author: FRIEDLANDER, Judge.

text:
    Secrena D. ERWIN, individually and as Mother of SHEYENNE R. JENKINS, deceased, Appellant-Plaintiff, v. HSBC MORTGAGE SERVICES, INC., Ian’s Pointe Homeowners Association, Inc., and R & G Management Co., Inc., d/b/a Community Association Services of Indiana, Appellees-Defendants.
    No. 32A01-1202-CT-80.
    Court of Appeals of Indiana.
    Jan. 15, 2013.
    Rehearing Denied March 12, 2013.

      J. Michael Katz, Stephen E. Scheele, Dana J. Hada, and Lisa M. Ross, Goodman Katz & Scheele, Highland, IN, Attorneys for Appellant.
    Jeffrey J. Mortier, Lucy R. Dollens, Jacob V. Bradley, Frost Brown Todd LLC, Indianapolis, IN, Attorneys for Appellee, HSBC Mortgage Services Inc.
    Randy D. Richey, Nationwide Mutual Insurance Company, Carmel, IN, Attorney for Appellee, Ian’s Pointe Homeowners Association, Inc.
    Michael R. Bain, Mark M. Holdridge, Hume Smith Geddes Green & Simmons, Indianapolis, IN, Attorneys for Appellee, R & G Management Co., Inc. d/b/a Community Association Services of Indiana.
   OPINION

FRIEDLANDER, Judge.

Secrena D. Erwin (Mother), individually and as mother of Sheyenne R. Jenkins, deceased, appeals the trial court’s grant of summary judgment in favor of HSBC Mortgage Services, Inc. (HSBC), Ian’s Point Homeowners Association, Inc. (the HOA), and R & G Management Co., Inc., d/b/a Community Association Services of Indiana (CASI) (collectively, Defendants) in the child wrongful death action she filed against Defendants following the tragic drowning death of five-year-old Sheyenne. Mother presents the following restated issues for review:

1. Did the trial court properly grant summary judgment in favor of HSBC?
2. Did the trial court properly grant summary judgment in favor of the HOA and CASI?
We affirm.

On August 12, 2003, Kermit Avedon purchased a home in the Ian’s Pointe subdivision in Avon, Indiana. Avedon financed the transaction with two conventional mortgage loans, which HSBC purchased shortly after the closing. The subdivision is governed by the HOA, a not-for-profit corporation whose members are the owners of the individual residences located in the subdivision. CASI is the management company for the HOA.

Avedon installed an in-ground pool with an automatic safety cover in his backyard in August 2005. Thereafter, in 2006, he erected a three-sided fence that did not completely enclose the backyard or pool but simply provided privacy from the street side of his corner lot. Avedon did not obtain approval from the HOA prior to installation of the pool or fence. The record reveals, however, that there were no apparent safety violations when the pool and cover were installed. Further, Ave-don properly winterized the pool in the winters of 2005/2006 and 2006/2007.

In the summer of 2007, Avedon filed a Chapter 18 bankruptcy petition, which he converted to a Chapter 7 in October 2007. At that time, HSBC ordered a drive-by inspection of the property to determine whether it was occupied, which it was. HSBC also began paying the real estate taxes on the subject property to protect its interest in the property.

In January 2008, while the bankruptcy was pending, Avedon and his family abandoned the property. Avedon called HSBC prior to leaving and stated, “I’m leaving my property. I filed bankruptcy. There is a pool. There is a cover on it. There is a pump. There is no power to the home. It is your home now. I’m leaving on [January 28].” Appellant’s Appendix at 224. HSBC verified the date that he would be leaving the property before ending the phone call. In addition to shutting off the utilities, Avedon cancelled his homeowner’s insurance policy. HSBC received notice of cancellation of the policy from the insurance company in February 2008.

By late winter and early spring of 2008, the swimming pool and cover were in a gross state of disrepair. In particular, a substantial amount of water had accumulated on top of the pool cover causing the cover to tear from its track on one side and sink several feet into the pool. The pool cover, which was almost entirely underwater, was covered in algae. The murky water also contained debris, including boards from the adjacent fence. The pool and its cover were openly dangerous.

Neighbors began complaining about the dangerous condition of the pool. In April 2008, Jose Romero called CASI and discussed the state of the pool. He indicated that the cover of the pool had caved in and was covered with water and that there was open access to the pool from the street and backyard. The CASI representative thanked Romero for the call and assured him that his concerns would be “taken care of.” Id. at 432. Romero made another call to CASI about a week later when it appeared no action had been taken with regard to the pool.

Around this same time in April, Lynn Shelton, who lived adjacent to the property and maintained contact with the Avedon family, spoke with Avedon about the deteriorating condition of the pool. Avedon indicated that he could not go back onto the property but that he would contact HSBC about Shelton’s concerns. Avedon called HSBC in mid to late April and informed an HSBC representative about the situation. Shelton followed-up with a phone call to HSBC in May and left a voicemail message about the dangerous condition of the pool on the abandoned property.

On May 31, 2008, five-year-old Sheyenne Jenkins was spending the day at the home of her grandparents while her mother and stepfather were working. Her grandparents, Melvin and Janice Jenkins, lived two houses down from the abandoned property. While Janice was in the driveway talking with another neighbor that afternoon, Sheyenne wandered from the home. Shortly thereafter, Janice went inside to look for Sheyenne. When she and Melvin could not locate the child in or around their home, Janice ran toward the pool. She found Sheyenne floating in the five to six feet of water that had accumulated on the sunken pool cover. The child was not able to be revived.

Although the bankruptcy stay was still in force, HSBC hired a contractor to conduct an inspection of the property following the accident. HSBC then contracted to have the pool secured. Since July 2008, HSBC has continued to initiate work orders for and inspections of the property. Avedon was discharged from bankruptcy in December 2008, but HSBC has yet to institute foreclosure proceedings.

On August 28, 2009, Mother filed a complaint, which she amended shortly thereafter, against Avedon, HSBC, the HOA, CASI, and the Jenkinses, alleging that their negligent acts and omissions resulted in Sheyenne’s death. On March 15, 2011, HSBC filed a motion for summary judgment, and CASI filed a separate motion for summary judgment in which the HOA joined. Defendants argued that they were entitled to judgment as a matter of law because they owed no duty to Sheyenne to protect her from the dangers of the pool. The trial court held a summary judgment hearing on October 25, 2011. Thereafter, on November 18, 2011, the trial court issued three separate orders respectively granting summary judgment for HSBC, the HOA, and CASI. Mother filed motions to correct error, which the trial court denied by separate orders on January 30, 2012. Mother now appeals.

Our standard of review of a summary judgment order is well settled.

When reviewing a ruling on a motion for summary judgment, we apply the same standard as the trial court. Sees v. Bank One, Indiana, N.A., 839 N.E.2d 154 (Ind.2005). A party seeking summary judgment must show “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C); see also id. The review of a ruling on a summary judgment motion is limited to those materials designated to the trial court. We will accept as true those facts alleged by the nonmoving party, construe the evidence in favor of the nonmoving party, and resolve all doubts against the moving party. A trial court’s grant of summary judgment is clothed with a presumption of validity, and the appellant bears the burden of demonstrating that the grant of summary judgment was erroneous.

W.S.K. v. M.H.S.B., 922 N.E.2d 671, 686 (Ind.Ct.App.2010) (some citations omitted). Further, “[i]n a negligence case, summary judgment is particularly appropriate when the court determines that there is no duty because, absent a duty, there can be no breach and, therefore, no negligence.” Dzierba v. City of Michigan City, 798 N.E.2d 463, 466 (Ind.Ct.App.2003).

1.

We first address the grant of summary judgment in favor of HSBC. Mother acknowledges that “[pjossession is unequivocally a threshold issue in this case.” Appellant’s Brief at 24. She claims there is a genuine issue of material fact as to whether HSBC possessed the property, as a mortgagee in possession, at the time of the drowning. She argues that under the circumstances, HSBC was in the best position to prevent Sheyenne’s tragic drowning and that public policy supports imposing a duty on HSBC to protect the child from a danger of which HSBC had actual knowledge.

With respect to premises liability, upon which Mother bases her claim against HSBC, only a party who possesses the premises owes a duty to persons coming on to the premises. See Risk v. Schilling, 569 N.E.2d 646 (Ind.1991). Relying upon the Restatement of Torts, our Supreme Court has defined a possessor of land as follows:

(a) A person who is in occupation of the land with intent to control it or
(b) A person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or
(c) A person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).

Id. at 647 (citing Restatement (Second) of Torts § 328 E (1965)).

In the instant case, the evidence establishes as a matter of law that Avedon was the most recent person who had been in occupation of the property with the intent to control it. Although he abandoned the property and called HSBC to inform the mortgagee of his intended vacation of the property, there is no indication in the record that at any point prior to the drowning, HSBC acted upon Avedon’s unilateral actions by subsequently occupying the property with intent to control it. Thus, Avedon remained in possession of the property.

Mother acknowledges that HSBC would not acquire legal ownership of the property until it was foreclosed upon, but she argues that “a mortgagee may be in possession of the mortgaged property notwithstanding the provisions of the mortgage or statute of frauds”. Appellant’s Brief at 8. Even if we assume this to be true, still none of the cases cited by Mother establish that a mortgagor may unilaterally transform a mortgagee into a mortgagee in possession and transfer the mortgagor’s duties as possessor of the property. See Federal Land Bank of Louisville v. Schleeter, 208 Ind. 9, 194 N.E. 628 (1935) (a mortgage does not “enable the [mortgagee] to take ... possession ... without a foreclosure and sale according to law. If the mortgagor voluntarily delivers possession to the mortgagee, he may hold it; but a court will only put the mortgagee in possession ... at the time provided by statute”) (emphasis supplied); Parker v. Hubble, 75 Ind. 580, 584 (1881) (a parol agreement that possession shall accompany the mortgage is not enforceable, “but, if made and voluntarily executed by the parties to the extent supposed, there is no rule of law or of equity which requires, or could justify, an interference to restore the possession to the mortgagor”) (emphasis supplied). Mother’s reliance on these and other forfeiture cases is entirely misplaced. This case does not involve forfeiture, and HSBC took no affirmative action to step in and take possession of the property after default and prior to the drowning.

