MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                  FILED
regarded as precedent or cited before any                                     Jun 25 2018, 9:21 am

court except for the purpose of establishing                                      CLERK
                                                                              Indiana Supreme Court
the defense of res judicata, collateral                                          Court of Appeals
                                                                                   and Tax Court
estoppel, or the law of the case.




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stacy R. Uliana                                          Curtis T. Hill, Jr.
Bargersville, Indiana                                    Attorney General of Indiana

                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kyle R. Collins,                                         June 25, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-99
        v.                                               Appeal from the LaGrange
                                                         Superior Court.
State of Indiana,                                        The Honorable Lisa M. Bowen-
                                                         Slaven, Judge.
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         44D01-1502-F5-4



Friedlander, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 18A-CR-99 | June 25, 2018                       Page 1 of 5
[1]   Kyle R. Collins was placed on probation after he pled guilty to and was

      convicted of Level 6 felony receiving stolen auto parts. Collins was required to

      pay restitution to his victim as a condition of his probation. On appeal, Collins

      challenges the trial court’s restitution order, arguing both that the evidence is

      insufficient to sustain the order and that the trial court erred by failing to make

      an inquiry into his ability to pay. We affirm in part, reverse in part, and

      remand to the trial court for further proceedings.


[2]   On September 14, 2014, Collins broke into a salvage yard and stole a 1995 Ford

      Ranger that the vehicle’s owner had taken to the facility for repairs. Collins

      rammed the truck through the locked front gate of the facility and drove it to his

      home where he bragged that he had stolen it from the salvage yard. Collins

      subsequently attempted to disguise the truck’s appearance before ultimately

      setting it on fire and destroying it completely.


[3]   On February 26, 2015, the State charged Collins with Level 5 felony burglary,

      Level 6 felony auto theft, Level 6 felony arson, and Level 6 felony criminal

      mischief. Collins subsequently agreed to plead guilty to an amended charge of

      Level 6 felony receiving stolen auto parts. In exchange, the State agreed to

      dismiss the remaining charges. The parties’ agreement also provided for the

      payment of restitution.


[4]   On January 25, 2017, the trial court accepted the parties’ plea agreement and

      sentenced Collins to a term of two and one-half years with six months

      suspended to probation. The trial court also issued a probation order which,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-99 | June 25, 2018   Page 2 of 5
      among other things, indicated that Collins was to pay restitution and provided

      the manner in which restitution was to be paid. The probation order further

      indicated that the amount of restitution would be determined by the trial court

      at a later date.


[5]   The trial court conducted a restitution hearing on November 16, 2017. During

      this hearing, Ann Fleck, the Victim’s Advocate for the LaGrange County

      Prosecutor’s Office, testified that the victim requested restitution in the amount

      of $3000. In support of this request, the victim indicated that he had paid $1500
                                                                                          1
      for the truck and had made over $1600 in improvements to it. Fleck, however,

      also testified that her immediate predecessor had conducted research relating to
                                                                                                        2
      the value of the truck. This research revealed that the Kelley Blue Book value

      of the truck was $1320. On December 12, 2017, the trial court ordered Collins

      to pay restitution in the amount of $1320.


                                  1. Order to Pay Restitution
[6]   In sentencing a criminal defendant, a trial court may order the defendant to

      “[m]ake restitution … to the victim of the crime for damage … that was

      sustained by the victim.” Ind. Code § 35-38-2-2.3(a)(6) (2013). “An order of

      restitution is as much a part of a criminal sentence as a fine or other penalty.”




      1
        These improvements included new rims and tires; a stereo, amplifier, and speakers; a cab for the truck bed;
      and a new windshield.
      2
       The Kelley Blue Book has been used since 1926 as a resource used to find the value of a vehicle. See
      www.kbb.com (last visited June 12, 2018).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-99 | June 25, 2018                       Page 3 of 5
      Bell v. State, 59 N.E.3d 959, 962 (Ind. 2016) (internal quotation and brackets

      omitted). The imposition of restitution falls “within the trial court’s discretion,

      and we will reverse only on a showing of abuse of discretion.” Garcia v. State,

      47 N.E.3d 1249, 1252 (Ind. Ct. App. 2015), trans. denied. “An abuse of

      discretion occurs when the trial court’s decision is against the logic and effect of

      the facts and circumstances before it.” Id.


[7]   “A restitution order must be supported by sufficient evidence of actual loss

      sustained by the victim of a crime.” Id. “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.” Id. (internal

      quotation omitted). We do not require mathematical certainty, rather only that

      the “the amount must be supported by the evidence in the record.” See Cty.

      Contractors, Inc. v. A Westside Storage of Indpls., Inc., 4 N.E.3d 677, 694 (Ind. Ct.

      App. 2014). We will affirm the trial court’s decision regarding the amount of

      restitution to be paid if there is any evidence supporting the decision. Smith v.

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


[8]   We have previously concluded that evidence indicating the Kelley Blue Book

      value of a vehicle is sufficient to prove the vehicle’s value. See Jasinski v. Brown,

      3 N.E.3d 976 (Ind. Ct. App. 2013) (finding that evidence that the Kelley Blue

      Book value of the vehicle was sufficient to sustain an award of damages). In

      this case, an employee of the LaGrange County Prosecutor’s Office researched

      the value of the truck in question and found that its Kelley Blue Book value was

      $1320. The trial court, acting as the trier-of-fact found this valuation to be

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-99 | June 25, 2018   Page 4 of 5
       credible and we will not disrupt this finding on appeal. See Smith, 990 N.E.2d

       517.


                                   2. Hearing on Ability to Pay
[9]    The probation order expressly stated that Collins was to pay restitution, the

       amount of which would be determined by the trial court at a later date. The

       explicit mention of restitution in the probation order leaves one with the firm

       impression that the payment of restitution was a condition of Collins’s

       probation. The State concedes that a trial court must inquire about a

       defendant’s ability to pay before requiring the payment of restitution as a
                                        3
       condition of probation. See generally, Pearson v. State, 883 N.E.2d 770 (Ind.

       2008) (providing that “when restitution is ordered as a condition of probation,

       the court is required to inquire into the defendant’s ability to pay”). It is

       undisputed that in this case the trial court did not do so. As such, we reverse

       and remand to the trial court with instructions to inquire into Collins’s ability to

       pay.


[10]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded with instructions.


       Baker, J., and Barnes, Sr. J., concur.




       3
         The State correctly asserts that when restitution is entered as a civil judgment, “no inquiry into the ability
       to pay is required because … a defendant cannot be imprisoned for non-payment.” Bell, 59 N.E.3d at 963.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-99 | June 25, 2018                           Page 5 of 5
