MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                          FILED
regarded as precedent or cited before any                May 16 2017, 10:21 am
court except for the purpose of establishing
                                                               CLERK
the defense of res judicata, collateral                    Indiana Supreme Court
                                                              Court of Appeals
estoppel, or the law of the case.                               and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Michael R. Fisher                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Jodi Kathryn Stein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Mindy Andrew,                                           May 16, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1610-CR-2399
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Marshelle
Appellee-Plaintiff.                                     Dawkins-Broadwell, Magistrate
                                                        Trial Court Cause No.
                                                        49G17-1603-CM-9442



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2399 | May 16, 2017   Page 1 of 12
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Mindy L. Andrew (Andrew), appeals the trial court’s

      restitution order following her conviction for criminal mischief, a Class A

      misdemeanor, Ind. Code § 35-43-1-2(a)(1).


[2]   We vacate the restitution order.


                                                   ISSUE
[3]   Andrew raises one issue on appeal, which we restate as follows: Whether the

      trial court abused its discretion by ordering Andrew to pay restitution as a

      condition of probation.


                      FACTS AND PROCEDURAL HISTORY
[4]   In February of 2016, Andrew was sporadically living with Douglas Polley

      (Polley), at his home in Indianapolis, Marion County, Indiana. During the

      early morning hours of February 21, 2016, Andrew was at Polley’s house, and

      the two became involved in a verbal argument. The verbal disagreement

      escalated to a physical confrontation and the destruction of property.


[5]   When the situation de-escalated, Andrew left and Polley called 9-1-1. Officer

      John Hertig (Officer Hertig) of the Indianapolis Metropolitan Police

      Department responded. When Officer Hertig arrived, he noted that Polley had

      several minor cuts. According to Polley, Andrew had pushed him into a glass

      coffee table, which shattered; thrown his cell phone into the aquarium; and had

      “trashed” his house. (Tr. Vol. II, p. 18). Officer Hertig observed that “[t]here

      Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2399 | May 16, 2017   Page 2 of 12
      were items throw[n] on the floor, several broken items. There was an organ

      right beside the door that was smashed. Multiple TVs that were smashed. And

      figurines and such.” (Tr. Vol. II, p. 30). Polley also informed Officer Hertig

      that he was unable to locate his nine-millimeter handgun. Polley reported the

      matter to his insurance company, and it was calculated that the damages

      exceeded Polley’s deductible of $1,240.


[6]   On March 16, 2016, the State filed an Information, charging Andrew with

      Count I, domestic battery, a Class A misdemeanor, I.C. § 35-42-2-1.3(a); Count

      II, battery resulting in bodily injury, a Class A misdemeanor, I.C. § 35-42-2-

      1(d)(1); Count III, theft, a Class A misdemeanor, I.C. § 35-43-4-2(a); and Count

      IV, criminal mischief, a Class A misdemeanor, I.C. § 35-43-1-2(a)(1). On

      September 1, 2016, the trial court conducted a bench trial. Upon motion by the

      State, the trial court dismissed Count I, domestic battery. At the conclusion of

      the evidence, the trial court found Andrew not guilty of Counts II and III,

      battery resulting in bodily injury and theft. However, the trial court found

      Andrew guilty of Count IV, criminal mischief, and entered judgment

      accordingly. On September 26, 2016, the trial court held a sentencing hearing.

      The trial court imposed a 365-day sentence, entirely suspended to probation.

      The trial court also ordered Andrew to pay restitution to Polley in the amount

      of his deductible—$1,240.


[7]   Andrew now appeals. Additional facts will be provided as necessary.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2399 | May 16, 2017   Page 3 of 12
                              DISCUSSION AND DECISION
[8]   Andrew claims that the trial court abused its discretion by ordering her to pay

      restitution to Polley as a condition of probation. Restitution orders are a matter

      of trial court discretion and are reviewed on appeal only for an abuse of such.

      Bell v. State, 59 N.E.3d 959, 962 (Ind. 2016). Pursuant to Indiana Code section

      35-38-2-2.3(a)(6), as a condition of probation, a trial court may require a

      defendant to

              [m]ake 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.


      Here, Andrew asserts that the trial court’s restitution order is unsupported by

      any evidence that she has the ability to pay $1,240 in restitution.


[9]   “[W]hen setting restitution as a condition of probation, our trial courts are

      required to consider the defendant’s ability to pay.” Bell, 59 N.E.3d at 963.

