Ault v. State

• Decision Date: 19 February 1999
• Docket Number: No. 18A04-9807-PC-342,18A04-9807-PC-342
• Citation: 705 N.E.2d 1078
• Parties: James R. AULT, Appellant-Defendant, v. STATE OF Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1078

705 N.E.2d 1078

James R. AULT, Appellant-Defendant, v. STATE OF Indiana, Appellee-Plaintiff.

No. 18A04-9807-PC-342.

Court of Appeals of Indiana.

Feb. 19, 1999.

Katharine C. Liell, Liell, McNeil & Harper, Bloomington, IN, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Rosemary Borek, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

BAKER, Judge

Appellant-defendant James R. Ault appeals his sentence for Battery, ¹ a Class C felony. Specifically, he argues that the trial court violated due process when it imposed a "more severe" sentence than it did for his previous conviction for Aggravated Battery, ² a Class B felony. Furthermore, he maintains that the imposition of a restitution order to the mother of the injured infant and to the State is contrary to law.

FACTS

The facts most favorable to the judgment reveal that Ault was entrusted with the temporary care of the two-month-old N.F., on March 8, 1995. Ault admitted shaking N.F. and seeing the baby's head move back and forth three to four times. Upon returning home, N.F.'s mother brought N.F. to the emergency room, where he was diagnosed with Shaken Baby Syndrome. He suffered retinal hemorrhaging and permanent brain damage which has left him severely retarded. N.F. takes his food through a tube in his stomach. At age three, he could not sit up, roll over or consistently hold up his head. N.F. will require full-time nursing care throughout his life. He will continually suffer from seizures, and his life expectancy is less than twenty years. In addition, N.F. will never learn to crawl, walk, or talk. As a result of his injuries, N.F. requires medical care amounting to nearly $10,000 per month. Most of N.F.'s medical expenses have been covered by Medicaid. In addition, as a result of the injuries to N.F., N.F.'s mother has had to leave her position as a respiratory therapist in order to care for her son. She has also been obliged to move to a smaller apartment and to purchase a van costing $4,500 in order to transport N.F. N.F.'s mother estimates her additional out-of-pocket expenses related to N.F.'s care to be $200 per month.

After a bench trial on October 4, 1995, Ault was found guilty of Aggravated Battery, a Class B felony. The trial court found that aggravating and mitigating circumstances balanced in this case and sentenced Ault to the presumptive sentence of ten years. Ault appealed his conviction to this court, and we affirmed in a memorandum decision. Ault v. State, No. 18A02-9601-CR-42, 676 N.E.2d 1109 (Ind.Ct.App., February 25, 1997). Subsequently, Ault filed a petition for post-conviction relief claiming that he had not waived his right to a jury trial. The post-conviction court granted the petition and vacated the conviction. On March 26, 1998, Ault pled guilty to Battery, a Class C felony, before the same court. There was no plea agreement. In its sentencing order, the court listed the aggravating and mitigating factors it had considered and then stated: "The Court, being even more informed now as to the nature and extent of the injury caused herein, now Finds that the aggravating circumstances outweigh the mitigating circumstances in this cause warranting an increase in the sentence to be imposed." Record at 92. The court sentenced Ault to the maximum period of eight years, awarding credit time for two years and 148 days which Ault had served. R. at 92. In addition, the court made one restitution order in favor of N.F.'s mother in the amount of $100,000, and one jointly in favor of N.F.'s mother and the State, in the amount of $350,000. Ault now appeals.

DISCUSSION AND DECISION

I. MORE SEVERE PENALTY?

Ault argues that his aggravated sentence resulted from the trial judge's vindictiveness following Ault's successful post-conviction challenge. He points out that the trial court ordered the presumptive sentence for his first conviction and then ordered an enhanced sentence for the lesser charge. Thus, Ault concludes that the trial court erroneously ordered a more severe penalty in the second instance.

We note initially our standard of review. Sentencing decisions rest within the sound discretion of the trial court. Smith v. State, 658 N.E.2d 910, 918 (Ind.Ct.App.1995). This court will reverse a sentence only upon a showing of manifest abuse of discretion. Id. Because a certain degree of subjectivity "cannot be eliminated" from the sentencing process, our supreme court has stated that it is inappropriate to substitute the opinion of an appeals court regarding sentencing for the trial court's. Hurt v. State, 657 N.E.2d 112, 114 (Ind.1995).

