WARSAW — A motion to correct errors, filed by Scott Lennox on behalf of Dr. Mark Soto has been granted by Special Judge Stephen Bowers, but not for the reasons the defense requested. A hearing will be held to address restitution once Soto completes the Victim Offender Reconciliation Program of the Center for Community Justice. Until then the cash bond is to be held by the clerk of the Kosciusko Circuit Court.

The motion to correct error addresses the court’s sua sponte (an order by a judge with no request by any part to the legal action) in distributing Soto’s $10,000 cash bond and applying the bond to the court courts and restitution.

The original order, filed Oct. 11, ordered the clerk of Kosciusko Circuit Court to disburse the cash bond to court costs to be paid in its entirety and the restitution judgement to be paid/applied in a pro rata fashion to the victims. The restitution was reportedly based on checks entered into evidence during the trial.

During sentencing on Sept. 28, the court ordered restitution to Christian McCray, $9,11950; Derrick Hobbs, $5,000; Tyler Silveus, $143,578.32; and Cory Green, $3,150.

The motion to correct errors states that the court took action with the cash bond without due process for Soto and creates the potential for irreversible harm as he is appealing the court’s order of restitution at sentencing and has a good faith meritorious argument. The motion argues there was no notice of restitution as there was nothing in the pre-sentence investigation report as to restitution request and no victims’ affidavits were provided.

It’s noted Soto had no opportunity to confront or examine witnesses regarding restitution, where the eventual figures utilized by the court were obtained, supposedly, from trial testimony and exhibits. Scott Lennox, counsel for Soto, argues there was no endeavor to examine the witnesses or present contradictory evidence related to restitution at the trial as it s a sentencing matter.

Additionally, Lennox argues there was no evidence to support restitution submitted at sentencing, which was not complete hearsay and inadmissible due to foundational and relevance shortfall. “Christian McCray, at trial, indicated he did not desire a return of his money, yet the court ordered restitution in his favor.” The defense, according to Lennox, was ambushed by the submission os restitution when the PSI indicated “N/A” and counsel not given the opportunity to address the topic.

It is also noted that the court failed to undertake proper analysis to determine the appropriateness of ordering restitution and controlling case law authority.

It is the defenses position that the Oct. 11 order be vacated and a new order entered distributing the cash bond to the court reporter in the amount of $3,500 for preparation of transcript and the remaining sum be sent to Reed Earhart & Lennox Attorneys At Law, LLC to be held in trust, pending exhaustion of appeal and further direction of the court.

Bowers noted in his order the argument was two-fold: Soto not afforded due process with respect to the determination of restitution and no evidence was presented at sentencing to support an order of restitution. He agreed Soto was not afforded due process. But he noted the court noted that extensive evidence was presented at the trial regarding the financial losses by the victims, which included checks. “In the judgement of the court, the absence of separate affidavits from the victims as evidence at the sentencing hearing is immaterial. All of the victims testified … defendant had full opportunity to cross examine them …”

Bowers also noted Soto agreed at the time his cash bond was posted, the bond would be available to satisfy court costs, fines and restitution. “The court ordered the defendant to participate in the Victim Offender Reconsiliation Program of the Center for Community Justice (Elkhart). The court will set a hearing to address restitution once that process has been completed, or upon motion of the state or defendant.”