MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                             Oct 20 2016, 9:02 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
Deborah Markisohn                                        Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Timothy Hooker,                                          October 20, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1602-CR-384
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy Jones, Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         49G08-1508-CM-27723



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-384 | October 20, 2016    Page 1 of 12
                               Case Summary and Issues
[1]   Following a bench trial, Timothy Hooker was convicted of conversion as a

      Class A misdemeanor. The trial court sentenced Hooker to one year in the

      Marion County Jail with two days credit and 363 days suspended to probation.

      Hooker now appeals his conviction and sentence, raising three issues for our

      review, which we consolidate and restate as: (1) whether the State presented

      sufficient evidence to rebut his mistake of fact defense, and (2) whether the trial

      court abused its discretion in sentencing Hooker. Concluding the State

      presented sufficient evidence to rebut Hooker’s mistake of fact defense but the

      trial court abused its discretion in sentencing Hooker, we affirm his conviction

      and remand with instructions.



                            Facts and Procedural History
[2]   For over thirty years, Hooker and Donald Vick were close friends. In 2015,

      Hooker worked for Vick, who was a painting contractor, and also lived with

      Vick in Vick’s home. Vick owned a vehicle he used every day to get to and

      from work. On the morning of Sunday, August 2, 2015, Hooker asked to

      borrow the vehicle so he could go to his mother’s house. Vick obliged, stating,

      “[Y]ou can run to your mother’s. . . . [S]ee ya in a little bit, be safe.”

      Transcript at 7. Vick needed the vehicle for work the next day and expected

      Hooker to return the vehicle later that day. Hooker did not return the vehicle

      and Vick reported it stolen the following day.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-384 | October 20, 2016   Page 2 of 12
[3]   Over the next couple of days, Vick called Hooker numerous times and left

      voicemails, none of which Hooker returned. On August 5, 2015, Vick observed

      his vehicle near a local gas station. He immediately called 911 and law

      enforcement stopped the vehicle. Hooker, who was driving the vehicle, was

      arrested.


[4]   On August 6, 2015, the State charged Hooker with conversion as a Class A

      misdemeanor. At a bench trial held on January 27, 2016, Hooker asserted a

      mistake of fact defense and testified his extended possession of the car was

      reasonable because he did not believe Vick needed to use the car. The trial

      court found Hooker guilty as charged and sentenced him to one year in jail with

      363 days suspended to probation, which would be discharged upon successful

      completion of a substance abuse evaluation. The trial court then stated,

              Undergo a substance abuse evaluation and treatment. If there is
              anything [to the evaluation] you do [treatment], if there’s not
              then I’ll show your probation—it can terminate as soon as you go
              through [the evaluation]. . . . I’ll show that your probation fees
              will be on a sliding fee scale. So work with probation, tell them
              about you know, your lack—I understand, you’re in construction
              and it’s a slow time. You don’t have any income right now,
              they’re going to be able to adjust your fees accordingly. You’re
              going to be on random drugs screens as a standard condition of
              probation so I’ll put you in a three dollar slot for that, so it’s not
              going to cost you thirteen bucks a pop for that. . . . I’ll find you
              indigent to court costs and I’m not going to access [sic] a fine.


      Id. at 29-30. Hooker completed a substance abuse evaluation and he was not

      referred to treatment. On April 5, 2016, the trial court granted the probation


      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-384 | October 20, 2016   Page 3 of 12
      department’s request to discharge Hooker from probation. The probation

      department assessed $640 in fees, which Hooker had not yet paid. The trial

      court ordered those fees be sent to collections. This appeal ensued.



                                 Discussion and Decision
                                         I. Mistake of Fact
[5]   “A person who knowingly or intentionally exerts unauthorized control over

      property of another person commits criminal conversion, a Class A

      misdemeanor.” Ind. Code § 35-43-4-3(a). The State alleged Hooker knowingly

      or intentionally exerted unauthorized control over Vick’s vehicle. “A person

      engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his

      conscious objective to do so.” Ind. Code § 35-41-2-2(a). “A person engages in

      conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high

      probability that he is doing so.” Ind. Code § 35-41-2-2(b).


