Green v. State

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

811 N.E.2d 874

Daniel GREEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 01A02-0403-CR-235.

Court of Appeals of Indiana.

July 15, 2004.

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

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 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. State, 803 N.E.2d 1212, 1214 (Ind.Ct.App.2004) (stating appellate court reviews issues of law de novo).

Initially, the State asserts that Green has waived his restitution argument because he failed to object to the restitution order at trial. In support, the State directs us to Davis, 772 N.E.2d at 541. In that case, a burglary victim testified at the defendant's sentencing hearing that each day he had to appear in court, he lost $200 in income. Id. at 540. Although there was some dispute over the exact number of days the victim had actually appeared in court, the defendant admitted at the hearing that the victim was entitled to restitution. Id. at 540-41. The trial court ultimately ordered the defendant to pay $1,000 in restitution to the victim and, on appeal, the defendant argued that "the record was devoid of any evidence that [the victim] suffered an actual loss of earnings as a consequence of his attendance in court." Id. at 540. Under those facts, we determined that the defendant had waived review of his restitution challenge because he failed to object and, in fact, conceded that the victim was entitled to restitution. Id. at 541.

Davis is distinguishable because, again, the defendant in that case conceded that restitution was proper and the only dispute was an evidentiary dispute over the amount of restitution. Here, the dispute does not involve the amount of restitution, but whether the trial court exceeded its statutory authority when it ordered restitution. And because the trial court ordered restitution as part of Green's sentence, we treat this question like any other claim that a trial court has violated its statutory authority in imposing sentence, which amounts to fundamental error, and which may be raised for the first time on appeal. See, e.g., Abron v. State, 591 N.E.2d 634, 638 (Ind.Ct.App.1992)

(holding trial court's failure to sentence defendant in accordance with statutory requirements constitutes fundamental error and may, therefore, be raised by either party for first time on appeal), trans. denied.

Indiana Code Section 35-50-5-3(a) governs restitution and provides in relevant part:

In addition to any sentence imposed under this article for a felony or misdemeanor, the court may, as a condition of probation, or without placing the person on probation, order the person to make restitution to the victim of the crime, the victim's estate, or the family of a victim who is deceased. The court shall base its restitution order upon a consideration of:

(1)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);

(2)medical and hospital costs incurred by the victim (before the date of sentencing) as a result of the crime;

(3)earnings lost by the victim; and

(4)funeral, burial, or cremation costs incurred by the family or estate of a homicide victim as a result of the crime.

Although Friesendorf had no connection to the forensic sexual assault examination performed on Green, the State asserts that the trial court was authorized to order restitution for the cost of that examination because the State was a victim under these circumstances. The State correctly points out that a State entity may be considered a victim for purposes of the restitution statute. See Hendrickson v. State, 690 N.E.2d 765, 768 (Ind.Ct.App.1998)

. In Hendrickson, the trial court ordered the defendant to repay funds used by a government drug task force in a controlled drug buy involving the defendant. The defendant challenged the court's restitution order, and we held that to allow the criminal defendant to retain the money would have resulted in unjust enrichment. In particular, we observed that, "requiring Hendrickson to pay the [task force] for the buy money expended during the sting operation advances Indiana's public policy of ensuring that victims are reimbursed and defendants are prevented from being unjustly enriched by their criminal acts." Id. Thus, we held that, under those facts, the State was a "victim" under Indiana Code Section 35-50-5-3(a). See also Kingston v. State, 479 N.E.2d 1356, 1359 (Ind.Ct.App.1985) (affirming restitution order where defendant committed leaving scene of accident and trial court ordered defendant to reimburse State for traffic signal damaged in accident).

In support of its assertion that it was a victim in this case, the State directs us to Ault v. State, 705 N.E.2d 1078 (Ind.Ct.App.1999). In Ault, the defendant injured an infant victim by violently shaking the child, and the infant required extensive medical treatment. We held, in part, that the State was entitled to restitution for Medicaid payments it had made on behalf of the victim. Id. at 1083.

But Ault is distinguishable from this case. First, the State in Ault effectively stood in the shoes of the victim and became a surrogate by assuming the costs of the victim's medical care and treatment. And medical and hospital costs incurred by the victim are specific costs a trial court shall consider when imposing restitution. See Ind.Code § 35-50-5-3(a)(2).

Here, in contrast, there is no evidence that the State expended any funds on Friesendorf's behalf. Rather, the State seeks to be reimbursed for the cost of a forensic sexual assault exam it...