MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Apr 27 2018, 6:52 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew M. Kubacki                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General

                                                         Lee M. Stoy, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Nathaniel Hopkins,                                       April 27, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1709-CR-2052
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Clayton A.
Appellee-Plaintiff                                       Graham, Judge
                                                         Trial Court Cause No.
                                                         49G07-1703-CM-10075



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2052 | April 27, 2018         Page 1 of 7
                                             Case Summary
[1]   Nathaniel Hopkins appeals the trial court’s imposition of probation fees, costs

      and fines during sentencing following his guilty plea to class A misdemeanor

      operating a vehicle while intoxicated. He asserts that the trial court abused its

      discretion in imposing such fees without first holding an indigency hearing to

      determine his ability to pay. Finding no abuse of discretion, we affirm.

      However, we remand to the trial court with instructions to hold an indigency

      hearing at some point before the completion of Hopkins’s sentence.


                                  Facts and Procedural History
[2]   On March 17, 2017, the State charged Hopkins with class A misdemeanor

      operating a vehicle while intoxicated, class A misdemeanor operating a vehicle

      with a blood alcohol concentration of .15 or more, and class A misdemeanor

      operating a vehicle while driving privileges are suspended. On August 16,

      2018, Hopkins entered into a plea agreement with the State in which he agreed

      to plead guilty to class A misdemeanor operating a vehicle while intoxicated in

      exchange for dismissal of the other counts. The plea agreement provided for a

      sentence of 365 days with 355 days suspended to probation. Hopkins agreed to

      “STANDARD PROBATION with all terms and fees.” Appellant’s App. Vol.

      2 at 57. Hopkins specifically agreed to pay a $200 countermeasure fee and a

      $400 alcohol/drug services fee. Hopkins also agreed to pay court costs of

      $185.50, and the plea agreement further provided that “[f]ines are left to the

      discretion of the Court.” Id. (underlining omitted). Following a combined

      guilty plea and sentencing hearing, the trial court accepted the plea agreement

      Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2052 | April 27, 2018   Page 2 of 7
      and sentenced Hopkins accordingly. In addition to the fees listed in the plea

      agreement, the trial court ordered Hopkins to pay a $100 fine, a $50

      supplemental public defender fee, a probation user fee, and some administrative

      fees, resulting in a total amount of fees, costs, and fines of $1275.00. The court

      ordered that Hopkins’s bond escrow of $380 be retained and applied to $285.50

      of the court fines and costs, the supplemental public defender fee, and a portion

      of the countermeasure fee. The Marion County Probation Department

      subsequently filed a memorandum requesting that the bond escrow be

      transferred to the Department to apply toward those fees. The trial court

      approved the memorandum. This appeal ensued.


                                     Discussion and Decision
[3]   Hopkins challenges the trial court’s failure to hold an indigency hearing before

      imposing fees, costs, and fines as part of his probationary sentence. Sentencing

      decisions include decisions to impose fines, costs, and fees. Polk v. State, 88

      N.E.3d 226, 229 (Ind. Ct. App. 2017). We review a trial court’s sentencing

      decisions for an abuse of discretion. Coleman v. State, 61 N.E.3d 390, 392 (Ind.

      Ct. App. 2016). An abuse of discretion occurs when a sentencing decision is

      clearly against the logic and effect of the facts and circumstances before the

      court, or the reasonable, probable, and actual deductions to be drawn

      therefrom. Id.


[4]   Indiana Code Section 33-37-4-1 sets forth the costs the court shall collect from

      convicted defendants by operation of law. Moreover, where as here, a

      defendant is convicted of a misdemeanor, the trial court has the discretion to
      Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2052 | April 27, 2018   Page 3 of 7
      impose certain probation fees. Ind. Code § 35-38-2-1. The Indiana legislature

      unequivocally requires the trial court to hold an indigency hearing as to the

      imposition of fines and costs. See Ind. Code § 33-37-2-3(a) (providing that

      “when the court imposes costs, it shall conduct a hearing to determine whether

      the convicted person is indigent”) and Ind. Code § 35-38-1-18 (providing that

      “whenever the court imposes a fine, it shall conduct a hearing to determine

      whether the convicted person is indigent”). Although a hearing regarding a

      defendant’s ability to pay must be conducted after a judgment of conviction, the

      relevant statutes do not otherwise dictate when the hearing is to be held.

      Meunier-Short v. State, 52 N.E.3d 927, 931 (Ind. Ct. App. 2016). We have

      concluded that, unless the State files a petition to revoke a defendant’s

      probation for nonpayment of fees, costs, or fines, the trial court is free to

      postpone the hearing until the completion of the defendant’s sentence. Id.

