Shamberley Jones v. State of Indiana ( 2013 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Dec 23 2013, 5:54 am
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:
PATRICIA CARESS McMATH GREGORY F. ZOELLER
Appellate Clinic Attorney General of Indiana
Indiana University Robert H. McKinney
School of Law MICHAEL GENE WORDEN
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
ROSE SHINGLEDECKER
Certified Legal Intern
IN THE
COURT OF APPEALS OF INDIANA
SHAMBERLEY JONES, )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1305-CR-231
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Clayton Graham, Judge
Cause No. 49G17-1211-FD-80772
December 23, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Shamberley Jones pled guilty to class A misdemeanor criminal mischief stemming
from an incident in which she damaged the exterior of her ex-husband’s vehicle with her
keys. The trial court placed her on probation and ordered her to pay $900 in restitution. She
now appeals, challenging both the sufficiency of the trial court’s inquiry into her ability to
pay and its calculation of restitution damages. Finding that the trial court conducted a
sufficient inquiry concerning Jones’s ability to pay, we affirm its decision to impose
restitution. Finding that the calculation was speculative, we remand for a recalculation of
restitution damages.
Facts and Procedural History
On October 16, 2012, Jones and her ex-husband Timothy Dunn had a fight at Dunn’s
home. When she was leaving, Jones used her car keys to scratch the driver’s side of Dunn’s
vehicle. The State subsequently charged Jones with class D felony residential entry, class D
felony theft, class A misdemeanor domestic battery, class A misdemeanor battery, and class
A misdemeanor criminal mischief. Jones agreed to plead guilty to class A misdemeanor
criminal mischief and pay restitution for the damage to Dunn’s vehicle in exchange for the
State dismissing the remaining charges and placing her on probation.1
The trial court conducted two restitution hearings. Dunn did not appear at either
hearing. The trial court inquired regarding Jones’s physical and mental health and work
1
Jones’s probation was to be non-reporting probation, with termination of probation upon payment of
the court-ordered restitution.
2
capabilities. Jones also testified regarding her employment as a certified nursing assistant
(“CNA”), her wages and sources of income, childcare expenses, educational status, and
student loans. The State introduced eight photographs of Dunn’s vehicle as well as a repair
estimate from a body shop for $1337.10. The photographs showed the key marks and
scratches as well as some pre-existing damage. The estimate was broken down into body
labor, paint labor, clearcoat labor, and supplies to repair each of the doors, the fender, and the
hood. It did not specify the sums attributable to the key scratches and those attributable to
pre-existing damage. Noting that Jones should not be held responsible for prior damage to
the vehicle, the trial court examined the photos and estimate together and arrived at a
restitution amount of $1104. Jones objected, and the trial court further reduced the amount to
$900. Jones now appeals the trial court’s decision to order restitution as well as the amount
of the restitution order. Additional facts will be provided as necessary.
Discussion and Decision
I. Ability to Pay
Jones contends that the trial court abused its discretion by failing to make an adequate
inquiry into her ability to pay restitution. An order of restitution is within the trial court’s
discretion, and we will reverse only if the trial court abuses that discretion. Edsall v. State,
983 N.E.2d 200, 208 (Ind. Ct. App. 2013). A trial court abuses its discretion if its decision is
clearly against the logic and effects of the facts and circumstances before it or if it
misinterprets or misapplies the law. Gil v. State, 988 N.E.2d 1231, 1234 (Ind. Ct. App.
2013).
3
As a condition of probation, the trial court may require a person to
Make 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.
Ind. Code § 35-38-2-2.3(a)(6) (emphasis added). The statute does not outline any particular
procedure for determining a probationer’s ability to pay restitution, but Indiana courts have
consistently held that some form of inquiry is required. Kays v. State, 963 N.E.2d 507, 509
(Ind. 2012). This inquiry generally includes such factors as the probationer’s “financial
information, health, and employment history” and is necessary “in order to prevent indigent
defendants from being imprisoned because of their inability to pay.” Id. (citations omitted).
