Mindy Andrew v. State of Indiana (mem. dec.), 49A04-1610-CR-2399

In Feb 2016 Andrew and Douglas Polley had a physical altercation at Polley’s home that resulted in extensive property damage; Polley reported damages exceeding his $1,240 insurance deductible and a missing handgun.
The State charged Andrew with multiple misdemeanors (domestic battery, battery resulting in bodily injury, theft, criminal mischief); after a bench trial she was acquitted or had counts dismissed except for criminal mischief (Class A misdemeanor).
At sentencing the court suspended a 365-day jail term to probation and ordered Andrew to pay $1,240 restitution (Polley’s deductible) as a condition of probation.
At the restitution hearing Andrew testified she has never worked, has no income, relies on family support, has a mental disability, and had applied for disability benefits (decision pending).
The trial court ordered restitution despite limited inquiry into Andrew’s finances, reasoning that she was not yet on disability and therefore could obtain income to pay restitution.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court abused its discretion by ordering restitution as a condition of probation without determining ability to pay	State argued restitution was appropriate to compensate victim for loss and voluntary unemployment doesn’t shield defendant	Andrew argued the court failed to make the required inquiry into her ability to pay given her testimony of no income and disability application pending	Court vacated restitution order for failure to adequately inquire into defendant’s ability to pay before imposing restitution as a probation condition

Bell v. State, 59 N.E.3d 959 (Ind. 2016) (trial court must consider defendant’s ability to pay before ordering restitution as a probation condition)
Champlain v. State, 717 N.E.2d 567 (Ind. 1999) (trial court may consider financial information, health, employment history when determining ability to pay)
Kays v. State, 963 N.E.2d 507 (Ind. 2012) (noting lack of inquiry into education, work history, health, assets is inadequate)
Wininger v. Purdue Univ., 666 N.E.2d 455 (Ind. Ct. App. 1996) (restitution is part of criminal sentence and functions like a civil money judgment)
Pearson v. State, 883 N.E.2d 770 (Ind. 2008) (distinguishing restitution ordered as part of executed sentence from restitution as probation condition; ability-to-pay inquiry required only for probation condition)
Rich v. State, 890 N.E.2d 44 (Ind. Ct. App. 2008) (purpose of restitution is to compensate victim and impress magnitude of loss)