MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                          Jan 29 2016, 9:38 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
Joel M. Schumm                                           Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Paris Hardy,                                             January 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1506-CR-496
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy J. Barbar,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         49G02-1408-F2-40117



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-496| January 29, 2016   Page 1 of 7
                                       Statement of the Case
[1]   Paris Hardy appeals the trial court’s order that he pay $2,000 in restitution

      following his conviction for burglary, as a Level 2 felony, and carrying a

      handgun without a license, as a Class A misdemeanor. Hardy raises a single

      issue for our review, namely, whether the State presented sufficient evidence to

      show that he owed $2,000 in restitution. We reverse and remand with

      instructions.


                                 Facts and Procedural History
[2]   On August 11, 2014, Hardy and his brother, Patrick, broke into and entered the

      home of the Abplanalp family in Indianapolis. The Hardy boys stole a Kindle

      tablet, an iPhone 5, and a Nikon camera from inside the home. The front door

      and frame as well as an interior window were damaged during the incident.


[3]   On August 21, the State charged Hardy with burglary, as a Level 2 felony;

      robbery, as a Level 3 felony; and carrying a handgun without a license, as a

      Class A misdemeanor. The court found Hardy guilty as charged following a

      bench trial.


[4]   At the ensuing sentencing hearing, the parties and the court engaged in the

      following colloquy regarding the State’s request for restitution:


              MR. WILEY [for the 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.


                                                      ***
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        MR. WILEY: $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.


        THE COURT: Have you shared these figures with Defense
        counsel?


        MR. WILEY: I did just before the hearing started.


        THE COURT: Do you have any objection?


        MR. HALATA [for Hardy]: 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.


        THE 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?


        MR. HALATA: And I don’t remember the camera ever being
        shown either as being claimed of being stolen.


                                                ***


        MR. WILEY: The camera came to light later . . . . I think there
        was evidence that the Kindle was stolen. . . . And so we would
        be seeking the full $2,000.00.


Tr. at 187-88. After that exchange, the court entered its judgment of conviction

and sentence against Hardy. In relevant part, the court ordered Hardy to pay

$2,000 in restitution. This appeal ensued.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-496| January 29, 2016   Page 3 of 7
                                     Discussion and Decision
[5]   Hardy appeals the trial court’s restitution order. An order of restitution is

      within the trial court’s discretion, and it will be reversed only upon a finding of

      an abuse of that discretion. Green v. State, 811 N.E.2d 874, 877 (Ind. Ct. App.

      2004). An abuse of discretion occurs when the trial court misinterprets or

      misapplies the law. Id.


[6]   Hardy asserts that the State failed to present sufficient evidence to support the

      order that he pay $2,000 in restitution. Specifically, Hardy notes that the

      deputy prosecutor’s statements, which were the only apparent basis for the

      amount of restitution, are not evidence. This is obviously correct; we have long

      recognized that “the unsworn statements of the deputy prosecutor” regarding

      the appropriate amount for restitution provide “no basis upon which restitution

      could be made.” Smith v. State, 471 N.E.2d 1245, 1248-49 (Ind. Ct. App. 1984),

      trans. denied. Rather, “[t]he amount of actual loss is a factual matter which can

      be determined only upon presentation of evidence,” and, to support a claim for

      restitution, the State must present evidence that “affords a reasonable basis for

      estimating loss and does not subject the trier of fact to mere speculation or

      conjecture.” T.C. v. State, 839 N.E.2d 1222, 1225, 1227 (Ind. Ct. App. 2005)

      (internal quotation marks omitted).


[7]   Indeed, the State seems to concede as much in that its argument on appeal does

      not actually challenge Hardy’s argument. Rather, the State contends that

      Hardy has waived our review of his claim of error with respect to all but $300 of


      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-496| January 29, 2016   Page 4 of 7
      the restitution order. That $300 reflects the total alleged value of the Kindle

      tablet and Nikon camera, the two items that Hardy’s counsel specifically

      challenged in response to the State’s assertions for restitution.


[8]   The State is mistaken. In support of the its argument that Hardy has waived

      appellate review of the remaining $1,700 of the restitution order, the State cites

      C.H. v. State, 15 N.E.3d 1086, 1095-97 (Ind. Ct. App. 2014), trans. denied. But

      C.H. does not support the State’s position. To the contrary, C.H. explains that

      the State’s argument for waiver is not correct. As we explained:

              “Generally, failure to object to an award of restitution constitutes
              waiver of a challenge to the award on appeal, unless a defendant
              argues that the award was fundamentally erroneous and in excess
              of statutory authority.” Morris v. State, 2 N.E.3d 7, 9 (Ind. Ct.
              App. 2013). “[A] defendant’s failure to make a specific and
              timely objection to the trial court’s receipt of evidence concerning
              the amount of restitution constitutes waiver of the issue on
              appeal.” Id. Nevertheless, a number of cases have emphasized
              this Court’s preference for reviewing a trial court’s restitution
              order even absent an objection by the defendant. See e.g., Rich v.
              State, 890 N.E.2d 44, 48-49 (Ind. Ct. App. 2008) (“the vast weight
              of the recent caselaw . . . indicates that the appellate courts will review a
              trial court’s restitution order even where the defendant did not object
              based on the rationale that a restitution order is part of the sentence, and
              it is [our] duty . . . to bring illegal sentences into compliance”)
              (internal quotation marks and citations omitted), trans. denied.


              Here, however, C.H. not only failed to object to restitution, but he
              affirmatively agreed to the imposition of restitution. We addressed a
              similar argument in Mitchell v. State, 730 N.E.2d 197, 201 (Ind.
              Ct. App. 2000), trans. denied. In Mitchell, the trial court convicted
              Mitchell of rape and criminal deviate conduct. Mitchell, 730

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-496| January 29, 2016   Page 5 of 7
              N.E.2d at 201. At trial, Mitchell did not object to the issued
              restitution order and agreed to pay for the victim’s counseling via
              restitution. Id. On appeal, we held that Mitchell had waived
              appellate review by both not objecting to the restitution order at trial and
              by agreeing to pay restitution, thus inviting error. Id.


                                                      ***


              Here, C.H. waived error by not objecting to the restitution order and
              invited error by affirmatively agreeing to the terms which he now argues
              were erroneous. Because C.H. invited error, and invited error is
              not reversible error, we concluded that C.H. has waived review
              of this claim of error. . . .


      Id. at 1096-97 (emphases added). As C.H. and its discussion of our case law

      make clear, 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. E.g., Mitchell, 730 N.E.2d at 201.

      Failure to object, standing alone, does not forfeit appellate review. E.g., Rich,

      890 N.E.2d at 48-49. Here, nothing in the parties’ colloquy with the trial court

      can reasonably be interpreted as an agreement or stipulation by Hardy to the

      amount of restitution demanded by the State. Accordingly, we reject the State’s

      assertion on appeal that Hardy has not properly preserved his claim of error for

      our review.


[9]   In sum, we hold that Hardy’s argument on appeal is properly before us. On the

      merits, we hold that the State did not present sufficient evidence to support the

      amount of the restitution order. Accordingly, we reverse the restitution order


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       and remand with instructions that the court hold a new restitution hearing. At

       that hearing, the State must present evidence in support of its claimed amount

       of restitution. We also note that, on appeal, the parties agree that the court on

       remand should inquire into Hardy’s ability to pay a restitution award.


[10]   Reversed and remanded with instructions.


       Riley, J., and May, J., concur.




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