COVINGTON v. STATE (2026)

MEMORANDUM DECISION

Case Summary

[1] On May 16, 2024, Curtis Covington, Jr., bashed the windshield and shattered the front driver's-side window of his then-girlfriend's vehicle, knowing that his then-girlfriend and her two young children were in the vehicle. Covington was subsequently charged with Level 6 felony domestic battery, Class A misdemeanor battery resulting in bodily injury, and Class B misdemeanor criminal recklessness. The trial court found Covington guilty of all three charges but merged the misdemeanor charges into the felony charge and only entered a judgment of conviction and sentence for Level 6 felony domestic battery. The trial court sentenced Covington to a 545-day sentence with all but time served suspended and 365 days to be served on probation. The trial court also ordered Covington to pay restitution to Smith and to pay certain fines, costs, and fees.

[2] Covington contends that the trial court's act of merging, rather than vacating, the misdemeanor charges violated the prohibitions against double jeopardy and that the trial court abused its discretion in ordering him to pay the court-ordered fines, costs, fees, and restitution. With regard to the fines, costs, and fees, the State concedes that the trial court failed to conduct an indigency hearing to determine Covington's ability to pay. We affirm in part, reverse in part, and remand to the trial court with instructions to conduct an indigency hearing to determine whether Covington has the ability to pay the ordered fines, costs, and fees.

Facts and Procedural History

[3] In the first half of May of 2024, Covington lived with Aniesha Smith and her two children, ages three and five, in an apartment on North Meridian Street in Indianapolis. On May 16, 2024, Covington was “very drunk” when Smith arrived home. Tr. Vol. II p. 6. Covington told Smith she “should go back to whatever man [she] just came from because he's not dumb,” and asked her “to give him the keys” to the apartment. Tr. Vol. II p. 6.

[4] Smith left the apartment and returned to her vehicle. Covington followed and aggressively approached Smith. While Smith and her children were inside the vehicle, Covington picked up a piece of wood and “bash[ed]” the windshield, breaking it. Tr. Vol. II p. 8. The glass shattered into the vehicle and onto Smith, causing her to sustain painful scratches. As Smith backed up her vehicle in an attempt to retreat to safety, Covington hit her driver's-side window with the wood, causing it to shatter. The wood landed on the lap of Smith's son, who was sitting in “the back passenger seat.” Tr. Vol. II p. 11. Smith pushed the wood out of her vehicle.

[5] Smith called the police and, after they asked her to remain at the scene, Smith told them that she “couldn't stay where [she] was” because she “was not safe.” Tr. Vol. II p. 13. Smith remained in her vehicle and “just went in circles” around the apartment building. Tr. Vol. II p. 13. Every time she passed Covington, he “threw some rocks, some gravel, some glass, anything that he could” into the driver's side window, and the debris hit Smith and her children in their faces. Tr. Vol. II p. 13. As a result, Smith got “glass in [her] eyes.” Tr. Vol. II p. 14.

[6] When police arrived, they observed “[s]evere impact” to Smith's windshield, which was “kind of caved in and shattered.” Tr. Vol. II p. 25. The “driver's side window was nothing more than just glass all over the driver's seat.” Tr. Vol. II p. 25. Smith “had a scratch on her arm” and “was covered in glass powder.” Tr. Vol. II p. 24. Her children were “covered in glass.” Tr. Vol. II p. 25. Covington admitted to police that he had thrown rocks at the vehicle and that he had known that Smith's children were in the vehicle.

[7] On May 17, 2024, the State charged Covington with Level 6 felony domestic battery, Class A misdemeanor battery resulting in bodily injury, and Class B misdemeanor criminal recklessness. Bond was set at $2000.00. Trenton Covington posted a cash bond “in the amount of” $2000.00 on Covington's behalf. Appellant's App. Vol. II p. 87.

[8] Following a bench trial, Covington was found guilty as charged. Prior to entering a judgment of conviction or imposing a sentence, the trial court merged the two misdemeanor convictions into the felony conviction “for purposes of sentencing.” Tr. Vol. II p. 45. The trial court sentenced Covington to 545 days in the Marion County Jail with credit for ten days previously served and the balance “suspended to 365 days of probation.” Tr. Vol. II p. 51. After Covington indicated that he was unemployed the trial court indicated that it would

not assess a fine then, but I am ordering you to pay the court costs, which are what, [$]189. I'm order[ing] you to pay restitution [in] the amount of $300 to Ms. Smith. We will reduce the restitution to a civil judgment․ Since he's not working now, let's make sure any money paid is paid to restitution first so Ms. Smith can be reimbursed for her financial loss.

