Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                     May 31 2013, 9:27 am
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
                                                   ANDREW FALK
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

LAWANDA WHITE,                                     )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 49A02-1209-CR-713
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Linda E. Brown, Judge
                        The Honorable Steven Rubick, Commissioner
                             Cause No. 49F10-1111-CM-79131


                                          May 31, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
        LaWanda White was ordered to pay $875.82 in restitution after she told the trial court

she has two children, is not working, and is supported by her sister’s disability benefits. As

the trial court did not adequately inquire into her ability to pay restitution, we vacate the

restitution order and remand.1

                           FACTS AND PROCEDURAL HISTORY

        White agreed to plead guilty to Class A misdemeanor, operating a vehicle while

intoxicated2, and the trial court ordered her to pay $875.82 in restitution for expenses incurred

in treating injuries to her arresting officer. At the guilty plea and sentencing hearing, White

agreed to 363 days probation. After the court went through the details of the sentence and

conditions of probation, White’s counsel said “Your Honor on the Restitution, the Probation,

there’s a statute about Restitution ordered as a condition of probation that states that as a

condition of probation, a defendant may be ordered to make restitution[.]” (Tr. at 15-16.)

Counsel then noted “[w]hen restitution is a condition of probation” the amount of restitution

may not exceed what the person will be able to pay. (Id. at 16.) Counsel asked the court “I

was wondering if you could take some evidence on her ability to pay since this is a restitution

ordered as a condition of her probation.” (Id.) (emphasis added). The court replied

“Certainly,” (id.), and proceeded to do so.




1
  White also argues the restitution order is error because it does not identify the manner of payment or the
timeframe during which she must pay. The State concedes that was an abuse of discretion and remand is
warranted so the trial court may fix the manner of performance.
2
   Ind. Code § 9-30-5-2.
                                                     2
       White testified she was not working, she had two children, she lived with her mother

and sister, and her “basics” were paid by her sister’s disability benefits. (Id. at 17.) She

testified she had no other income and is not on disability herself. The trial court then found

White was “able to pay the restitution and the fines and fees assessed” because she was “not

under disability that prevents her from working.” (Id.)

                             DISCUSSION AND DECISION

       An order of restitution is a matter within the trial court’s discretion. Sickels v. State,

982 N.E.2d 1010, 1013 (Ind. 2013). Accordingly, we reverse only on a showing of abuse of

discretion, which occurs when the trial court’s decision is clearly against the logic and effect

of the facts and circumstances before it. Id.

       “When restitution . . . 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.” Ind. Code § 35-38-2-2.3. The statute sets forth no 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). The consideration of a

defendant’s ability to pay includes such factors as the defendant’s financial information,

health, and employment history. Id. The inquiry is necessary in order to prevent indigent

defendants from being imprisoned because of their inability to pay. Id. at 510.

       White’s restitution order was an abuse of discretion, as the trial court’s inquiry into

her ability to pay was inadequate. In Kays, our Supreme Court remanded when the record

was

                                                3
       at best ambiguous as to whether the trial court performed the necessary
       inquiry. It is clear that the trial court knew that Kays did not work and
       received social security disability benefits of $674.00 per month. It is also
       apparent from the trial court record that Kays had an ownership interest in the
       house she lived in. However, the presentence investigation report includes no
       evidence of Kays’ education, work history, health, assets, or other financial
       information -- nor did the trial court make any inquiry in this regard. Our
       decisions envision at least a minimal inquiry into the defendant’s ability to pay
       restitution, which is absent here.

Id.

       The case before us is similar. As in Kays, the trial court knew White was not working.

White, like Kays, was supported by disability benefits, but they were not her own – they

were her sister’s. Kays had her own income in the form of disability benefits of $674 per

month and she had an ownership interest in the house where she lived. In the case before us,

by contrast, there was no evidence White had any income of her own or had any interest in

real estate. As in Kays there was no evidence of White’s education, work history, health,

assets, or other financial information. The restitution order appears to be premised solely on

the trial court’s determination White was not herself disabled. We agree with White that the

restitution order must be vacated and the case remanded for “a meaningful inquiry into ability

to pay.” (Br. of Appellant at 4.)

       The State notes White’s “basics were already covered by her sister’s disability income

and her housing arrangements with her mother,” and White was “capable of working.” (Br.

of Appellee at 7.) The State further speculates White could spread the payments “out over

the fifty-two weeks of her probation” and need not complete her payment by the end of the

probationary term. Therefore, the State asserts, the amount she was required to repay was

                                              4
“reasonable.” (Id.)

       The question before us is the adequacy of the trial court’s inquiry, and not whether the

restitution amount was “reasonable.” We therefore decline to affirm on that ground. The

trial court did not conduct the “at least . . . minimal inquiry” required by Kays, 963 N.E.2d at

510, and we must therefore remand for further proceedings consistent with this opinion.

       Remanded.


BAKER, J., and MATHIAS, J., concur.




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