Darriel Wayne Dakotah Kelly, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Darriel Wayne Dakotah Kelly entered into a plea agreement under which he agreed to plead guilty to several fraud- and theft-related felonies and pay restitution to his victims. The trial court sentenced Kelly to five years in prison plus two years on probation and ordered him to pay $4,465 in restitution as a condition of his probation. The court also released his $500 cash bond to apply to the restitution owed. Kelly now appeals, arguing the trial court erred in ordering him to pay restitution without inquiring into his ability to pay and applying his cash bond to the restitution owed. We affirm.

Facts and Procedural History

[2] In August 2023, the State charged Kelly with Level 5 felony theft, Level 6 felony forgery, and Level 6 felony identity deception under Cause No. 32D05-2308-F5-150 for filing a fraudulent quitclaim deed with the county recorder's office to transfer the deed to his wife's parents’ house to his wife, Jamie. The trial court set his bond at $500 cash. Jamie later posted Kelly's bond with the county clerk. When Jamie posted Kelly's bond, both she and Kelly signed a cash-bond agreement in which they acknowledged that “[i]f a judgment for a fine, court costs, restitution, public defender fees, or probation user fees is entered in this case, the balance of the amount deposited after deduction of bond costs may, upon order of the Court, be applied by the Clerk to the payment of the judgment.” Appellant's App. Vol. II p. 44 (emphases added); see also Ind. Code § 35-33-8-3.2(a)(1) (“Before execution of the agreement, the defendant or person who makes the deposit on behalf of the defendant shall be advised that, upon conviction of the defendant, the court may retain from the cash deposited as bail all or a part of the cash to pay publicly paid costs of representation and fines, costs, fees, and restitution that the court may order the defendant to pay if the defendant is convicted.”).

[3] In February 2024, while the charges under F5-150 were still pending, the State charged Kelly with Level 5 felony fraud, Level 6 felony theft, Level 6 felony identity deception, and two counts of Level 6 felony fraud under Cause No. 32D05-2402-F5-37 for making purchases on gambling websites using his stepson's debit card.

[4] In October, Kelly and the State entered into a plea agreement in F5-37 under which Kelly would plead guilty to Level 5 felony fraud and Level 6 felony theft, the State would dismiss the remaining charges in F5-37, and Kelly's sentence would be three years, with one year in prison and two years suspended to probation. In addition, Kelly agreed to pay $389 in court costs and public-defender fees as well as restitution in both F5-37 and F5-150 as a condition of his probation in F5-37, with the amount to be determined by the trial court. See Appellant's App. Vol. II p. 107. Finally, Kelly agreed that his sentence in F5-37 would run consecutive to his sentence in F5-150.

[5] Kelly pled guilty to all three charges in F5-150 with sentencing left to the discretion of the trial court. See F5-150 Tr. p. 45. A presentence investigation report was prepared. The trial court sentenced Kelly to four years in prison in F5-150 to be served consecutive to one year in prison and two years on probation in F5-37. The trial court scheduled a restitution hearing for November 21 and said the $500 cash bond in F5-150 would “be held to determine ․ what restitution will be.” Id. at 61-62.

[6] At the restitution hearing, Kelly's stepson, the victim in F5-37, testified that Kelly stole $1,450 from his bank account and that he had to pay a $15 bank fee as a result. Kelly's father-in-law, the victim in F5-150, testified that he had to retain legal counsel to quiet title and had incurred $3,000 in legal fees. Kelly did not testify, challenge these amounts, or claim he couldn't pay. The trial court ordered Kelly to pay $1,465 in restitution in F5-37 and $3,000 in restitution in F5-150 as a condition of his probation in F5-37. The following exchange then occurred:

THE COURT: ․ I'm going to be quite honest, gentlemen, I would not hold your breath. So, but maybe a miracle will happen and he will become a productive member of society. So, good luck, folks․

[THE STATE]: Your Honor, I would also ask that any bond refund be held for restitution. I believe there is a bond in [F5-150]-

THE COURT: Okay, we can do that. That's fine. I will now release that. Once I get the restitution orders, we can release it to help pay for restitution; so you'll get something․

Id. at 76-77. Kelly didn't object to the State's request that the court release his $500 cash bond in F5-150 to apply to the restitution he owed. Four days later, on November 25, the trial court issued a written order in F5-150 that restitution orders would be issued in F5-37 and that “[t]he cash bond i[n] this case is released to the restitution in [F5-37].” Appellant's App. Vol. II p. 112. Kelly didn't oppose or otherwise respond to this order.

[7] In December, the trial court released the cash bond in F5-150 and issued two restitution orders in F5-37 (one for $1,465 for Kelly's stepson and the other for $3,000 for Kelly's father-in-law). See id. at 185-86.

[8] Kelly now appeals.

