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

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

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

Timothy J. O’Connor

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Jesse R. Drum

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Patrick Hardy,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

February 16, 2016

Court of Appeals Case No.

49A02-1506-CR-495

Appeal from the Marion Superior 

Court

The Honorable Marc Rothenberg, 

Judge

The Honorable Amy Barbar, 

Magistrate

Trial Court Cause No.

49G02-1408-F2-40133

Altice, Judge.

Case Summary
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[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.
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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?
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[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.
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[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 
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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.
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[12] Robb, J., and Barnes, J., concur.