MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),                                    Jan 23 2018, 8:46 am
this Memorandum Decision shall not be
                                                                              CLERK
regarded as precedent or cited before any                                 Indiana Supreme Court
                                                                             Court of Appeals
court except for the purpose of establishing                                   and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth Ann Johnson                                         Curtis T. Hill, Jr.
Rory Gallagher                                           Attorney General of Indiana
Marion County Public Defender
                                                         Caryn Nieman-Szyper
Appellate Division                                       Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jarvis D. Johnson, Jr.,                                  January 23, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1707-CR-1666
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Amy M. Jones, Judge
                                                         Trial Court Cause No.
                                                         49G08-1601-CM-3682



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1666 | January 23, 2018           Page 1 of 9
[1]   Jarvis D. Johnson, Jr. (“Johnson”) was convicted following a bench trial of

      Class A misdemeanor battery resulting in bodily injury1 and Class B

      misdemeanor criminal mischief.2 He now appeals and raises the following

      restated issues:


                 I. Whether his convictions for battery and criminal mischief
                 violate Indiana’s double jeopardy principles; and


                 II. Whether the trial court abused its discretion when it imposed
                 probation fees without first holding an indigency hearing.


[2]   We vacate in part and remand.


                                      Facts and Procedural History
[3]   In May 2015, John W. Martin (“Martin”) was the pastor of an Indianapolis

      church. On the afternoon of May 10, 2015, Martin spoke to his congregation,

      and Johnson was present in the church that day, as were some of Johnson’s

      family members, including Johnson’s grandmother (“Grandmother”). After

      Martin finished addressing the congregation, he went to his office, which was in

      the church building. Grandmother, and some other members of the church,

      met with Martin in his office and discussed money that Martin believed was




      1
          See Ind. Code § 35-42-2-1(b)(1).
      2
          See Ind. Code § 35-43-1-2(a).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1666 | January 23, 2018   Page 2 of 9
      missing or stolen. When Grandmother left Martin’s office, she was crying

      about what she perceived as accusations that she had stolen the money.


[4]   Some family members saw that Grandmother was crying and told Johnson,

      who went to Martin’s office and walked in. At that point, Martin was sitting at

      his desk, and there were five or six other people in the office, too. Johnson said

      to Martin, “[Y]ou hurt my grand-momma,” and he punched Martin in the face

      near his right eye, which caused pain. Id. at 7, 50. The blow broke Martin’s

      glasses and knocked them off his face; his eye bled, and he later had to undergo

      surgery to his eye. Id. at 7, 20, 28, 50; State Exs. 1-2. Right after Johnson threw

      the punch, another member of the church pulled Johnson away from Martin.

      Id. at 8-9, 50. Johnson then left the office, and Martin called the police.


[5]   In January 2016, the State charged Johnson with Class A misdemeanor battery

      resulting in bodily injury and Class B misdemeanor criminal mischief. The

      charging information read as follows:


              On or about May 10, 2015, JARVIS JOHNSON did knowingly
              touch [Martin] in a rude, insolent, or angry manner, to-wit:
              striking with a closed fist, resulting in bodily injury to the other
              person, specifically contusions and/or lacerations and/or pain;


              On or about May 10, 2015, JARVIS JOHNSON did, without the
              consent of [Martin], recklessly, knowingly or intentionally
              damage or deface the property of [Martin], to wit: breaking
              glasses;


      Appellant’s App. Vol. II at 19.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1666 | January 23, 2018   Page 3 of 9
[6]   In June 2017, the trial court conducted a bench trial, after which it found

      Johnson guilty on both counts. Tr. Vol. II at 63; Appellant’s App. Vol. II at 13,

      16. The same day, the trial court sentenced Johnson to 365 days, with 361 days

      suspended, for the Class A misdemeanor battery conviction and to 180 days,

      with 176 days suspended, for the Class B misdemeanor criminal mischief

      conviction, with the two sentences to be served concurrently. Tr. Vol. II at 69;

      Appellant’s App. Vol. II at 16-17. The trial court placed Johnson on probation for

