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Sentence upheld, but restitution order needs a second look

September 30, 2015

The man ordered to pay $10,000 in restitution to his ex-wife following misdemeanor convictions of invasion of privacy and criminal mischief will get a new hearing on the matter after the Court of Appeals sent the case back to the trial court.

Jason Henderson pleaded guilty to the two charges, which stemmed from an incident involving his ex-wife, Stephanie Hahn. They have two children together and there is a no-contact order in place preventing Henderson from having any contact with her except for communication about the children.

One day, Hahn dropped the children off with Henderson for a scheduled visit but returned after her daughter texted saying their father was yelling at them. While trying to leave his driveway, Henderson yelled at Hahn, grabbed her car window and punched a dent into her front fender.

The trial court, noting Henderson’s criminal history and that he was on probation for a similar offense committed against Hahn, ordered him to serve consecutive terms of 365 days for each offense. The court also imposed $5,000 fines for each count, but did not hold an indigency hearing.

In Jason A. Henderson v. State of Indiana, 34A02-1501-CR-33, the appeals court rejected Henderson’s claim that the trial court abused its discretion by ordering him to serve consecutive sentences because the two convictions arose from the same facts and circumstances. He pointed to no caselaw or statute to support his argument. The court had to find at least one aggravating circumstance before imposing consecutive sentences, which it did: Henderson’s significant criminal history.

But the court did err when it ordered him to pay $10,000 without holding an indigency hearing as required by I.C. 35-38-1-18. The matter is remanded for further proceedings.
 

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