MEMORANDUM DECISION
                                                                   Jun 11 2015, 9:10 am
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
Thomas G. Godfrey                                         Gregory F. Zoeller
Anderson, Indiana                                         Attorney General of Indiana

                                                          Christina D. Pace
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jody Meredith,                                           June 11, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         48A05-1411-CR-544
        v.                                               Appeal from the Madison Circuit
                                                         Court
                                                         Cause No. 48C04-1110-FD-1827
State of Indiana,
Appellee-Plaintiff.                                      The Honorable David A. Happe,
                                                         Judge




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A05-1411-CR-544 | June 11, 2015       Page 1 of 7
                                             Case Summary
[1]   Jody Meredith appeals the trial court’s restitution order after her conviction for

      Class D felony theft. We affirm.


                                                     Issue
[2]   Meredith raises one issue, which we restate as whether the trial court properly

      ordered her to pay $40,831.81 in restitution.


                                                     Facts
[3]   On June 18, 2011, Roger Kessler and Susan Campford-Kessler of United

      Dewatering and Construction Company reported to the Madison County

      Sheriff’s Department that forty well casing pipes had been stolen from their

      business property in Fortville. Each pipe was thirty to forty feet long, and they

      claimed that the pipes were valued at approximately $83,172.00. The State

      charged Meredith with Class D felony theft for “knowingly or intentionally

      exert[ing] unauthorized control over the properly of another person, to wit: well

      casing pipes belonging to United Dewatering & Construction Co., with the

      intent to deprive said person of any part of the use or value of the property.”

      App. p. 120.


[4]   Meredith pled guilty to Class D felony theft and a charge in another case and

      agreed to pay restitution as ordered by the trial court. At the guilty plea

      hearing, Meredith admitted in part that the well casing pipes were valued at

      approximately $83,000.00. The trial court sentenced Meredith to three years

      with one year suspended to probation. The trial court also ordered Meredith to
      Court of Appeals of Indiana | Memorandum Decision 48A05-1411-CR-544 | June 11, 2015   Page 2 of 7
      “pay no less than 25% of net disposable earnings towards restitution” with the

      restitution amount to be determined by the probation department. Id. at 13. At

      the sentencing hearing, the trial court stated:

              It is a condition of both the executed sentence and the suspended
              sentence that the defendant pay restitution in an amount to be
              determined by the probation department. I expect you to be making as
              much progress as you can towards that. I understand that your
              earning capacity may be limited but I’ll expect no less from you than
              we expect from someone in a small claims case who has a collection
              suit filed against them. That is, if a garnishment’s issued against them
              they are to pay twenty-five percent (25%) of their take home pay, or
              their net disposable earnings. You are to pay no less than twenty-five
              percent (25%) of your net disposable earnings towards restitution.
      Tr. p. 28. The trial court stated that, if Meredith or the victims disagreed with

      the restitution amount determined by the probation department, either party

      could request an evidentiary hearing.


[5]   The probation department determined that the restitution amount should be

      $82,524.00. Meredith objected and filed a request for a hearing. The trial court

      held several hearings on the restitution matter and found:

             2.        In this case, Defendant was charged with a single count of Theft,
                       class D felony. The charging information alleges that on June
                       10, 2011, the defendant exercised unauthorized control over an
                       unspecified number of well casings belonging to United
                       Dewatering and Construction Co.
             3.        At her dispositional hearing on December 17, 2012, Defendant
                       acknowledged having participated in stealing well casing pipes
                       valued at approximately $83,000, on or about June 10, 2011.
             4.        While the victim may have suffered further harms from
                       additional material that were taken in an ongoing campaign of


      Court of Appeals of Indiana | Memorandum Decision 48A05-1411-CR-544 | June 11, 2015   Page 3 of 7
                       thefts, any such other thefts were not charged or found to be
                       Defendant’s responsibility.
             5.        The victim corporation requests restitution from lost earnings
                       well beyond the cost to replace the stolen well casings. There
                       was limited documentation of corporate earning history, no
                       itemization of specific actual contracts lost and the expected
                       profits, insufficient evidence of mitigation of damages, and no
                       economic evidence of business trends in this sector. An award of
                       lost profits on this record would be speculative.
             6.        In the correspondence received from United Dewatering &
                       Construction, Inc., the victim corporation reports actual losses
                       for replacement of the well casings of $83,182.81, offset by net
                       insurance proceeds of $42,351.17, leaving uncompensated
                       replacement costs of $40,831.64.
                       THEREFORE, Defendant is ordered to pay restitution to United
                       Dewatering & Construction, Inc., in the amount of $40,831.64.
      App. pp. 17-18. The trial court granted Meredith permission to file a belated

      appeal.