Moreover, the property in question was an asset of the bankruptcy estate. As such, Avedon was precluded from transferring possession to HSBC and HSBC’s actions with respect to the property were undoubtedly circumscribed. Of course, HSBC could have sought permission in the bankruptcy action to address dangers on the property, and the mortgage specifically provided that, in the case of abandonment or bankruptcy:

Lender may do and pay for whatever is reasonable or appropriate to protect Lender’s interest in the Property ..., including protecting and/or assessing the value of the Property, and securing and/or repairing the Property.... Securing the Property includes ... entering the Property to make repairs, change locks, replace or board up doors and windows, drain water from pipes, eliminate building or other code violations or dangerous conditions, and have utilities turned on or off.

Appellant’s Appendix at 68. This same provision of the mortgage agreement, however, indicated: “Although Lender may take action under this Section 9, Lender does not have to do so and is not under any duty or obligation to do so.” Id. In the end, although HSBC may have had the right to go onto the abandoned property and secure the pool, this does not equate to a duty to do so.

At the time of Sheyenne’s tragic drowning, HSBC had not initiated foreclosure proceedings nor exerted any other type of control over the property. Despite futile attempts by Avedon to place responsibility for caring for the property and pool on HSBC, Avedon remained the possessor of the property at all relevant times. While we understand Mother’s displeasure with the limbo in which untold numbers of vacant properties find themselves, the legislature is the place to assert her public policy arguments. On the current state of the law, a phone call such as Avedon’s does not automatically transform the mortgagee into the possessor of the property. Rather, the alleged subsequent possessor must take some action to occupy the land with intent to control it. See Risk v. Schilling, 569 N.E.2d 646. See also Jackson v. Scheible, 902 N.E.2d at 810 (“possession is an issue common to all premises liability cases.... A theme throughout our premises liability cases is that liability arises from actual control over the condition causing the injury”). Further, actions taken by a vendor/mortgagee to protect its financial investment, such as paying taxes and securing insurance, generally do not establish control over the property rising to the level of a possessor of the property. See Jackson v. Scheible, 902 N.E.2d 807.

In the instant case, the trial court properly determined as a matter of law that HSBC was not a possessor of the property and, therefore, owed no duty to protect Sheyenne from a dangerous condition on the property. Accordingly, the trial court correctly granted summary judgment in favor of HSBC.

2.

Mother also challenges the grant of summary judgment in favor of the HOA and CASI. She claims the HOA and CASI’s duty to Sheyenne arose from the Declaration of Covenants, Conditions and Restrictions of Ian’s Pointe (the Declaration). Mother claims further that CASI gratuitously assumed a duty to take care of the dangerous condition of the pool. We will address each contention in turn.

With respect to a duty to protect Shey-enne arising under the Declaration, Mother directs us to Article XI (entitled General Provisions), Section 11.1, which provides as follows:

Right of Enforcement. In the event of a violation, or threatened violation, of any of the covenants, conditions and restrictions herein enumerated, Declarant, the [HOA], the City of Avon and Hendricks County (as well as any governmental sub-entity), or any Owner and all parties claiming under them shall have the right to enforce the covenants, conditions and restrictions contained herein, and pursue any and all remedies, at law or in equity, available under applicable Indiana law, with or without proving any actual damages, including the right to secure in-junctive relief or secure removal by due process of any structure not in compliance with the covenants, conditions and restrictions contained herein....

Appellant’s Appendix at 139 (emphasis supplied). This section simply provides the HOA (and others) with a general right of enforcement. Contrary to Mother’s assertion, however, Section 11.1 does not impose any duty or obligation upon the HOA to exercise this right. Thus, while it is apparent that Avedon had violated a number of covenants, conditions, and restrictions, the HOA and CASI had no legal obligation pursuant to the Declaration to act upon the violations.

Further, we observe that Mother’s reliance on Article III, Section 3.3 of the Declaration is entirely misplaced. Section 3.3 provides:

Certain Obligations and Access Rights to the Common Area.
(a) Except as otherwise set forth in this Declaration, the [HOA], subject to the rights of the Owners as set forth in this Declaration, shall be responsible for the management and control, for the exclusive benefit of the Owners as provided herein, of the Common Area owned by the [HOA] and for the maintenance of the same in good, clean, attractive, safe and sanitary condition, order and repair.
(b) The [HOA] shall have and is hereby granted a general right of access and easement to all of the Common Areas owned by the Association and across the Lots, at reasonable times and at anytime in case of emergency, as reasonably required by its officers, directors, employees and their agents an [sic] independent contractors, to the full extent necessary or appropriate to perform its obligations and duties as set forth in this Declaration. ...

Id. at 138. The only obligation imposed by this section is for the HOA to manage, control, and maintain the common area. In order to perform these obligations, this section provides the HOA with a limited easement across the lots of homeowners to be used to access the common area. Accordingly, this section imposes no obligations or duties relevant to the case at hand.

In summary, Mother provides no support for her assertion that the HOA or its agent, CASI, had a duty arising from the Declaration “to protect Sheyenne.” Appellant’s Brief at 33. Moreover, to the extent Mother argues in her reply brief that a duty arose under the management agreement between CASI and the HOA, we find the argument waived. See Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind.2005) (“[t]he law is well settled that grounds for error may only be framed in an appellánt’s brief and if addressed for the first time in the reply brief, they are waived”).

Finally, we address Mother’s contention that CASI gratuitously assumed a duty to remedy the dangerous condition of the pool. Mother argues that CASI assumed the duty when Jose Romero called and informed CASI of the condition of the pool. At the conclusion of the call, CASI’s agent assured Romero that his concerns would be “taken care of.” Appellant’s Appendix at 432. According to Mother, this assurance creates a question of fact regarding gratuitous assumption of duty.

Our courts recognize the gratuitous assumption of duty by one who, through affirmative conduct or agreement, assumes and undertakes a duty to act. Griffin v. Simpson, 948 N.E.2d 354 (Ind.Ct.App.2011), trans. denied. Whether a defendant has assumed a duty is ordinarily a question of fact, but when there is no genuine issue of material fact, assumption of a duty may be determined as a matter of law. Id.

For an actor to gratuitously assume a duty, the actor must specifically undertake to perform the task he is charged with having performed negligently. Severson v. Bd. of Trs. of Purdue University, 777 N.E.2d 1181 (Ind.Ct.App.2002). “[A] mere gratuitous promise without more is insufficient to impose a duty of care.” Ember v. B.F.D., Inc., 490 N.E.2d 764, 770 (Ind.Ct.App.1986). Where there is a complete omission or failure to act on a gratuitous promise (i.e., nonfeasance), liability “is confined to situations when the beneficiaries detrimentally relied on performance ... or when the actor increased the risk of harm.” Id. In other words, “a promise is sufficient when coupled with reliance by the injured promisee.” Light v. NIPSCO Indus., Inc., 747N.E.2d 73, 75 (Ind.Ct.App.2001), trans. denied. See also Board of Comm’rs of Monroe County v. Hatton, 427 N.E.2d 696, 700 (Ind.Ct.App.1981) (“reliance lies at the very heart of the cause and is a prerequisite to liability”).

In the instant case, Mother has failed to designate evidence that CASI took affirmative steps to remedy the condition of the pool. She simply directs us to an ambiguous statement by CASI that the issue regarding the pool would be “taken care of.” Even if we were to take the leap with Mother and infer that this was an assurance that CASI would go onto the property and secure the pool, the fact is that CASI did not act upon this promise in any way. Thus, contrary to Mother’s assertions on appeal, her allegations amount to a claim of nonfeasance by CASI, requiring a showing of detrimental reliance or increased risk of harm. Mother makes no claim that CASI increased the risk of harm, and she directs us to no evidence that Mother, Sheyenne, or the Jenkinses detrimentally relied on CASI’s promise to another neighbor. In fact, there is no indication in the record that they were even aware of the conversation prior to the drowning. The trial court correctly determined as a matter of law that this is not a case of gratuitous assumption of duty.

The trial court properly granted summary judgment in favor of Defendants based upon lack of duty. Because we have affirmed the grant of summary judgment on this ground, we need not reach the attractive nuisance issue addressed by the parties.

Judgment affirmed.

BROWN, J., and PYLE, J., concur.

      . We held oral argument in this matter on November 27, 2012.

      . There was a beach ball floating on top of the water, and finger and shoe prints on the algae-covered pool cover showed where the young child had attempted to climb out of the pool. Further, access to the pool’s ladder was blocked by the sunken cover.

      . The complaint also named as a defendant Henry Cary Woods, Sheyenne's biological father, whom Mother sought to establish had no interest in the child wrongful death proceedings. Mother subsequently obtained a default judgment against Woods.

      . We observe that the trial court entered specific findings and conclusions in its summary judgment orders. While the findings and conclusions certainly offer valuable insight into the court's rationale and facilitate our review, we are in no way limited by them and may affirm based on any theory supported by the designated evidence. See Trustcorp Mortg. Co. v. Metro Mortg. Co., Inc., 867 N.E.2d 203 (Ind.Ct.App.2007).

      . Mother urges also that HSBC was fully aware of the dangerous condition of the pool and could have acted. Knowledge alone, however, is not sufficient to impute liability under a theory of premises liability. Mother must first establish that HSBC had control of the property. See Jackson v. Scheible, 902 N.E.2d 807 (Ind.2009).

      . In fact, the obligations imposed upon the HOA by the Declaration generally relate to the management of the common area, including insuring, funding, repairing, and main-taming it. Under the Declaration, the HOA is also tasked with obtaining general liability insurance and providing notice to mortgagees of HOA liens on the property.

      . Mother’s assertion that Romero “and other concerned neighbors” relied upon the promise and forestalled efforts to remedy the condition of the pool on their own is unsupported in the record. Appellant’s Brief at 36.


source: Caselaw Access Project

author: BARNES, Judge.

license: Public Domain

text:
    Nick DOMASCHKO and Edwina Domaschko, and their Respective Trusts, et al., Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff.
    No. 58A01-1206-PL-261.
    Court of Appeals of Indiana.
    Jan. 16, 2013.

      Leanna Weissman, Lawrenceburg, IN, Attorney for Appellants.
    Gregory F. Zoeller, Attorney General of Indiana, David K. Steiner, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

Nick Domaschko, Edwina Domaschko, and their respective trusts, et al., (collectively “the Domaschkos”) appeal the trial court’s order of immediate appropriation and appointment of appraisers. We affirm.