[6]   Hooker contends the evidence is insufficient to support his conviction, arguing

      the State failed to meet its burden of disproving his mistake of fact defense

      beyond a reasonable doubt. Pursuant to Indiana Code section 35-41-3-7, a

      mistake of fact defense “is a defense that the person who engaged in the

      prohibited conduct was reasonably mistaken about a matter of fact, if the

      mistake negates the culpability required for commission of the offense.”

              When the State has made a prima facie case of guilt, the burden
              is on the defendant to establish an evidentiary predicate of his
              mistaken belief of fact, which is such that it could create a

      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-384 | October 20, 2016   Page 4 of 12
              reasonable doubt in the fact-finder’s mind that the defendant had
              acted with the requisite mental state. The State retains the
              ultimate burden of proving beyond a reasonable doubt every
              element of the charged crime, including culpability or intent,
              which would in turn entail proof that there was no reasonably
              held mistaken belief of fact. In other words, the State retains the
              ultimate burden of disproving the defense beyond a reasonable
              doubt. The State may meet its burden by directly rebutting
              evidence, by affirmatively showing that the defendant made no
              such mistake, or by simply relying upon evidence from its case-
              in-chief.


      Saunders v. State, 848 N.E.2d 1117, 1121 (Ind. Ct. App. 2006) (citations

      omitted), trans. denied.


[7]   Whether a defendant made a mistake of fact is a question for the finder of fact.

      Id. On appeal, we review the issue under the same standard we generally

      review a challenge to the sufficiency of the evidence. Id. We neither reweigh

      the evidence nor assess witness credibility. Id. We look only to the probative

      evidence supporting the judgment and the reasonable inferences from that

      evidence to determine whether a reasonable trier of fact could conclude the

      defendant was guilty beyond a reasonable doubt. Id. We will uphold a

      conviction if there is substantial evidence of probative value to support it. Id.


[8]   At trial, Vick testified he used the vehicle daily to get to and from work.

      Hooker requested to borrow the vehicle to run to his mother’s house and Vick

      permitted him to use the vehicle for that purpose. In addition, Vick needed the

      vehicle for work the next day, and expecting Hooker to return with the vehicle

      later that day, Vick told Hooker he would see him “in a little bit.” Tr. at 7.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-384 | October 20, 2016   Page 5 of 12
When Hooker did not return, Vick made several attempts to contact him, but

Hooker did not return Vick’s calls. Vick only heard from Hooker and received

his vehicle after the vehicle was reported as stolen, Vick discovered the vehicle’s

whereabouts, law enforcement stopped the vehicle, and Hooker was arrested.

Hooker testified he used the vehicle to run a few errands and he honestly

believed he could borrow the vehicle for a couple days because (1) he and Vick

had been friends for over thirty years, (2) Vick did not need the vehicle because

Vick was injured and was having either Hooker or another man drive him to

and from work, and (3) Vick did not tell him when to return the car. The fact-

finder was not required to believe Hooker’s testimony and his argument on

appeal invites us to reweigh the evidence and reassess witness credibility, which

we will not do. As the trial court stated in finding Hooker guilty,

        Mr. Hooker you [sic] testimony was that you needed to run a few
        places and you needed to run some errands. And it was Mr. Vick
        that testified that you were going to run over to your mother’s
        place. I find it really odd and when I look at the totality of the
        circumstances that a couple of guys who’ve been buddies for 30
        some years and you’re living with him, you’re staying the night
        there, you’ve been staying the night there. You borrow the truck
        to go do a couple of things and then you don’t come back to stay
        the night anymore. You don’t answer any phone calls, you don’t
        contact him, you don’t take his calls, and he has to go to the
        drastic step of filing a police report and then just happens upon
        you out on a public roadway, and has to call the police to get his
        vehicle back. Those things that you’re telling me, that there’s no
        end date, that there’s a mistake of fact; I think that your own
        testimony extinguishes that defense as far as—extinguishes it—
        that there being a mistake of fact. . . . I think the State has



Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-384 | October 20, 2016   Page 6 of 12
               proven it beyond a reasonable doubt. You had no intention of
               taking that truck back to him . . . .


