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Bell v. State

Supreme Court of Indiana

September 29, 2016

Cynthia Bell, Appellant (Defendant below),
State of Indiana, Appellee (Plaintiff below).

         Appeal from the Marion County Superior Court, No. 49G08-1408-CM-039656 The Honorable Amy M. Jones, Judge

         On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-1504-CR-000234

          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

          David, Justice.

         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.

         Facts and Procedural History

         On 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.

         Bell was subsequently charged with Class B misdemeanor criminal mischief.[1] 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.

         Bell 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 Bell's probation.

         Bell 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.

         A 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. Id.

         This Court now grants transfer, thereby vacating the opinion of the Court of Appeals. Ind. Appellate Rule 58(A).

         Standard of Review

         A trial 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." Id.


         Before 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.[2]

         After 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.

         The Trial Court Abused Its Discretion by Failing to Consider Defendant's Actual Ability to Pay.

         Under 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.

         Bell 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 probation.

         We 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.

         However, 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.[3] 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 ...

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