FOR PUBLICATION
FILED
Aug 14 2012, 9:27 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
VALERIE K. BOOTS GREGORY F. ZOELLER
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CARLIN ILTZSCH, )
)
Appellant, )
)
vs. ) No. 49A02-1112-CR-1164
)
STATE OF INDIANA, )
)
Appellee. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Jeffrey Marchal, Judge Pro Tempore
Cause Nos. 49G06-1106-FB-38359 & 49G06-0412-FB-228844
August 14, 2012
OPINION – FOR PUBLICATION
MATHIAS, Judge
Carlin Iltzsch (“Iltzsch”) appeals following his conviction for Class B felony
burglary. On appeal, Iltzsch argues that the trial court abused its discretion in ordering
him to pay restitution in the amount of $711.95.
We reverse and remand with instructions.
Facts and Procedural History
On May 30, 2011, James Whittemore (“Whittemore”) was working in his
unattached garage on his property in Indianapolis. At around 1:00 p.m., Whittemore
headed toward his house for a break. As he approached the house, he saw that the door to
his screened-in porch was open and that his bicycle had been moved. When Whittemore
attempted to open the door leading from the porch into his house, he felt someone pulling
on the door from the inside. Whittemore was able to get the door open, and he entered
his house to find Iltzsch standing in his kitchen. Whittemore then told Iltzsch to get out,
and Iltzsch fled on foot. Police apprehended Iltzsch shortly thereafter within a few
blocks of Whittemore’s house. After Iltzsch left, Whittemore saw that his television,
which had previously been on his kitchen counter, was lying screen-down on the floor.
Additionally, a BB gun, beer from Whittemore’s refrigerator, and a few small items from
his home were missing. Whittemore found these items a few days later in a trash bag in
his kitchen.
The State charged Iltzsch with Class B felony burglary on June 1, 2011, and
subsequently filed an habitual offender allegation. Iltzsch waived his right to a trial by
jury and, following a bench trial, he was found guilty as charged and adjudged to be an
habitual offender. The trial court sentenced Iltzsch to twelve years on the burglary count,
2
enhanced by ten years based on the habitual offender finding. The trial court also ordered
Iltzsch to pay restitution to Whittemore in the amount of $711.95. The restitution order
was based solely on the “Victim Impact Statement” written by the officer who prepared
Iltzsch’s Pre-Sentence Investigation Report (“PSI”). In the statement, the officer
indicated that Whittemore had informed her that nothing was taken during the burglary,
but that Iltzsch had destroyed his antique record collection, which was worth
“approximately $300.00” and that his television “had to be replaced and the loss was
$411.95.” PSI p. 13. Iltzsch now appeals.
Discussion and Decision
We first address the State’s contention that Iltzsch has waived appellate review of
the restitution order because he failed to object at trial on the basis he now asserts on
appeal. At trial, Iltzsch objected to the entry of the restitution order, but only on the basis
that Iltzsch had maintained his innocence. As a general matter, a party may not object on
one basis at trial and argue a different basis on appeal. Houser v. State, 823 N.E.2d 693,
698 (Ind. 2005). Iltzsch concedes that he did not object at trial on the basis he asserts on
appeal, but argues that appellate review is not foreclosed because a restitution order is
part of a sentence, and an illegal sentence constitutes fundamental error.
We acknowledge that this court has held that a defendant who fails to object at
trial to the entry of a restitution order or to the admission of evidence concerning the
amount of restitution waives appellate review of the issue. See Long v. State, 867 N.E.2d
606, 618 (Ind. Ct. App. 2007) (holding that failure to object to the trial court’s receipt of
evidence concerning the amount of restitution constitutes waiver of any issue concerning
3
the amount of restitution); Davis v. State, 772 N.E.2d 535, 540-41 (Ind. Ct. App. 2002)
(holding that the defendant waived his argument that the trial court abused its discretion
in entering a restitution order by failing to object to the entry of the order), trans. denied;
Mitchell v. State, 730 N.E.2d 197, 201 (Ind. Ct. App. 2000) (holding that the defendant
waived appellate review of a restitution order both because he failed to object to the order
and because he had invited the error by agreeing to pay for the victim’s counseling),
trans. denied; Kellett v. State, 716 N.E.2d 975, 980-81 (Ind. Ct. App. 1999) (holding that
the defendant had waived her argument that the restitution order exceeded the actual loss
incurred by the victim by failing to object to the entry of the order at trial).
