Jesus S. Gil v. State of Indiana
2013 Ind. App. LEXIS 269
| Ind. Ct. App. | 2013Background
- Gil pleaded guilty to Class B felony burglary with an open plea; he was sentenced to 12 years with 2 years suspended to probation.
- The trial court imposed a $250 fine and $20,000 in restitution jointly and severally with co-perpetrators.
- The burglary concerned December 30, 2010, involving jewelry stolen from Lopez’s home; Count II was dismissed.
- The record lacked written probation terms; the court only orally indicated no-contact with the victim as a term.
- The restitution amount lacked evidentiary support for the value of stolen jewelry and other damages; the amount was deemed improper.
- This appeal challenges probation terms, the imposition of a fine and restitution, joint/several liability, and the overall sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probation terms must be written | Gil argues lack of written probation terms violated §35-38-2-1. | Gil contends oral terms are insufficient to constitute probation conditions. | Remand for written probation terms required. |
| Imposition of restitution and fine not in unwritten plea | State asserts open plea allows court discretion to impose restitution and fine under §35-50-5-3. | Gil contends restitution/fine were not provided for in the plea or statute, and amount may be improper. | Court did not abuse discretion on open plea grounds, but restitution amount warrants remand for proper foundation. |
| Joint and several restitution | Restitution was ordered joint and several with co-perpetrators. | Proportionate/apportioned liability may be more appropriate given varying involvement. | Remand to consider apportionment; joint/several issue unresolved pending restitution hearing. |
| Sentence appropriateness | Gil argues the sentence is inappropriate given the offense and his character. | Gil emphasizes his remorse but notes lengthy prior history; requests revision. | Courts upholding sentence; not inappropriate in light of nature and character. |
Key Cases Cited
- Lang v. State, 911 N.E.2d 131 (Ind. Ct. App. 2009) (restitution and probation-related guidelines for abuse of discretion review)
- Corralez v. State, 815 N.E.2d 1023 (Ind. Ct. App. 2004) (abuse of discretion standards in sentencing and restitution orders)
- Kerrigan v. State, 540 N.E.2d 1251 (Ind. Ct. App. 1989) (written terms required; oral advisement may be insufficient)
- Iltzsch v. State, 981 N.E.2d 55 (Ind. 2013) (remand for restitution hearing when record lacks adequate proof)
- Polen v. State, 578 N.E.2d 755 (Ind. Ct. App. 1991) (restitution awarded only for damages incurred by the crime; if not convicted for related conduct, cannot base restitution on that)
- Rich v. State, 890 N.E.2d 44 (Ind. Ct. App. 2008) (when restitution is part of probation, ability to pay must be considered and payment manner fixed)
- Edsall v. State, 983 N.E.2d 200 (Ind. Ct. App. 2013) (distinguishable treatment of restitution/plea specificity; remand guidance)