Jeremey Smith v. State of Indiana (mem. dec.)

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Oct 16 2015, 7:57 am this Memorandum Decision shall not be 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 Suzy St. John Gregory F. Zoeller Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jeremey Smith, October 16, 2015 Appellant-Defendant, Court of Appeals Case No. 49A05-1502-CR-58 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Allan Reid, Appellee-Plaintiff Commissioner Trial Court Cause No. 49F10-1404-CM-17368

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1502-CR-58 | October 16, 2015 Page 1 of 4 Case Summary [1] Jeremey Smith (“Smith”) appeals a restitution order entered following his

convictions of Battery, as a Class A misdemeanor, 1 and Criminal Mischief, as a

Class B misdemeanor. 2 Smith presents the sole issue of whether the order was

entered without statutory compliance. We reverse and remand the restitution

order.

Facts and Procedural History [2] On March 21, 2014, Rickey Jolly (“Jolly”) approached his vehicle in a

WalMart parking lot and was confronted by his brother-in-law, Smith,

regarding Jolly’s alleged mistreatment of Smith’s sister. Smith punched Jolly in

the face and threw down Jolly’s cell phone, breaking the screen.

[3] Smith was arrested, charged with Battery and Criminal Mischief, and convicted

of those charges at the conclusion of a bench trial. He received an aggregate

sentence of one year, with 363 days suspended to probation. Smith was also

ordered, as a condition of probation, to pay Jolly $150.00 for the cell phone

replacement plan deductible. Smith was found to be indigent for purposes of

fines and court costs. This appeal ensued.

1 Ind. Code § 35-42-2-1. 2 I.C. § 35-43-1-2.

Court of Appeals of Indiana | Memorandum Decision 49A05-1502-CR-58 | October 16, 2015 Page 2 of 4 Discussion and Decision [4] Indiana Code Section 35-38-2-2.3(a)(6) provides that the court may require, as a

condition of probation, that a person make restitution to the victim of the crime.

The court must “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.” Id. The

statute does not set forth a 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). Ability to pay

includes such factors as the defendant’s financial information, health, and

employment history. Id. The purpose of this requirement is to prevent indigent

defendants from being imprisoned because of their inability to pay. Id.

[5] The State concedes that the trial court’s restitution order in this case does not

fix the manner of performance. However, the State contends that remand

should be solely to fix payment terms because the trial court was sufficiently

apprised of Smith’s financial condition when defense counsel argued that

probation was too restrictive because Smith had five children and was

employed part-time. The State also argues: “a $150 restitution judgment is

insubstantial, relative to the judgments seen in the case law.” (Appellee’s Br. At

5.) We are not persuaded that $150 is “insubstantial” or insignificant to an

indigent defendant. Moreover, we are not free to disregard the requirement that

the trial court make a specific inquiry into the defendant’s ability to pay. We

remand to the trial court for a determination of Smith’s ability to pay restitution

and a determination of the manner of performance.

Court of Appeals of Indiana | Memorandum Decision 49A05-1502-CR-58 | October 16, 2015 Page 3 of 4 [6] Reversed and remanded.

Baker, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1502-CR-58 | October 16, 2015 Page 4 of 4