Rich v. State, No. 79A05-0712-CR-687.

Decision Date16 July 2008
Docket NumberNo. 79A05-0712-CR-687.
Citation890 N.E.2d 44
PartiesKeith Elton RICH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

Steven Knecht, Vonderheide & Knecht, P.C., Lafayette, IN, Attorney for Appellant.

Steve Carter, Attorney General Of Indiana, Joseph Robert Delamater, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Case Summary and Issues

Following a guilty plea, Keith Rich appeals his fourteen-year sentence for burglary and possession of marijuana, the trial court's order that Rich pay a $200 public defender fee, and the trial court's order that Rich reimburse the victims for the cost of a home security system. Rich raises the issues of whether the trial court abused its discretion in ordering him to pay the public defender fee and reimburse the victims and whether his sentence is inappropriate given the nature of the offenses and his character. Concluding the trial court acted within its discretion in ordering Rich to pay the public defender fee and that his sentence is not inappropriate, we affirm the trial court in part. However, concluding the trial court abused its discretion in ordering Rich to pay for the installation of the victims' security system, we reverse the trial court's restitution order and remand with instructions that it correct this order to remove the cost of the security system.

Facts and Procedural History

On July 29, 2006, Rich broke into the victims' residence and took various items, including a videogame system, movies, a laptop computer, and an acoustic guitar. Rich also damaged two doors and a lock. Rich sold the laptop and guitar to a pawnshop and was apprehended shortly thereafter. When police arrested Rich, he was found in possession of marijuana.

On August 1, 2006, the State charged Rich with burglary, a Class B felony; theft, a Class D felony; receiving stolen property, a Class D felony; and possession of marijuana, a Class A misdemeanor. On September 18, 2007, Rich pled guilty to burglary and possession of marijuana pursuant to a plea agreement. Under this agreement, the State dropped the other two felony charges as well as six misdemeanor charges in other pending cases, and agreed to not file a petition to revoke Rich's probation. The agreement provided that sentencing would be left to the trial court's discretion and that Rich would make restitution to the victims. On October 18, 2007, the trial court held a sentencing hearing. The trial court found Rich's criminal history and that he committed the instant offenses while on probation as aggravating factors. As mitigating factors, the trial court found Rich's youthful age, that he pled guilty and took responsibility for his actions, that he would make restitution, and that he was remorseful. The trial court found the aggravating factors outweighed the mitigating factors and sentenced Rich to fourteen years for burglary and one year for possession of marijuana, with the sentences to run concurrently. The trial court ordered that Rich serve nine years at the Indiana Department of Correction and one year through Tippecanoe County Community Corrections, and suspended the remaining four years to probation. The trial court also ordered Rich to reimburse the Tippecanoe County Public Defender $200 and pay restitution in the amount of $2,154.20 to the victims and $1,800 to Farm Bureau Insurance, payable at a rate of $150 per month after his release from incarceration. Rich now appeals the trial court's sentencing order.

Discussion and Decision
I. Reimbursement to Public Defender

As a condition of Rich's probation, the trial court ordered that Rich reimburse the Tippecanoe County Public Defender $200. Rich argues that the trial court abused its discretion by not first holding a hearing to determine Rich's ability to pay this fee. Indiana Code section 33-37-2-31 provides:

(a) Except as provided in subsection (b), when the court imposes costs, it shall conduct a hearing to determine whether the convicted person is indigent....

(b) A court may impose costs and suspend payment of all or part of the costs until the convicted person has completed all or part of the sentence. If the court suspends payment of the costs, the court shall conduct a hearing at the time the costs are due to determine whether the convicted person is indigent....

* * * (e) If, after a hearing under subsection (a) or (b), the court determines that a convicted person is able to pay part of the costs of representation, the court shall order the person to pay an amount of not more than the cost of the defense services rendered on behalf of the person....

(Emphasis added).

Here, the trial court's order requires that Rich reimburse the Public Defender as a condition of probation, which will not begin until after he has completed the executed portion of his sentence. Therefore, under section 33-37-2-3(b), the trial court was not required to hold a hearing until Rich has completed the executed portion of his sentence. As Rich is not required to pay the public defender's fee at this time, holding a hearing to determine his current ability to pay was not required. Cf. Whedon v. State, 765 N.E.2d 1276, 1279 (Ind.2002) (recognizing that "a defendant's financial resources are more appropriately determined not at the time of initial sentencing but at the conclusion of incarceration, thus allowing consideration of whether the defendant may have accumulated assets through inheritance or otherwise"). We conclude the trial court did not abuse its discretion in ordering Rich to reimburse the Public Defender.

