Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                                              Sep 03 2013, 5:42 am
before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

JILL M. ACKLIN                                   GREGORY F. ZOELLER
Acklin Law Office, LLC                           Attorney General of Indiana
Westfield, Indiana
                                                 RYAN D. JOHANNINGSMEIER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DWIGHT MCPHERSON,                                )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 48A05-1302-CR-64
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE MADISON CIRCUIT COURT
                         The Honorable Angela Warner Sims, Judge
                              Cause No. 48C01-1204-FD-634
                                       48C01-1206-FD-1045
                                       48C01-1206-FD-1220



                                     September 3, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge

                               Case Summary and Issues

      Dwight McPherson appeals his sentence. He presents two issues on appeal: 1)

whether the trial court properly imposed a public defender fee; and 2) whether the trial

court correctly ordered the restitution amount to be determined by the probation

department. Concluding that the trial court abused its discretion on both issues, we

remand.

                             Facts and Procedural History

      In December of 2012, McPherson entered into a plea with the State, agreeing to

plead guilty to several charges involving theft and attempted theft as Class D felonies,

and criminal mischief as a Class A misdemeanor, following an incident in which

McPherson stole packages of meat from a grocery store. The plea agreement provided

that McPherson would be sentenced to a total of thirty-six months, with the executed

portion to be determined by the court. The court gave McPherson 426 days for time

served, and sentenced him to 654 days suspended and 654 days on probation, for a total

of thirty-six months as provided by the plea agreement.        The court also ordered

McPherson to pay a $200 public defender fee, and left a restitution amount to be

determined by the probation department. This appeal followed. Additional facts will be

supplied as necessary.

                               Discussion and Decision

                                 I. Assessment of Fees

      The trial court has discretion in sentencing a defendant and its decision will be

reversed only upon showing a manifest abuse of discretion. Banks v. State, 847 N.E.2d
                                           2
1050, 1051 (Ind. Ct. App. 2006), trans. denied. If the trial court imposes fees within the

statutory limits, there is no abuse of discretion. Id.

       McPherson argues that there are three governing statutes here, one of which sets a

cap of $100, and two of which require a finding by the court that the defendant is able to

pay. Namely, Indiana Code section 35-33-7-6(c) states that “If the court finds that the

person is able to pay part of the cost of representation by the assigned counsel, the court

shall order the person to pay . . . [f]or a felony action, a fee of one hundred dollars.”

Indiana Code section 33-40-3-6 provides that the court shall require payment of costs

incurred by the county as a result of court appointed counsel, if the court makes a finding

of an ability to pay those costs. Finally, Indiana Code section 33-37-2-3(a) requires the

court to conduct a hearing to determine whether a convicted person is indigent, where the

court is imposing costs. Subsection (e) of that statute requires the court to determine

whether a convicted person is able to pay part of the costs of representation before

ordering the person to pay for defense services rendered. In Jackson v. State, we noted

that fees may be ordered under any combination of these statutes. 968 N.E.2d 328, 333

(Ind. Ct. App. 2012). McPherson argues that because the trial court here never made a

finding as to his ability to pay a fee, and moreover that the fee imposed exceeded the cap

set by Indiana Code section 35-33-7-6, we should remand for reconsideration of this fee.

We agree.

       The State also agrees with McPherson, although it cites to a fourth statutory basis

under which McPherson could have been assessed fees. Nonetheless, the State concedes

that the record is opaque as to whether the requirements of that statute have been met.

The State notes that Indiana Code section 35-33-8-3.2(a) allows the court, in admitting a
                                               3
defendant to bail, to require that the defendant execute an agreement that allows the court

to retain all or part of the cash securities to pay costs of representation, among other

things. However, the record here is silent as to whether such an agreement was executed.

                                       II. Restitution

       McPherson also argues that the trial court erred in leaving to the probation

department a determination of the amount of restitution. Both we and the State agree

with McPherson. We have previously held that the statute allowing the court to order

restitution requires the court to set that amount itself, and that leaving a determination to

the probation department does not comply with the statute. McGuire v. State, 625 N.E.2d

1281, 1282 (Ind. Ct. App. 1993). We remand to the trial court for a determination of

McPherson’s ability to pay restitution, the amount of any restitution, and the manner of

performance.

                                        Conclusion

       Concluding that the trial court erred in its imposition of a public defender fee and

in leaving a determination of restitution to the probation department, we remand for

proceedings consistent with this opinion.

       Remanded.

RILEY, J., and KIRSCH, J., concur.




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