A trial court's determinations in setting probation are set aside only where the trial court has abused its discretion. Kays v. State, 963 N.E.2d 507, 509 (Ind.2012). “An order of restitution lies within this discretion and will likewise be reversed only for abuse of discretion.”

An order of restitution lies within the trial court's discretion and will be reversed only where there has been an abuse of discretion. Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012). A trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstances or when the trial court has misinterpreted the law.

“Restitution also serves to compensate the offender's victim.” Id. An order of restitution lies within the trial court's discretion and will be reversed only where there has been an abuse of discretion. Kays v. State, 963 N.E.2d 507, 509 (Ind.2012). A trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstances or when the trial court has misinterpreted the law.

With respect to Beverly's arguments that the court did not inquire into his ability to pay, we observe that when a court imposes restitution as a condition of probation, it must “inquir[e] into the defendant's ability to pay ... ‘in order to prevent indigent defendants from being punished because of their inability to pay.’ “ Kays v. State, 963 N.E.2d 507, 510 (Ind.2012) (quoting Ladd v. State, 710 N.E.2d 188, 192 (Ind.Ct.App.1999) ). To impose restitution, the trial court must assess the defendant's ability to pay which includes such factors as “the defendant's financial information, health, and employment history.”

Ind.Code § 35–38–2–2.3. The statute sets forth no particular procedure the trial court must follow in determining the defendant's ability to pay, but some form of inquiry is required. Kays v. State, 963 N.E.2d 507, 509 (Ind.2012). The consideration of a defendant's ability to pay includes such factors as the defendant's financial information, health, and employment history.

Our conclusion is consistent with a number of decisions holding — sometimes based on Keffeler — that 42 U.S.C. section 407(a) or a similar anti-attachment provision does not preclude consideration of benefits in determining the recipient’s ability to pay restitution or some other financial obligation. ( In re Lampart (2014) 306 Mich.App. 226, 856 N.W.2d 192, 200[effect of 42 U.S.C. § 407(a) in ordering restitution]; Orange v. White (Mo.Ct.App. 2016) 502 S.W.3d 773, 776-778 [effect of 42 U.S.C. § 407(a) in determining ability to pay maintenance to former spouse]; Kays v. State (Ind. 2012) 963 N.E.2d 507, 511 [effect of 42 U.S.C. § 407(a) in ordering restitution]; Barnes v. Department of Human Services (Miss. 2010) 42 So.3d 10, 17 [effect of 42 U.S.C. § 407(a) in calculating child support payments]; Com. ex rel. Morris v. Morris (Ky. 1998) 984 S.W.2d 840, 841-842 [effect of 42 U.S.C. § 407(a) in determining child support]; Gleave v. Graham (W.D.N.Y. 1997) 954 F.Supp. 599, 610-611 [effect, in determining criminal fine, of federal statute providing that veterans’ benefits " ‘shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever’ "]; Fredenburg v. Mental Health Div. (1991) 107 Or.App. 425, 428, 812 P.2d 432 [effect of 42 U.S.C. § 407(a) in determining liability for cost of care]; Heuchan v. Heuchan (1951) 38 Wash.2d 207, 228 P.2d 470, 476-477 [effect, in determining alimony obligation, of federal statute providing that railway pension payments shall not be " ‘subject to any tax or to garnishment, attachment, or other legal process under any ci

But another state court has held that Social Security benefits “may be considered” by a trial court in determining a defendant's total financial picture and his ability to pay restitution. Kays v. State , 963 N.E.2d 507, 510–11 (Ind. 2012). Further, consistent with the notion that consideration of Social Security monies is not prohibited when assessing a person's total financial picture and ability to pay LFOs, another state court has held that “social security benefits that are reasonably traceable retain their exemption even if they are commingled with other nonexempt funds in the same bank account,” In re Estate of Merritt , 272 Ill.App.3d 1017, 1021, 209 Ill.Dec. 502, 651 N.E.2d 680 (1995) ; and at least one federal district court has acknowledged that there is case law support for the proposition that nonexempt funds, even if commingled with Social Security benefit monies, are not protected from levy or attachment. SeeSmith v. Accenture U.S. Grp. Long–Term Disability Ins. Plan , No. 05 C 5942, 2006 WL 2644957 at *4 (N.D. Ill. Sept. 13, 2006) (court order) (citing Merritt and Dionne v. Bouley , 757 F.2d 1344 (1st Cir. 1985) ).

Numerous courts have concluded that the federal law does not prohibit a court from considering social security income when determining restitution. See, e.g., People v. J.G., 434 P.3d 1108, 1115-18 (Cal. 2019) (rejecting argument that 42 U.S.C. § 407(a) prohibited consideration of defendant's Supplemental Security Income (SSI) in determining ability to pay restitution and stating that "[u]nder Keffeler, 42 U.S.C. [§] 407(a) does not preclude a court from considering SSI benefits in determining the ability to pay restitution"); Kays v. State, 963 N.E.2d 507, 510-11 (Ind. 2012) (concluding "that social security benefits may be considered ... in determining a defendant's ability to pay restitution" because failing to do so "may paint a distorted picture of her ability to pay restitution"); In re Lamport, 856 N.W.2d 192, 200 (Mich. Ct. App. 2014) (finding "no error ... in the trial court's consideration of ... SSDI benefits as income" in determining ability to pay restitution).

An order of restitution lies within the trial court's discretion and will be reversed only where there has been an abuse of discretion. Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012). A trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstances or when the trial court has misinterpreted the law.

The trial court must inquire into the defendant's ability to pay to prevent indigent defendants from being imprisoned because of their inability to pay. Pearson v. State , 883 N.E.2d 770, 772 (Ind. 2008). [26] While such an inquiry is required under I.C. § 35-38-2-2.3(a)(6), the extent of that inquiry is not specified, nor is a precise procedure set forth for determining a defendant's ability to pay. Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012). "[S]ome sort of inquiry is required," however, such as the defendant's "financial information, health, and employment history." Id.