Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                                         Dec 23 2013, 5:54 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:

PATRICIA CARESS McMATH                              GREGORY F. ZOELLER
Appellate Clinic                                    Attorney General of Indiana
Indiana University Robert H. McKinney
School of Law                                       MICHAEL GENE WORDEN
Indianapolis, Indiana                               Deputy Attorney General
                                                    Indianapolis, Indiana
ROSE SHINGLEDECKER
Certified Legal Intern




                               IN THE
                     COURT OF APPEALS OF INDIANA

SHAMBERLEY JONES,                                   )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )    No. 49A05-1305-CR-231
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Clayton Graham, Judge
                             Cause No. 49G17-1211-FD-80772


                                        December 23, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge
                                            Case Summary

        Shamberley Jones pled guilty to class A misdemeanor criminal mischief stemming

from an incident in which she damaged the exterior of her ex-husband’s vehicle with her

keys. The trial court placed her on probation and ordered her to pay $900 in restitution. She

now appeals, challenging both the sufficiency of the trial court’s inquiry into her ability to

pay and its calculation of restitution damages. Finding that the trial court conducted a

sufficient inquiry concerning Jones’s ability to pay, we affirm its decision to impose

restitution. Finding that the calculation was speculative, we remand for a recalculation of

restitution damages.

                                   Facts and Procedural History

        On October 16, 2012, Jones and her ex-husband Timothy Dunn had a fight at Dunn’s

home. When she was leaving, Jones used her car keys to scratch the driver’s side of Dunn’s

vehicle. The State subsequently charged Jones with class D felony residential entry, class D

felony theft, class A misdemeanor domestic battery, class A misdemeanor battery, and class

A misdemeanor criminal mischief. Jones agreed to plead guilty to class A misdemeanor

criminal mischief and pay restitution for the damage to Dunn’s vehicle in exchange for the

State dismissing the remaining charges and placing her on probation.1

        The trial court conducted two restitution hearings. Dunn did not appear at either

hearing. The trial court inquired regarding Jones’s physical and mental health and work



        1
          Jones’s probation was to be non-reporting probation, with termination of probation upon payment of
the court-ordered restitution.


                                                     2
capabilities. Jones also testified regarding her employment as a certified nursing assistant

(“CNA”), her wages and sources of income, childcare expenses, educational status, and

student loans. The State introduced eight photographs of Dunn’s vehicle as well as a repair

estimate from a body shop for $1337.10. The photographs showed the key marks and

scratches as well as some pre-existing damage. The estimate was broken down into body

labor, paint labor, clearcoat labor, and supplies to repair each of the doors, the fender, and the

hood. It did not specify the sums attributable to the key scratches and those attributable to

pre-existing damage. Noting that Jones should not be held responsible for prior damage to

the vehicle, the trial court examined the photos and estimate together and arrived at a

restitution amount of $1104. Jones objected, and the trial court further reduced the amount to

$900. Jones now appeals the trial court’s decision to order restitution as well as the amount

of the restitution order. Additional facts will be provided as necessary.

                                   Discussion and Decision

                                        I. Ability to Pay

         Jones contends that the trial court abused its discretion by failing to make an adequate

inquiry into her ability to pay restitution. An order of restitution is within the trial court’s

discretion, and we will reverse only if the trial court abuses that discretion. Edsall v. State,

983 N.E.2d 200, 208 (Ind. Ct. App. 2013). A trial court abuses its discretion if its decision is

clearly against the logic and effects of the facts and circumstances before it or if it

misinterprets or misapplies the law. Gil v. State, 988 N.E.2d 1231, 1234 (Ind. Ct. App.

2013).


                                                3
       As a condition of probation, the trial court may require a person to

       Make restitution or reparation to the victim of the crime for damage or injury
       that was sustained by the victim. 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.

Ind. Code § 35-38-2-2.3(a)(6) (emphasis added). The statute does not outline any particular

procedure for determining a probationer’s ability to pay restitution, but Indiana courts have

consistently held that some form of inquiry is required. Kays v. State, 963 N.E.2d 507, 509

(Ind. 2012). This inquiry generally includes such factors as the probationer’s “financial

information, health, and employment history” and is necessary “in order to prevent indigent

defendants from being imprisoned because of their inability to pay.” Id. (citations omitted).

