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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues