MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              May 17 2016, 9:04 am
regarded as precedent or cited before any
                                                                        CLERK
court except for the purpose of establishing                        Indiana Supreme Court
                                                                       Court of Appeals
the defense of res judicata, collateral                                  and Tax Court

estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                     Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Chandra K. Hein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Dewan Nix,                                              May 17, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        34A02-1510-CR-1632
        v.                                              Appeal from the
                                                        Howard Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     William C. Menges, Jr., Judge
                                                        Trial Court Cause No.
                                                        34D01-1404-CM-274



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016         Page 1 of 11
[1]   Dewan Nix pleaded guilty to invasion of privacy1 as a Class A misdemeanor

      and, as part of his sentence, was ordered to pay a $1,300.00 reimbursement to

      the Howard County Public Defender’s Supplemental Fund (“Public Defender

      Fund”). Nix appeals his sentence and raises the following restated issues for

      our review:


                 I. Whether the trial court properly released Nix’s bond from
                 another cause number when that case had been consolidated
                 with the present case; and


                 II. Whether the trial court abused its discretion when it ordered
                 Nix to pay $1,300.00 to reimburse the Public Defender Fund.


[2]   We affirm.


                                     Facts and Procedural History
[3]   On April 20, 2014, Nix was located “at or near Main and Mulberry in Howard

      County, Indiana” and “did knowingly or intentionally violate a no contact

      order” by having contact with S.M. Appellant’s App. at 38. Nix was arrested,

      and the State charged him with Class A misdemeanor invasion of privacy under

      cause number 34D01-1404-CM-274 (“Cause 274”). The trial court set Nix’s

      bond in Cause 274 at “$8,000.00 with 10% allowed,” and Nix paid an $800.00




      1
          See Ind. Code § 35-46-1-15.1.


      Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016   Page 2 of 11
      cash bond later that day. Id. at 23. He executed a bond agreement, which

      stated:

                CONDITIONS OF BOND: All bonds posted by defendants are
                subject to the following conditions: (a) defendant shall appear in
                Court at all times required by the Court; and (b) any other
                condition ordered by the Court pursuant to I.C. 35-33-8-3.2(a)
                including refraining from any direct or indirect contact with the
                alleged victim of an offense or other individual as ordered by the
                Court. Violation of any condition ordered by the Court may
                result in revocation of bond and issuance of re-arrest warrant.


                I agree that there is an administrative fee of 10%, up to $50.00, of
                the 10% cash bond.


                Cash bond is only released to the defendant in the case
                following disposition of the case pursuant to I.C. 35-33-8-
                3.2(b). The cash bond is considered the defendant’s asset and
                will only be released to the defendant; and may be applied to
                payment of fines, costs, fees, and restitution as ordered by the
                court.


      Id. at 30 (emphasis in original). At his initial hearing for Cause 274, Nix

      requested the appointment of a public defender, which was granted by the trial

      court. The trial court also “reserve[d] the right to order reimbursement to the

      [Public Defender Fund].” Id. at 13.


[4]   On April 29, 2014, Nix was arrested and charged with Class C felony

      intimidation under cause number 34D01-1405-FC-330 (“Cause 330”). The trial

      court set Nix’s bond in that case “in the sum of $10,000.00 with 10% allowed.”

      Id. at 104. Nix again executed a bond agreement that was identical to the one

      Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016   Page 3 of 11
      executed in Cause 274 and paid $1,000.00 cash bond. Id. at 109. At his initial

      hearing in Cause 330, Nix again requested the appointment of a public

      defender, and the trial court granted the request. The trial court also ordered

      Nix to “pay the sum of $100.00 to the [Public Defender Fund] within 30 days”

      and reserved “the right to order [Nix] to pay additional fees.” Id. at 104-05.


[5]   On June 25, 2014, the State filed a motion to continue the bench trial

      previously set in Cause 274 “in order to allow the case to follow” Cause 330,

      and the trial court granted the motion on the same date. Id. at 49. On June 18,

      2015, Nix pleaded guilty to Class A misdemeanor invasion of privacy, and

      pursuant to the plea agreement, the State agreed to dismiss his Class C felony

      intimidation charge under Cause 330. Additionally, under the plea agreement,

      the trial court sentenced Nix to one year, all suspended with credit for time

      served, and Nix was placed on supervised probation for the duration of his

      suspended sentence. Nix was also ordered to pay the Probation User’s Fees,

      the Probation Administrative Fee, Court Costs, and a reimbursement to the

      Public Defender Fund in the amount of $1,300.00. Id. at 9. Pursuant to the

      conditions of supervised probation, Nix agreed, in writing, to the following:

              FINANCIAL OBLIGATIONS: As part of your probation terms
              various costs and fees are assessed for services provided and as a
              measure of accountability. All payments will be in cash,
              cashiers’ check, money order, or under certain circumstances,
              credit cards. Any amount covered by your posted cash bond
              must still be listed on this form. The Probation Administration
              Fee and the $50.00 initial fee may be covered by posted cash
              bond, however, in some cases the $15.00 monthly fee will not be
              covered by your posted cash bond. In the case of multiple cause
      Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016   Page 4 of 11
              numbers, a Probation Fee will apply to each consecutive cause.
              If financial obligations are not met by the termination date of
              your probation the Howard County Probation Department may
              file an Affidavit of Citation in which you may have to re-appear
              in the sentencing Court to determine how payment of your fees
              will be resolved. The Howard County Probation Department
              further reserves the right to file for a summary judgment with an
              agent for collections for any unpaid fees or costs.


