from the Marion County Superior Court, No.
49G08-1408-CM-039656 The Honorable Amy M. Jones, Judge
Petition to Transfer from the Indiana Court of Appeals, No.
ATTORNEY FOR APPELLANT Victoria L. Bailey Marion County
Public Defender Agency Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General
Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
Code § 35-38-2-2.3(a)(6) allows a trial court to order a
defendant to pay restitution to a victim as a condition of
probation, but the defendant's ability to pay must be
considered before the order to pay restitution is entered. In
the present case, we find that the trial court abused its
discretion because the evidence before the court was
insufficient to conclude defendant had the ability to pay. As
such, the ordered restitution is vacated.
and Procedural History
August 4, 2014, Cynthia Bell arrived at the home of Kalencia
Kirkland at 4:30 a.m. and began banging on the windows and
doors of Kirkland's apartment. When Kirkland looked out
of the window of her home, she saw Bell beating and banging
on her rental car, a 2013 Chevrolet Malibu. Kirkland called
the police, but Bell left before they arrived. However, Bell
quickly returned and continued to cause damage to
Kirkland's property. Bell threw a brick through a window
of Kirkland's residence and damaged Kirkland's 2007
Kia Sportage, which Kirkland owned. Kirkland called the
police two more times to report Bell's actions.
was subsequently charged with Class B misdemeanor criminal
mischief. The case proceeded to a bench trial, and
Bell was found guilty as charged. Bell was sentenced to 180
days, with 178 days suspended. After sentencing, the trial
court held a separate hearing to determine the amount of
restitution Bell owed. At the hearing, Kirkland testified
about the costs that she incurred from repairing the damage
done to her two vehicles and estimates for the repairs were
admitted into evidence.
then testified as to her ability to pay. Bell explained that
she had not worked in over twenty years and supports herself
on monthly disability checks (SSI). Her monthly checks are
$730.00. She uses that money to pay her rent, light bill,
phone bill, dog expenses, food, and her own expenses. She has
no money left over at the end of the month, and she also
relies on food pantries. Bell has no money in the bank and no
other assets. Neither the State nor the trial court asked
Bell any further questions about her financial situation. The
Court ultimately concluded that Bell owed $932.30 in
restitution and had the ability to pay in weekly installments
of $20.00 or monthly installments of approximately $80.00.
The payment of restitution was ordered as a condition of
appealed the ordered restitution, arguing that it exceeds
what she can or will be able to pay, which is the standard
set out in Indiana Code § 35-38-2-2.3(a)(6). Bell argued
that she presented evidence that she had no extra money at
the end of each month, and the State did not rebut this
evidence. (Id.) Thus, Bell argued the ordered
restitution was an abuse of discretion.
majority of the Court of Appeals affirmed the trial court,
concluding that, based upon the record, it was not an abuse
of discretion to determine that Bell could pay $20.00 per
week or $80.00 per month in restitution. Bell v.
State, No. 49A02-1504-CR-000234 (Ind.Ct.App. February 2,
2016). Judge Crone dissented with a separate opinion
asserting that nothing in the trial court record demonstrated
that Bell, an indigent defendant, had the ability to pay
$20.00 per week in restitution, specifically noting that the
State failed to develop the record as to Bell's actual
expenses. Id., Slip Op. at *9. Judge Crone favored
reversing the trial court's restitution order.
Court now grants transfer, thereby vacating the opinion of
the Court of Appeals. Ind. Appellate Rule 58(A).
court's determinations in setting probation are set aside
only where the trial court has abused its discretion.
Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012).
"An order of restitution lies within this discretion and
will likewise be reversed only for abuse of discretion."
addressing whether the trial court abused its discretion in
ordering restitution, we note as a threshold matter that Bell
has not waived her ability to challenge the restitution order
due to her failure to object to the order at the time it was
entered. "[A]n order of restitution is as much a part of
a criminal sentence as a fine or other penalty."
Miller v. State, 502 N.E.2d 92, 95 (Ind. 1986).
"[T]his Court and the Court of Appeals review many
claims of sentencing error (improper consideration of an
aggravating circumstance, failure to consider a proper
mitigating circumstance, inaccurate weighing of aggravating
and mitigating circumstances, etc.) without insisting that
the claim first be presented to the trial judge."
Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind. 2005).
Although there have been cases in which appeals on
restitution were waived due to the failure to make an
objection at trial, "the vast weight of the recent case
law in this state indicates that appellate courts will review
a trial court's restitution order even when the defendant
did not object based on the rationale that a restitution
order is part of the sentence, and it is the duty of the
appellate courts to bring illegal sentences into
compliance." Rich v. State, 890 N.E.2d 44, 48
(Ind.Ct.App. 2008) (internal quotations and citations
omitted). Thus, we choose to address the merits of Bell's
argument that the trial court abused its discretion by
setting an order of restitution for an indigent defendant as
a condition of probation.
review of our restitution statute, precedent, and the record
in this case, we conclude that the trial court was permitted
to order restitution as a condition of probation, despite
Bell having been found indigent for other purposes. However,
the record does not reflect that Bell was actually able to
pay restitution. Because an order of restitution as a
condition of probation requires the trial court to determine
that the defendant can or will be able to pay, we hold that
the trial court abused its discretion.
Trial Court Abused Its Discretion by Failing to Consider
Defendant's Actual Ability to Pay.
Indiana Code § 35-38-2-2.3(a)(6),
As a condition of probation, the court may require a person
to . . . [m]ake restitution or reparation to the victim of
the crime for damage or injury that was sustained by the
victim. 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.
argues that in some circumstances, a defendant who has been
found indigent for other purposes should also be found
indigent as to their ability to pay restitution. Bell asserts
that she demonstrated that she has no disposable income left
at the end of each month and this was not rebutted with any
evidence demonstrating she had resources that could be
reallocated in order to pay for restitution. Thus, it was an
abuse of discretion under the restitution statute to order
Bell to pay any amount of restitution as a condition of
agree with Bell that when setting restitution as a condition
of probation, our trial courts are required to consider the
defendant's ability to pay. Our own precedent has clearly
established "when the trial court enters an order of
restitution as part of a condition of probation, the court is
required to inquire into the defendant's ability to pay.
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
v. State, 883 N.E.2d 770, 772 (Ind. 2008). When
restitution is ordered as part of an executed sentence, no
inquiry into the ability to pay is required because
restitution is merely a money judgment, and a defendant
cannot be imprisoned for non-payment. Id. at 773.
we do not agree that a blanket rule, excluding certain
indigent defendants from ever being ordered to pay
restitution as a condition of probation, is advisable or even
permissible under our current statutory scheme. Rather, Ind.
Code § 35-38-2-2.3(a)(6), clearly provides that if the
ability to pay is considered, restitution can be ordered as a
condition of probation. We will not require any more or
less. We acknowledge that "[t]he statute
sets forth no particular procedure the trial court must
follow in determining the defendant's ability to pay, but
we have consistently recognized that some form of inquiry is
required." Kays v. State, 963 N.E.2d at 509;
See also, Sales v. State, 464 N.E.2d 1336,
1340 (Ind.Ct.App. 1984) (explaining that the restitution
statute "clearly requires that the trial court
ascertain defendant's ability to pay.")
(emphasis added). The trial court may consider factors such
"as the defendant's financial information, health,
and employment history." Champlain v. State,
717 N.E.2d 567, 570 (Ind. 1999). In addition, "social
security benefits may be considered by a trial court in
determining a defendant's ability to pay ...