Kenneth Smith v. State of Indiana
2013 Ind. App. LEXIS 331
| Ind. Ct. App. | 2013Background
- Kenneth Smith was convicted after a bench trial of Class D felony theft for items taken from William Kirkham’s home; the charging information listed items worth about $80.
- At a post-conviction restitution hearing, Kirkham testified he also lost 350–400 CDs (valued $4–$20 each) and about $100–$120 in silver coins; the State calculated total loss at $1,380.
- Smith objected that those additional losses were not proven at trial; the trial court overruled the objection and ordered restitution of $1,380, payable over six months ($230/month).
- The court discussed Smith’s ability to pay; Smith stated he was the sole earner for a household of five and was paying about $240/month for home detention; the court suspended home-detention fees so restitution could be paid first.
- Smith appealed, arguing (1) the court improperly attributed additional missing property to him when that property was not used to secure the theft conviction, and (2) the court failed adequately to consider his ability to pay restitution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court could base restitution on losses not introduced at the criminal trial | State: Restitution may reflect the victim’s actual loss attributable to the crime and may be proved at the restitution hearing | Smith: Evidence of additional losses not presented at trial cannot be used to increase restitution | Court: Allowed evidence at restitution hearing; restitution may include victim’s loss attributable to the charged crime even if not used to secure conviction |
| Whether the court adequately inquired into Smith’s ability to pay $230/month | State: Court made inquiries and tailored payments; suspension of home-detention fees showed consideration of ability to pay | Smith: Court failed to properly determine ability to pay and ignored his ongoing home-detention expenses | Court: No abuse of discretion — trial court questioned Smith, assumed ability based on payments, and suspended home-detention fees so restitution could be paid |
Key Cases Cited
- Wolff v. State, 914 N.E.2d 299 (Ind. Ct. App. 2009) (restitution is within trial court discretion)
- Batarseh v. State, 622 N.E.2d 192 (Ind. Ct. App. 1993) (restitution must reflect actual loss attributable to defendant)
- Hipskind v. State, 519 N.E.2d 572 (Ind. Ct. App. 1988) (discussing scope of recoverable losses)
- Rich v. State, 890 N.E.2d 44 (Ind. Ct. App. 2008) (victim loss is a factual matter proven by evidence)
- Creager v. State, 737 N.E.2d 771 (Ind. Ct. App. 2000) (appellate review of restitution limited to abuse of discretion)
- James v. State, 868 N.E.2d 543 (Ind. Ct. App. 2007) (reversing restitution for crimes defendant was not accused of)
- Blakely v. Washington, 542 U.S. 296 (2004) (Apprendi principle on jury findings for facts increasing penalties)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing penalty beyond statutory maximum must be submitted to a jury)
- Southern Union Co. v. United States, 132 S. Ct. 2344 (2012) (Apprendi principle applied to criminal fines)
- Prickett v. State, 856 N.E.2d 1203 (Ind. 2006) (Indiana view that restitution orders do not trigger Blakely/Apprendi protections)
- United States v. Day, 700 F.3d 713 (4th Cir. 2012) (restitution not subject to Apprendi because no prescribed statutory maximum)
- Kays v. State, 963 N.E.2d 507 (Ind. 2012) (some inquiry into ability to pay is required)
- Smith v. State, 655 N.E.2d 133 (Ind. Ct. App. 1995) (standard for court inquiry into defendant’s ability to pay)