MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[1] Alex Heavrin appeals his sentence for auto theft, as a Level 6 felony.
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We reverse and remand with instructions.
Issues
[2] Heavrin raises three issues on appeal, which we restate as the following four issues:
I. Whether Heavrins appeals should be dismissed because he entered into a plea agreement waiving his right to appeal his sentence.
II. Whether the restitution sentence is illegal because it was unrelated to the crime to which Heavrin pled guilty.
III. Whether the restitution sentence is fundamentally erroneous as contrary to Heavrins Due Process rights.
IV. Whether the restitution sentence is illegal because it was entered without an inquiry into Heavrins ability to pay it.
Facts and Procedural History
[3] On June 17, 2022, Heavrin was driving a silver Dodge Ram truck with no rear license plate when he was pulled over by law enforcement for an observed traffic violation. When officers asked Heavrin if he had anything illegal in the vehicle, Heavrin admitted that he had marijuana and methamphetamine in the truck. Officers located those drugs in their subsequent search of the vehicle. In addition, officers did a search of the vehicles VIN number and discovered that the vehicle had been reported stolen from Jeremy Heavrin (“Jeremy”), Heavrins father.
[4] On August 4, 2022, the State charged Heavrin with Count I, possession of methamphetamine as a Level 4 felony;
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Count II, possession of methamphetamine as a Level 5 felony;
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Count III, possession of methamphetamine as a Level 6 felony;
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Count IV, unlawful possession of a syringe as a Level 6 felony;
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Count V, possession of marijuana as a Class A misdemeanor;
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Count VI, possession of marijuana as a Class B misdemeanor;
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Count VII, auto theft as a Level 6 felony; and Count VIII, theft as a Class A misdemeanor.
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On October 12, 2022, Heavrin and the State entered into a plea agreement under which Heavrin: pled guilty to Counts I, IV, V, and VII; agreed to a total sentence of six years on community corrections with three years suspended to probation; agreed to “Restitution” to “Jeremy Heavrin” in an amount “tbd” (i.e., to be determined); and waived his “right to appeal the conviction and sentence.” App. v. II at 36, 37.
[5] On February 1, 2023, the trial court held a combined guilty-plea and sentencing hearing which Heavrin attended in person and with counsel. Prior to Heavrin pleading guilty, the trial court reaffirmed the waiver of appeal by asking Heavrin, “Do you understand that you are waiving your right to appeal ․. You understand you are waiving all your appellate rights.” Tr. at 8. Heavrin responded, “Yes.” Id. The court also stated to Heavrin:
And Mr. Heavrin one of the terms of this plea agreement is that you will owe restitution to Jeremy Heavrin in an amount that we are going to determine here shortly, or potentially just take some testimony and determine the amount later. You understand that you are going to owe, by pleading guilty today, you are agreeing to owe restitution to Jeremy Heavrin[?]
Id. at 11. Heavrin responded, “Yes.” Id. Heavrin then pleaded guilty to Counts I, IV, V and VII. The trial court accepted Heavrins guilty plea to those counts, dismissed the remaining counts, and sentenced Heavrin in accordance with the plea agreement.
[6] The trial court then proceeded to the restitution hearing. Jeremy testified that the damage resulting from Heavrins theft of his truck included damage to the hood, door, and tailgate, and that Heavrin had ripped out the stereo system. Jeremy also testified that he had numerous tools, a large toolbox, CB radio, and a laptop computer inside the truck when it was stolen by Heavrin and that those items were not recovered. Jeremy testified that Heavrin had bragged about selling those items for money. Jeremy testified that his damages from Heavrins theft of the truck totaled “$11,000 overall.” Id. at 21. That number included the damage done to the truck after Heavrin stole it, i.e., $5,722.60, as documented in an estimate from Griffins Auto Body Repair,
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and the cost of the items that were in the truck when it was stolen, as documented by Jeremy and read into the record by the court. Jeremy stated that his insurance would not cover the estimated cost.
