ILNews

Restitution continues beyond probation period

Jennifer Nelson
January 1, 2008
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The Indiana Supreme Court affirmed today that trial courts must inquire about a defendant's ability to pay when they order restitution as a condition of probation or a suspended sentence and a restitution obligation continues beyond the end of a probationary period.

However, in Jeffrey Pearson v. State of Indiana, No. 45S03-0712-CR-574, the high court affirmed the trial court's order for Pearson to pay at least $150 a month in restitution as a condition of his probation even though the trial court didn't inquire about his ability to pay.

On appeal, Pearson only raised the issue of whether the trial court erred in ordering him to pay more than $50,000 in restitution during his one-year probationary period without determining if he could pay that amount.

Pearson was a police officer in the East Chicago Police Department and served as treasurer of the Fraternal Order of Police Lodge #59. When two widows complained to the lodge they hadn't received death benefits following their husbands' deaths, an internal investigation showed that funds were missing.

Pearson agreed to plead guilty to a count of conversion to have a felony theft charge dismissed. He was sentenced to one year in the Lake County Jail, suspended and served on probation, and ordered to make restitution to the victims. The state introduced evidence to show Pearson should pay more than $50,000 in restitution; Pearson argued he should only have to pay $300, but introduced no evidence to support his amount.

The trial court accepted the terms of the plea agreement and without making a finding to his ability to pay, sentenced Pearson to pay $52,685.97 in restitution in increments of at least $150 a month.

The Court of Appeals reversed the trial court order because it failed to determine his ability to pay and remanded the cause to the trial court.

In the unanimous opinion authored by Justice Robert Rucker, the high court does hold that a trial court is required to ask about a defendant's ability to pay when it orders restitution as a condition of probation or of a suspended sentence. The reason behind this is to prevent indigent defendants from being imprisoned for violating probation as a result of failing to pay the restitution, wrote Justice Rucker.

Pearson's argument in appeal is an assumption his obligation to pay back the restitution ends when his probationary period stops, but Indiana statute and previous rulings show that the expiration of a probationary period doesn't terminate the defendant's obligation to make restitution to a crime victim, he wrote, citing Indiana Code Section 35-50-5-3(f) and Savage v. State, 655 N.E.2d 1223, 1225 (Ind. 1995).

The Supreme Court reinstated the trial court's order, finding that because Pearson didn't challenge the amount of restitution or his ability to pay the $150 a month, there isn't a need to remand to the trial court.
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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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