MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             Feb 02 2016, 9:09 am

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
Victoria L. Bailey                                       Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General
Indianapolis, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Cynthia Bell,                                            February 2, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1504-CR-234
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy Jones
Appellee-Plaintiff                                       The Honorable Tom Hirschauer,
                                                         Judge Pro Tempore
                                                         Trial Court Cause No.
                                                         49G08-1408-CM-39656



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-234 | February 2, 2016   Page 1 of 9
                                          Case Summary
[1]   Cynthia Bell was ordered to pay $932.30 in restitution as a condition of her

      probation after she was convicted of Class B misdemeanor criminal mischief for

      vandalizing two cars. The trial court heard testimony on Bell’s financial

      circumstances, including that she receives $730 per month from Social Security

      and that this sum is enough to pay her necessities and some personal expenses.

      The trial court ordered that the restitution be paid in $20-per-week installments

      to be consistent with Bell’s limited income. We conclude, therefore, that it was

      not an abuse of discretion for the trial court to determine that Bell will be able

      to pay for the damage she caused and to order restitution as a condition of

      probation.



                            Facts and Procedural History
[2]   At 4:30 a.m. on August 4, 2014, Cynthia Bell was banging on the front door of

      Kalencia Kirkland’s home and shouting to be let into the house. When

      Kirkland looked out the window, she saw Bell vandalizing her rental car, a

      Chevy Malibu. Kirkland called the police, but Bell slashed one of the Malibu’s

      tires and left before officers arrived. Shortly after the officers left Kirkland’s

      house, Bell returned and threw a brick at the house, breaking the bedroom

      window. Once again, Kirkland called the police. Indianapolis Metropolitan

      Police Department Officer Martin Koeller arrived at Kirkland’s house shortly

      after 6:00 a.m., saw the broken window, but did not find Bell. After Officer

      Koeller left, Bell returned to Kirkland’s house a third time. Bell slashed a tire,

      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-234 | February 2, 2016   Page 2 of 9
      broke a mirror, and did other body damage to Kirkland’s personal car, a Kia

      Sportage.

[3]   The State charged Bell with Class B misdemeanor criminal mischief. She was

      convicted at a bench trial and sentenced to 180 days, 178 days suspended to

      probation and given credit for two days as time served. In addition, Bell was

      ordered to pay restitution as a condition of her probation and a restitution

      hearing was scheduled.

[4]   During the restitution hearing, Kirkland presented an estimate to fix the Kia,

      which totaled $912.30, and a receipt for $20 to plug the slashed tires. Kirkland

      also presented estimates for replacing the broken bedroom window and for

      replacing the tires on the Malibu. However, the charging information did not

      include the bedroom window and Kirkland did not replace the tires on the

      Malibu—she paid a fee to Enterprise, the rental company, and lost the receipt

      for that fee. Bell testified that she receives $730 per month in Social Security

      Disability income. From this income, Bell pays her rent, utilities, expenses for

      her dog, and her personal expenses. The trial court found that $932.30 in

      restitution was due to Kirkland and that Bell had the ability to pay that amount

      based on her testimony that she has enough money to pay her own living

      expenses. The court determined that restitution could be paid at a rate of $20

      per week over the course of a year. Bell appeals the order of restitution.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-234 | February 2, 2016   Page 3 of 9
                                 Discussion and Decision
[5]   Bell argues that the trial court abused its discretion by ordering her to pay

      $932.30 in restitution because the amount is in excess of what she can or will be

      able to pay. When restitution is ordered as 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.” Ind. Code § 35-38-2-

      2.3(a)(6). Although the trial court must determine the defendant’s ability to pay

      the amount of restitution ordered, the statute does not specify the extent to

      which the court must inquire into the defendant’s financial status. Smith v.

      State, 990 N.E.2d 517, 522 (Ind. Ct. App. 2013), trans. denied. Therefore, a

      restitution order is a matter within the trial court’s discretion, and we reverse

      only on a showing of abuse of that discretion. Id. at 520. An abuse of

      discretion occurs when the order is clearly against the logic and effect of the

      facts and circumstances before the court or the reasonable, probable, and actual

      deductions to be drawn therefrom. Id.


[6]   Bell presented her own testimony regarding her financial circumstances which

      included the facts that she has $730 per month in income, and that this income

      is sufficient to pay for her rent, utilities, a dog and her personal expenses. The

      trial court concluded that Bell had money for things beyond the barest

      necessities and, therefore, she could afford a small payment toward the total

      cost of restitution each month. See Tr. p. 30. Based on the record before us, we

      cannot say that ordering Bell to pay $20 per week is “clearly against the logic



      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-234 | February 2, 2016   Page 4 of 9
      and effect of the facts and circumstances before the court[.]” See Smith, 990

      N.E.2d at 520.

[7]   We conclude, therefore, that the trial court did not abuse its discretion when it

      ordered Bell to pay restitution as a condition of her probation.

[8]   Affirmed.

      Bailey, J., concurs.

      Crone, J., dissents with separate opinion.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-234 | February 2, 2016   Page 5 of 9
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Cynthia Bell,                                            Court of Appeals Case No.
                                                                49A02-1504-CR-234
       Appellant-Defendant,
                                                                Appeal from the Marion County
               v.                                               Superior Court
                                                                The Honorable Amy M. Jones,
       State of Indiana,                                        Judge
       Appellee-Plaintiff.                                      The Honorable Tom Hirschauer,
                                                                Judge Pro Tempore

                                                                Trial Court Cause No.
                                                                49G08-1408-CM-39656



       Crone, Judge, dissenting.


