ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Charles E. Stewart, Jr. Steve Carter 

Appellate Public Defender Attorney General of Indiana 

Crown Point, Indiana 

 Ellen H. Meilaender 

 Deputy Attorney General 

 Indianapolis, Indiana 

______________________________________________________________________________ 

In the 

Indiana Supreme Court 

_________________________________ 

No. 45S03-0712-CR-574 

JEFFREY PEARSON, 

 Appellant (Defendant below), 

v. 

STATE OF INDIANA, 

 Appellee (Plaintiff below). 

_________________________________ 

Appeal from the Lake Superior Court, No. 45G04-0211-FD-250 

The Honorable Thomas Stefaniak, Jr., Judge 

_________________________________ 

On Petition To Transfer from the Indiana Court of Appeals, No. 45A03-0610-CR-507 

_________________________________ 

March 27, 2008 

Rucker, Justice. 
 When a trial court orders restitution either as a condition of probation or as a condition of 

a suspended sentence, it is required to inquire into the defendant’s ability to pay. Although the 

trial court did not make such an inquiry in this case, we nonetheless affirm its judgment because 

the defendant did not raise his inability to pay restitution as an issue on appeal. 

Facts 

Between January 1, 1997, and December 31, 2000, Jeffrey R. Pearson served as a police 

officer with the East Chicago Police Department. He was also a member of the Fraternal Order 

of Police Lodge #59 and served as its treasurer. In the year 2000, after two widows separately 

complained to the Lodge president that they had not received their death benefits following their 

husbands’ deaths, an internal investigation ensued. Among other things the investigation 

revealed missing funds and unaccounted for expenditures. Ultimately the matter was submitted 

to a grand jury, which returned an indictment against Pearson on November 1, 2002 charging 

him with theft as a Class D felony. 

On October 31, 2005, the parties appeared in open court and presented a Stipulated Plea 

and Agreement. The agreement provided in pertinent part that the State would amend the 

indictment to include a charge of conversion as a Class A misdemeanor to which Pearson would 

plead guilty, and in exchange the State would dismiss the felony theft charge. The agreement 

also provided, “The parties agree that the defendant shall be sentenced to one (1) year in the 

Lake County Jail, which shall be suspended and served on probation; [] The parties agree and 

understand that the defendant shall make restitution to the victim, Fraternal Order of Police 

Lodge #59, with the amount to be determined by the Court.” App. at 49. After the trial court 

advised Pearson of the rights he would be forfeiting by his plea of guilty and satisfying itself that 

Pearson’s agreement was entered knowingly, intelligently, and voluntarily, Pearson pleaded 

guilty as provided in the agreement. As a factual basis for the plea agreement Pearson admitted 

among other things that he “exerted unauthorized control over money of the East Chicago 

Fraternal Order of Police Lodge #59.” Id. at 51. The trial court took the plea under advisement 

and scheduled a hearing to determine the amount of restitution. 

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The hearing on restitution, which occurred over a three-day period, April 13, 2006, July 

10, 2006, and August 4, 2006, was bitterly contested. The State introduced evidence which it 

argued demonstrated that Pearson exerted unauthorized control over money of the Lodge in an 

amount in excess of $50,000.00. Pearson disputed the amount. And although he introduced no 

evidence on his own behalf, in a sentencing memorandum Pearson argued that he “should be 

made to pay restitution in the amount of $300.00.” App. at 73. According to Pearson this 

amount represented the fair-market value of a computer that he purchased with Lodge funds and 

converted to his own use. Id. 

On August 24, 2006, the trial court sentenced Pearson to one year in jail, all suspended, 

pursuant to the plea agreement. App. at 76. Additionally, the trial court ordered Pearson to pay 

$52,685.97 as restitution in increments of at least $150.00 per month. Id. The trial court did not 

make a finding as to Pearson’s ability to pay or conduct a hearing on his ability to pay. 

Pearson appealed1 raising a single issue for review, “Did the trial court err in ordering the 

defendant to pay over $50,000.00 in restitution without determining that the defendant had the 

ability to pay this amount during a one year probationary period?” Br. of Appellant at 1. 

Concluding that the trial court erred when it failed to determine Pearson’s ability to pay the 

ordered restitution, the Court of Appeals, in an unpublished memorandum decision, reversed and 

remanded this cause to the trial court. See Pearson v. State, 45A03-0610-CR-507 (Ind. Ct. App. 

July 27, 2007). Having previously granted the State’s petition to transfer, we now affirm the 

judgment of the trial court. 

Discussion 

The principal purpose of restitution is to vindicate the rights of society and to impress 

upon the defendant the magnitude of the loss the crime has caused. Haltom v. State, 832 N.E.2d 

 

1

 Although Pearson agreed to pay restitution, he did not agree to the amount or the terms of payment. 

Both were left to the discretion of the trial court. Thus, Pearson is not foreclosed from contesting this 

matter on appeal. See Tumulty v. State, 666 N.E.2d 394, 395-96 (Ind. 1996) (A person who pleads guilty 

is not permitted to challenge the propriety of that conviction on direct appeal. However, a person who 

pleads guilty is entitled to contest on direct appeal the merits of a trial court’s sentencing decision where 

the trial court has exercised sentencing discretion.). 

