                                                                              FILED
                                                                          Jun 17 2020, 8:53 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Suzy St. John                                              Caroline G. Templeton
      Marion County Public Defender Agency                       Deputy Attorney General
      Indianapolis, Indiana                                      Indianapolis, Indiana




                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Anthony W. Ross,                                           June 17, 2020
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 19A-CR-2966
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Angela Dow
      Appellee-Plaintiff.                                        Davis, Judge
                                                                 The Honorable Hugh Patrick
                                                                 Murphy, Magistrate
                                                                 Trial Court Cause No.
                                                                 49G16-1908-CM-30255



      Friedlander, Senior Judge.


[1]   Anthony Ross appeals the trial court’s order that he pay $340 in probation fees.

      We vacate the judgment of the trial court and remand for further proceedings

      consistent with this opinion.



      Court of Appeals of Indiana | Opinion 19A-CR-2966 | June 17 2020                            Page 1 of 10
[2]   The issue in this appeal is whether the trial court erred by imposing probation

      fees on Ross.

                                                                           1
[3]   Ross was convicted of domestic battery as a Class A misdemeanor and

      sentenced to 365 days with 353 days suspended to unsupervised probation. The

      court ordered Ross to complete eighty hours of community service and thirteen

      weeks of batterers’ intervention classes. The court’s order imposed no

      probation fees and noted that Ross’ probation could terminate early if he

      successfully completed all the terms. On the same day as Ross’ sentencing, the

      probation department sent a memorandum to the trial court asking whether the

      court wanted to assess probation fees and noting the “eligible” fees of $50

      administrative fee and $290 user fee. Appellant’s App. Vol. II, p. 124. In

      response, the court issued an order approving the probation department’s

      memorandum and directing the department to “[a]ssess fees as indicated.” Id.

      at 125. Ross appeals the court’s order.


[4]   Sentencing decisions include decisions to impose fees and costs. Coleman v.

      State, 61 N.E.3d 390 (Ind. Ct. App. 2016). We review a trial court’s sentencing

      decision for an abuse of discretion which occurs when the 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.




      1
          Ind. Code § 35-42-2-1.3(a)(1) (2019).


      Court of Appeals of Indiana | Opinion 19A-CR-2966 | June 17 2020          Page 2 of 10
[5]   When a defendant is convicted of a misdemeanor, the trial court has discretion

      to impose certain probation fees:


              In addition to any other conditions of probation, the court may
              order each person convicted of a misdemeanor to pay:


              (1) not more than a fifty dollar ($50) initial probation user’s fee;


              (2) a monthly probation user’s fee of not less than ten dollars
              ($10) nor more than twenty dollars ($20) for each month that the
              person remains on probation;


              (3) the costs of the laboratory test or series of tests to detect and
              confirm the presence of the human immunodeficiency virus
              (HIV) antigen or antibodies to the human immunodeficiency
              virus (HIV) if such tests are required by the court under section
              2.3 of this chapter; and


              (4) an administrative fee of fifty dollars ($50).


      Ind. Code § 35-38-2-1(e) (2012). If the probation department later wants to alter

      the fees imposed by the trial court, it must petition the trial court:


              A probation department may petition a court to:


              (1) impose a probation user’s fee on a person; or


              (2) increase a person’s probation user’s fee;


              under section 1 or 1.5 of this chapter if the financial ability of the
              person to pay a probation user’s fee changes while the person is
              on probation.

      Court of Appeals of Indiana | Opinion 19A-CR-2966 | June 17 2020                Page 3 of 10
      Ind. Code § 35-38-2-1.7(b) (2015).


[6]   These statutes have been the subject of several recent cases. For example, in

      Burnett v. State, 74 N.E.3d 1221 (Ind. Ct. App. 2017), at sentencing the court

      ordered Burnett to pay certain fees, costs, and a fine. The court also stated she

      would have “various probation fees that are required” and her probation would

      become non-reporting after she completed her terms and conditions. Id. at

      1224. The sentencing order’s conditions of probation section contained the

      comment “all standard conditions and fees of probation,” and the monetary

      obligations section showed $649.50 to be paid in court costs and fees, but it did

      not include any probation fees. Id. The probation order included “pay all

      Court-ordered fines, costs, fees and restitution as directed” in its list of standard

      conditions, and, in its “Monetary Obligation” section, the ordered amount

      column was blacked out for the administrative fee and the probation user fee.