After a petitioner has obtained post-conviction relief, a trial court may not impose a more severe penalty when the petitioner is subsequently convicted unless it articulates reasons based upon information regarding the defendant's conduct after the time of the original sentencing. ³ The question raised in this case is whether the enhanced penalty of eight years, for a lesser offense, coupled with a restitution order, is a more severe penalty than the presumptive ten-year sentence imposed for the original, greater offense. If it is, the court's reasons for the more severe sentence would have to fulfill the requirements of PC Rule 1, § 10. However, for the reasons set forth below, we find that Ault's current sentence is not a more severe penalty than his original sentence.

Ault cites McBroom v. State, 530 N.E.2d 725, 727 (Ind.1988) for the notion that a sentence can be a "more severe penalty" even though it is not longer than the original sentence. In McBroom, a petitioner was granted post-conviction relief from a thirty-year sentence for murder. He then was charged with both murder and confinement, and after a trial by jury, was convicted of both. Id. He was sentenced to concurrent terms for the two convictions. Id. Our supreme court found that the additional twenty-year sentence for his conviction for criminal confinement was a more severe penalty within the meaning of PC Rule 1, § 10, even though he was not sentenced to more years in prison. However, the court explicitly viewed the case "in the double jeopardy context" and held that, in this context, PC Rule 1, § 10 prohibits the State from adding a charge after a post-conviction proceeding. Id. at 727.

In the instant case, no additional charge was involved, but rather a lesser charge. Moreover, Ault was sentenced to a term of fewer years. The sentence is thus not a more severe penalty, and PC Rule 1, § 10 does not apply. The trial court was therefore not required to give reasons for the sentence related to the defendant's conduct occurring after the original date of sentencing. Instead, we apply the abuse of discretion standard and affirm the trial court's finding that the aggravating factors outweighed the mitigating factors in the context of a conviction for a lesser offense. See Tumulty v. State, 666 N.E.2d 394, 396 (Ind.1996) (trial court's balancing of aggravating and mitigating factors reviewed under abuse of discretion standard).

Ault also maintains that the imposition of the restitution order together with his sentence constitutes a "more severe penalty." Appellant's brief at 17. For the same reasons outlined above, we are not inclined to second-guess the trial court's evaluation of the severity of the restitution order and sentence. The restitution statute provides that the court may order restitution "in addition to any sentence imposed." IND.CODE § 35-50-5-3. Moreover, Ault expressed a wish to pay restitution. R. at 143, 160. We find no rational way to measure whether a restitution order and an eight-year sentence is "more severe" than a ten-year sentence, and thus we again find that the trial court was within its discretion. See Tumulty, 666 N.E.2d at 396.

II. ORDER OF RESTITUTION

Ault next contends that the order of restitution was contrary to law. He argues that neither the State nor N.F.'s mother is a "victim" under the terms of the restitution statute and thus neither may be compensated. Secondly, he maintains that the order exceeded the amount of actual loss suffered by N.F., the actual victim before the time of sentencing.

We note initially our standard of review. An order of restitution is within the trial court's discretion and will be reversed only upon a finding of abuse of discretion. Vanness v. State, 605 N.E.2d 777, 783 (Ind.Ct.App.1992). Under an abuse of discretion standard, we will affirm the trial court's decision if there is any evidence supporting the decision. Gleason v. Bush, 689 N.E.2d 480, 484 (Ind.Ct.App.1997).

A. Who Is the Victim?

Ault argues that the State is not the victim of his actions, as contemplated by I.C. § 35-50-5-3. ⁴ He also maintains that case law has only deemed the State a victim when it suffered loss as a "direct and immediate result of the defendant's actions." Appellant's brief at 12. ⁵ He argues, therefore, that restitution to the State cannot be ordered under the statute in the instant case.

We note that a trial court has the authority to order a defendant convicted of a felony to make restitution to the victims. I.C. § 35-50-5-3(a). Restitution is a means of impressing upon a criminal defendant the magnitude of the loss he has caused. Kotsopoulos v. State, 654 N.E.2d 44, 46 (Ind.Ct.App.1995). Moreover, I.C. § 35-50-5-3 has been interpreted to mean that a state entity can be considered a "victim." Hendrickson v. State, 690 N.E.2d 765, 768 (Ind.Ct.App.1998) (United Drug Task Force was entitled to restitution from defendant who accepted its purchase money for drugs). Ault seeks to distinguish Hendrickson, arguing that there, the State suffered a "loss as a direct and immediate result of [a criminal act]," while in this case, the State suffers no such loss but is rather similar to "an insurance agency." Appellant's Reply Brief at 13. However, we fail to see a distinction favorable to Ault. In Hendrickson, the State...