                                                  Analysis
[6]   Meredith argues that the trial court’s restitution order was an abuse of

      discretion. She first argues that there is insufficient evidence to support the trial

      court’s restitution order. “A restitution order must be supported by sufficient

      evidence of actual loss sustained by the victim or victims of a crime.” Rich v.

      State, 890 N.E.2d 44, 49 (Ind. Ct. App. 2008), trans. denied. The amount of

      actual loss is a factual matter that can be determined only upon the presentation

      of evidence, and a trial court’s order of restitution is reviewed for an abuse of

      discretion. Id. We will affirm the trial court’s order if it is supported by

      sufficient evidence. Id.


      Court of Appeals of Indiana | Memorandum Decision 48A05-1411-CR-544 | June 11, 2015   Page 4 of 7
[7]   According to Meredith, the invoices submitted by United Dewatering regarding

      the well casings include materials that she did not admit to stealing. United

      Dewatering submitted invoices of $71,010.81 in well casings plus $12,172.00 in

      welding costs for a total $83,182.81. At the guilty plea hearing, Meredith

      admitted that the well casing pipes were valued at approximately $83,000.00.

      United Dewatering received $49,500.00 in insurance proceeds minus $7,148.83

      in attorney fees, for a total reimbursement of $42,351.17. Meredith claims that,

      based on a different interpretation of the invoices, United Dewatering sustained

      damages of only $5,852.00. Meredith’s argument is merely a request that we

      reweigh the evidence, which we cannot do. The trial court did not abuse its

      discretion when it ordered Meredith to pay $40,831.64 in restitution.


[8]   Meredith also briefly argues that the trial court made restitution a condition of

      probation and the amount of restitution exceeds the amount that she can or will

      be able to pay. When the trial court enters an order of restitution as part of a

      condition of probation or a suspended sentence, the court is required to inquire

      into the defendant’s ability to pay. Pearson v. State, 883 N.E.2d 770, 772 (Ind.

      2008) (citing Ind. Code § 35-38-2-2.3). “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.” Id. When restitution is ordered as part

      of an executed sentence, an inquiry into the defendant’s ability to pay is not

      required. Id. at 773. “In such a situation, restitution is merely a money

      judgment, see I.C. § 35-50-5-3(b), and a defendant cannot be imprisoned for

      non-payment.” Pearson, 883 N.E.2d at 773.


      Court of Appeals of Indiana | Memorandum Decision 48A05-1411-CR-544 | June 11, 2015   Page 5 of 7
[9]    Meredith’s restitution was a term of both the executed and suspended sentence.

       Thus, the trial court was required to inquire into Meredith’s ability to pay in the

       context of restitution as a condition of the suspended sentence. “Although the

       trial court could properly choose to hold a hearing on a defendant’s ability to

       pay restitution, it is not required to do so, and may make a proper inquiry,

       depending on circumstances, by such actions as reviewing the pre-sentence

       report and questioning witnesses.” Laker v. State, 869 N.E.2d 1216, 1221 (Ind.

       Ct. App. 2007). There was evidence presented during the sentencing hearing of

       Meredith’s employment and earning ability, and additional evidence was

       presented in the presentence investigation report. The trial court recognized

       Meredith’s limited earning ability and ordered her to pay “no less than 25% of

       net disposable earnings towards restitution,” which is the same amount of her

       earnings that could be subject to garnishment. App. p. 28; see Ind. Code § 24-

       4.5-5-105. The trial court adequately inquired into Meredith’s ability to pay the

       restitution as a condition of the suspended sentence and accounted for her

       limited ability to pay by ordering her to pay twenty-five percent of her net

       disposable earnings. The trial court did not abuse its discretion. See, e.g., Savage

       v. State, 655 N.E.2d 1223, 1225 (Ind. 1995) (affirming the imposition of

       $164,998.59 in restitution).


                                                 Conclusion
[10]   The trial court properly ordered Meredith to pay restitution. We affirm.


[11]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 48A05-1411-CR-544 | June 11, 2015   Page 6 of 7
Riley, J., and Bailey, J., concur.




Court of Appeals of Indiana | Memorandum Decision 48A05-1411-CR-544 | June 11, 2015   Page 7 of 7
