MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Sep 29 2017, 10:58 am

court except for the purpose of establishing                            CLERK
                                                                    Indiana Supreme Court
the defense of res judicata, collateral                                Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Suzy St. John                                            Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Appellate Division
                                                         Katherine Cooper
Indianapolis, IN                                         Deputy Attorney General
                                                         Indianapolis, IN



                                           IN THE
    COURT OF APPEALS OF INDIANA

John Amos,                                               September 29, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1703-CR-517
        v.                                               Appeal from the Marion Superior
                                                         Court, Criminal Division 16
State of Indiana,                                        The Honorable Patrick Murphy,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause Nos.
                                                         49G16-1607-F6-020081
                                                         49G17-1610-CM-042384



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-517 | September 29, 2017    Page 1 of 5
                                          Case Summary
[1]   John Amos was convicted of multiple misdemeanors and sentenced to

      probation. At his sentencing hearing the trial court stated that it was not going

      to impose any costs or fines to him, and the written order reflects this statement.

      The court then sentenced Amos to probation but made no comment regarding

      probation fees.


[2]   After sentencing, the probation department sought clarification on the court’s

      order and sent a letter to the court asking whether administrative and probation-

      user fees should be imposed on Amos. The court “approved” the

      memorandum sent by the probation department, and $340 in fees were charged

      to Amos. The State concedes that the probation department’s letter to the court

      was not a petition for fees, as required by Indiana statute, and requests that we

      remand. Thus, we vacate the order charging administrative and probation-user

      fees and remand for further proceedings.



                            Facts and Procedural History
[3]   At the conclusion of Amos’s bench trial where he was found guilty of invasion

      of privacy, the trial court sentenced him to one year, all suspended to probation.

      During sentencing, the trial court stated, “Again, I’m not going to impose any




      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-517 | September 29, 2017   Page 2 of 5
      fine or cost.” Cause No. 28001 Tr. Vol. II p. 28.1 The court did not make any

      comment regarding probation fees.


[4]   No court costs or fees were entered on the written sentencing orders. However,

      in a section titled “Monetary Conditions” on the written order of probation, the

      trial court wrote, “Pursuant to Indiana Statute the minimum fee allowed by law

      shall be imposed.” Appellant’s App. Vol. II p. 84. The order also contains a

      table for setting the monetary obligations of probation. That section of Amos’s

      order provides:




      Id. (blacked-out sections and blank spaces in original).




      1
       Amos had two separate bench trials on February 13, Cause Nos. 49G16-1607-F6-28001 and 49G16-1610-
      CM-42384. The sentencing transcript is included with the transcript for the cause number ending in 28001.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-517 | September 29, 2017        Page 3 of 5
[5]   On February 23, the Marion County Probation Department filed a notice with

      the trial court that Amos was “eligible to be assessed” $340 in probation fees (a

      $50 administrative fee, a $50 initial probation-user fee, and a $20 per month

      probation-user fee for twelve months). Appellant’s App. Vol. II p. 92. The

      department sought “clarification as to if the Court wish[ed] to have these fees

      assessed” against Amos. Id. Four days later the trial court issued an “Order on

      Memorandum of Probation” and “approved” the probation department’s

      memorandum. Id. at 93. Thereafter, $340 in probation fees were charged to

      Amos.


[6]   Amos now appeals.



                                 Discussion and Decision
[7]   Amos argues, and the State agrees, that the memorandum sent by the probation

      department did not constitute a petition to have administrative or probation fees

      imposed on Amos. We agree. Indiana Code section 35-38-2-1 states that if a

      defendant is “convicted of a misdemeanor, the court may order the person to

      pay the user’s fee prescribed under subsection (e).” Ind. Code § 35-38-2-1(b).

      Subsection (e) details the maximum amount the court may order a person to

      pay for probation fees, including the administrative fee and the probation-user

      fee. The probation department may petition the trial court to impose or

      increase a defendant’s probation-user fee if the defendant’s financial ability to

      pay has changed while he is on probation. Ind. Code § 35-38-2-1.7(b).



      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-517 | September 29, 2017   Page 4 of 5
[8]   At sentencing, the trial court explicitly stated, “Again, I’m not going to impose

      any fine or cost.” Cause No. 28001 Tr. Vol. II. p. 28. This was reflected in its

      written sentencing orders when it imposed no court costs or fines. The trial

      court was silent on the issue of probation fees, despite sentencing Amos to

      probation. In the written probation order, the court blacked out or left blank

      each row under the column “ordered amount.” Yet, two weeks after the

      sentencing hearing, the court “approved” $340 in administrative and probation-

      user fees based on a clarification request from the probation department. The

      State concedes that this request was not a petition to impose probation fees and

      asks us to remand. Accordingly, we vacate the order imposing $340 in

      administrative and probation-user fees and remand to the trial court to clarify

      what, if any, probation fees will be imposed on Amos, including the category of

      fee(s) and the amount.2


[9]   Vacated and remanded with instructions.


      Mathias, J., and Crone, J., concur.




      2
        Amos also argues that if the trial court orders probation fees, it must conduct an indigency hearing at the
      time the fees are imposed. Amos relies on Indiana Code section 33-37-2-3 to support his argument. This
      statute states, “[W]hen the court imposes costs, it shall conduct a hearing to determine whether the convicted
      person is indigent.” Ind. Code § 33-37-2-3(a). But the statute does not dictate when this hearing is to occur.
      If the State seeks to revoke a defendant’s probation for failure to pay costs and/or fees, the trial court must
      hold the indigency hearing before revoking probation. Johnson v. State, 27 N.E.2d 793, 795 n.1 (Ind. Ct. App.
      2015); see also Whedon v. State, 765 N.E.2d 1276, 1279 (Ind. 2002) (“[W]hen fines or costs are imposed upon
      an indigent defendant, such a person may not be imprisoned for failure to pay the fines or costs.”).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-517 | September 29, 2017           Page 5 of 5