Discussion and Decision

I. The trial court did not abuse its discretion in ordering Kelly to pay restitution as a condition of his probation

[9] Kelly contends the trial court erred in ordering him to pay restitution as a condition of his probation. He doesn't challenge the amount of restitution the court ordered him to pay; rather, he argues the court erred in failing to inquire into his ability to pay.¹ We review a trial court's restitution order for an abuse of discretion. Bell v. State, 59 N.E.3d 959, 962 (Ind. 2016).

[10] When a trial court orders restitution as a condition of probation, it “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.” I.C. § 35-38-2-2.3(a)(6). The court 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.” Archer v. State, 81 N.E.3d 212, 217 (Ind. 2017). There is no “precise procedure” for making this inquiry. Dull v. State, 44 N.E.3d 823, 830 (Ind. Ct. App. 2015). A trial court can satisfy this obligation by reviewing the presentence investigation report, which contains information about, among other things, the defendant's financial status, health, and work history. See id.; Anwarzai v. State, 227 N.E.3d 971, 973-74 (Ind. Ct. App. 2024).

[11] Here, Kelly agreed to pay restitution in both cases in his plea agreement in F5-37. By doing so, he acknowledged that he “can or will in the future be able to pay something.”² See Archer, 81 N.E.3d at 218 (“[B]y agreeing to pay restitution in her plea agreement, Archer acknowledged that she can or will in the future be able to pay something.”). In addition, Kelly's presentence investigation report contains information about his financial status and work history. Specifically, Kelly earned $125,000 in 2022 from operating his own construction company (although he hadn't earned anything since he had become incarcerated) and had a $32,000 “tax check that he ha[d] yet to cash.” Appellant's App. Vol. II p. 76. While Kelly may not be able to pay anything now due to his incarceration, he has worked in the past and can likely work again.³ See Archer, 81 N.E.3d at 218 (“While Archer may not be able to pay at present due to her circumstances, there is evidence in the record that she had worked previously and she indicated her hope that she will be able to get a job in the future.”). The trial court did not abuse its discretion in ordering Kelly to pay restitution as a condition of his probation.

II. The trial court did not err in releasing the cash bond

[12] Kelly also contends the trial court erred in releasing the $500 cash bond posted in F5-150 to apply to the restitution ordered in F5-37. He points out that the cash-bond agreement he and his wife signed in F5-150 says the bond can be used to apply to a restitution “judgment” “entered in this case” but that no restitution judgment was entered in F5-150. While it is true no restitution was ordered in F5-150, Kelly agreed to pay restitution in F5-150 as a condition of his probation in F5-37, and the trial court issued an order in F5-150 that restitution would be ordered in F5-37. Moreover, as the State points out, “At no point during or after the [restitution] hearing did Kelly object to the trial court releasing his bond [in F5-150] to pay restitution” in F5-37. Appellee's Br. p. 15. And because Kelly did not object below, the clerk has since released the bond and presumably paid it to the victims. See F5-150 (Dec. 23, 2024 CCS entry). The trial court did not err in releasing the $500 cash bond in F5-150.⁴

[13] Affirmed.

FOOTNOTES

1.   At the very end of this argument, Kelly says the trial court erred in failing to “fix[ ] the manner of repayment during probation.” Appellant's Br. p. 12. Because Kelly does not develop this argument, we do not address it.

2.   Kelly notes that even though he agreed to pay restitution as well as court costs and public-defender fees in F5-37, the trial court found him indigent as to “any outstanding fines, costs and fees” in F5-150. F5-150 Tr. pp. 44, 61. This is not dispositive, as our Supreme Court has held that a trial court may “order restitution as a condition of probation” even if the defendant has “been found indigent for other purposes.” Bell, 59 N.E.3d at 962.

3.   Indeed, Kelly recently filed a motion to modify his sentence in F5-150, claiming he had secured full-time work. See F5-150, Motion for Modification of Sentence (May 29, 2025).

4.   Citing Spells v. State, 225 N.E.3d 767 (Ind. 2024), Kelly argues the trial court was required to hold an indigency hearing before applying the $500 cash bond to the restitution he owed. But as the State points out, the issue in Spells was fines, costs, and fees—not restitution. See Appellee's Br. pp. 15-16 (“The Court in Spells based this requirement on its interpretation of Indiana Code sections 35-38-1-18 (imposition of fines), 33-37-2-3 (imposition of costs), 33-37-2-5 (establishing fees under section 33-37-4-1 as costs), and 33-37-4-1 (criminal costs fees)․ [H]owever, the statute governing the imposition of restitution—Indiana Code section 35-38-2-2.3(a)(6)—does not require a hearing, only an inquiry into the defendant's ability to pay.”). Kelly did not file a reply brief to dispute this claim by the State.

Vaidik, Judge.

Judges Bailey and DeBoer concur. Bailey, J., and DeBoer, J., concur.