Jennifer Nelson for www.theindianalawyer.com
An Indiana Court of Appeals judge dissented from his colleagues Monday in a case in which the majority reversed the court-ordered $3,600 in restitution for a coin sale that turned out to be fraudulent. The dissenting judge also raised public policy concerns about requiring victims to appear at sentencing hearings.
John Paul Garcia pleaded guilty to Class C felony forgery after he was arrested for allegedly selling fake Morgan dollar coins to Paul Bowman. Bowman gave Garcia $3,600 for 180 coins, but found out shortly after the transaction from a coin seller that the coins were not authentic.
Garcia was sentenced to 66 months in prison and ordered to pay Bowman $3,600. Garcia objected to the restitution order and Bowman did not appear at the sentencing hearing. The only support for the restitution order came from the probable cause affidavit.
Judges Melissa May and Terry Crone reversed the restitution order, declining to accept the probable cause affidavit as a valid basis for upholding the order.
“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,†May wrote for the majority. They remanded with instructions to conduct a new hearing at which both the state and Garcia may present additional evidence bearing on the restitution due to Bowman.
Judge Cale Bradford dissented on this issue because the amount of restitution was never disputed and it was reported in documents of sufficient reliability that were made part of the record.
“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,†Bradford wrote.
He also believed requiring this additional evidence would be an unacceptable burden on the state’s criminal justice system.
All three judges did uphold Garcia’s 66-month sentence. The case is John Paul Garcia v. State of Indiana, 45A03-1503-CR-86.