Tr. Vol. II pp. 51–52. While the trial court classified the $189.00 as court costs in its oral sentencing statement, the trial court's sentencing order listed the $189.00 as a “Criminal Court Fine[.]” Appellant's App Vol. II p. 80. The trial court further noted that a $2000.00 cash bond had been posted on Covington's behalf by Trenton and ordered that the bond be released to cover Covington's financial obligations with the remainder released to Trenton.

Discussion and Decision

I. Judgment of Conviction

[9] Indiana Code section 35-38-1-1(a) mandates that following a finding of guilt, “the court shall enter a judgment of conviction.” Indiana Code section 35-38-3-2(b) provides that a judgment of conviction must include the following:

(1) the crime for which the convicted person is adjudged guilty and the classification of the criminal offense;

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(3) the amount of the fines or costs (including fees) assessed, if any, whether or not the convicted person is indigent, and the method by which the fines or costs (including fees) are to be satisfied; [and]

(4) the amount of credit time earned for time spent in confinement before sentencing, including time on pretrial home detention[․]

In Woodcox v. State, 30 N.E.3d 748, 751–52 (Ind. Ct. App. 2015), we acknowledged that a sentencing order can qualify as a judgment of conviction if it includes all of the necessary information required by Indiana Code section 35-38-3-2(b). See also Baker v. State, 255 N.E.3d 1199, 1204–05 (Ind. Ct. App. 2025) (finding that the sentencing order “serves the purpose of both the judgment of conviction and the sentencing order, as there is no separate judgment of conviction in the record”).

[10] The sentencing order issued in this case included all of the information required by Indiana Code section 35-38-3-2(b) that applied to Covington's case. Specifically, the sentencing order indicates that Covington was charged with and found guilty of Level 6 felony domestic battery in violation of Indiana Code section 35-42-2-1.3(a)(1) and included the amount of fines or costs assessed and the amount of credit time earned by Covington.¹ As such, like in Baker, we conclude that the trial court's sentencing order in this case served the dual purpose of both the judgment of conviction and the sentencing order.² 255 N.E.3d at 1204.

II. Potential Double Jeopardy Concerns

[11] Covington argues, and the State concedes, that entering a judgment of conviction for all three of the charged offenses would violate the prohibitions against double jeopardy because both of the misdemeanor charges were lesser-included offenses of the Level 6 felony domestic battery charge. Covington asserts that the trial court entered a judgment of conviction on all three of the charged offenses. For its part, the State asserts that it is unclear from the record whether the trial court entered a judgment of conviction on the two misdemeanor counts, thus requiring that the matter be remanded to the trial court for clarification.

[12] “A trial court's act of merging, without also vacating the conviction, is not sufficient to cure a double jeopardy violation.” Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008), trans. denied. “On the other hand, a merged offense for which a defendant is found guilty, but on which there is neither a judgment nor a sentence, is ‘unproblematic’ as far as double jeopardy is concerned.” Green v. State, 856 N.E.2d 703, 704 (Ind. 2006) (quoting Carter v. State, 750 N.E.2d 778, 781 (Ind. 2001)). Stated differently, “[w]e have held that where a trial court merges some offenses into others for purposes of sentencing, there is no double jeopardy violation. This is so because under those circumstances the defendant is not being punished for the merged offenses.” Kilpatrick v. State, 746 N.E.2d 52, 60 (Ind. 2001).

[13] While the trial court orally found Covington guilty of all three charged offenses at the conclusion of the bench trial, the only charge listed on the sentencing order was the Level 6 felony domestic battery charge. Likewise, the chronological case summary (“CCS”) provides as follows:

Appellant's App. Vol. II p. 9. The CCS further provides as follows:

Appellant's App. Vol. II p. 9.

