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.
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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
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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.
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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.
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(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.
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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
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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
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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.
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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.
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[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;
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(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).
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[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.
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Mindy Andrew v. State of Indiana (mem. dec.)
Combined Opinion