       Id. at 24-25. We conclude the State presented sufficient evidence to negate

       Hooker’s mistake of fact defense.


                                             II. Sentencing
                                       A. Standard of Review
[9]    Sentencing decisions include the imposition of fees and costs. Berry v. State, 950

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

       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 (citation and internal quotation

       marks omitted).


                                     B. Probation Conditions
[10]   Hooker argues the trial court abused its discretion in sentencing him to

       probation for the sole purpose of completing a substance abuse evaluation and

       treatment. Specifically, he contends there is no evidence he had a substance

       abuse problem either at the time he committed the crime or at sentencing and

       therefore the condition that he submit to a substance abuse evaluation and

       participate in random drug testing is based on pure speculation. Although



       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-384 | October 20, 2016   Page 7 of 12
       neither party addresses the issue of mootness, we conclude Hooker’s claim in

       this regard is moot.


[11]   Generally, an issue is deemed moot and usually dismissed when a court is

       unable to render effective relief to a party. Bell v. State, 1 N.E.3d 190, 192 (Ind.

       Ct. App. 2013). The trial court sentenced Hooker to 363 days of probation on

       January 27, 2016. The trial court noted if Hooker completed a substance abuse

       evaluation and treatment was not deemed necessary, it would discharge him

       from probation. On March 18, 2016, Hooker completed a substance abuse

       evaluation and he was not referred to treatment. On April 5, 2016, at the

       probation department’s request, the trial court discharged Hooker from

       probation. Therefore, this allegation of error is moot. See Tharp v. State, 942

       N.E.2d 814, 816 n.1 (Ind. 2011) (holding a probationer’s challenge to a

       condition of his probation was moot in part because the probationer had been

       discharged from probation).


[12]   We further acknowledge Indiana courts have long recognized a case may be

       decided on its merits under an exception to the general rule when the case

       involves questions of great public interest. Bell, 1 N.E.3d at 192. However,

       given the fact neither party addresses the issue of mootness and Hooker does

       not detail the relief he seeks on this claim, we opt not to address whether the

       trial court abused its discretion in ordering Hooker to submit to a substance

       abuse evaluation and to participate in random drug testing as conditions of his

       probation.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-384 | October 20, 2016   Page 8 of 12
                                           C. Probation Fees
[13]   Hooker argues the trial court abused its discretion in ordering him to pay

       probation fees in excess of statutory limits. Generally, a trial court must impose

       probation user’s fees upon an individual who is placed on probation after being

       convicted of a felony. Ind. Code § 35-38-2-1(b). However, where, as here, a

       person is convicted of a misdemeanor, the trial court has discretion to impose

       probation user’s fees. Ind. Code § 35-38-2-1(b).


               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)[.]


       Ind. Code § 35-38-2-1(e).


[14]   Despite the trial court imposing a sliding fee scale on Hooker’s probation fees,

       the probation department imposed Adult Probation Monthly and Initial User

       Fees totaling $281.30. Even assuming the probation department imposed the

       maximum amount on both fees—in light of the time period Hooker actually


       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-384 | October 20, 2016   Page 9 of 12
       served probation—the maximum fees imposed should have totaled no more

       than $130.1 See infra note 3. Thus, we conclude the amount of probation fees

       imposed exceeded the statutory authority set out in Indiana Code section 35-38-

       2-1(e).2


                                          D. Indigency Hearing
[15]   Hooker also argues the trial court abused its discretion in not holding an

       indigency hearing prior to his successful discharge from probation. We agree.


