Kyle R. Collins v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 25, 2018
• Docket: 18A-CR-99
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 25 2018, 9:21 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Stacy R. Uliana Curtis T. Hill, Jr. Bargersville, Indiana Attorney General of Indiana

Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kyle R. Collins, June 25, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-99 v. Appeal from the LaGrange Superior Court. State of Indiana, The Honorable Lisa M. Bowen- Slaven, Judge. Appellee-Plaintiff. Trial Court Cause No. 44D01-1502-F5-4

Friedlander, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 18A-CR-99 | June 25, 2018 Page 1 of 5 [1] Kyle R. Collins was placed on probation after he pled guilty to and was

convicted of Level 6 felony receiving stolen auto parts. Collins was required to

pay restitution to his victim as a condition of his probation. On appeal, Collins

challenges the trial court’s restitution order, arguing both that the evidence is

insufficient to sustain the order and that the trial court erred by failing to make

an inquiry into his ability to pay. We affirm in part, reverse in part, and

remand to the trial court for further proceedings.

[2] On September 14, 2014, Collins broke into a salvage yard and stole a 1995 Ford

Ranger that the vehicle’s owner had taken to the facility for repairs. Collins

rammed the truck through the locked front gate of the facility and drove it to his

home where he bragged that he had stolen it from the salvage yard. Collins

subsequently attempted to disguise the truck’s appearance before ultimately

setting it on fire and destroying it completely.

[3] On February 26, 2015, the State charged Collins with Level 5 felony burglary,

Level 6 felony auto theft, Level 6 felony arson, and Level 6 felony criminal

mischief. Collins subsequently agreed to plead guilty to an amended charge of

Level 6 felony receiving stolen auto parts. In exchange, the State agreed to

dismiss the remaining charges. The parties’ agreement also provided for the

payment of restitution.

[4] On January 25, 2017, the trial court accepted the parties’ plea agreement and

sentenced Collins to a term of two and one-half years with six months

suspended to probation. The trial court also issued a probation order which,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-99 | June 25, 2018 Page 2 of 5 among other things, indicated that Collins was to pay restitution and provided

the manner in which restitution was to be paid. The probation order further

indicated that the amount of restitution would be determined by the trial court

at a later date.

[5] The trial court conducted a restitution hearing on November 16, 2017. During

this hearing, Ann Fleck, the Victim’s Advocate for the LaGrange County

Prosecutor’s Office, testified that the victim requested restitution in the amount

of $3000. In support of this request, the victim indicated that he had paid $1500 1 for the truck and had made over $1600 in improvements to it. Fleck, however,

also testified that her immediate predecessor had conducted research relating to 2 the value of the truck. This research revealed that the Kelley Blue Book value

of the truck was $1320. On December 12, 2017, the trial court ordered Collins

to pay restitution in the amount of $1320.

1. Order to Pay Restitution [6] In sentencing a criminal defendant, a trial court may order the defendant to

“[m]ake restitution … to the victim of the crime for damage … that was

sustained by the victim.” Ind. Code § 35-38-2-2.3(a)(6) (2013). “An order of

restitution is as much a part of a criminal sentence as a fine or other penalty.”

1 These improvements included new rims and tires; a stereo, amplifier, and speakers; a cab for the truck bed; and a new windshield. 2 The Kelley Blue Book has been used since 1926 as a resource used to find the value of a vehicle. See www.kbb.com (last visited June 12, 2018).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-99 | June 25, 2018 Page 3 of 5 Bell v. State, 59 N.E.3d 959, 962 (Ind. 2016) (internal quotation and brackets

omitted). The imposition of restitution falls “within the trial court’s discretion,

and we will reverse only on a showing of abuse of discretion.” Garcia v. State,

47 N.E.3d 1249, 1252 (Ind. Ct. App. 2015), trans. denied. “An abuse of

discretion occurs when the trial court’s decision is against the logic and effect of

the facts and circumstances before it.” Id.

[7] “A restitution order must be supported by sufficient evidence of actual loss

sustained by the victim of a crime.” Id. “Evidence supporting a restitution

order is sufficient if it affords a reasonable basis for estimating loss and does not

subject the trier of fact to mere speculation or conjecture.” Id. (internal

quotation omitted). We do not require mathematical certainty, rather only that

the “the amount must be supported by the evidence in the record.” See Cty.

Contractors, Inc. v. A Westside Storage of Indpls., Inc., 4 N.E.3d 677, 694 (Ind. Ct.

App. 2014). We will affirm the trial court’s decision regarding the amount of

restitution to be paid if there is any evidence supporting the decision. Smith v.

State, 990 N.E.2d 517 (Ind. Ct. App. 2013), trans. denied.

[8] We have previously concluded that evidence indicating the Kelley Blue Book

value of a vehicle is sufficient to prove the vehicle’s value. See Jasinski v. Brown,

3 N.E.3d 976 (Ind. Ct. App. 2013) (finding that evidence that the Kelley Blue

Book value of the vehicle was sufficient to sustain an award of damages). In

this case, an employee of the LaGrange County Prosecutor’s Office researched

the value of the truck in question and found that its Kelley Blue Book value was

$1320. The trial court, acting as the trier-of-fact found this valuation to be

Court of Appeals of Indiana | Memorandum Decision 18A-CR-99 | June 25, 2018 Page 4 of 5 credible and we will not disrupt this finding on appeal. See Smith, 990 N.E.2d

517.

2. Hearing on Ability to Pay [9] The probation order expressly stated that Collins was to pay restitution, the

amount of which would be determined by the trial court at a later date. The

explicit mention of restitution in the probation order leaves one with the firm

impression that the payment of restitution was a condition of Collins’s

probation. The State concedes that a trial court must inquire about a

defendant’s ability to pay before requiring the payment of restitution as a 3 condition of probation. See generally, Pearson v. State, 883 N.E.2d 770 (Ind.

2008) (providing that “when restitution is ordered as a condition of probation,

the court is required to inquire into the defendant’s ability to pay”). It is

undisputed that in this case the trial court did not do so. As such, we reverse

and remand to the trial court with instructions to inquire into Collins’s ability to

pay.

[10] The judgment of the trial court is affirmed in part, reversed in part, and

remanded with instructions.

Baker, J., and Barnes, Sr. J., concur.

3 The State correctly asserts that when restitution is entered as a civil judgment, “no inquiry into the ability to pay is required because … a defendant cannot be imprisoned for non-payment.” Bell, 59 N.E.3d at 963.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-99 | June 25, 2018 Page 5 of 5