Andrew Lee Kimmons v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Feb 06 2020, 6:20 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Deborah Markisohn Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Andrew Lee Kimmons, February 6, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1887
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Alicia Gooden,
Appellee-Plaintiff. Judge
The Honorable Richard
Hagenmaier, Commissioner
Trial Court Cause No.
49G21-1811-F2-39687
Tavitas, Judge.
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Case Summary
[1] Andrew Kimmons appeals the trial court’s restitution order, which required
Kimmons to pay $5,000.00 after Kimmons’ guilty plea pursuant to a plea
agreement. The State asks us to remand for a new sentencing hearing;
however, we reverse the trial court’s entry of a restitution order and remand.
Issue
[2] Kimmons raises one issue on appeal, which we restate as whether the trial court
erred in ordering Kimmons to pay $5,000.00 in restitution.
Facts
[3] On November 10, 2018, Kimmons hit the parked vehicle of Kristin Towe while
driving in his vehicle on East Michigan Street in Marion County. Kimmons
drove away from the scene of the accident. Law enforcement later found
Kimmons in possession of several illegal substances. On November 13, 2018,
Kimmons was charged with Count I, dealing in a narcotic drug, a Level 2
felony; Count II, possession of a narcotic drug, a Level 4 felony; Count III,
dealing in methamphetamine, a Level 4 felony; Count IV, possession of
methamphetamine, a Level 6 felony; Count V, possession of cocaine, a Level 6
felony; and Count VI, leaving the scene of an accident, a Class B misdemeanor,
under cause number 49G21-1811-F2-039687 (“Cause 687”). On November 16,
2018, the State filed a notice of intent to file an habitual offender enhancement.
[4] The State also made a motion to consolidate the instant cause, Cause 687, with
Kimmons’ other pending causes under cause numbers 49G14-1412-CM-055668
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(“Cause 668”), 49G14-1611-F6-043556 (“Cause 556”), and 49G14-1801-F6-
002956 (“Cause 956”).
[5] On June 11, 2019, Kimmons entered into a plea agreement in the above cause
numbers. Pursuant to the plea agreement, Kimmons pleaded guilty to
possession of a narcotic drug, a Level 6 felony, and theft, a Level 6 felony,
under Cause 956; and dealing a narcotic drug, a Level 2 felony, and leaving the
scene of an accident, a Class B misdemeanor, under Cause 687. In exchange,
the State agreed to dismiss Cause 668, Cause 556, and the remaining counts
under Cause 687.
[6] The State and Kimmons agreed to the following sentence:
a. [Cause 956]
1. Count I
a. A total sentence of 910 days with
i. Two (2) years monitored by Marion County
Community Corrections Home Detention;
ii. 180 days suspended with all time monitored by
Marion County Probation;
b. Defendant to pay statutory interdiction fee with
amount to be determined by the court;
2. Count II
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a. A total sentence of 910 days with
i. Two (2) years monitored by Marion County
Community Corrections Home Detention;
b. 180 days suspended with all time monitored by Marion
County Probation; and,
3. Counts to run concurrent.
b. [Cause 687]
1. Count I
a. A total sentence of fifteen (15) years
i. Five (5) years shall [be] executed with
placement to be determined by the court after
argument from the parties;
ii. The remaining ten (10) years shall be
suspended;
1. Three (3) years shall be monitored by
Marion County Probation;
b. Defendant to complete substance abuse evaluation
and treatment as recommended;
c. Defendant to pay statutory interdiction fee with
amount to be determined by the Court;
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2. Count VI
a. A total sentence of 180 days;
i. No additional executed time with all
remaining time to be suspended;
3. Sentence on [Cause 687] is statutorily consecutive to
[Cause 956].
*****
13. This agreement embodies the entire agreement between the
parties and no promises or inducements have been made or given
to the Defendant by the State which is not part of this written
agreement.
Appellant’s App. Vol. II pp. 57-58.
[7] On June 11, 2019, the trial court orally accepted Kimmons’ plea agreement,
finding that: (1) Kimmons “understands his rights”; (2) Kimmons “understands
the possible sentencing and fines they are under”; and (3) Kimmons’ plea “is
freely and voluntarily made and that a factual basis exists” for the plea. Tr.
Vol. II pp. 12-13. On July 17, 2019, the trial court held a sentencing hearing.
At the sentencing hearing, the State called Towe, who made a victim impact
statement. The trial court then asked Towe “how much [Towe] th[ought] the
car was worth at the time it was hit,” to which Towe responded: “I would say
probably around five thousand.” Id. at 38. Subsequently, while making its oral
sentencing statement, the trial court stated: “I am going to award $5,000.00 for
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restitution to [Towe].” Id. at 48-49. Kimmons’ attorney objected to the reward
of the restitution award, which the trial court overruled. Kimmons now appeals
the restitution order.
