 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not be
                                                                                Nov 12 2013, 5:32 am
 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:
ELIZABETH A. BELLIN                               GREGORY F. ZOELLER
Elkhart, Indiana                                  Attorney General of Indiana

                                                  JOSEPH Y. HO
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

BILL R. CLARK,                                    )
                                                  )
       Appellant-Defendant,                       )
                                                  )
           vs.                                    )        No. 20A03-1304-CR-160
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )

                    APPEAL FROM THE ELKHART SUPERIOR COURT
                       The Honorable George W. Biddlecome, Judge
                             Cause No. 20D03-1008-FB-26


                                       November 12, 2013
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       Following a bench trial, Bill Clark (“Clark”) was convicted of Class B felony

dealing in methamphetamine and Class D felony maintaining a common nuisance. The

trial court sentenced Clark to twelve years in the Department of Correction, with five

years suspended to probation, and ordered him to pay restitution. Clark appeals and

argues that the trial court abused its discretion in ordering him to pay restitution without

adequately inquiring into his ability to do so.

       We affirm.

                                   Facts and Procedure

       On August 17, 2010, Elkhart police officers responded to reports of a strong

chemical odor indicating the potential presence of a methamphetamine laboratory coming

from a local apartment building. After speaking with residents of the apartment building

who also noticed the odor, the officers determined that the smell was coming from

Apartment Three. The officers attempted to make entry, first by knocking, and then by

contacting the landlord, who provided them with a key to the apartment. The officers

entered, found Clark inside, and observed in plain view large buckets that appeared to

contain chemicals. The officers detained Clark, then returned to the police department to

secure a search warrant for Clark’s apartment.

       After searching Clark’s apartment, police seized several items commonly used to

manufacture methamphetamine, including a five-gallon bucket containing fertilizer, a

gallon jug of muriatic acid, a can of camping fuel, a bottle of drain cleaner, tubing,

funnels containing coffee filters, rust remover pellets, and empty cold packs and

pseudoephedrine blister packs.

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      On August 20, 2010, the State charged Clark with Class B felony dealing in

methamphetamine and Class D felony maintaining a common nuisance. Clark waived

his right to a jury trial. On February 26, 2013, following a bench trial, Clark was

convicted on both counts.

      Clark’s presentence investigation report (“PSI”) indicated that remediation of the

site of Clark’s methamphetamine laboratory had been performed by the Indiana State

Police’s Clandestine Laboratory Enforcement team at a cost of $1,913.82. The PSI

further disclosed that Clark was thirty-two years old at the time of the offenses, that he

had earned a Bachelor of Science degree from Western Michigan University, that he

worked at Hi-Line in Elkhart from June 2007 to March 2010, that he had not received

any prior mental health treatment, and that he suffered no health problems other than

back problems and acid reflux.

      A sentencing hearing was held on April 4, 2012. At the hearing, Clark stated that

he had reviewed the PSI and verified that the information contained in it was accurate.

The trial court sentenced Clark to an aggregate term of twelve years in the Department of

Correction, with five years suspended to probation.

      As a condition of his probation, Clark was ordered to pay restitution to the State of

Indiana in the amount of $1,913.82. The trial court also ordered Clark to pay restitution

to his landlord in an amount to be determined through the Victim Offender

Reconciliation Program (“VORP”), court costs, and a $200.00 drug interdiction fee.

      At the sentencing hearing, the trial court informed Clark that if Clark and his

landlord failed to agree on an amount of restitution through the VORP process, the court

                                            3
would order an evidentiary hearing to determine the amount due. Clark responded that

he wished to avoid further hearings on the amount of restitution due and that he would

ensure that the agreed-upon restitution amount “would be there.” Tr. p. 232. He stated to

the trial court:

       If I am going to have to stay here longer, then I will just stay for the
       evidentiary hearing. But if I am not, if you just, if I tell you I will agree and
       cooperate and whatever the price is, just put it to my probation, and I will
       know and I will cooperate.

Id.

       Clark further stated that he understood that he had a right to contest the allegations

of the landlord with respect to the amount of restitution due and that any agreement he

reached with his landlord would not affect the amount of restitution due to the Indiana

State Police.

       Clark now appeals.

                                 Discussion and Decision

       Indiana Code section 35-50-5-3(a) provides that, in addition to any sentence

imposed for a felony or misdemeanor, a court may order the payment of restitution to the

victim of the crime. It is within the trial court’s discretion to order restitution, and we

will reverse only for an abuse of that discretion. Bennett v. State, 862 N.E.2d 1281, 1286

(Ind. Ct. App. 2007). An abuse of discretion occurs if the trial court’s decision is clearly

against the logic and effect of the facts and circumstances before it, or if the trial court

misinterprets or misapplies the law. Id.




                                              4
        If payment of restitution is a condition of probation, the trial court must inquire

into the defendant’s ability to pay restitution. Hunt v. State, 983 N.E.2d 196, 198-99 (Ind.

Ct. App. 2013); see also Ind. Code § 35-38-2-2.3(a)(5) (“When restitution or reparation 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.”). “This is

so in order to prevent indigent defendants from being imprisoned because of a probation

violation based on a defendant’s failure to pay restitution.” Pearson v. State, 883 N.E.2d

770, 772 (Ind. 2008). While the statute requires an inquiry into the defendant’s ability to

pay, it neither specifies the extent to which the court must inquire into the defendant’s

financial status nor sets forth any particular procedure the trial court must follow in its

determination. Smith v. State, 990 N.E.2d 517, 522 (Ind. Ct. App. 2013) trans. denied

(citing Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012); Smith v. State, 655 N.E.2d 133,

134 (Ind. Ct. App. 1995) trans. denied.).

        Clark does not challenge the amount of restitution the trial court ordered him to

pay and he does not claim that he is unable to pay that amount. Instead, Clark argues that

the trial court “abused its discretion in ordering that [he] pay restitution as a condition of

his probation without first making a determination of [his] ability to pay.” Appellant’s Br.

at 6.

        We disagree.    Prior to sentencing, the trial court reviewed the PSI, which

contained information relevant to Clark’s ability to pay restitution, including his

education, employment history, financial status, and health. This information indicated

that Clark would be able to pay restitution. See Mitchell v. State, 559 N.E.2d 313, 315

                                              5
(Ind. Ct. App. 1990) (holding that the “statute is not specific as to the form the court must

follow in determining a defendant’s financial status” but that the presentence report,

which provided defendant’s financial information and employment status and which

disclosed that defendant was in good health and had no dependents, was adequate to

allow trial court to determine the amount of restitution to be paid.). At the sentencing

hearing, the trial court asked Clark if the information contained in the PSI was accurate

and Clark confirmed that it was.          Furthermore, Clark’s counsel referred to the

information set forth in the PSI and noted that Clark had fallen behind on his child

support payments only after his incarceration in this case. Moreover, Clark specifically

affirmed to the trial court that he had the means to pay restitution to both the Indiana

State Police and his landlord. See Tr. p. 232.

                                        Conclusion

       For all of these reasons, and under the facts and circumstances of this case, we

conclude that the trial court did not abuse its discretion when it determined Clark’s ability

to pay restitution.

       Affirmed.

NAJAM, J., and BROWN, J., concur.




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