However, as this court has recently noted, “the vast weight of the recent caselaw in
this state indicates that appellate courts will review a trial court’s restitution order even
where the defendant did not object based on the rationale that a restitution order is part of
the sentence, and it is the duty of the appellate courts to bring illegal sentences into
compliance.” Rich v. State, 890 N.E.2d 44, 48 (Ind. Ct. App. 2008) (citing Lohmiller v.
State, 884 N.E.2d 903, 916 (Ind. Ct. App. 2008); Kline v. State, 875 N.E.2d 435, 438
(Ind. Ct. App. 2007); Laker v. State, 869 N.E.2d 1216, 1220 (Ind. Ct. App. 2007);
Bennett v. State, 862 N.E.2d 1281, 1287 (Ind. Ct. App. 2007); Johnson v. State, 845
N.E.2d 147, 153 (Ind. Ct. App. 2006), trans. denied; Ware v. State, 816 N.E.2d 1167,
1179 (Ind. Ct. App. 2004); Green v. State, 811 N.E.2d 874, 877 (Ind. Ct. App. 2004);
Cherry v. State, 772 N.E.2d 433, 440 (Ind. Ct. App. 2002)) (internal quotations omitted),
trans. denied. We agree with the weight of the authority and will therefore proceed to
address Iltzsch’s argument on the merits.
4
Iltzsch argues that the evidence submitted at his sentencing hearing concerning the
victim’s loss was insufficient to support the trial court’s order of restitution. “‘The
purpose of a restitution order is to impress upon the criminal defendant the magnitude of
the loss he has caused and to defray costs to the victims caused by the offense.’”
Bennett, 862 N.E.2d at 1286 (quoting Henderson v. State, 848 N.E.2d 341, 346 (Ind. Ct.
App. 2006)). It is within the trial court’s discretion to order restitution, and we will
reverse only for an abuse of that discretion. Id. An abuse of discretion occurs if the trial
court’s decision is clearly against the logic and effect of the facts and circumstances
before it, or if the trial court misinterprets or misapplies the law. Id.
Indiana Code section 35-50-5-3(a) provides that, in addition to any sentence
imposed for a felony or misdemeanor, a court may order the payment of restitution to the
victim of the crime. “The court shall base its restitution order upon a consideration of:
(1) property damages of the victim incurred as a result of the crime, based on the actual
cost of repair (or replacement if repair is inappropriate)[.]” Id. (emphasis added). Thus,
a trial court’s restitution order must be supported by sufficient evidence of actual loss
sustained by the victim of a crime. Rich, 890 N.E.2d at 49. This court has held that
“‘[t]he amount of actual loss is a factual matter that can be determined only upon the
presentation of evidence.’” Id. (quoting Bennett, 862 N.E.2d at 1286). “Evidence
supporting a restitution order is sufficient ‘if it affords a reasonable basis for estimating
loss and does not subject the trier of fact to mere speculation or conjecture.’” J.H. v.
State, 950 N.E.2d 731, 734 (Ind. Ct. App. 2011) (quoting M.L. v. State, 838 N.E.2d 525,
528 (Ind. Ct. App. 2005), trans. denied)).
5
We believe that this court’s decision in J.H., though not precisely on point, is
instructive when considering the type of evidence necessary to support a restitution order.
In J.H., J.H. was adjudicated a delinquent child after he attempted to enter a neighbor’s
home without permission and, in doing so, damaged a door. Id. at 733. The juvenile
court entered a restitution order in the amount of $1,117.65. The only support for the
order came in the form of the prosecutor’s statements regarding two pieces of paper,
which the victim described as estimates and provided to the prosecutor shortly before two
separate hearings. No copies of these estimates were provided to defense counsel or
admitted into evidence, and no additional evidence or testimony concerning either
estimate was presented. Id.
This court held that the restitution order was not supported by reasonable
evidence. Id. at 734. The court reasoned that
on two separate occasions, the victim waited until shortly before the
hearing to give the deputy prosecutor a piece of paper with a dollar amount
on it. The deputy prosecutor informed the juvenile court of the victim’s
late submissions and of the amount on the papers. The deputy prosecutor
made no other statements and presented no other evidence to show the
legitimacy of the pieces of paper. Neither of the purported estimates was
placed into evidence and neither is available for our review, so we cannot
determine whether the dollar amounts were listed on papers containing any
information, such as a letterhead, which would show the court that the
paper came from a legitimate business. Furthermore, neither “estimate”
showed the cost of labor and materials. Most importantly, the juvenile
court failed to recognize that the State held the burden to establish the
validity of the “estimates.” We can come to no other conclusion than that
the “estimates” were mere speculation or conjecture and that the juvenile
court’s order is clearly against the logic and effect of the facts and
circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.
