MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Mar 17 2020, 9:12 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Daniel Hageman                                           Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Samuel J. Dayton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Adelina Monique Bray,                                    March 17, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1986
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark Renner,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         49G08-1809-CM-31309



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1986 | March 17, 2020                 Page 1 of 8
                                       Statement of the Case

[1]   Adelina Bray (“Bray”) appeals, following a bench trial, her conviction for Class

      C misdemeanor operating a vehicle while intoxicated, which was a lesser-

      included offense to her charge of Class A misdemeanor operating a vehicle

      while intoxicated endangering a person. Bray argues that: (1) the trial court

      abused its discretion when it failed to conduct an indigency hearing at the time

      it assessed fees and stated that she could qualify for early termination of her

      probation upon payment of the imposed fees; and (2) remand is necessary to

      amend the sentencing order and order of probation. We agree that the trial

      court abused its discretion by failing to conduct an indigency hearing after

      imposing fees and stating that Bray could qualify for early termination of her

      probation upon payment of the imposed fees. However, we do not agree that

      remand is necessary to amend the sentencing order and order of probation.

      Accordingly, we remand this case to the trial court with instructions to hold an

      indigency hearing.


[2]   We remand.


                                                    Issues

              1. Whether the trial court abused its discretion when it failed to
              conduct an indigency hearing at the time it assessed fees and stated
              that she could qualify for early termination of her probation upon
              payment of the imposed fees.

              2. Whether remand is necessary to amend the sentencing order
              and order of probation.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1986 | March 17, 2020   Page 2 of 8
                                                          Facts

[3]   In September 2018, the State charged Bray with Class A misdemeanor

      operating a vehicle while intoxicated endangering a person. The charging

      information specifically stated that Bray was charged under “I.C. 9-30-5-2(a) &

      (b).”1 (App. 15). In June 2019, the trial court conducted a bench trial. The

      trial court found Bray not guilty of the Class A misdemeanor offense due to the

      State’s failure to establish the endangerment element of the offense. However,

      the court found Bray guilty of the lesser-included offense of Class C

      misdemeanor operating a vehicle while intoxicated, and this judgment is

      reflected in the Chronological Case Summary (“CCS”).


[4]   Thereafter, the trial court held a sentencing hearing. During the hearing, the

      trial court did not inquire into Bray’s financial status. When sentencing Bray,

      the trial court stated the following:


                 [The] [s]entence then is ma’am, sixty days fifty-eight days
                 suspended with the two-day executed sentence is satisfied [by] the
                 time that you have already spent in custody. Probation for one
                 hundred eighty days and [Advocates Against Impaired Driving]
                 Destructive Decision Panel, alcohol evaluation and treatment if
                 recommended, a $400.00 [alcohol and drug service] fee, $200.00
                 countermeasure fee, rather than show Probation to be non-
                 reporting -- you get all of these things concluded then I’ll allow



      1
          INDIANA CODE § 9-30-5-2 states:
                 (a) Except as provided in subsection (b), a person who operates a vehicle while intoxicated
                 commits a Class C misdemeanor.
                 (b) An offense described in subsection (a) is a Class A misdemeanor if the person operates a
                 vehicle in a manner that endangers a person.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1986 | March 17, 2020                       Page 3 of 8
              Probation to terminate. So, I’m giving you the incentive to get
              everything done, get the fees paid then I will terminate Probation
              once you show that those things are concluded. Court costs are
              $185.50 and no fine is imposed. The INAUDIBLE, Probation
              and administrative costs an[d] I’ll set the lowest Probation user fee
              at $15.00 per month. It’s my hope that you get all of these terms
              and requirements concluded so that you can get off of Probation as
              quickly as possible.

      (Tr. 32-33). In its sentencing order, the trial court noted that Bray’s “probation

      will terminate upon completion of terms and payment of fees[.]” (App. 63).

      The sentencing order’s monetary obligations section shows that Bray owes fees

      and costs totaling $975, which includes a probation administration fee of $50

      and a probation user fee of $140. The probation order lists standard conditions,

      including condition fourteen, which states that Bray shall “pay all Court-

      ordered fines, costs, fees and restitution as directed.” (App. 42). The special

      conditions section of the probation order includes the same conditions as the

      sentencing order. Bray now appeals.


                                                  Decision

[5]   On appeal, Bray argues that: (1) the trial court abused its discretion when it

      failed to conduct an indigency hearing at the time it assessed fees and stated

      that she could qualify for early termination of her probation upon payment of

      the imposed fees; and (2) remand is necessary to amend the sentencing order

      and order of probation. We will address each of these arguments in turn.


