Pursuant to Ind.Appellate Rule 65(D), 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:

DEBORAH MARKISOHN                                GREGORY F. ZOELLER
Indianapolis, Indiana                            Attorney General of Indiana

                                                 AARON J. SPOLARICH
                                                 Deputy Attorney General

                                                                               FILED
                                                 Indianapolis, Indiana

                                                                           Jul 31 2012, 9:23 am
                              IN THE
                    COURT OF APPEALS OF INDIANA                                    CLERK
                                                                                 of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




MICOLE DRAUGHON,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 49A02-1111-CR-995
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable Patricia J. Gifford, Senior Judge
                           Cause No. 49G04-0507-FC-124515


                                       July 31, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

      Appellant-Defendant, Micole Draughon (Draughon), appeals her sentence for

criminal recklessness, a Class C felony, Ind. Code § 35-42-2-2.

      We affirm in part, reverse in part, and remand with instructions.

                                         ISSUES

      Draughon raises two issues on appeal, which we restate as follows:

      (1) Whether the trial court committed fundamental error by ordering Draughon to

          pay restitution of $5,000 without conducting an inquiry into her ability to pay;

      (2) Whether the trial court committed fundamental error by determining the

          restitution amount based on insufficient evidence;

      (3) Whether the trial court committed fundamental error by failing to fix the

          manner of her payment of restitution; and

      (4) Whether the trial court committed fundamental error by failing to conduct an

          indigency hearing prior to imposing fees and costs.

                       FACTS AND PROCEDURAL HISTORY

      On July 19, 2005, David Williams (Williams) and Draughon discussed yard work

that he performed for Draughon’s grandmother.         Following an exchange of words,

Draughon entered her grandmother’s van and “put the vehicle in drive and struck

[Williams] and then struck a parked car. The impact was so hard that it pushed the



                                            2
vehicle several feet from its original location.” (Transcript p. 8). Williams sustained

significant injuries and was taken to a hospital. Draughon was later apprehended.

      On July 21, 2005, the State filed an Information charging Draughon with Count I,

criminal recklessness, a Class C felony, I.C. § 35-42-2-2. On August 12, 2005, the trial

court placed Draughon in community corrections on pre-trial release. On October 3,

2005, the State moved to revoke Draughon’s pre-trial release in response to threats she

made to Williams, which was granted by the trial court that same day. On October 11,

2005, Draughon failed to appear at a guilty plea hearing and fled to Kentucky.

      On April 12, 2011, Draughon was arrested. On September 7, 2011, the trial court

ordered the probation department to prepare a presentence investigation report (PSI).

The PSI revealed that Draughon’s sole income consisted of monthly social security

benefits in the amount of $674 per month. On October 5, 2011, Draughon entered into a

plea agreement with the State in which she agreed to plead to guilty to Count I. The plea

agreement provided in relevant part:

      4. At the time of the taking of the guilty plea and again at the time of the
      Defendant’s sentencing, the State reserves the right to question witnesses
      and comment on any evidence presented upon which the [c]ourt may rely to
      determine the sentence to be imposed; to present testimony or statements
      from the victims(s) or victim representative(s), and the State of Indiana and
      the Defendant agrees [sic] that the [c]ourt shall impose the following
      sentence:

      OPEN TO THE COURT

      Defendant is to have No Contact with [Williams]

      Defendant shall owe Restitution to [Williams] in the amount $T.B.D.

                                            3
(Appellant’s App. p. 59).

       That same day, the trial court held a guilty plea and sentencing hearing. The trial

court accepted Draughon’s guilty plea and proceeded to sentence her. Williams appeared

and testified as to the extent of his injuries and economic losses.       Specifically, he

underwent a number of painful operations to repair his fractured left leg following the

incident. These operations included the implant and removal of rods and bolts in his leg,

ankle, and knee over the course of two years. Ultimately, Williams’ leg failed to respond

to treatment and he underwent a bone graft requiring his leg to be fractured again.

       Williams also testified that he lost his commercial driver’s license and was unable

to work for almost four years following the accident and lost wages as a result. After

repair of his leg, Williams borrowed $5,000 for schooling to reobtain his commercial

driver’s license and remained deep in debt as a result of not working for four years. The

trial court questioned Williams about his hospital bills and Williams testified that “they

kind of took care of some of it, but I think I’m in debt about $5,000.” (Tr. p. 18). Apart

from Williams’ testimony, the State presented no other evidence substantiating his

injuries or economic losses.

       The trial court sentenced Draughon to eight years, with six years suspended and

two years to be served through community corrections in the mental health component.

The trial court ordered Draughon to pay $5,000 in restitution to Williams as a condition

of her community corrections and probation sentences. The trial court also ordered her to

pay court costs and fees in the amount of $1,645.

