some discretion to the trial court.

Appellant’s App. at 42.

6
 In line with this trial court discretion, counsel for each party argued for what he

believed to be an appropriate sentence length, with Edsall’s counsel arguing for imposition of

an executed sentence of fifteen years, and the State arguing for imposition of “the thirty

years.” Tr. at 150, 157. After considering the aggravating and mitigating circumstances, the

trial court determined that Edsall’s convictions and the circumstances “warrant[] an executed

sentence equivalent to the advisory sentence for a Class A Felony which is the maximum

called for in the parties’ Plea Agreement.” Appellant’s App. at 47 (emphasis added). Based

on these facts and circumstances, we believe that the Edsall’s plea was an “open plea,” and

Edsall is entitled to appeal his sentence.

A. Abuse of Discretion

Edsall argues that the trial court’s sentence was an abuse of discretion. A trial court’s

sentencing decisions are discretionary and entitled to “considerable deference” by the

appellate courts. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). A trial court abuses

its discretion if it: (1) fails “to enter a sentencing statement at all”; (2) enters “a sentencing

statement that explains reasons for imposing a sentence—including a finding of aggravating

and mitigating factors if any—but the record does not support the reasons”; (3) enters a

sentencing statement that “omits reasons that are clearly supported by the record and

advanced for consideration”; or (4) considers reasons that “are improper as a matter of law.”

Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218

(Ind. 2007). However, the relative weight or value assignable to reasons properly found, or

7
those which should have been found, is not subject to review for abuse of discretion. Id. at

491.

Here, the trial court considered the mitigating circumstance that Edsall pleaded guilty,

and it considered as aggravating the following circumstances: Edsall had a history of

criminal or delinquent behavior; he committed these offenses while on release for a similar

charge in Michigan; the extent of Edsall’s involvement in the methamphetamine

manufacturing business and the quantity produced by his operation; and Edsall committed the

offense in the presence of children under eighteen years of age. Appellant’s App. at 47.

In this appeal, Edsall argues that the trial court failed to consider as an additional

mitigating circumstance that “the State initiated the crime[.]” Appellant’s Br. at 14. Where a

defendant alleges that a trial court has failed to find a particular mitigating circumstance, it is

the defendant’s burden to establish that the mitigating evidence is both significant and clearly

supported by the record. Davis v. State, 971 N.E.2d 719, 724 (Ind. Ct. App. 2012), trans.

denied. Edsall claims that the trial court should have considered as mitigating that he “did

not submit” to the undercover officer’s first two offers to provide him with pseudoephedrine

pills. Appellant’s Br. at 14. To the extent that Edsall suggests that the trial court erred by not

finding this to be a mitigating circumstance, we disagree. A trial court is not obligated to

accept the defendant’s argument as to what constitutes a mitigating factor, and a trial court is

not required to give the same weight to proffered mitigating factors as does a defendant.

Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007), trans. denied (2008). The

I.M.A.G.E. Drug Task Force was investigating what it suspected was a large-scale

8
methamphetamine manufacturing operation involving a number of individuals, and as part of

that process, it offered to provide Edsall with pseudoephedrine. We agree with the State that

“[t]he police activity … simply does not constitute a substantial mitigating factor for

sentencing purposes.” Appellee’s Br. at 11. We find no trial court error.

Turning to the matter of aggravators, Edsall claims that the trial court used irrelevant

and inaccurate aggravating testimony when it sentenced him. Appellant’s Br. at 15-18.

Edsall refers to the sentence hearing testimony of Deputy Troyer. During Deputy Troyer’s

testimony, he explained that, at some point in time after Edsall had been arrested, Deputy

Troyer received a phone call from an individual that he believed, by voice, to be Edsall, who

stated to Deputy Troyer that “this was all a conspiracy” of the county government to target

him and that the judges involved were “child molesters.” Tr. at 97-98.

Edsall also argues that there was inaccurate testimony presented concerning the

number of children present at the residence during the manufacturing of the

methamphetamine and the estimated total amount of methamphetamine that Edsall could

have manufactured over the course of a year, given the large quantity of pills and number of

individuals involved. That is, the State presented evidence of what might have occurred over

a 365-day period.

Edsall argues that the above testimony was irrelevant, inaccurate, and intended to

cause prejudice against him and that we should remand the case for resentencing. We

decline his request to do so. First, there is no indication that the trial court considered the

alleged inaccurate and irrelevant testimony when it sentenced Edsall, and Edsall has not

9
proved otherwise. Second, Edsall does not challenge at least two of the trial court’s

aggravating circumstances, namely his criminal history and the fact that when he committed

the present offenses, he was out on bond for a similar criminal charge that he faced in

Michigan. These alone are valid aggravating circumstances that support the trial court’s

sentencing decision. See Ind. Code § 35-38-1-7.1(a)(6) (committing crime while on

probation is proper aggravating circumstance); Deloney v. State, 938 N.E.2d 724, 732 (Ind.