      361 days, ordered him to complete twelve anger management classes, and

      ordered him to perform twenty-four hours of community service. Tr. Vol. II at

      69. The trial court stated, “I don’t believe in keeping people on probation

      forever after they get their stuff done. In fact, if that’s an incentive for you to

      knock this ou[t] sooner rather than later, I’ll terminate your probation as soon

      as you get it done.” Id. Thereafter, the trial court removed the pretrial no-

      contact order, and, as to fees and costs, the trial court stated, “I’m not going to

      access [sic] any fines and I’ll show that you have court costs in the amount of

      $183.00 and then I’ll put you on a sliding fee scale for the cost of probation.”

      Id. at 70. No objection or opposition was posed regarding the imposition of

      fees and costs. Counsel for Johnson advised that Johnson desired to appeal,

      and the trial court appointed pauper counsel. Later that day, the trial court

      issued its written sentencing order, which included $340 in probation fees, for a

      total of $523 in fees and costs. Appellant’s App. Vol. II at 13-14, 17. Johnson

      now appeals.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1666 | January 23, 2018   Page 4 of 9
                                       Discussion and Decision

                                           I. Double Jeopardy
[7]   The double jeopardy clause of the Indiana Constitution provides, in relevant

      part, that “[n]o person shall be put in jeopardy twice for the same offense.” Ind.

      Const. art. 1, § 14. In addition to constitutional double jeopardy analysis,

      Indiana also adheres to a number of “common law” double jeopardy rules.

      Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002). It is a common law double

      jeopardy violation when a defendant is convicted for a “crime which consists of

      the very same act as another crime” for which the defendant has been

      convicted. Id.; Calvert v. State, 930 N.E.2d 633, 642 (Ind. Ct. App. 2010).


[8]   Johnson asserts, and the State concedes, that his convictions, for battery as a

      Class A misdemeanor and for criminal mischief as a Class B misdemeanor,

      violate Indiana’s prohibition against double jeopardy because a single act –

      punching Martin in the face – was used to support the two convictions. We

      agree and vacate his conviction for criminal mischief. 3


                                            II. Probation Fees
[9]   Johnson next challenges the imposition of probation fees as part of his sentence.

      Sentencing decisions include the imposition of fines, costs, and fees. Coleman v.

      State, 61 N.E.3d 390, 392 (Ind. Ct. App. 2016). We review a trial court’s




      3
        Because the trial court imposed concurrent sentences, the length of Johnson’s sentence and term of
      probation are not affected by this decision.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1666 | January 23, 2018          Page 5 of 9
       sentencing decisions for an abuse of discretion. Id. 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.


[10]   In the present case, Johnson was ordered to pay certain court costs and

       probation fees. Johnson’s argument on appeal is that the trial court exceeded

       its statutory authority by imposing probation fees without first holding an

       indigency hearing, and he asks us to vacate the imposition of the probation fees.

       Initially, we note, and the State observes, Johnson “failed to object or request

       an indigency hearing when the trial court imposed probation fees.” Appellant’s

       Br. at 10. Indeed, the record reflects that, after imposing $183 in court costs and

       stating that probation fees would be imposed on a sliding scale, the trial court

       expressly asked counsel for Johnson whether she had “anything else” to state or

       present on behalf of her client, and counsel replied only that Johnson desired to

       appeal. Tr. Vol. II at 70. No objection was made or opposition voiced

       concerning the fees and costs. We find that Johnson has thus waived his

       claimed error for failing to present the issue at any time to the trial court.

       Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004) (recognizing general rule

       that party may not present argument or issue on appeal unless party raised that

       argument or issue before trial court).


[11]   Waiver notwithstanding, we find no error in the trial court’s imposition of

       probation fees. Indiana Code section 33-37-4-1 sets forth the costs the court

       shall collect from convicted defendants by operation of law. In addition, where,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1666 | January 23, 2018   Page 6 of 9
as here, a person is convicted of a misdemeanor, the trial court has discretion to

impose probation fees. Ind. Code § 35-38-2-1.4 The Indiana legislature requires

indigency hearings 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”).