[7] The trial court ordered Heavrin to file an objection to Jeremys estimate within ten days, and it would set the matter for a continuation of the restitution hearing. Heavrin did not file an objection. On March 15, 2023, the trial court held the continued restitution hearing which Heavrin attended by counsel. Jeremy reiterated his testimony from the first part of the hearing. Heavrin argued that Jeremy was only entitled to restitution for the fair-market value of his vehicle—which was approximately $2,000—and not the actual cost to repair it. Heavrin did not challenge the restitution for the items removed from the vehicle. The trial court found that Jeremys damages estimate was “reasonable,” issued a restitution order setting the amount of restitution Heavrin owed to Jeremy at $9,168.47, and stated it was making the restitution order “a term of [Heavrins] probation.”
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Tr. at 43-46. This appeal ensued.
Discussion and Decision
Waiver
[8] As an initial matter, we address the States motion to dismiss the appeal as waived, based on the plea agreement under which Heavrin agreed to waive his “right to appeal the conviction and sentence.” App. v. II at 37. As the State notes, a defendant who bargains to plead guilty in return for favorable outcomes “give[s] up a plethora of substantive claims and procedural rights.” Creech v. State, 887 N.E.2d 73, 74 (Ind. 2008). More specifically, when a defendant pleads guilty and agrees to a specific sentence, he “waives his right to challenge the propriety of the sentence.” Id. at 75. However, the State fails to acknowledge that “an appeal waiver is unenforceable when the sentence is ‘illegal’ or ‘contrary to law[,]’ ” unless the defendant explicitly agreed to the illegal sentence in the plea agreement. Wihebrink v. State, 181 N.E.3d 448, 451 (Ind. Ct. App. 2022) (quoting Crider v. State, 984 N.E.2d 618, 619, 622 (Ind. 2013)), trans. denied; see also Crider, 984 N.E.2d at 625 (holding a waiver of appeal in a plea agreement applies only to sentences imposed in accordance with law unless the agreement explicitly states otherwise).
[9] Here, Heavrin alleges that the restitution sentence was illegal in several ways, none of which he explicitly agreed to in the plea agreement. In the plea agreement, Heavrin only agreed that he owed “restitution” to Jeremey in an amount to later be determined. App. v. II at 36. He did not agree explicitly that the amount of the restitution could be based on property damages not incurred “as a result of the crime,” in violation of Indiana Code Section 35-50-5-3(a)(1), as he alleges on appeal. Nor did he agree explicitly that the restitution order could be entered in violation of his Due Process rights, as he also alleges on appeal. And, finally, he did not agree that a restitution order could be entered as a term of probation without consideration of his ability to pay, as required under Indiana Code Section 35-38-2-2.3(a)(6).
[10] Because Heavrin did not explicitly agree that he owed restitution to Jeremey in an amount contrary to law, his waiver of his right to appeal is unenforceable to the extent it challenges the legality of the restitution order.
Legality of Restitution Order
Standard of Review
[11] We review a restitution order for an abuse of discretion. Sickels v. State, 982 N.E.2d 1010, 1013 (Ind. 2013). An abuse of discretion occurs when the trial courts decision is clearly against the logic and effect of the facts and circumstances before it. Id. In determining whether the trial court abused its discretion, we will not reweigh the evidence or judge witness credibility. See, e.g., Flowers v. State, 154 N.E.3d 854, 871 (Ind. Ct. App. 2020). Rather, we will affirm the trial courts decision if there is any evidence supporting it. Id. “Evidence supporting a restitution order is sufficient ‘if it affords a reasonable basis for estimating loss and does not subject the trier of fact to mere speculation or conjecture.’ ” S.G. v. State, 956 N.E.2d 668, 683 (Ind. Ct. App. 2011) (quoting T.C. v. State, 839 N.E.2d 1222, 1227 (Ind. Ct .App. 2005)), trans. denied.
