Mamoon Anwarzai v. State of Indiana

FILED Jan 29 2024, 8:40 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Amanda O. Blackketter Theodore E. Rokita Blackketter Law, LLC Attorney General of Indiana Shelbyville, Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Mamoon Anwarzai, January 29, 2024 Appellant-Defendant, Court of Appeals Case No. 23A-CR-1634 v. Appeal from the Shelby Circuit Court State of Indiana, The Honorable Trent E. Meltzer, Appellee-Plaintiff. Judge Trial Court Cause No. 73C01-2112-F4-26

Opinion by Judge Mathias Judges Tavitas and Weissmann concur.

Mathias, Judge. Court of Appeals of Indiana | Opinion 23A-CR-1634 | January 29, 2024 Page 1 of 6 [1] Mamoon Anwarzai appeals the Shelby Circuit Court’s order that he pay

$37,000 in restitution following his guilty plea to Level 4 felony burglary.

Anwarzai raises two issues for our review, which we restate as the following

three issues:

1. Whether the State presented sufficient evidence to support the amount of restitution.

2. Whether the trial court’s assessment that Anwarzai has the ability to pay the restitution amount is supported by the evidence.

3. Whether the trial court erred when it did not fix the manner of payment Anwarzai is to make to satisfy the restitution order.

[2] We affirm and remand with instructions.

Facts and Procedural History [3] On September 4, 2021, Anwarzai broke into the home of Toby and Tyler

Delgadillo in Shelby County, accessed a safe there, and stole cash out of the

safe. The State charged Anwarzai with several offenses, and, in June 2023,

Anwarzai pleaded guilty to Level 4 felony burglary. The State dismissed the

other charges in exchange for Anwarzai’s plea. Anwarzai’s written plea

agreement provided that Anwarzai would, as a condition of his probation, pay

restitution to the Delgadillos in an amount to be determined at sentencing. [4] The trial court accepted Anwarzai’s guilty plea and heard evidence on the

amount for restitution. In particular, Tyler and Toby both testified that

Anwarzai stole $37,000 in cash out of the safe. Tr. pp. 27-28, 37. The court also Court of Appeals of Indiana | Opinion 23A-CR-1634 | January 29, 2024 Page 2 of 6

received the pre-sentence investigation report (“PSI”) without objection. The

PSI showed that Anwarzai had a stable employment history and currently

earned $18.75 per hour working as a supervisor at an Indianapolis Lowe’s, for

which he worked “40 plus” hours per week. Appellant’s App. Vol. 2, p. 35. [5] Based on that evidence, the trial court ordered Anwarzai to pay restitution to

Toby Delgadillo in the amount of $37,000. However, the trial court’s restitution

order did not provide any instructions on how Anwarzai was to pay the

restitution in a manner consistent with Anwarzai’s means. See id. at 52. This

appeal ensued.

Standard of Review [6] Anwarzai appeals the trial court’s restitution order. An order of restitution is a

matter within the trial court’s sound discretion and will be reversed only upon a

showing of an abuse of that discretion. Archer v. State, 81 N.E.3d 212, 215 (Ind.

2017). An abuse of discretion occurs if the decision is clearly against the logic

and effect of the facts and circumstances before the court, or the reasonable,

probable, and actual deductions to be drawn therefrom. E.g., Owen v. State, 210

N.E.3d 256, 269 (Ind. 2023).

1. The State presented sufficient evidence to support the amount of restitution. [7] Anwarzai first argues that the State failed to present sufficient evidence to

support the award of $37,000 in restitution. Tyler and Toby both testified that

Anwarzai stole $37,000 in cash out of the safe inside their home. Tr. pp. 27-28,

Court of Appeals of Indiana | Opinion 23A-CR-1634 | January 29, 2024 Page 3 of 6

37. Their testimony is sufficient to support the restitution amount. See, e.g.,

Smith v. State, 990 N.E.2d 517, 520 (Ind. Ct. App. 2013) (holding that the

victim’s testimony as to his losses was sufficient evidence to support the amount

of restitution), trans. denied. Anwarzai’s arguments to the contrary on this issue

are merely requests for this Court to reweigh the evidence, which we will not

do.

2. The trial court’s assessment that Anwarzai has the ability to pay the restitution amount is within the evidence. [8] Anwarzai next asserts that the trial court failed to inquire into his ability to pay

the restitution amount. When, as here, restitution is ordered as a condition of

probation, the trial court must inquire into the defendant’s ability to pay the

restitution. Pearson v. State, 883 N.E.2d 770, 773 (Ind. 2008). Although the trial

court did not explicitly ask Anwarzai about his ability to pay, and did not

explicitly find that Anwarzai has the ability to pay the restitution amount,

Anwarzai does not allege error in either of those respects. Rather, his argument

here is that the evidence does not support the trial court’s implicit finding of his

ability to pay. [9] We do not agree. Our Supreme Court has held that, where “presentence

materials provided the trial judge with, inter alia, [the defendant’s] family

history, marital history, educational background, work history, health status,

employment status, and financial information,” the trial court has the

information it needs to determine the defendant’s ability to pay. Savage v. State,

650 N.E.2d 1156, 1164 (Ind. Ct. App.) (Sullivan, J., dissenting), adopted, 655 Court of Appeals of Indiana | Opinion 23A-CR-1634 | January 29, 2024 Page 4 of 6

N.E.2d 1223, 1224 (Ind. 1995). Here, the PSI provided that information to the

trial court, and that information included Anwarzai’s employment history and

earning ability. And that evidence showed that Anwarzai had a stable

employment history and currently made $18.75 per hour as a supervisor at

Lowe’s, where he worked forty-plus hours per week. That evidence is sufficient

to support at least some ability to pay the restitution amount, and therefore the

trial court’s conclusion that Anwarzai has the ability to pay the restitution is

within the evidence before the court.

3. The trial court erred when it did not fix a periodic payment amount toward the restitution amount that Anwarzai can or will be able to afford. [10] Last, Anwarzai contends, and the State concedes, that the trial court’s

restitution order fails to fix a periodic payment amount for him to pay off the

restitution based on what Anwarzai can or will be able to afford. See Pearson,

883 N.E.2d at 773-74; Savage, 655 N.E.2d at 1225. We also agree, and we

remand to the trial court with instructions for it to determine a periodic

payment amount that Anwarzai can make toward the restitution, which

amount shall be consistent with an amount that he can or will be able to afford. [11] In doing so, we emphasize that the prorated periodic payment amount must be

based on the amount Anwarzai can or will be able to afford and need not be

based on the term of Anwarzai’s probationary period. See Pearson, 883 N.E.2d

at 773 (“the expiration of a probationary period does not terminate an

obligation to make restitution to a crime victim”). Indeed, Indiana Code section

Court of Appeals of Indiana | Opinion 23A-CR-1634 | January 29, 2024 Page 5 of 6

35-50-5-3(a) (2023) provides that restitution may be ordered as a condition of

probation, as was done here. And section 35-50-5-3(b) makes clear that, when

restitution is made a condition of probation, it “is a judgment lien” that may be

enforced “in the same manner as a judgment lien created in a civil proceeding,”

which includes allowing the defendant’s victim to enforce the restitution order

in proceedings supplemental.

Conclusion [12] For all of these reasons, we affirm the trial court’s restitution order but remand

with instructions for the court to fix a periodic payment amount based on what

Anwarzai can or will be able to afford. [13] Affirmed and remanded with instructions.

Tavitas, J., and Weissmann, J., concur.

Court of Appeals of Indiana | Opinion 23A-CR-1634 | January 29, 2024 Page 6 of 6