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Baker v. State

Court of Appeals of Indiana

January 25, 2017

Jerry Baker, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

         Appeal from the Marion Superior Court The Honorable David Certo, Judge Trial Court Cause No. 49G12-1511-CM-40727

          ATTORNEYS FOR APPELLANT Mitchell L. Osterday Joel M. Schumm Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

          Altice, Judge.

         Case Summary

         [¶1] Jerry Baker pled guilty to operating a vehicle while intoxicated as a Class A misdemeanor. Following a restitution hearing, the trial court ordered Baker to pay restitution in the amount of $2, 082.00, which was the difference between the insurance payout for the totaled vehicle and the cost of a replacement vehicle. On appeal, Baker argues that the trial court abused its discretion in ordering him to pay restitution in the amount of $2, 082.00.

         [¶2] We reverse and remand.

         Facts & Procedural History

         [¶3] On November 16, 2015, Baker was involved in an automobile accident with Nancy Apollos at the intersection of Rockville Road and Lynhurst Avenue in Indianapolis. An officer who responded to the scene observed that Baker exhibited signs of intoxication. Baker failed several field sobriety tests and a breathalyzer indicated he had an alcohol concentration equivalent to .209 grams of alcohol per 210 liters of breath. Baker was arrested and charged with two counts relating to his operation of a vehicle while intoxicated.

         [¶4] Pursuant to a plea agreement, Baker pled guilty to operating a vehicle while intoxicated endangering a person, a Class A misdemeanor, and the State dismissed the second charged offense. The plea agreement and subsequent probation order provided that Baker would pay restitution in an amount to be determined. On May 4, 2016, the trial court held a restitution hearing at which Apollos testified that she was driving her father's 1996 Buick Park Avenue at the time of the accident and that the car was totaled. Insurance paid her father $1, 718.81 for the Park Avenue. As a replacement for her father's car, Apollos purchased a 2002 Buick Century for $3, 800.00. Apollos paid the $2, 082 difference between the insurance payout and the cost of the Buick Century with her own funds. Apollos asked the trial court to award her restitution to cover this out-of-pocket expense. The trial court stated, "I'm concerned of a windfall, but going out and buying a car at $3800 is reasonable enough, and she should be reimbursed by the defendant." Transcript at 34-35. The trial court, while noting that Apollos may never "see a dime in the first place, " ordered Baker to pay $2, 082.00 in restitution to Apollos. Id. at 34. Baker appeals from the trial court's restitution order. Additional facts will be provided as necessary.

         Discussion & Decision

         [¶5] Baker argues that the trial court abused its discretion in determining the amount of restitution he owed to Apollos.

         [¶6] "[T]he principal purpose of restitution is to vindicate the rights of society and to impress upon the defendant the magnitude of the loss the crime has caused, and that restitution also serves to compensate the victim." Morgan v. State, 49 N.E.3d 1091, 1093-94 (Ind.Ct.App. 2016) (quoting Iltzsch v. State, 981 N.E.2d 55, 56 (Ind. 2013)). Pursuant to Ind. Code § 35-50-5-3(a)(1), in ordering restitution, a trial court shall consider "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)." Because restitution is penal in nature, the statute providing for restitution must be strictly construed against the State to avoid enlarging it beyond the fair meaning of the language used. Morgan, 49 N.E.3d at 1094.

         [¶7] Accordingly, a restitution order must reflect a loss sustained by the victim "as a direct and immediate result" of the defendant's criminal acts. Rich v. State, 890 N.E.2d 44, 51 (Ind.Ct.App. 2008), trans. denied. The amount of actual loss is a factual matter to be determined upon the presentation of evidence. Id. at 49. We review a trial court's order of restitution for an abuse of discretion. Bockler v. State, 908 N.E.2d 342, ...


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