Bell v. State, No. 49S02-1609-CR-00501, __ N.E.3d __ (Ind., Sept. 29, 2016).
A trial court must consider a defendant’s ability to pay before entering a restitution order after hearing testimony of inability to pay without rebutting evidence.
Indiana Code § 35-38-2-2.3(a)(6) allows a trial court to order a defendant to pay restitution to a victim as a condition of probation, but the defendant’s ability to pay must be considered before the order to pay restitution is entered. …
On August 4, 2014, Cynthia Bell arrived at the home of Kalencia Kirkland at 4:30 a.m. and began banging on the windows and doors of Kirkland’s apartment. When Kirkland looked out of the window of her home, she saw Bell beating and banging on her rental car, a 2013 Chevrolet Malibu. …
Bell was subsequently charged with Class B misdemeanor criminal mischief. The case proceeded to a bench trial, and Bell was found guilty as charged. Bell was sentenced to 180 days, with 178 days suspended. After sentencing, the trial court held a separate hearing to determine the amount of restitution Bell owed. …
Bell then testified as to her ability to pay. Bell explained that she had not worked in over twenty years and supports herself on monthly disability checks (SSI). Her monthly checks are $730.00. She uses that money to pay her rent, light bill, phone bill, dog expenses, food, and her own expenses. She has no money left over at the end of the month, and she also relies on food pantries. Bell has no money in the bank and no other assets. Neither the State nor the trial court asked Bell any further questions about her financial situation. The Court ultimately concluded that Bell owed $932.30 in restitution and had the ability to pay in weekly installments of $20.00 or monthly installments of approximately $80.00. The payment of restitution was ordered as a condition of Bell’s probation.
Bell appealed the ordered restitution, arguing that it exceeds what she can or will be able to pay, which is the standard set out in Indiana Code § 35-38-2-2.3(a)(6). …
A majority of the Court of Appeals affirmed the trial court, concluding that, based upon the record, it was not an abuse of discretion to determine that Bell could pay $20.00 per week or $80.00 per month in restitution.Bell v. State, No. 49A02-1504-CR-000234 (Ind. Ct. App. February 2, 2016). …
This Court now grants transfer, thereby vacating the opinion of the Court of Appeals. Ind. Appellate Rule 58(A).
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The Trial Court Abused Its Discretion by Failing to Consider Defendant’s Actual Ability to Pay