      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                       FILED
      regarded as precedent or cited before any
      court except for the purpose of establishing                          Sep 12 2019, 10:23 am

      the defense of res judicata, collateral                                     CLERK
                                                                              Indiana Supreme Court
      estoppel, or the law of the case.                                          Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Peter D. Todd                                            Curtis T. Hill, Jr.
      Elkhart, Indiana                                         Attorney General

                                                               Megan M. Smith
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Joseph Thomas Smith,                                     September 12, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-698
              v.                                               Appeal from the Elkhart Superior
                                                               Court
      State of Indiana,                                        The Honorable Kristine A.
      Appellee-Plaintiff                                       Osterday, Judge
                                                               Trial Court Cause No.
                                                               20D01-1712-F1-10



      Crone, Judge.


[1]   A jury convicted Joseph Thomas Smith of level 1 felony rape, level 5 felony

      domestic battery, and level 6 felony strangulation. The trial court sentenced


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-698 | September 12, 2019               Page 1 of 3
      him to an aggregate forty-one-year term, with thirty-six years executed and five

      years suspended to probation. In its sentencing order, the trial court “order[ed]

      the Defendant to pay restitution to the victim, the amount of which shall be

      determined by probation.” Appealed Order at 3.


[2]   In this appeal, Smith contends, and the State concedes, that the trial court erred

      in delegating to the probation department the task of fixing the amount of

      restitution he owes to his victim. Indiana Code Section 35-38-2-2.3(a)(6) reads,

      in relevant part, “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.” (Emphasis

      added.) See McGuire v. State, 625 N.E.2d 1281, 1282 (Ind. Ct. App. 1993)

      (holding that trial court failed to comply with the statute when it ordered

      probation department to fix amount and manner of defendant’s restitution

      payments). The trial court need not fix the amount and manner during

      sentencing but must do so before the commencement of probation. Bailey v.

      State, 717 N.E.2d 1, 4 (Ind. 1999). In any event, whether the amount and

      manner are fixed at sentencing (after ascertaining the defendant’s ability to pay)

      or at a later date before the defendant begins his probation, the responsibility to

      make the determination falls on the trial court alone. Id.; McGuire, 625 N.E.2d

      at 1282.


[3]   The trial court erred in delegating to the probation department the task of fixing

      the amount of Smith’s restitution obligation. We remand with instructions for



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-698 | September 12, 2019   Page 2 of 3
      the trial court to make the proper inquiries into Smith’s ability to pay and to set

      the terms of his restitution obligation accordingly.


[4]   Remanded.


      Baker, J., and Kirsch, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-698 | September 12, 2019   Page 3 of 3
