MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Feb 02 2016, 9:09 am
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
Victoria L. Bailey Gregory F. Zoeller
Marion County Public Defender Agency Attorney General
Indianapolis, Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cynthia Bell, February 2, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1504-CR-234
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Amy Jones
Appellee-Plaintiff The Honorable Tom Hirschauer,
Judge Pro Tempore
Trial Court Cause No.
49G08-1408-CM-39656
Vaidik, Chief Judge.
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Case Summary
[1] Cynthia Bell was ordered to pay $932.30 in restitution as a condition of her
probation after she was convicted of Class B misdemeanor criminal mischief for
vandalizing two cars. The trial court heard testimony on Bell’s financial
circumstances, including that she receives $730 per month from Social Security
and that this sum is enough to pay her necessities and some personal expenses.
The trial court ordered that the restitution be paid in $20-per-week installments
to be consistent with Bell’s limited income. We conclude, therefore, that it was
not an abuse of discretion for the trial court to determine that Bell will be able
to pay for the damage she caused and to order restitution as a condition of
probation.
Facts and Procedural History
[2] At 4:30 a.m. on August 4, 2014, Cynthia Bell was banging on the front door of
Kalencia Kirkland’s home and shouting to be let into the house. When
Kirkland looked out the window, she saw Bell vandalizing her rental car, a
Chevy Malibu. Kirkland called the police, but Bell slashed one of the Malibu’s
tires and left before officers arrived. Shortly after the officers left Kirkland’s
house, Bell returned and threw a brick at the house, breaking the bedroom
window. Once again, Kirkland called the police. Indianapolis Metropolitan
Police Department Officer Martin Koeller arrived at Kirkland’s house shortly
after 6:00 a.m., saw the broken window, but did not find Bell. After Officer
Koeller left, Bell returned to Kirkland’s house a third time. Bell slashed a tire,
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broke a mirror, and did other body damage to Kirkland’s personal car, a Kia
Sportage.
[3] The State charged Bell with Class B misdemeanor criminal mischief. She was
convicted at a bench trial and sentenced to 180 days, 178 days suspended to
probation and given credit for two days as time served. In addition, Bell was
ordered to pay restitution as a condition of her probation and a restitution
hearing was scheduled.
[4] During the restitution hearing, Kirkland presented an estimate to fix the Kia,
which totaled $912.30, and a receipt for $20 to plug the slashed tires. Kirkland
also presented estimates for replacing the broken bedroom window and for
replacing the tires on the Malibu. However, the charging information did not
include the bedroom window and Kirkland did not replace the tires on the
Malibu—she paid a fee to Enterprise, the rental company, and lost the receipt
for that fee. Bell testified that she receives $730 per month in Social Security
Disability income. From this income, Bell pays her rent, utilities, expenses for
her dog, and her personal expenses. The trial court found that $932.30 in
restitution was due to Kirkland and that Bell had the ability to pay that amount
based on her testimony that she has enough money to pay her own living
expenses. The court determined that restitution could be paid at a rate of $20
per week over the course of a year. Bell appeals the order of restitution.
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Discussion and Decision
[5] Bell argues that the trial court abused its discretion by ordering her to pay
$932.30 in restitution because the amount is in excess of what she can or will be
able to pay. When 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, and shall fix the manner of performance.” Ind. Code § 35-38-2-
2.3(a)(6). Although the trial court must determine the defendant’s ability to pay
the amount of restitution ordered, the statute does not specify the extent to
which the court must inquire into the defendant’s financial status. Smith v.
State, 990 N.E.2d 517, 522 (Ind. Ct. App. 2013), trans. denied. Therefore, a
restitution order is a matter within the trial court’s discretion, and we reverse
only on a showing of abuse of that discretion. Id. at 520. An abuse of
discretion occurs when the order is clearly against the logic and effect of the
facts and circumstances before the court or the reasonable, probable, and actual
deductions to be drawn therefrom. Id.
[6] Bell presented her own testimony regarding her financial circumstances which
included the facts that she has $730 per month in income, and that this income
is sufficient to pay for her rent, utilities, a dog and her personal expenses. The
trial court concluded that Bell had money for things beyond the barest
necessities and, therefore, she could afford a small payment toward the total
cost of restitution each month. See Tr. p. 30. Based on the record before us, we
cannot say that ordering Bell to pay $20 per week is “clearly against the logic
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and effect of the facts and circumstances before the court[.]” See Smith, 990
N.E.2d at 520.
[7] We conclude, therefore, that the trial court did not abuse its discretion when it
ordered Bell to pay restitution as a condition of her probation.
[8] Affirmed.
Bailey, J., concurs.
Crone, J., dissents with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Cynthia Bell, Court of Appeals Case No.
49A02-1504-CR-234
Appellant-Defendant,
Appeal from the Marion County
v. Superior Court
The Honorable Amy M. Jones,
State of Indiana, Judge
Appellee-Plaintiff. The Honorable Tom Hirschauer,
Judge Pro Tempore
Trial Court Cause No.
