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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. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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