                                             4
        Draughon now appeals. Additional facts will be provided as necessary.

                                 DISCUSSION AND DECISION

        Draughon contends that the trial court erred by ordering restitution without

conducting an inquiry into her ability to pay and that there was insufficient evidence to

support the amount of restitution. Draughon also argues that the trial court erred by

failing to fix the manner of her performance and failing to determine her indigency prior

to ordering restitution. The State responds that the trial court conducted an adequate

inquiry and that it proved the extent of Williams’ losses. Although it concedes that the

trial court did not fix the manner of performance, the State argues that consideration of

Draughon’s indigency is not ripe until it petitions to revoke her probation for failure to

pay restitution.

        Initially, we note however that Draughon did not object to the restitution amount,

fines or costs at the sentencing hearing. Ordinarily, this would result in waiver and

preclude our review. However, we will address restitution issues on the grounds of

fundamental error despite the lack of any objection. See Lohmiller v. State, 884 N.E.2d

903, 915-16 (Ind. Ct. App. 2008). “Fundamental error is error such that, if not rectified,

would be a denial of fundamental due process.” Ware v. State, 816 N.E.2d 1167, 1179

(Ind. Ct. App. 2004). An improper sentence constitutes fundamental error. Id. We will

therefore consider Draughon’s claim on the merits. 1


1
  The State also argues that Draughon waived her challenge to an inquiry on her ability to pay restitution
and the amount thereof based upon her verbal agreement with the trial court to pay restitution and the
language of the plea agreement. However, “leaving the amount of restitution to the discretion of the trial
                                                    5
                                                   I. Restitution

        The trial court has broad authority to order restitution. See I.C. § 35-50-5-3(a).

Restitution is a matter within the sound discretion of the trial court and will be reversed

only upon a finding of abuse of discretion. Ault v. State, 705 N.E.2d 1078, 1082 (Ind. Ct.

App. 1999). An abuse of discretion occurs when the decision is clearly against the logic

and effect of the facts and circumstances before the trial court. Sneed v. State, 946

N.E.2d 1255, 1257 (Ind. Ct. App. 2011).

                                                 A. Ability to Pay

        The trial court may impose restitution as a condition of probation or as a part of an

executed sentence. I.C. § 35-50-5-3(a); Pearson v. State, 883 N.E.2d 770, 772 (Ind.

2008). If the trial court imposes restitution as a condition of probation, it must conduct

an inquiry under I.C. § 35-38-2-2.3(a)(5) to determine the defendant’s ability to pay.

Pearson, 883 N.E.2d at 772. However, when the trial court orders restitution as part of

the sentence, no hearing is required because “restitution is merely a money judgment,”

for which “a defendant cannot be imprisoned for non-payment.” Id. at 773. Here, the

trial court ordered Draughon to pay restitution as “a condition of [her] being in

[c]ommunity corrections and also of probation.” (Tr. p. 36). As Draughon could be

court is not tantamount to waiving one’s right to have the trial court inquire into his or her ability to pay.”
M.L. v. State, 838 N.E.2d 525, 529-30 (Ind. Ct. App. 2006), trans. denied. Further, the express language
of the plea agreement and the State’s inquiry to the trial court at the close of the hearing on the amount of
restitution both contradict the notion that Draughon left the amount of restitution to the State’s discretion.
Accordingly, we address the merits of Draughon’s appeal.

                                                       6
imprisoned for failing to pay restitution upon release from incarceration, her restitution

obligation is part of her probation. Thus, the trial court was required to conduct an

inquiry under I.C. § 35-38-2-2.3(a)(5) to determine Draughon’s ability to pay restitution.

         While I.C. § 35-38-2-2.3(a)(5) requires an inquiry, it does not specify the manner

of inquiry. Laker v. State, 869 N.E.2d 1216, 1220 (Ind. Ct. App. 2007). The trial court

must consider the defendant’s ability to pay, which includes factors such as the

defendant’s financial information, health, and employment history. Champlain v. State,

717 N.E.2d 567, 570 (Ind. 1999). The trial court may conduct a proper inquiry of the

defendant’s ability to pay by reviewing the PSI. Laker, 869 N.E.2d at 1221.

         Highlighting the lack of testimony at the sentencing hearing about her financial

condition, Draughon contends that the trial court failed to conduct an inquiry into her

ability to pay. Although no express inquiry was made at the guilty plea and sentencing

hearing, the PSI contains Draughon’s reported financial condition: Draughon stated that

she received $674 in monthly social security benefits beginning around 2009 and had had

no bank accounts or past-due debts.2

         Further, the PSI contains a handwritten notation that the presiding judge reviewed

the PSI less than a month before the guilty plea and sentencing hearing and the record

contains references to the PSI by both the trial court and Draughon’s counsel. The trial

2
  In her appellant’s brief, Draughon contended that social security benefits should not be included in the trial court’s
inquiry on her ability to pay restitution. However, prior to filing of the State’s brief, our supreme court held that
social security benefits may be properly considered by the trial court in determining the defendant’s ability to pay
restitution. See Kays v. State, 963 N.E.2d 507, 510-11 (Ind. 2012). In her reply brief, Draughon concedes that Kays
forecloses consideration of this issue.

