Pursuant to Ind.Appellate Rule 65(D), 

this Memorandum Decision shall not 

be regarded as precedent or cited 

before any court except for the purpose 

of establishing the defense of res 

judicata, collateral estoppel, or the law 

of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

PAULA M. SAUER GREGORY F. ZOELLER

Danville, Indiana Attorney General of Indiana

AARON J. SPOLARICH

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

KENNETH W. GILLAND, )

)

Appellant-Defendant, )

)

vs. ) No. 32A01-1203-CR-143

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE HENDRICKS SUPERIOR COURT

The Honorable Mark A. Smith, Judge

Cause No. 32D04-1007-FC-15

October 31, 2012

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
2

Case Summary

Kenneth Gilland appeals the trial court’s order requiring him to pay $20,541.62 in 

restitution. We affirm in part, reverse in part, and remand.

Issue

Gilland raises two issues, which we consolidate and restate as whether the trial 

court properly ordered him to pay $20,541.62 in restitution. 

Facts

On April 16, 2010, after injuring James Sprague in an automobile accident, 

Gilland was charged with Class A misdemeanor operating a motor vehicle while 

endangering a person, which was enhanced to a Class D felony based on a prior 

conviction, and Class A misdemeanor driving while suspended. The State later added 

charges of Class A misdemeanor operating a vehicle with an alcohol concentration 

equivalent of at least .15, which was enhanced to a Class D felony based on a prior 

conviction, Class D felony causing serious bodily injury when operating a motor vehicle 

while intoxicated, which was enhanced to a Class C felony based on a prior conviction, 

and Class D felony causing serious bodily injury when operating a vehicle with an 

alcohol concentration equivalent of .08 or more, which was also enhanced to a Class C 

felony based on a prior conviction.

On October 4, 2011, a written plea agreement was filed with trial court showing 

that Gilland would plead guilty to Class C felony operating a motor vehicle while 

intoxicated causing serious bodily injury. The agreement specified Gilland’s sentence 

and required him to pay “restitution in the amount of $9949.62 to James Sprague.” App. 
3

p. 86 (capitalization altered). A handwritten question mark was written by the restitution 

term. 

At an October 8, 2011 change of plea hearing, the terms of the plea agreement 

were discussed. On the issue of restitution, the following exchange took place:

Court: Alright, well, let’s deal with the restitution just for a 

second. The plea agreement says ninety-nine hundred and 

forty-nine dollars and sixty-two cents. I understand from our 

discussion in chambers that there may be an issue and I just 

want to make a clear record of that, I want you to tell me what 

is going on with restitution, and I will decide what I’m going 

to do here.

State: Judge, I think the reason why there is a dispute in the 

restitution is that there is a legal issue. Uh, Mr. Gill.., or not 

Mr. Gilland, Mr. Sprague has received a settlement, civil 

settlement from uh, the Defendant’s insurance company. And 

that he was after, everything was devyied [sic] up between 

payment to the insurance company, uh, for medical expenses, 

and to his attorney fees. He received a significant amount left 

over for pain and suffering. Um, he is now asking for an 

additional amount that is out of pocket cost, um, expenses 

that he has since incurred, uh, in addition to what was paid 

directly to the insurance company for the portion that they 

actual paid themselves. Uh, there is a case that, I think, the 

disagreement is that since he has already received a portion 

from his civil settlement, and he is now asking for additional 

money from uh, the criminal restitution, that there may be a 

legal issue uh, for you to decide. I have case law that 

supports my position that he is allowed to ask for this 

additional amount of money.

Court: [Defense Counsel]?

[Defense Counsel]: Judge, that is correct, it needs to be 

reviewed by the attorneys and then submitted to the Court to 

see whether or not he can get additional restitution after there 

has been a settlement through an insurance company and he 

was given a check for those issues.
4

Tr. pp. 62-63. The trial court took the plea under advisement, and the parties agreed to 

submit case law and brief on what the trial court characterized as the “legal issue with 

regard to restitution.” Id. at 65. The trial court set the sentencing hearing for November 

1, 2011, and explained that it would “review the case law on the issue of the restitution 

and determine whether or not that is a valid claim for restitution, whether or not [it] can 

order restitution.” Id. 

On October 14, 2011, the State submitted a notice identifying three cases in 

support of its position on restitution. Gilland did not file a brief or a written response on 

the issue of restitution.

At the November 1, 2011 hearing, the State explained that it believed the hearing 

was going to be legal argument about restitution and asked the trial court to accept the 

plea and to set the matter for a restitution hearing. The trial court then accepted the plea, 

entered judgment of conviction, and sentenced Gilland to the term specified in the plea 

agreement. Defense counsel then asked the trial court to “leave the restitution amount 

open right now” and to resolve it after a hearing. Id. at 80. 