Id.
6
We believe the evidence in this case is analogous to that at issue in J.H. Here, the
only evidence supporting the trial court’s restitution order is the “Victim’s Impact
Statement” contained in the PSI. PSI p. 13. The statement provides that the probation
officer who prepared the PSI contacted Whittemore by mail to inform him about the
possibility of restitution, among other things. The statement provides further that
Whittemore “advised” that nothing had been taken during the burglary, but that Iltzsch
had “destroyed his antique record collection valued at approximately $300.00.” Id. The
statement provided further that Whittemore indicated that his “television had to be
replaced and the loss was $411.95.”1 Id. Thus, the only evidence supporting the
restitution order is the probation officer’s secondhand account of Whittemore’s bare,
unsworn assertions that his property had been damaged and that his total loss was
$711.95, without any supporting documentation or testimony, and without any
explanation of how the property was damaged or how Whittemore arrived at these
valuations.
With respect to the record collection, the PSI does not explain how the records
were damaged, or provide an itemized statement of how many records there were and
their age or type, or explain the basis for Whittemore’s valuation. Absent any evidence
to the contrary, we can only come to the conclusion that Whittemore’s valuation of the
record collection was based on mere speculation and conjecture.
1
It is unclear whether Whittemore provided this information to the officer verbally or if he responded to her letter in
writing, but there is no written documentation from Whittemore attached to the PSI or contained elsewhere in the
record.
7
As to the television, the PSI simply states that the television “had to be replaced”
and that “the loss” amounted to $411.95. Whittemore testified at trial that he found his
television lying screen-down on the floor immediately after the burglary, but he did not
testify that the television was damaged and to what extent. And it is unclear whether the
$411.95 figure represents the amount Whittemore originally paid for the television, his
calculation of its depreciated value as of the date of the burglary, or the amount
Whittemore paid for a new television. And if the figure represents the replacement cost
of the television, the State set forth no evidence establishing that the new television was
comparable in quality to the allegedly damaged one. See S.G. v. State, 956 N.E.2d 668,
683 (Ind. Ct. App. 2011) (“Restitution is not a means by which a victim may obtain better
or more state of the art equipment.”).
We also find it troubling that here, like in J.H., it appears that the defendant was
not provided with the information that formed the basis of the restitution order until
shortly before the sentencing hearing. The trial court ordered the PSI on November 16,
2011, the date of Iltzsch’s trial. The PSI is file-stamped November 29, 2011—the day
before Iltzsch’s sentencing hearing. On the date of Iltzsch’s sentencing hearing, the trial
court noted that Iltzsch was brought “directly into the court room so he could read the
[PSI] over with his attorney.” Tr. p. 84. Thus, it appears that Iltzsch did not have a
meaningful opportunity to investigate the assertions made in the PSI. Indeed, it is unclear
whether Iltzsch was even on notice prior to the sentencing hearing that the State intended
to request a restitution order. However, this issue could have been remedied by making a
request for a continuance, which Iltzsch’s counsel failed to do.
8
The State bore the burden of establishing the validity of the claimed restitution
amounts. The State could accomplish this in a number of ways, including: (1) eliciting
sworn testimony from the victim at the trial or sentencing hearing, (2) obtaining an
affidavit from the victim, or (3) introducing documentation of the claimed damages, such
as photographs, appraisals, estimates, or receipts, into evidence. Here, the State made
no effort whatsoever to establish the validity of the unsworn, unsupported hearsay
assertions attributed to Whittemore in the PSI, but instead, simply asked the court to enter
a restitution order in the amount of $711.95 as reflected in the PSI. We conclude that
more was required. Accordingly, we hold that the trial court abused its discretion in
entering the restitution order.
Finally, we address the State’s argument that, even if we conclude that the trial
court abused its discretion in entering the restitution order, the proper remedy is remand
for a new restitution hearing. There is support in our caselaw for this proposition. See,
e.g., Lohmiller, 884 N.E.2d at 916-17 (concluding that there was no evidentiary basis for
a restitution order in favor of County, but remanding with instructions to determine the
actual damages, if any, suffered as a result of defendant’s crimes); T.C. v. State, 839
N.E.2d 1222, 1227 (Ind. Ct. App. 2005) (concluding that there was an inadequate factual
basis for the trial court’s restitution order and remanding for a new restitution hearing).
