Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before May 31 2013, 9:27 am
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:
SUZY ST. JOHN GREGORY F. ZOELLER
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
ANDREW FALK
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LAWANDA WHITE, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1209-CR-713
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Linda E. Brown, Judge
The Honorable Steven Rubick, Commissioner
Cause No. 49F10-1111-CM-79131
May 31, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
LaWanda White was ordered to pay $875.82 in restitution after she told the trial court
she has two children, is not working, and is supported by her sister’s disability benefits. As
the trial court did not adequately inquire into her ability to pay restitution, we vacate the
restitution order and remand.1
FACTS AND PROCEDURAL HISTORY
White agreed to plead guilty to Class A misdemeanor, operating a vehicle while
intoxicated2, and the trial court ordered her to pay $875.82 in restitution for expenses incurred
in treating injuries to her arresting officer. At the guilty plea and sentencing hearing, White
agreed to 363 days probation. After the court went through the details of the sentence and
conditions of probation, White’s counsel said “Your Honor on the Restitution, the Probation,
there’s a statute about Restitution ordered as a condition of probation that states that as a
condition of probation, a defendant may be ordered to make restitution[.]” (Tr. at 15-16.)
Counsel then noted “[w]hen restitution is a condition of probation” the amount of restitution
may not exceed what the person will be able to pay. (Id. at 16.) Counsel asked the court “I
was wondering if you could take some evidence on her ability to pay since this is a restitution
ordered as a condition of her probation.” (Id.) (emphasis added). The court replied
“Certainly,” (id.), and proceeded to do so.
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White also argues the restitution order is error because it does not identify the manner of payment or the
timeframe during which she must pay. The State concedes that was an abuse of discretion and remand is
warranted so the trial court may fix the manner of performance.
2
Ind. Code § 9-30-5-2.
2
White testified she was not working, she had two children, she lived with her mother
and sister, and her “basics” were paid by her sister’s disability benefits. (Id. at 17.) She
testified she had no other income and is not on disability herself. The trial court then found
White was “able to pay the restitution and the fines and fees assessed” because she was “not
under disability that prevents her from working.” (Id.)
DISCUSSION AND DECISION
An order of restitution is a matter within the trial court’s discretion. Sickels v. State,
982 N.E.2d 1010, 1013 (Ind. 2013). Accordingly, we reverse only on a showing of abuse of
discretion, which occurs when the trial court’s decision is clearly against the logic and effect
of the facts and circumstances before it. Id.
“When restitution . . . 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. The statute sets forth no particular procedure the
trial court must follow in determining the defendant’s ability to pay, but some form of inquiry
is required. Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012). The consideration of a
defendant’s ability to pay includes such factors as the defendant’s financial information,
health, and employment history. Id. The inquiry is necessary in order to prevent indigent
defendants from being imprisoned because of their inability to pay. Id. at 510.
White’s restitution order was an abuse of discretion, as the trial court’s inquiry into
her ability to pay was inadequate. In Kays, our Supreme Court remanded when the record
was
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at best ambiguous as to whether the trial court performed the necessary
inquiry. It is clear that the trial court knew that Kays did not work and
received social security disability benefits of $674.00 per month. It is also
apparent from the trial court record that Kays had an ownership interest in the
house she lived in. However, the presentence investigation report includes no
evidence of Kays’ education, work history, health, assets, or other financial
information -- nor did the trial court make any inquiry in this regard. Our
decisions envision at least a minimal inquiry into the defendant’s ability to pay
restitution, which is absent here.
Id.
The case before us is similar. As in Kays, the trial court knew White was not working.
White, like Kays, was supported by disability benefits, but they were not her own – they
were her sister’s. Kays had her own income in the form of disability benefits of $674 per
month and she had an ownership interest in the house where she lived. In the case before us,
by contrast, there was no evidence White had any income of her own or had any interest in
real estate. As in Kays there was no evidence of White’s education, work history, health,
assets, or other financial information. The restitution order appears to be premised solely on
the trial court’s determination White was not herself disabled. We agree with White that the
restitution order must be vacated and the case remanded for “a meaningful inquiry into ability
to pay.” (Br. of Appellant at 4.)
The State notes White’s “basics were already covered by her sister’s disability income
and her housing arrangements with her mother,” and White was “capable of working.” (Br.
of Appellee at 7.) The State further speculates White could spread the payments “out over
the fifty-two weeks of her probation” and need not complete her payment by the end of the
probationary term. Therefore, the State asserts, the amount she was required to repay was
4
“reasonable.” (Id.)
The question before us is the adequacy of the trial court’s inquiry, and not whether the
restitution amount was “reasonable.” We therefore decline to affirm on that ground. The
trial court did not conduct the “at least . . . minimal inquiry” required by Kays, 963 N.E.2d at
510, and we must therefore remand for further proceedings consistent with this opinion.
Remanded.
BAKER, J., and MATHIAS, J., concur.
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