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:

JOHN ANDREW GOODRIDGE                               GREGORY F. ZOELLER
Evansville, Indiana                                 Attorney General of Indiana

                                                    GARY R. ROM
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana
                                                                                  FILED
                                                                              Apr 30 2012, 9:24 am
                               IN THE
                                                                                      CLERK
                     COURT OF APPEALS OF INDIANA                                    of the supreme court,
                                                                                    court of appeals and
                                                                                           tax court




JASPER A. WISDOM,                                   )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 82A01-1108-CR-380
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                 APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                        The Honorable Kelli E. Fink, Magistrate
                            Cause No. 82C01-1105-FD-627


                                          April 30, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
          Jasper Wisdom appeals the order requiring him to pay $1,650.00 in restitution. We

affirm in part and remand.

                            FACTS AND PROCEDURAL HISTORY

          On July 26, 2011, the trial court found Wisdom guilty of Class A misdemeanor

criminal mischief1 based on an incident during which he jumped on the top of Amanda

Littrell’s car. The trial court sentenced Wisdom to one year, with 130 days executed and the

remainder suspended to probation. As a term of his probation, the trial court ordered

Wisdom to pay $1,650.00 to Littrell for the damage to her car.

                                  DISCUSSION AND DECISION

          A trial court may order “restitution or reparation to the victim of the crime for damage

or injury that was sustained by the victim.” Ind. Code § 35-38-2-2.3(a)(5). An order of

restitution is within the trial court’s discretion, and we will reverse its decision only for an

abuse of that discretion. Bockler v. State, 908 N.E.2d 342, 348 (Ind. Ct. App. 2009). An

abuse of discretion occurs when the trial court misinterprets or misapplies the law. Id.

          1.      Restitution Amount

          Pursuant to Ind. Code § 35-50-5-3(a)(1), a court “shall base its restitution order upon a

consideration of: (1) property damages of a victim incurred as a result of the crime, based on

the actual cost of repair (or replacement if repair is inappropriate)[.]” Evidence supporting a

restitution order is sufficient if it “affords a reasonable basis for estimating loss and does not




1
    Ind. Code § 35-43-1-2(a)(2)(A).
                                                  2
subject the trier of fact to mere speculation or conjecture.” T.C. v. State, 839 N.E.2d 1222,

1227 (Ind. Ct. App. 2005), reh’g denied.

       The trial court ordered Wisdom to pay $1,650.00 for the damage to Littrell’s vehicle.

During Wisdom’s trial, the State presented a $2,993.29 estimate for the repair of Littrell’s

vehicle. At Wisdom’s sentencing hearing, the State also presented a print out of the Kelley

Blue Book value of the vehicle in the amount of $1,650.00. The court reasoned the amount

ordered was appropriate because it put Littrell “in the position she was in before [Wisdom]

committed the crime.” (Sentencing Tr. at 21.) As the State presented two separate pieces of

evidence from which the trial court could determine the amount of restitution due, considered

the fact the cost of repair was more than the vehicle was worth, and the trial court made a

decision based on the damage incurred by Littrell, we cannot say it abused its discretion. See

Ind. Code § 35-50-5-3(a)(1) (a court “shall base its restitution order upon a consideration of:

(1) property damages of a victim incurred as a result of the crime, based on the actual cost of

repair (or replacement if repair is inappropriate)”).

       2.     Ability to Pay

       If restitution is ordered as 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.” Ind. Code § 35-38-

2-2.3(a)(5). The statute requires the trial court to make an inquiry into the probationer’s

ability to pay, but does not specify how the court is to do so. Smith v. State, 655 N.E.2d 133,

134 (Ind. Ct. App. 1995), trans. denied. The trial court should consider factors such as the



                                              3
probationer’s current financial status, health, and employment history. Champlain v. State,

717 N.E.2d 567, 570 (Ind. 1999).

       The trial court did not inquire into Wisdom’s ability to pay restitution. The State

concedes this was error, and it requests we remand this issue to the trial court. Accordingly,

we hold the trial court abused its discretion when it ordered Wisdom to pay restitution

without inquiring into his ability to pay. We remand for determination of Wisdom’s ability to

pay restitution and consideration of that factor in ordering restitution.

                                      CONCLUSION

       While the trial court’s initial determination of the amount of restitution was supported

by the evidence in the record regarding Littrell’s damages, we remand for inquiry into

Wisdom’s ability to pay and, if appropriate, for adjustment of the restitution amount based on

that factor.

       Affirmed in part and remanded.

CRONE, J., and BROWN, J., concur.




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