Issue

The Domaschkos raise one issue, which we restate as whether the trial court properly determined that the State, through the Indiana Department of Transportation (“INDOT”), was entitled by law to acquire the Domaschkos’ property.

Facts

The Domaschkos own approximately 900 acres of land in Ohio County between State Road 56 and the Ohio River. On May 16, 2011, INDOT filed a complaint for the appropriation of real estate in connection with a project to improve State Road 56. In addition to temporary rights of way, INDOT sought fee simple ownership of certain portions of the Domaschkos’ property. The Domaschkos objected, asserting that some of the real estate IN-DOT was seeking to appropriate was not related to highway purposes. INDOT filed a motion to overrule the Domaschkos’ objections. Eventually, the trial court conducted an evidentiary hearing on the Do-maschkos’ objections. On May 30, 2012, the trial court issued an order of immediate appropriation and appointment of appraisers. The Domaschkos now appeal.

Analysis

The Domaschkos assert that two portions of the land INDOT sought to acquire are not related to the improvement of State Road 56 and, therefore, INDOT was not statutorily authorized to appropriate that property. The first portion of land is a fifty-foot buffer zone associated with the relocation of Thuermer Hollow Creek (“the Creek”). The second is associated with a shared driveway that currently straddles two properties, one owned by the Domasckos and the other owned by the Pate Aberdeen Water Company (“Water Company”).

To the extent the trial court’s judgment is based on the interpretation of a statute, the judgment is a question of law. See Cochran v. State, 859 N.E.2d 727, 729 (Ind.Ct.App.2007). “The first step in interpreting a statute is to determine whether the legislature has spoken clearly and unambiguously on the point in question.” Id. “When a statute is clear and unambiguous, we need not apply any rules of statutory construction other than to require that words and phrases be taken in their plain, ordinary, and usual sense.” Id.

As the Domaschkos point out, pursuant to Indiana Code Section 8-23-2-4.1(4), IN-DOT is responsible for the construction, reconstruction, improvement, maintenance, and repair of state highways. Further, pursuant to Indiana Code Section 8-28-2-6(a)(1), INDOT may “[ajcquire by purchase, gift, or condemnation, sell, abandon, own in fee or a lesser interest, hold, or lease property in the name of the state, or otherwise dispose of or encumber property to carry out its responsibilities.” INDOT is also authorized to “[pjerform all actions necessary to carry out the department’s responsibilities.” Ind.Code § 8-23-2-6(a)(13).

Accordingly, the Domaschkos concede, “[sjimple statutory construction leads to a clear conclusion — INDOT can take property, but it has to be for the purpose of maintaining and improving state highways.” Appellant’s Br. p. 10. The Do-maschkos argue, however, that INDOT does not have the authority to acquire land to “plant trees or to maintain driveways unrelated to road construction.” Id.

In State v. Collom, 720 N.E.2d 737, 741 (Ind.Ct.App.1999), we observed:

It has long been established that the necessity of taking property for public use is purely a legislative question and not a proper subject for judicial review; where the intended use is public, this question may be determined by such agency and in such manner as the legislature may designate. Wampler v. Trustees of Indiana University, 241 Ind. 449, 453, 172 N.E.2d 67, 69 (1961). Thus, “a court may not inquire into the administrative determination of the propriety, reasonableness, or necessity for the taking of property by eminent domain by a proper authority, except for fraud, or where the proceeding is a subterfuge for taking property for private use.” Cemetery Co. v. Warren School Twp. of Marion County, 236 Ind. 171, 189, 139 N.E.2d 538, 546-47 (1957). As our supreme court has explained:
The courts have the right to determine the legal authority and right under which the power of eminent domain is exercised. This does not mean, however, that the courts may assume the administrative act of determining the necessity or reasonableness of the decision to appropriate and take the land. To us, this appears to be a matter for the determination of the legislature or the corporate body to whom the legislature has delegated such a decision. We do not think the court has the power to inquire into the wisdom or propriety of such judgment unless a question of fraud or bad faith is raised as where an attempt is made to show that the property taken will not be used for a public purpose, or the proceeding is a subterfuge to convey the property to a private use.
Id., 286 Ind. at 188, 139 N.E.2d at 545 (emphasis in original).
******
Necessity under Indiana’s eminent domain statutes is not limited to the “absolute or indispensable needs of [the State], but is considered to be that which is reasonably proper and useful for the purpose sought.” See Ellis v. Public Service Co. of Indiana, Inc., 168 Ind.App. 269, 272, 342 N.E.2d 921, 923 (1976) (discussing utility eminent domain proceedings). Moreover, “[o]ur policy should not be such as to place an undue burden upon the State in acquiring land for such public improvements as highway construction when such improvements are considered to be in the public interest.” State v. Heslar, 257 Ind. 307, 315, 274 N.E.2d 261, 266 (1971). All issues concerning the expediency and necessity of the taking of private property “are exclusively for the legislature. Unless the action of the legislature is arbitrary, and the use for which the property is taken is clearly private, the courts will not interfere.” Guerrettaz v. Public Service Co. of Indiana, 227 Ind. 556, 561, 87 N.E.2d 721, 724 (1949).

In Collom, we went on to explain the burden is on the party objecting to the appropriation to establish that the taking is not necessary for the purpose sought, and then only on the grounds of fraud, capriciousness, or illegality in the State’s determination of necessity. Collom, 720 N.E.2d at 742.

To the extent the issue is properly framed as a challenge to INDOT’s statutory authority to acquire land, as opposed to the necessity of the specific acquisition, we are unpersuaded that the property at issue is unrelated to the improvement of State Road 56.

Regarding the buffer zone, at the hearing, INDOT presented evidence that, as part of the project, it wanted to realign the intersection of Thuermer Hollow Road and State Road 56 because the intersection was at an undesirable angle and the realignment would provide a safer intersection and adequate sight distance at the intersection. To realign the road, INDOT would need to relocate the Creek, which runs parallel to the road. To relocate the Creek, INDOT was required to obtain certain permits from the Indiana Department of Environmental Management and the U.S. Army Corps of Engineers. As part of the permitting process, INDOT was required to mitigate the impact of the Creek relocation by installing a fifty-foot buffer zone, which included the planting of trees, along the relocated portions of the Creek.

The Domaschkos claim that the acquisition of the buffer zone is unrelated to the improvement of State Road 56 because the Creek is not a navigable waterway subject to the Clean Water Act and, even if the Creek is subject to the Clean Water Act, adequate mitigation can occur elsewhere. These arguments miss the mark.

Although the Domaschkos offered the testimony of a civil engineer who stated that the buffer zone was not necessary and that the mitigation could be done elsewhere and Nick Domaschko testified that the Creek is often dry, INDOT offered extensive testimony regarding the requirement of the buffer zone. For example, the environmental manager for the project testified that it was not possible to avoid the relocation of the Creek and that the buffer zone was required as part of the permitting process. This is consistent with the testimony of a project engineer, who testified that the project could not have been built without the Creek relocation and that INDOT could not have built the project without the buffer zone. Another engineer testified that the project could not have been built without the permits. This engineer also testified that the project could not have been built without this land acquisition.

This evidence established that the acquisition of the buffer zone is related to IN-DOT’s responsibility to improve State Road 56. See I.C. §§ 8-28-2-6(a)(l), 8-23 — 2—6(a) (18), 8-23-2-4.1(4); see also Cochran, 859 N.E.2d at 731 (holding that INDOT was statutorily authorized to acquire property in order to carry out its responsibility of reconstructing state highways and perform all actions necessary to carry out such reconstruction, including the construction of drainage facilities to accommodate additional run-off from a reconstruction project). Thus, the Domasch-kos have not established that INDOT was not statutorily authorized to acquire the buffer zone.

Regarding the permanent acquisition of land to be used as a shared driveway for the Domaschkos and the Water Company, Domaschkos assert that a permanent right of way is unnecessary because the Water Company has an entrance at another location. However, INDOT presented testimony explaining that the Domaschkos’ expert’s design was not viable and that a permanent right-of-way was necessary because “[t]he driveway is shared by two property owners, so according to Indiana design manual, we have to take permanent right-of-way. We cannot take temporary right-of way from one owner to build a drive ... for another.” Tr. p. 110. Thus, it is clear that the acquisition of this property is related to the improvement of State Road 56 and, therefore, INDOT is statutorily authorized to acquire the property for the driveway. See I.C. §§ 8-23-2-6(a)(l), 8-23-2-6(a)(13), 8-23-2^4.1(4). The Domaschkos have not established that the trial court erroneously ordered the acquisition of the property associated with the buffer zone or the driveway.

Conclusion

Because the buffer zone and driveway are related to the improvement of State Road 56, INDOT was statutorily authorized to acquire that property. We affirm.

Affirmed.

BAKER, J., and RILEY, J., concur.


author: PYLE, Judge.

text:
    John ALDEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 30A01-1209-CR-412.
    Court of Appeals of Indiana.
    Jan. 29, 2013.

      Bryan Lee Ciyou, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

John Alden (“Alden”) appeals the trial court’s denial of his petition to reduce his Class D felony conviction for operating while intoxicated to a Class A misdemean- or.

We affirm.

ISSUE

Whether the trial court erroneously denied Alden’s petition.

FACTS

On October 31, 1992, Deputy Donald Smith (“Deputy Smith”) of the Hancock Sheriffs Department saw a blue and white Chevrolet driving erratically along U.S. 40 in Hancock County. When Deputy Smith pulled the vehicle over, he observed Alden in a state of intoxication. On November 2, 1992, Alden was charged with operating while intoxicated as a class D felony. On June 1,1993, Alden pleaded guilty and was sentenced to 730 days, of which 90 days was to be served on in-home detention and the balance on informal probation.

While Alden was being supervised, the State filed three petitions alleging that he had either failed to appear for a random drug screens or pay his fees. Nevertheless, the record suggests that Alden completed his sentence on August 16, 1995.

