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COA finds evidence supporting restitution order too flimsy

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A victim of a burglary will have to turn to the civil process to get restitution after the Indiana Court of Appeals reversed and remanded with instructions a trial court’s order that provided the victim with $711.95 in compensation.

The state charged Carlin Iltzsch with Class B felony burglary and filed a habitual offender allegation after he was caught burglarizing the Indianapolis home of James Whittemore on May 30, 2011. Iltzsch was found guilty and sentenced to 12 years on the burglary court, enhanced by 10 years based on the habitual offender finding.

In addition, the trial court ordered Iltzsch to pay restitution in the amount of $711.95. The restitution order was based solely on the Victim Impact Statement from Whittemore.

Iltzsch appealed, arguing the evidence submitted at his sentencing hearing about the victim’s loss was insufficient to support the trial court’s order of restitution.

Although the COA acknowledged a defendant waives appellate review of the restitution order if he or she fails to object at trial to the entry of the restitution order or to the evidence concerning the amount of the restitution, it noted the “vast weight of recent caselaw” that indicates appellate courts will review restitution orders even where the defendant did not object.

The COA then cited J.H. v. State, 950 N.E.2d 731, 734 (Ind. Ct. App. 2011), as being instructive when considering the type of evidence necessary to support a restitution order. Whittemore only provided “bare, unsworn assertions” that his property had been damaged and that his total loss was $711.95.  

Writing for the majority, Judge Paul Mathias concluded, “The State had a full and fair opportunity to obtain and present evidence concerning Whittemore’s actual loss at Iltzsch’s sentencing hearing, but failed to do so. We believe that allowing the State to conduct a new restitution hearing and to present additional evidence concerning the loss would allow the State an inappropriate second bite at the apple. We therefore conclude that the State is not entitled to hold a new restitution order. We acknowledge that Whittemore must now resort to the civil process if he wishes to seek redress for his losses. However, this remedy will require nothing more than what the law requires: sufficient, admissible evidence to support his claims.”

 

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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