Analysis
[8] Kimmons argues that the trial court erred in entering the restitution order when
the plea agreement did not contemplate restitution. The State concedes that the
record “does not do a very good job in this case of establishing proof of
Defendant’s ability to pay restitution,” and that the sentencing order is less than
clear regarding restitution, and thus, asks us to remand. Appellee’s Br. p. 6. In
his reply brief, however, Kimmons argues that we should not remand, but,
instead, should reverse the trial court’s entry of the restitution order because the
trial court had no authority to impose it.
[9] “An order of restitution is a matter within the trial court’s sound discretion and
will only be reversed upon a showing of abuse of discretion.” Archer v. State, 81
N.E.3d 212, 215 (Ind. 2017) (citing Bell v. State, 59 N.E.3d 959, 962 (Ind.
2016)). Indiana Code Section 35-35-3-3(e) states: “If the court accepts a plea
agreement, [the court] shall be bound by its terms.” Berry v. State, 10 N.E. 3d
1243, 1246 (Ind. 2014); see Vaughn v. State, 982 N.E.2d 1071, 1073 (Ind. Ct.
App. 2013) (“A plea agreement is contractual in nature, binding the defendant,
the State and the trial court.”).
[10] The State acknowledges that “[t]his Court has held that a trial court cannot
order restitution following a plea agreement in cases in which the plea
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agreement is silent with respect to restitution.” Appellee’s Br. p. 6. The State
also acknowledges, however, that “[t]his Court has also held that a trial court
may order restitution, following a plea agreement, even though the plea
agreement was completely silent on the issue of restitution.” Id.at 7. In support
of this statement, the State cites three cases.
[11] The first case is Huddleston v. State, 756 N.E.2d 1054 (Ind. Ct. App. 2001)
(“Huddleston 1”), vacated on reh’g at Huddleston v. State, 764 N.E.2d 655, 657 (Ind.
Ct. App. 2002) (“Huddleston 2”). 1 In Huddleston 1, our Court “concluded that
the trial court abused its discretion in ordering restitution for the lost wages of .
. . the mother of the victim” based on insufficient evidence. Huddleston, 764
N.E.2d at 657. On rehearing, the State asked that we reconsider our decision
because a clerical error prevented entry of appellee’s appendix on the docket,
which resulted in our Court not having access to this portion of the record. Our
Court held in Huddleston 2 that this portion of the record demonstrated sufficient
evidence to support restitution in Huddleston’s open plea because the plea
agreement specifically “left the issue of sentencing to the trial court’s
discretion.” Id. at 657.
[12] In the second case cited by the State, Gil v. State, 988 N.E.2d 1231, 1235 (Ind.
Ct. App. 2013), the defendant entered an open guilty plea in which sentencing
was left to the trial court’s discretion. Our Court held that “the trial court did
1
Although Huddleston 1 was vacated upon rehearing, we cite both to clarify the differences in the opinions.
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not abuse its discretion by imposing restitution and a fine because the open plea
agreement left sentencing to the judge’s discretion.” 2 Gil, 988 N.E.2d at 1235.
In doing so, our Court squarely contrasted an open plea case from cases in
which “defendants [were] pleading guilty pursuant to recommended or fixed
sentences.” Id.
[13] In Morris v. State, 985 N.E.2d 364 (Ind. Ct. App. 2013) (“Morris 1”), clarified on
reh’g in Morris v. State, 2 N.E.3d 7, 8-9 (Ind. Ct. App. 2013) (“Morris 2”), our
Court held: “because the plea agreement was completely silent on the issue of
restitution, the trial court lacked the authority to order Morris to pay $14,972.45
in restitution toward the burial expenses of Morris’s fiancée, Jennifer, who was
killed when she was thrown from the ATV that Morris was operating while
intoxicated.” Morris, 2 N.E.3d at 8. On rehearing, the State argued that our
Court should follow Huddleston and Gil and affirm the restitution order. In
Morris 2, our Court did reconsider the restitution order stating, “[u]pon careful
consideration, . . . Morris’s guilty plea was entirely open and left his sentence
entirely to the trial court’s discretion[; therefore,] the court was free to enter an
award of restitution as part of Morris’s sentence.” Id.
[14] As shown above, these cases are readily distinguishable from Kimmons’ case,
and the State’s reliance on these cases is misplaced. Kimmons entered into a
fixed plea agreement, which clearly set forth his sentence and did not include an
2
Our Court did reverse the restitution order, however, as “the record was devoid of any evidence establishing
the value” of the stolen property and damages at issue. Gil, 988 N.E.2d at 1236.
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award of restitution. See Sinn v. State, 693 N.E.2d 78, 80 (Ind. Ct. App. 1998)
(finding “the trial court erred in ordering [the defendant] to pay restitution
when the plea agreement contained no provision allowing such an order”).
Accordingly, we “emphasize that plea agreements ideally should be more
artfully drafted. . . . if the State wishes to seek restitution.” Morris, 2 N.E.3d at
9. Based on the record before us, the trial court did not have the authority to
enter the restitution order.
Conclusion
[15] The trial court did not have the authority to enter the restitution order, and
thus, we reverse the trial court’s entry of the restitution order only and remand
with instructions to vacate the restitution order.
[16] Reversed and remanded.
Najam, J., and Vaidik, J., concur.
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