      Id. at 97. The conditions of probation, which were signed by Nix, further listed

      the following as financial obligations Nix agreed to pay: $168.00 in court costs;

      $50.00 as the initial probation fee; $1,300.00 to the Public Defender Fund;

      $50.00 as a probation administrative fee; and “$15.00 per month thereafter” as

      the monthly supervision fee. Id. Nix’s bond proceeds from both Cause 274 and

      Cause 330 were released to pay the costs per the plea agreement and conditions

      of probation. Nix filed a motion to correct error, which was denied by the trial

      court. Nix now appeals.


                                     Discussion and Decision
[6]   Sentencing decisions, including decisions to impose restitution, fines, costs, or

      fees, are generally left to the trial court’s discretion. Berry v. State, 950 N.E.2d

      798, 799 (Ind. Ct. App. 2011) (citing Kimbrough v. State, 911 N.E.2d 621, 636

      (Ind. Ct. App. 2009)). We will reverse only for an abuse of discretion – if the

      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. McElroy v. State, 865 N.E.2d 584, 588 (Ind.

      2007). “If the fees imposed by the trial court fall within the parameters provided

      Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016   Page 5 of 11
      by statute, we will not find an abuse of discretion.” Id. (citing Mathis v. State,

      776 N.E.2d 1283, 1289 (Ind. Ct. App. 2002), trans. denied).


                                   I. Consolidation of Cases
[7]   Nix argues that the trial court violated Indiana Code section 35-33-8-3.2(b)

      when it ordered the bond from Cause 330 be released to pay the costs and fees

      ordered in Cause 274. He contends that the language of the statute required the

      trial court to order the bond from Cause 330 returned to him because the bond

      proceeds in each case may only be applied to the costs and fees ordered in that

      particular case. Nix asserts that, because the charge in Cause 330 was

      dismissed and was a separate and distinct case from Cause 274, Indiana Code

      section 35-33-8-3.2 required the trial court to release the bond from Cause 330

      to him within thirty days of the dismissal of the case. Because the trial court did

      not release the bond to him, it violated the statute.


[8]   Indiana Code section 35-33-8-3.2 governs bail and bail forfeiture. Dillman v.

      State, 2 N.E.3d 774, 776 (Ind. Ct. App. 2014). Under subsection (a) of the

      statute, there are two further subsections, and the first of these subsections

      permits a person to post a cash bond in the full amount of the bail. Ind. Code §

      35-33-8-3.2(a)(1). The second subsection states in pertinent part:


              (a) A court may admit a defendant to bail and impose any of the
              following conditions to assure the defendant’s appearance at any
              stage of the legal proceedings, or, upon a showing of clear and
              convincing evidence that the defendant poses a risk of physical
              danger to another person or the community, to assure the
              public’s physical safety:

      Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016   Page 6 of 11
        ....


         (2) Require the defendant to execute:


        (A) a bail bond by depositing cash or securities with the clerk of
        the court in an amount not less than ten percent (10%) of the bail;
        and


        (B) an agreement that allows the court to retain all or a part of
        the cash or securities to pay fines, costs, fees, and restitution that
        the court may order the defendant to pay if the defendant is
        convicted.


        A portion of the deposit, not to exceed ten percent (10%) of the
        monetary value of the deposit or fifty dollars ($50), whichever is
        the lesser amount, may be retained as an administrative fee. The
        clerk shall also retain from the deposit under this subdivision
        fines, costs, fees, and restitution as ordered by the court, publicly
        paid costs of representation that shall be disposed of in
        accordance with subsection (b), and the fee required by
        subsection (d).


I.C. § 35-33-8-3.2(a)(2). Subsection (a)(2) offers an alternative to paying the full

bail amount – a defendant may post only ten percent of the bail, but “that

amount is subject to retention by the clerk of the court for the reimbursement of

publicly paid costs of representation.” Dillman, 2 N.E.3d at 766; I.C. § 35-33-8-

3.2(a)(2). In the present case, Nix paid ten percent of the bail amount, so he is

governed by subsection (a)(2), and the ten percent of his bail that he paid was

able to be retained to reimburse the costs of his publicly paid representation.




Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016   Page 7 of 11
[9]    Nix asserts that the funds he paid under Cause 330 should not have been

       retained here because he was only convicted under Cause 274, and the two

       cases were separate and distinct with the bond document in each case being

       specific to each case. We disagree. Initially, we note that his two cases were

       consolidated by the trial court, and he failed to object when such consolidation

       occurred; he has therefore waived any objection to the consolidation of his two

       cases. Wilson v. State, 931 N.E.2d 914, 919 (Ind. Ct. App. 2010) (“The failure to

       raise an issue at trial waives the issue on appeal.”), trans. denied.


