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FOR PUBLICATION

ATTORNEY FOR APPELLANT: DAVID E. DEAL Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana GARY DAMON SECREST Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
AARON LITTLE, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A04-0412-CR-651

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Mark Stoner, Judge Cause No. 49F09-0212-FD-293334

December 30, 2005 OPINION - FOR PUBLICATION

MAY, Judge

Aaron Little pled guilty to Class D felony operating a vehicle while intoxicated causing serious bodily injury. He appeals the restitution order the trial court entered pursuant to his plea. Little raises two issues: 1. Whether the court erred when it ordered Little to pay $199,582.73 to the

victim of his crime; and 2. Whether his trial counsel provided ineffective assistance during the hearing

to determine the amount of restitution Little would pay. We reverse and remand. FACTS AND PROCEDURAL HISTORY The State charged Little with two counts of Class D felony driving while intoxicated causing serious bodily injury and one count of criminal recklessness as a Class D felony. Little pled guilty to one count of Class D felony driving while

intoxicated in exchange for dismissal of the other two charges. The plea agreement left the matter of restitution open for determination by the court. After a hearing, the court entered the following order: The Court hereby supplements its sentencing order, previously issued on February 27, 2004. The court has considered argument of counsel and the evidence presented ,[sic] and it determines that the defendant owes restitution in this cause for the following amounts: 1. Out of pocket expenses: $1,494.01 2. Medical bills and other expenses incurred $175,714.28 minus bills without supporting documentation $589.56 3. Lost wages: 65 = $57,200.00 +insurance paid $1,764.00 -disability received $36,000.00 $22,964.00 Total Restitution Ordered: $199,582.73

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All restitution is ordered payable to Matthew L. Klutzke, who may be liable for subrogation of these claims by his various insurers. The court orders the above restitution, over the objection of defendant's counsel, and cites Savage v. State, 655 N.E.2d 1223, and Rheinbold v. State, 555 N.E.2d 463 for the authority that medical providers constitute victims within the meaning of IC 35-38-2-2.3 and are entitled to restitution. The court expressly does not order restitution for anticipated dental expenses of $12,335 ,[sic] which would have occurred after the February 27, 2004 sentencing hearing. Pursuant to its previous ruling, the court now injures [sic] this order of restitution as a final judgment, from which the defendant's 30 day right to appeal now begins. (Appellant's App. at 21.) 1 DISCUSSION AND DECISION 1. Restitution Order

Trial courts may order a person convicted of a felony or misdemeanor to pay restitution to the victim of the crime as part of the sentence or as a condition of probation. Reinbold v. State, 555 N.E.2d 463, 469 (Ind. 1990) (citing Ind. Code 35-50-5-3(a) and a prior version of what is now Ind. Code 35-38-2-2.3(a)(5)), overruled on other grounds by Wright v. State, 658 N.E.2d 563 (Ind. 1995). The trial court exercises its discretion when entering an order of restitution, and we reverse only for an abuse of that discretion. Ault v. State, 705 N.E.2d 1078, 1082 (Ind. Ct. App. 1999). An abuse of discretion has

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Ind. Appellate Rule 51(C) provides: "All pages of the Appendix shall be numbered at the bottom consecutively, without obscuring the Transcript page numbers, regardless of the number of volumes the Appendix requires." Appellant filed an appendix that numbered in sequential order each "exhibit" provided, without providing any information about where in the 116-page Appendix that exhibit could be found. Counsel's failure to follow Rule 51(C) hindered our review. We numbered the pages sequentially and used our numbering to arrive at the page numbers we cite.

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occurred only if no evidence or reasonable inferences therefrom support the trial court's decision. See id. Contrary to Little's argument, a medical insurer is a "victim" within the meaning of the restitution statute. According to our Indiana Supreme Court: the word "victim" in the statutes authorizing restitution has not been construed so narrowly as to limit the payment of restitution only to the person or entity actually subjected to the commission of the crime. Rather, restitution has properly been ordered payable to those shown to have suffered injury, harm or loss as a direct and immediate result of the criminal acts of a defendant. The survivors of murder victims, particularly their dependent children, could certainly come within this class. The trial court's restitution order here covered, among other things, the funeral and burial expenses incurred by [victim's] family, as well as a figure designated as child support for the two minor children [victim] left. These monetary losses borne by these parties were the result of appellant's criminal acts, and the trial court acted within its statutory authority when ordering restitution for their recompense. Reinbold, 555 N.E.2d at 470-71. And see Savage v. State, 655 N.E.2d 1223 (Ind. 1995) (affirming restitution to Medicaid, which had paid expenses for the victim). Nevertheless, we must reverse because the court ordered Little to pay all of the money to Klutzke, "who may be liable for subrogation of these claims by his various insurers." (App. at 21.) Restitution may be ordered for "medical and hospital costs incurred by the victim (before the date of sentencing) as a result of the crime." Ind. Code

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