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
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Michael Gene Worden Deputy Attorney General
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.
We reverse and remand.
& Procedural History
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.
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.
Baker argues that the trial court abused its discretion in
determining the amount of restitution he owed to Apollos.
"[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.
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, ...