MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Nov 15 2019, 9:51 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                   Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                 Attorney General of Indiana
Brooklyn, Indiana                                       Evan Matthew Comer
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Howard D. Strickland,                                   November 15, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-921
        v.                                              Appeal from the Clay Superior
                                                        Court
State of Indiana,                                       The Honorable J. Blaine Akers,
Appellee-Plaintiff.                                     Senior Judge
                                                        Trial Court Cause Nos.
                                                        11D01-1609-F5-764
                                                        11D01-1902-F5-157



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-921 | November 15, 2019                Page 1 of 6
[1]   Howard D. Strickland appeals the trial court’s restitution orders. We remand.

                                      Facts and Procedural History

[2]   In September 2017, Strickland pled guilty to possession of chemical reagents or

      precursors as a level 6 felony and was sentenced to two years with one year

      suspended to probation under cause number 11D01-1609-F5-764 (“Cause No.

      764”). In February 2019, Strickland pled guilty to burglary as a level 5 felony,

      two counts of theft as level 6 felonies, and criminal mischief as a class B

      misdemeanor under cause 11D01-1902-F5-157 (“Cause No. 157”) and admitted

      to violating his probation in Cause No. 764 by using methamphetamine, failing

      to report for drug screens, and failing to pay fees. According to the probable

      cause affidavit in Cause No. 157, Jason Hofmann discovered that his barn door

      had been forced open and certain property belonging to him and Diana

      LaFollette was missing, and law enforcement identified Strickland based on

      information obtained from a security camera. The probable cause affidavit

      stated that law enforcement interviewed Strickland and included the following:

              [Strickland] walked with me, and the other deputies, and was cooperative in
              the matter. [He] pointed out several items inside his garage that were not
              his and that were taken from the pole building during the burglary. Those
              items included . . . .

              [Hofmann] identified several of the items surrendered by [Strickland]
              including the large red Craftsman air compressor, several batteries, battery
              cables, a DeWalt drill, DeWalt battery chargers, DeWalt drill bags, a
              DeWalt battery operated reciprocating saw, an air tank, two (2) ohm/amp
              meters, several auto light kits, a box of auto clamps, a box of pins/fasteners,
              two (2) containers of drill bits, a bundle of clamps a small black refrigerator,
              two (2) red handled pliers/cutters, a black plastic tool box containing

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-921 | November 15, 2019   Page 2 of 6
              miscellaneous tools, and other miscellaneous tools. . . . [Hofmann] stated
              several of the items surrendered by [Strickland] were not his, including . . . .
              The items [Hofmann] identified as his were released to [him].

      Appellant’s Appendix Volume 2 at 11.


[3]   According to the probable cause affidavit, Hofmann completed a written

      statement which provided:

              Things that were stolen wastwo [sic] air compressorsone [sic] red one black
              25 gal. on wheels, torch set in a red case, tool seat on wheels with two
              drawers black in box, dewalt weedeater 20 volt, dewalt circle saw 60 voltstill
              [sic] in box, dewalt inch impact 20 volt in box, 2 dewalt drills 20 volt,
              dewalt saw 20 volt, dewaltflashlight [sic] 20 volt, dewalthedge [sic] trimmer
              60 volt, dewaltleaf [sic] blower 20 volts still in box, dewaltcarry [sic] bag,
              miscellaneous screwdrivers, wrenches, pliers, adjustable wrenches, 8 solar
              batteries, 186 piece socket set in black case, aluminum angle 5ft length,
              apartment refrigerator black, dewaltangle [sic] grinder 20 volts, 10,000 watt
              inverter, 12 volt winch, 8 piece security door alarms, tote boxes full of semi
              lights led, magnetic parts trays, lawnmower keys for a husqvarnoon [sic]
              white keychain, Craftsman electric pressure washer, bags and containers of
              new bolts, nuts, washers. Sheriff Switzer called me Feb 15 said they
              arrested two of the people, and had some of my things. He brought back
              one dewaltdrill [sic], dewaltgrinder [sic], 4 solar batteries, empty tool box,
              20 voltdewalt [sic] saw, battery cables, some semi led lights, one red air
              compressor, drill bit, some torch ends, apartment refrigerator.