[16]   In Johnson v. State, 27 N.E.2d 793 (Ind. Ct. App. 2015), Johnson was convicted

       of a Class A misdemeanor and a Class C misdemeanor. The trial court found

       Johnson to be indigent for court costs and other fees and ordered a sliding fee

       scale for probation fees, but delayed making an indigency determination until

       more information regarding his financial situation came to light. Ultimately,

       Johnson was assessed probation fees, which he had not yet paid at the time of

       his appeal. On appeal, Johnson argued the trial court abused its discretion in

       ordering him to pay probation fees without first conducting an indigency



       1
        In reaching this sum, we give the probation department the benefit of the doubt and assume the department
       was entitled to impose the maximum monthly user’s fee for January, February, March, and April.
       Therefore, the total maximum monthly user’s fee should total no more than $80. This sum, coupled with a
       maximum initial user’s fee of $50, gives us a total of $130. We further note it appears the probation
       department assessed a year’s worth of probation fees at the maximum amount. Hooker was sentenced to one
       year of probation. If he served the entirety of his sentence on probation with the maximum user’s fees, he
       could have been assessed probation user’s fees of $50(1) + $20(12), which equals $290—an amount just $8.70
       more than what Hooker was assessed.
       2
         The State argues this issue is waived because Hooker did not object to the imposition of fees at the
       sentencing hearing. However, Hooker did not have knowledge of the erroneous fees assessed by the
       probation department until after he was successfully discharged from probation. For this reason, the State’s
       argument fails.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-384 | October 20, 2016          Page 10 of 12
       hearing. We acknowledged Indiana Code section 33-37-2-3 requires a trial

       court to conduct an indigency hearing if it imposes costs upon a defendant. Id.

       at 794. However, we further acknowledged the statute does not dictate when

       the indigency hearing should be held. Id. at 794-95. Because a trial court has

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

       finds a defendant indigent, coupled with the fact a trial court has a duty to

       conduct an indigency hearing at some point in time, we held, “At the latest, an

       indigency hearing for probation fees should be held at the time a defendant

       completes his sentence.” Id. at 795. We therefore remanded to the trial court

       to conduct an indigency hearing upon the completion of Johnson’s sentence.3


[17]   Similar to Johnson, the trial court found Hooker to be indigent for court costs

       and did not assess a fine. However, the trial court did not find Hooker to be

       indigent for probation fees and ordered he be placed on a sliding fee scale,

       directing Hooker to “work with probation, tell them about you know, your

       lack—I understand, you’re in construction and it’s a slow time. You don’t have

       any income right now, they’re going to be able to adjust your fees accordingly.”

       Tr. at 29. As noted above, the probation department did not adjust Hooker’s

       fees accordingly. In addition, the trial court did not hold an indigency hearing

       prior to Hooker’s successful discharge from probation. We therefore conclude




       3
         We further note Johnson was assessed a year’s worth of probation fees despite only serving five months of
       probation; Johnson only served five months because his probation was revoked. We found this assessment
       was made in error and remanded to the trial court to recalculate the amount of fees owed pursuant to the
       amount of time Johnson actually served on probation. Johnson, 27 N.E.3d at 795. Johnson therefore stands
       for the proposition probation fees must reflect the amount of time a defendant actually serves on probation.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-384 | October 20, 2016          Page 11 of 12
       the trial court abused its discretion in not holding an indigency hearing and we

       remand to the trial court to conduct an indigency hearing and determine the

       amount of probation fees owed to correspond with the amount of time Hooker

       actually served on probation.



                                               Conclusion
[18]   The State presented sufficient evidence to rebut Hooker’s mistake of fact

       defense and we therefore affirm his conviction. However, the trial court abused

       its discretion in imposing probation fees without an indigency hearing and we

       therefore remand to the trial court with instructions to hold an indigency

       hearing and assess fees consistent with this opinion.


[19]   Affirmed and remanded.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-384 | October 20, 2016   Page 12 of 12