Ct. App. 2010), trans. denied (2011) (defendant’s criminal history is valid aggravating

circumstance); Owens v. State, 916 N.E.2d 913, 917 (Ind. Ct. App. 2009) (single aggravator

may be sufficient to sustain sentence). We find no support for the claim that the trial court

abused its discretion when it sentenced Edsall.

B. Appropriateness

Edsall claims his sentence is inappropriate and should be revised. Under Appellate

Rule 7(B), we may revise a sentence authorized by statute 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. “[W]hether we regard a sentence as

appropriate . . . turns on our sense of 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.” Cardwell, 895 N.E.2d at 1224. Under appropriateness review, the question is not

whether another sentence would be more appropriate; rather, the question is whether the

sentence imposed was inappropriate. Steinberg v. State, 941 N.E.2d 515, 535 (Ind. Ct. App.

2011), trans. denied.

10
 With regard to the nature of the offense, Edsall explains that, over a thirty-two-day

span of time, the State offered him around 11,000 pseudoephedrine pills, which is

considerably more than he could have purchased on his own because the law places

restrictions on the quantity of pseudoephedrine that a person may purchase in a given time

frame. Therefore, he argues, the State “had to break it’s [sic] own laws to facilitate the

quantity and extent of this crime.” Appellant’s Br. at 19. He continues that the trial court

failed to consider that “the only way for [him] to commit a [sic] offense of this extent and

nature was with the State’s assistance.” Id. at 21. Although Edsall claims that he is not

“blaming the State,” we find that this is precisely what he is attempting to do. Id. The record

before us reveals that the trial court properly considered that Edsall was running a large-scale

methamphetamine manufacturing and distribution operation that involved several other

individuals and that, in exchange for receiving large quantities of pseudoephedrine from an

undercover officer, he would in turn provide a percentage of finished methamphetamine

product to him. The nature of the offense supports the trial court’s imposition of the advisory

thirty-year sentence for each offense. Ind. Code § 35-50-2-4 (advisory sentence for Class A

felony conviction is thirty years).

With regard to the character of the offender, Edsall advises that he does not have a

juvenile record, and “except for a couple misdemeanors has [led] a crime free life.”

Appellant’s Br. at 22. With that latter proposition, we disagree. Edsall has a history of

illegal substance abuse. Also, Edsall had violated his probation in the past, and when he

committed the current crimes he was released on bail for Michigan charges of operating a

11
methamphetamine lab and possession of ephedrine. See Rich v. State, 890 N.E.2d 44, 54

(Ind. Ct. App. 2008), trans. denied (committing offenses while on probation is substantial

consideration of assessment of character). While Edsall has successfully maintained

consistent self-employment as a farmer since graduating from high school in 1981, he had

ready access to anhydrous ammonia through his farming operations and unfortunately used

that access to facilitate his methamphetamine manufacturing enterprise. Edsall has failed to

persuade us that either his character or the nature of his offenses warrants revision of his

sentence.

II. Restitution

Edsall claims that the trial court erred when in its sentencing order it ordered him to

pay restitution, arguing that there was no statutory authority or factual basis to do so. The

principal purpose of restitution is to vindicate the rights of society and to impress upon the

defendant the magnitude of the loss the crime has caused. Pearson v. State, 883 N.E.2d 770,

772 (Ind. 2008); Bockler v. State, 908 N.E.2d 342, 348 (Ind. Ct. App. 2009) (restitution is

means of impressing upon defendant magnitude of loss he caused). Restitution also serves to

compensate the offender’s victim. Pearson, 883 N.E.2d at 772. A state entity may be

considered a “victim” for purposes of restitution. Bockler, 908 N.E.2d at 348.

Indiana Code section 35-50-5-3(a) governs restitution and provides in relevant part:

In addition to any sentence imposed under this article for a felony or
misdemeanor, the court may, as a condition of probation, or without placing
the person on probation, order the person to make restitution to the victim of
the crime, the victim’s estate, or the family of a victim who is deceased. The
court shall base its restitution order upon a consideration of:

12
 (1) property damages of the victim incurred as a result of the crime, based on
the actual cost of repair (or replacement if repair is inappropriate);

(2) medical and hospital costs incurred by the victim (before the date of
sentencing) as a result of the crime;

(3) earnings lost by the victim; and

(4) funeral, burial, or cremation costs incurred by the family or estate of a
homicide victim as a result of the crime.

“[A] trial court may order restitution as part of a defendant’s sentence wholly apart from

probation.” Pearson, 883 N.E.2d at 772-73; see also, Miller v. State, 502 N.E.2d 92, 95 (Ind.

1986) (“[O]rder of restitution is as much a part of a criminal sentence as a fine or other

penalty.”) When restitution is ordered as part of an executed sentence, an inquiry into the

defendant’s ability to pay is not required. Pearson, 883 N.E.2d at 773. In such a situation,

restitution is merely a money judgment, and a defendant cannot be imprisoned for non-

payment. Ind. Code § 35-50-5-3(b); Pearson, 883 N.E.2d at 773.

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. Bockler, 908 N.E.2d at 348

(citing Green v. State, 811 N.E.2d 874, 877 (Ind. Ct. App. 2004)). An abuse of discretion

occurs when the trial court misinterprets or misapplies the law. Id.

