                                                                     Dec 21 2015, 8:39 am




ATTORNEY FOR APPELLANT                               ATTORNEYS FOR APPELLEE
Kristin A. Mulholland                                Gregory F. Zoeller
Appellate Public Defender                            Attorney General of Indiana
Crown Point, Indiana
                                                     Jesse R. Drum
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

John Paul Garcia,                                         December 21, 2015
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          45A03-1503-CR-86
        v.                                                Appeal from the Lake Superior
                                                          Court;
State of Indiana,                                         The Honorable Diane Ross
Appellee-Plaintiff.                                       Boswell, Judge;
                                                          Trial Court Cause No.
                                                          45G03-1302-FC-20



May, Judge.




Court of Appeals of Indiana | Opinion 45A03-1503-CR-86 | December 21, 2015                  Page 1 of 13
[1]   John Paul Garcia appeals the court’s imposition of his sixty-six month sentence

      and its order of restitution. He asserts the restitution order was an abuse of

      discretion and the length of his sentence is inappropriate in light of his character

      and offense.


[2]   We affirm in part and reverse and remand in part.


                                      Facts and Procedural History
      On December 27, 2012, Garcia posted an advertisement on Craigslist to sell

      200 Morgan dollar coins at $22.00 each. The advertisement proposed Garcia

      and the prospective buyer would meet at McDonald’s. Paul Bowman

      responded to this advertisement. Garcia gave Bowman what were purported to

      be 180 Morgan dollar coins for $3,600.00 in cash. Shortly after this transaction,

      Bowman took the coins to a seller. The seller tested the coins and informed

      Bowman the coins were fake. Bowman reported this crime to the police.


      On February 5, 2013, officers were about to apprehend Garcia, but he quickly

      drove away. While being chased by the officers, Garcia’s vehicle crashed into a

      truck. Garcia tried to flee on foot, but he was arrested.


[3]   On February 7, 2013, Garcia was charged with Class C felony forgery, 1 Class D

      felony resisting law enforcement, 2 and Class C misdemeanor failure to return to




      1
          Ind. Code § 35-43-5-2(b)(1) (2006).
      2
          Ind. Code § 35-44.1-3-1(b)(1)(a) (2012).


      Court of Appeals of Indiana | Opinion 45A03-1503-CR-86 | December 21, 2015   Page 2 of 13
      the scene after accident resulting in damage to an attended vehicle. 3 Garcia

      agreed to plead guilty to forgery. In exchange, the State would dismiss the

      other charges and would not file a habitual offender enhancement.


[4]   The court accepted the plea agreement, convicted Garcia of forgery, and

      sentenced Garcia to sixty-six months to be served concurrently with his

      sentence in Cause No. 45G03-1303-FC-00041 in the Department of

      Correction. 4 At the sentencing hearing on February 6, 2015, the State requested

      restitution in the amount of $3,600.00. Garcia objected to the restitution order. 5

      Bowman did not appear, but the court entered judgment on behalf of Bowman

      in the amount of $3,600.00.


                                            Discussion and Decision
                                             Appropriateness of Sentence

[5]   Garcia asserts his sixty-six month sentence was inappropriate given his

      character and the nature of his offense. Indiana Appellate Rule 7(B)




      3
          Ind. Code § 9-26-1-2(2) (2012).
      4
       Garcia’s sentence in Cause No. 45G03-1303-FC-00041 was also sixty-six months. See Garcia v. State,
      Memorandum Decision 45A03-1503-CR-85, slip op. at 2 (Ind. Ct. App., Nov. 18, 2015).
      5
        The dissent claims “the amount of restitution is not disputed,” slip op. at ¶ 16, and Garcia did not “contest[]
      . . . the amount of Bowman’s loss[.]” Id. at ¶ 17. However, during the sentencing hearing, Garcia’s counsel
      stated:
                 I would object to the request of restitution. There’s no documents that support that [sic]
                 actual valuation of what they’re asking for and what was – what they’re out, outside of
                 what they have said. I believe that there would be additional records that would be
                 required to order to – to grant a restitution order or a judgment in that matter. That’s my
                 objection, your Honor.
      (Tr. at 46.)

      Court of Appeals of Indiana | Opinion 45A03-1503-CR-86 | December 21, 2015                           Page 3 of 13
      implements this court’s constitutional authority to revise a sentence if, after due

      consideration of the trial court’s decision, we find the sentence is “inappropriate

      in light of the nature of the offense and the character of the offender.” The

      burden is on the defendant to persuade us that his sentence is inappropriate.

      Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[6]   Garcia pled guilty to a Class C felony, which carries a penalty of two to eight

      years, with an advisory sentence of four years. Ind. Code § 35-50-2-6(a) (2005).

      The plea agreement capped Garcia’s sentence at sixty-six months, which is five

      and a half years, and although the court imposed all sixty-six months, that

      sentence is closer to the advisory sentence than to the maximum possible

      sentence for forgery. Such sentence does not appear inappropriate for the sale

      of 180 fake Morgan dollar coins.


[7]   When considering the character of the offender, one relevant fact is the

      defendant’s criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct.

      App. 2013). The significance of criminal history varies based on the gravity,

      nature, and number of prior offenses in relation to the current offense. Id.

      Garcia has an extensive adult criminal history dating from 1986. Garcia has

      been convicted of nine misdemeanors and eight felonies. Those felonies

      include Class B felony burglary, felony theft, felony possession of stolen

      goods/property, and Class 3 felony theft/deception. Garcia was convicted of

      two federal charges for forged or counterfeited United States obligations and

      dealing in counterfeit obligations. Garcia’s numerous contacts with the

      criminal justice system, including his several incarcerations and stints on

      Court of Appeals of Indiana | Opinion 45A03-1503-CR-86 | December 21, 2015   Page 4 of 13
       probation, have not led him to reform himself. Thus, we cannot say Garcia’s

       sixty-six month sentence is inappropriate in light of his character. See id.

       (affirming sentence as appropriate based on criminal history).


                                                Order of Restitution

[8]    A restitution order is within the trial court’s discretion, and we will reverse only

       on a showing of abuse of discretion. J.H. v. State, 950 N.E.2d 731, 734 (Ind. Ct.

       App. 2011). An abuse of discretion occurs when the trial court’s decision is

       against the logic and effect of the facts and circumstances before it. Rose v. State,

       810 N.E.2d 361, 365 (Ind. 2004).


[9]    The evidence of Bowman’s loss was insufficient to support the trial court’s

       order of restitution. A restitution order must be supported by sufficient

       evidence of actual loss sustained by the victim of a crime. Rich v. State, 890

       N.E.2d 44, 49 (Ind. Ct. App. 2008), trans. denied. “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.,

       950 N.E.2d at 734.

[10]   The trial court entered a restitution order in the amount of $3,600.00. The only

       support for the order came in the probable cause affidavit, 6 which states:




       6
        The dissent claims Garcia did not “contest[] the accuracy of the probable cause affidavit,” slip op. at ¶ 17,
       and “a probable cause affidavit whose authenticity and accuracy have not been questioned . . . may be
       considered by the trial court in ordering restitution.” Id. at ¶ 21. However, during the sentencing hearing,
       Garcia’s counsel objected twice to the inclusion of the probable cause affidavit in the pre-sentencing report.

       Court of Appeals of Indiana | Opinion 45A03-1503-CR-86 | December 21, 2015                          Page 5 of 13
                Paul Bowman related the following: On December 27, 2012, in
                the late morning hours at the location of 1855 US 41 in
                Schererville, he responded to an advertisement on Craigslist to
                buy in one lot 200 Morgan dollars at $22 each coin (cash only) by
                meeting the seller at McDonalds. Upon arrival, he met an
                unknown male subject who gave him what purported to be 180
                Morgan dollars. In return, he handed this subject $3,600 in cash.


       (App. at 11-12.) As we have previously explained: “The statement of facts

       presented in a probable cause of arrest affidavit pose a risk of unreliability that

       the hearsay rule is designed to protect against.” Tate v. State, 835 N.E.2d 499,

       509 (Ind. Ct. App. 2005), trans. denied. Thus, we decline to accept that

       document as a valid basis for upholding the order herein. The State offered no

       other proof of the amount of Bowman’s loss, Bowman was not present at the

       sentencing hearing, and no additional evidence or testimony concerning this

       estimate was presented.


[11]   In J.H., we reasoned that estimates with no additional evidence were mere

       speculation or conjecture. 950 N.E.2d at 734. Sixteen-year-old J.H. attempted

       to enter a neighbor’s home without the neighbor’s permission and damaged a

       rear door of the neighbor’s residence. Before the initial hearing and

       dispositional hearing, the victim gave the prosecutor two estimates of repair

       costs. No copies were provided to the defense or the court, and no additional

       evidence was offered in support of the estimate. The trial court ordered J.H. to




       (Tr. at 25 (“The defense would object to the inclusion of the probable cause affidavits.”) and Tr. at 29 (“The
       only other thing we object to is the probable cause affidavit.”).)