      This is to ensure that indigent defendants are not imprisoned for a probation

      violation based on a defendant’s inability to pay. Id. Indigent defendants are

      not per se precluded from paying restitution, so long as “the ability to pay is

      considered.” Id. While there is “no particular procedure” that the trial court

      “must follow in determining the defendant’s ability to pay, . . . some form of

      inquiry is required.” Id. “The trial court may consider factors such ‘as the

      defendant’s financial information, health, and employment history.’” Id.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2399 | May 16, 2017   Page 4 of 12
       (quoting Champlain v. State, 717 N.E.2d 567, 570 (Ind. 1999)). If neither the

       defendant nor the State provides evidence as to the defendant’s ability to pay,

       the trial court must “make the necessary inquiry to meet its statutory

       obligation.” Id. at 964. Where a defendant claims that she is unable to pay

       restitution, she bears the burden of providing evidence regarding such an

       inability to pay. “A bald claim of indigency, without more, is insufficient to

       preserve this issue for appeal.” Id. Once a defendant provides “information

       demonstrating an inability to pay, the burden properly shifts to the State to

       rebut the evidence of defendant’s inability to pay.” Id.


[10]   In this case, during the sentencing hearing, Andrew’s attorney briefly

       questioned Andrew regarding her ability to pay restitution. Andrew testified

       that she has never worked, has no source of income, and her family supports

       her. Andrew also has four children, who live with her father. Andrew stated

       that she had never worked as a result of a disability, which she described simply

       as “mental” and for which she sees “a therapist and psychiatrist” twice per

       month. (Tr. Vol. III, p. 13). 1 Andrew claimed that she had recently filed for

       disability benefits and that a hearing on the matter was scheduled for the

       following month. Thereafter, the trial court stated:

                 With respect to the restitution, all of the items, in my view, . . .
                 but for the gun, are fair game for restitution in this matter. . . .
                 Polley[] testified extensively about all of the various knick-knacks
                 and items in the home that were damaged. And with respect to


       1
           We note that, during the bench trial, Andrew expressly denied having any physical disabilities.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2399 | May 16, 2017                   Page 5 of 12
               the frames and planters and individual items, if you look at all of
               the photographs in this case, that were admitted, you can see all
               of these items that were damaged as part of the incident that took
               place. With respect to the gun, . . . Andrew was found not guilty
               as to that [C]ount [of theft]. I didn’t find that she was guilty as to
               that [C]ount. However, [Polley’s] total loss, according to, I
               believe, State’s Exhibit One (1) for this hearing, is over three
               thousand dollars ($3,000.00 USD) even if you take the six forty-
               nine ($649.00 USD) off of that [for the gun], it’s still more than
               his deductible. [Polley is] out of pocket the entire deductible
               amount, and his deductible was twelve forty ($1,240.00 USD).
               So, you’ve said that [Andrew] doesn’t work, and that she’s never
               worked, and she says that she’s never worked because of her
               disability, but she’s testified that she doesn’t actually receive
               disability; she’s applied for disability, and that she doesn’t receive
               it. That means to me that she’s not on disability, and she hasn’t
               been determined to be disabled. I am going to order restitution.
               I am going to order restitution for the one thousand two hundred
               and forty dollars ($1,240.00 USD).


       (Tr. Vol. III, pp. 19-20).


[11]   Accordingly, the trial court’s decision to order restitution was based on a

       determination that Andrew was capable of obtaining a source of income

       because she had not been declared disabled. While it is within the discretion of

       a trial court to discredit a witness, here, there was no evidence elicited to

       contradict Andrew’s testimony—however tenuous—that she had never worked

       and could not work because of a mental condition, and that a disability

       determination was pending. The simple determination that Andrew had not

       yet established that she was entitled to social security benefits based on a

       diagnosed disability did not satisfy the trial court’s statutory obligation to


       Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2399 | May 16, 2017   Page 6 of 12
       inquire into Andrew’s ability to pay prior to mandating restitution. Rather, it

       was incumbent upon the trial court to delve further into Andrew’s financial and

       health situations. See Kays v. State, 963 N.E.2d 507, 510 (Ind. 2012) (noting no

       inquiry was made as to the defendant’s education, work history, health, assets,

       or other financial information). While it was made clear that Andrew has never

       had employment in her thirty-five years of life and relies on support from her

       family, there was no inquiry into her expenses or living situation. Nor was

       there any questioning as to her educational background or experience or as to

       why her purported disability precludes her from seeking employment in any

       job. The trial court simply presumed that she could obtain employment to pay

       restitution but did not develop a record of such. See Bell, 59 N.E.3d at 966.


[12]   We recognize that Polley sustained a significant loss as a result of Andrew, and

       we agree with the State that voluntary unemployment should not relieve a

       criminal defendant of restitution. However, when Andrew presented testimony

       that she had no income and could not work due to a disability, in the absence of

       questioning by the State, the trial court should have made further inquiry in

       order to ascertain Andrew’s ability to pay before ordering restitution. The

       failure to do so was an abuse of discretion which requires us to vacate the

       restitution order. 2




       2
         In Bell, 59 N.E.3d at 966, our supreme court explained that in a situation where “the trial court fails to
       make any inquiry, and the defendant has also failed to provide any additional evidence as to the inability to
       pay,” remand is the appropriate remedy. However, as in the present case, “where the defendant has
       presented evidence demonstrating an inability to pay, the trial court has made no further inquiry, and the

       Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2399 | May 16, 2017               Page 7 of 12
                                                CONCLUSION
[13]   Based on the foregoing, we conclude that the trial court abused its discretion by

       ordering Andrew to pay restitution without ascertaining her ability to pay.


