Wilson v. State

• Decision Date: 11 December 1997
• Docket Number: No. 17A03-9703-CR-77,17A03-9703-CR-77
• Citation: 688 N.E.2d 1293
• Court: Indiana Appellate Court
• Parties: Bruce Allen WILSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

Page 1293

688 N.E.2d 1293

Bruce Allen WILSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 17A03-9703-CR-77.

Court of Appeals of Indiana.

Dec. 11, 1997.

Susan K. Carpenter, Public Defender, Lorraine L. Rodts, Deputy Public Defender, Indianapolis, for Appellant-Defendant.

Jeffrey A. Modisett, Attorney General, John B. Herriman, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

STATON, Judge.

On July 19, 1995, Wilson was convicted following a trial by jury for Burglary, a class B felony, and Theft, a class D felony. This court reversed Wilson's Burglary conviction on November 8, 1996. Later on November 15, 1996, the trial court entered a restitution order based upon Wilson's Theft conviction which required him to pay his victims $150. Wilson appeals this restitution order and his underlying Theft conviction. Wilson raises four issues on appeal, two of which are dispositive. We restate them as:

I. Whether the trial court had the authority to enter a restitution order based upon Wilson's Theft conviction.

II. Whether the prosecutor committed fundamental error at trial by referring to Wilson's invocation of his right to remain silent after he had received Miranda warnings.

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

I. Restitution Order

Wilson contends that because the trial court failed to attach a restitution order to his Theft conviction at the time he was originally sentenced, the trial court lacked jurisdiction to enter such an order after his Burglary conviction was vacated. Wilson had been sentenced to fifteen years, eight suspended, for his Burglary conviction. He was to serve a portion of the suspended sentence on probation, and as a term of his probation, Wilson was ordered to pay restitution to the victims of his Burglary. The court also sentenced Wilson to three years, executed, for his Theft conviction.

On November 8, 1996, this court reversed Wilson's Burglary conviction, but we affirmed his Theft conviction. On November 15, 1996, the trial court entered a restitution order with respect to Wilson's Theft conviction. Wilson contends the trial court lacked authority to enter this order.

"After a final judgment a court retains only such continuing jurisdiction as is permitted by the judgment itself, or as is given the court by statute or rule." Marts v. State, 478 N.E.2d 63, 65 (Ind.1985) (quoting State ex rel. Kelley v. Marion Crim. Ct., 269 Ind. 46, 378 N.E.2d 833, 834 (1978)). A trial court does not have the inherent power to modify a sentence. Beanblossom v. State, 637 N.E.2d 1345, 1348 (Ind.Ct.App.1994), trans. denied. The requirement that a defendant pay restitution is as much a part of a criminal sentence as a fine or any other penalty. Kotsopoulos v. State, 654 N.E.2d 44, 46 (Ind.Ct.App.1995), trans. denied.

Here, the trial court entered a final judgment with respect to Wilson's Theft conviction on August 14, 1995 when it sentenced Wilson to three years, executed. The trial court's sentencing order did not purport to retain any continuing jurisdiction over Wilson. Further, as we find no statutory provision which would give the trial court jurisdiction to enhance Wilson's sentence by entering a restitution order after a sentence has already been pronounced, we hold that the trial court lacked authority to enter such an order.

The State contends that the restitution order was proper because sentencing lies within the sound discretion of the trial court and because IND. CODE § 35-50-5-3 (Supp.1995) allows a trial court to order a person convicted of a felony to make restitution to his victims. We agree that the trial court could have entered such an order when it originally sentenced Wilson for his Theft conviction on July 19, 1995. However, it failed to do so at that time, and the trial court has since lost its authority to modify Wilson's sentence.

The State also argues that the restitution order should be upheld because the facts in this case are analogous to those in Greer v. State, 680 N.E.2d 526 (Ind.1997). In Greer, our supreme court held that a trial court could move a habitual offender enhancement from one felony conviction to another where the original conviction to which it was attached was subsequently vacated. ¹ The court reasoned that "the process for charging and determining a habitual offender status following a trial resulting in multiple felony convictions is independent of each particular felony conviction and applies equally to all such convictions." Id. at 527.

