FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
JOEL M. SCHUMM STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
JUSTIN F. ROEBEL
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
M.C., )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-0404-JV-218
)
STATE OF INDIANA, )
)
Appellee- Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable James Payne, Judge
Cause No. 49D09-0308-JD-3179
September 23, 2004
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Respondent, M.C., a juvenile, appeals the trial court’s restitution order after an adjudication
finding him to be a delinquent child for committing Count I, failure to
stop after accident, Ind. Code §§ 9-26-1-1, 9-26-1-8, an act which would be
a Class A misdemeanor if committed by an adult; and Count II, failure
to stop after accident, I.C. §§ 9-26-1-1, 9-26-1-8, an act which would be
a Class B misdemeanor if committed by an adult.
We reverse and remand.
ISSUES
M.C. raises one issue on appeal, which we restate as follows: whether
the trial court erred in ordering him to pay $7,005.60 in restitution.
FACTS AND PROCEDURAL HISTORY
On August 16, 2003, M.C., was involved in a three-car accident at the
intersection of State and Raymond in Marion County, Indianapolis, Indiana. In particular,
M.C. was driving one of the vehicles that struck two other automobiles being
driven by David Keen (Keen) and Jennifer Marie Keller (Keller) (collectively, “the victims”).
M.C. left the scene of the accident after striking the two vehicles.
On August 18, 2003, the State filed a petition alleging that M.C. was
a delinquent child for committing Count I, failure to stop after accident, I.C.
§§ 9-26-1-1, 9-26-1-8, a Class A misdemeanor, if committed by an adult; and
Count II, failure to stop after accident, I.C. §§ 9-26-1-1, 9-26-1-8, a Class
B misdemeanor, if committed by an adult. On September 30, 2003, the
State added an additional allegation of delinquency, Count III, failure to stop after
accident, I.C. § 9-26-1-1, an act which would be a Class D felony,
if committed by an adult. On October 22, 2003, M.C. entered into
a plea agreement with the State. Pursuant to the plea agreement, M.C.
admitted to committing Counts I and II. In exchange, the State agreed
to dismiss Count III, and would not recommend any disposition to the trial
court.
On November 13, 2003, a disposition hearing was held. At the hearing,
M.C. entered an admission to the following delinquent acts: Count I, failure
to stop after accident causing serious bodily injury, a Class A misdemeanor if
committed by an adult; and Count II, failure to stop after accident causing
property damage, a Class B misdemeanor if committed by an adult. To
establish a factual basis, M.C. admitted that on August 16, 2003, he was
operating a vehicle at the intersection of State and Raymond, in Marion County,
Indianapolis, Indiana, and was involved in an automobile accident. M.C. further admitted
to leaving the scene of the accident.
The trial court accepted M.C.’s admission, finding that there was a sufficient factual
basis for the plea. Consequently, the trial court ordered M.C. committed to
the Indiana Department of Correction for a recommended term of 12 months.
The trial court also ordered that M.C. complete a drug and alcohol treatment
program, complete individual counseling, and successfully complete a Vocational and/or GED program.
The trial court then asked the State if there was any restitution in
this matter. The State responded with a request that restitution remain open
at that time, and the trial court agreed. M.C.’s attorney then stated,
“we made no agreement asking for restitution, and if the [c]ourt wants it
open the whole issue’s open as far as we’re concerned. Not just
a matter of amount.” (Transcript pp. 10-1). Thus, the trial court
set a date for the restitution hearing. On February 9, 2003, a
restitution hearing was held. At the conclusion of the hearing, the trial
court ordered M.C. to pay $7,005.60 in restitution to the victims.
M.C. now appeals. Additional facts will be supplied as necessary.
DISCUSSION
M.C. argues that the trial court abused its discretion in ordering him to
pay $7,005.60 in restitution to the victims of the car accident. Specifically,
M.C. alleges that the restitution order exceeds his plea agreement because the offenses
he pled guilty to did not include an admission of fault for the
accident or damages for injuries to the victims or their vehicles. M.C.
also asserts that the trial court abused its discretion by failing to inquire
into his ability to pay restitution.
Conversely, the State argues that the trial court did not abuse its discretion
in ordering M.C. to pay restitution. In particular, the State contends that
the trial court did not exceed the terms of the plea agreement because
M.C.’s disposition was left to the discretion of the trial court. The
State further claims that M.C.’s admission to Counts I and II establish that
he should be held accountable for the damage to the property and for
the injuries of the victims. Additionally, the State maintains that the trial
court was not required to make an inquiry into M.C.’s ability to pay
because the restitution order was imposed upon M.C. as part of his executed
sentence.
An order of restitution is a matter within the trial court’s discretion, and
we reverse only upon a showing of abuse of that discretion. J.P.B.
v. State, 705 N.E.2d 1075, 1077 (Ind. Ct. App. 1999); Smith v. State,
655 N.E.2d 133, 134 (Ind. Ct. App. 1995), trans. denied. An abuse
of discretion occurs when the trial court’s determination is clearly against the logic
and effect of the facts and circumstances before the court or the reasonable,
probable, and actual deductions to be drawn therefrom. Matter of L.J.M., 473
N.E.2d 637, 640 (Ind. Ct. App. 1985). Furthermore, our supreme court has
determined that restitution may be paid to those shown to have suffered injury,
harm, or loss as a direct and immediate result of the criminal acts
of a defendant. Davis v. State, 772 N.E.2d 535, 540 (Ind. Ct.
App. 2002).
In this case, M.C. argues that the restitution order exceeds his plea agreement
because the offenses he pled guilty to did not include an admission of
fault for the accident or damages for injuries to the victims or their
vehicles. Particularly, M.C. claims that the offenses he admitted to establish that
he left the scene of the accident, but do not establish his fault
or liability for the accident. Therefore, M.C. maintains that the trial court
was not authorized to order him to pay restitution to the victims.