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969, 971 (Ind. 2005). Restitution also serves to compensate the offender’s victim. Id. And, 

when the trial court enters an order of restitution as part of a condition of probation, the court is 

required to inquire into the defendant’s ability to pay. See Ind. Code § 35-38-2-2.3(a)(5) (“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.”). This is so in order to prevent indigent defendants from being imprisoned 

because of a probation violation based on a defendant’s failure to pay restitution. Jaramillo v. 

State, 803 N.E.2d 243, 250 (Ind. Ct. App. 2004). 

In its Petition to Transfer, the State does not dispute these rather well settled rules of law. 

Indeed it concedes as much. However, the State argues there is a distinction between restitution 

as a condition of probation, which requires an inquiry into the defendant’s ability to pay, and 

restitution as an independent term of the sentence, which does not require such an inquiry. 

According to the State, the trial court’s restitution order falls in this latter category. 

 We agree with the State to some extent. That is to say a trial court may order restitution 

as part of a defendant’s sentence wholly apart from probation. See, e.g., Miller v. State, 502 

N.E.2d 92, 95 (Ind. 1986) (“[A]n order of restitution is as much a part of a criminal sentence as a 

fine or other penalty.”) (citation omitted). And when restitution is ordered as part of an executed 

sentence, an inquiry into the defendant’s ability to pay is not required. Shaffer v. State, 674 

N.E.2d 1, 9 (Ind. Ct. App. 1996). In such a situation, restitution is merely a money judgment, 

see I.C. § 35-50-5-3(b), and a defendant cannot be imprisoned for non-payment. Shaffer, 674 

N.E.2d at 9. 

 In this case however, even assuming the order of restitution is not a term of probation,2

 it 

is clear that the order is not a part of the executed term of Pearson’s sentence. Instead his one 

year executed misdemeanor sentence was “suspended in total.” Tr. at 443. Just as with 

probation, a suspended sentence may be revoked “[i]f the probationer has willfully refused to 

pay or has failed to make a sufficient bona fide effort to acquire the resources to pay, [and] the 

 

2

 Although the trial court’s written sentencing order is somewhat ambiguous on this point, the CCS entry 

provides, “$52,685.97 Criminal Restitution ordered, payable as a condition of probation at least $150.00 

per month.” App. at 3. 

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court may revoke probation and sentence the defendant to prison.” Champlain v. State, 717 

N.E.2d 567, 571 (Ind. 1999) (revoking defendant’s suspended sentence for failure to pay 

restitution) (quotations omitted). Thus, “when restitution is ordered as a condition of probation 

or a suspended sentence, the trial court must inquire into the defendant’s ability to pay in order 

to prevent indigent defendants from being imprisoned because of their inability to pay.” Ladd v. 

State, 710 N.E.2d 188, 192 (Ind. Ct. App. 1999) (emphasis added). In the case before us the trial 

court made no such inquiry. However, for reasons explained below we disagree with our 

colleagues on the Court of Appeals that this matter should be remanded to the trial court. 

 In this appeal Pearson does not challenge the amount of the restitution he has been 

ordered to pay. Nor does Pearson contend that he has no ability to pay. Instead Pearson’s claim 

is that there was no inquiry made as to whether he has “the ability to pay this amount 

[$52,685.97] during a one year probationary period.” Br. of Appellant at 1 (emphasis added). 

Pearson elaborates that the trial court’s restitution order “would have required the defendant to 

pay the sum of approximately $4,400.00 per month.” Id. at 5. 

Implicit in Pearson’s argument is the assumption that his obligation to make restitution 

terminates upon the end of his probationary term. However, this is not so. As a general 

proposition once a term of probation has expired, the trial court loses all jurisdiction over the 

defendant and is powerless to enforce any conditions of probation, even though it is aware that 

the defendant has failed to meet a condition. White v. State, 560 N.E.2d 45, 46 (Ind. 1990). But 

the expiration of a probationary period does not terminate an obligation to make restitution to a 

crime victim. See I.C. § 35-50-5-3(f) (“Regardless of whether restitution is required . . . as a 

condition of probation or other sentence, the restitution order is not discharged by the completion 

of any probationary period or other sentence imposed for a felony or misdemeanor.”); see also

Savage v. State, 655 N.E.2d 1223, 1225 (Ind. 1995) (upholding a restitution order as a term of a 

two-year probation in the amount $164,998.59 – which was in excess of the defendant’s current 

assets, and in excess of his lifetime discretionary income – but remanding to the trial court to 

determine a “periodic payment amount that [the defendant] can or will be able to afford”). 

5
6

The expiration of Pearson’s one-year probationary term does not terminate his obligation 

to pay restitution. And because Pearson does not challenge the amount of restitution or his 

ability to pay $150.00 per month in discharge of his obligation, there is no need to remand this 

cause to the trial court. 

Conclusion 

We affirm the judgment of the trial court. 

Shepard, C.J., and Dickson, Sullivan and Boehm, JJ.,concur.