MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                               Oct 16 2015, 7:57 am
this Memorandum Decision shall not be
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
Suzy St. John                                            Gregory F. Zoeller
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeremey Smith,                                           October 16, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1502-CR-58
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Allan Reid,
Appellee-Plaintiff                                       Commissioner
                                                         Trial Court Cause No.
                                                         49F10-1404-CM-17368



Bailey, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A05-1502-CR-58 | October 16, 2015         Page 1 of 4
                                          Case Summary
[1]   Jeremey Smith (“Smith”) appeals a restitution order entered following his

      convictions of Battery, as a Class A misdemeanor, 1 and Criminal Mischief, as a

      Class B misdemeanor. 2 Smith presents the sole issue of whether the order was

      entered without statutory compliance. We reverse and remand the restitution

      order.



                                   Facts and Procedural History
[2]   On March 21, 2014, Rickey Jolly (“Jolly”) approached his vehicle in a

      WalMart parking lot and was confronted by his brother-in-law, Smith,

      regarding Jolly’s alleged mistreatment of Smith’s sister. Smith punched Jolly in

      the face and threw down Jolly’s cell phone, breaking the screen.


[3]   Smith was arrested, charged with Battery and Criminal Mischief, and convicted

      of those charges at the conclusion of a bench trial. He received an aggregate

      sentence of one year, with 363 days suspended to probation. Smith was also

      ordered, as a condition of probation, to pay Jolly $150.00 for the cell phone

      replacement plan deductible. Smith was found to be indigent for purposes of

      fines and court costs. This appeal ensued.




      1
          Ind. Code § 35-42-2-1.
      2
          I.C. § 35-43-1-2.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1502-CR-58 | October 16, 2015   Page 2 of 4
                                 Discussion and Decision
[4]   Indiana Code Section 35-38-2-2.3(a)(6) provides that the court may require, as a

      condition of probation, that a person make restitution to the victim of the crime.

      The court must “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.” Id. The

      statute does not set forth a particular procedure the trial court must follow in

      determining the defendant’s ability to pay, but “some form of inquiry is

      required.” Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012). Ability to pay

      includes such factors as the defendant’s financial information, health, and

      employment history. Id. The purpose of this requirement is to prevent indigent

      defendants from being imprisoned because of their inability to pay. Id.


[5]   The State concedes that the trial court’s restitution order in this case does not

      fix the manner of performance. However, the State contends that remand

      should be solely to fix payment terms because the trial court was sufficiently

      apprised of Smith’s financial condition when defense counsel argued that

      probation was too restrictive because Smith had five children and was

      employed part-time. The State also argues: “a $150 restitution judgment is

      insubstantial, relative to the judgments seen in the case law.” (Appellee’s Br. At

      5.) We are not persuaded that $150 is “insubstantial” or insignificant to an

      indigent defendant. Moreover, we are not free to disregard the requirement that

      the trial court make a specific inquiry into the defendant’s ability to pay. We

      remand to the trial court for a determination of Smith’s ability to pay restitution

      and a determination of the manner of performance.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1502-CR-58 | October 16, 2015   Page 3 of 4
[6]   Reversed and remanded.


      Baker, J., and Mathias, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1502-CR-58 | October 16, 2015   Page 4 of 4
