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COA: Courts need to consider proportionality of damages in restitution orders

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The Indiana Court of Appeals upheld a Franklin Circuit judge’s decision to require a defendant to pay restitution and a fine after he entered into an open plea agreement on a burglary charge. But the judges instructed trial courts to consider apportioning the amount of restitution among co-perpetrators in relation to each person’s contribution to the victim’s loss.

Jesus Gil pleaded guilty in August 2012 to one count of Class B felony burglary pursuant to an unwritten plea agreement. In return, a second count of felony burglary was dismissed. The charges stemmed from his involvement in a home invasion in which jewelry and other items were taken in December 2010. Gil was sentenced by Franklin Circuit Judge J. Steven Cox to 12 years in the Department of Correction with two years suspended to probation. He was ordered to pay a $250 fine and the victims $20,000 in restitution, jointly and severally with the three other perpetrators.

Gil challenged the imposition of the fine and restitution order, the probation terms and his sentence in Jesus S. Gil v. State of Indiana, 24A04-1211-CR-603.  

The appellate judges affirmed Cox’s order that Gil must pay the fine and restitution because the open plea agreement left sentencing up to Cox’s discretion, but the COA did order a new hearing on the restitution. There wasn’t sufficient evidence that the victim suffered a loss of $20,000.

At the new hearing, Cox should consider whether imposing joint and several liability for the full amount of the restitution order is constitutionally proportionate under Article I, Section 16 of the Indiana Constitution to the nature of the offense committed by Gil when he only caused a portion of the damages and in relation to the sentences entered against the other co-defendants. The COA pointed out that all sentencing courts should consider these circumstances.

The trial court also abused its discretion by not specifying the conditions of Gil’s probation. The trial court failed to provide him a written statement of probation terms and, although the judge did orally indicate that no contact with the victim was a term of the probation, Gil never acknowledged he understood this as a term of his probation, Judge Paul Mathias wrote. The judges ordered Cox to enter written probation terms.

They also affirmed Gil’s sentence as appropriate given the nature of the offense and his character.

 

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

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