Kelley v. State

• Decision Date: 13 June 2014
• Docket Number: No. 02A03–1308–CR–329.,02A03–1308–CR–329.
• Citation: 11 N.E.3d 973
• Parties: Randolph KELLEY, Appellant, v. STATE of Indiana and Paige A. Devlin, Appellees.
• Court: Indiana Appellate Court

11 N.E.3d 973

Randolph KELLEY, Appellant,

v.STATE of Indiana and Paige A. Devlin, Appellees.

No. 02A03–1308–CR–329.

Court of Appeals of Indiana.

June 13, 2014.

J. Kevin King, Peter Campbell King, Cline, King & King, P.C., Columbus, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney

General, Indianapolis, IN, Attorneys for Appellee State of Indiana.

Dennis R. Brown, Dennis R. Geisleman, Geisleman & Brown, LLP, Fort Wayne, IN, Attorneys for Appellee Paige A. Devlin.

OPINION

FRIEDLANDER, Judge.

Randolph Kelley appeals from the trial court's order awarding Paige A. Devlin a $50,000 credit toward a restitution order entered in Kelley's favor. Concluding that the decision to award such a credit was within the trial court's discretion, we affirm.¹

In April 2011, Devlin was driving while intoxicated when she rear-ended Kelley's vehicle. Kelley was seriously injured as a result of the collision. Devlin subsequently pleaded guilty to class D felony operating a vehicle while intoxicated causing serious bodily injury and class C misdemeanor illegal consumption of an alcoholic beverage. As part of her sentence, Devlin was ordered to pay restitution to Kelley in the amount $59,974.87.

After the entry of the restitution order, Kelley initiated a civil suit against Devlin and his own underinsured motorist coverage provider. Eventually, Kelley agreed to settle the civil matter with Devlin for her $50,000 insurance policy limits. Shortly thereafter, a dispute arose concerning the language of the release and its effect on the previously entered restitution order. Kelley sought the inclusion of language within the release specifically providing that the settlement would have no impact on the restitution order. Devlin refused to include such language, arguing that Kelley had not bargained for it. Devlin eventually filed a motion to enforce the settlement agreement. A hearing was held before the civil court, at which Devlin argued that Kelley had not bargained for the inclusion of limiting language concerning the restitution order in the settlement agreement, and that in any event it was for the criminal court to determine what effect, if any, the settlement would have on the restitution order. The civil court ultimately ordered Kelley to execute a general release providing that he released Devlin “from any and all claims, demands, actions, and causes of action of each and every kind, whatsoever” relating to the car accident. Appellee Paige A. Devlin's Appendix at 1. The civil court specifically made “no determination whatsoever as to the effect of this settlement of the civil case upon the Order of Restitution” in the criminal matter and concluded that “whether or not any or all of this is a credit against the restitution is something to be determined by Judge Gull in the Criminal Division and not by this Court.” Appellant's Appendix at 75. Kelley executed the release as ordered and did not appeal the civil court's decision.

Thereafter, Kelley filed a petition for proceedings supplemental in the criminal matter, seeking to collect on the restitution order. Devlin filed a response arguing that she was entitled to a credit toward the restitution order in the amount of $50,000 based on the civil settlement and release. A hearing was held on July 23, 2013, at which Kelley, Devlin, and the State all appeared. The State agreed that Devlin should receive a credit toward the restitution order. At the conclusion of the evidence and argument, the criminal court concluded that Kelley had signed an unambiguous release and that it was “only fair” to credit the $50,000 civil judgment against the restitution order, leaving Devlin with an outstanding restitution order in the amount of approximately $9,974.87. Transcript at 35. Kelley now appeals. ²

Before proceeding to the merits of Kelley's appeal, we address Devlin's argument that Kelley lacks standing to challenge the trial court's order because “the State and the defendant are the only two parties with standing in a criminal sentencing proceeding.” Appellee's Brief at 9. Our Supreme Court has explained that “an order of restitution is as much a part of a criminal sentence as a fine or other penalty.” Haltom v. State, 832 N.E.2d 969, 971 (Ind.2005) (quoting Miller v. State, 502 N.E.2d 92, 95 (Ind.1986)). The Court has also explained that the State and the defendant are the only two parties with standing in a criminal sentencing proceeding. Haltom v. State, 832 N.E.2d 969. See also Johnston v. State, 702 N.E.2d 1085 (Ind.Ct.App.1998) (explaining that victims' family had no standing to contest a criminal court's modification of defendant's sentence because the defendant and the State are the only two parties with standing), trans. granted, adopted in relevant part in Johnston v. Dobeski, 739 N.E.2d 121 (Ind.2000).