The State argues that Edsall waived any claim concerning the trial court’s order of

restitution because he did not object at the trial court level. We recognize that the State’s

intention to seek restitution was mentioned a number of times, including in the PSI, and the

specific amount of restitution was discussed at length during the sentencing hearing. No

objection was posed. Nevertheless, we conclude that the issue was not waived. Here, where

13
the trial court ordered restitution as part of Edsall’s sentence, we treat this question like any

other claim that a trial court has violated its statutory authority in imposing sentence, which

may be raised for the first time on appeal. Rich v. State, 890 N.E.2d 44, 48 (Ind. Ct. App.

2008) (appellate courts will review trial court’s restitution order even where defendant did

not object, because restitution order is part of sentence and appellate courts have duty to

determine legality of sentences), trans. denied; Green, 811 N.E.2d at 877 (citing Abron v.

State, 591 N.E.2d 634, 638 (Ind. Ct. App. 1992), trans. denied).

That brings us back to the threshold question of whether the trial court had authority to

order restitution in this case. We conclude it did not. Initially, we note that restitution was

not mentioned in any form in the Plea Agreement or at the guilty plea hearing. The general

rule is that once an agreement is accepted, the trial court is precluded from imposing any

sentence other than that required by the plea agreement. Sinn v. State, 693 N.E.2d 78, 80

(Ind. Ct. App. 1998). In Sinn, the State argued that the imposition of restitution did not

increase the sentence and was not precluded by the plea agreement. This court rejected that

argument, finding that the trial court erred in ordering the defendant to pay restitution when

the plea agreement contained no provision allowing it. Id. Even assuming Edsall’s Plea

Agreement did not foreclose the trial court’s ability to order restitution, as the State asserts,

we find that the order of restitution was not appropriate here because the State was not a

“victim.” In reaching this decision, we examine Hendrickson v. State, 690 N.E.2d 765 (Ind.

Ct. App. 1998).

14
 In Hendrickson, the trial court ordered the defendant to repay funds that a government

drug task force officer had used to conduct controlled drug purchases. Hendrickson appealed

and challenged the trial court’s order of restitution, and we determined that allowing

Hendrickson to retain the money would have resulted in unjust enrichment. Specifically, we

held, “[R]equiring Hendrickson to pay the [drug task force] for the buy money expended

during the sting operation advances Indiana’s public policy of ensuring that victims are

reimbursed and defendants are prevented from being unjustly enriched by their criminal

acts.” Hendrickson, 690 N.E.2d at 768. Under those facts, the Hendrickson court considered

the State to be a “victim” within the meaning of Indiana Code section 35-50-5-3(a). Id.

Subsequently, in Green, a panel of this court further examined the concept of the State

as a victim and entitlement to restitution. There, the defendant pleaded guilty to criminal

confinement of his girlfriend. In sentencing Green, the trial court had ordered him to pay

restitution to the county prosecutor’s office because the State’s prosecution of Green had

required a forensic sexual assault examination of him. In reversing the restitution order, the

Green appellate court recognized that the State had not expended funds on behalf of the

victim of his criminal confinement. It clarified that, in Hendrickson, this court did not hold

that the State is considered a victim entitled to restitution any time it “elects” to spend money

to obtain criminal evidence. Green, 811 N.E.2d at 879. “If that were the prevailing rule of

law, then the State would seek restitution for any and all of its discovery costs.” Id. We

further explained, “[T]he restitution in Hendrickson was proper because to allow the

defendant to retain money that the drug task force had used during a controlled drug buy

15
involving the defendant would, in part, result in unjust enrichment.” Green, 811 N.E.2d at

879.

We find Green applicable here, where the trial court ordered Edsall to repay over

$19,000 that the drug task force spent during the course of the undercover criminal

investigation of Edsall, including for the purchase of over 10,000 pseudoephedrine pills and

the wages and expenses of law enforcement from various agencies. Although Edsall argues

that the restitution amount was excessive, we make no finding today on the amount of the

restitution. Rather, we hold that under the facts of this case the State was not a victim as

contemplated by the restitution statute, and the trial court’s order of restitution was not

proper.4 Compare Ault v. State, 705 N.E.2d 1078, 1082-83 (Ind. Ct. App. 1999) (where State

was entitled to restitution for Medicaid payments that it paid on behalf of infant victim

shaken and injured by defendant because it stood in shoes of victim and assumed cost of

victim’s care).

Affirmed part and reversed in part.

MATHIAS, J., and CRONE, J., concur.

4
Edsall also argues that the restitution order was in error because it included restitution for all counts,
some of which had been dismissed under the Plea Agreement. Appellant’s Br. at 8, 28. The State concedes
that to the extent the trial court’s restitution order included payments for pills used for charges that were
ultimately dismissed under the Plea Agreement, those expenditures may not be included in the restitution
order. Appellee’s Br. at 18. Because we find that the ordered restitution was not proper, we do not address
Edsall’s assertion that expenses incurred for dismissed counts were included in the restitution order.

16