       Court of Appeals of Indiana | Opinion 45A03-1503-CR-86 | December 21, 2015                         Page 6 of 13
       pay restitution in the amount of $1,117.65. We held: “Absent any evidence to

       the contrary, we can only come to the conclusion that valuation was based on

       mere speculation and conjecture.” Id.


[12]   The State bore the burden of establishing the restitution amount. Id. The State

       could have met that burden by obtaining an affidavit from Bowman, the victim.

       Here, the State did not establish the validity of the probable cause affidavit but

       instead, asked the court to enter a restitution order in the amount reflected in

       the probable cause affidavit. More was required. Accordingly, the trial court

       abused its discretion in entering the restitution order. See id.


[13]   Be that as it may, our Indiana Supreme Court has held that when the record

       contains insufficient evidence to support an order of restitution, the case may be

       remanded for the trial court to hold another hearing. Iltzsch v. State, 981 N.E.2d

       55, 57 (Ind. 2013). Thus, we remand this case to the trial court with

       instructions to conduct a new restitution hearing at which both the State and

       Garcia may present additional evidence bearing on the restitution due to

       Bowman. See id.


                                                  Conclusion
[14]   We affirm the length of Garcia’s sentence, but we reverse the order of

       restitution and remand for a new restitution hearing.


[15]   Affirmed in part; reversed and remanded in part.




       Court of Appeals of Indiana | Opinion 45A03-1503-CR-86 | December 21, 2015   Page 7 of 13
Crone, J., concurs. Bradford, J., concurs in part and dissents in part with

separate opinion.




Court of Appeals of Indiana | Opinion 45A03-1503-CR-86 | December 21, 2015   Page 8 of 13
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       John Paul Garcia,                                         Court of Appeals Case No.
                                                                 45A03-1503-CR-86
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Bradford, Judge, concurring in part and dissenting in part.

[16]   I fully concur with the majority that Garcia’s sixty-six month sentence is not

       inappropriate, but because I believe that the State presented evidence sufficient

       to support an order of restitution, I respectfully dissent in part. Under the

       circumstances of this case, where the amount of restitution is not disputed and

       was reported in documents of sufficient reliability that were made part of the

       record, I would affirm the trial court’s order of restitution.

[17]   Garcia contends that the trial court’s order that he pay restitution to Bowman of

       $3600.00 is not supported by the evidence. It is undisputed that the only basis

       on which the trial court could have ordered restitution is the probable cause

       affidavit for Garcia’s arrest in this case, which was attached to Garcia’s

       presentence investigation report. Without contesting the accuracy of the

       probable cause affidavit or the amount of Bowman’s loss, Garcia made the bald

       assertion at sentencing, and now on appeal, that the affidavit is insufficient to


       Court of Appeals of Indiana | Opinion 45A03-1503-CR-86 | December 21, 2015            Page 9 of 13
       support a restitution order. The State counters that it was appropriate for the

       trial court to rely on the probable cause affidavit. I agree with the State.

[18]   Indiana Rule of Evidence 101(d)(2) specifically provides that the Rules of

       Evidence do not apply in sentencing hearings. We have made the following

       observations about sentencing in general, of which the consideration of

       restitution is a part:

               In determining an appropriate sentence, all circumstances of the
               particular crime and the background of the individual offender
               should be considered. United States v. Harris (7th Cir. 1977), 558
               F.2d 366, 372. “Strict rules of evidence do not apply in
               sentencing hearings, and hearsay evidence … is admissible.”
               Lasley v. State (1987), Ind., 510 N.E.2d 1340, 1342. The rationale
               for the relaxation of evidentiary rules at sentencing is that in a
               trial the issue is whether a defendant is guilty of having engaged
               in certain criminal conduct. Rules of evidence narrowly confine
               the trial contest to evidence that is strictly relevant to the crime
               charged. At sentencing, however, the evidence is not confined to
               the narrow issue of guilt. The task is to determine the type and
               extent of punishment. This individualized sentencing process
               requires possession of the fullest information possible concerning
               the defendant’s life and characteristics. Williams v. New York
               (1949), 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337.