The restitution hearing was eventually held on February 21, 2012.1 Sprague 

testified about his injuries and damages and about his civil settlement with Gilland’s 

insurer. At this hearing, Sprague requested restitution in the amount of $4,088.04 for outof-pocket expenses, $5,861.58 for the difference between the purchase price and sale 

price of the motorcycle he was riding at the time of the accident, and $10,800.00 for lost 

 

1

 Gilland had previously waived his right to be present at the hearing because of his incarceration. 
5

overtime wages.

2

 The State then argued that Sprague was entitled to receive restitution in 

addition to the civil settlement. Defense counsel argued that Sprague had been

compensated for his out of pocket expenses and the damage to his motorcycle through the 

civil settlement. At the conclusion of the hearing, the trial court ordered Gilland to pay 

restitution in the amount of $20,541.62 for the out-of-pocket expenses, the loss on the 

sale of the motorcycle, and the lost overtime wages. Gilland now appeals.

Analysis

On appeal, Gilland asserts that the trial court had the discretion to order restitution 

for the out-of-pocket expenses and the motorcycle’s loss in value up to the plea 

agreement’s cap of $9,949.62. Gilland argues, however, that the trial court violated the 

terms of the plea agreement by including lost overtime wages in the restitution order 

because they were not contemplated by the agreement.3 He also claims that the evidence 

does not support an award of restitution for the motorcycle’s loss in value or the lost 

overtime wages. 

In response, the State acknowledges that, if the amount of restitution was set in the 

plea agreement, the trial court would have been required to order restitution in that 

amount. The State argues, however, that the amount of restitution was not a term of the 

plea agreement and was discretionary because at the November 1, 2011 hearing defense 

 

2

 The out-of-pocket expenses and loss in value of the motorcycle total $9,949.62, the amount of 

restitution specified in the written plea agreement.

3

 Gilland argues that, even though he did not object to the trial court’s inclusion of lost overtime wages in 

the restitution order, it was fundamental error to do so. However, because Gilland argued throughout the 

proceedings that no restitution should be ordered, the issue was properly preserved.
6

counsel requested to “leave the restitution amount open right now” and an evidentiary 

hearing on restitution eventually was conducted. Tr. p. 80. The State also argues that the 

evidence supports an award of restitution for the loss in value to the motorcycle and the 

lost overtime wages.

It is well-settled that plea agreements are in the nature of contracts entered into 

between the defendant and the State. Lee v. State, 816 N.E.2d 35, 38 (Ind. 2004). “[A]

plea agreement is contractual in nature, binding the defendant, the state and the trial 

court.” Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind. 1994). “The prosecutor and the 

defendant are the contracting parties, and the trial court’s role with respect to their 

agreement is described by statute: ‘If the court accepts a plea agreement, it shall be bound 

by its terms.’” Id. (quoting Ind. Code § 35-35-3-3(e)). The Pannarale court further 

observed:

As the statute suggests, the trial court may at its 

discretion reject the plea agreement and try the case or 

consider any new plea agreement the parties negotiate. Once 

it has accepted a plea agreement recommending a specific 

sentence, however, the terms of the agreement constrain the 

discretion the court would otherwise employ in sentencing. 

* * * * *

Goldsmith and its progeny each uphold the principle 

that a deal is a deal. Once it has accepted a plea agreement, 

the sentencing court possesses only that degree of discretion 

provided in the plea agreement with regard to imposing an 

initial sentence or altering it later. 

Id. Indiana Code Section 35-35-3-3(a) requires that a plea agreement for a felony charge 

be in writing.
7

Here, the written plea agreement specifically called for “restitution in the amount 

of $9949.62 to James Sprague.” App. p. 86 (capitalization altered). Although the record 

reflects the parties’ intent to argue the legal propriety of any award of restitution and the 

plea agreement itself has a handwritten question mark by the restitution term,4 nothing in 

the plea agreement reflects an intent to leave the amount of restitution open to the trial 

court’s discretion and capped at $9,949.62. 

Had the parties intended to give the trial court discretion to determine the 

appropriate amount of restitution, either capped at $9,949.62 or unlimited, they should 

have included such terms in the written plea agreement. See Griffin v. State, 756 N.E.2d 

572, 574 (Ind. Ct. App. 2001) (“In order to avoid mistakes and misrepresentations with 

regard to such a binding agreement, counsel should reduce to writing all terms of a plea 

agreement.”), trans. denied; Richardson v. State, 456 N.E.2d 1063, 1067 (Ind. Ct. App. 

