MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                                Sep 26 2018, 8:23 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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Darren Bedwell                                           Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James Jones,                                             September 26, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-41
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Stanley Kroh,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         49G03-0002-CF-19525



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-41 | September 26, 2018              Page 1 of 6
                                Case Summary and Issue
[1]   After James Jones violated the terms of his probation, the trial court revoked his

      probation, and as part of his sanction, ordered him to pay certain probation-

      related fees. Jones now appeals raising one issue for our review: whether the

      trial court abused its discretion by imposing probation fees after revoking Jones’

      probation before he began serving it. Concluding that the trial court abused its

      discretion and probation fees should only be imposed in relation to probation

      actually served, we reverse the imposition of probation fees and remand this

      case to the trial court for a reassessment of total costs and fees owed.



                            Facts and Procedural History
[2]   Jones pleaded guilty to dealing in cocaine, a Class B felony, and admitted to

      being an habitual offender. On July 17, 2002, he was sentenced to fifty years in

      the Indiana Department of Correction with ten years suspended and 730 days

      to be served on probation. In July 2015, Jones successfully petitioned the court

      to modify his sentence. The trial court ordered Jones to serve the remaining

      executed portion of his sentence in a community corrections program followed

      by two years of probation. As part of its modified sentencing order, the trial

      court assessed $793.00 in court costs and fees, including $460.00 in “Adult

      Probation Monthly and Initial User Fees[.]” Appellant’s Appendix, Volume III

      at 191.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-41 | September 26, 2018   Page 2 of 6
[3]   In November 2016, Jones was arrested and charged with several felonies.

      Marion County Community Corrections and the probation department filed

      notices of violation, alleging Jones violated the terms of his placement and of

      his probation due to this new case. The Notice of Probation Violation indicated

      Jones’ probation was scheduled to begin on December 10, 2018, and he had not

      paid any portion of his $793.00 monetary obligation. Jones was subsequently

      convicted of a Level 4 felony. On December 12, 2017, the trial court revoked

      Jones’ community corrections placement and his probation and ordered him to

      serve ten years in the Department of Correction.1 On December 15, the trial

      court issued an updated abstract and sentencing order, which still assessed

      $793.00 in court costs and fees, including the $460.00 in probation fees. Jones

      now appeals.



                                   Discussion and Decision
                                        I. Standard of Review
[4]   A trial court’s authority to render sentencing decisions includes the decision to

      impose fees and costs and a sentencing decision is reviewed for an abuse of

      discretion. De La Cruz v. State, 80 N.E.3d 210, 213 (Ind. Ct. App. 2017). A

      trial court abuses its discretion when a sentencing decision is “clearly against




      1
       The trial court has the authority to revoke a defendant’s probation “at any time[,]” including before a
      defendant begins to serve it. Champlain v. State, 717 N.E.2d 567, 571 (Ind. 1999); see also Ind. Code § 35-38-2-
      1(b)(2).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-41 | September 26, 2018                    Page 3 of 6
      the logic and effect of the facts and circumstances before the court, or the

      reasonable, probable, and actual deductions to be drawn therefrom.” Johnson v.

      State, 27 N.E.3d 793, 794 (Ind. Ct. App. 2015). The trial court does not abuse

      its discretion if it imposes fees within the statutory parameters. Id.


                                         II. Probation Fees
[5]   Before proceeding to Jones’ argument, we address the State’s contention that

      Jones waived his right to challenge the probation fees. The State argues Jones

      had ample opportunity to object to the trial court’s imposition of probation fees

      and because of his failure to object, he has waived his right to challenge the fees

      on appeal. Specifically, the State contends that Jones did not object in 2015

      when the court ordered him to pay probation fees as part of his modified

      sentence, in 2016 when Jones became aware of his outstanding balance and

      failed to pay, or in December 2017 at the hearings regarding the revocation of

      his probation and community corrections placement. Although Jones did not

      raise the issue to the trial court at those times, there was no basis for him to

      object as his probation had not yet been revoked and, in 2017 when Jones’

      probation was revoked, the trial court did not mention probation fees at the

      hearing. The probation fees were included in the updated sentencing order

      entered after the hearing. Based on case law, Jones could have properly

      assumed the trial court would not assess any probation fees in the updated

      order because his probation had been revoked before he began serving it.

      Therefore, Jones did not waive his right to challenge the probation fees on



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-41 | September 26, 2018   Page 4 of 6
      appeal because he had no reason or opportunity to do so before the trial court

      assessed the fees.


[6]   Turning to Jones’ argument, he contends the trial court abused its discretion by

      imposing probation fees on him when his sentence does not include probation.

      He argues he “never began serving probation in this case, and probation is not

      part of his sentence now[,]” and asks this court to vacate the probation fees

      contained in the sentencing order. Brief of Appellant at 7. Jones relies on our

      holding in Johnson to support his argument. 27 N.E.3d at 793.


[7]   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 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 Ind. Code § 35-38-2-1(e)).


[8]   Jones has never served probation in this case and the trial court revoked his

      previously ordered probation after he was convicted of a felony before

      beginning his probationary period. Probation was not included in his sanction

      for the probation violation, but the trial court nevertheless ordered him to pay


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-41 | September 26, 2018   Page 5 of 6
       $460.00 in adult probation monthly and initial user’s fees. Therefore, we

       conclude that the trial court abused its discretion by imposing probation fees on

       Jones as part of a sentence without probation. We remand this case to the trial

       court for a reassessment of court costs and fees consistent with our holding in

       Johnson, requiring fees to be in relation to probation actually served.



                                               Conclusion
[9]    For the foregoing reasons, we reverse the assessment of probation fees and

       remand to the trial court to recalculate the amount of court costs and fees Jones

       owes in accordance with this opinion.


[10]   Reversed and remanded.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-41 | September 26, 2018   Page 6 of 6
