MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Feb 08 2017, 8:47 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Victoria L. Bailey Curtis T. Hill, Jr.
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Justine Archer, February 8, 2017
Appellant-Defendant, Court of Appeals Case No.
49A04-1606-CR-1444
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Travis Sandifur,
Appellee-Plaintiff. Commissioner
Trial Court Cause No.
49G05-1602-F6-5142
Bailey, Judge.
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Case Summary
[1] Justine Archer (“Archer”) appeals a restitution order following her plea of
guilty to Auto Theft, a Level 6 felony.1 She presents the issue of whether the
trial court abused its discretion because the order is not supported by sufficient
evidence. We reverse and remand for a new restitution hearing.
Facts and Procedural History
[2] On February 9, 2016, the State of Indiana charged Archer as follows:
On or about February 5, 2016, JUSTINE N ARCHER did
knowingly exert unauthorized control over the motor vehicle of
Robin Boyer, to-wit: 2003 Chevrolet; with the intent to deprive
the person of the vehicle’s value or use[.]
(App. at 16.) On March 31, 2016, Archer and the State appeared in open court
and advised that they had reached a plea agreement with respect to the charged
offense. The plea agreement indicated that the State would recommend a 545-
day sentence with 180 days to be served on home detention and the balance
suspended to probation. Additionally, the agreement provided:
$_____ to Robin Boyer, NCO with Robin Boyer, 80 hours CSW,
AMS upon completion of all CSW and full restitution with no
1
Ind. Code § 35-43-4-2.5(b)(1).
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violations. Any outstanding CSW shall be waived upon full
payment of restitution.
(App. at 29.)
[3] The trial court accepted Archer’s plea of guilty, establishing a factual basis as
follows:
Prosecutor: If this had proceeded to trial the State of Indiana
would have proven beyond a reasonable doubt that in Marion
County, Indiana, on or about February 5th, 2015, Justine Ann
Archer did knowingly exert unauthorized control over the
vehicle of Robin Boyer, to-wit, a 2013 [sic] Chevrolet with the
intent to deprive the person of any value of the vehicle’s value or
use. All of which is contrary to the statute against the peace and
dignity of the State of Indiana.
Court: And are those facts correct?
Archer: Yes.
(Tr. at 11-12.) Archer was sentenced in accordance with the State’s
recommendation of 545 days, with 180 days on home detention and the
balance suspended to probation. The trial court advised: “If the parties cannot
reach an agreement on restitution by May the 5th, then I’m going to set this …
for a hearing on restitution at which time we will determine the restitution
amount.” (Tr. at 13.)
[4] On June 16, 2016, the State, Archer, and the victim, Robin Boyer, appeared for
a restitution hearing. Boyer testified that she received her vehicle back five
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hours after she discovered it missing. By that time, “the entire front” had been
spray painted red. (Tr. at 20.) The State submitted into evidence an estimate
from a body shop indicating that restoration would cost $5,240.32. The State
also submitted into evidence a Kelley Blue Book estimate of value for a 2003
Chevrolet Trail Blazer. The report indicated a fair market range of $3,853 to
$5,730 and a suggested retail price of $5,251. Archer submitted into evidence
estimates ranging from a trade-in value of $2,145 to a private party sale value of
$3,591. The trial court ordered that Archer pay $5,240.32 in restitution. She
now appeals.
Discussion and Decision
[5] At the outset, we address the State’s contention that Archer cannot appeal the
restitution order because she affirmatively waived that right. The plea
agreement included Archer’s acknowledgement:
that he [sic] hereby waives the right to appeal any sentence
imposed by the Court, including the right to seek appellate
review of the sentence pursuant to Indiana Appellate Rule 7(B),
so long as the Court sentences the Defendant within the terms of
this plea agreement.
(App. at 31.)
[6] It is well-settled that plea agreements are in the nature of contracts entered into
between the defendant and the State. Lee v. State, 816 N.E.2d 35, 38 (Ind.
2004). If the court accepts a plea agreement, it shall be bound by its terms.
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Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind. 1994). “In order to avoid
mistakes and misrepresentations with regard to such a binding agreement,
counsel should reduce to writing all terms of a plea agreement.” Griffin v. State,
756 N.E.2d 572, 574 (Ind. Ct. App. 2001), trans. denied.
[7] Here, while the parties settled upon other terms of the sentence, they simply left
the amount of restitution as a blank item in the plea agreement. The amount of
restitution was not fixed nor did the parties specifically agree to give the trial
court the discretion to determine the amount of restitution without any prospect
for appellate review. We cannot say that the restitution amount constitutes a
“sentence within the terms of the plea agreement” such that Archer agreed to
forgo its appeal.2 (App. at 31.)
