Hardy v. State

• Decision Date: 16 February 2016
• Docket Number: No. 49A02–1506–CR–495.,49A02–1506–CR–495.
• Parties: Patrick HARDY, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

48 N.E.3d 386 (Table)

Patrick HARDY, Appellant–Defendant
v.
STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1506–CR–495.

Court of Appeals of Indiana.

Feb. 16, 2016.

Timothy J. O'Connor, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Jesse R. Drum, Deputy Attorney General Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION

ALTICE, Judge.

Case Summary

[1] Patrick Hardy appeals the order of restitution following his conviction for Burglary as a Level 2 felony.¹ The trial court ordered Hardy to pay $2000 in restitution as a condition of probation without inquiring into Hardy's ability to pay and without the State presenting any evidence in support of the amount of restitution ordered. Hardy claims this was an abuse of discretion.

[2] We reverse and remand.

Facts & Procedural History

[3] On the afternoon of August 11, 2014, eighteen-year-old Hardy and his older brother, Paris, broke into the home of the Ablanalp family. Brothers Bryce and Kaleb Ablanalp were home at the time. Hardy and Paris damaged the front door to the residence and an interior door during the burglary. Armed with a handgun, Paris struck Kaleb in the side of the head with the gun. Hardy took Kaleb's iPhone from him, as well as a tablet from Kaleb's bedroom. Hardy and Paris might have also taken a camera from the front room of the residence, but Kaleb indicated that it “could have just been lost.” Transcript at 58.

[4] The State charged Hardy, on August 21, 2014, with Level 2 felony burglary and Level 3 felony armed robbery.² Hardy and Paris were tried together at a bench trial on April 10, 2015. The two were found guilty as charged. At Hardy's sentencing hearing, the trial court entered a judgment of conviction on the burglary charge only. The court sentenced him to ten years executed, with four years suspended and two years of probation. Additionally, the court entered a restitution order of $2000 as a special term and condition of probation. Restitution was ordered to be joint and several with the order against Paris. On appeal, Hardy challenges only the restitution order. Additional facts will be presented below as needed.

Discussion & Decision

[5] At the sentencing hearing, the following colloquy occurred regarding restitution after review of the presentence investigation report:

[State]: The only addition from the State would be the restitution amount.

[Court]: Okay.

[State]: Judge, that would be $1,000.00 for the front door and door frame, $500.00 for the damage to the interior door, and $150.00 for the Kindle that was stolen.... $200.00 for the iPhone 5, $150 .00 for a Nikon camera that was stolen. That would be a grand total of $2,000.00.

[Court]: Have you shared these figures with Defense counsel?

[State]: I did just before the hearing started.

[Court]: Do you have any objection?

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