      Id. at 1224-25. The probation department subsequently charged Burnett an

      administrative fee of $50, a monthly and initial user fee of $281.30, a probation

      user fee of $8.70, and a highway work zone fee of $.50, for a total of $340.50.


[7]   On appeal, this Court vacated the trial court’s order of probation fees because,

      although the amount of the fees fell within statutory parameters, imposition of

      the fees was not done according to statute. The Court explained, “[b]ecause the

      trial court did not impose any probation fees or costs on Burnett, it was

      erroneous to accept the imposition of these fees without a petition from the

      probation department and a showing that Burnett’s financial situation has

      changed since the sentencing hearing.” Id. at 1227.

      Court of Appeals of Indiana | Opinion 19A-CR-2966 | June 17 2020            Page 4 of 10
[8]    In turn, our decision in Burnett relied upon Coleman, 61 N.E.3d 390. There, the

       trial court found Coleman indigent as to fines and costs, and the sentencing

       order included no probation fees and indicated Coleman’s total monetary

       obligation was $0. In addition, the probation fees columns in the monetary

       obligations section of the probation order were blacked out. However, the day

       after sentencing, Coleman’s case transaction summary reflected a $50 probation

       administrative fee and a $290 probation user fee.


[9]    On appeal, this Court stated that the probation fees listed in Coleman’s

       transaction summary were within the court’s discretion to impose under

       Indiana Code section 35-38-2-1(e), but it found that, based on the record, it

       could not conclude that the trial court had imposed them. In a footnote, the

       Court acknowledged that the probation department could have petitioned the

       trial court to impose the probation fees but that the record contained no

       evidence that it had done so. See Coleman, 61 N.E.3d at 394 n.5. Therefore, we

       vacated the fees and remanded for further proceedings.


[10]   Here, at sentencing the court imposed a sentence of 365 days and stated it was

       not going to put Ross on probation. However, the court also ordered that the

       protective order remain in effect, and this discussion ensued:


               [STATE]: Judge, it’s my understanding that if it is a purely
               suspended sentence without probation, then the no contact does
               not have [e]ffect.


               THE COURT:        I don’t know how. I’ve not heard that before,
               honestly. So my intent was just to not require the burden of

       Court of Appeals of Indiana | Opinion 19A-CR-2966 | June 17 2020           Page 5 of 10
        probation, but if – I want the no contact order enforceable. So,
        that’s – I may have to do it. I can do [sic] if he completes all
        these terms, I can terminate his probation early. I may have that
        done as [a] condition.


        [DEFENSE]:           It’s my understand[ing] Your Honor that it’s
        a protective order, as opposed to a no contact order.


        DEFENDANT:                 And, it expires.


        THE COURT:           Well, there’s – I may give a no contact order.
        In the criminal case, there may be a protect[ive] order, but I’m
        adding that here. Alright, so in order to make it enforceable –
        I’m sorry, I didn’t have that come up ever before, I’m going to go
        ahead, and make a probationary period, but it’s going to be
        unsupervised. You’ll have to go for the orientation, and then
        thereafter you’ll have to come back here, and tell me what you’ve
        done, as far as these things I’m requiring [of] you.


        *******


        THE COURT:          Alright. So, on probation, it’s for the year.
        I’m going to give you a compliance date to come back and show
        me that you’ve done the things I’m asking, or I’m telling you to
        do. If you’ve done them, then your probation can terminate
        early.


Tr. Vol. II, pp. 83-84 (emphasis added). The court’s sentencing order states,

“The Court is assessing Court Costs and Fees in the amount of $0.00” and in

“Part V Monetary Obligations” it states, “Court Costs and Fees $0.00           Total:

$0.00.” Appellant’s App. Vol. II, p. 14.



Court of Appeals of Indiana | Opinion 19A-CR-2966 | June 17 2020            Page 6 of 10
[11]   Ross’ probation order contains the standard condition that he shall “pay all

       Court-ordered fines, costs, fees and restitution as directed.” Id. at 122. The

       order contains: “Ordered $: ____________” next to “Probation Administrative

       Fee,” “Initial Probation User Fee,” and “Monthly Probation Fee.” Id. All of

       these lines were left blank on Ross’ probation order.


