FILED
                                                              Jan 25 2017, 8:04 am

                                                                   CLERK
                                                               Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Mitchell L. Osterday                                       Curtis T. Hill, Jr.
      Joel M. Schumm                                             Attorney General of Indiana
      Indianapolis, Indiana                                      Michael Gene Worden
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jerry Baker,                                               January 25, 2017
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A02-1605-CR-1154
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable David Certo, Judge
      Appellee-Plaintiff                                         Trial Court Cause No.
                                                                 49G12-1511-CM-40727



      Altice, Judge.


                                                 Case Summary


[1]   Jerry Baker pled guilty to operating a vehicle while intoxicated as a Class A

      misdemeanor. Following a restitution hearing, the trial court ordered Baker to

      pay restitution in the amount of $2,082.00, which was the difference between

      the insurance payout for the totaled vehicle and the cost of a replacement

      Court of Appeals of Indiana | Opinion 49A02-1605-CR-1154 | January 25, 2017              Page 1 of 8
      vehicle. On appeal, Baker argues that the trial court abused its discretion in

      ordering him to pay restitution in the amount of $2,082.00.


[2]   We reverse and remand.


                                        Facts & Procedural History


[3]   On November 16, 2015, Baker was involved in an automobile accident with

      Nancy Apollos at the intersection of Rockville Road and Lynhurst Avenue in

      Indianapolis. An officer who responded to the scene observed that Baker

      exhibited signs of intoxication. Baker failed several field sobriety tests and a

      breathalyzer indicated he had an alcohol concentration equivalent to .209

      grams of alcohol per 210 liters of breath. Baker was arrested and charged with

      two counts relating to his operation of a vehicle while intoxicated.


[4]   Pursuant to a plea agreement, Baker pled guilty to operating a vehicle while

      intoxicated endangering a person, a Class A misdemeanor, and the State

      dismissed the second charged offense. The plea agreement and subsequent

      probation order provided that Baker would pay restitution in an amount to be

      determined. On May 4, 2016, the trial court held a restitution hearing at which

      Apollos testified that she was driving her father’s 1996 Buick Park Avenue at

      the time of the accident and that the car was totaled. Insurance paid her father

      $1,718.81 for the Park Avenue. As a replacement for her father’s car, Apollos

      purchased a 2002 Buick Century for $3,800.00. Apollos paid the $2,082

      difference between the insurance payout and the cost of the Buick Century with

      her own funds. Apollos asked the trial court to award her restitution to cover

      Court of Appeals of Indiana | Opinion 49A02-1605-CR-1154 | January 25, 2017   Page 2 of 8
      this out-of-pocket expense. The trial court stated, “I’m concerned of a windfall,

      but going out and buying a car at $3800 is reasonable enough, and she should

      be reimbursed by the defendant.” Transcript at 34-35. The trial court, while

      noting that Apollos may never “see a dime in the first place,” ordered Baker to

      pay $2,082.00 in restitution to Apollos. Id. at 34. Baker appeals from the trial

      court’s restitution order. Additional facts will be provided as necessary.


                                           Discussion & Decision


[5]   Baker argues that the trial court abused its discretion in determining the amount

      of restitution he owed to Apollos.


[6]   “[T]he 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, and

      that restitution also serves to compensate the victim.” Morgan v. State, 49

      N.E.3d 1091, 1093-94 (Ind. Ct. App. 2016) (quoting Iltzsch v. State, 981 N.E.2d

      55, 56 (Ind. 2013)). Pursuant to Ind. Code § 35-50-5-3(a)(1), in ordering

      restitution, a trial court shall consider “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).” Because restitution is penal in nature, the statute

      providing for restitution must be strictly construed against the State to avoid

      enlarging it beyond the fair meaning of the language used. Morgan, 49 N.E.3d

      at 1094.


[7]   Accordingly, a restitution order must reflect a loss sustained by the victim “as a

      direct and immediate result” of the defendant’s criminal acts. Rich v. State, 890

      Court of Appeals of Indiana | Opinion 49A02-1605-CR-1154 | January 25, 2017   Page 3 of 8
      N.E.2d 44, 51 (Ind. Ct. App. 2008), trans. denied. The amount of actual loss is a

      factual matter to be determined upon the presentation of evidence. Id. at 49.

      We review a trial court’s order of restitution for an abuse of discretion. Bockler

      v. State, 908 N.E.2d 342, 348 (Ind. Ct. App. 2009). An abuse of discretion

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


[8]   In S.G. v. State, 956 N.E.2d 668 (Ind. Ct. App. 2011), trans. denied, the victim’s

      iPhone 3G was stolen from her handbag by a juvenile. The victim replaced her

      stolen phone with the newer iPhone 4G model. The victim testified that she

      had paid $399 for the stolen iPhone 3G and $29.99 for a case. She further

      testified that the replacement iPhone 4G and a case cost about $450. In

      addition to this amount, the victim’s request for restitution also included the

      cost associated with a technology plan and sales tax, for a total of $500.76. As

      a condition of the juvenile’s probation, the court ordered the juvenile to pay

      $501.00 in restitution to the victim. This court reversed the trial court’s

      restitution order, holding that the victim was entitled to only the actual

      replacement cost (i.e., value) of the phone that was stolen, not the cost of the

      newer model that the victim purchased. The court held that “[r]estitution is not

      a means by which a victim may obtain better or more state of the art

      equipment.” Id. at 684.