49G08-1408-CM-39656
Crone, Judge, dissenting.
[9] I respectfully disagree with the majority’s conclusion that the trial court did not
abuse its discretion when it ordered Bell to pay $932.30 ($20 per week) in
restitution as a condition of probation. As noted by the majority, before
entering a restitution order, the trial court “must determine the defendant’s
ability to pay the amount of restitution ordered” and the amount ordered “may
not exceed an amount the person can or will be able to pay.” Slip op. at 2.
Understandably, the trial court has discretion in the matter; however, such
discretion is not without limits.
[10] The entirety of the testimony related to Bell’s ability to pay was as follows:
MR. DOANE: Miss Bell are you currently working?
DEFENDANT: No.
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THE COURT: Ma’am you’re probably going to have to talk
up. I talk real loud.
DEFENDANT: I have a cold. I didn’t want to-
THE COURT: I appreciate that. I just got to be able to hear
you and record you.
DEFENDANT: Yeah…no I’m not working.
MR. DOANE: And when was the last time you[] worked?
DEFENDANT: Over twenty years.
MR. DOANE: So how are you supporting yourself?
DEFENDANT: I get disability…SSI
MR. DOANE: And when do you get those checks?
DEFENDANT: On the 1st.
MR. DOANE: The first of the month?
DEFENDANT: Yes.
MR. DOANE: And how much are those checks for?
DEFENDANT: $730.00.
MR. DOANE: And what do you use that $730.00 to pay for?
DEFENDANT: I pay my rent. I pay my light bill. I pay my
phone bill. I pay for my dog’s expense, my
expense and eating expense and I’m done.
MR. DOANE: Now after you pay all those things how much
money is left over?
DEFENDANT: I have none.
MR. DOANE: Are you using food pantries for food right
now?
DEFENDANT: Yes I am.
MR. DOANE: And how much money do you have in the
bank?
DEFENDANT: I don’t have anything in the bank.
MR. DOANE: Do you have money anywhere else?
DEFENDANT: No.
MR. DOANE: Would it be safe to say you’re living
paycheck to paycheck right now?
DEFENDANT: Yes I am.
MR. DOANE: And you don’t anticipate your financial
situation changing in the future?
DEFENDANT: I have no idea. I don’t know (inaudible). I
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don’t know. So far it hasn’t.
MR. DOANE: And you don’t have any…you don’t have a
car?
DEFENDANT: No.
MR. DOANE: You don’t have any assets?
DEFENDANT: No.
MR. DOANE: And any sort of money you’d have to pay
would be a real financial hardship for you?
DEFENDANT: Yeah very much.
MR. DOANE: No further questions, Judge.
THE COURT: State cross.
[THE STATE]: I have no questions.
Tr. at 76-77. Based upon this, and only this, evidence as to Bell’s ability to pay,
the trial court found:
THE COURT: I’m aware of the statute as well as the case
law. I’m not finding her indigent as to this. I do believe that
although she has a limited income, when you break it you buy it
and I believe she broke it and when you break it you buy it and I
recognize that that’s going to make life hard for a while but that’s
life. You’ve been found indigent. You’ve gotten…you’ve
received free legal counsel, I’ll tell you he’s done a very good job
for you. I can tell you that my firm to represent you in a matter
like this probably would’ve run you about five grand. You go
beyond that and think about the fact that you know, you’re also
getting appellate costs for free. I do believe that your indigency
status…I believe that you are capable of making this restitution
over time. You have time through probation and although there
are other things that and other services that you have received
that might disagree with that, my rule as to the…I will make a
record. You make $730.00 a month. You have not worked for
the last twenty years but you talked about in your monthly
expenses your own spending money and other spending money.
I couldn’t tell if it was a pet or if it was a family member and I
apologize for that but you’ve been talking softly so there is…you
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have money that you spend on things other than lights and your
house and at this point you broke her car and I think that you’re
going to have to live a little bit thinner…I am aware that there is
case law as well as statutory authority that says if she’s truly
indigent, restitution cannot be appropriately awarded by the
Court. I am not finding her indigent as it relates to restitution.
Id. at 82-83.
[11] Based upon this record, I fail to see any evidence before the trial court that
could support a conclusion that Bell, an indigent defendant, has the ability to
pay $20 per week in restitution. The State had an opportunity to develop the
evidence regarding her actual expenses yet specifically declined to do so.
Similarly, the trial court made no inquiry. The trial court’s comments regarding
Bell’s indigency are inconsistent at best and suggest that Bell had already
received enough benefit from her indigency and should therefore be liable for
restitution regardless of her ability to pay. While I am not unsympathetic to the
victim’s economic losses, in my view, the trial court’s order is clearly against
the logic and effect of the facts and circumstances before the court.1 Therefore,
I would reverse the trial court’s restitution order.
1
The victim in this case is left with the option to pursue civil processes to seek redress for her losses.
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