[12]   Later on the same day as Ross’ sentencing hearing, the probation department

       sent a memorandum to the court stating that “[p]er the Indiana Trial Court Fee

       Manual, the following fees are eligible to be assessed that were not addressed by

       the Court:


               Probation Administrative Fee in the amount of $50.00

               Probation User Fee in the amount of $290.00



       The Probation Department is seeking clarification as to if the Court wishes to

       have these fees assessed.” Id. at 124. Two days later, the court issued its order

       approving the memorandum of the probation department and directing

       probation to “[a]ssess fees as indicated.” Id. at 125.


[13]   It is the trial court, not the probation department, that has the discretion to

       impose probation fees in a misdemeanor case. Burnett, 74 N.E.3d 1221; see Ind.

       Code § 35-38-2-1(e). Nothing in the record here indicates that it was the trial

       court that imposed these probation fees; essentially, Ross’ probation fees were

       imposed by the probation department. At sentencing, the court stated nothing

       about Ross paying probation fees, and neither the court’s sentencing order nor


       Court of Appeals of Indiana | Opinion 19A-CR-2966 | June 17 2020           Page 7 of 10
       its probation order imposed any probation fees. As we previously determined

       in both Burnett and Coleman, a probation order such as Ross’, along with the

       absence of a clear statement imposing probation fees, shows the trial court’s

       intent not to impose such fees.


[14]   Thus, it was erroneous for the court to accept, post-sentencing, the imposition
                                                                             2
       of these fees based on a probation department memo. The proper procedure

       was for the probation department to petition the trial court pursuant to Section

       35-38-2-1.7(b) and show that Ross’ financial situation has changed since the

       sentencing hearing. Moreover, we note that this practice of probation

       submitting a memo to the court post-sentencing and without notice to the

       defendant impedes the interest of criminal defendants in the transparency of

       judicial proceedings. Accordingly, we vacate the fees and remand for further

       proceedings.


[15]   Ross also argues that the trial court erred by failing to conduct an indigency

       hearing before imposing fees because the court stated at sentencing and directed

       in the sentencing order and the probation order that Ross’ probation could

       terminate early if he successfully completes all terms. Listed in the probation

       order as a standard condition is the payment of all court-ordered fees; thus,




       2
        We note that the fees listed in the probation department’s memo to the court are the maximum fees allowed
       by statute. See Ind. Code § 35-38-2-1(e).

       Court of Appeals of Indiana | Opinion 19A-CR-2966 | June 17 2020                              Page 8 of 10
       Ross asserts his ability to terminate his probation rests on his ability to pay any

       ordered fees.


[16]   Indiana Code section 33-37-2-3 (2019) requires a trial court to hold an

       indigency hearing if the court imposes costs on a defendant. Although a trial

       court has a duty to hold an indigency hearing, it may exercise its discretion to

       wait and see if a defendant can pay probation fees before it finds the defendant

       indigent. Johnson v. State, 27 N.E.3d 793 (Ind. Ct. App. 2015). Thus, at the

       latest, an indigency hearing for probation fees should be held at the time a

       defendant completes his sentence. Id.


[17]   The trial court’s acceptance of the imposition of probation fees against Ross

       without an indigency hearing could prevent Ross from receiving the benefit of

       unsupervised probation and the court’s order that he could terminate his

       probation early once he completes his community service hours and his

       batterers’ intervention classes. We have previously held that “[a]ny disparate

       treatment based on a defendant’s financial situation—whether it be by

       conferring a benefit, modifying a sentence, or something else—triggers the

       requirement to have an indigency hearing at the time the fees are imposed to

       determine the defendant’s ability to pay.” Burnett, 74 N.E.3d at 1228. Thus, on

       remand, if any probation fees are imposed upon Ross, the trial court should

       conduct a hearing at the time the fees are imposed to assess Ross’ ability to pay.

       Additionally, because the trial court ordered that Ross could terminate his

       probation early upon completion of his community service and classes, any

       probation fees ordered upon remand should reflect this situation and

       Court of Appeals of Indiana | Opinion 19A-CR-2966 | June 17 2020          Page 9 of 10
       correspond to the probation time Ross actually serves. See Johnson, 27 N.E.3d

       793 (where defendant ordered to pay probation fees that reflected twelve-month

       probation but served only five of those months, trial court directed on remand

       to recalculate defendant’s probation fees to correspond to probation time

       actually served).


[18]   The judgment of the trial court regarding the probation fees imposed on Ross is

       vacated and remanded for further proceedings consistent with this opinion.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-2966 | June 17 2020      Page 10 of 10