[9]   Baker argues that S.G. is controlling here and limits restitution to the

      replacement cost of the 1996 Buick Park Avenue, not the value of the 2002

      Buick Century that the trial court used in deciding the amount of restitution. In

      response, the State does not attempt to distinguish S.G., but rather argues that

      Court of Appeals of Indiana | Opinion 49A02-1605-CR-1154 | January 25, 2017   Page 4 of 8
       to limit restitution to that paid by the insurance company would provide Baker

       with “a huge windfall in that he would not be required to pay any restitution

       whatsoever.” Appellee’s Brief at 10 (emphasis in original). This, the State

       asserts, runs counter to the purposes of restitution, those being to impress upon

       the defendant the magnitude of the loss that his crime has caused and to

       compensate the victim.1


[10]   As noted above, the standard followed in Indiana is that restitution shall be

       based on the “actual cost of repair (or replacement if repair is inappropriate).”

       I.C. § 35-50-5-3(a)(1). S.G. makes clear that for restitution purposes, the

       replacement cost is the value of the destroyed item at the time of the loss. Here,

       that amount would be the value of the Park Avenue at the time of the accident.

       The State’s only evidence in this regard is the $1,718.81 amount paid by

       insurance. The trial court, however, improperly based its restitution order on

       the $3,800 cost of 2002 Buick Century Apollos purchased as a replacement

       minus the insurance payment. The $1,718.81 paid by the insurance company

       may or may not represent the actual replacement cost of the destroyed item, but

       even if it does, Baker is not entitled to a credit for the victim’s insurance

       payment. See Dupin v. State, 524 N.E.2d 329, 331 (Ind. Ct. App. 1988) overruled

       on other grounds by Kelly v. State, 539 N.E.2d 25 (Ind. 1989).




       1
         We reject the State’s argument that Baker’s challenge to the amount of restitution is “essentially an attempt
       to breach one of the substantial terms of his plea agreement.” Appellee’s Brief at 10. We find this to be an
       inaccurate characterization of Baker’s argument. Baker does not argue that he is not required to pay
       restitution. His challenge is only to the trial court’s method of calculation.

       Court of Appeals of Indiana | Opinion 49A02-1605-CR-1154 | January 25, 2017                         Page 5 of 8
[11]   As observed by our Supreme Court, restitution is “part and parcel to our system

       of criminal punishment” and it cannot be precluded by civil settlements, or as in

       this case, insurance payments. Haltom v. State, 832 N.E.2d 969, 971 (Ind. 2005).

       Baker may not now shield himself from a restitution order by arguing that the

       victim was already compensated in the form of insurance payments. Indeed, it

       seems incongruous with the purposes of restitution that the defendant should

       reap the benefits of the victim’s insurance policy. Thus, contrary to the State’s

       argument, Baker will not receive “a huge windfall” as he can still be ordered to

       pay restitution as a matter of criminal punishment. Cf. Little v. State, 839

       N.E.2d 807, 810 (Ind. Ct. App. 2005) (holding that restitution order was an

       abuse of discretion where it provided victim with duplicate recovery for medical

       expenses covered by insurance, but noting that duplicate recovery could be

       avoided by ordering restitution amounts be paid directly to insurance company

       or reducing restitution amount to victim to include only those amounts victim

       owed to insurance companies under subrogation liens). 2


[12]   In sum, the trial court abused its discretion in basing its restitution order on the

       amount Apollos paid for the Buick Century and then awarding her the

       difference between the insurance payout and the cost of that car. We remand to

       the trial court with instructions to enter a restitution order for the value of the

       Park Avenue prior to the accident.




       2
           It is unclear from the record whether a subrogation lien exists in this case.


       Court of Appeals of Indiana | Opinion 49A02-1605-CR-1154 | January 25, 2017         Page 6 of 8
[13]   As a second issue, Baker argues that the trial court erred by not inquiring into

       his ability to pay the restitution awarded to Apollos. Restitution may be

       awarded as a condition of probation or as a part of a defendant’s sentence

       wholly apart from probation. See Pearson v. State, 883 N.E.2d 770, 772 (Ind.

       2008). When the trial court orders restitution as a condition of probation, the

       court is required to inquire into the defendant’s ability to pay. See Ind. Code §

       35-38-2-2.3(a)(6) (“[w]hen restitution or reparation 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”). Where

       restitution is ordered as part of an executed sentence, an inquiry into the

       defendant’s ability to pay is not required. Pearson, at 773 (citing Shaffer v. State,

       674 N.E.2d 1, 9 (Ind. Ct. App. 1996)).


[14]   The parties make competing arguments as to how to classify the restitution

       order—as a condition of probation or a part of the executed sentence. A review

       of the record reveals that Baker agreed to the standard conditions and fees of

       probation, which included the requirement that he “pay all Court-ordered fines,

       costs, fees and restitution as directed.” Appellant’s Appendix at 33. Further, in

       the written sentencing order, the court noted “restitution to [N]ancy Apollos

       TBD” in a comment section for probation. Id. at 13-14. This same notation is

       included in a description of terms of probation on the Standard Conditions

       form. Thus, despite the fact that the trial court did not check a separate box

       indicating restitution was a condition of probation, we think that restitution was

       clearly intended as such. Consequently, it was incumbent on the trial court to


       Court of Appeals of Indiana | Opinion 49A02-1605-CR-1154 | January 25, 2017   Page 7 of 8
       inquire into Baker’s ability to pay and to fix the manner of performance with

       regard to the payment of restitution.3 See Bell v. State, 59 N.E.3d 959, 963 (Ind.

       2016) (citing Pearson, 883 N.E.2d at 772). On remand, the trial court is directed

       to make such inquiry.


[15]   Judgment reversed and remanded.


[16]   Riley, J. and Crone, J., concur.




       3
        We note that Baker was fully aware of the date and time of the restitution hearing, and yet he failed to
       appear for the hearing, thereby depriving the trial court of the opportunity to make the necessary inquiry into
       his ability to pay at that time.

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