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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. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  2. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  3. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

  4. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

  5. Marijuana is safer than alcohol. AT the time the 1937 Marijuana Tax Act was enacted all major pharmaceutical companies in the US sold marijuana products. 11 Presidents of the US have smoked marijuana. Smoking it does not increase the likelihood that you will get lung cancer. There are numerous reports of canabis oil killing many kinds of incurable cancer. (See Rick Simpson's Oil on the internet or facebook).

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