Iltzsch v. State

• Decision Date: 14 August 2012
• Docket Number: No. 49A02–1112–CR–1164.,49A02–1112–CR–1164.
• Citation: 972 N.E.2d 409
• Parties: Carlin ILTZSCH, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

972 N.E.2d 409

Carlin ILTZSCH, Appellant,

v.STATE of Indiana, Appellee.

No. 49A02–1112–CR–1164.

Court of Appeals of Indiana.

Aug. 14, 2012.

Valerie K. Boots, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

Carlin Iltzsch (“Iltzsch”) appeals following his conviction for Class B felony burglary. On appeal, Iltzsch argues that the trial court abused its discretion in ordering him to pay restitution in the amount of $711.95.

We reverse and remand with instructions.

Facts and Procedural History

On May 30, 2011, James Whittemore (“Whittemore”) was working in his unattached garage on his property in Indianapolis. At around 1:00 p.m., Whittemore headed toward his house for a break. As he approached the house, he saw that the door to his screened-in porch was open and that his bicycle had been moved. When Whittemore attempted to open the door leading from the porch into his house, he felt someone pulling on the door from the inside. Whittemore was able to get the door open, and he entered his house to find Iltzsch standing in his kitchen. Whittemore then told Iltzsch to get out, and Iltzsch fled on foot. Police apprehended Iltzsch shortly thereafter within a few blocks of Whittemore's house. After Iltzsch left, Whittemore saw that his television, which had previously been on his kitchen counter, was lying screen-down on the floor. Additionally, a BB gun, beer from Whittemore's refrigerator, and a few small items from his home were missing. Whittemore found these items a few days later in a trash bag in his kitchen.

The State charged Iltzsch with Class B felony burglary on June 1, 2011, and subsequently filed an habitual offender allegation. Iltzsch waived his right to a trial by jury and, following a bench trial, he was found guilty as charged and adjudged to be an habitual offender. The trial court sentenced Iltzsch to twelve years on the burglary count, enhanced by ten years based on the habitual offender finding. The trial court also ordered Iltzsch to pay restitution to Whittemore in the amount of $711.95. The restitution order was based solely on the “Victim Impact Statement” written by the officer who prepared Iltzsch's Pre–Sentence Investigation Report (“PSI”). In the statement, the officer indicated that Whittemore had informed her that nothing was taken during the burglary, but that Iltzsch had destroyed his antique record collection, which was worth “approximately $300.00” and that his television “had to be replaced and the loss was $411.95.” PSI p. 13. Iltzsch now appeals.

Discussion and Decision

We first address the State's contention that Iltzsch has waived appellate review of the restitution order because he failed to object at trial on the basis he now asserts on appeal. At trial, Iltzsch objected to the entry of the restitution order, but only on the basis that Iltzsch had maintained his innocence. As a general matter, a party may not object on one basis at trial and argue a different basis on appeal. Houser v. State, 823 N.E.2d 693, 698 (Ind.2005). Iltzsch concedes that he did not object at trial on the basis he asserts on appeal, but argues that appellate review is not foreclosed because a restitution order is part of a sentence, and an illegal sentence constitutes fundamental error.

We acknowledge that this court has held that a defendant who fails to object at trial to the entry of a restitution order or to the admission of evidence concerning the amount of restitution waives appellate review of the issue. See Long v. State, 867 N.E.2d 606, 618 (Ind.Ct.App.2007) (holding that failure to object to the trial court's receipt of evidence concerning the amount of restitution constitutes waiver of any issue concerning the amount of restitution); Davis v. State, 772 N.E.2d 535, 540–41 (Ind.Ct.App.2002) (holding that the defendant waived his argument that the trial court abused its discretion in entering a restitution order by failing to object to the entry of the order), trans. denied; Mitchell v. State, 730 N.E.2d 197, 201 (Ind.Ct.App.2000) (holding that the defendant waived appellate review of a restitution order both because he failed to object to the order and because he had invited the error by agreeing to pay for the victim's counseling), trans. denied; Kellett v. State, 716 N.E.2d 975, 980–81 (Ind.Ct.App.1999) (holding that the defendant had waived her argument that the restitution order exceeded the actual loss incurred by the victim by failing to object to the entry of the order at trial).

