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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. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

  3. Ok attorney Straw ... if that be a good idea ... And I am not saying it is ... but if it were ... would that be ripe prior to her suffering an embarrassing remand from the Seventh? Seems more than a tad premature here soldier. One putting on the armor should not boast liked one taking it off.

  4. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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