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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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  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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