      Id. at 12. LaFollette completed a written statement which provided:

              What I have missing that I can remember is: 5 pc. Neiko locking pliers, 22
              pc. Neiko screwdriver, adjustable wrenches (5 or 6 of them) made by Neiko,
              45 pc. SAE tap and die, Neiko 45 pc met tap and die set, Neiko 12 pc.
              punch and chisel (pouch), 24 oz framing hammer, 5 pc. Ball pein hammer
              set, 11 pc. 1/2” imp socket sae, 11 pc. 1/2” imp socket metric, 11 pc. deep
              impact socket sae, These were bought at Big State Industrial Supply . . . My
              business Invoice # 1305098 Shipped 9-26-18 . . . .

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-921 | November 15, 2019   Page 3 of 6
      Id. at 11-12.


[4]   Strickland’s probation officer submitted a presentence investigation report

      which referenced attached statements provided by the victims. Hofmann’s

      statement provided in part “I am still missing $2,785.00 worth of tools plus the

      $925.00 damage on building.” Id. at 41. LaFollette’s statement provided in

      part: “I had tooles [sic] in there that were hardly used. Some of them had never

      been used yet. I had $1,813.99 taken from the barn. These are tooles [sic] that

      can not purchase in stores. . . . These tools are not even a year old.” Id. at 42.


[5]   In March 2019, the court held a consolidated hearing under Cause Nos. 764

      and 157. Under Cause No. 764, the court revoked Strickland’s probation and

      reinstated his previously-suspended sentence. Under Cause No. 157, the court

      sentenced him to an aggregate term of four years consecutive to the sentence

      under Cause No. 764. The court stated “I don’t think the prosecutor made an

      actual record of the amount . . . of restitution,” the prosecutor stated that he had

      the amount and provided figures of $3,710 for Hofmann and $1,813.99 for

      LaFollette, and the court issued orders of restitution reflecting those amounts.

      Transcript Volume II at 88.


                                                  Discussion

[6]   Strickland contends the State failed to present sufficient evidence to support the

      restitution orders and the prosecutor merely recited the unsworn and unverified

      amounts provided by the victims. He notes that the victims’ statements did not

      include receipts, estimates, or other proof of actual loss and argues that the


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-921 | November 15, 2019   Page 4 of 6
      record is unclear whether the amounts were estimates of all property stolen or

      just that which was not returned to the victims. He also argues there was no

      proof of the cost to repair or replace the barn door. The State asserts the court

      could estimate the victims’ loss and points to their letters and the probable

      cause affidavit. It also argues that, even if this Court finds the evidence was

      inadequate to support the restitution orders, the appropriate remedy is to

      remand for a hearing to determine the losses incurred by the victims.


[7]   Ind. Code § 35-50-5-3 governs restitution and provides in part that the court

      shall base its restitution order upon a consideration of “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).” We review restitution orders for an

      abuse of discretion. See Kimbrough v. State, 911 N.E.2d 621, 639 (Ind. Ct. App.

      2009). The amount of restitution must reflect the actual loss incurred by the

      victim. Id. The amount of actual loss is a factual matter which can be

      determined only upon the presentation of evidence. Kellett v. State, 716 N.E.2d

      975, 980 (Ind. Ct. App. 1999). The evidence supporting a restitution order

      must afford a reasonable basis for estimating loss and must not subject the trier

      of fact to mere speculation or conjecture. See S.G. v. State, 956 N.E.2d 668, 683-

      684 (Ind. Ct. App. 2011) (citation omitted).


[8]   In this case, there is insufficient evidence in the record to support the trial

      court’s restitution orders. Although the probable cause affidavit identified

      property taken from the barn, it did not include proof of values and indicated

      that certain property discovered in Strickland’s possession was released to

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-921 | November 15, 2019   Page 5 of 6
       Hofmann. The affidavit did not provide a reasonable basis upon which to

       estimate the actual loss incurred. The State does not point to evidence or

       testimony regarding the value of the property which was stolen and not

       returned or the cost to repair the damage to the barn door.


[9]    For the foregoing reasons, we remand for a determination of damages. See

       Smith v. State, 471 N.E.2d 1245, 1248-1249 (Ind. Ct. App. 1984) (holding the

       evidence was insufficient to support the court’s restitution order under Ind.

       Code § 35-50-5-3 and remanding for a determination based upon evidence),

       reh’g denied, trans. denied.


[10]   Remanded.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-921 | November 15, 2019   Page 6 of 6