II. Restitution

As a condition of probation, the trial court ordered that Rich pay restitution to the victims and their insurance company. Included in the amount the trial court ordered Rich to pay to the victims was the cost of the installation and monthly fees for a security system the victims installed "to help give [them] peace-of-mind while alone at night or out of the house." Appellant's Green Appendix at 10 (letter from victims to pre-sentence investigator). Rich argues that requiring him to pay for the victims' security system was improper.

A. Waiver

Initially, the State argues that Rich has waived this issue by failing to object to the victims' restitution report at the sentencing hearing. After reviewing the transcript, we agree that Rich did not specifically object to the inclusion of the payment for the alarm system in the restitution order. However, the parties did discuss the issue at the sentencing hearing, and the trial court specifically questioned its authority to order Rich to reimburse the victims for the cost of this security system. See Transcript at 38 ("I'm not sure that I can order restitution for buying an alarm system."). We need not determine whether the discussion of restitution at the sentencing hearing was sufficient to preserve the issue, as we conclude that we would address Rich's argument even without a specific objection.

We recognize that a panel of this court has held that a defendant's "failure to make a specific and timely objection to the trial court's receipt of evidence concerning the amount of restitution constitutes a failure to preserve the matter and waives it as an issue for appeal." Long v. State, 867 N.E.2d 606, 618 (Ind.Ct.App.2007); see also Huddleston v. State, 764 N.E.2d 655, 657 (Ind.Ct.App.2002) (opinion on reh'g) (addressing the merits, but stating that the defendant "did not object to the restitution order and may be deemed to have waived that issue on appeal"). However, the vast weight of the recent caselaw in this state indicates that appellate courts will review a trial court's restitution order even where the defendant did not object based on the rationale that "a restitution order is part of the sentence, and `it is the duty of the appellate courts to bring illegal sentences into compliance.'" Cherry v. State, 772 N.E.2d 433, 440 (Ind.Ct.App.2002) (quoting Golden v. State, 553 N.E.2d 1219, 1223-24 (Ind.Ct.App.1990), trans. denied), trans denied; see also Lohmiller v. State, 884 N.E.2d 903, 916 (Ind.Ct.App.2008); Kline v. State, 875 N.E.2d 435, 438 (Ind.Ct.App. 2007); Laker v. State, 869 N.E.2d 1216, 1220 (Ind.Ct.App.2007); Bennett v. State, 862 N.E.2d 1281, 1287 (Ind.Ct.App.2007); Johnson v. State, 845 N.E.2d 147, 153 (Ind. Ct.App.2006), trans. denied; Ware v. State, 816 N.E.2d 1167, 1179 (Ind.Ct.App. 2004); Green v. State, 811 N.E.2d 874, 877 (Ind.Ct.App.2004). We agree with the weight of the authority and will address Rich's argument on the merits.2

B. Standard of Review

A restitution order must be supported by sufficient evidence of actual loss sustained by the victim or victims of a crime. See Lohmiller, 884 N.E.2d at 916. "The amount of actual loss is a factual matter that can be determined only upon the presentation of evidence." Bennett, 862 N.E.2d at 1287. We review a trial court's order of restitution for an abuse of discretion. See Bailey v. State, 717 N.E.2d 1, 4 (Ind.1999). We will affirm the trial court's order if sufficient evidence exists to support its decision. Creager v. State, 737 N.E.2d 771, 779 (Ind.Ct.App. 2000), trans. denied.

However, the trial court is also bound to comply with the applicable restitution statutes when ordering restitution. See id. at 780; cf. Pearson v. State, 883 N.E.2d 770, 772 (Ind.2008) (recognizing that under Indiana Code section 35-38-2-2.3(a)(5), "when the trial court enters an order of restitution as part of a condition of probation, the court is required to inquire into the defendant's ability to pay"); Lohmiller, 884 N.E.2d at 917 (concluding the trial court committed fundamental error by awarding restitution to a County where the State failed to argue that the County was a "victim" under Indiana Code section 35-50-5-3); Ware, 816 N.E.2d at 1180 (reversing the trial court's order where "the restitution order violate[d] the restitution statute")....

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