[14]   Vacated.


[15]   Najam, J. concurs


[16]   Bradford, J. concurs with separate opinion




       State has not rebutted the defendant’s testimony as to the inability to pay, we believe the most appropriate
       remedy is to vacate the restitution order.” Id.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2399 | May 16, 2017                Page 8 of 12
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Mindy Andrew,                                           [Add Hand-down date]
       Appellant-Defendant,                                    Court of Appeals Case No.
                                                               49A04-1610-CR-2399
               v.                                              Appeal from the Marion Superior
                                                               Court
       State of Indiana,                                       The Honorable Marshelle
       Appellee-Plaintiff.                                     Dawkins-Broadwell, Magistrate
                                                               Trial Court Cause No.
                                                               49G17-1603-CM-9442



       Bradford, Judge, concurring with opinion.


[17]   Given the Indiana Supreme Court’s holding in Bell v. State, 59 N.E.3d 959 (Ind.

       2016), I agree with the majority’s conclusion that the restitution order entered

       by the trial court must be vacated. However, I write separately to highlight the

       fact that Indiana law provides an avenue for trial courts to order restitution in

       cases where the defendant does not have the ability to pay said restitution.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2399 | May 16, 2017   Page 9 of 12
[18]   The imposition of a restitution order is a form of punishment and is as much a

       part of a criminal sentence as a fine or other penalty. Wininger v. Purdue Univ.,

       666 N.E.2d 455, 457 (Ind. Ct. App. 1996). Furthermore, “‘[t]he purpose

       behind an order of restitution is to impress upon the criminal defendant the

       magnitude of the loss he has caused and to defray costs to the victim caused by

       the offense.’” Rich v. State, 890 N.E.2d 44, 50 (Ind. Ct. App. 2008) (quoting

       Carswell v. State, 721 N.E.2d 1255, 1259 (Ind. Ct. App. 1999)).


[19]   “Restitution may be awarded as a condition of probation or as a part of a

       defendant’s sentence wholly apart from probation.” Baker v. State, 70 N.E.3d

       388, 392 (Ind. Ct. App. 2017) (citing Pearson v. State, 883 N.E.2d 770, 772 (Ind.

       2008)), trans. denied.


               When the trial court orders restitution as a condition of
               probation, the court is required to inquire into the defendant’s
               ability to pay. See Ind. Code § 35-38-2-2.3(a)(6) (“[w]hen
               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”). Where restitution is ordered as part of an
               executed sentence, an inquiry into the defendant’s ability to pay
               is not required. Pearson, at 773 (citing Shaffer v. State, 674 N.E.2d
               1, 9 (Ind. Ct. App. 1996)).


       Id.


[20]           A restitution order is a judgment lien that:
                    (1) attaches to the property of the person subject to the
                    order;
                    (2) may be perfected;

       Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2399 | May 16, 2017   Page 10 of 12
              (3) may be enforced to satisfy any payment that is
              delinquent under the restitution order by the person in
              whose favor the order is issued or the person’s
              assignee; and
              (4) expires;
        in the same manner as a judgment lien created in a civil
        proceeding.


Ind. Code § 35-50-5-3(b). In cases where a restitution order stems from a

criminal prosecution involving property damage,

        the court must base its restitution order upon a consideration of
        “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)] (emphasis
        supplied). The statutory language implies that the restitution
        order must reflect the actual loss sustained by the victim, Smith v.
        State, 471 N.E.2d 1245, 1248 (Ind. Ct. App. 1984) reh’g denied,
        trans. denied, and the amount of actual loss is a factual matter
        which can be determined only upon presentation of evidence. Id.
        Thus, the restitution order is the practical equivalent of a civil money
        judgment, and for purposes of the restitution statute, [Ind. Code §
        35-50-5-3], it substitutes for the civil judgment which is normally the
        basis for a judgment lien. Because the trial court must base its
        restitution order upon evidence of the crime victim's actual loss,
        the victim is not obliged to subsequently pursue an independent
        civil action for money damages to enforce the restitution order,
        when the sole purpose of such an action would be to establish the
        amount of its loss.


Wininger, 666 N.E.2d at 458 (first emphasis in original, second and third

emphases added).




Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2399 | May 16, 2017   Page 11 of 12
[21]   By ordering restitution as part of a defendant’s sentence, rather than as part of

       the defendant’s probation, the trial court eliminates the need for the court to

       determine that the defendant has the ability to pay the restitution order. It

       further elminiates the need for the victim of a crime to file the proceedings

       necessary for obtaining a civil judgment against the defendant. I believe that it

       would be prudent for a trial court to consider crafting a sentence in a manner

       that would make it as easy as possible for a victim of a crime to recover for the

       damages incurred as a result of crime committed against him.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2399 | May 16, 2017   Page 12 of 12
