Kyle R. Collins v. State of Indiana (mem. dec.) ( 2018 )

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