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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. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

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