Here, Jones testified that she is employed as a CNA and makes $10.46 per hour ($540
per two-week pay period). She works part-time, about twenty-four hours per week, because
she is taking classes to earn her bachelor’s degree and because she wants to avoid additional
childcare expenses for her three children. The children receive monthly social security death
benefits totaling $790. Jones also receives student loans, which she uses for “living expenses
and for books and tuition.” Tr. at 43. Additionally, the trial court questioned Jones
concerning her physical and mental health, focusing specifically on whether she had any
infirmities that would prevent her from working more hours if needed. The trial court
reminded her that in exchange for the State’s agreement to dismiss four of the five charges
against her, she had agreed to plead guilty to class A misdemeanor criminal mischief and to
pay restitution to her victim. In ordering restitution, the court reasoned,
4
Ms. Jones does not suffer from any physical disability or mental disability that
would prevent her from paying nine hundred dollars ($900). That will be
ordered over the course of probation. If she has to work extra hours to do it,
she will work extra hours to do it. But the Court expects Ms. Jones to pay.
She’s on probation for a year. She can pay ninety dollars ($90) a month, but
she will pay it.
Id. at 47.
In sum, the record reveals that the trial court conducted a sufficient inquiry into
Jones’s ability to pay. In other words, Jones’s counsel elicited testimony concerning her
finances and employment, and the trial court elicited testimony concerning her mental and
physical health. Subject to our resolution below concerning the amount of restitution
ordered, we find no abuse of discretion in the trial court’s determination that Jones had the
ability to incrementally pay restitution during the term of her probation.
II. Calculation of Restitution
Jones also challenges the amount of restitution ordered by the trial court. When
calculating the amount of restitution, the trial court shall consider the “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). A restitution order must be
supported by sufficient evidence of the crime victim’s actual loss. Gil, 988 N.E.2d at 1235.
“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.” S.G.
v. State, 956 N.E.2d 668, 683 (Ind. Ct. App. 2011) (citation and internal quotation marks
omitted), trans. denied. Where the evidence is insufficient to support the actual amount of
the victim’s loss, remand is appropriate. Iltzsch v. State, 981 N.E.2d 55, 56-57 (Ind. 2013).
5
Here, the evidence concerning Dunn’s actual loss consisted of a body shop repair
estimate. While the estimate delineated the damages to the various portions of the vehicle,
i.e., rear door, front door, front fender, wheel well, and hood, it did not specify the dollar
amounts attributable to the key scratches. The trial court and both parties acknowledged that
there was pre-existing damage to the vehicle. The eight photographs depict where the key
scratch damage was located, but they do not offer insight into the portion of the total estimate
that the body shop attributed to labor and supplies necessary to repair the specific damage
caused by Jones. Neither a body shop representative nor Dunn was present to elucidate.
Instead, the trial court and counsel attempted to decipher the entries in the estimate
pertaining to labor hours, eyeballing the photos and then ballparking the amount attributable
to the key scratches. When the trial court first announced its conclusion that $1104 of the
$1337 was attributable to the key scratches, Jones objected. At that point, the State
suggested reducing the amount by “another two—three hundred dollars ($200-300).” Tr. at
39. Without any further examination of the exhibits, the trial court simply reduced the
restitution award to $900. When defense counsel indicated disagreement, the trial court
responded, “You do not agree, of course, you’re not going to agree to anything.” Id. As
Jones correctly asserts, by that point the process had “devolved into a negotiation” instead of
a thoughtful, evidence-based determination. Appellant’s Br. at 8.
In short, the amount of the restitution order is improperly based on speculation.
Accordingly, we remand for a new hearing to determine the proper amount of restitution to
be ordered. In all other respects, we affirm.
6
Affirmed and remanded.
BAKER, J., and NAJAM, J., concur.
7