Restitution Related to the Crime
[12] Heavrin alleges that the restitution order is illegal because it was based on damages that were not related to the crime to which he pled guilty, i.e., auto theft. Restitution is authorized by Indiana Code Section 35-50-5-3(a), which provides in relevant part: “in addition to any sentence imposed under this article for a felony or misdemeanor, the court may, as a condition of probation or without placing the person on probation, order the person to make restitution to the victim of the crime․.” The restitution order must be based upon consideration of the “property damages of the victim incurred as a result of the crime.” I.C. § 35-50-5-3(a)(1); see also I.C. § 35-38-2-2.3(a)(6) (“As a condition of probation, the court may require a person to ․ [m]ake restitution or reparation to the victim of the crime for damage or injury that was sustained by the victim.”). The injury, harm, or loss must come as “a direct and immediate result of the criminal acts of a defendant.” Huddleston v. State, 764 N.E.2d 655, 657 (Ind. Ct. App. 2002) (citing Vanness v. State, 605 N.E.2d 777, 783 (Ind. 1992)).
[13] For crimes involving harm to property, a trial court must base its restitution order upon the actual loss incurred by the victim, which includes cost of repair, or replacement if repair is inappropriate. S.G., 956 N.E.2d at 683. “The amount of actual loss is a factual matter which can be determined only upon presentation of evidence.” Id.
[14] Here, Jeremy presented evidence of the cost of the damage Heavrin inflicted on Jeremys truck when he committed the auto theft to which he pled guilty. He also presented evidence of the cost of the items that were in the truck when Heavrin committed the auto theft, but which were never recovered. That is all evidence of losses Jeremy suffered as a direct result of Heavrins criminal act of auto theft.
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That evidence afforded a reasonable basis for the trial courts restitution order. The restitution order was not entered in violation of Indiana Code Sections 35-50-5-3(a)(1) and 35-38-2-2.3(a)(6).
Restitution Order and Due Process
[15] Heavrin contends that the restitution order is also contrary to law in that it was issued in violation of his due process rights. As he acknowledges, he failed to raise this claim with the trial court and therefore may only seek review for fundamental error. See, e.g., Lisk v. State, 145 N.E.3d 838, 840 (Ind. Ct. App. 2020) (“Where, as here, counsel did not object, the appellant must show fundamental error to merit relief on appeal.”). “The fundamental error exception is extremely narrow and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006) (quotations and citation omitted). “The error claimed must either make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (quotations and citation omitted). Fundamental error is that which is “blatant enough to require a judge to take action sua sponte,” and it is available only in “egregious circumstances.” Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014).
[16] Heavrin has not shown that the trial court failed to afford him the procedural due process to which he was entitled. The fundamental requirement of due process is notice and the opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333 (1976); Holmes v. Randolph, 610 N.E.2d 839, 844 (Ind. 1993). Due process is a flexible concept which calls for such procedural protections as the time, place, and circumstances demand. Mitchell v. State, 659 N.E.2d 112, 114 (Ind. 1995). Whether the requirements of due process have been satisfied is a question of law. Holmes, 610 N.E.2d at 844.
[17] No fundamental error occurred. Heavrin had notice that he would be ordered to pay Jeremy restitution in an amount to be determined at a later date when he agreed to that term in his October 2022 plea agreement and again at the February 1, 2023, guilty-plea hearing at which Heavrin again acknowledged that he would owe Jeremy restitution in an amount to be determined “later.” Tr. at 11. And Heavrin had multiple opportunities to be heard on the issue of restitution, including the amount. At the February 1, 2023, hearing, Jeremy testified at some length as to the amount of damages he was owed and the basis for that amount. Heavrin not only had the opportunity to, but did, cross examine Jeremy about that testimony. Heavrin was also given the opportunity to file a written objection to Jeremys estimates, which he did not do. Nevertheless, the trial court held a second hearing on March 15 regarding restitution, at which Heavrin appeared by counsel, made argument disputing the amount of restitution, and entered evidence regarding the fair market value of Jeremys truck. Thus, Heavrin was afforded the procedural due process to which he was entitled. No error occurred, let alone fundamental error.
