Gerald R. Mauch, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff
Appeal from the Boone Circuit Court. The Honorable Rebecca S. McClure, Special Judge. Case No. 06C01-0610-FD-123.
ATTORNEY FOR APPELLANT: Michael D. Gross, Lebanon, Indiana.
ATTORNEY FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, Indiana.
Vaidik, Chief Judge. Kirsch, J., and Bradford, J., concur.
Vaidik, Chief Judge.
[¶1] Gerald Mauch pled guilty to Class D felony theft and was sentenced to three years of probation. As a condition of his probation, he was ordered to pay $102,444.84 in restitution by the end of his probation. The probation department later filed a petition to revoke his probation because he failed to pay the balance. The trial court found that Mauch knowingly, intentionally, and willfully failed to pay his $102,444.84 restitution because he failed to apply for and obtain a reverse mortgage on his home--an asset deemed sufficient to cover his restitution.
[¶2] Mauch now appeals, arguing that the trial court abused its discretion in revoking his probation. According to the Indiana Supreme Court, although the State bears the burden of proving that (1) a defendant violated a term of probation involving a payment requirement and (2) the failure to pay was reckless, knowing, or intentional, the defendant bears the burden of showing facts related to an inability to pay and indicating sufficient bona fide efforts to pay so as to persuade the trial court that further imprisonment should not be ordered. We find that Mauch has met this burden. That is, in order to obtain a reverse mortgage on his home to pay his restitution, Mauch needed the consent of his wife, and she refused to consent. In addition, Mauch is seventy-six years old and suffers from several health issues, such as being blind in one eye, having neuropathy in his fingers, difficulty standing and walking, and inability to sleep in a bed, all of which affect his ability to get a job. We therefore reverse the trial court.
Facts and Procedural History
[¶3] In November 2007, Mauch, then sixty-nine years old, pled guilty to Class D felony theft. The trial court sentenced Mauch to three years in the Boone County Jail, all suspended to probation. As a condition of his probation, Mauch was ordered to pay $102,444.84 in restitution. Appellant's App. p. 27. Mauch was required " to pay the restitution in full prior to the conclusion of probation, and a payment [had to] be recorded each month." Id. The court determined that Mauch's home--which he owned in joint tenancy with his wife Barbara and which had $200,000.00 in equity--was a sufficient asset to cover his restitution. Tr. p. 59, 79, 86, 108. Mauch had planned to sell his accounting practice to pay his restitution; however, he lost his practice due to his theft conviction. Id. at 68.
[¶4] Three years later, in November 2010, Mauch still owed $97,994.84 in restitution. Appellant's App. p. 30. The probation department filed a petition to modify and/or revoke Mauch's probation. The petition alleged that although Mauch had been making payments, the amount had not been paid in full. Id. In May 2011, the trial court found that Mauch violated his probation. However, the court extended Mauch's probation one year from May 17, 2011, to give him additional time to pay his restitution. At this time Mauch worked at Connor Prairie. Id. at 52. Mauch was ordered to pay no less than $75.00 a week while employed and $100.00 a month while not employed.
[¶5] One year later, in May 2012, the probation department filed a second ...