Gaunt v. State

• Decision Date: 30 April 2013
• Docket Number: No. 90A02–1210–CR–847.,90A02–1210–CR–847.
• Citation: 986 N.E.2d 866
• Parties: Joshua D. GAUNT, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

986 N.E.2d 866

Joshua D. GAUNT, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 90A02–1210–CR–847.

Court of Appeals of Indiana.

April 30, 2013.

Appeal from the Wells Circuit Court; The Honorable Kenton W. Kiracofe, Judge; Cause No. 90C01–1204–FC–10.

Kimberly A. Jackson, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Katherine Modesitt Cooper, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

FRIEDLANDER, Judge.

Joshua D. Gaunt pleaded guilty pursuant to a plea agreement to aiding, inducing, or causing burglary, as a class C felony. The trial court sentenced Gaunt to six years, with two years suspended to probation. Gaunt presents the following restated issues for review:

1. Is Gaunt's sentence inappropriate in light of the nature of the offense and his character?

2. Is Probation Condition 18 (Condition 18) overly broad, ambiguous, unreasonable, or impermissibly vague?

3. Did the trial court abuse its discretion in ordering Gaunt to pay restitution?

4. Did the trial court abuse its discretion in ordering Gaunt to pay a supplemental public defender fee?

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

The facts of the underlying occurrence, as admitted by Gaunt, are that on October 17, 2011, Chase Starr asked Gaunt to drive him to a motel located adjacent to a restaurant. Gaunt agreed. Once there, Gaunt assisted Starr, Brandon Hall, and Samantha Cole in loading items stolen from the nearby restaurant into the back of a red Durango parked behind a business near the motel. The items taken included a safe that contained over $7000.

As a result of his participation, the State charged Gaunt with class C felony aiding, inducing, or causing burglary. Gaunt entered into a guilty plea that left his sentence to the trial court's discretion and provided that the State would not make a specific sentencing recommendation. As a condition of his plea, Gaunt agreed to provide a statement to police prior to sentencing that implicated his co-defendants in the burglary. He also agreed to testify against all three at trial. The issue of restitution, “including whether to order it and the amount of restitution,” was also left to the trial court's discretion. Appellant's Appendix at 50.

At sentencing, the trial court identified as aggravating circumstances Gaunt's history of juvenile delinquent and criminal behavior and his recent violation of “the conditions of his probation, parole, or community corrections placement or any pretrial release that were granted to him[.]” Transcript at 53. The trial court identified as mitigators the facts that Gaunt pleaded guilty and that he cooperated with police. The trial court also noted at the time of sentencing that Gaunt was serving a sentence in Allen County. Finally, the court noted that Gaunt's sentence was not suspendable. The trial court imposed a six-year sentence, with two years suspended to probation. The trial court also determined that Gaunt may serve two years of the four executed years on home detention through community corrections, if he qualified and if he could pay the costs associated with the program. As conditions of probation, the court ordered Gaunt to pay restitution in the amount of $10,868.82, payable jointly and severally with his co-defendants, and ordered him to pay a supplemental public defender fee of $300. The court also imposed Condition 18, which stated that Gaunt “shall not associate with any person having a questionable reputation or criminal record.” Appellant's Appendix at 15.

1.

Gaunt contends his sentence is inappropriate in light of the nature of the offense and his character. Article 7, section 4 of the Indiana Constitution grants our Supreme Court the power to review and revise criminal sentences. Pursuant to Ind. Appellate Rule 7, the Supreme Court authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d 1219 (Ind.2008). Per App. R. 7(B), we may revise a sentence “if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Wilkes v. State, 917 N.E.2d 675, 693 (Ind.2009), cert. denied,131 S.Ct. 414 (2010). “[S]entencing is principally a discretionary function in which the trial court's judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d at 1223. Gaunt bears the burden on appeal of persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind.2006).

