Jeremey Smith v. State of Indiana (mem. dec.) ( 2015 )

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