Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                    Apr 18 2013, 9:18 am
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:

KRISTINA J. JACOBUCCI                           GREGORY F. ZOELLER
Newby, Lewis, Kaminski & Jones, LLP             Attorney General of Indiana
LaPorte, Indiana
                                                RICHARD C. WEBSTER
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JANE M. BURKART,                                )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 46A03-1211-CR-465
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                APPEAL FROM THE LAPORTE SUPERIOR COURT NO. 4
                       The Honorable William J. Boklund, Judge
                           Cause No. 46D04-0703-CM-679



                                      April 18, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Jane Burkart appeals the trial court’s revocation of her probation for her failure to

pay restitution. Burkart contends that her failure to pay was not reckless, knowing, or

intentional because it was based on the advice of her attorney to wait to make any

payments until her direct appeal was decided, or alternatively, because she did not have

the funds to make the payments.

          We conclude that the trial court properly determined that Burkart had the means to

make the payments as ordered, notwithstanding her contention that her expenses

exceeded her income. We also conclude that even if Burkart’s initial failure to pay was

based on her attorney’s advice, her subsequent failure to make her restitution obligation

current over the eighteen months following the affirmation of her convictions on appeal

and our Supreme Court’s denial of transfer supported the trial court’s finding that Burkart

recklessly, knowingly, or intentionally failed to make her restitution payments.

Accordingly, we affirm the judgment of the trial court.

                                            FACTS

          After a jury trial, Burkart was found guilty of five counts of neglect of an animal,1

a class B misdemeanor. On July 22, 2009, she was sentenced to 180 days on each count,

to be served consecutively, for a total of 900 days of incarceration. The trial court

suspended the entire sentence and ordered Burkart to serve one year of probation on each

of the five counts. One of the conditions of Burkart’s probation was that she pay

restitution in the amount of $11,932.32 in monthly installments of $198.88 to the animal

1
    Ind. Code § 35-46-3-7.
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shelter that had initially boarded and cared for Burkart’s neglected horses. Also, any

funds remaining from Burkart’s bond were to be applied to her restitution. However, the

trial court ordered that the application of any amounts from Burkart’s bond to her

restitution should be held until Burkart had exhausted her right to a direct appeal.

       Although Burkart proceeded to trial pro se, the trial court subsequently appointed

appellate counsel for her. When Burkart asked her appellate counsel when she should

start paying restitution, he told her that she did not have to start paying restitution until

her appeal was complete. Burkart also asked her probation officer when she should start

paying restitution, and the probation officer allegedly told Burkart to follow her appellate

counsel’s advice.

       This Court affirmed Burkart’s convictions and sentence on appeal. Burkart v.

State, No. 46A03-0908-CR-385, slip op. at 3 (Ind. Ct. App. Nov. 16, 2010). Burkart

thereafter sought transfer, which the Indiana Supreme Court denied on January 28, 2011.

Burkart v. State, 950 N.E.2d 1196, 1196 (Ind. 2011) (denying transfer).

       Two days before our Supreme Court denied transfer, the LaPorte County

Probation Department filed a petition to revoke Burkart’s probation because she had not

made any restitution payments. The trial court held a revocation hearing that commenced

on October 5, 2012. The State presented evidence that despite being on probation for

forty-one months, Burkart had paid only $2100 in restitution, with her first payment

having been made on May 20, 2011, and her last payment made on January 17, 2012.

Burkart presented spreadsheets purporting to summarize her income and expenses for the

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years 2010, 2011, and 2012. For the years of 2010 and 2012, the spreadsheets showed

that Burkart’s expenses exceeded her income.             The 2011 spreadsheet showed that

Burkart’s income exceeded her expenses by approximately $1700.

          At the conclusion of the evidence, the trial court stated:

          I think I’m looking at balance sheets that have . . . certain areas padded
          perhaps, maybe not, but there may reflect some extravagance too. When a
          person is under a restitution order they have a duty to make that order if
          they have the ability to do that, and that might mean a little adjustment in
          lifestyle. . . . I believe that you did have the ability to pay and chose not to
          and I’m finding that you did violate your probation in not making
          restitution. I am going to revoke your probation at this time. I am not
          going to order you committed today because . . . if you want to take the
          opportunity to take an appeal I’m going to allow you that.

