Charlene Lewis v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 30, 2018
• Docket: 49A04-1712-CR-2776
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 30 2018, 9:09 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals 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 Agency Attorney General of Indiana Indianapolis, Indiana Katherine Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Charlene Lewis, April 30, 2018 Appellant-Defendant, Court of Appeals Case No. 49A04-1712-CR-2776 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Jose D. Salinas, Appellee-Plaintiff Judge Trial Court Cause No. 49G14-1611-F6-42945

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1712-CR-2776 | April 30, 2018 Page 1 of 6 [1] Charlene Lewis appeals following her plea of guilty to Level 6 Felony

Maintaining a Common Nuisance.1 Lewis argues that the amount of restitution

ordered by the trial court exceeded the amount she agreed to pay. Finding no

error, we affirm.

Facts [2] On October 26, 2016, Indianapolis Police Officer Brady Ball sustained a dog

bite in the process of serving a search warrant at Lewis’s residence. On

November 1, 2016, the State charged Lewis with Level 6 felony maintaining a

common nuisance and Level 6 felony neglect of a dependent.

[3] Lewis agreed to plead guilty to maintaining a common nuisance in exchange

for the dismissal of the neglect of a dependent charge. The plea agreement

states that Lewis would pay “Restitution to the City of Indianapolis in the

amount of $ TBD thru probation.” Appellant’s App. Vol. II p. 46.

[4] At the December 8, 2016, guilty plea hearing, the following exchange occurred:

Court: . . . Also there’s an issue perhaps of restitution to the City of Indianapolis; is that correct?

State: That’s correct, Judge.

Court: Okay.

Defense: And we just thought that to be determined through probation. If there was some sort of issue,

1 Ind. Code § 35-45-1-5(c).

Court of Appeals of Indiana | Memorandum Decision 49A04-1712-CR-2776 | April 30, 2018 Page 2 of 6 probation could let the Court know that we needed a hearing on the matter.

Court: What do we expect that number to be, in the hundreds or thousands or tens of thousands?

State: I don’t know. I received a preliminary letter from the City informing me that they would be requesting restitution and they would get a number to me. We just decided on this plea today and so I don’t have a number before me. I don’t know what that is. It’s for medical treatment for one of the officers.

Court: Okay. Okay. For medical treatment for one of the officers.

Lewis: They just showed me a paper that said that it was for $310.00.

Court: Okay. So you’ve got an idea of where you’re talking about?

Lewis: Yes.

Court: So –

Defense: So long as it’s not out of that range, she’s in agreement.

Court: Okay. That’s what you want to do with this; right?

Lewis: Yes, sir.

Tr. Vol. II p. 6-7. At the conclusion of that hearing, the trial court advised the

defendant as follows:

Court: . . . You will pay restitution to the City of Indianapolis in an amount to be determined through probation. If for some reason they Court of Appeals of Indiana | Memorandum Decision 49A04-1712-CR-2776 | April 30, 2018 Page 3 of 6 determine that number and they think it is drastically different than what you are expecting, talk to them politely about it and they can file a memo with the court and they’ll set it for a hearing and you can have a hearing with the Court. Okay?

Id. at 15.

[5] The following day, counsel for the City of Indianapolis submitted a letter to the

Marion County Probation Department requesting restitution in the amount of

$677.46 for Officer Ball’s medical expenses. On January 24, 2017, the

probation department submitted a memorandum and a request for restitution in

that amount to the trial court. The trial court informed Lewis that she could

either agree to that amount or contest it. Lewis indicated that she would

contest the amount, and the trial court responded as follows:

Understand what I’m saying. Probation was—restitution was agreed to. Okay. In other words, you agreed to pay restitution. Now what you didn’t agree to is what the amount would be at because we didn’t know it. Okay. So if you’re saying you don’t agree to that amount, your lawyer on March 10th needs to have reasons why you don’t—you’re not agreeing to that amount.

The issue of restitution is not what you’re fighting. You agreed to pay restitution. What that issue is is what the amount is going to be.

Id. at 28-29.

Court of Appeals of Indiana | Memorandum Decision 49A04-1712-CR-2776 | April 30, 2018 Page 4 of 6 [6] At the March 10, 2017, restitution hearing, Officer Ball testified that he had

sustained a dog bite while serving the warrant at Lewis’s residence. Counsel for

the city testified that the city paid $677.46 in medical expenses for treatment of

the officer’s injuries. The trial court bifurcated the hearing to allow Lewis and

her attorney time to prepare their witnesses. On May 5, 2017, the hearing

resumed. Lewis did not contest the amount of restitution ordered; instead, she

argued that she should not be required to pay it at all. Ultimately, the trial

court ordered Lewis to pay restitution in the amount of $677.46. Lewis now

appeals.

Discussion and Decision [7] On appeal, Lewis argues that the trial court improperly ordered restitution in

the amount of $677.46. A restitution order is within the trial court’s discretion,

and we will reverse only when the trial court’s order is against the logic and

effect of the facts and circumstances before it. Garcia v. State, 47 N.E.3d 1249,

1252 (Ind. Ct. App. 2015). The State bears the burden of submitting evidence

to support a restitution order. J.H. v. State, 950 N.E.2d 731, 734 (Ind. Ct. App.

2011). 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.’” Id. (quoting T.C. v. State, 839 N.E.2d 1222, 1227

(Ind. Ct. App. 2005)).

[8] Here, the plea agreement signed by Lewis stated that she would pay restitution

to the city “in the amount of $ TBD[.]” Appellant’s App. Vol. II p. 46. Once

Court of Appeals of Indiana | Memorandum Decision 49A04-1712-CR-2776 | April 30, 2018 Page 5 of 6 the trial court accepted that agreement, its terms became binding on the trial

court, the State, and Lewis. E.g., Bethea v. State, 983 N.E.2d 1134, 1144 (Ind.

2013). Lewis argues that this agreement was orally modified at the plea hearing

when she stated that she had received some indication that the restitution

amount would be $310 and her attorney stated that she agreed to pay the

amount “so long as it’s not out of that range[.]” Tr. Vol. II p. 6-7.

[9] We disagree that Lewis’s statements orally modified the plea agreement. The

State did not agree to any modification; indeed, the prosecutor stated at the plea

hearing that the State was still awaiting information from the city regarding the

amount of Officer Ball’s medical expenses. Id. The parties agreed that Lewis

must pay restitution to the city, that the amount was still unknown, and that if

the amount differed from the “range” of $310, Lewis could request a hearing to

contest the amount. In other words, there was no agreement—oral or

otherwise—to cap the restitution at $310.

[10] Lewis does not argue that she is unable to pay the amount of restitution

ordered, that the amount is unreasonable or unsupported by the evidence, or

that her plea agreement was not entered into knowingly or voluntarily. Under

these circumstances, the trial court did not err by ordering Lewis to pay

restitution in the amount of $677.46.

[11] The judgment of the trial court is affirmed.

Kirsch, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1712-CR-2776 | April 30, 2018 Page 6 of 6