Brionna McCloud v. State of Indiana (mem. dec.), 49A05-1606-CR-1194

Background

In Sept. 2015 McCloud struck an unattended vehicle in a Kroger parking lot, left the scene, and later entered the store to steal items; she was charged on multiple counts across three cause numbers.
In Jan. 2016 McCloud pleaded guilty under a plea agreement to two Level 6 felonies (resisting law enforcement, theft), one Class A misdemeanor battery, and one Class B misdemeanor leaving the scene; plea included restitution to the owner (Sara Wilson).
Sentences imposed per the plea: 365 days Marion County Jail (F6-35534), 365 days community corrections (F6-31290), and 365 days supervised probation (F6-43342), with restitution amount to be determined later.
At a Feb. 2016 restitution hearing the court ordered McCloud to pay $3,772.47 to Wilson, plus a $100 public defender fee and $340 in probation fees.
On appeal McCloud challenged: (1) the restitution order (appropriateness, ability to pay, amount), (2) imposition of fees, and (3) lack of written notice of probation terms.

Issues

Issue	State's Argument	McCloud's Argument	Held
Whether restitution to Wilson was appropriate	Restitution proper because McCloud admitted vehicle she drove collided with Wilson’s vehicle and victim suffered property damage from the accident	Restitution inappropriate because record lacked proof damage was direct and immediate result of McCloud’s criminal act (relies on M.C.)	Affirmed: plea admission permits inference of fault; victim entitled to restitution for damage caused by leaving the scene
Whether court erred by failing to consider McCloud’s ability to pay restitution	Court considered ability to pay via colloquy about employment and imposed employment condition on probation	Argues court did not adequately consider inability to pay and thus abused discretion	Affirmed: trial court inquired into employment prospects and imposed conditions; satisfied Bell/Pearson requirements depending on characterization
Whether amount of restitution ($3,772.47) was excessive	Amount reflects repair costs shown at hearing; defense counsel stipulated to expenses; split between owner deductible and insurer acceptable	Argues excessive because owner paid only $500 and insurer covered balance	Affirmed: amount corresponds to repair cost; payment to insurer/third party permissible and not excessive
Whether assessed fees ($100 public defender; $340 probation) were improper	Fees imposed within statutory authority; court inquired into ability to pay before imposing public defender fee; probation fees statutorily authorized	Contends fees improperly imposed or assessed by probation dept. rather than court	Affirmed: court had authority and considered ability to pay for public defender fee; probation fees were imposed by court and fall within statutory limits
Whether defendant received required written notice of probation terms	State points to oral pronouncement and written order on record (unclear if defendant received copy)	McCloud contends she was not given written statement of probation conditions as required by statute	Remanded: error not harmless on record — court must provide McCloud written probation terms if not already provided

Key Cases Cited

Pearson v. State, 883 N.E.2d 770 (Ind. 2008) (distinguishes restitution as part of probation versus executed sentence and requires ability-to-pay inquiry when restitution is a probation condition)
Bell v. State, 59 N.E.3d 959 (Ind. 2016) (reiterates requirement that courts consider defendant’s ability to pay when restitution is a condition of probation)
M.C. v. State, 817 N.E.2d 606 (Ind. Ct. App. 2004) (reversal of restitution where state failed to establish fault/liability for accident)
J.P.B. v. State, 705 N.E.2d 1075 (Ind. Ct. App. 1999) (owner of damaged vehicle is a victim and loss is direct and immediate result of leaving the scene)
State v. Smith, 71 N.E.3d 368 (Ind. 2017) (plea-agreement terms are contractual; court bound by agreed terms)
Gil v. State, 988 N.E.2d 1231 (Ind. Ct. App. 2013) (failure to provide written probation terms may be harmless only if defendant was orally advised and acknowledged understanding)
Kingston v. State, 479 N.E.2d 1356 (Ind. Ct. App. 1985) (recognizing persons who sustain property damage from a driver’s flight are victims of leaving-the-scene offense)