[14] Reading the sentencing order, which again served the dual purpose of both a sentencing order and a judgment of conviction, together with the trial court's entries on the CCS, we are convinced that the trial court neither entered a judgment of conviction nor a sentence on the two misdemeanor charges.³ The documents clearly demonstrate that the only charge for which a judgment of conviction was entered was the Level 6 felony domestic battery charge. Pursuant to the Indiana Supreme Court's holding in Green, the merged misdemeanor offenses for which Covington was found guilty, but for which there is neither a judgment of conviction nor a sentence, are unproblematic as far as double jeopardy is concerned. 856 N.E.2d at 704; see also Kilpatrick, 746 N.E.2d at 60. As such, pursuant to the Indiana Supreme Court's holdings in Green and Kilpatrick, there is no double jeopardy violation in this case as a judgment of conviction and sentence was only entered for one offense, i.e., Level 6 felony domestic battery. Green, 856 N.E.2d at 704; Kilpatrick, 746 N.E.2d at 60.

III. Payment of Fines, Costs, and Fees

[15] Generally, “an indigent defendant may not be ordered to pay unaffordable fines, costs, or fees[.]” Spells v. State, 225 N.E.3d 767, 777 (Ind. 2024). Moreover, while the trial court ordered that the fines, costs, and fees be paid out of the bond funds that had been submitted on Covington's behalf, the Indiana Supreme Court has held that, with regard to fines, costs, and fees,

the required procedure is for a trial court first to hold an indigency hearing and only then, under the terms of any applicable agreement, to retain from cash bail any fine, costs, or fees that the defendant is able to pay. Just as an indigent defendant may not be ordered to pay unaffordable fines, costs, or fees, neither may a court order their cash bail to be applied as a form of payment.

Id.

[16] Covington contends that the trial court abused its discretion in ordering him to pay certain fines, costs, and fees without first holding an indigency hearing. The State concedes that the trial court did not conduct an indigency hearing before imposing fines, costs, and fees. The State argues that the case should be remanded to the trial court with instructions for the trial court to hold an indigency hearing to determine Covington's ability to pay the ordered fines, costs, and fees. Given the trial court's failure to hold an indigency hearing before ordering that Covington's fines, costs, and fees be paid out of the cash bond that had been submitted on his behalf, we reverse the trial court's order imposing fines, costs, and fees and remand the matter to the trial court with instructions for the trial court to conduct an indigency hearing to determine Covington's ability to pay the ordered fines, costs, and fees.⁴

IV. Payment of Restitution

[17] “The principal purpose of restitution is to vindicate the rights of society and to impress upon the defendant the magnitude of the loss the crime has caused.” Pearson v. State, 883 N.E.2d 770, 772 (Ind. 2008). “Restitution also serves to compensate the offender's victim.” Id. “An order of restitution is a matter within the trial court's sound discretion and will only be reversed upon a showing of abuse of discretion.” Archer v. State, 81 N.E.3d 212, 215 (Ind. 2017).

By statute, restitution shall be based on damage “incurred as a result of the crime.” Ind. Code § 35-50-5-3(a)(1). While this statute is to be strictly construed against the state, Morgan v. State, 49 N.E.3d 1091, 1094 (Ind. Ct. App. 2016), the trial court abuses its discretion in ordering restitution “only if no evidence or reasonable inferences therefrom support the trial court's decision,” Little v. State, 839 N.E.2d 807, 809 (Ind. Ct. App. 2005) (emphasis added).

Id. at 216 (underlining in original omitted).

[18] Indiana Code section 35-38-2-2.3(a)(6) provides that a trial court may, as a condition of probation, require a person to “[m]ake restitution ․ to the victim of the crime for damage or injury that was sustained by the victim.” “When restitution ․ 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[.]” Indiana Code § 35-38-2-2.3(a)(6). Thus, “in order to prevent indigent defendants from being imprisoned because of a probation violation based on a defendant's failure to pay restitution[,]” the trial court “is required to inquire into the defendant's ability to pay” when ordering the payment of restitution as a condition of probation. Pearson, 883 N.E.2d at 772.