But this has not been invariably the case. In Cooper v. State, 831 N.E.2d 1247, 1254
(Ind. Ct. App. 2005), this court reversed a trial court’s restitution order, concluding that it
was not supported by the evidence. This court also concluded that a $2,500 fine imposed
on the defendant was inappropriate under Appellate Rule 7(B). Id. at 1254-55. Although
9
the court remanded with instructions for the trial court to conduct further proceedings
concerning the fine, the court did not instruct the trial court to conduct a new restitution
hearing. Id.
The State had a full and fair opportunity to obtain and present evidence concerning
Whittemore’s actual loss at Iltzsch’s sentencing hearing, but failed to do so. We believe
that allowing the State to conduct a new restitution hearing and to present additional
evidence concerning the loss would allow the State an inappropriate second bite at the
apple. We therefore conclude that the State is not entitled to hold a new restitution
hearing, and remand with instructions for the trial court to vacate its restitution order.
We acknowledge that Whittemore must now resort to civil process if he wishes to seek
redress for his losses. However, this remedy will require nothing more than what the law
requires: sufficient, admissible evidence to support his claims.
Reversed and remanded with instructions.
ROBB, C.J., concurs.
BAILEY, J., dissents with opinion.
10
IN THE
COURT OF APPEALS OF INDIANA
CARLIN T. ILTZSCH, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1112-CR-1164
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
BAILEY, Judge, dissenting
The majority concludes that the State did not produce competent evidence of the
damages Iltzsch’s burglary caused to Whittemore, and thus vacates the restitution order
the State sought and the trial court imposed upon Iltzsch. While I agree with the majority
that there is insufficient evidence to support the amount awarded in restitution, I do not
agree with its conclusion that the State is not entitled to conduct a new restitution hearing.
I therefore respectfully dissent.
Under Indiana Code section 35-50-5-3, a trial court may order an individual
convicted of a crime to make restitution to the victim of the crime “in addition to any
11
sentence imposed.” Ind. Code § 35-50-5-3(a). The statute goes on to set forth those
expenses for which a trial court may order restitution; among these are “property
damages of the victim incurred as a result of the crime, based on the actual cost of repair”
or replacement. I.C. § 35-50-5-3(a)(1). “The purpose behind an order of restitution is to
impress upon the criminal defendant the magnitude of the loss he has caused and to
defray costs to the victim caused by the offense.” Carswell v. State, 721 N.E.2d 1255,
1259 (Ind. Ct. App. 1999) (emphasis added).
The majority notes that “[t]he State had a full and fair opportunity to obtain and
present evidence concerning Whittemore’s actual loss” yet failed to do so. Slip Op. at 10.
Yet vacating the restitution order and foreclosing the State from presenting competent
evidence upon remand does nothing to advance the purposes of a restitution order. It
certainly creates more frustration for the victim of Iltzsch’s offense, who, if he is to
obtain relief, now faces the additional time and expense to pursue a civil action against
Iltzsch. And it does nothing for an overburdened court system which will be asked to
undertake duplicative and less-effective efforts at collecting damages caused by Iltzsch’s
criminal acts.
The majority points to this court’s decision in Cooper v. State, 831 N.E.2d 1247
(Ind. Ct. App. 2005), as vacating a trial court’s restitution order. Yet Cooper is readily
distinguishable from the case now before us. The Cooper court concluded that there was
no evidence in the record to establish that a restitution order of any kind was appropriate
because the lost wages to which the victim’s parents laid claim were not shown to have
any necessary connection to the effects of the offense. Id. at 1253-54 (noting “there is no
12
documentation in the record before us that the lost wages claimed … were for work
absences occasioned by the counseling sessions,” nor was there evidence “to indicate any
basis for [the victim’s] stepmother having had to miss work”). There is no question that
Whittemore’s belongings were disturbed; unlike Cooper, only the amount of
Whittemore’s loss is at issue, not its cause. See I.C. 35-50-5-3(a)(1).
A restitution order is much more effective in collecting damages than any civil
suit, and following the majority’s approach simply victimizes Whittemore once more
while imposing additional, unnecessary burdens on the trial court. I would remand this
matter to the trial court to require the State to do its job and pursue restitution for
Whittemore with competent evidence, or otherwise advise the court that it does not intend
to pursue restitution on the victim’s behalf. I must therefore respectfully dissent.
13
Carlin Iltzsch v. State of Indiana
Combined Opinion