We agree with Gaunt's assertion that, considered by itself, the nature of his offense does not support a sentence in excess of the advisory sentence. We do not agree, however, with his claim that there are no grounds for enhancing his sentence based upon a consideration of his character. He cites several unfortunate facets of his childhood as mitigators. Although lamentable, those circumstances cannot be viewed as having played a causal role in his later brushes with the juvenile and criminal justice systems and thus are of negligible mitigating weight. By the time he was only nineteen years old, Gaunt had already received seven juvenile-delinquency adjudications. These included adjudications for residential entry, multiple acts of receiving stolen property, escape, resisting law enforcement, and possession of paraphernalia. As an adult, Gaunt was recently convicted of felony corrupt business influence, as a class C felony. He was arrested on that charge a mere six months after his release from incarceration from the Indiana Department of Correction. He committed the present offense less than seven months after he was released from incarceration for violating the dispositional order on his adjudication for residential entry.

In view of his history of juvenile delinquent and criminal behavior, which is not insubstantial when considered in relation to his relative youth, the sentence imposed by the trial court is not inappropriate.

2.

As a condition of probation, the trial court ordered that Gaunt “shall not associate with any person of questionable reputation or criminal record”, i.e., Condition 18. Appellant's Appendix at 15. Essentially, Gaunt challenges the portion of Condition 18 that forbids his association with “persons of questionable reputation” on the ground that this aspect of Condition 18 is overly broad, ambiguous, unreasonable, or impermissibly vague.

The trial court is vested with the discretion to determine the conditions of probation. Heaton v. State, 984 N.E.2d 614 (Ind.2013). We review for abuse of discretion, which occurs when the decision is clearly against the logic and effect of the facts and circumstances or when the trial court misinterprets the law. Id.

We agree with the State's assertion that the two prohibited associations, i.e., with persons having a questionable reputation and with persons having a criminal record, are set out in the same sentence and therefore the former must be interpreted with the latter in mind. Thus, the phrase “persons of questionable character” should not be understood as subject to the vagaries of individualized notions of what constitutes character that is beyond reproach, and that which is not. Rather, read in context, we think it clear that by “persons of questionable character,” the court was referring to persons who are known to engage in criminal activity. Understood as such, the condition is not impermissibly vague.

3.

Gaunt contends the trial court abused its discretion by ordering him to pay restitution. Gaunt contends that the restitution order is defective because: (1) the record does not support a finding that the restaurant owner suffered $10,868.82 in actual losses; (2) the trial court failed to inquire about Gaunt's ability to pay; and (3) the trial court did not fix the manner of payment.

An order of restitution is a matter committed to the trial court's discretion. Sickels v. State, 982 N.E.2d 1010 (Ind.2013). We will reverse the trial court's ruling only upon a showing of abuse of discretion, which occurs when the decision is clearly against the logic and effect of the facts and circumstances before the trial court. Id.

We begin with Gaunt's claim that the record does not support a finding that the victim of his crime suffered $10,868.82—the amount of restitution he was ordered to pay—in actual losses. A restitution order must be supported by sufficient evidence of actual loss sustained by the victim or victims of a crime. See Lohmiller v. State, 884 N.E.2d 903 (Ind.Ct.App.2008). “The amount of actual loss is a factual matter that can be determined only upon the presentation of evidence.” Bennett v. State, 862 N.E.2d 1281, 1286 (Ind.Ct.App.2007).

The victim of this offense, Ugaldes Family Restaurant, LLC (the Restaurant), was owned by Fernando Ugalde. The Restaurant was insured by State Farm Auto Insurance Companies. Ugalde filed a restitution claim form with the court and the probation department. The form included a contents inventory generated by State Farm Auto Insurance Companies in relation to this incident. The inventory listed the following missing items and their respective values: Two Samsung cash registers, valued at $549 apiece; a safe, $2500; and $7100 in cash. Ugalde also submitted an invoice for $728.40 for what appears to be repair of damages to the building that resulted from the forced entry into the restaurant. It is not clear to us how those individual amounts totaled $10,868.82—the amount indicated on Ugalde's restitution claim form. What is clear to us, however, is that a substantial amount of the Restaurant's loss was covered by insurance. The form reflects that all but a $500 deductible was covered by insurance. Indeed, it appears that the restitution claim form was completed incorrectly in that the “TOTAL RESTITUTION REQUESTED” was not reduced by the amount of loss...