MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Mar 10 2020, 6:29 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
Deborah Markisohn                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Kentrell A. Fleming,                                     March 10, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1394
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G04-1802-F5-5443



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1394 | March 10, 2020                  Page 1 of 6
                                             Case Summary
[1]   After finding that Kentrell Fleming violated a no contact order, the trial court

      revoked Fleming’s placement in community corrections and a yet-to-be-served

      term of probation. As part of his sanction, the trial court ordered Fleming to

      pay certain probation-related fees. On appeal, Fleming argues that the court

      abused its discretion by imposing probation fees for a term of probation that

      was revoked before it ever began.


[2]   We reverse and remand.


                                   Facts & Procedural History
[3]   On February 15, 2018, the State charged Fleming with Count I, Level 5 felony

      intimidation, and Count II, Level 5 felony battery resulting in serious bodily

      injury. On September 26, 2018, Fleming pled guilty to Count II and the State

      agreed to dismiss Count I. On October 10, 2018, the trial court sentenced

      Fleming per the terms of the plea agreement, imposing a five-year sentence,

      with three years executed and two years suspended. The executed portion of

      the sentence was to be served as one year in the Department of Correction

      (DOC) and two years in community corrections. Of the two years suspended,

      one year was to be served on probation. As part of the original sentencing

      order, the trial court ordered Fleming to pay court costs and fees totaling $845,

      including $560 in probation-related fees.


[4]   On February 1, 2019, community corrections filed a notice of violation alleging

      that Fleming violated a no contact order. The probation department also filed a

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1394 | March 10, 2020   Page 2 of 6
      notice of probation violation on February 4, 2019. 1 The court held a contested

      hearing over two days. On May 17, 2019, the trial court found that Fleming

      violated the rules of both community corrections and probation by violating a

      no contact order. The court revoked both placements and ordered Fleming to

      serve four years in the DOC. Because Fleming was still serving his community

      corrections sentence when the violations were filed, he had not yet begun

      serving his time on probation. The trial court issued an updated sentencing

      order reflecting the sanction and reassessed $845 in court costs and fees,

      including the $560 in probation fees. Fleming now appeals. Additional facts

      will be provided as necessary.


                                        Discussion & Decision
[5]   Sentencing decisions include decisions to impose fees and costs. Berry v. State,

      950 N.E.2d 798, 799 (Ind. Ct. App. 2011). A trial court’s sentencing decisions

      are reviewed under an abuse of discretion standard. McElroy v. State, 865

      N.E.2d 584, 588 (Ind. 2007). “An abuse of discretion has occurred when 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.’” Id. at 588 (quoting K.S. v. State, 849

      N.E.2d 538, 544 (Ind. 2006)). “If the fees imposed by the trial court fall within




      1
       The notice of probation violation indicated that Fleming had not paid any portion of his $845 monetary
      obligation.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1394 | March 10, 2020                  Page 3 of 6
      the parameters provided by statute, we will not find an abuse of discretion.”

      Berry, 950 N.E.2d at 799.


[6]   Before addressing Fleming’s argument, we address the State’s contention that

      Fleming “cannot challenge the assessment of probation fees since they appeared

      in the original sentencing order and were not added as part of his sentence in

      the revocation hearing.” Appellee’s Brief at 7. The State maintains that because

      Fleming did not challenge imposition of probation fees when they were

      assessed, he cannot challenge them following the revocation of his probation.

      The State improperly characterizes Fleming’s challenge as a collateral challenge

      to the validity of his sentence. Cf. Stephens v. State, 818 N.E.2d 936, 939 (Ind.

      2004) (stating that a defendant cannot collaterally attack a sentence on appeal

      from a probation revocation). When the probation fees were imposed as part of

      the original sentencing order, Fleming had no basis to object as his probation

      had not yet been revoked. After the trial court revoked his probation, however,

      the court again imposed probation-related fees. Fleming is not collaterally

      attacking the imposition of probation fees as set out in the original sentencing

      order. Rather, Fleming argues that the trial court abused its discretion when it

      failed to modify his fee obligation following the revocation of his probation. A

      judgment revoking probation is a final appealable order. Ind. Code § 35-38-2-

      3(l). Fleming can therefore challenge the court’s imposition of probation fees.


[7]   Citing I.C. § 35-38-2-1(b) (directing to I.C. § 35-38-2-1.7(b)), the State also

      argues that the trial court was prohibited from vacating the imposition of

      probation fees absent a petition from the probation department. The plain

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1394 | March 10, 2020   Page 4 of 6
      language of the statute establishes that it is not relevant to this case. Pursuant to

      I.C. § 35-38-2-1(b), the trial court may modify the conditions or terminate

      probation at any time, except for fee payment which “may only be modified as

      provided in section 1.7(b) of this chapter”. Section 1.7(b) provides:


              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.


      (Emphasis supplied). Neither of these provisions is applicable here. Further,

      this statutory provision presumes the individual is actively serving probation,

      which Fleming was not. We disagree with the State that the trial court was

      statutorily constrained to leave the probation fees imposed as part of the

      original sentence in place following the revocation of Fleming’s probation.


[8]   We now turn to the merits of Fleming’s argument. Relying on Johnson v. State,

      27 N.E.3d 793 (Ind. Ct. App. 2015), Fleming contends that the trial court

      abused its discretion by requiring him to pay probation user fees despite his

      probation being revoked before it ever began. In Johnson, the trial court ordered

      the defendant to pay twelve months of probation fees but after the defendant

      served just five months of probation, the trial court revoked his probation due to


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1394 | March 10, 2020   Page 5 of 6
       a violation. The defendant appealed the trial court’s order that he pay the entire

       twelve months of probation fees. This court held that “probation fees should

       reflect the time a defendant actually served on probation” and because “the

       $340 in probation fees reflected a twelve-month probation and [defendant]

       served only five of those months, the trial court should recalculate [defendant’s]

       probation fees, if appropriate, to correspond with the probation time

       [defendant] actually served.” Id. at 794-95 (citing I.C. § 35-38-2-1(e)).


[9]    In this case, Fleming never served probation, and the trial court revoked his

       previously ordered probation before his probation even began. Although the

       trial court revoked Fleming’s probation, the trial court nevertheless ordered him

       to pay $560 in probation-related fees. We conclude that the trial court abused

       its discretion in ordering Fleming to pay probation fees as part of a sanction that

       did not include probation. We remand this case to the trial court with

       instructions to reduce the amount of fees by $560.


[10]   Judgment reversed and remanded.


       Robb, J. and Bradford, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1394 | March 10, 2020   Page 6 of 6