       Here, Jones testified that she is employed as a CNA and makes $10.46 per hour ($540

per two-week pay period). She works part-time, about twenty-four hours per week, because

she is taking classes to earn her bachelor’s degree and because she wants to avoid additional

childcare expenses for her three children. The children receive monthly social security death

benefits totaling $790. Jones also receives student loans, which she uses for “living expenses

and for books and tuition.” Tr. at 43. Additionally, the trial court questioned Jones

concerning her physical and mental health, focusing specifically on whether she had any

infirmities that would prevent her from working more hours if needed. The trial court

reminded her that in exchange for the State’s agreement to dismiss four of the five charges

against her, she had agreed to plead guilty to class A misdemeanor criminal mischief and to

pay restitution to her victim. In ordering restitution, the court reasoned,




                                              4
       Ms. Jones does not suffer from any physical disability or mental disability that
       would prevent her from paying nine hundred dollars ($900). That will be
       ordered over the course of probation. If she has to work extra hours to do it,
       she will work extra hours to do it. But the Court expects Ms. Jones to pay.
       She’s on probation for a year. She can pay ninety dollars ($90) a month, but
       she will pay it.

Id. at 47.

       In sum, the record reveals that the trial court conducted a sufficient inquiry into

Jones’s ability to pay. In other words, Jones’s counsel elicited testimony concerning her

finances and employment, and the trial court elicited testimony concerning her mental and

physical health. Subject to our resolution below concerning the amount of restitution

ordered, we find no abuse of discretion in the trial court’s determination that Jones had the

ability to incrementally pay restitution during the term of her probation.

                               II. Calculation of Restitution

       Jones also challenges the amount of restitution ordered by the trial court. When

calculating the amount of restitution, the trial court shall consider the “property damages of

the victim incurred as a result of the crime, based on the actual cost of repair (or replacement

if repair is inappropriate).” Ind. Code § 35-50-5-3(a)(1). A restitution order must be

supported by sufficient evidence of the crime victim’s actual loss. Gil, 988 N.E.2d at 1235.

“Evidence supporting a restitution order is sufficient if it affords a reasonable basis for

estimating loss and does not subject the trier of fact to mere speculation or conjecture.” S.G.

v. State, 956 N.E.2d 668, 683 (Ind. Ct. App. 2011) (citation and internal quotation marks

omitted), trans. denied. Where the evidence is insufficient to support the actual amount of

the victim’s loss, remand is appropriate. Iltzsch v. State, 981 N.E.2d 55, 56-57 (Ind. 2013).

                                               5
       Here, the evidence concerning Dunn’s actual loss consisted of a body shop repair

estimate. While the estimate delineated the damages to the various portions of the vehicle,

i.e., rear door, front door, front fender, wheel well, and hood, it did not specify the dollar

amounts attributable to the key scratches. The trial court and both parties acknowledged that

there was pre-existing damage to the vehicle. The eight photographs depict where the key

scratch damage was located, but they do not offer insight into the portion of the total estimate

that the body shop attributed to labor and supplies necessary to repair the specific damage

caused by Jones. Neither a body shop representative nor Dunn was present to elucidate.

       Instead, the trial court and counsel attempted to decipher the entries in the estimate

pertaining to labor hours, eyeballing the photos and then ballparking the amount attributable

to the key scratches. When the trial court first announced its conclusion that $1104 of the

$1337 was attributable to the key scratches, Jones objected. At that point, the State

suggested reducing the amount by “another two—three hundred dollars ($200-300).” Tr. at

39. Without any further examination of the exhibits, the trial court simply reduced the

restitution award to $900. When defense counsel indicated disagreement, the trial court

responded, “You do not agree, of course, you’re not going to agree to anything.” Id. As

Jones correctly asserts, by that point the process had “devolved into a negotiation” instead of

a thoughtful, evidence-based determination. Appellant’s Br. at 8.

       In short, the amount of the restitution order is improperly based on speculation.

Accordingly, we remand for a new hearing to determine the proper amount of restitution to

be ordered. In all other respects, we affirm.


                                                6
      Affirmed and remanded.

BAKER, J., and NAJAM, J., concur.




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