MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                           Feb 16 2016, 6:16 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. O’Connor                                      Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Patrick Hardy,                                           February 16, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1506-CR-495
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc Rothenberg,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Amy Barbar,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G02-1408-F2-40133



Altice, Judge.


                                         Case Summary


Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-495 | February 16, 2016           Page 1 of 7
[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




      1
          Ind. Code Ann. § 35-43-2-1.
      2
          Paris was similarly charged, along with an additional handgun offense.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-495 | February 16, 2016   Page 2 of 7
      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?

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-495 | February 16, 2016   Page 3 of 7
        [Defense Counsel]: Your Honor, I guess my one objection would
              be to the Kindle, I guess, in the fact that I remember in the
              trial, there was never possession I guess of that proved,
              that Kindle.


        [Court]:     Yeah. And my Kindle only cost $99.00. So I don’t
              know what kind of Kindle it was, but – yeah. The Court
              did find that it hadn’t been shown the – the pawned
              Kindle?


        [Defense Counsel]: And I don’t remember the camera ever being
              shown either as being claimed of being stolen.


        [Court]:     I think there was testimony that they – that it was
              stolen, right? And the Kindle was – there was also
              testimony a Kindle was stolen.


        [State]:      The camera came to light later, I think. The camera
               wasn’t initially reported but then eventually they figured
               out that the camera had come up missing during the
               course of this robbery.


                        I think there was evidence that the Kindle was
                 stolen. There’s evidence that [the Kindle was pawned].
                 And so we would be seeking the full $2,000.


        [Court]:         Okay. We can talk about that.


Id. at 187-88. After testimony from defense witnesses, the State presented no

evidence regarding restitution and simply requested “the restitution

amount…noted previously.” Id. at 214. Prior to awarding the requested

restitution, the trial court made no inquiry into Hardy’s ability to pay.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-495 | February 16, 2016   Page 4 of 7
[6]   Hardy argues on appeal that the trial court abused its discretion by ordering

      restitution without sufficient evidence and without inquiring into his ability to

      pay. The State responds that Hardy objected to only $300 out of the $2000

      amount of restitution and, therefore, “implicitly agreed to pay restitution for the

      remaining items.” Appellee’s Brief at 6.


[7]   Ind. Code § 35-38-2-2.3(a)(6) provides that as a condition of probation, the trial

      court may order the defendant to make restitution to the victim for damage

      sustained by the victim. When doing so, “the court shall fix the amount, which

      may not exceed an amount the person can or will be able to pay, and shall fix

      the manner of performance.” Id. An award of restitution is within the trial

      court’s discretion, and we will reverse only upon a showing of an abuse of

      discretion. C.H. v. State, 15 N.E.3d 1086, 1096 (Ind. Ct. App. 2014), trans.

      denied.


[8]   Authority exists for the proposition that failure to object to the imposition of

      restitution generally constitutes waiver of a challenge to the award on appeal

      unless the defendant argues that the award was fundamentally erroneous or in

      excess of statutory authority. See, e.g., Morris v. State, 2 N.E.3d 7, 9 (Ind. Ct.

      App. 2013) (opinion on rehearing). Nevertheless, the vast weight of recent case

      law indicates that our appellate courts will review a trial court’s restitution

      order even where the defendant did not object. See, e.g., Iltzsch v. State, 972

      N.E.2d 409, 412 (Ind. Ct. App. 2012), aff’d in relevant part, 981 N.E.2d 55 (Ind.

      2013); Rich v. State, 890 N.E.2d 44, 48-49 (Ind. Ct. App. 2008), trans. denied.

      Our preference for reviewing restitution orders even absent an objection is

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-495 | February 16, 2016   Page 5 of 7
       based on our duty to bring illegal sentences into compliance with the law.

       Iltzsch, 972 N.E.2d at 412. We will not, however, review restitution orders

       where the defendant has “affirmatively agreed” to the imposition of restitution.

       C.H., 15 N.E.3d at 1096-97 (“C.H. did not object to the juvenile court ordering

       him to pay restitution and, in fact, affirmatively agreed to pay the requested

       restitution” and therefore invited the error). Accordingly, appellate review of

       the sufficiency of the evidence underlying a restitution order is precluded only

       when the defendant both does not object and expressly agrees to the terms of

       restitution.


[9]    As set forth above, the State argues that Hardy implicitly agreed to pay

       restitution in the amount of $1700 by objecting to only a portion of the State’s

       requested restitution. Hardy’s failure to object to the other requested restitution

       was just that – a failure to object. It did not amount to an affirmative

       agreement by Hardy to any portion of the amount of restitution demanded by

       the State. Accordingly, Hardy’s sufficiency argument is properly before us, and

       reversal of the restitution order is warranted in light of the complete lack of

       evidence presented by the State.


[10]   On remand, the trial court is directed to hold a new restitution hearing at which

       the State must present evidence in support of its claimed amount of restitution.

       See Iltzsch, 981 N.E.2d at 56-57. Additionally, the trial court shall inquire into

       Hardy’s ability to pay restitution.


[11]   Judgment reversed and remanded.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-495 | February 16, 2016   Page 6 of 7
[12]   Robb, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-495 | February 16, 2016   Page 7 of 7
