David, J.
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).
….
The Trial Court Abused Its Discretion by Failing to Consider
Defendant’s Actual Ability to Pay.
Under Indiana Code § 35-38-2-2.3(a)(6),
As a condition of probation, the court may require a person to . . . [m]ake 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.
… Bell asserts that she demonstrated that she has no disposable income left at the end of each month and this was not rebutted with any evidence demonstrating she had resources that could be reallocated in order to pay for restitution. Thus, it was an abuse of discretion under the restitution statute to order Bell to pay any amount of restitution as a condition of probation.
We agree with Bell that when setting restitution as a condition of probation, our trial courts are required to consider the defendant’s ability to pay. …
However, we do not agree that a blanket rule, excluding certain indigent defendants from ever being ordered to pay restitution as a condition of probation, is advisable or even permissible under our current statutory scheme. Rather, Ind. Code § 35-38-2-2.3(a)(6), clearly provides that if the ability to pay is considered, restitution can be ordered as a condition of probation. …
As the statute does not specify the extent to which the court must inquire into defendant’s financial status, we seek to provide additional clarity regarding the trial court’s duty and the burdens of the parties. First, we reiterate that the restitution statute requires the trial court to engage in some inquiry of the defendant to determine his or her ability to pay restitution. Smith v. State, 471 N.E.2d 1245, 1249 (Ind. Ct. App. 1984) … Thus, where neither the defendant nor the State has provided any information or testimony regarding the defendant’s ability to pay, the trial court must make the necessary inquiry to meet its statutory obligation. As noted above, this can include, among other things, information regarding “the defendant’s financial information, health, and employment history.” Champlain, 717 N.E.2d at 570.
Next, as for the defendant’s burden, if the defendant is asserting an inability to pay restitution, the defendant must provide evidence regarding his or her inability to pay in addition to answering questions or providing information that is specifically requested by the trial court. This is demonstrated in Judge v. State, 659 N.E.2d 608 (Ind. Ct. App. 1995). … Thus, whether it is upon the request of the trial court itself or upon the defendant’s own volition, in order to later challenge a trial court’s ordered restitution based on a claimed inability to pay, the defendant has a burden to present some testimony or other evidence in support of his or her claimed inability to pay. A bald claim of indigency, without more, is insufficient to preserve this issue for appeal.
Finally, once a defendant presents or the court elicits from defendant information demonstrating an inability to pay, the burden properly shifts to the State to rebut the evidence of defendant’s inability to pay. Pursuant to Indiana Code § 35-38-2-2.3(a)(6), without any evidence that the defendant can or will be able to pay, a restitution order cannot stand.
….
… The court determined that Bell was able to make restitution payments in the amount of $20.00 per week, which would allow Bell to pay the full amount of restitution within a year. The court explained that Bell could “pay eighty dollars over the month or [she could] pay twenty dollars a week because if [you] take $952 dollars- . . . [a]nd divide it by . . . twelve, that’s $79.36 per month. That’s twenty dollars a week.” (Tr. at 84.) Then the court again stated, “I think you can do twenty dollars a week.” (Id.)
….
In fact, nothing in the record indicates that Bell could afford restitution in addition to her current expenses, or that Bell could reduce or reallocate her current expenses. … As such, we conclude that the trial court abused its discretion because it ordered restitution where there was no evidence in the record that Bell was actually able to pay any restitution at all.
In this rare circumstance, where the defendant has presented evidence demonstrating an inability to pay, the trial court has made no further inquiry, and the State has not rebutted the defendant’s testimony as to the inability to pay, we believe the most appropriate remedy is to vacate the restitution order. …
Conclusion
… Because the trial court heard testimony as to Bell’s inability to pay, did not make further inquiry, and heard no rebutting evidence as to Bell’s ability to pay, the restitution order was an abuse of discretion. As such, we vacate the trial court’s order for restitution.
Rush, C.J. and Rucker, J., concur.
Slaughter, concurs in part, dissents in part with separate opinion in which Massa, J., joins.
Slaughter, J., concurring in part, dissenting in part.
I agree with the Court that the temporary trial judge abused his discretion in ordering Bell to pay $20 per week in restitution. The judge was obliged to ensure his restitution order was supported by record evidence that Bell could afford the payments he decreed. Yet he failed to do so. The restitution order cannot stand and must be vacated. According to the Court, that ends the matter. On this point, I respectfully dissent. In my view, we should remand to allow the trial court to enter a fully lawful sentence for Bell.
We do not know what sentence the trial court would have imposed had it concluded Bell could not afford restitution. Perhaps the result would have been the same—that the court still would have imposed the same probation, including the suspended sentence, no matter what. Or perhaps not. I would remand to allow the trial court to answer that question for us.
Massa, J., joins.