811 N.E.2d 874 (Ind.App. 2004), 01A02-0403-CR-235, Green v. State

Docket Nº:01A02-0403-CR-235.
Citation:811 N.E.2d 874
Party Name:Daniel GREEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Case Date:July 15, 2004
Court:Court of Appeals of Indiana

Page 874

811 N.E.2d 874 (Ind.App. 2004)

Daniel GREEN, Appellant-Defendant,

v.

STATE of Indiana, Appellee-Plaintiff.

No. 01A02-0403-CR-235.

Court of Appeals of Indiana

July 15, 2004.

Page 875

Daniel M. Grove, Special Assistant to the Public Defender of Indiana, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Stephen Tesmer, Deputy Attorney

Page 876

General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

In August 2003, the State charged Daniel Green with Criminal Deviate Conduct, as a Class A felony, Criminal Confinement, as a Class B felony, and Battery, as a Class C felony. In January 2004, Green pleaded guilty to the criminal confinement charge, and the State dismissed the remaining charges. The trial court then sentenced Green to a sixteen-year term of incarceration and ordered him to pay $1,345 in restitution to the Adams County Prosecuting Attorney's ("ACPA") deferral fund. Green now appeals and presents two issues for review:

1. Whether the trial court erred when it ordered restitution.

2. Whether his sentence is inappropriate in light of the nature of the offense and his character.

We affirm in part, reverse in part, and remand with instructions.

FACTS AND PROCEDURAL HISTORY

On August 1, 2003, Green went to the home of his girlfriend, Tami Friesendorf, and the couple consumed wine and engaged in consensual sex. Following an argument, Green confined Friesendorf in her bathroom, repeatedly struck and kicked her, and returned to the bathroom several times to continue the abuse. When Friesendorf heard the front door open and close, she escaped through the bathroom window and summoned police.

The State charged Green with criminal confinement, criminal deviate behavior, and battery. Upon his arrest, police officers conducted a forensic sexual assault examination on Green. The examination included digital photographs, fingernail swabs and scrapings, and fingerprints. In September 2003, Green filed his notice of Defense of Mental Disease or Defect alleging that he was not competent to stand trial, in part, because he had previously sustained injuries to his head and had been the victim of childhood abuse. The trial court ordered Green to be examined for competency and ultimately determined that he was competent to stand trial.

On January 5, 2004, Green entered a plea of guilty on the criminal confinement charge, and the State dismissed the remaining charges. The agreement was an "open plea," with sentencing left to the trial court's discretion. The trial court sentenced Green to sixteen years and ordered him to pay $1,345 in restitution. Specifically, at the sentencing hearing, the trial court stated in relevant part:

[T]he State had a bill from the forensic sexual assault examination on the defendant of $1,345. The Prosecuting Attorney is asking simply that a money judgment for that amount be entered in this criminal case. Is there any dispute over the dollar amount of that? OK. Then I'll simply go ahead and enter the amount of that judgment at this time.

The court's sentencing order directs Green to pay his restitution to the ACPA deferral fund. This appeal ensued.

DISCUSSION AND DECISION

Issue One: Restitution Order

Green first contends that the trial court erred when it ordered him to pay restitution to the ACPA deferral fund. In particular, he asserts that the restitution order was not authorized by statute and that the facts of this case are distinguishable from cases in which this court has allowed such

Page 877

restitution, namely, where the State was considered to be a "victim" under Indiana Code Section 35-50-5-3(a). 1 The State responds that the trial court properly determined that the State was a victim because the forensic examination was necessitated by Green's crimes against Friesendorf.

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. See Davis v. State, 772 N.E.2d 535, 540 (Ind.Ct.App.2002), trans. denied. An abuse of discretion occurs when the trial court misinterprets or misapplies the law. See Tapia v. State, 753 N.E.2d 581, 585 (Ind.2001) (citing McCullough v. Archbold Ladder Co., 605 N.E.2d 175, 180 (Ind.1993)). Here, the question presented is whether the State was a "victim" entitled to restitution under Indiana Code Section 35-50-5-3(a). This is a question of law that we review de novo. See Kopas v. State, 699 N.E.2d 1193, 1195 (Ind.Ct.App.1998) (applying de novo review where trial courts order of costs payable to Newton County Prosecuting Attorneys Council was not authorized under fee or restitution statute); see also Merritt v....

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