Barnes, J.
In our original decision, we held that, because the plea agreement was completely silent on the issue of restitution, the trial court lacked the authority to order Morris to pay $14,972.45 in restitution toward the burial expenses of Morris’s fiancée, Jennifer, who was killed when she was thrown from the ATV that Morris was operating while intoxicated. Morris, 985 N.E.2d at 369. For this holding we cited Sinn v. State, 693 N.E.2d 78, 80 (Ind. Ct. App. 1998). On rehearing, the State argues that we should instead follow Huddleston v. State, 764 N.E.2d 655 (Ind. Ct. App. 2002), and Gil v. State, 988 N.E.2d 1231 (Ind. Ct. App. 2013).
In both Huddleston and Gil, this court allowed awards of restitution following guilty pleas even though the pleas were completely silent on the issue of restitution. See Huddleston, 764 N.E.2d at 657; Gil, 988 N.E.2d at 1235. The reason for these holdings was that the pleas were “open,” meaning they left sentencing entirely to the trial court’s discretion. And, there are a number of cases stating that “‘restitution is as much a part of a criminal sentence as a fine or other penalty.’” Pearson v. State, 883 N.E.2d 770, 773 (Ind. 2008) (quoting Miller v. State, 502 N.E.2d 92, 95 (Ind. 1986)); but see Ind. Code § 35-50-5-3(a) (stating that trial court may award restitution “in addition to any sentence imposed under this article for a felony or misdemeanor . . . .”) (emphasis added). Sinn, by contrast, concerned a plea with a recommended sentence, not an open plea. Gil explicitly held that Sinn and similar cases involving guilty pleas with fixed or recommended sentences should not apply in open plea cases. Gil, 988 N.E.2d at 1235. Upon careful consideration, we agree that because Morris’s guilty plea was entirely open and left his sentence entirely to the trial court’s discretion, that court was free to enter an award of restitution as part of Morris’s sentence, in accord with Huddleston and Gil.1 [1 In Edsall v. State, 983 N.E.2d 200, 208-09 (Ind. Ct. App. 2013), another panel of this court seemed to agree that Sinn’s holding applied to a case involving an open plea and precluded an award of restitution, similar to our original opinion. However, that statement appears to have been dicta, because the panel went on to hold that restitution was improperly awarded to the State because it was not a victim of the crime. Id. at 209.
RILEY, concurs.
BAKER, J., dissents with separate opinion:
. . . I embrace the general notion that in most cases where there is an “open” plea situation, the plea is silent on the issue of restitution, and the sentence is left entirely to the trial court’s discretion, an award of restitution may be entered. . . . .
Although I initially intended to grant the State’s petition for rehearing in this case, I note that Morris agreed to plead guilty to the lesser offense of class A misdemeanor OWI, to which the plea agreement to that offense made no mention of the payment of restitution. Id. at 366. And it is undisputed that the trial court’s order of restitution regarding the payment of Jennifer’s burial expenses pertained to the charge that was specifically dismissed under the plea agreement, i.e., operating a vehicle with a blood alcohol equivalent of .08 or more causing death, a class C felony. (Emphasis added). Morris v. State, 985 N.E.2d 3634, 365-66 (Ind. Ct. App. 2013).
In my view, as we noted in our original opinion, applying the order of restitution to the class C felony charge that was dismissed as a part of the plea bargain was error.