COA reverses probation revocation of man unable to fully pay restitution

A trial court should not have revoked the probation of a man who was ordered to pay more than $100,000 in restitution as a condition of his probation, the Indiana Court of Appeals ruled. The man was able to prove that he could not fully pay off the balance owed because he was unable to obtain a reverse mortgage on his home.

Gerald Mauch was convicted of one count of Class D felony theft for stealing a large amount of money while working as an accountant for a swim club in Zionsville. He was sentenced to three years of probation, and a condition of it was that he pay $102,444.84 in restitution by the end of that three-year period. Even when his probation was extended three years to allow for him to pay the restitution, he still owed nearly $95,000. The probation department filed a petition to revoke his probation. The trial court denied his motion to dismiss.

Mauch, 76, was unable to sell his accounting practice to satisfy the debt because of his criminal record, which also hindered his ability to find other work. He also had several health issues that prevented him from doing most jobs. The trial court found that he could obtain a reverse mortgage on his house to cover the balance, but he argued no one would grant him the mortgage without the consent of his wife, Barbara.

The trial court ordered Mauch to serve his previously suspended sentence in the Department of Correction, where he currently resides with an earliest possible release date of June 9, 2016.

“Here, the record shows that Mauch is seventy-six years old and suffers from many health problems that impact his ability to work. In addition, his sole source of income is his monthly social-security check for $1,134.00. Mauch testified that he had inquired into several mortgage companies … but was told that he would be unable to take out a reverse mortgage without the consent of his wife,” Chief Judge Vaidik wrote in Gerald R. Mauch v. State of Indiana, 06A01-1501-CR-16.

“Barbara testified that upon the advice of an attorney, she would not consent to a reverse mortgage. Mauch made the required monthly restitution payments – $75.00 a week while employed and $100.00 a month while unemployed – except for the few months when he was hospitalized and received home health care. And he continued to make the $100.00 monthly payment between the final and status hearings. Despite the court’s finding that Mauch’s testimony was not credible, there is no indication in the record that he could get a mortgage without Barbara’s consent or that he had other funds to pay the balance. We find that Mauch has made a sufficient showing of his inability to pay and bona fide efforts to pay. Accordingly, the trial court abused its discretion in revoking Mauch’s probation.”