On July 13, 2012, Alden filed a petition seeking to reduce his felony conviction to a Class A misdemeanor. In his petition, Alden asserted, among other things, that he had not been convicted of a felony since the completion of his sentence. The trial court scheduled a hearing for August 9, 2012. At that hearing, Alden appeared, with counsel, along with the State. After Alden was sworn, the following colloquy took place:

PROSECUTOR: Mr. Alden you had indicated that you didn’t have any felony convict ...
ALDEN: You will have to speak up sir.
PROSECUTOR: You had indicated you didn’t have any felony convictions after this case?
ALDEN: No.
PROSECUTOR: Have you had any misdemeanor convictions?
ALDEN: No. Not that I can think of.
PROSECUTOR: Since 1993 you haven’t had any?
ALDEN: Not that I can remember.
PROSECUTOR: Have you been arrested at all since 1993?
ALDEN: Pardon me?
PROSECUTOR: Have you been arrested for anything since 1993?
ALDEN: Uh, not in the State of Indiana no.
PROSECUTOR: Okay in a different State?
ALDEN: Pardon?
PROSECUTOR: In a different State?
ALDEN: Yes sir.
PROSECUTOR: For what?
ALDEN: I was arrested in Illinois, for a DUI.
PROSECUTOR: Um, what year was that?
ALDEN: Uh, 98. 97, 98.
PROSECUTOR: How was the case resolved?
ALDEN: Uh, I did, they just gave me seven days in jail and released me.
PROSECUTOR: Did you plead guilty?
ALDEN: According to my attorney yes sir. I, I did what my attorney advised me to do.
PROSECUTOR: But you [pled] guilty.
ALDEN: Yes.
PROSECUTOR: Okay. I don’t have any other questions your honor.
COURT: Any uh, or any re-direct or that’s not Re-direct. Any questions for your client?
COUNSEL: Yes your honor. Mr. Alden we met and we went over the Statute as it was revised July 1, 2012 correct?
ALDEN: Correct.
COUNSEL: And you understand that one of the disqualifiers would be a felony conviction since your case was resolved here in Hancock County, correct?
ALDEN: Correct.
COUNSEL: And have you suffered a Felony Conviction since you resolved this case that we are in front of the Court today?
ALDEN: No.
COUNSEL: And are there criminal charges pending against you today?
ALDEN: No.
COUNSEL: Okay thank you. That’s all I have.

(Tr. 7-9). No additional evidence was submitted. At the conclusion of the hearing, the trial court took the matter under advisement. On August 14, 2012, the trial court denied Alden’s petition.

DISCUSSION

Alden appeals the trial court’s denial of his petition. Specifically, Alden argues that his petition should have been granted because there was sufficient evidence to show that he met all of the statutory requirements for reduction of his felony conviction to a misdemeanor. The State argues that the statute in question grants the trial court discretion in deciding whether or not to grant this type of petition. As a result, since Alden had prior probation violations and acknowledged a subsequent conviction for operating while intoxicated, the trial court properly denied Alden’s petition.

Effective July 1, 2012, our General Assembly amended the statute covering the sentencing range for Class D felonies by adding the following language:

(c) Notwithstanding subsection (a), the sentencing court may convert a Class D felony conviction to a Class A misdemeanor conviction if, after receiving a verified petition as described in subsection (d) and after conducting a hearing of which the prosecuting attorney has been notified, the court makes the following findings:
(1) The person is not a sex or violent offender (as defined in IC 11-8-8-5).
(2) The person was not convicted of a Class D felony that resulted in bodily injury to another person.
(3) The person has not been convicted of perjury under IC 35-44-2-1 or official misconduct under IC 35-44-1-2.
(4) At least three (3) years have passed since the person:
(A) completed the person’s sentence; and
(B) satisfied any other obligation imposed on the person as part of the sentence; for the Class D felony.
(5) The person has not been convicted of a felony since the person:
(A) completed the person’s sentence; and
(B) satisfied any other obligation imposed on the person as part of the sentence; for the Class D felony.
(6) No criminal charges are pending against the person.

Ind.Code § 35-50-2-7(c) (emphasis added).

The interpretation of a statutory scheme is a question of law reserved for the courts. Garcia v. State, 979 N.E.2d 156 (Ind.Ct.App.2012). When determining the legislature’s intent, we look at the “plain language of the statute and attribute the common, ordinary meaning to terms found in everyday speech.” Id. at 158. If the word “shall” is used, it is construed as mandatory language creating a statutory right to a particular outcome after certain conditions are met. Romine v. Gagle, 782 N.E.2d 369, 379 (Ind.Ct.App.2003), trans. denied. However, the “term ‘may’ in a statute ordinarily implies a permissive condition and a grant of discretion.” Id. at 380. A trial court abuses that discretion when its decision is clearly against the logic and effect of the facts and circumstances before it. An-Hung Yao v. State, 975 N.E.2d 1273 (Ind.2012).

It seems clear that the General Assembly has adopted a policy wherein trial courts can reward good behavior by removing the stigma of certain Class D felony convictions. See State v. Brunner, 947 N.E.2d 411 (Ind.2011) (modification of conviction for good behavior may be equitable and desirable, but only after legislature grants authority to courts). However, the language used in the statute does not create a right to the reduction of one’s Class D felony conviction to a misdemeanor. The word “may” shows an intent by the legislature to give trial courts the discretion to grant or deny a petition, even if all of the statutory requirements have been met by the Petitioner. While it is best for trial courts to keep in mind the policy preference of rewarding good behavior with a reduction of a Class D felony conviction to a Class A misdemeanor, trial courts are free to deny a petition as long as the denial is supported by the logic and effect of the facts.

Here, the evidence provides a basis for the trial court’s denial of Alden’s petition. For example, while Alden completed his sentence, it was not without incident. Three probation violations were filed during the period of his supervision, with an arrest warrant being issued for at least one of those violations. More importantly, the testimony shows reluctance, even evasiveness, on the part of Alden to acknowledge his subsequent arrest and conviction in Illinois for operating while intoxicated. Further, Alden’s testimony was the only evidence supporting Alden’s assertion that his conviction in Illinois was not a felony. No additional evidence was submitted to corroborate his testimony. We are aware that a significant period of time has passed since Alden’s convictions. However, given the lack of additional evidence, the evasiveness, and equivocal nature of Alden’s testimony concerning his Illinois conviction, we cannot say that the trial court was unconvinced that the Illinois conviction was indeed a misdemeanor. As a result, we find no abuse of discretion.

Affirmed.

ROBB, C.J., and MAY, J., concur.


author: CRONE, Judge.

text:
    Henry WAGLER, Barb Wagler, and Henry & Barb Wagler, LP, Appellants-Defendants, v. FORT WAYNE-ALLEN COUNTY DEPARTMENT OF HEALTH, Appellee-Plaintiff.
    No. 02A03-1206-PL-269.
    Court of Appeals of Indiana.
    Jan. 31, 2013.
    Dale W. Arnett, Winchester, IN, Attorney for Appellants.
    Laura L. Maser, Beers Mailers Backs & Salin, LLP, Fort Wayne, IN, Attorney for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Henry and Barb Wagler built their home in an unincorporated area of Allen County and had their own septic systems installed. The Fort Wayne-Alien County Department of Health (“the Department”) petitioned for injunctive relief and moved for summary judgment, claiming that the Waglers were required to obtain a construction permit from the Department pri- or to installing their septic systems. The Waglers filed a cross-motion for summary judgment, claiming a statutory exemption from the permit requirement. The trial court entered summary judgment for the Department.

On appeal, the Waglers renew their statutory exemption argument. We conclude that the statute is inapplicable and therefore affirm the trial court.

Facts and Procedural History

The relevant facts are undisputed. The Waglers built their home in an unincorporated area of Allen County. Their limited partnership, Henry & Barb Wagler, LP, owns the home. In June 2008, the Wag-lers installed two septic systems on their property; one serves the main residence and the other serves a ranch house. Allen County Code Section 10-4^1-1 provides that a construction permit must be obtained from the Allen County health commissioner “prior to the commencement of any excavation, construction, modification or addition to any existing or new private sewage disposal system.” The Waglers did not obtain a permit for their septic systems. The Department received a complaint about the Waglers’ failure to obtain a permit and attempted to resolve the matter administratively, to no avail.

In June 2009, the Department filed a complaint against the Waglers and their limited partnership for injunctive relief and damages based on their failure to obtain a permit. The Department filed a motion for summary judgment. The Wag-lers filed a cross-motion for summary judgment, claiming that they were exempt from the permitting requirement pursuant to Indiana Code Section 86-7-8-8, which we address below. After a hearing, the trial court entered summary judgment for the Department. This appeal ensued.

Discussion and Decision

The Waglers contend that the trial court erred in granting the Department’s summary judgment motion. Our standard of review is well settled:

When reviewing the grant or denial of summary judgment, this Court applies the same legal standard as a trial court: summary judgment is appropriate where no designated genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. The standard of review is not altered by cross motions for summary judgment on the same issues. A party appealing the denial of summary judgment carries the burden of persuading this Court that the trial court’s decision was erroneous. Moreover, when the material facts are not in dispute, our review is limited to determining whether the trial court correctly applied the law to the undisputed facts; and, if the issue presented is purely a question of law, we review the matter de novo. In addition, our standard of review is not changed by the trial court’s entry of findings of fact and conclusions thereon. Although the findings and conclusions provide valuable insight into the trial court’s decision, they are not binding upon this Court.

C.M.L. ex rel. Brabant v. Republic Servs., Inc., 800 N.E.2d 200, 202 (Ind.Ct.App.2003) (citations omitted), trans. denied (2004).

As mentioned earlier, the Waglers claim that they are exempt from the permit requirement pursuant to Indiana Code Section 36-7-8-3, which reads in pertinent part as follows:

(a) The legislative body of a county having a county department of buildings or joint city-county building department may, by ordinance, adopt building, heating, ventilating, air conditioning, electrical, plumbing, and sanitation standards for unincorporated areas of the county. These standards take effect only on the legislative body’s receipt of written approval from the fire prevention and building safety commission.
(b) An ordinance adopted under this section must be based on occupancy, and it applies to:
(1) the construction, alteration, equipment, use, occupancy, location, and maintenance of buildings, structures, and appurtenances that are on land or over water and are:
(A) erected after the ordinance takes effect; and
(B) if expressly provided by the ordinance, existing when the ordinance takes effect;
(c) The rules of the fire prevention and building safety commission are the minimum standards upon which ordinances adopted under this section must be based.
(d) An ordinance adopted under this section does not apply to private homes that are built by individuals and used for their own occupancy.

