MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      Dec 30 2015, 6:45 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Suzy St. John                                           Gregory F. Zoeller
Marion County Public Defender                           Attorney General
Appellate Division
                                                        Lyubov Gore
Indianapolis, Indiana                                   Deupty Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jesse Abrams,                                           December 30, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1504-CR-194
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Patrick J. Dietrick,
Appellee-Plaintiff                                      Judge
                                                        The Honorable Mark Renner,
                                                        Commissioner
                                                        Trial Court Cause No.
                                                        49G21-1411-CM-52716



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-194 |December 30, 2015       Page 1 of 5
                                          Case Summary
[1]   Appellant-Defendant Jesse Abrams was convicted of Class A misdemeanor

      invasion of privacy for violating a protective order. The trial court imposed two

      $50.00 public defender fees, one at the initial hearing after determining Abrams

      to be indigent and another at sentencing. On appeal, Abrams argues that the

      trial court abused its discretion by ordering a second $50.00 public defender fee.

      We reverse and remand with instructions.



                            Facts and Procedural History
[2]   On November 24, 2014, Appellee-Plaintiff the State of Indiana (“the State”)

      charged Abrams with Class A misdemeanor invasion of privacy after he

      violated an ex parte protective order. At the initial hearing, the trial court found

      Abrams to be indigent, appointed a public defender to represent him, and

      ordered him to pay a $50.00 “public defender fee.” Appellant’s App. p. 20. At

      a bench trial, the trial court found Abrams guilty as charged and imposed the

      following sentence: “The court…sentences you to 365 days: 82 days of jail time,

      with the 41 days of credit, actual time having spent, you’ve got time served.

      You will be placed on probation for 283 days.” Tr. p. 102. The trial court also

      imposed court costs and fees in the amount of $168.00, which included a $50.00

      “Supplemental Public Defender Fee.” Appellant’s App. p. 15.



                                Discussion and Decision

      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-194 |December 30, 2015   Page 2 of 5
[3]   On appeal, Abrams argues that the trial court erred by ordering him to pay a

      second $50.00 public defender fee at sentencing. “[S]entencing decisions,

      including decisions to impose restitution, fines, costs, or fees, are generally left

      to the trial court’s discretion. If the trial court imposes fees within the statutory

      limits, there is no abuse of discretion.” Kimbrough v. State, 911 N.E.2d 621, 636

      (Ind. Ct. App. 2009) (citations omitted).


[4]   Indiana Code section 35-33-7-6 governs the limits on public defender fees which

      may be imposed against an indigent party.


              (a) Prior to the completion of the initial hearing, the judicial
              officer shall determine whether a person who requests assigned
              counsel is indigent. If the person is found to be indigent, the
              judicial officer shall assign counsel to the person.
              …
              (c) If the court finds that the person is able to pay part of the cost
              of representation by the assigned counsel, the court shall order
              the person to pay the following:
                      (1) For a felony action, a fee of one hundred dollars
                      ($100).
                      (2) For a misdemeanor action, a fee of fifty dollars ($50).
              The clerk of the court shall deposit fees collected under this
              subsection in the county’s supplemental public defender services
              fund established under IC 33-40-3-1.


      Ind. Code § 35-33-7-6.


[5]   At the initial hearing on November 24, 2014, the trial court conducted “a

      thorough examination of defendant’s total financial picture and the nature of


      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-194 |December 30, 2015   Page 3 of 5
      the criminal charges” before finding that Abrams was indigent, appointing a

      public defender, and ordering Abrams to pay a $50.00 public defender fee to the

      Supplemental Public Defender Fund. Appellant’s App. p. 20. Abrams does not

      contend that there was any error with the imposition of this first public defender

      fee and paid the fee on March 11, 2015.


[6]   At sentencing, the trial court imposed court costs and fees in the amount of

      $168.00, which included a $50.00 “Supplemental Public Defender Fee.”

      Appellant’s App. p. 15. This fee was imposed in addition to the initial public

      defender fee. The State does not acknowledge that there was a second $50.00

      fee imposed by the trial court. “There is nothing in the record to support

      Defendant’s claim that the fee was imposed at any time other than the initial

      hearing.” Appellee’s Br. p. 9 n. 2. However, it appears from the sentencing

      order that the public defender fee ordered at sentencing is distinct from the one

      ordered at the initial hearing. Additionally, Abrams provided a summary of his

      outstanding charges, certified by the Marion County Clerk of Courts, detailing

      the court fees owed. This detail confirms that Abrams was charged two $50.00

      public defender fees, first at the initial hearing and again at sentencing.


[7]   The State cites to Indiana Code sections 33-40-3-6 and 33-37-2-3 as alternative

      sections under which the trial court could have imposed a public defender fee at

      sentencing. However, fees may be ordered under Section 33-37-2-3 only if the

      defendant is found not to be indigent. Abrams was found to be indigent in this

      case. Alternatively, Section 33-40-3-6 provides that



      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-194 |December 30, 2015   Page 4 of 5
              If at any stage of a prosecution for a felony or a misdemeanor the
              court makes a finding of ability to pay the costs of representation
              under section 7 of this chapter, the court shall require payment by
              the person or the person’s parent, if the person is a child alleged
              to be a delinquent child, of the following costs in addition to
              other costs assessed against the person:
                      (1) Reasonable attorney’s fees if an attorney has been
                      appointed for the person by the court.

[8]   The trial court could have made a finding at sentencing regarding Abrams

      ability to pay the costs of representation in addition to the $50.00 maximum fee

      previously imposed under Indiana Code section 35-33-7-6; however, it did not

      do so. Rather, it seems simply that the trial court mistakenly ordered two

      $50.00 supplemental public defender fees. Accordingly, we remand with

      instructions that the trial court rescind the $50.00 public defender fee imposed

      at sentencing.


[9]   Remanded with instructions.


      Baker, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-194 |December 30, 2015   Page 5 of 5
