ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SARAH L. NAGY JEFFREY A. MODISETT
Indianapolis, Indiana Attorney General of Indiana
Deputy Attorney General
J.P.B., ) ) Appellant-Respondent, ) ) vs. ) No. 49A04-9803-JV-145 ) STATE OF INDIANA, ) ) Appellee-Petitioner. )
February 19, 1999
OPINION - FOR PUBLICATION
personal injuries" and "[t]here was no evidence relating to the property damage." Brief of
Appellant at 6.
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. 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). Indiana Code § 31-37-19-5 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. Reinbold v. State, 555 N.E.2d 463, 470 (Ind. 1990). 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, J.P.B. admitted to the following:
Count 001 Failure to stop after accident, Class B Misdemeanor I.C. 9-26-1-1, 9-26-1-8
On or about the 15th day of December, 1997, said child did operate a motor vehicle, that is: ford automobile, which struck mercury automobile which is owned by Jeffrey Sunday which caused bodily injury . . . .See footnote 3
COURT OF APPEALS OF INDIANA
vs. ) No. 49A04-9803-JV-145
STATE OF INDIANA, )
SULLIVAN, Judge, concurring in result
J.P.B. pleaded guilty to the count which alleged personal injury rather than property
damage. The charge alleging property damage was dismissed. Nevertheless, I agree that it
was not inappropriate for the trial court to order restitution for the damage caused to
In Reinbold v. State (1990) Ind., 555 N.E.2d 463, 470, overruled on other grounds by Wright v. State (1995) Ind., 658 N.E.2d 563, 570, our Supreme Court broadly defined the term "victim" under the restitution statutes. In particular, the Court found that a "victim" could include any person or entity "shown to have suffered injury, harm or loss as a direct and immediate result" of the defendant's criminal acts. Id. In reaching its conclusion, the
Reinbold court cited with approval, Kingston v. State (1985) Ind.App., 479 N.E.2d 1356,
1358-59, trans. denied, in which a panel of this court determined that, with regard to the
crime of leaving the scene of an accident, both the Indiana State Highway Department and
the owners of parked cars, who incurred property damage, could be considered victims for
purposes of restitution.See footnote
Based upon the rather expansive definition of a victim set forth by
those cases, both Sunday, who suffered property damage, as well as J.P.B.'s passengers, who
suffered bodily injury, would be entitled to restitution.
Nevertheless, in Polen v. State (1991) Ind.App., 578 N.E.2d 755, trans. denied, this court held that a defendant could not be ordered to pay restitution for crimes to which he did not plead guilty. Because J.P.B. pleaded guilty only to the count involving personal injury in exchange for the State's promise to dismiss the property damage count, it would seem that Polen would preclude the court from requiring J.P.B. to pay restitution for any property damage to Sunday's vehicle.
Although the holdings in Reinbold and Polen appear irreconcilable, I believe they are not necessarily inconsistent and that both can be applied to this case. Count I, to which J.P.B. pleaded guilty, included facts surrounding the property damage. Specifically, Count I alleged that J.P.B., while operating a motor vehicle, struck Sunday's vehicle, causing bodily injury to J.P.B.'s passengers. Thus, by pleading guilty to Count I, J.P.B. admitted that he
struck Sunday's vehicle. As a result, Sunday was a "victim" within the meaning of Reinbold
In any event, in a case such as this where a defendant is charged with two counts of leaving the scene of an accident, one count alleging property damage and the other bodily injury, Polen may well prohibit an award of restitution on the dismissed count. However, this question is left for another day as Polen clearly indicates that a restitution order will not be limited if the defendant agrees to pay restitution or admits damages in a greater amount. Polen, supra, 578 N.E.2d at 576.
Here, the record reveals that during the plea agreement hearing, J.P.B.'s attorney informed the trial court that J.P.B. agreed to admit to the allegations in Count I, in exchange for the State's agreement to "dismiss Counts #2 & 3, holding restitution open, for damage to Jeffrey Sunday's car." Record at 40 (emphasis supplied). Thus, under the exception set forth in Polen, J.P.B. clearly agreed to pay restitution or, at the least, to allow the State to attempt to prove Sunday's property damages.
For these reasons, I concur in result.
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