The same line of reasoning used in Greer cannot be applied to the facts of the present case. A habitual offender finding is a jury's determination that, following a defendant's conviction for one or more felonies, the defendant has also accumulated two prior unrelated felonies. Id. Where a defendant is convicted of simultaneous multiple felonies and a habitual offender finding has been made, trial courts must impose the sentence enhancement upon only one of the convictions and must specify the conviction to be so enhanced. Id. Thus, the particular felony conviction to which the habitual offender enhancement is attached is not relevant.

Choosing a crime on which to enter a restitution order differs from choosing a felony to enhance through a habitual offender determination. A restitution order is entered with respect to a particular conviction in order to "impress upon a criminal defendant the magnitude of the loss he has caused" as a result of his crime and "his responsibility to make good that loss as completely as possible." Kotsopoulos, 654 N.E.2d at 46. Thus, there is a close correlation between a restitution order and the underlying crime to which it is attached. This is unlike the habitual offender enhancement which may be attached to any felony conviction where there have been multiple simultaneous felony convictions.

Given the difference between a restitution order and a habitual offender enhancement, we decline to interpret Greer in a manner which would allow a restitution order to be moved from one felony to another after the felony to which the order was originally attached is vacated. In the present case, if the trial court had determined that a restitution order could be attached to Wilson's Theft conviction as well as his Burglary conviction, it should have entered the order at the same time it entered its original sentence. The trial court failed to do so, and it lacked the authority to enter such an order after Wilson's Burglary conviction was vacated.

II. Silence After Miranda Warnings

Wilson argues that the prosecutor committed fundamental error at trial by commenting on his decision to remain silent after he received Miranda warnings. Although Wilson failed to raise this contention at trial and during his first appeal, he contends that the issue is not waived because the error is fundamental. We need not address the waiver issue because we hold that the prosecutor's conduct was not improper.

The State violates the Due Process Clause of the Fourteenth Amendment when it uses a defendant's silence after a Miranda warning for impeachment purposes. Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976). Here, Detective Bundy of the Auburn Police Department attempted to interview Wilson regarding coins that were stolen from the victim. Prior to interviewing him, Bundy read Wilson his Miranda rights. Detective Bundy's testimony regarding that interview follows:

* * * * * *

QUESTIONS BY PROSECUTOR

Q: Okay. What else did you do?

A: At a later, at a later point in time I did locate Mr. Wilson and did attempt an interview on Mr. Wilson.

Q: And, and did you read Mr. Wilson his Miranda rights before you talked to him?

A: Yes, sir, I did.

Q: And did he agree to talk to you?

A: Yes, sir, he did.

Q: And what did he say, what did you say to him and what did he say to you?

A: I told him that I was there investigating a theft of some coins from a residence here in town. He stated he knew nothing about it. I went on to tell him it was the coins that were recovered at Butler P.D. that he is stating were his. Mr. Wilson said he had nothing to tell me at that time, he knew nothing what I was talking about. At that time the interview was concluded.

Record at 354-55. Detective Bundy's subsequent testimony during cross-examination and redirect focused on the fact that Wilson said nothing to the police about the alleged crime other than his statement that he knew nothing about it. One of the purposes of Detective Bundy's testimony was to cast doubt on Wilson's earlier statements to others wherein he claimed that he had obtained the victims' coins legitimately.

Wilson argues that his statement that he knew nothing about the stolen coins was simply an extension of his statement that he did not have anything to say to the police. As such, he argues, it amounted to an assertion of his right to remain silent. He contends that it was improper for the prosecution to use his denial of knowledge because Doyle protections extend to "what a defendant says" in exercising his right to remain silent. In support of this proposition, Wilson relies on Lynch v. State, 632 N.E.2d 341 (Ind.1994), and Wilson v. State, 514 N.E.2d 282 (Ind.1987).

Both Lynch and Wilson applied Doyle to cases where the State attempted to use a defendant's exercise of his Miranda rights as evidence that the defendant was not insane at the time of his crime. In Wilson, the Indiana Supreme Court rejected this practice, holding that the State could not use a criminal defendant's statements exercising his right not to answer police questions to rebut the defendant's insanity defense. 514 N.E.2d at 284 (following Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986)). In Lynch, our supreme court reaffirmed that the State may not use "what the defendant says" about his Miranda rights to rebut an insanity defense. 632 N.E.2d at 343. ...