[10]   Nix was charged with invasion of privacy under Cause 274 and, a few days

       later, was charged under Cause 330 with intimidation. On June 25, 2014, the

       State filed a motion to continue the bench trial previously set in Cause 274 “in

       order to allow the case to follow” Cause 330, and the trial court granted the

       motion on the same date. Id. at 49. Thereafter, motions, orders, and minute

       entries for the cases contained the cause numbers for both cases, and the

       Chronological Case Summary for Cause 330 indicated that it was consolidated

       with Cause 274. Appellant’s App. at 62-66, 106. The plea agreement, which was

       signed by Nix, contained both cause numbers. Id. at 71. In both Cause 274

       and Cause 330, Nix requested, at the initial hearing, that a public defender be

       appointed to represent him, which the trial court granted and informed Nix, at

       that time, that it was reserving the right to order reimbursement to the Public

       Defender Fund. Id. at 13, 104-05. Therefore, during the course of the

       proceedings, Cause 274 and Cause 330 were consolidated, and pursuant to

       Indiana Code section 35-33-8-3.2(a)(2), the trial court was authorized to order


       Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016   Page 8 of 11
       that Nix’s posted bonds be retained to reimburse the costs of his publicly paid

       representation under the two cases when Nix pleaded guilty to invasion of

       privacy. The trial court did not abuse its discretion when it consolidated the

       publicly paid costs of Nix’s representation for two consolidated cases and

       ordered that bond proceeds from both Cause 274 and Cause 330 be retained to

       pay the Public Defender Fund.


                                II. Amount of Reimbursement
[11]   Nix contends that the trial court abused its discretion when it ordered him to

       pay $1,300.00 to reimburse the Public Defender Fund. He alleges that the

       imposition of such a fee was not authorized by any Indiana statutes.

       Specifically, Nix claims that the pertinent statutes require an indigency hearing

       before public defender fees may be imposed and that the trial court here never

       made any determination that he was not indigent and therefore able to pay the

       reimbursement to the Public Defender Fund. To the contrary, Nix asserts that

       the trial court found he was unable to afford to pay for his counsel when it

       appointed a public defender to represent him in the proceedings.


[12]   We initially note that Nix invited any alleged error when he agreed to

       reimburse the Public Defender Fund in the amount of $1,300.00 as a condition

       of his probation. Appellant’s App. at 97-98. The doctrine of invited error is

       grounded in estoppel. Arthur v. State, 950 N.E.2d 343, 347 (Ind. Ct. App. 2011),

       trans. denied. “[U]nder this doctrine, ‘a party may not take advantage of an

       error that she commits, invites, or which is the natural consequence of her own


       Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016   Page 9 of 11
       neglect or misconduct.’” Id. (quoting Wright v. State, 828 N.E.2d 904, 907 (Ind.

       2005)). Invited error is not subject to appellate review, and a party may not

       invite error and later argue that such error requires reversal. Pinkton v. State,

       786 N.E.2d 796, 798 (Ind. Ct. App. 2003), trans. denied. Here, Nix agreed to

       serve his suspended sentence on supervised probation pursuant to his plea

       agreement, and as a condition of his probation, he agreed to pay $1,300.00 to

       the Public Defender Fund. Appellant’s App. at 71, 97-98. Nix cannot now argue

       that it was error to order him to pay a fee that he agreed to pay as a condition of

       his probation.


[13]   Even if Nix did not invite any alleged error, the trial court did not abuse its

       discretion in ordering him to reimburse the Public Defender Fund in the

       amount of $1,300.00. In both Cause 274 and Cause 330, Nix posted ten

       percent of his bail. Pursuant to Indiana Code section 35-33-8-3.2(a)(2), when a

       defendant pays ten percent of his bail, “that amount is subject to retention by

       the clerk of the court for the reimbursement of publicly paid costs of

       representation.” Dillman, 2 N.E.3d at 766. Therefore, the trial court in the

       present case was authorized under Indiana Code section 35-33-8-3.2(a)(2) to

       order Nix to reimburse the Public Defender Fund to pay for the costs of his

       publicly-provided representation. Wright v. State, 949 N.E.2d 411, 416 (Ind. Ct.

       App. 2011). Further, contrary to Nix’s contention, an indigency hearing was

       not required in the present case. “A plain reading of [s]ection 35-33-8-3.2(a)(2)

       . . . leads us to the conclusion that the absence of language requiring an

       indigency hearing means that when a bail bond agreement is executed, such a


       Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016   Page 10 of 11
       hearing is not required.” Id. (citing State v. Dugan, 793 N.E.2d 1034, 1036 (Ind.

       2003) (“It is just as important to recognize what the statute does not say as it is

       to recognize what it does say.”)). To impose the hearing requirement contained

       in other statutes where a defendant executed an agreement pursuant to Section

       35-33-8-3.2(a)(2), would render the bail bond agreement meaningless. Id. We,

       therefore, conclude that the trial court did not abuse its discretion when it

       ordered Nix to pay $1,300.00 to reimburse the Public Defender Fund.


[14]   Affirmed.


[15]   Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016   Page 11 of 11