However, as this court has recently noted, “the vast weight of the recent caselaw in this state indicates that appellate courts will review a trial court's restitution order even where the defendant did not object based on the rationale that a restitution order is part of the sentence, and it is the duty of the appellate courts to bring illegal sentences into compliance.” Rich v. State, 890 N.E.2d 44, 48 (Ind.Ct.App.2008) (citing Lohmiller v. State, 884 N.E.2d 903, 916 (Ind.Ct.App.2008); Kline v. State, 875 N.E.2d 435, 438 (Ind.Ct.App.2007); Laker v. State, 869 N.E.2d 1216, 1220 (Ind.Ct.App.2007); Bennett v. State, 862 N.E.2d 1281, 1287 (Ind.Ct.App.2007); Johnson v. State, 845 N.E.2d 147, 153 (Ind.Ct.App.2006), trans. denied; Ware v. State, 816 N.E.2d 1167, 1179 (Ind.Ct.App.2004); Green v. State, 811 N.E.2d 874, 877 (Ind.Ct.App.2004); Cherry v. State, 772 N.E.2d 433, 440 (Ind.Ct.App.2002)) (internal quotations omitted), trans. denied. We agree with the weight of the authority and will therefore proceed to address Iltzsch's argument on the merits.

Iltzsch argues that the evidence submitted at his sentencing hearing concerning the victim's loss was insufficient to support the trial court's order of restitution. “ ‘The purpose of a restitution order is to impress upon the criminal defendant the magnitude of the loss he has caused and to defray costs to the victims caused by the offense.’ ” Bennett, 862 N.E.2d at 1286 (quoting Henderson v. State, 848 N.E.2d 341, 346 (Ind.Ct.App.2006)). It is within the trial court's discretion to order restitution, and we will reverse only for an abuse of that discretion. Id. An abuse of discretion occurs if the trial court's decision is clearly against the logic and effect of the facts and circumstances before it, or if the trial court misinterprets or misapplies the law. Id.

Indiana Code section 35–50–5–3(a) provides that, in addition to any sentence imposed for a felony or misdemeanor, a court may order the payment of restitution to the victim of the crime. “The court shall base its restitution order upon a consideration of: (1) property damages of the victim incurred as a result of the crime, based on the actual cost of repair (or replacement if repair is inappropriate)[.]” Id. (emphasis added). Thus, a trial court's restitution order must be supported by sufficient evidence of actual loss sustained by the victim of a crime. Rich, 890 N.E.2d at 49. This court has held that “ ‘[t]he amount of actual loss is a factual matter that can be determined only upon the presentation of evidence.’ ” Id. (quoting Bennett, 862 N.E.2d at 1286). “Evidence supporting a restitution order is sufficient ‘if it affords a reasonable basis for estimating loss and does not subject the trier of fact to mere speculation or conjecture.’” J.H. v. State, 950 N.E.2d 731, 734 (Ind.Ct.App.2011) (quoting M.L. v. State, 838 N.E.2d 525, 528 (Ind.Ct.App.2005), trans. denied ).

We believe that this court's decision in J.H., though not precisely on point, is instructive when considering the type of evidence necessary to support a restitution order. In J.H., J.H. was adjudicated a delinquent child after he attempted to enter a neighbor's home without permission and, in doing so, damaged a door. Id. at 733. The juvenile court entered a restitution order in the amount of $1,117.65. The only support for the order came in the form of the prosecutor's statements regarding two pieces of paper, which the victim described as estimates and provided to the prosecutor shortly before two separate hearings. No copies of these estimates were provided to defense counsel or admitted into evidence, and no additional evidence or testimony concerning either estimate was presented. Id.

This court held that the restitution order was not supported by reasonable evidence. Id. at 734. The court reasoned that

on two separate occasions, the victim waited until shortly before the hearing to give the deputy prosecutor a piece of paper with a dollar amount on it. The deputy prosecutor informed the juvenile court of the victim's late submissions and of the amount on the papers. The deputy prosecutor made no other statements and presented no other evidence to show the legitimacy of the pieces of paper. Neither of the purported estimates was placed into evidence and neither is available for our review, so we cannot determine whether the dollar amounts were listed on papers containing any information, such as a letterhead, which would show the court that the paper came from a legitimate business. Furthermore, neither “estimate” showed the cost of labor and materials. Most importantly, the juvenile court failed to recognize that the State held the burden to establish the validity of the “estimates.” We can come to no other conclusion than that the “estimates” were mere speculation or conjecture and that the juvenile court's order is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.

Id.

We believe the evidence in this case is analogous to that at issue in J.H. Here, the only evidence supporting the trial court's restitution order is the “Victim's Impact Statement” contained in the PSI. PSI p. 13. The statement provides that the probation...