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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  2. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  3. I agree. My husband has almost the exact same situation. Age states and all.

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  5. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

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