The Waglers argue that because they built their own home, the “sanitation standards” mentioned in subsection (a) of the statute do not apply to them pursuant to subsection (d), and thus the septic system permitting requirement of Allen County Code Section 10-4-4-1 does not apply to them.

We disagree. The rules of the fire prevention and building safety commission, found in Title 675 of the Indiana Administrative Code (“IAC”), do not govern the installation of septic systems. That subject matter is governed by Title 16 of the Indiana Code and Title 410 of the IAC. See, e.g., Ind.Code § 16-19-3-4 (“(a) The executive board [of the state department of health] may, by an affirmative vote of a majority of its members, adopt reasonable rules on behalf of the state department [of health] to protect or to improve the public health in Indiana, (b) The rules may concern but are not limited to the following: ... (3) The disposition of excremental and sewage matter.”); 410 IAC 6-8.1-33 (“The owner or agent of the owner shall obtain a written permit, signed by the [local] health officer, for construction of a residential sewage system prior to: (1) Construction of a residence or placement of a mobile home which will not be connected to a sanitary sewerage system.”). Allen County Code Section HMMb-l is consistent with this rule. In sum, then, Indiana Code Section 36-7-8-3 does not apply.

We reached the same conclusion in Washington County Health Department v. White, 878 N.E.2d 224 (Ind.Ct.App.2007), trans. denied (2008), on which the trial court relied in granting the Department’s summary judgment motion. In that case, the Whites placed two mobile homes on their property in an unincorporated area of the county and failed to obtain a permit for their sewage discharge system. When the county health department asked to inspect their property, the Whites petitioned for injunctive relief and claimed that, pursuant to Indiana Code Section 36-7-8-3(d), “they were not required to obtain any sort of permit for their mobile homes.” Id. at 225. The health department also petitioned for injunctive relief. The trial court denied both petitions.

On appeal, the health department argued that Indiana Code Section 36-7-8-8(d) was inapplicable “because the Whites did not build the mobile homes placed on the property.” Id. at 228. We agreed with the health department on this point and then observed,

In a way, the question whether the Subsection (d) exception applies is a sidetrack to the fundamental issue here, which is whether the Whites must comply with the requirements of Indiana’s Health Code (“Health Code”) contained in Title 16 of the Indiana Code. We have already determined that the Whites do not fall within the Subsection (d) exception, and because of this, we conclude that they are bound to comply with the Health Code regulations, specifically, 410 IAC 6-8.1-33, which required them to obtain a permit for a sewage disposal system prior to placing the mobile homes on their property. As such, the trial court abused its discretion by denying [the health department’s] petition for injunctive relief.
However, even if we had determined that the Whites satisfied the Subsection (d) exception, they still would have been required to comply with the Health Code regulations. The trial court took a contrary position. It viewed the Subsection (d) exception as a global exception that exempts individuals not only from the requirements set out in Indiana Code § 36-7-8-3, but also the requirements of the Health Code. The trial court’s view of the scope of the Subsection (d) exception is too broad.
In Robinson [v. Monroe County, 658 N.E.2d 647 (Ind.Ct.App.1995), clarified on reh’g, 663 N.E.2d 196 (1996), trans. denied (1996) ], we noted that
Subsection (d) represents an exception to the safety-oriented requirements set forth elsewhere in the statute [Indiana Code § 36-7-8-3] and thus is contrary to the purpose of the statute. That is, exempting an individual from the requirements of obtaining authorization for proposed construction and subjecting the completed work to inspection and approval prior to permitting occupancy of the building runs contrary to the goal of ensuring safe buildings.
658 N.E.2d at 650-51. In questioning why the Subsection (d) exception was created, we pointed out that
[i]n its early stages, this country’s frontier was moved .westward by pioneers who moved onto land and built houses made from the materials at hand. Since then, home owning has become an essential facet of the “American dream”. It may be argued that ordinances such as those contemplated by IC 36-7-8-3, which establishes construction specifications and require permits and inspections for residential construction projects, interfere with the ability of some individuals to build their own home and thus to pursue the American dream.
Id. at 651. We determined that
exempting a person who wishes to build his own house from the requirements imposed pursuant to IC 36-7-8-3 of complying with construction specifications and obtaining permits allows that person to build a house even though he may not possess the skills or equipment to comply with technical specifications, and allows him to do so even if he is not able to afford to pay others to do the work.
Id. Nevertheless, we concluded that the Subsection (d) exception “only creates an exemption from the requirements set out in [Indiana Code § 36-7-8-3] and does not provide a similar exemption from the requirements set out in [Indiana Code § 36-7-8-4] concerning minimum housing standards and related ordinances.” Id. at 652.
We agree with the Robinson court’s conclusion that the Subsection (d) exception is a limited exception only exempting an individual from the requirements of Indiana Code § 36-7-8-3. The Health Code and Indiana Code § 36-7-8-3 regulate different subject matters. The reasons discussed in Robinson for exempting an individual from the requirements of Indiana Code § 36-7-8-3 do not apply with regard to exempting an individual from the requirements of the Health Code. The trial court erred in concluding that an individual who satisfies the Subsection (d) exception is exempt from the Health Code requirements. The Whites were required to obtain a permit for a sewage disposal system prior to placing the mobile homes on their property. See 410 IAC 6 — 8.1—33(a)(1). Therefore, the trial court abused its discretion when it denied [the health department’s] petition for injunctive relief.

Id. at 229-30.

In this case, the Waglers’ counsel, who also represented the Whites, contends that the White court erred in concluding that Indiana Code Section 36-7-8-3(d) “does not apply with regards to exempting individuals from the requirements of the Health Code.” Appellants’ Br. at 3. For the reasons given above, we disagree and therefore affirm the trial court’s ruling.

Affirmed.

KIRSCH, J., and MATHIAS, J., concur.

      . In support of its summary judgment motion, the Department pointed out that “[t]he Plumbing Codes at 675 IAC, Article 16 do not cover sewer, septic system, or other ‘sanitary’ installations. The plumbing code addresses the appropriate means for a structure to be connected to such installations, but does not govern septic installations.” Appellants' App. at 162 (affidavit of Allen County Building Department Commissioner David O. Fuller). We note that Title 675 of the IAC does not contain a separate "sanitation” code.

      . 410 IAC 6-8.1-33, which was in effect when the Waglers installed their septic systems, was repealed with the rest of Rule 6-8.1 effective January 1, 2011. It appears that 410 IAC 6-8.1-33 has been superseded by 410 IAC 6-8.3-53 (‘‘(a) For any dwelling or place of residence that will not be connected to a sanitary sewerage system, the owner or agent of the owner shall obtain a written construction permit, signed by the health officer, for construction of a residential on-site sewage system prior to the: (1) start of construction of a residence....").


author: ROBB, Chief Judge.

text:
    Travis KOONTZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 29A05-1202-CR-77.
    Court of Appeals of Indiana.
    Feb. 1, 2013.

      John D. Fierek, Voyles, Zahn, Paul, Hogan & Merriman, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION ON REHEARING

ROBB, Chief Judge.

In Koontz v. State, 975 N.E.2d 846 (Ind.Ct.App.2012), we held that Travis Koontz waived any claim of an illegal sentence by entering into a plea agreement which reduced his penal exposure. Id. at 849-50 (Baker, J., dissenting). Both Koontz and the State of Indiana have filed petitions for rehearing. We grant the petitions for the purpose of correcting a misstatement of the law, but reaffirm our original disposition.

Koontz was charged with driving while suspended, a Class A misdemeanor, false informing, a Class B misdemeanor, operating a vehicle while intoxicated, a Class C misdemeanor, and operating a vehicle with an alcohol concentration equivalent (“ACE”) of .08 or more, a Class C misdemeanor. He and the State entered into a plea agreement by which Koontz pleaded guilty to driving while suspended and operating with an ACE of .08 or more, and the State dismissed the remaining charges. The trial court accepted the plea agreement and imposed the agreed upon sentence: 365 days in jail with eighteen days executed and 365 days of probation for the Class A misdemeanor, to be served concurrently with sixty days in jail with eighteen days executed and 365 days of probation for the Class B misdemeanor. Upon violating his probation several months later, Koontz filed a motion to correct erroneous sentence alleging the sentence was erroneous on its face because the combined term of imprisonment and period of probation exceeded a statutory one year limitation. In discussing whether Koontz had benefit-ted from his plea agreement such that he should be held to the bargain, illegal sentence notwithstanding, we noted several things: all of the charges against him were misdemeanors; two of the four charges against him were dismissed, including the second-most serious of the charges; and the trial court could have imprisoned him up to one year had it had discretion in sentencing, but pursuant to the agreement, he was to serve just eighteen days of a one-year sentence. We also stated:

[Bjeing convicted of the per se offense rather than operating while intoxicated reduces Koontz’s exposure if he were to be arrested again for operating while intoxicated. See Ind.Code § 9-30-5-3 (stating that a person violating the operating while intoxicated or operating with an ACE of .08 or more commits a Class D felony if the person has a previous conviction of operating while intoxicated within five years).

Id. at 850 (emphasis in original).

As both parties have pointed out, this is a misstatement of the law. Indiana Code section 9-30-5-2 defines “operating a vehicle while intoxicated” separately from the per se offense defined in section 9-30-5-1. However, “previous conviction of operating while intoxicated” is also a term defined by the Indiana Code, and it includes offenses under sections 9-30-5-1 through -9. Ind. Code § 9-13-2-130. Therefore, even a conviction of the per se offense would subject Koontz to a Class D felony charge if he were to commit another operating while intoxicated offense within five years of this conviction. Accordingly, we grant the parties’ petitions for rehearing and strike the above language from our original opinion.

Even without this consideration, however, the other factors we mentioned remain viable and we continue to believe that, given the circumstances in which Koontz was charged with all misdemeanors, two of the four misdemeanors were dismissed, and Koontz agreed to the sentence as part of his plea agreement, he has waived any illegality in the sentence. Accordingly, we again affirm the trial court’s denial of his motion to correct erroneous sentence.

BRADFORD, J., concurs.

BAKER, J., would reverse as previously stated in his dissenting opinion.


author: MATHIAS, Judge.

text:
    Hiawathia HUNT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A04-1207-CR-371.
    Court of Appeals of Indiana.
    Feb. 8, 2013.
    Ellen F. Hurley, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Joseph Y. Ho, Deputy Attorney

      General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MATHIAS, Judge.

