Joseph Thomas Smith v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Sep 12 2019, 10:23 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Peter D. Todd Curtis T. Hill, Jr. Elkhart, Indiana Attorney General

Megan M. Smith Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Joseph Thomas Smith, September 12, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-698 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Kristine A. Appellee-Plaintiff Osterday, Judge Trial Court Cause No. 20D01-1712-F1-10

Crone, Judge. [1] A jury convicted Joseph Thomas Smith of level 1 felony rape, level 5 felony

domestic battery, and level 6 felony strangulation. The trial court sentenced

Court of Appeals of Indiana | Memorandum Decision 19A-CR-698 | September 12, 2019 Page 1 of 3

him to an aggregate forty-one-year term, with thirty-six years executed and five

years suspended to probation. In its sentencing order, the trial court “order[ed]

the Defendant to pay restitution to the victim, the amount of which shall be

determined by probation.” Appealed Order at 3. [2] In this appeal, Smith contends, and the State concedes, that the trial court erred

in delegating to the probation department the task of fixing the amount of

restitution he owes to his victim. Indiana Code Section 35-38-2-2.3(a)(6) reads,

in relevant part, “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.” (Emphasis

added.) See McGuire v. State, 625 N.E.2d 1281, 1282 (Ind. Ct. App. 1993)

(holding that trial court failed to comply with the statute when it ordered

probation department to fix amount and manner of defendant’s restitution

payments). The trial court need not fix the amount and manner during

sentencing but must do so before the commencement of probation. Bailey v.

State, 717 N.E.2d 1, 4 (Ind. 1999). In any event, whether the amount and

manner are fixed at sentencing (after ascertaining the defendant’s ability to pay)

or at a later date before the defendant begins his probation, the responsibility to

make the determination falls on the trial court alone. Id.; McGuire, 625 N.E.2d

at 1282. [3] The trial court erred in delegating to the probation department the task of fixing

the amount of Smith’s restitution obligation. We remand with instructions for

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the trial court to make the proper inquiries into Smith’s ability to pay and to set

the terms of his restitution obligation accordingly. [4] Remanded.

Baker, J., and Kirsch, J., concur.

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