[19] While Indiana Code section 35-38-2-2.3 requires an inquiry into a defendant's ability to pay restitution, the statute neither specifies “the extent to which a trial court must inquire into a defendant's financial status” nor sets forth “a precise procedure for determining a defendant's ability to pay.” Dull v. State, 44 N.E.3d 823, 830 (Ind. Ct. App. 2015). “[T]he inquiry generally may include factors such as a defendant's ‘financial status, health, and employment history.’ ” Id. (quoting Laker v. State, 869 N.E.2d 1216, 1221 (Ind. Ct. App. 2007)). A trial court, however, “is not required to hold a hearing on a defendant's ability to pay restitution and, instead, ‘may make a proper inquiry, depending on circumstances, by such actions as reviewing the presentence report and questioning witnesses.’ ” Id. (quoting Laker, 869 N.E.2d at 1221).

[20] In this case, the State presented evidence that the cost to fix the damage to Smith's vehicle was $300.00. Covington, through his trial counsel, indicated that he had “no issue with” the State's request that he be ordered to pay $300.00 in restitution to pay for the damage to Smith's vehicle. Tr. Vol. II p. 49. The trial court inquired into Covington's ability to pay restitution with Covington indicating that he was unemployed and homeless but that he had worked “a couple of days of temp ․ here and there” to earn money. Tr. Vol. II p. 51. Although ordering payment of restitution as a condition of Covington's probation, the trial court recognized that Covington was not employed and ordered that “[a]ny restitution still due a[t] the conclusion of the term of probation will be reduced to a civil judgement.”⁵ Appellant's App. Vol. II p. 81. The trial court further ordered that restitution was to be paid before any costs or fees in order to reimburse Smith “for her financial loss.” Tr. Vol. II p. 52.

[21] Covington stated that he had “no issue” with being ordered to pay restitution and that while he did not have regular employment, he was able to work temporary jobs as a means of making money. Tr. Vol. II p. 49. Covington also indicated that he had previously been employed full-time and did not indicate that his health would preclude him from securing full-time employment in the future. As such, while the trial court's questioning regarding Covington's ability to pay restitution was not extensive, we cannot say that the trial court abused its discretion in determining that Covington had the ability to pay $300.00 in restitution.

[22] The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions.

FOOTNOTES

1.   Nothing in the record suggests that either subsection (2), which requires “the period, if any, for which the person is rendered incapable of holding any office of trust or profit[,]” or (5), which requires “the amount to be credited toward payment of the fines or costs (including fees) for time spent in confinement before sentencing[,]” of Indiana Code section 35-38-3-2(b) applied to this case.

2.   Covington argues that the trial court was required to issue both a judgment of conviction and an abstract of judgment. While Indiana Criminal Rule of Procedure 5.2 states that “[u]pon sentencing a person for any felony conviction, the court must complete an abstract of judgment[,]” we note that Indiana Code section 35-38-1-31(a) provides that the trial court is only required to issue an abstract of judgment “[i]f a court imposes on a person convicted of a felony a sentence that involves commitment to the [Indiana Department of Correction (“DOC”)].” To the extent that Criminal Rule 5.2 conflicts with Indiana Code section 35-38-1-31(a), we note that the more specific, i.e., Indiana Code section 35-38-1-31(a) controls. See generally State ex rel. Bicanic v. Lake Cir. Ct., 260 Ind. 73, 76, 292 N.E.2d 596, 598 (1973) (“Although a Supreme Court adopted trial rule is not a statute, it has the same binding force as any formally promulgated statute.”), Nw. Towing & Recovery v. State, 919 N.E.2d 601, 606 (Ind. Ct. App. 2010) (acknowledging that statutes relating to the same general subject matter should be construed together to produce a harmonious statutory scheme but when two statutes conflict, the more specific statute controls over a general statute). As such, because Covington was not committed to the DOC, the trial court was not required by Indiana Code section 35-38-1-31(a) to issue an abstract of judgment.

3.   This reading is supported by the trial court's “Courtroom Minutes” form which indicates that a judgment of conviction was only entered against Covington on the Level 6 felony charge.

4.   We note that while the trial court indicated that it would not impose a fine due to Covington's financial situation, the sentencing order lists a $189.00 fine. The trial court should also clarify whether the $189.00 constitutes costs or a fine on remand.

5.   While the State argues that the trial court did not order that Covington pay restitution to Smith as a condition of his probation, the record indicates otherwise.

Bradford, Judge.

Pyle, J., and Kenworthy, J., concur.