Ability to Pay Restitution Order
[18] Finally, Heavrin maintains that the restitution order was issued in violation of Indiana Code Section 35-38-2-2.3(a)(6), which states, in relevant part: “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.” Thus, when restitution is ordered as part of an executed sentence, no inquiry into the defendants ability to pay is required “because restitution is merely a money judgment and a defendant cannot be imprisoned for non-payment.” Archer v. State, 81 N.E.3d 212, 217 (Ind. 2017); see also Baker v. State, 70 N.E.3d 388, 392 (Ind. Ct. App. 2017), trans. denied. However, “[w]hen the trial court enters a restitution order as a condition of probation, it is required to inquire into the defendants ability to pay in order to prevent an indigent defendant from being imprisoned because of a probation violation based on a defendants failure to pay restitution.” Id.
[19] Here, while the written order for restitution stated only that the restitution amount was “payable over the term of probation,” the trial court made it abundantly clear in its order from the bench that it was making the restitution order “a term of [Heavrins] probation.” Tr. at 43, 45, 46. Therefore, it was required by law to inquire into Heavrins ability to pay and to fix the manner of performance. See I.C. § 35-38-2-2.3(a)(6); see also, e.g., Baker, 70 N.E.3d at 392. Because the court failed to do so, we reverse and remand with instructions for the court to make such an inquiry.
Conclusion
[20] Heavrins plea agreement waiver of appeal of his sentence is unenforceable to the extent his appeal is based on claims that the restitution order was illegal or contrary to law. However, the restitution order is consistent with the law allowing such an order only for damages incurred as a result of the crime to which Heavrin pled guilty, i.e., Indiana Code Sections 35-50-5-3(a)(1) and 35-38-2-2.3(a)(6). The order is also consistent with Heavrins due process rights. But, because the restitution order was a term of Heavrins probation, the trial court erred by failing to inquire into Heavrins ability to pay as required by Indiana Code Section 35-38-2-2.3(a)(6). Therefore, we reverse and remand with instructions to conduct such an inquiry.
[21] Reversed and remanded.
Altice, C.J., and Mathias, J., concur.
FOOTNOTES
1
. Ind. Code § 35-43-4-2(a)(1)(B)(ii).
2
. I.C. § 35-48-4-6.1(a), (c)(1).
3
. I.C. § 35-48-4-6.1(a), (b)(1).
4
. I.C. § 35-48-4-6(a).
5
. I.C. § 16-42-19-18(a), (b).
6
. I.C. § 35-48-4-11(a)(1), (b)(1).
7
. I.C. § 35-48-4-11(a)(1)(B)(ii).
8
. I.C. § 35-43-4-2(a).
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. The trial court acknowledged that Jeremy “submitted” to it the Griffins Auto Body Repair, but that document was not admitted into evidence as an exhibit. Id. at 29.
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. Although the March 29, 2023, order for restitution states only that the “amount is payable over the term of probation,” the trial court stated multiple times at the restitution hearing that the restitution was “a term of [Heavrins] probation.” Tr. at 43-46.
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. We are not persuaded by Heavrins arguments that the loss of the property that was in the truck was a separate, uncharged crime for which restitution could not be ordered. It has long been the rule that “when several articles of property are taken at the same time, from the same place, belonging to the same person ․ there is but a single ‘larceny,’ i.e., a single offense.” Raines v. State, 514 N.E.2d 298, 300 (Ind. 1987). Thus, Heavrins theft of the truck resulted in Jeremys loss consisting of both the damage to the truck and the value of any items that were in the truck when it was stolen but were never recovered.
Memorandum Decision by Judge Bailey
Chief Judge Altice and Judge Mathias concur.