We agree with M.C.
Indiana Code section 31-37-19-5(4) provides that a juvenile court may order a child
“to pay restitution if the victim provides reasonable evidence of the victim’s loss,
which the child may challenge at the dispositional hearing.” The “victim” is
not limited to the person or entity actually subjected to the commission of
the crime. J.P.B., 705 N.E.2d at 1077. Rather, a “victim” also
includes a person who is shown to have suffered an injury, harm or
loss as a direct and immediate result of the criminal acts of a
defendant. Id.
Pursuant to the plea agreement, M.C. admitted to the following, in pertinent part:
Count 1 Failure to stop after accident, Class A misdemeanor I.C. [§§] 9-26-1-1,
9-26-1-8
On or about the 16th day of August, 2003, said child did operate
a motor vehicle, that is: 1988 chevy automobile, which struck 2 automobiles
being driven by [Keen] and [Keller] which caused bodily injury….
Count II Failure to stop after accident, Class B misdemeanor I.C. [§§] 9-26-1-1,
9-26-1-8
On or about the 16th day of August, 2003, said child did operate
a motor vehicle, that is: chevy automobile, which struck 2 automobiles being
driven by [Keen] and [Keller] which caused property damage….
(Appellant’s App. p. 37). At the plea agreement hearing, M.C. and his
attorney had the following colloquy:
[PUBLIC DEFENDER]: I want to direct your attention back to August 6, 2003.
On that day you were operating a motor vehicle on uh, at the
intersection of State and Raymond in Indianapolis, Marion County, Indiana, is that correct?
[M.C.]: Yes sir.
[PUBLIC DEFENDER]: And at that time you had an automobile accident while operating that
vehicle, is that correct?
[M.C.]: Yes sir.
[PUBLIC DEFENDER]: And you left the scene even though there was property damage, is
that correct?
[M.C.]: Yes sir.
[PUBLIC DEFENDER]: And you left the scene even though there were bodily injuries to
other passengers or people in the other cars, is that correct?
[M.C.]: Yes sir.
(Tr. pp. 8-9). Based upon this exchange, the trial court found a
sufficient factual basis and adjudicated M.C. to be a delinquent child and dismissed
Count III, failure to stop after accident, a Class D felony if committed
by an adult.
Our review of the record reveals that M.C. admitted to two allegations:
1) failure to stop after an accident that caused property damage and 2)
failure to stop after an accident that caused bodily injury. These admissions
establish only that M.C. left the scene of an accident; however, they do
not establish his fault or liability for the accident. Most importantly, the
record is devoid of evidence of a loss suffered as a direct and
immediate result of M.C.’s criminal act. This court has previously held that
restitution is properly ordered payable to those shown to have suffered injury, harm
or loss as a direct and immediate result of the criminal acts of
the defendant. Utley v. State, 699 N.E.2d 723, 729 (Ind. Ct. App.
1998). Here, M.C. did not admit to liability for the accident nor
was he charged with any criminal acts as a result of his failure
to stop after an accident. Rather, M.C. was convicted of failing to
stop at the scene of an accident. Thus, it is apparent that
the victims were “accident victims” and not a “victims of a crime” as
contemplated by Indiana Code section 35-50-5-3. See Utley, 699 N.E.2d at 729
(where this court reversed a restitution order involving a failure to stop after
an accident that resulted in death case because “no funeral, burial, or cremation
costs were incurred by the victim’s estate because [the defendant’s] failure to stop
at the scene of the accident”). Consequently, we conclude that the victims’
injuries were not a direct and immediate result of the criminal acts to
which M.C. pled guilty. See id.
Furthermore, our review of the record reveals that M.C. and the prosecutor did
not contemplate the issue of restitution in M.C.’s plea agreement. Rather, the
trial court and both parties agreed at the plea agreement hearing that the
issue of whether M.C. was liable for restitution would be left open and
determined in a subsequent restitution hearing. Specifically, the following colloquy occurred during
the plea agreement hearing:
THE COURT: Is there any restitution?
[STATE]: Yes Your Honor. State would request that the restitution remain open at
this time.
THE COURT: Okay. Will you be ready to present the amount at the
disposition?
[STATE]: With regards to the restitution?
THE COURT: Yes[.]
[STATE]: Yes we will.
THE COURT: Okay[.]
[M.C.’S COUNSEL]: Judge[,] for the record we made no agreement asking for restitution, and
if the [c]ourt wants it open the whole issue’s open as far as
we’re concerned. Not just a matter of amount.
THE COURT: The whole issue. What does that mean?
[M.C.’S COUNSEL]: The issue of whether he owes restitution.
THE COURT: Oh, liability.
[M.C.’S COUNSEL]: Exactly[.]
(Transcript pp. 10-1). From this, it is evident that M.C. did not
specifically agree to pay restitution to the victims.
Based upon all of the above, we find that the trial court ordered
M.C. to pay restitution for an act that is not supported by the
evidence. Consequently, we conclude that the trial court’s determination is clearly against
the logic and effect of the facts and circumstances before the court.
See Matter of L.J.M., 473 N.E.2d 640. As a result, we find
that the trial court abused its discretion in ordering M.C. to pay restitution.
See J.P.B., 705 N.E.2d at 1077. Accordingly, there is no need
for this court to address the merits of M.C.’s last claim that the
trial court erred in failing to inquire into his ability to pay restitution.
CONCLUSION
Based upon the foregoing, we conclude that the trial court abused its discretion
in ordering M.C. to pay restitution in the amount of $7,005.60.
Reversed and remanded.
CRONE, J., and VAIDIK, J., concur.