Carlin Iltzsch v. State of Indiana
972 N.E.2d 409
Ind. Ct. App.2012Background
- Iltzsch was convicted of Class B felony burglary after a bench trial in Indianapolis.
- Whittemore’s belongings were disturbed during the burglary, including a television and a destroyed antique record collection.
- Restitution of $711.95 was ordered, based solely on a Victim Impact Statement in the PSI prepared by a probation officer.
- The PSI attributed losses to Whittemore without documentary support or sworn testimony.
- The trial court entered restitution in the judgment, and Iltzsch appealed challenging the restitution amount.
- The Indiana Court of Appeals reversed and remanded, finding the restitution lacked competent evidence of actual damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the restitution amount supported by actual loss evidence? | State contends the amount reflects Whittemore's claimed damages. | Iltzsch argues the PSI evidence is unsworn and insufficient to prove actual loss. | Restitution amount insufficiently proven; court abused discretion. |
| Did the failure to object at trial bar appellate review of restitution? | State argues waiver applies under several precedents. | Iltzsch claims he preserved error for appellate review despite lack of trial objection on the same ground. | Court proceeds to merits; however, revocation of restitution is sustained on the merits. |
| Is remand for a new restitution hearing proper when evidence is insufficient? | State would normally be allowed to present competent evidence on remand. | Iltzsch suggests remand is appropriate to allow proper evidentiary presentation. | Remand with instructions to vacate the restitution order; new hearing not ordered. |
Key Cases Cited
- Rich v. State, 890 N.E.2d 44 (Ind.Ct.App. 2008) (restitution evidence must reflect actual losses with substantial basis)
- Lohmiller v. State, 884 N.E.2d 903 (Ind.Ct.App. 2008) (illicit restitution requires adequate evidentiary support)
- Kline v. State, 875 N.E.2d 435 (Ind.Ct.App. 2007) (review of restitution based on proper foundation)
- Laker v. State, 869 N.E.2d 1216 (Ind.Ct.App. 2007) (evidentiary basis for restitution must be solid)
- Bennett v. State, 862 N.E.2d 1281 (Ind.Ct.App. 2007) (actual loss evidence required for restitution)
- Johnson v. State, 845 N.E.2d 147 (Ind.Ct.App. 2006) (restitution considerations grounded in actual damages)
- Ware v. State, 816 N.E.2d 1167 (Ind.Ct.App. 2004) (evidence and procedures for restitution review)
- Green v. State, 811 N.E.2d 874 (Ind.Ct.App. 2004) (restitution requires reliable valuations)
- Cherry v. State, 772 N.E.2d 433 (Ind.Ct.App. 2002) (burden to prove damages for restitution)
- J.H. v. State, 950 N.E.2d 731 (Ind.Ct.App. 2011) (restitution supported by admissible evidence; estimates insufficient)
- Cooper v. State, 831 N.E.2d 1247 (Ind.Ct.App. 2005) (remand not for duplicative restitution process where evidence lacking)