KING v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Blaine A. King pleaded guilty to Level 5 felony operating a vehicle with an alcohol concentration equivalent (“ACE”) to at least 0.08 gram of alcohol per 100 milliliters of blood causing serious bodily injury.¹ The trial court imposed a five-year sentence and ordered King to pay over $100,000 in restitution. On appeal, King argues that the trial court abused its discretion in ordering the probation department to fix the amount and manner of performance of restitution. We agree and therefore remand with instructions to amend the sentencing order accordingly.

Facts and Procedural History

[2] In October 2023, King's vehicle struck a vehicle driven by Rajiyah Townsend, who suffered multiple broken bones and spent over ten days in the hospital. A blood draw revealed that King's ACE was 0.138 gram of alcohol to 100 milliliters of blood. The State charged King with three counts, including the abovementioned Level 5 felony, to which he agreed to plead guilty in exchange for the dismissal of the remaining counts. King's plea agreement left sentencing to the trial court's discretion and stated that “restitution shall be ordered for all charged offenses.” Appellant's App. Vol. 2 at 73. The trial court took King's plea under advisement. The State filed a restitution memorandum and Townsend's claim form, which was attached to copies of her medical bills and requested restitution in the amount of $113,148.52.²

[3] The trial court ultimately accepted King's plea and held a sentencing hearing in January 2025. The court asked if counsel had conferred “about this restitution issue[.]” Tr. Vol. 2 at 49. King's public defender replied, “I did review it with my client and we are not objecting. He's in agreement to pay what he can.” Id. The court stated, “Then we'll note that the Court will enter a Restitution Order in [the] amount based upon the Restitution Memo[.]” Id. at 49-50. The court sentenced King to five years, consisting of two years in the Department of Correction, one year in community corrections, and two years of probation.

[4] At the conclusion of the hearing, King's public defender asked the court, “How do you want to address repayment because right now [King] would be indigent and obviously I don't, do you want to wait until he's back on Community Corrections or Probation to figure out how much he can pay?” Id. at 73. The court replied,

Make payment arrangements through Probation. I understand that even within the two years of Probation he's not gonna be able to get a hundred and some thousand dollars paid, but he ought to enter into some kind of payment arrangement. But I don't know what his employment will be and I don't know what his finances will be. So, I usually leave that up to Probation. Payment arrangements to be made through Probation.

Id. at 73-74.

[5] The trial court's written sentencing order states in pertinent part,

IT IS FURTHER ORDERED AND ADJUDGED that the Defendant pay restitution for the benefit of the victim in the amount of $113,148.52 (See Restitution Order[.]) Payment arrangements for restitution shall be made through the Probation Department.

Appealed Order at 3. The restitution order directs King to pay $113,148.52 to Townsend via the trial court clerk. Appellant's App. Vol. 2 at 148. Finally, the statement of King's probation conditions provides in pertinent part, “I shall complete all financial obligations (restitution, fines, court costs, probation fees) as ordered by the Court unless otherwise instructed by the Court. a. Restitution: $113,148.52[.]” Id. at 15. This appeal ensued.

Discussion and Decision

[6] A restitution order is a matter within the trial court's sound discretion and will be reversed only upon a showing of abuse of discretion. Archer v. State, 81 N.E.3d 212, 215 (Ind. 2017). “An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances or when the trial court misinterprets the law.” Basso v. State, 244 N.E.3d 439, 442 (Ind. Ct. App. 2024).

[7] Our Supreme Court has stated, “Restitution may be ordered by a trial court as part of a defendant's sentence, see [Ind. Code § 35-50-5-3(a)], or as a condition of probation, see [what is now I.C. § 35-38-2-2.3(a)(6)].” Bailey v. State, 717 N.E.2d 1, 4 (Ind. 1999). Where, as here, “a court orders restitution as a condition of probation, it must also fix the amount of restitution, which may not exceed what a person will be able to pay, and the manner of performance.” Id. (citing what is now I.C. § 35-38-2-2.3(a)(6)); see also I.C. § 35-38-2-2.3(a)(6) (“As a condition of probation, the court may require a person to do a combination of the following: ․ (6) 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.”) (emphasis added).

[8] King argues that the trial court abused its discretion in “shift[ing]” its statutory responsibility for fixing the amount and manner of performance of his restitution to the probation department. Appellant's Br. at 14.³ We agree. See McGuire v. State, 625 N.E.2d 1281, 1282 (Ind. Ct. App. 1993) (“[O]rdering the probation department to fix the amount and manner of payment does not comply with the statute.”); cf. Bailey, 717 N.E.2d at 4 (finding no statutory violation where, although “the sentencing order provide[d] for the terms of restitution to be set at [Defendant's] probation,” the order did “not specify ․ that the probation department [was] to set the terms of Defendant's restitution”). Accordingly, we remand with instructions to amend the sentencing order to provide that the trial court shall fix the amount and manner of performance of King's restitution at some point before he is released to probation, after inquiring into the amount that King can or will be able to pay upon his release.⁴ See Archer, 81 N.E.3d at 217 (“When the trial court enters a restitution order as a condition of probation, it is required to inquire into the defendant's ability to pay in order to prevent an indigent defendant from being imprisoned because of a probation violation based on a defendant's failure to pay restitution.”).

[9] Remanded.

FOOTNOTES

1.   Ind. Code § 9-30-5-4(a)(1).

2.   King observes that the attachments also included “a request for reimbursement for medical records” submitted by “a law firm known for plaintiff personal injury representation.” Appellant's Br. at 11. King suggests that a personal injury settlement might have been reached, which “could dramatically impact repayment of restitution, which primarily consists of unpaid medical expenses.” Id. at 15. This issue, which would seem to be a matter within King's personal knowledge (if not within the personal knowledge of his criminal defense counsel), may be explored on remand.

3.   King did not object on this basis below, but it is well settled that “a restitution order is part of the sentence, and ‘it is the duty of the appellate courts to bring illegal sentences into compliance.’ ” Rich v. State, 890 N.E.2d 44, 48 (Ind. Ct. App. 2008) (quoting Cherry v. State, 772 N.E.2d 433, 440 (Ind. Ct. App. 2002) (quoting Golden v. State, 553 N.E.2d 1219, 1223-24 (Ind. Ct. App. 1990), trans. denied)). Accordingly, we address this argument on the merits.

4.   King asserts that he requested such an inquiry at his sentencing hearing, but this assertion is not supported by the record. Given the facts and circumstances of this case, it seems that such an inquiry would have been premature. Citing Anwarzai v. State, 227 N.E.3d 971 (Ind. Ct. App. 2024), and Mitchell v. State, 559 N.E.2d 313 (Ind. Ct. App. 1990), trans. denied, the State claims that King's presentence investigation report gave the trial court sufficient information about his ability to pay restitution. The trial court's remarks at the sentencing hearing belie this claim. See Tr. Vol. 2 at 74 (“I don't know what [King's] employment will be and I don't know what his finances will be.”).

Bailey, Judge.

Brown, J., and Weissmann, J., concur.