K.J.L., Appellant-Defendant, v. STATE OF INDIANA (2004)

MEMORANDUM DECISION - NOT FOR PUBLICATION

K.L. was charged with Criminal Mischief, a Class D felony. See, I.C. 35-43-1-2 (B) (i). It was alleged that K.L. damaged the house and personal property of his mother. K.L. pled guilty pursuant to a plea agreement under which the state agreed to dismiss another charge and K.L. agreed to pay restitution for the damages he had caused.

After a sentencing hearing the court found no aggravators or mitigators and sentenced K.L. to the presumptive sentence of one and one half years for a Class D felony. The court ordered jail time that did not conflict with the completion of K.L.’s college studies and ordered the rest of the sentence be served on probation. The court stated, however, that it was reserving the determination whether the conviction should be for a Class D felony or for a Class A misdemeanor.

In addition the court ordered K.L. to pay restitution in the amount of $15,845.68 and directed K.L. that the court wanted “some amount being paid for restitution purposes, if you have the means to do so․. I want you setting up a payment schedule during that time for payment, even an (sic!) nominal sum, to the Clerk's Office for restitution.” Furthermore, the order stating the terms of probation stated as one condition the payment of restitution “in the manner ordered.”

K.L. raises two claims on appeal. First, he contends that the court erred in failing to find mitigating circumstances and failing to convert his conviction to a Class A misdemeanor. Secondly, he contends the court erred when it failed determine how much he could pay in restitution and failed to fix the amount to be paid and the manner of payment.

At the outset we recognize that the trial court was trying to craft a sentence to fit both the offense K.L. admitted and K.L.’s character and the opportunity for his rehabilitation. Although our trial courts are granted considerable discretion in determining appropriate sentences, they remain constrained, however, by the statutory requirements laid down by the legislature.

A large proportion of K.L.’s first argument urges that the court erred in failing to find mitigating factors in K.L.’s favor. We reject this contention because when the trial court imposes the presumptive sentence for an offense, it need not make any finding concerning mitigating or aggravating circumstances. Jones v. State, 698 N.E.2d 289, 290 (Ind. 1998); Battles v. State, 688 N.E.2d 1230, 1236 (Ind. 1997).

We believe the court erred, however, when it imposed a sentence but withheld determination of whether K.L. had committed a Class D felony or a Class A misdemeanor.¹ The offense to which K.L. pleaded guilty is a Class D felony. I.C. 35-42-1-2(B)(i). Under I.C. 35-50-2-7 the court may nevertheless enter conviction as a Class A misdemeanor, stating its reasons for doing so, subject to certain exceptions which do not apply to K.L.’s situation. As an alternative, the court may enter conviction for the Class D felony with the express provision that the conviction will be converted to a Class A misdemeanor within three (3) years if the person fulfills certain conditions and the prosecuting attorney consents and the person agrees to the conditions set by the court. I.C. 35-38-1-1.5. (Emphasis added).

Thus, while we cannot allow the court's determination to stand, upon remand the court has options available.

K.L. also complains about the restitution order. Pursuant to the general statute on restitution, I.C. 35-50-5-3, the court may order restitution as part of a sentence, either as a condition of probation or without placing the person on probation. The restitution order operates in the same manner as a judgment lien created in a civil proceeding. Id.

On the other hand where restitution is ordered as a condition of probation, I.C. 35-38-2-2.3(5) requires that “when restitution or reparation is a condition of probation, the court shall fix the amount, which may not exceed an amount the person can or will be able to pay, and shall fix the manner of performance.” That is necessary so that both the state and the convicted person can clearly determine whether the conditions of probation have been complied with.

Here the court determined that the ordered restitution should be a condition of probation, but failed to fix the amount and manner of performance as required by the statute.

We therefore find it necessary to reverse the judgment and remand to the trial court for entry of judgment in conformity herewith.

Reversed and remanded.

FOOTNOTES

1.   A sentence of one and one half years would clearly be contrary to law for conviction as a misdemeanor.

GARRARD, Senior Judge

BARNES, J., and DARDEN, J., concur.