                                                           7
court asked Draughon’s counsel if she and Draughon had read the PSI and had any

corrections to make. Draughon’s counsel referred to Draughon’s PSI during closing

argument and review. Finally, the trial court expressly relied upon the PSI in determining

Draughon’s sentence. Because the PSI contained sufficient information to allow the trial

court to conduct an inquiry into her ability to pay and the PSI was relied upon by both the

trial court and her counsel, we conclude that the trial court adequately inquired into

Draughon’s ability to pay restitution. See Mitchell v. State, 559 N.E.2d 313, 315 (Ind. Ct.

App. 1990), trans. denied.

                                      B. Restitution Amount

       Draughon next contends that the restitution amount was based on insufficient

evidence.   In pertinent part, I.C. § 35-50-5-3(a) requires the trial court to base its

restitution order on “medical and hospital costs incurred by the victim” and “earnings lost

by the victim” prior to sentencing. I.C. § 35-50-5-3(a)(2); -(4). The restitution amount

must be based on the actual loss incurred by the victim. See Kotsopoulos v. State, 654

N.E.2d 44, 47 (Ind. Ct. App. 1995), trans. denied. Evidence supporting a restitution

order is sufficient if it affords a reasonable basis for estimating loss and does not subject

the trier of fact to mere speculation or conjecture. J.H. v. State, 950 N.E.2d 731, 734

(Ind. Ct. App. 2011).

       Draughon contends that Williams’ testimony on the extent of his losses was

unsupported and thus an insufficient basis for the trial court to order restitution of $5,000.

We disagree. Despite Williams’ two separate assertions that he was $5,000 in debt,

                                              8
Draughon seizes upon the different contexts in which he mentioned the amount of loss to

argue that his testimony could either reflect medical expenses or lost wages.           In

particular, Draughon points to the following exchange between Williams and the trial

court.

         [TRIAL COURT]: I did understand that you got your commercial license
         back?

         [WILLIAMS]: Yes ma’am.

         [TRIAL COURT]: But you can’t work now because of something else?

         [WILLIAMS]: No, ma’am

         [TRIAL COURT]: So you still owe all of the hospital bills?

         [WILLIAMS]: I have (inaudible) and they kind of took care of some of it,
         but I think I’m in debt about $5,000.

         [TRIAL COURT]: About $5,000.

         [WILLIAMS]: Yes, ma’am.

(Tr. pp. 18-19).

         Draughon’s argument ignores Williams’ testimony prior to questioning by the trial

court. The State first elicited testimony from Williams that because of his injuries he

could no longer work as a commercial driver and lost his commercial driver’s license

because he could not pass a physical examination. After his leg healed sufficiently,

Williams had “to borrow $5,000” to attend school and reobtain his commercial driver’s

license. (Tr. p. 15). Because Williams never wavered on the amount of his loss, we find

that the trial court had a sufficient basis to calculate the restitution amount of $5,000.

                                             9
While Draughon also attacks the restitution amount on the absence of documentary

evidence to substantiate William’s actual losses, testimony supporting a finding that

losses occurred, even without documentary evidence has been recognized as sufficient.

See Blixt v. State, 872 N.E.2d 149, 153-54 (Ind. Ct. App. 2008). Moreover, “[t]he

informal nature of sentencing hearings allow for introduction of evidence with fewer

restrictions than a trial.” J.H., 950 N.E.2d at 738 n.8; see also Ind. Evid. Rule 101(c). As

a result, we conclude that there is an adequate factual basis for the trial court's restitution

order.

                       II. Manner of Payment and Indigency Hearing

         Both Draughon and the State concede that the trial court did not fix the manner of

performance in which the defendant is to pay restitution under I.C. § 35-38-2-2.3(a)(5).

That statute provides that the trial court must determine the manner and time frame for

payment of restitution. Laker, 869 N.E.2d at 1221. We therefore remand to the trial

court for a determination of the manner for payment of restitution.

         Additionally, Draughon argues that the trial court failed to conduct a hearing to

determine whether she is indigent as to fees and costs prior to their imposition. The trial

court imposed fees and costs of $1,645, making the payment thereof a condition of

Draughon’s probation. In response, the State argues that the trial court is not required to

conduct an indigency hearing until Draughon completes the executed portion of her

sentence.     Following the submission of the State’s brief, Draughon submitted a

supplemental appendix containing discharge orders from community corrections that

                                              10
establish completion of her executed sentence. Accordingly, we remand to the trial court

for a hearing to determine Draughon’s indigency as to fines and costs.

                                       CONCLUSION

         Based on the foregoing, we conclude that the trial court did not commit

fundamental error by ordering Draughon to pay restitution of $5,000. However, we

reverse and remand with instructions to the trial court to hold a hearing on the manner in

which restitution is to be paid and to determine Draughon’s indigency as to fees and

costs.

         Affirmed in part, reversed in part, and remanded with instructions.

NAJAM, J. and DARDEN, S. J. concur




                                              11