[8] Archer challenges the restitution order as unsupported by the evidence.
Specifically, she observes that she pled guilty to theft, not criminal mischief,
and argues that the State failed to meet its burden of showing the amount of the
loss incurred as a result of the particular conduct of theft.
[9] Indiana law authorizes the trial court to order restitution for damages incurred
“as a result of the crime.” Ind. Code § 35-50-5-3(a). Because restitution is
penal in nature, the statute providing for restitution must be strictly construed
2
We cannot accept the State’s rationale that there is no practical difference between the sentencing
components of incarceration and restitution. The terms of incarceration are strictly circumscribed by statute;
thus, if a term of incarceration is left “open,” our Legislature has provided parameters. On the other hand,
restitution is not circumscribed by a statutory cap. Allowing “open” restitution to become a non-appealable
term in an agreement could incentivize the use of a blank check with no recourse.
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against the State to avoid enlarging it beyond the fair meaning of the language
used. Cherry v. State, 772 N.E.2d 433, 439 (Ind. Ct. App. 2002), trans. denied.
[10] An order of restitution is within the trial court’s discretion and will be reversed
only for an abuse of that discretion. Kays v. State, 963 N.E.2d 507, 509 (Ind.
2012). A trial court abuses its discretion when its decision is clearly against the
logic and effect of the facts and circumstances or when the trial court has
misinterpreted the law. Dull v. State, 44 N.E.3d 823, 829 (Ind. Ct. App. 2015).
[11] “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). “Restitution also serves to
compensate the offender’s victim.” Id. The restitution order must reflect the
actual loss suffered by the victim, which is a factual matter that can only be
determined by the presentation of evidence. Smith v. State, 990 N.E.2d 517, 520
(Ind. Ct. App. 2013), trans. denied. A restitution order is sufficiently supported if
there is a reasonable basis for estimating loss and the fact-finder is not required
to engage in speculation or conjecture. Guzman v. State, 985 N.E.2d 1125, 1130
(Ind. Ct. App. 2013) (quotation omitted). The victim’s in-court testimony may
be sufficient to support a restitution order. Blixt v. State, 872 N.E.2d 149, 153-54
(Ind. Ct. App. 2007).
[12] Here, “the crime” was Auto Theft. The factual basis for that crime, upon
which the trial court could award restitution, is that “Archer did knowingly
exert unauthorized control over the vehicle of Robin Boyer … with intent to
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deprive [Boyer] … of the vehicle’s value or use.” (Tr. at 11.) At the restitution
hearing, the State asked Archer if she drove the Chevy and “saw” red spray
paint “all over the truck.” (Tr. at 39.) The State did not otherwise develop facts
that would arguably support the restitution order based upon spray paint
damage. On appeal, the State invites us to fill in evidentiary gaps by assuming
that Archer spray-painted Boyer’s vehicle in the course of the auto theft.
[13] The conduct to which Archer pled guilty was the theft of Boyer’s 2003 Chevy.
The trial court’s conclusion that all the costs of repair and replacement items
enumerated in State’s Exhibit 1 (repair estimate) are attributable to the theft
goes beyond the evidence of record. We find the order for the payment of
$5,240.32 to be an abuse of discretion under these circumstances. See e.g., Dull,
44 N.E.3d at 832 (“Because Dull did not plead guilty to committing theft of
Beshears’s grain prior to the summer of 2013 and because he did not agree to
pay restitution for grain sold prior to that time period, the trial court abused its
discretion by ordering him to do so.”); Hill v. State, 25 N.E.3d 1280, 1283 (Ind.
Ct. App. 2015) (“Absent an agreement to pay restitution, a defendant may not
be ordered to pay restitution for an act that did not result in a conviction.”);
Polen v. State, 578 N.E.2d 755, 757 (Ind. Ct. App. 1991) (holding that the trial
court erred in ordering restitution in an amount greater than sums involved in
those crimes to which Polen actually pled guilty), trans. denied.
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Conclusion
[14] We remand for a hearing on the actual loss Boyer suffered as a result of
Archer’s theft of her vehicle.3
[15] Reversed and remanded.
Najam, J., and May, J., concur.
3
In Iltzsch v. State, 961 N.E.2d 55, 57 (Ind. 2013), our supreme court observed that a remand for new
evidence pertinent to restitution is not, in appropriate circumstances, allowing a “second bite at the apple.”
Here, where Archer agreed to pay restitution, we conclude that remand is appropriate.
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