Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
A couple’s testimony that a man convicted of felony burglary stole $37,000 out of their safe constituted sufficient evidence for a restitution amount, the Court of Appeals of Indiana ruled Monday in affirming a lower court’s order.
According to court records, on Sept. 4, 2021, Mamoon Anwarzai broke into the home of Toby and Tyler Delgadillo in Shelby County and stole cash out of their safe.
The state charged Anwarzai with several offenses, and in June 2023, he pleaded guilty to Level 4 felony burglary. Anwarzai’s written plea agreement provided that he would pay restitution to the Delgadillos in an amount to be determined at sentencing.
The Shelby Circuit Court accepted Anwarzai’s guilty plea and heard evidence on the amount for restitution.
The Delgadillos both testified that Anwarzai stole $37,000 in cash out of the safe. Thus, 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 his means.
Anwarzai appealed the order, arguing that the state failed to present sufficient evidence to support the award of $37,000 in restitution. He also argued that that the trial court failed to inquire into his ability to pay the restitution amount.
The Court of Appeals affirmed the trial court’s restitution order but remanded with instructions for the court to fix a periodic payment amount based on what Anwarzai can or will be able to afford.
Judge Paul Mathias wrote the opinion for the appellate court.
Mathias noted both of the Delgadillos testified that Anwarzai stole $37,000 in cash. That testimony was sufficient to support the restitution amount, the judge wrote.
Turning next to Anwarzai’s ability to pay, the COA noted that 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.
Anwarzai’s argument was that the evidence does not support the trial court’s implicit finding of his ability to pay.
The appellate court disagreed, pointing to a pre-sentence investigation report that included Anwarzai’s employment history and earning ability. 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 40-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,” Mathias wrote.
But the appellate court did remand the case with instructions for the trial court to determine a periodic payment amount that Anwarzai can make toward the restitution.
“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,” Mathias concluded.
Judges Elizabeth Tavitas and Leanna Weissmann concurred.
The case is Mamoon Anwarzai v. State of Indiana, 23A-CR-1634.
Please enable JavaScript to view this content.