Olivia Covington for www.theindianalawyer.com
The Indiana Supreme Court has vacated an order a defendant pay restitution as a condition of probation after finding that the trial court failed to determine that the defendant did not have the ability to pay.
In the case of Cynthia Bell v. State of Indiana, 49S02-1609-CR-00511, Cynthia Bell was ordered to pay restitution to Kalencia Kirkland after Bell was convicted of criminal mischief as a Class B misdemeanor. In August 2014, Bell threw a brick through the window of Kirkland’s apartment and damaged her 2007 Kia Sportage.
After Bell’s sentencing, the trial court then conducted a separate restitution hearing. At that hearing, Bell told the court she had not had a job in more than 20 years and was supporting herself on monthly disability checks, which totaled $730 each month. After paying her bills, Bell testified that she had no money left over.
After Bell’s testimony, neither the state nor the court asked her further questions about her financial situation, and she was ordered to pay $20 a week or $80 a month to Kirkland up to a total of $9230.30 in restitution as part of her probation.
Bell then appealed to the Indiana Court of Appeals, arguing that the monthly payment exceeded what she would be able to afford. A majority of the appellate court affirmed the trial court’s restitution order, with Judge Terry Crone dissenting.
But in the opinion it handed down Thursday, the Indiana Supreme Court vacated the restitution order, writing that the trial court incorrectly determined that Bell could afford the monthly payment. The trial court was allowed to order restitution despite Bell being found indigent for other purposes, Justice Steve David wrote for the majority. However, the record did not reflect that Bell was actually able to make the ordered monthly payment, he wrote.
In her testimony during the restitution hearing, Bell told the court that she did not have a job or car and that any sort of monthly payment would be a real financial burden.
Based on that testimony, David wrote that it should have been clear to the trial court that Bell would be unable to make a monthly restitution payment. Further, David pointed to the fact that the state did not ask Bell any cross-examination questions after her testimony to refute her claims.
“While we are sympathetic to the victim of Bell’s offense, the trial court failed to engage in its statutorily required duty to determine that Bell could or would be able to pay, and Bell provided sufficient and unrebutted testimony that she did not have any additional income each month in order to make the ordered restitution payments,†David wrote.
Justice Geoffrey Slaughter dissented in part with the majority opinion, writing in a separate opinion that he would remand the case to allow the trial court to determine what Bell’s sentence should be if she cannot pay the restitution. However, Slaughter also wrote that he agreed that the trial court erred when it imposed the restitution order.