[9]    I respectfully disagree with the majority’s conclusion that the trial court did not

       abuse its discretion when it ordered Bell to pay $932.30 ($20 per week) in

       restitution as a condition of probation. As noted by the majority, before

       entering a restitution order, the trial court “must determine the defendant’s

       ability to pay the amount of restitution ordered” and the amount ordered “may

       not exceed an amount the person can or will be able to pay.” Slip op. at 2.

       Understandably, the trial court has discretion in the matter; however, such

       discretion is not without limits.

[10]   The entirety of the testimony related to Bell’s ability to pay was as follows:

               MR. DOANE:                Miss Bell are you currently working?
               DEFENDANT:                No.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-234 | February 2, 2016   Page 6 of 9
        THE COURT:                Ma’am you’re probably going to have to talk
                                  up. I talk real loud.
        DEFENDANT:                I have a cold. I didn’t want to-
        THE COURT:                I appreciate that. I just got to be able to hear
                                  you and record you.
        DEFENDANT:                Yeah…no I’m not working.
        MR. DOANE:                And when was the last time you[] worked?
        DEFENDANT:                Over twenty years.
        MR. DOANE:                So how are you supporting yourself?
        DEFENDANT:                I get disability…SSI
        MR. DOANE:                And when do you get those checks?
        DEFENDANT:                On the 1st.
        MR. DOANE:                The first of the month?
        DEFENDANT:                Yes.
        MR. DOANE:                And how much are those checks for?
        DEFENDANT:                $730.00.
        MR. DOANE:                And what do you use that $730.00 to pay for?
        DEFENDANT:                I pay my rent. I pay my light bill. I pay my
                                  phone bill. I pay for my dog’s expense, my
                                  expense and eating expense and I’m done.
        MR. DOANE:                Now after you pay all those things how much
                                  money is left over?
        DEFENDANT:                I have none.
        MR. DOANE:                Are you using food pantries for food right
                                  now?
        DEFENDANT:                Yes I am.
        MR. DOANE:                And how much money do you have in the
                                  bank?
        DEFENDANT:                I don’t have anything in the bank.
        MR. DOANE:                Do you have money anywhere else?
        DEFENDANT:                No.
        MR. DOANE:                Would it be safe to say you’re living
                                  paycheck to paycheck right now?
        DEFENDANT:                Yes I am.
        MR. DOANE:                And you don’t anticipate your financial
                                  situation changing in the future?
        DEFENDANT:                I have no idea. I don’t know (inaudible). I
Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-234 | February 2, 2016   Page 7 of 9
                                  don’t know. So far it hasn’t.
        MR. DOANE:                And you don’t have any…you don’t have a
                                  car?
        DEFENDANT:                No.
        MR. DOANE:                You don’t have any assets?
        DEFENDANT:                No.
        MR. DOANE:                And any sort of money you’d have to pay
                                  would be a real financial hardship for you?
        DEFENDANT:                Yeah very much.
        MR. DOANE:                No further questions, Judge.
        THE COURT:                State cross.
        [THE STATE]:              I have no questions.


Tr. at 76-77. Based upon this, and only this, evidence as to Bell’s ability to pay,

the trial court found:

        THE COURT:             I’m aware of the statute as well as the case
        law. I’m not finding her indigent as to this. I do believe that
        although she has a limited income, when you break it you buy it
        and I believe she broke it and when you break it you buy it and I
        recognize that that’s going to make life hard for a while but that’s
        life. You’ve been found indigent. You’ve gotten…you’ve
        received free legal counsel, I’ll tell you he’s done a very good job
        for you. I can tell you that my firm to represent you in a matter
        like this probably would’ve run you about five grand. You go
        beyond that and think about the fact that you know, you’re also
        getting appellate costs for free. I do believe that your indigency
        status…I believe that you are capable of making this restitution
        over time. You have time through probation and although there
        are other things that and other services that you have received
        that might disagree with that, my rule as to the…I will make a
        record. You make $730.00 a month. You have not worked for
        the last twenty years but you talked about in your monthly
        expenses your own spending money and other spending money.
        I couldn’t tell if it was a pet or if it was a family member and I
        apologize for that but you’ve been talking softly so there is…you
Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-234 | February 2, 2016   Page 8 of 9
                  have money that you spend on things other than lights and your
                  house and at this point you broke her car and I think that you’re
                  going to have to live a little bit thinner…I am aware that there is
                  case law as well as statutory authority that says if she’s truly
                  indigent, restitution cannot be appropriately awarded by the
                  Court. I am not finding her indigent as it relates to restitution.


       Id. at 82-83.


[11]   Based upon this record, I fail to see any evidence before the trial court that

       could support a conclusion that Bell, an indigent defendant, has the ability to

       pay $20 per week in restitution. The State had an opportunity to develop the

       evidence regarding her actual expenses yet specifically declined to do so.

       Similarly, the trial court made no inquiry. The trial court’s comments regarding

       Bell’s indigency are inconsistent at best and suggest that Bell had already

       received enough benefit from her indigency and should therefore be liable for

       restitution regardless of her ability to pay. While I am not unsympathetic to the

       victim’s economic losses, in my view, the trial court’s order is clearly against

       the logic and effect of the facts and circumstances before the court.1 Therefore,

       I would reverse the trial court’s restitution order.




       1
           The victim in this case is left with the option to pursue civil processes to seek redress for her losses.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-234 | February 2, 2016                     Page 9 of 9
