ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Valerie K. Boots Gregory F. Zoeller

Indianapolis, Indiana Attorney General of Indiana

Ryan D. Johanningsmeier

Deputy Attorney General

Indianapolis, Indiana

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In the

Indiana Supreme Court

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No. 49S02-49S02-1301-CR-57

CARLIN ILTZSCH,

Appellant (Defendant below),

v.

STATE OF INDIANA,

Appellee (Plaintiff below).

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Appeal from the Marion Superior Court

No. 49G06-1106-FB-38359 & 49G06-0412-FB-228844

The Honorable Jeffrey Marchal, Judge Pro Tempore

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On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-1112-CR-1164

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January 24, 2013

Per Curiam.

Following a bench trial, Carlin Iltzsch was found guilty of burglary, a class B felony, 

adjudicated an habitual offender, and sentenced to an executed term of twenty-two years. In 

addition, the trial court ordered Iltzsch to pay restitution to the victim in the amount of $711.95. 

At issue in this appeal is the restitution order.
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We have said the principal purpose of restitution is to vindicate the rights of society and 

to impress upon the defendant the magnitude of the loss the crime has caused, and that restitution 

also serves to compensate the victim. See Pearson v. State, 883 N.E.2d 770, 772 (Ind. 2008). 

Indiana Code section 35-50-5-3(a) says that a “court shall base its restitution order upon a 

consideration of: (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)[.]” 

Here, restitution was ordered for the victim’s television set and record collection. The

Victim Impact Statement, included in the Pre-Sentence Report, stated in part, “[Victim] advised 

nothing was taken but the defendant destroyed his antique record collection valued at 

approximately $300.00. In addition, his television had to be replaced and the loss was $411.95.”

(Report, p. 13.) At trial, the victim testified that the television set had been moved from its usual 

place and had been found on the floor of the kitchen. (Transcript, p. 35.) A photograph admitted 

into evidence showed the television face down on the floor after the burglary, but damage to the 

set was not illustrated. (Exhibits, p. 11.) The following exchange occurred at the restitution 

hearing, which the victim did not attend:

[Prosecutor] I’d also ask that pursuant to the Victim Impact Statement that’s 

contained in the PSI, I believe the total is $711.95 worth of damage 

to a television and some antique records; that judgment be ordered, 

civil judgment to [the victim] in the amount of $711.95.

[The Court] Anything with respect to the civil judgment or restitution, [defense 

counsel]?

[Defense Counsel] We have no objection to that, Your Honor. 

* * * *
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[Defense Counsel] And I apologize, Your Honor. Actually I think for the 

record I would object to the restitution amount based on the fact 

that Mr. Iltzsch has maintained his innocence so we would object 

to that restitution as a civil judgment order.

* * * *

[The Court] Over objection of the defense, I will order a civil judgment of 

restitution to [the victim] in the amount of $711.95. That’s to help 

pay for the damage and the lost property.

(Transcript, p. 87-91.)

The Court of Appeals unanimously reversed the restitution order on grounds there was 

insufficient evidence to support the amount of restitution awarded. Iltzsch v. State, 972 N.E.2d 

409, 412-14 (Ind. Ct. App. 2012), vacated. Without doubt, the better practice for the State would 

have been to present more substantial evidence about the nature and extent of the property 

damage, as outlined by the Court of Appeals. Similarly, the better practice for a defendant 

would have been to make contemporaneous objections (for example, hearsay and lack of 

foundation) as appropriate. 

We grant transfer, though, to address whether the case can be remanded for a new 

restitution hearing. This question divided the Court of Appeals panel. Citing Cooper v. State, 

831 N.E.2d 1247, 1253-54 (Ind. Ct. App. 2005), the majority “believe[d] that allowing the State 

to conduct a new restitution hearing and to present additional evidence concerning the loss would 

allow the State an inappropriate second bite at the apple.” Iltzsch, 972 N.E.2d at 415. As Judge 

Bailey pointed out in his dissent, though, it appears the restitution in Cooper involved a claim for 

lost wages by the parents of the victim that simply were not recoverable under the statute, so 

there would have been no reason for remand. We do not find Cooper persuasive authority for 
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prohibiting a remand for a restitution hearing under the circumstances of this case. Rather, as the 

majority acknowledged, precedent supports remanding for additional evidence when appropriate. 

That has been the view of this Court and the Court of Appeals. See, e.g., Clausen v. State, 622 

N.E.2d 925, 928 (Ind. 1993), adopting in part Clausen v. State, 612 N.E.2d 147, 149 (Ind. Ct. 

App. 1993) (remanding with instructions to hold a hearing to determine the cost of counseling, 

where there had been no evidence of the cost presented at the original hearing); J.H. v. State, 950 

N.E.2d 731, 735 (Ind. Ct. App. 2011) (remanding for a new restitution hearing “if the State 

desired” where insufficient evidence had been presented at the original hearing). 

Accordingly, transfer of jurisdiction is granted pursuant to Appellate Rule 56(B). This 

case is remanded to the trial court with instructions to conduct a new restitution hearing at which 

the State will be permitted to present, and Iltzsch will be allowed to confront, any additional 

evidence supporting the victim’s property loss. The Court of Appeals opinion is vacated as to 

the remand; the remaining portions of the opinion are summarily affirmed. See Ind. Appellate 

Rule 58(A).

Rucker, David, Massa, and Rush, JJ., concur.

Dickson, C.J., dissents. 
Dickson, Chief Justice, dissenting.

 I respectfully dissent, believing that we should not remand. As acknowledged by the per 

curiam opinion, Indiana statutory law requires that an order of restitution be "based on the actual 

cost of repair (or replacement if repair is inappropriate)." Ind. Code § 35-50-5-3(a). When on 

appeal the quantum of evidence presented by the State is found insufficient to satisfy its burden 

of proof on an issue, permitting the State a second opportunity to overcome its deficiency in 

proof is inconsistent with principles prohibiting double jeopardy. See Lockhart v. Nelson, 488 

U.S. 33, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988); Lambert v. State, 534 N.E.2d 235, 237 n.2 

(Ind. 1989).