With respect to probation fees, we have held that a trial court acts “within its

authority when it chooses to wait and see if a defendant can pay probation fees




4
 Indiana Code section 35-38-2-1(b) provides that “[i]f the person was convicted of a misdemeanor, the court
may order the person to pay the user’s fee under subsection (e).” In turn, Indiana Code section 35-38-2-1(e)
provides, in pertinent part:

        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;


                 ....


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


        to either the probation department or the clerk.



Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1666 | January 23, 2018           Page 7 of 9
       before it finds the defendant indigent.” Johnson v. State, 27 N.E.3d 793, 795

       (Ind. Ct. App. 2015) (citing Indiana Code chapter 35-38-2).


[12]   In Johnson, the defendant raised a similar challenge to that presented to us in

       this case. There, the defendant, Johnson, was sentenced to 365 days in prison

       with 361 days suspended to probation. 27 N.E.3d at 794. The trial court found

       that Johnson was indigent as to court costs and other fees, but, as a condition of

       probation, he was ordered to pay $340 in probation fees ($50 probation

       administration fee and $290 in probation user fees); the trial court ordered a

       sliding fee scale for the probation fees. Id. Later, Johnson’s probation was

       revoked for failing to report to probation, failing to maintain full-time

       employment, and for being arrested and charged with a new offense. Id.


[13]   On appeal, Johnson argued that the trial court abused its discretion when it

       ordered him to pay $340 in probation fees without first conducting an indigency

       hearing. Id. The Johnson court rejected the defendant’s claim for relief because

       “no language in [Indiana code chapter 35-38-2] requires the trial court to

       conduct an indigency hearing before or directly after ordering probation fees.”

       Id. at 795. The Johnson court explained that, while the trial court has a duty to

       conduct an indigency hearing “at some point in time[,]” 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.” Id. The court continued,

       “At the latest, an indigency hearing for probation fees should be held at the

       time a defendant completes his sentence.” Id. Consequently, the Johnson court

       directed that “on the completion of Johnson’s sentence, the trial court should

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1666 | January 23, 2018   Page 8 of 9
       conduct an indigency hearing to assess Johnson’s ability to pay probation fees”

       and “recalculate the amount of probation fees owed, if any.” Id.


[14]   We find the reasoning and holding of Johnson is applicable here and direct that,

       on or before the completion of Johnson’s other probationary obligations, the

       trial court shall conduct an indigency hearing to assess his ability to pay the

       probation fees.5 Accordingly, we remand with instructions to the trial court to

       determine if Johnson is indigent for purposes of paying the costs and probation

       fees. See id. (remanding for trial court to conduct indigency hearing on

       completion of defendant’s sentence); see also Briscoe v. State, 783 N.E.2d 790,

       792-93 (Ind. Ct. App. 2003) (stating that “[w]here a trial court fails to conduct

       an indigency hearing when required, the proper remedy is to remand with

       instructions to hold such a hearing”).6


[15]   Vacated in part and remanded.


[16]   Bailey, J., and Pyle, J., concur.




       5
         Johnson correctly observes that the sentencing order states that his probation would terminate “upon
       completion of the terms and payment of fees.” Appellant’s App. Vol. II at 16-17. To the extent that the
       termination of Johnson’s probation was contingent on the full payment of probation fees, we direct that the
       indigency hearing be held on or before Johnson’s completion of his other probationary requirements, i.e.,
       those unrelated to payment of probationary fees.
       6
         We recognize that, at the conclusion of the sentencing portion of the hearing, the trial court indicated it
       would appoint appellate counsel for Johnson. However, this court has observed, “While a trial court’s
       appointment of defense and appellate counsel for a defendant implies a finding of indigency, the appointment
       of counsel is not conclusive as to the defendant’s ability to pay costs.” Briscoe v. State, 783 N.E.2d 790, 792
       (Ind. Ct. App. 2003).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1666 | January 23, 2018            Page 9 of 9