Tr. p. 40-41. Burkhart was ordered to serve the previously suspended 900 days of her

sentence in the Indiana Department of Correction.             The trial court then appointed

appellate counsel for Burkart. However, in making the appointment, the trial court

stated:

          I’m not necessarily convinced you are indigent, but if the argument is that
          you cannot make . . . the payment as ordered it makes no sense for me to
          then say you can then not give you a chance [to] challenge that. So I’m
          stretching it a bit to make this appointment.

Id. at 42. Burkart now appeals.

                                DISCUSSION AND DECISION

          On appeal, Burkart contends that the trial court erred in finding that she

intentionally, knowingly, or recklessly violated the condition of her probation that

required her to make restitution. She claims that “[h]er failure to satisfy the restitution


                                                 4
obligation was, instead, based on instructions she received from the probation department

and her attorney about paying her restitution and her inability to pay the amount owed.”

Appellant’s Br. p. 5.

       The decision to revoke probation is within the sole discretion of the trial court, and

we review that decision only for an abuse of discretion. Smith v. State, 963 N.E.2d 1110,

1112 (Ind. 2012). We do not reweigh the evidence or assess the credibility of witnesses,

and we consider only the evidence most favorable to the trial court’s decision. Id. We

will affirm a trial court’s decision to revoke probation if there is substantial evidence of

probative value indicating that a defendant violated any terms of probation.                Id.

Probation violations must be proved by a preponderance of the evidence. Ind. Code § 35-

38-2-3(f).

       Indiana Code section 35-38-2-3(g) provides that “[p]robation may not be revoked

for failure to comply with conditions of a sentence that imposes financial obligations on

the person unless the person recklessly, knowingly, or intentionally fails to pay.” Thus,

when attempting to revoke a defendant’s probation based on the failure to pay restitution,

the State must prove both that a violation occurred and that the defendant’s violation was

reckless, knowing, or intentional. Runyon v. State, 939 N.E.2d 613, 616 (Ind. 2010).

However, “it is the defendant probationer’s burden . . . to show facts related to an

inability to pay and indicating sufficient bona fide efforts to pay so as to persuade the trial

court that further imprisonment should not be ordered.” Id. at 617.



                                              5
      Here, even assuming that Burkart’s initial failure to pay restitution was based on

her counsel’s advice not to make any restitution payments until she had exhausted her

direct appeal, such that her failure to pay during the pendency of the appeal was not

reckless, knowing, or intentional, the direct appeal was complete as of January 28, 2011,

when our Supreme Court denied transfer. Nonetheless, Burkart failed to make any

payments for nearly four more months, and even then she did not pay the amount then

due, which would have been approximately $4200. Tr. p. 15. Instead, Burkart made a

payment of $200 on May 20, 2011, and she made only a few additional payments totaling

$2100 over the next several months. Id. And on January 17, 2012, when the amount due

under the restitution order would have been almost $5800, Burkart stopped making even

these occasional payments. Id. Based on this evidence, the trial court was well within its

discretion to conclude that Burkart’s failure to comply with the restitution order was

reckless, knowing, or intentional as of the October 5, 2012 revocation hearing.

      Furthermore, we cannot say that the trial court erred by determining that Burkart

had the means to pay the restitution order and that she had not made bona fide efforts to

do so. Although Burkart presented spreadsheets at the evidentiary hearing purporting to

show that her expenses exceeded her income for two of the last three years, it was the

trial court’s function to weigh that evidence. See Smith, 963 N.E.2d at 1114 (affirming

the revocation of probation when, despite presenting evidence of periods of

unemployment, the defendant probationer had failed to persuade the trial court of his

inability to pay). Indeed, the trial court commented at the hearing regarding its concerns

                                            6
that Burkart may have “padded” some of the numbers, or alternatively, that Burkart was

living an extravagant lifestyle in light of her obligation to abide by the restitution order as

a condition of her probation. Tr. p. 40-41.

       Finally, we cannot agree that the trial court’s appointment of appellate counsel in

this matter shows that Burkart was indigent for the purpose of making the restitution

payments. In determining whether Burkart was indigent for the purpose of effecting an

appeal, the trial court necessarily had to take into consideration that Burkart was already

required to make restitution payments. The trial court reasonably could have believed

that Burkart did not have the financial means to do both. In fact, the trial court stated on

the record that it was not convinced that Burkart was indigent even for the purpose of

effecting an appeal, but it nevertheless appointed her appellate counsel “by stretching it a

bit” to preserve her argument that she was indigent. Tr. p. 42. In sum, we conclude that

the trial court did not err in revoking Burkart’s probation.

       The judgment of the trial court is affirmed.

MAY, J., and MATHIAS, J., concur.




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