Patrick Hardy v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Feb 16 2016, 6:16 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. O’Connor Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana

Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Patrick Hardy, February 16, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1506-CR-495 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Marc Rothenberg, Appellee-Plaintiff. Judge The Honorable Amy Barbar, Magistrate Trial Court Cause No. 49G02-1408-F2-40133

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-495 | February 16, 2016 Page 1 of 7 ^[1] Patrick Hardy appeals the order of restitution following his conviction for

Burglary as a Level 2 felony.1 The trial court ordered Hardy to pay $2000 in

restitution as a condition of probation without inquiring into Hardy’s ability to

pay and without the State presenting any evidence in support of the amount of

restitution ordered. Hardy claims this was an abuse of discretion.

^[2] We reverse and remand.

Facts & Procedural History

^[3] On the afternoon of August 11, 2014, eighteen-year-old Hardy and his older

brother, Paris, broke into the home of the Ablanalp family. Brothers Bryce and

Kaleb Ablanalp were home at the time. Hardy and Paris damaged the front

door to the residence and an interior door during the burglary. Armed with a

handgun, Paris struck Kaleb in the side of the head with the gun. Hardy took

Kaleb’s iPhone from him, as well as a tablet from Kaleb’s bedroom. Hardy and

Paris might have also taken a camera from the front room of the residence, but

Kaleb indicated that it “could have just been lost.” Transcript at 58.

^[4] The State charged Hardy, on August 21, 2014, with Level 2 felony burglary and

Level 3 felony armed robbery.2 Hardy and Paris were tried together at a bench

trial on April 10, 2015. The two were found guilty as charged. At Hardy’s

1 Ind. Code Ann. § 35-43-2-1. 2 Paris was similarly charged, along with an additional handgun offense.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-495 | February 16, 2016 Page 2 of 7  sentencing hearing, the trial court entered a judgment of conviction on the

burglary charge only. The court sentenced him to ten years executed, with four

years suspended and two years of probation. Additionally, the court entered a

restitution order of $2000 as a special term and condition of probation.

Restitution was ordered to be joint and several with the order against Paris. On

appeal, Hardy challenges only the restitution order. Additional facts will be

presented below as needed.

Discussion & Decision

^[5] At the sentencing hearing, the following colloquy occurred regarding restitution

after review of the presentence investigation report:

[State]: The only addition from the State would be the restitution amount.

[Court]: Okay.

[State]: Judge, that would be $1,000.00 for the front door and door frame, $500.00 for the damage to the interior door, and $150.00 for the Kindle that was stolen…. $200.00 for the iPhone 5, $150.00 for a Nikon camera that was stolen. That would be a grand total of $2,000.00.

[Court]: Have you shared these figures with Defense counsel?

[State]: I did just before the hearing started.

[Court]: Do you have any objection?

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-495 | February 16, 2016 Page 3 of 7  [Defense Counsel]: Your Honor, I guess my one objection would be to the Kindle, I guess, in the fact that I remember in the trial, there was never possession I guess of that proved, that Kindle.

[Court]: Yeah. And my Kindle only cost $99.00. So I don’t know what kind of Kindle it was, but – yeah. The Court did find that it hadn’t been shown the – the pawned Kindle?

[Defense Counsel]: And I don’t remember the camera ever being shown either as being claimed of being stolen.

[Court]: I think there was testimony that they – that it was stolen, right? And the Kindle was – there was also testimony a Kindle was stolen.

[State]: The camera came to light later, I think. The camera wasn’t initially reported but then eventually they figured out that the camera had come up missing during the course of this robbery.

I think there was evidence that the Kindle was stolen. There’s evidence that [the Kindle was pawned]. And so we would be seeking the full $2,000.

[Court]: Okay. We can talk about that.

Id. at 187-88. After testimony from defense witnesses, the State presented no

evidence regarding restitution and simply requested “the restitution

amount…noted previously.” Id. at 214. Prior to awarding the requested

restitution, the trial court made no inquiry into Hardy’s ability to pay.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-495 | February 16, 2016 Page 4 of 7 ^[6] Hardy argues on appeal that the trial court abused its discretion by ordering

restitution without sufficient evidence and without inquiring into his ability to

pay. The State responds that Hardy objected to only $300 out of the $2000

amount of restitution and, therefore, “implicitly agreed to pay restitution for the

remaining items.” Appellee’s Brief at 6.

^[7] Ind. Code § 35-38-2-2.3(a)(6) provides that as a condition of probation, the trial

court may order the defendant to make restitution to the victim for damage

sustained by the victim. When doing so, “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.” Id. An award of restitution is within the trial

court’s discretion, and we will reverse only upon a showing of an abuse of

discretion. C.H. v. State, 15 N.E.3d 1086, 1096 (Ind. Ct. App. 2014), trans.

denied.

^[8] Authority exists for the proposition that failure to object to the imposition of

restitution generally constitutes waiver of a challenge to the award on appeal

unless the defendant argues that the award was fundamentally erroneous or in

excess of statutory authority. See, e.g., Morris v. State, 2 N.E.3d 7, 9 (Ind. Ct.

App. 2013) (opinion on rehearing). Nevertheless, the vast weight of recent case

law indicates that our appellate courts will review a trial court’s restitution

order even where the defendant did not object. See, e.g., Iltzsch v. State, 972

N.E.2d 409, 412 (Ind. Ct. App. 2012), aff’d in relevant part, 981 N.E.2d 55 (Ind.

2013); Rich v. State, 890 N.E.2d 44, 48-49 (Ind. Ct. App. 2008), trans. denied.

Our preference for reviewing restitution orders even absent an objection is

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-495 | February 16, 2016 Page 5 of 7  based on our duty to bring illegal sentences into compliance with the law.

Iltzsch, 972 N.E.2d at 412. We will not, however, review restitution orders

where the defendant has “affirmatively agreed” to the imposition of restitution.

C.H., 15 N.E.3d at 1096-97 (“C.H. did not object to the juvenile court ordering

him to pay restitution and, in fact, affirmatively agreed to pay the requested

restitution” and therefore invited the error). Accordingly, appellate review of

the sufficiency of the evidence underlying a restitution order is precluded only

when the defendant both does not object and expressly agrees to the terms of

restitution.

^[9] As set forth above, the State argues that Hardy implicitly agreed to pay

restitution in the amount of $1700 by objecting to only a portion of the State’s

requested restitution. Hardy’s failure to object to the other requested restitution

was just that – a failure to object. It did not amount to an affirmative

agreement by Hardy to any portion of the amount of restitution demanded by

the State. Accordingly, Hardy’s sufficiency argument is properly before us, and

reversal of the restitution order is warranted in light of the complete lack of

evidence presented by the State.

^[10] On remand, the trial court is directed to hold a new restitution hearing at which

the State must present evidence in support of its claimed amount of restitution.

See Iltzsch, 981 N.E.2d at 56-57. Additionally, the trial court shall inquire into

Hardy’s ability to pay restitution.

^[11] Judgment reversed and remanded.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-495 | February 16, 2016 Page 6 of 7 ^[12] Robb, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-495 | February 16, 2016 Page 7 of 7