Peggy Campbell v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 14, 2018
• Docket: 18A-CR-1273
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Dec 14 2018, 9:40 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark K. Leeman Curtis T. Hill, Jr. Logansport, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Peggy Campbell, December 14, 2018 Appellant-Defendant, Court of Appeals Cause No. 18A-CR-1273 v. Appeal from the Cass State of Indiana, Superior Court Appellee-Plaintiff. The Honorable James K. Muehlhausen, Judge Trial Court Cause No. 09D01-1702-F6-77

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1273 | December 14, 2018 Page 1 of 6 STATEMENT OF THE CASE [1] Appellant-Defendant, Peggy Campbell (Campbell), appeals from the trial

court’s restitution order entered following her guilty plea to exploitation of an

endangered adult, a Level 6 felony, Ind. Code § 35-46-1-12(a).

[2] We affirm in part, reverse in part, and remand with instructions.

ISSUE [3] Campbell presents one issue on appeal, which we restate as: Whether the trial

court abused its discretion when it ordered her to pay the victim $10,900 in

restitution.

FACTS AND PROCEDURAL HISTORY [4] In 2016, Campbell worked as a home health care worker providing daily living

support to W.B. in W.B.’s home. W.B. was ninety-five years old and had

dementia. From January 4, 2016, to November 15, 2016, Campbell and her

husband cashed checks that they either wrote for W.B. to sign or had W.B.

herself sign over to them. 1 Campbell cashed forty-four checks totaling $8,200.

W.B.’s daughter, B.E., who lived out-of-state, visited in November of 2016 and

found her mother to be living in unsanitary conditions, including a bed bug

1 Campbell’s husband was also criminally charged for this conduct.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1273 | December 14, 2018 Page 2 of 6 infestation. B.E. also examined her mother’s financial records and discovered

Campbell’s theft.

[5] On February 22, 2017, the State filed an Information, charging Campbell with

exploitation of an endangered adult, a Level 6 felony; and neglect of a

dependent, a Level 6 felony. On March 29, 2018, Campbell pleaded guilty to

the exploitation charge pursuant to an agreement whereby the State dismissed

the neglect of a dependent charge. While establishing a factual basis for her

plea, Campbell stated that, as W.B.’s home health care worker, she was

instructed not to touch W.B. Campbell’s plea agreement provided that

“[s]entences and restitution shall be argued.” (Appellant’s App. Vol. II, p. 65).

[6] The pre-sentence investigation report (PSI) filed in advance of Campbell’s

sentencing hearing contained a victim’s questionnaire completed by B.E., who

requested $10,900 in restitution. On April 24, 2018, the trial court held

Campbell’s sentencing hearing. The State presented evidence showing that

Campbell cashed $8,200 in checks written on W.B.’s account. Campbell denied

being responsible for infesting W.B.’s home with bed bugs, but she agreed to

pay $8,200 in restitution. The State requested that the trial court order

Campbell to pay $10,900, which consisted of the $8,200 Campbell had stolen

from W.B. and $2,700 of “cleanup cost” that W.B.’s family incurred addressing

the condition of her home. (Transcript Vol. II, p. 66). The trial court sentenced

Campbell to 912 days, with 547 of those days suspended to probation. The trial

court also ordered Campbell to pay W.B. $10,900 in restitution.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1273 | December 14, 2018 Page 3 of 6 [7] Campbell now appeals. Additional facts will be added as necessary.

DISCUSSION AND DECISION [8] Campbell appeals from the trial court’s restitution order. A restitution order

lies within a trial court’s discretion, and we will reverse such an order only

where there has been an abuse of that discretion. Dull v. State, 44 N.E.3d 823,

829 (Ind. Ct. App. 2015). An abuse of the trial court’s discretion occurs when

its decision is clearly against the logic and effect of the facts and circumstances

or when the trial court has misinterpreted the law. Id.

[9] A trial court may order a defendant to make restitution to the victim based on

consideration of “property damages of the victim incurred as a result of the crime .

. . ” Ind. Code § 35-50-5-3(a)(1) (emphasis added). However, absent an

agreement by the defendant, a trial court may not order restitution in an

amount greater than that involved in the crimes to which a defendant has

pleaded guilty. Polen v. State, 578 N.E.2d 755, 756-58 (Ind. Ct. App. 1991),

trans. denied; see also Dull, 44 N.E.3d at 832 (collecting cases on this principle

and reversing a restitution order based partially on uncharged conduct where

defendant did not agree to pay a greater amount).

[10] Here, Campbell pleaded guilty to the exploitation charge based on her theft of

money from W.B. Campbell did not plead guilty to the neglect of a dependent

charge, and, at her guilty plea and sentencing hearings, she denied neglecting

W.B. In addition, Campbell did not agree to pay an amount of restitution

greater than the $8,200 she stole from W.B. Contrary to the State’s contention

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1273 | December 14, 2018 Page 4 of 6 on appeal, the term of Campbell’s plea agreement that provided that the parties

would argue restitution at sentencing did not constitute an agreement on her

part to pay restitution for a crime to which she did not plead guilty. See Kinkead

v. State, 791 N.E.2d 243, 246 (Ind. Ct. App. 2003) (holding that plea agreement

term that the parties would argue restitution at sentencing was not an

agreement by defendant to pay restitution amount greater than that resulting

from his crime), trans. denied.

[11] Therefore, we conclude that the trial court abused its discretion when it ordered

Campbell to pay $2,700 based on cleanup costs which were not associated with

the exploitation charge to which Campbell pleaded guilty. Polen, 578 N.E.2d at

756-58; Dull, 44 N.E.3d at 832. We affirm the trial court’s restitution order of

$8,200 based on the exploitation charge, we reverse the trial court’s restitution

order of $2,700 based on cleanup costs unrelated to the exploitation charge, and

we remand with instruction to the trial court to enter a corrected restitution

order consistent with this opinion.

CONCLUSION [12] Based on the foregoing, we conclude that the trial court abused its discretion

when it entered its restitution order of $10,900. We affirm the trial court’s

restitution order in the amount of $8,200, reverse as to the additional $2,700,

and remand with instruction that the trial court enter a corrected restitution

[13] Affirmed in part, reversed in part, and remanded.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1273 | December 14, 2018 Page 5 of 6 [14] Kirsch, J. and Robb, J. concur

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1273 | December 14, 2018 Page 6 of 6