       Thomas v. State, 562 N.E.2d 43, 47-48 (Ind. Ct. App. 1990).

[19]   As for restitution in particular, Indiana Code section 35-50-5-3 governs

       restitution orders and provides, in part, that

               in addition to any sentence imposed under this article for a felony
               or misdemeanor, the court may, as a condition of probation or
               without placing the person on probation, order the person to
               make restitution to the victim of the crime, the victim’s estate, or
               the family of a victim who is deceased. The court shall base its
               restitution order upon a consideration of:
       Court of Appeals of Indiana | Opinion 45A03-1503-CR-86 | December 21, 2015   Page 10 of 13
                    (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)[.]

[20]   The amount of proof necessary to support a restitution order varies from case to

       case. For instance, when establishing the damage to property or value of

       property stolen, a higher level of proof might be required than has been

       produced in this case. But in this matter, the victim’s loss was the United States

       currency paid for the fake coins, an easily definable loss not subject to a

       valuation attack.

[21]   Although the restitution statute is silent on the types of material open to

       consideration, it certainly does not limit it to evidence that would be admissible

       in a trial used to determine guilt or innocence. We have held that “[e]vidence

       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.’” S.G. v. State, 956 N.E.2d 668, 683 (Ind. Ct. App. 2011) (quoting

       T.C. v. State, 839 N.E.2d 1222, 1227 (Ind. Ct. App. 2005)), trans. denied. Setting

       Garcia’s restitution to Bowman based on a specific amount included in the

       probable cause affidavit, which amount was told to the affiant, is not resorting

       to speculation or conjecture. I would hold that under the circumstances of this

       case, a probable cause affidavit whose authenticity and accuracy have not been




       Court of Appeals of Indiana | Opinion 45A03-1503-CR-86 | December 21, 2015   Page 11 of 13
       questioned, much less shown to be suspect, 7 may be considered by the trial

       court in ordering restitution.

[22]   I am also concerned about the public policy of requiring the sorts of evidence

       Garcia seems to advocate, i.e., requiring the victim to appear at sentencing or

       file an affidavit of loss in potentially every restitution case would be an

       unacceptable burden on crime victims, many of whom have already taken the

       time and trouble to appear at a trial and/or participate in a police investigation.

       Depending on the circumstances, appearing at a sentencing hearing may also be

       very traumatic for the victim. This strikes me as unnecessary and unwarranted

       re-victimization.

[23]   Moreover, requiring what in many cases would be the collection and

       presentation of additional evidence is, in my view, an unacceptable burden on

       the Indiana criminal justice system. In 2014, 204,708 criminal cases were filed

       in Indiana, accounting for an unknown, greater number of total criminal

       charges, 8 many of which could give rise to a restitution order. DIVISION OF

       STATE COURT ADMIN., SUPREME COURT OF IND., IND. JUDICIAL SERV.

       REPORT 71 (2015). Just as I am unwilling to further burden victims, I am




       7
         Although generally prepared by police officers, there is absolutely no basis on which to conclude that
       probable cause affidavits are inherently suspect, despite some Indiana authority to that effect. Indeed, an
       affidavit intended to provide the probable cause to hold a person to answer for a crime must be submitted in
       writing or orally and—significantly and in contrast to, say, a police investigative report—under oath and
       penalty of perjury. See Ind. Code §§ 35-33-7-2; 35-33-5-2(c). Moreover, under Indiana and federal law, “a
       probable cause affidavit must include all material facts, which are those facts that ‘cast doubt on the existence
       of probable cause.’” Ware v. State, 859 N.E.2d 708, 718 (Ind. Ct. App. 2007), trans. denied.
       8
          For purposes of compiling statistics on court activity for the Indiana Judicial Service Report, “[i]f a defendant
       is charged with multiple offenses, the case is counted only one time under the most serious charge.”
       DIVISION OF STATE COURT ADMIN., SUPREME COURT OF IND., IND. JUDICIAL SERV. REPORT 64 (2015).

       Court of Appeals of Indiana | Opinion 45A03-1503-CR-86 | December 21, 2015                            Page 12 of 13
       unwilling to unnecessarily further burden Indiana’s trial judges, prosecutors,

       defense attorneys, and court staff.

[24]   Because I would affirm the trial court’s restitution order, I respectfully dissent in

       part.




       Court of Appeals of Indiana | Opinion 45A03-1503-CR-86 | December 21, 2015   Page 13 of 13