1983) (“Failure to reduce an agreement to writing, however, ‘can lead to 

misapprehension, mistake, or even calculated misrepresentation.’ Thus, in the interests 

of justice, the terms of such agreements should be placed of record before a sentence is 

imposed on the one pleading guilty. It is incumbent on both parties to see that the 

agreement’s terms are recorded accurately.” (citations omitted)). Based on the plain 

language of the plea agreement, we conclude that the parties did not agree to give the trial 

 

4

 Gilland argues that the handwritten question mark on the agreement “indicated the parties’ intent to 

argue the actual amount of restitution due.” Appellant’s Br. p. 7. Given the procedural posture of this 

case, however, it is unclear who put the question mark there, when it was put there, or the specific context 

in which it was put there. Under these circumstances, we decline to the give the question mark any legal 

effect.
8

court the discretion to determine the amount of restitution; instead, the plea agreement 

fixed the amount of restitution at $9,949.62.

Further, even if we assume the question of the legal propriety of a restitution 

award was not required to be included in the written plea agreement, at all times prior to 

the trial court’s acceptance of the guilty plea the record reflects the parties intent to argue 

only the legal propriety of an award of restitution. The unresolved issue discussed at the 

October 2011 guilty plea hearing was a legal question, which, if answered in Gilland’s 

favor, would have precluded the trial court from ordering restitution at all. Thus, at most 

the parties’ agreement authorized the trial court to order no restitution or to order 

restitution in the amount of $9,949.62. When the trial court accepted the plea agreement, 

it was bound by the terms of that agreement. See I.C. § 35-35-3-3(e); Pannarale, 638 

N.E.2d at 1248. Thus, the trial court was not authorized to award restitution in the 

amount of $20,547.62. See P.J. v. State, 955 N.E.2d 234, 235 (Ind. Ct. App. 2011)

(observing that, where juvenile court accepted a plea agreement calling for the payment 

of a specific amount of restitution instead of leaving the amount to the court’s discretion, 

the court was “strictly bound by the plea’s sentencing provisions and precluded from 

exercising discretion to determine the amount of restitution”); Gipperich v. State, 658 

N.E.2d 946, 950 (Ind. Ct. App. 1995) (reversing portion of sentencing order requiring 

payment of fines where the accepted plea agreement contained no such provision and 

only called for payment of counseling fees and costs), trans. denied. 

We are not persuaded by the State’s argument that restitution was not a term of the 

plea agreement because defense counsel requested the trial court to “leave the restitution 
9

amount open right now”5and an evidentiary hearing was eventually conducted. Tr. p. 80. 

These events occurred after the trial court accepted the plea agreement. Without citation 

to legal authority by the State, we fail to see how these events somehow altered the terms 

of the accepted plea agreement so as to give the trial court the unfettered discretion to 

award any amount of restitution. 

As for Gilland’s challenge to the award of restitution for the motorcycle’s loss in

value, “[w]here a plea agreement includes a defendant’s agreement to a specific sentence, 

such defendant may not challenge the sentence by means of a timely or belated direct 

appeal.” Sholes v. State, 878 N.E.2d 1232, 1235 (Ind. 2008). “Direct appeal challenges 

to sentences following guilty pleas have been permitted only in ‘open pleas,’ that is, for 

sentences following plea agreements under which the trial court exercised sentencing 

discretion.” Id. Thus, because Gilland agreed that the amount of restitution would be 

fixed at $9,949.62 notwithstanding the unresolved legal question, he may not argue on 

appeal that the trial court abused its discretion in ordering him to pay restitution for the 

loss in value to the motorcycle. 

In sum, the terms of the plea agreement specified restitution in the amount of

$9,949.49. To the extent the parties agreed to leave open the legal question regarding the 

propriety of restitution, upon accepting the plea agreement, the trial court was permitted 

to either deny restitution or award restitution in the amount of $9,949.62. The trial court 

 

5

 The State seems to suggest that this request indicates an intent by Gilland to give the trial court 

discretion to determine the amount of restitution. This statement, however, could also be construed as 

preserving the legal question the parties had previously discussed. 
10

did not have the discretion to award restitution in any other amount. Therefore, the trial 

court’s award of restitution for lost-overtime wages was improper. Similarly, because the 

plea agreement fixed the amount of restitution at $9,949.62, Gilland may not now 

challenge the sufficiency of the evidence to support restitution for the loss in value to the 

motorcycle.6 Pursuant to the terms of the plea agreement, the proper amount of 

restitution is $9,949.62.

Conclusion

Because the plea agreement called for restitution in the amount of $9,949.62, the 

trial court did not have the authority to order restitution in the amount of $20,541.62. 

Further, because Gilland agreed to pay restitution in the amount of $9,949.62, he may not 

challenge the portion of that amount that relates to the loss in value of the motorcycle on 

appeal. We affirm in part, reverse in part, and remand with instructions to reduce the 

restitution order to $9,949.62.

Affirmed in part, reversed in part, and remanded. 

VAIDIK, J., and MATHIAS, J., concur.

 

6

 Gilland does not argue on appeal that an award of restitution is legally impermissible because Sprague 

received a civil settlement. In fact, he does not challenge the award of restitution for the out-of-pocket 

expenses.