Hiawathia Hunt (“Hunt”) was convicted of Class D felony theft following a bench trial in Marion Superior Court and sentenced to 545 days in the Department of Correction. Hunt appeals and claims that the trial court imposed an improper conditional sentence.

We affirm.

Facts and Procedural History

Kelly Humphrey (“Humphrey”) owned and operated a spa and salon in Indianapolis, where Hunt leased space and worked. On April 9, 2011, Humphrey went to her car, which was parked near the salon, and noticed that someone had broken into her car. The glove box had been opened, the car had been ransacked, and a video surveillance system had been taken. Also taken were tickets for a car wash that Humphrey was selling to raise funds for her son’s little league baseball team. Humphrey had paid $440 for the tickets. Tr. pp. 4-5.

According to Hunt, he saw that the door was open on Humphrey’s parked car and took the items in order to teach Humphrey a “lesson.” Tr. p. 18. However, Hunt did not immediately tell Humphrey that he had taken the items, claiming that he and Humphrey had gotten into an argument about another matter and that he was thereafter unable to reach her. On April 17, 2011, Hunt sent Humphrey a text message informing her that he had taken the things from her car and stored them at the salon. Humphrey and Hunt later went to the salon, where Hunt retrieved the video surveillance system. However, when he went to retrieve the fundraising tickets, they were not where he claimed to have put them. Hunt told Humphrey that someone else must have taken the tickets, prompting Humphrey to call the police. The police interviewed Hunt, who admitted that he had taken the items in order to teach Humphrey a lesson that it was unwise to leave her car unlocked.

On April 20, 2011, the State charged Hunt with Class D felony theft. At a bench trial held on July 9, 2012, Hunt claimed that he was attempting to “protect” Humphrey from herself, and insisted that he did not know what had happened to the missing tickets. Tr. p. 24. The trial court found Hunt guilty as charged, and the case proceeded to sentencing. Hunt’s trial counsel indicated that Hunt had no problem paying restitution, asked for the opportunity to earn alternate misdemeanor sentencing, and requested probation. When Hunt spoke on his own behalf, he attempted to apologize to Humphrey, at which point the trial court asked, “You got her $400.00?” Humphrey replied, “I don’t have it.” The trial court then stated, “Well then the apology is not worth very much is it?” Tr. p. 45. Hunt then continued his apology and asked for leniency. The trial court then sentenced Hunt as follows:

If you were that sorry you would have given her the $400.00 before today. And the other thing is ... people come in here everyday, lawyers, people who are found guilty of stealing, shoplifting and what have you. And almost I get a sense that they fall victim to themselves, their own weaknesses. I see malice in this case. I see malice because you took Miss Humphrey’s property and you didn’t take care of it. You didn’t get it back to her. I think you did it because you were angry with her. So I pick up on malice from all the evidence that I have heard in this case. I think you did it in a mean spirited way. And then to say I am sorry I didn’t want to hurt your feelings or I didn’t want to deprive you of this, then you should have gotten the $400.00 and given it to her. But, it shouldn’t have gone this far. So I see it maybe ... it manifests itself as a crime of theft but I see it as being different as well. It’s aggravated and because of that you must serve 545 days in the Department of Corrections. Give you credit for the time that you served so far and suspend 270 days to be served on probation. And when you are on probation you must complete 80 hours of community service work and [I will] make another deal with you because she needs her $400.00 back. You pay that $4.00.00 and I will reconsider how much time you have to serve in prison.
Pay fines and costs in the amount of $350.00. Pay the expenses of probation. Complete 6 weeks of anger management classes since I pick up on some form of anger in this case that was manifested toward the Defendant ... the victim in this ease. So if you want to come back and see me I will ask State to make sure that you are here and we will talk about it. But now you must go with the Sheriff.

Tr. pp. 46-47 (emphases added). Hunt now appeals.

Discussion and Decision

Hunt claims that the trial court imposed an impermissible conditional sentence. In support of his argument, Hunt relies solely on the holding of this court in Saddler v. State, 953 N.E.2d 1220 (Ind.Ct.App.2011). In Saddler, the trial court asked the defendant during sentencing if she would “rather do jail time or offer to pay restitution,” and explicitly told her, “I want the restitution otherwise I am going to have to give [Saddler] jail time.” Id. at 1221. After determining that Saddler was unable to immediately to pay the restitution, the court stated, “[n]ow if you can come up with the money ... in say two to four weeks or so, then I can give you probation and not have to give you jail time.” Id.

The trial court continued the sentencing hearing twice to give Saddler more time to pay. When informed at the third and final sentencing hearing that Saddler had not paid any restitution, the trial court stated, “I’ve already heard enough on this case to know that it warrants executed time and ... I think I’ve already told her that if she failed to make restitution and we extended it to give her time to do it and she hasn’t paid one dime, right?” Id. at 1222. The trial court then sentenced Saddler to 270 days executed and ordered her to pay restitution in the amount of $500.

On appeal, Saddler argued that the trial court had effectively imposed a conditional sentence, i.e., she would not have to serve executed time if she could pay the restitution but she would serve executed time if she did not pay restitution. The court on appeal noted that Indiana law permits conditional sentences only when restitution is a condition of probation. Id. (citing Ind.Code § 35-38-2-2.3(a)(5)). But if payment of restitution is a condition of probation, the trial court is obligated to inquire into the defendant’s ability to pay restitution. Id. (citing Pearson v. State, 883 N.E.2d 770, 772 (Ind.2008)); see also I.C. § 35-38-2-2.3(a)(5) (“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.”). “This is so in order to prevent indigent defendants from being imprisoned because of a probation violation based on a defendant’s failure to pay restitution.” Pearson, 883 N.E.2d at 772 (citing Jaramillo v. State, 803 N.E.2d 243, 250 (Ind.Ct.App.2004)).

The Saddler court then determined that the sentence imposed by the trial court in that case was an impermissible conditional sentence, writing:

[T]he trial court, in effect, issued a conditional sentence by requiring Saddler to pay restitution prior to sentencing her.... Only after giving Saddler two continuances to pay restitution, the trial court sentenced Saddler to 270 days of incarceration along with restitution. It is clear then that Saddler’s sentence was, in effect, conditional: payment of the restitution amount at any time prior to the second continuance determined which sentence Saddler received.

Saddler, 953 N.E.2d at 1222.

In the present case, Hunt claims that his sentence was also conditional. We disagree and find the present case distinguishable from Saddler. In that ease, the trial court gave the defendant repeated opportunities to pay restitution and explicitly stated that if she did not pay restitution, then she was going to serve time in jail. See id. at 1221. Despite the trial court’s later denials that it was not punishing Saddler for her failure to pay, the court’s statements made it clear that the sentence it imposed was conditional. That is, if Saddler had paid the restitution, then the trial court was not going to impose executed time.

In contrast, here, the trial court imposed an executed sentence without giving Hunt numerous opportunities to pay restitution; nor did the trial court threaten Hunt with an executed sentence if Hunt was unable to pay the restitution. Instead, the court concluded that Hunt’s remorse was insincere based on his failure to make any effort to pay the victim for the value of the items he had stolen. Only after imposing an executed sentence did the trial court inform Hunt that if he paid the victim back, the trial court would reconsider how much executed time Hunt would serve. Tr. pp. 46-47. We do not consider this to be a conditional sentence. Hunt’s sentence was explicit and unconditional: 545 days executed, with credit for time served, and 270 days suspended to probation. The trial court simply informed Hunt that if he ever did pay the restitution, it could modify his sentence.

Indeed, a trial court may modify a defendant’s sentence without approval of the prosecuting attorney if such a request is made within 365 days after the defendant begins serving the sentence, and certain conditions are met. See Ind.Code § 35-38-l-17(a). If more than 365 days have passed, the trial court may still modify a defendant’s sentence if the prosecuting attorney consents to such modification. See I.C. § 35-38-l-17(b). Additionally, the statute setting forth the sentencing range for a Class D felony conviction, Indiana Code section 35-50-2-7, was recently amended to provide that a sentencing court may, on petition by the defendant, convert a Class D felony conviction to a Class A misdemeanor conviction under certain circumstances. See Alden v. State, 983 N.E.2d 186 (Ind.Ct.App.2013) (citing I.C. § 35-50-2-7(c)-(e)).

Thus, the trial court simply explained to Hunt that modification of his sentence was possible if he paid restitution to the victim; it did not make Hunt’s sentence conditional on the payment of restitution. Because Hunt’s sentence was not conditional, and because Hunt alleges no further error in his sentence, we affirm.

Affirmed.

KIRSCH, J., and CRONE, J., concur.


author: KIRSCH, Judge.

text:
    Jim A. EDSALL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 57A03-1205-CR-240.
    Court of Appeals of Indiana.
    Feb. 18, 2013.

      Jim A. Edsall, Pendleton, IN, Appellant Pro Se.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

KIRSCH, Judge.

Jim A. Edsall (“Edsall”) pleaded guilty in January 2008 to five counts of Class A felony delivery of methamphetamine and one count of Class A felony conspiracy to manufacture methamphetamine. In this belated appeal, Edsall raises two sentencing issues that we restate as:

I. Whether the trial court’s imposition of six concurrent thirty-year terms of imprisonment at the Indiana Department of Correction (“IDOC”) was either an abuse of discretion or inappropriate based on the nature of the offense and character of the offender; and
II. Whether the trial court exceeded its statutory authority when it ordered restitution as part of Edsall’s sentence.

We affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

This is Edsall’s second appeal to this court. On August 3, 2006, the State charged Edsall with five counts of Class A felony delivery of methamphetamine and four counts of Class A felony conspiracy to manufacture methamphetamine. On January 4, 2008, the parties appeared for a guilty plea hearing and filed a plea agreement (“Plea Agreement”), in which Edsall agreed to plead guilty to five counts of Class A felony delivery of methamphetamine and one count of Class A felony conspiracy to manufacture methamphetamine, and the State agreed to dismiss the remaining charges. With regard to sentencing, the Plea Agreement provided:

Upon the Defendant’s plea of guilty to Counts 1, 3, 4, 5, 7 and 9 he shall receive a concurrent maximum sentence of thirty (30) years in IDOC and the parties will argue all terms at sentencing.