We have serious doubts concerning Kelley's standing in this matter. Except in certain limited circumstances not applicable here, a trial court is not required to enter a restitution order.³ In other words, a victim has no right to receive restitution in a criminal matter. If the criminal court in this case had declined to enter a restitution order in the first instance, it is clear that Kelley would have no authority to intervene in an attempt to compel it to do so. Although this court has held that a victim in whose favor a restitution order has been entered may commence proceedings supplemental to collect on an existing restitution order, Wininger v. Purdue Univ., 666 N.E.2d 455 (Ind.Ct.App.1996) (citing I.C. § 35–50–5–3(b) (providing that a restitution order is a judgment lien that may be enforced in the same manner as a judgment lien created in a civil proceeding)), we have never held that this right includes the authority to challenge a criminalcourt's discretionary rulings concerning the amount of a restitution order or its decisions to modify such an order.

We note, however, that Devlin has raised her standing argument for the first time on appeal. Indeed, when the State questioned Kelley's standing before the criminal court, Devlin's counsel stated that he had “no objection to [Kelley] doing a Proceeding Supplemental.” Transcript at 4. On appeal, Devlin claims she conceded only that Kelley had standing to institute proceedings to collect an existing restitution order, but not to challenge that trial court's decision to grant an offset or modification of such an order. But Devlin drew no such distinction before the trial court and never suggested that Kelley's standing was so limited. This court has acknowledged that the issue of standing may be waived. See Burcham v. Metro. Bd. of Zoning Appeals Div. I of Marion Cnty., 883 N.E.2d 204 (Ind.Ct.App.2008); Ind. Port Comm'n v. Consol. Grain & Barge Co., 701 N.E.2d 882 (Ind.Ct.App.1998), trans. denied. Accordingly, we conclude that Devlin has waived appellate review of her argument concerning Kelley's standing.

Next, we address the parties' disagreement concerning the appropriate standard of review. Kelley argues that “the standard of review is de novo as it requires the interpretation of the restitution statute in a criminal matter.” Appellant's Brief at 5. The State, on the other hand, argues that we should apply an abuse-of-discretion standard because this case involves a restitution order. Under the circumstances of this case, the distinction is of little consequence. This court has repeatedly acknowledged that decisions concerning an award of restitution are reviewed for an abuse of discretion and that questions of statutory interpretation are reviewed de novo. See, e.g., Kimbrough v. State, 911 N.E.2d 621 (Ind.Ct.App.2009) (noting that this court will not reverse a restitution order unless the trial court has abused its discretion); Kaser v. Barker, 811 N.E.2d 930 (Ind.Ct.App.2004) (noting that we review questions of statutory construction de novo because the interpretation of a statute is a question of law). If a trial court misinterprets or misapplies a statute relating to a restitution order, it necessarily abuses its discretion. Myers v. State, 848 N.E.2d 1108 (Ind.Ct.App.2006).

With that in mind, we turn to the question presented: Did the trial court commit reversible error in crediting the $50,000 civil settlement toward the restitution order? I.C. § 35–50–5–3(a) provides, in relevant part, that “in addition to any sentence imposed under this article for a felony or misdemeanor, the court may ... order the person to make restitution to the victim of the crime[.]” When such an order is entered, it must be based 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) the cost of medical laboratory tests to determine if the crime has caused the victim to contract a disease or other medical condition;

(4) earnings lost by the victim (before the date of sentencing) as a result of the crime including earnings lost while the victim was hospitalized or participating in the investigation or trial of the crime; and

(5) funeral, burial, or cremation costs incurred by the family or estate of a homicide victim as a result of the crime.Id. A restitution order must reflect a loss sustained by the victim as a direct and immediate result of the defendant's criminal acts, and the trial court may consider only expenses incurred by the victim prior to the date of sentencing. Rich v. State, 890 N.E.2d 44 (Ind.Ct.App.2008), trans. denied.

With respect to the effect of a restitution order on a civil action by the victim, the restitution statute provides as follows:

An order of restitution ... does not bar a civil action for:

(1) damages that the court did not require the person to pay to the victim under the restitution order but...