COA reverses restitution for sentencing hearing lost wages

December 7, 2018

A man convicted of leaving the scene of a vehicle crash he caused will have to pay about $65 less in restitution to the other driver after the Indiana Court of Appeals determined the second driver could not claim lost wages for the time she spent at the man’s sentencing hearing.

In Steven Akehurst v. State of Indiana, 18A-CR-214, Steven Akehurst crashed his vehicle into Jennifer Noble’s van. After getting out to check the damage, Akehurst “looked (Noble) straight in the face and then got back into his vehicle and took off,” while Noble was taken by ambulance to a hospital for her injuries.

Akehurst was later arrested and charged with and convicted of Class B misdemeanor leaving the scene of an accident. During the subsequent sentencing, Noble testified that her medical bills had been paid, but her car insurance did not cover $616.28 of her vehicle loan.

Further, Noble, a teacher, took 2½ days off of work after the crash, causing her to lose a total of $318.80 in wages. Of that amount, $63.25 was lost when she attended the sentencing hearing.

As a result, the Posey Superior Court sentenced Akehurst to six months, all suspended to probation, and ordered him to pay restitution in the amount of $935.08, which included the money not paid by Noble’s insurance company and her total lost wages. But the Indiana Court of Appeals partially reversed that ruling on Friday, finding that “earnings lost on or after the date of sentencing are not included in the plain ordinary meaning of Indiana Code section 35-50-5-3(a)(4).”

“Indiana Code section 35-50-5-3(a)(4) limits restitution to those earnings lost ‘before the date of sentencing(.),’” Judge Melissa May wrote. “Noble’s lost wages for the time she took off work to attend and testify at the sentencing hearing occurred concurrent with the sentencing date and not before. Therefore, the trial court erred when it ordered Akehurst to pay Noble’s lost wages for the day of sentencing.”

Instead, the COA determined the proper restitution amount was $255.55, subtracting the $63.25 incurred during sentencing. But in a footnote, the court invited the Indiana Legislature “to consider whether Indiana Code section 35-50-5-3 should be modified to permit victims to recover lost wages incurred ‘on or before’ the date of sentencing.”

“As restitution provides a mechanism to compensate victims for the damage caused by those who commit crimes, we were surprised to find the restitution statute was written to prohibit victims from recovering wages lost for time spent attending the sentencing hearing,” May wrote in the footnote.

The case was remanded for the trial court to enter a corrected sentencing order reflecting restitution of $255.55, but the COA rejected Akehurst’s argument that he should not have to pay the $616.28 not covered by Noble’s insurance policy.

“The statute allows the trial court to order restitution for the actual cost to replace Noble’s van,” May wrote. “… Here, the actual loss, as a direct result of Akehurst’s actions, was the van.”


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