Appellant’s App. at 42. The Plea Agreement stated that the sentence imposed would be served consecutive to Edsall’s sentence from a prior Michigan conviction. The trial court advised Edsall of his rights, including the range of penalties. Specifically, the trial court told Edsall that the term of imprisonment for a Class A felony ranges from twenty to fifty years with the advisory term being thirty years. The trial court also told Edsall that for each count to which he was pleading guilty there was a potential fine from zero to ten thousand dollars. There was no mention of restitution at the guilty plea hearing. Following examination of Edsall under oath to establish a factual basis, the trial court accepted the Plea Agreement, ordered the preparation of a presentence investigation report (“PSI”), and set the matter for a sentencing hearing.

In January 2008, the probation department filed Edsall’s PSI with the trial court. The victim’s impact statement portion of the PSI stated, “To date, a restitution request has not been received from I.M.A.G.E. Drug Task Force; they plan to submit a restitution amount to the prosecutor’s office.” Id. at 64. Thereafter, at the February 8, 2008 sentencing hearing, the State presented Exhibit A, entitled Edsall Investigation Costs, a copy of which had been provided earlier that morning to Edsall’s counsel. The trial court asked Edsall’s attorney if there was “any argument or objection” to the total restitution amount, which was $19,581.40, and Edsall’s counsel responded, “at this point I certainly won’t stipulate to the amount,” but did not pose any objection to the exhibit or the matter of restitution being sought. Tr. at 81.

Thereafter, the State presented the testimony of Steuben County Sheriffs Deputy Tim Troyer (“Deputy Troyer”), who testified about the undercover operation in which he and at least four other law enforcement officers infiltrated, over a fifty-seven-day period, Edsall’s manufacturing operation. Deputy Troyer testified that Edsall’s operation was sophisticated and the largest he has ever seen in his twenty-one years of law enforcement experience. As part of the undercover operation, Deputy Troyer, known to Edsall as “Hawk,” agreed to provide pseudoephedrine pills, or “red things,” to Edsall, who would then give a portion of the finished product back to Hawk. Tr. at 89, 91, 94. According to testimony, Deputy Troyer provided a total of 16,308 red pills, in 96-count boxes, to Edsall during the investigation. State’s Ex. A. Walgreens Pharmacy donated 5,520 outdated pills, and undercover officers purchased 10,788 pills at pharmacies. Exhibit A included the cost incurred to purchase the pills, and the expenses and wages of those involved. Exhibit A was admitted without objection. Tr. at 106.

Following the presentation of that evidence, counsel presented argument to the trial court regarding sentencing. Edsall’s counsel expressed “concern” about the requested restitution, questioning the extent and scope of the police conduct in the undercover investigation, but he did not expressly object to the restitution request and asked the trial court to impose an executed sentence of fifteen years. Tr. at 150. The State, in turn, responded that the large-scale investigation was because Edsall’s manufacturing scheme was “enormous” and “bigger than we’ve ever seen” in the surrounding four-county area. Id. at 154. The State asked the trial court to impose the maximum allowed under the plea agreement, thirty years, and requested the court to order “restitution figures as laid out.” Id. at 157.

The trial court identified aggravators and mitigators and determined that the “ággravating circumstances ... completely outweigh the mitigating circumstances.” Id. at 158. It sentenced Edsall to concurrent sentences of thirty years on each of the six counts, to be served consecutive to Edsall’s Michigan sentence. The trial court also entered restitution judgment in the amount of $19,581.40 and imposed a $2,000.00 fine. Edsall’s attorney asked the court for a reasonable period of time upon his release from Indiana Department of Correction for Edsall to take care of his financial obligations.

In August 2008, Edsall filed a pro se petition for post-conviction relief. Thereafter, in August 2011, an attorney filed an appearance on Edsall’s behalf and filed a motion for permission to file a belated notice of appeal. In September 2011, the trial court denied his request to file a belated notice of appeal. Edsall appealed that decision to this court, and we reversed by unpublished decision, finding that the trial court abused its discretion when it denied his motion for permission to file a belated notice of appeal. Edsall v. State, No. 57A03-1110-CR-462, 2012 WL 1247110 (Ind.Ct.App. Apr. 11, 2012). Having received that permission, Edsall filed this appeal.

DISCUSSION AND DECISION

I. Sentencing

Edsall argues that the trial court abused its discretion by considering improper aggravating circumstances and failing to consider mitigating ones, and he also argues that the sentence was inappropriate based on the nature of the offense and character of the offender.

Initially, we must determine whether Edsall may appeal his sentence. A plea agreement in which the trial court has discretion over the length of the sentence is referred to as an “open plea.” Bowling v. State, 960 N.E.2d 837, 841 (Ind.Ct.App.2012) (citing Johnson v. State, 898 N.E.2d 290, 291 (Ind.2008)), trans. denied. Where a plea agreement leaves sentencing to the trial court’s discretion, a defendant is entitled to contest on direct appeal the merits of a trial court’s sentencing decision. Id. (citing Collins v. State, 817 N.E.2d 230, 231 (Ind.2004)). This includes a plea agreement wherein a defendant agrees to a sentencing cap or range. Id. However, our Supreme Court has held that a defendant can waive the right to appellate review of his sentence as a part of a written plea agreement as long as such waiver is made knowingly and voluntarily. Id.

Here, in exchange for Edsall’s guilty plea to five charges of Class A felony delivery of methamphetamine and one charge of Class A felony conspiracy to manufacture methamphetamine, the State dismissed the other three Class A felony charges and agreed to a thirty-year cap on the executed portion of his sentence. The Plea Agreement stated that Edsall “shall receive a concurrent maximum sentence of thirty years in IDOC and the parties will argue all terms at sentencing.” Appellant’s App. at 42. Although the Plea Agreement’s use of the words “shall receive” a term of thirty years initially suggests that the terms of imprisonment was “fixed” and non-appealable, the Plea Agreement also indicated “the parties will argue all terms at sentencing,” thereby leaving some discretion to the trial court. Appellant’s App. at 42.

In line with this trial court discretion, counsel for each party argued for what he believed to be an appropriate sentence length, with Edsall’s counsel arguing for imposition of an executed sentence of fifteen years, and the State arguing for imposition of “the thirty years.” TV. at 150, 157. After considering the aggravating and mitigating circumstances, the trial court determined that Edsall’s convictions and the circumstances “warranty an executed sentence equivalent to the advisory sentence for a Class A Felony which is the maximum called for in the parties’ Plea Agreement.” Appellant’s App. at 47 (emphasis added). Based on these facts and circumstances, we believe that the Edsall’s plea was an “open plea,” and Edsall is entitled to appeal his sentence.

A. Abuse of Discretion

Edsall argues that the trial court’s sentence was an abuse of discretion. A trial court’s sentencing decisions are discretionary and entitled to “considerable deference” by the appellate courts. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.2008). A trial court abuses its discretion if it: (1) fails “to enter a sentencing statement at all”; (2) enters “a sentencing statement that explains reasons for imposing a sentence — including a finding of aggravating and mitigating factors if any— but the record does not support the reasons”; (3) enters a sentencing statement that “omits reasons that are clearly supported by the record and advanced for consideration”; or (4) considers reasons that “are improper as a matter of law.” Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind.2007), clarified on reh’g 875 N.E.2d 218 (Ind.2007). However, the relative weight or value assignable to reasons properly found, or those which should have been found, is not subject to review for abuse of discretion. Id. at 491.

Here, the trial court considered the mitigating circumstance that Edsall pleaded guilty, and it considered as aggravating the following circumstances: Edsall had a history of criminal or delinquent behavior; he committed these offenses while on release for a similar charge in Michigan; the extent of Edsall’s involvement in the methamphetamine manufacturing business and the quantity produced by his operation; and Edsall committed the offense in the presence of children under eighteen years of age. Appellant’s App. at 47.

In this appeal, Edsall argues that the trial court failed to consider as an additional mitigating circumstance that “the State initiated the crime[.]” Appellant’s Br. at 14. Where a defendant alleges that a trial court has failed to find a particular mitigating circumstance, it is the defendant’s burden to establish that the mitigating evidence is both significant and clearly supported by the record. Davis v. State, 971 N.E.2d 719, 724 (Ind.Ct.App.2012), trans. denied. Edsall claims that the trial court should have considered as mitigating that he “did not submit” to the undercover officer’s first two offers to provide him with pseudoephedrine pills. Appellant’s Br. at 14. To the extent that Edsall suggests that the trial court erred by not finding this to be a mitigating circumstance, we disagree. A trial court is not obligated to accept the defendant’s argument as to what constitutes a mitigating factor, and a trial court is not required to give the same weight to proffered mitigating factors as does a defendant. Rogers v. State, 878 N.E.2d 269, 272 (Ind.Ct.App.2007), trans. denied (2008). The I.M.A.G.E. Drug Task Force was investigating what it suspected was a large-scale methamphetamine manufacturing operation involving a number of individuals, and as part of that process, it offered to provide Edsall with pseudoephedrine. We agree with the State that “[t]he police activity ... simply does not constitute a substantial mitigating factor for sentencing purposes.” Appellee’s Br. at 11. We find no trial court error.

Turning to the matter of aggrava-tors, Edsall claims that the trial court used irrelevant and inaccurate aggravating testimony when it sentenced him. Appellant’s Br. at 15-18. Edsall refers to the sentence hearing testimony of Deputy Troyer. During Deputy Troyer’s testimony, he explained that, at some point in time after Edsall had been arrested, Deputy Troyer received a phone call from an individual that he believed, by voice, to be Edsall, who stated to Deputy Troyer that “this was all a conspiracy” of the county government to target him and that the judges involved were “child molesters.” Tr. at 97-98.

Edsall also argues that there was inaccurate testimony presented concerning the number of children present at the residence during the manufacturing of the methamphetamine and the estimated total amount of methamphetamine that Edsall could have manufactured over the course of a year, given the large quantity of pills and number of individuals involved. That is, the State presented evidence of what might have occurred over a 365-day period.