      (citing Johnson v. State, 27 N.E.3d 793, 795 (Ind. Ct. App. 2015) (“A trial court

      acts within its authority when it chooses to wait and see if a defendant can pay

      probation fees before it finds the defendant indigent.”) and Whedon v. State, 765

      N.E.2d 1276, 1279 (Ind. 2002) (holding “when fines or costs are imposed upon

      an indigent defendant, such a person may not be imprisoned for failure to pay

      the fines or costs.”)).


[5]   During sentencing, Hopkins requested a waiver of his probation fees and asked

      the court to hold a hearing regarding his ability to pay. The trial court

      specifically considered the fact that Hopkins was gainfully employed, making

      thirteen dollars per hour, as a full-time forklift operator. The court stated that it


      Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2052 | April 27, 2018   Page 4 of 7
      believed that Hopkins had the ability to pay the probation fees imposed by the

      court but that “Probation will do an assessment … and will put him on a

      payment plan” and then “if the need occurs, we will address [indigency] later.”

      Tr. Vol. 2 at 25. Hopkins conceded that he simply wanted an “indigency

      hearing at some point in time.” Id. at 26. Under the circumstances, it was

      reasonable for the trial court here to wait and see if Hopkins can pay the fees

      imposed before holding an indigency hearing.


[6]   The State emphasizes that, pursuant to his plea agreement, Hopkins specifically

      agreed to pay enumerated fees and costs, standard probation fees, and any fines

      imposed at the discretion of the trial court. “A plea agreement is contractual in

      nature, binding the defendant, the State, and the trial court.” Vaughn v. State,

      982 N.E.2d 1071, 1073 (Ind. Ct. App. 2013) (quoting Bennett v. State, 802

      N.E.2d 919, 921 (Ind. 2004)). Once the trial court accepts the plea agreement, it

      “is strictly bound by its sentencing provision and is precluded from imposing

      any sentence other than required by the plea agreement.” Id.


[7]   Be that as it may, a defendant’s agreement to pay is not necessarily indicative of

      a defendant’s ability to pay. We disagree with the State’s assertion that the plea

      agreement constituted an implicit agreement by Hopkins that he is not indigent

      and has the ability to pay the fees, costs, and fines imposed, or that his plea

      agreement somehow relieved the trial court of its statutory duty to conduct an

      indigency hearing. Accordingly, we direct that, on or before the completion of




      Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2052 | April 27, 2018   Page 5 of 7
      Hopkins’s sentence, the trial court shall conduct an indigency hearing to assess

      his ability to pay.1


[8]   Hopkins also challenges the trial court’s decision to retain and then release his

      $380 bond escrow to the Marion County Probation Department, to be applied

      to his probation fees, without first holding an indigency hearing. As we stated

      above, the trial court was not required to hold an indigency hearing at the time

      of sentencing. The bond agreement signed by Hopkins specifically provided

      that the trial court had the authority to retain all or part of the bond to pay fines,

      costs, and fees that the court ordered if Hopkins was convicted. Appellant’s

      App. Vol. 2 at 48 (citing Ind. Code § 35-33-8-3.2). Hopkins was indeed

      convicted, and the trial court ordered fines, costs, and fees. Moreover, as noted

      by the State, the bond agreement also provided that Hopkins could forfeit his

      bond if he violated the conditions of his pretrial release, which he admitted to

      doing. Tr. Vol. 2 at 5-9. Thus, we conclude that the trial court did not abuse its

      discretion in retaining and then releasing his $380 bond escrow so that it could

      be applied to his outstanding monetary obligations.



      1
        It is clear that it is “the trial court, not the probation department, that has the discretion to impose probation
      fees.” Burnett v. State, 74 N.E.3d 1221, 1227 (Ind. Ct. App. 2017). We have vacated and remanded several
      probation fee cases in which the trial court’s sentencing order and probation order had not imposed probation
      fees but instead the probation department had imposed probation fees after sentencing. See, e.g., De La Cruz v.
      State, 80 N.E.3d 210, 214 (Ind. Ct. App. 2017) (vacating probation fees because trial court’s “probation order,
      along with the absence of a clear statement imposing probation fees, shows the trial court’s intent not to
      impose such fees”); Burnett, 74 N.E.3d at 1227 (vacating probation fees imposed by probation department
      after sentencing and remanding for further proceedings); Coleman, 61 N.E.3d at 393-94 (vacating probation
      fees imposed by probation department where sentencing order did not list any such fees and probation order
      contained “ordered amount” sections that were either blacked out or blank). Unlike those cases, the
      probation fees here were ordered by the trial court, not the probation department.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2052 | April 27, 2018                   Page 6 of 7
[9]    In sum, the trial court was not required to hold an indigency hearing prior to its

       imposition of fees, costs, and fines, nor was it required to hold such hearing

       prior to retaining and releasing the $380 bond escrow. However, we direct that,

       on or before the completion of Hopkins’s sentence, the trial court shall conduct

       an indigency hearing to assess his ability to pay.


[10]   Affirmed and remanded.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2052 | April 27, 2018   Page 7 of 7