Edsall argues that the above testimony was irrelevant, inaccurate, and intended to cause prejudice against him and that we should remand the case for resentencing. We decline his request to do so. First, there is no indication that the trial court considered the alleged inaccurate and irrelevant testimony when it sentenced Ed-sall, and Edsall has not proved otherwise. Second, Edsall does not challenge at least two of the trial court’s aggravating circumstances, namely his criminal history and the fact that when he committed the present offenses, he was out on bond for a similar criminal charge that he faced in Michigan. These alone are valid aggravating circumstances that support the trial court’s sentencing decision. See Ind.Code § 35-38-l-7.1(a)(6) (committing crime while on probation is proper aggravating circumstance); Deloney v. State, 938 N.E.2d 724, 732 (Ind.Ct.App.2010), trans. denied (2011) (defendant’s criminal history is valid aggravating circumstance); Owens v. State, 916 N.E.2d 913, 917 (Ind.Ct.App.2009) (single aggravator may be sufficient to sustain sentence). We find no support for the claim that the trial court abused its discretion when it sentenced Edsall.

B. Appropriateness

Edsall claims his sentence is inappropriate and should be revised. Under Appellate Rule 7(B), we may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender. “[WJhether we regard a sentence as appropriate ... turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell, 895 N.E.2d at 1224. Under appropriateness review, the question is not whether another sentence would be more appropriate; rather, the question is whether the sentence imposed was inappropriate. Steinberg v. State, 941 N.E.2d 515, 535 (Ind.Ct.App.2011), trans. denied.

With regard to the nature of the offense, Edsall explains that, over a thirty-two-day span of time, the State offered him around 11,000 pseudoephedrine pills, which is considerably more than he could have purchased on his own because the law places restrictions on the quantity of pseu-doephedrine that a person may purchase in a given time frame. Therefore, he argues, the State “had to break it’s [sic] own laws to facilitate the quantity and extent of this crime.” Appellant’s Br. at 19. He continues that the trial court failed to consider that “the only way for [him] to commit a [sic] offense of this extent and nature was with the State’s assistance.” Id. at 21. Although Edsall claims that he is not “blaming the State,” we find that this is precisely what he is attempting to do. Id. The record before us reveals that the trial court properly considered that Edsall was running a large-scale methamphetamine manufacturing and distribution operation that involved several other individuals and that, in exchange for receiving large quantities of pseudoephedrine from an undercover officer, he would in turn provide a percentage of finished methamphetamine product to him. The nature of the offense supports the trial court’s imposition of the advisory thirty-year sentence for each offense. Ind.Code § 35-50-2-4 (advisory sentence for Class A felony conviction is thirty years).

With regard to the character of the offender, Edsall advises that he does not have a juvenile record, and “except for a couple misdemeanors has [led] a crime free life.” Appellant’s Br. at 22. With that latter proposition, we disagree. Ed-sall has a history of illegal substance abuse. Also, Edsall had violated his probation in the past, and when he committed the current crimes he was released on bail for Michigan charges of operating a methamphetamine lab and possession of ephedrine. See Rich v. State, 890 N.E.2d 44, 54 (Ind.Ct.App.2008), trans. denied (committing offenses while on probation is substantial consideration of assessment of character). While Edsall has successfully maintained consistent self-employment as a farmer since graduating from high school in 1981, he had ready access to anhydrous ammonia through his farming operations and unfortunately used that access to facilitate his methamphetamine manufacturing enterprise. Edsall has failed to persuade us that either his character or the nature of his offenses warrants revision of his sentence.

II. Restitution

Edsall claims that the trial court erred when in its sentencing order it ordered him to pay restitution, arguing that there was no statutory authority or factual basis to do so. The principal purpose of restitution is to vindicate the rights of society and to impress upon the defendant the magnitude of the loss the crime has caused. Pearson v. State, 883 N.E.2d 770, 772 (Ind.2008); Bockler v. State, 908 N.E.2d 342, 348 (Ind.Ct.App.2009) (restitution is means of impressing upon defendant magnitude of loss he caused). Restitution also serves to compensate the offender’s victim. Pearson, 883 N.E.2d at 772. A state entity may be considered a “victim” for purposes of restitution. Bockler, 908 N.E.2d at 348.

Indiana Code section 35-50-5-3(a) governs restitution and 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 victim’s estate, or the family of a victim who is deceased. The court shall base its restitution order upon a consideration of:
(1) property damages of the victim incurred as a result of the crime, based on the actual cost of repair (or replacement if repair is inappropriate);
(2) medical and hospital costs incurred by the victim (before the date of sentencing) as a result of the crime;
(3) earnings lost by the victim; and
(4) funeral, burial, or cremation costs incurred by the family or estate of a homicide victim as a result of the crime.

“[A] trial court may order restitution as part of a defendant’s sentence wholly apart from probation.” Pearson, 883 N.E.2d at 772-73; see also, Miller v. State, 502 N.E.2d 92, 95 (Ind.1986) (“[0]rder of restitution is as much a part of a criminal sentence as a fíne or other penalty.”) When restitution is ordered as part of an executed sentence, an inquiry into the defendant’s ability to pay is not required. Pearson, 883 N.E.2d at 773. In such a situation, restitution is merely a money judgment, and a defendant cannot be imprisoned for nonpayment. Ind.Code § 35-50-5-3(b); Pearson, 883 N.E.2d at 773.

Generally, an order of restitution is within the trial court’s discretion, and it will be reversed only upon a finding of an abuse of that discretion. Bockler, 908 N.E.2d at 348 (citing Green v. State, 811 N.E.2d 874, 877 (Ind.Ct.App.2004)). An abuse of discretion occurs when the trial court misinterprets or misapplies the law. Id.

The State argues that Edsall waived any claim concerning the trial court’s order of restitution because he did not object at the trial court level. We recognize that the State’s intention to seek restitution was mentioned a number of times, including in the PSI, and the specific amount of restitution was discussed at length during the sentencing hearing. No objection was posed. Nevertheless, we conclude that the issue was not waived. Here, where the trial court ordered restitution as part of Edsall’s sentence, we treat this question like any other claim that a trial court has violated its statutory authority in imposing sentence, which may be raised for the first time on appeal. Rich v. State, 890 N.E.2d 44, 48 (Ind.Ct.App.2008) (appellate courts will review trial court’s restitution order even where defendant did not object, because restitution order is part of sentence and appellate courts have duty to determine legality of sentences), trans. denied; Green, 811 N.E.2d at 877 (citing Abron v. State, 591 N.E.2d 634, 638 (Ind.Ct.App.1992), trans. denied).

That brings us back to the threshold question of whether the trial court had authority to order restitution in this case. We conclude it did not. Initially, we note that restitution was not mentioned in any form in the Plea Agreement or at the guilty plea hearing. The general rule is that once an agreement is accepted, the trial court is precluded from imposing any sentence other than that required by the plea agreement. Sinn v. State, 693 N.E.2d 78, 80 (Ind.Ct.App.1998). In Sinn, the State argued that the imposition of restitution did not increase the sentence and was not precluded by the plea agreement. This court rejected that argument, finding that the trial court erred in ordering the defendant to pay restitution when the plea agreement contained no provision allowing it. Id. Even assuming Edsall’s Plea Agreement did not foreclose the trial court’s ability to order restitution, as the State asserts, we find that the order of restitution was not appropriate here because the State was not a “victim.” In reaching this decision, we examine Hendrickson v. State, 690 N.E.2d 765 (Ind.Ct.App.1998).

In Hendrickson, the trial court ordered the defendant to repay funds that a government drug task force officer had used to conduct controlled drug purchases. Hendrickson appealed and challenged the trial court’s order of restitution, and we determined that allowing Hendrickson to retain the money would have resulted in unjust enrichment. Specifically, we held, “[Requiring Hendrickson to pay the [drug task force] for the buy money expended during the sting operation advances Indiana’s public policy of ensuring that victims are reimbursed and defendants are prevented from being unjustly enriched by their criminal acts.” Hendrickson, 690 N.E.2d at 768. Under those facts, the Hendrickson court considered the State to be a “victim” within the meaning of Indiana Code section 35-50-5-3(a). Id.

Subsequently, in Green, a panel of this court further examined the concept of the State as a victim and entitlement to restitution. There, the defendant pleaded guilty to criminal confinement of his girlfriend. In sentencing Green, the trial court had ordered him to pay restitution to the county prosecutor’s office because the State’s prosecution of Green had required a forensic sexual assault examination of him. In reversing the restitution order, the Green appellate court recognized that the State had not expended funds on behalf of the victim of his criminal confinement. It clarified that, in Hendrickson, this court did not hold that the State is considered a victim entitled to restitution any time it “elects” to. spend money to obtain criminal evidence. Green, 811 N.E.2d at 879. “If that were the prevailing rule of law, then the State would seek restitution for any and all of its discovery costs.” Id. We further explained, “[T]he restitution in Hendrickson was proper because to allow the defendant to retain money that the drug task force had used during a controlled drug buy involving the defendant would, in part, result in unjust enrichment.” Green, 811 N.E.2d at 879.

We find Green applicable here, where the trial court ordered Edsall to repay over $19,000 that the drug task force spent during the course of the undercover criminal investigation of Edsall, including for the purchase of over 10,000 pseudoephed-rine pills and the wages and expenses of law enforcement from various agencies. Although Edsall argues that the restitution amount was excessive, we make no finding today on the amount of the restitution. Rather, we hold that under the facts of this case the State was not a victim as contemplated by the restitution statute, and the trial court’s order of restitution was not proper. Compare Ault v. State, 705 N.E.2d 1078, 1082-83 (Ind.Ct.App.1999) (where State was entitled to restitution for Medicaid payments that it paid on behalf of infant victim shaken and injured by defendant because it stood in shoes of victim and assumed cost of victim’s care).

Affirmed part and reversed in part.

MATHIAS, J., and CRONE, J., concur.

      . See Ind.Code § 35-48-4-1.

      . See Ind.Code §§ 35-48-4-1, 35-41-5-2.

      . I.M.A.G.E. stands for Image Multi Agency Group Enforcement. Appellant's App. at 14.

      . Edsall also argues that the restitution order was in error because it included restitution for all counts, some of which had been dismissed under the Plea Agreement. Appellant’s Br. at 8, 28. The State concedes that to the extent the trial court's restitution order included payments for pills used for charges that were ultimately dismissed under the Plea Agreement, those expenditures may not be included in the restitution order. Appellee’s Br. at 18. Because we find that the ordered restitution was not proper, we do not address Edsall's assertion that expenses incurred for dismissed counts were included in the restitution order.