      1. Probation Fees




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1986 | March 17, 2020   Page 4 of 8
[6]   Bray first argues that the trial court “failed to conduct an indigency hearing at

      the time it assessed probation fees and made payment of those fees a condition

      for early termination.” (Bray’s Br. 8). “Sentencing decisions include decisions

      to impose fees and costs[,]” and a trial court’s sentencing decision is reviewed

      for an abuse of discretion. Coleman v. State, 61 N.E.3d 390, 392 (Ind. Ct. App.

      2016). 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. If the fees imposed by the trial court fall within the parameters

      provided by statute, we will not find an abuse of discretion. Berry v. State, 950

      N.E.2d 798, 799 (Ind. Ct. App. 2011).


[7]   When a defendant is convicted of a misdemeanor, the trial court has discretion

      to impose certain probation fees. IND. CODE § 35-38-2-1(e). Bray correctly

      notes that, under INDIANA CODE § 33-37-2-3, if a trial court imposes costs on a

      defendant, a trial court is required to conduct an indigency hearing. In regard

      to probation fees, an indigency hearing should take place no later than when a

      defendant completes her sentence. Johnson v. State, 27 N.E.3d 793, 795 (Ind.

      Ct. App. 2015). However, relevant to this case, our Court has also held that

      “[a]ny disparate treatment based on a defendant’s financial situation––whether

      it be by conferring a benefit, modifying a sentence, or something else––triggers

      the requirement to have an indigency hearing at the time the fees are imposed

      to determine the defendant’s ability to pay.” Burnett v. State, 74 N.E.3d 1221,

      1228 (Ind. Ct. App. 2017).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1986 | March 17, 2020   Page 5 of 8
[8]   In Burnett, Burnett was found guilty of Class A misdemeanor operating a

      vehicle while intoxicated endangering a person.2 At sentencing, the trial court

      asked one question to determine Burnett’s financial situation, and Burnett

      stated that she made less than $20,000 per year. The trial court then sentenced

      her to 365 days with five days executed and the remainder suspended to

      probation. The trial court ordered Burnett to pay several court costs, fees, and

      fines, which were payable alongside other probation fees. The trial court stated

      that Burnett’s probation would become non-reporting after she finished the

      terms and conditions of her probation. The sentencing order and order of

      probation also indicated that Burnett’s probation would become non-reporting

      after she had finished paying all of her probation fees. On appeal, Burnett

      argued that the trial court had failed to conduct an adequate indigency hearing

      before it ordered her to pay certain probation fees. We agreed and determined

      that a sufficient inquiry into a defendant’s ability to pay might include questions

      concerning “her exact yearly income, her assets or debts, or any financial

      expenses that could have an impact on her ability to pay fees, such as the cost of

      her rent, utilities, or transportation to and from work, medical expenses, or any

      dependents.” Id. at 1227. We further noted that:


               As a result of the trial court’s assumption that Burnett could pay
               her probation fees, let alone its assumption that she could pay
               them ‘sooner rather than later,’ Burnett could be unfairly
               prevented from receiving the benefit of non-reporting probation.



      2
        On appeal, this Court reversed this conviction and remanded with instructions that the trial court enter
      judgment for Class C misdemeanor operating a vehicle while intoxicated.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1986 | March 17, 2020                      Page 6 of 8
               Any disparate treatment based on a defendant’s financial
               situation––whether it be by conferring a benefit, modifying a
               sentence, or something else––triggers the requirement to have an
               indigency hearing at the time the fees are imposed to determine
               the defendant’s ability to pay.

       Id. at 1228.


[9]    Here, similar to the trial court in Burnett, the trial court ordered Bray to pay

       certain probation fees and “incentive[ized]” her “quick[]” payment of those fees

       to earn an early termination of probation. (Tr. 32-33). There is no evidence in

       the record concerning Bray’s financial status or the trial court’s attempt to

       ascertain such information. Thus, the probation fees imposed could prevent

       Bray from receiving the benefit of early termination of probation, as

       contemplated by the trial court. Based on the foregoing, we conclude that the

       trial court abused its discretion when it failed to conduct an indigency hearing

       at the time it assessed fees and stated that Bray could qualify for early

       termination of her probation upon payment of the imposed fees. See I.C. § 33-

       37-2-3(a). Accordingly, we remand to the trial court to hold an indigency

       hearing.


       2. Sentencing Order and Order of Probation


[10]   Bray next argues that the sentencing order and order of probation should be

       amended to reflect her conviction for the lesser-included Class C misdemeanor

       offense. According to Bray, the sentencing order and order of probation are not

       clear because they do not explicitly show that she was acquitted of Class A



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1986 | March 17, 2020   Page 7 of 8
       misdemeanor operating a vehicle while intoxicated endangering a person. We

       disagree.


[11]   Here, the State charged Bray under INDIANA CODE § 9-30-5-2(a) and (b), which

       provide:


               (a) Except as provided in subsection (b), a person who operates a
               vehicle while intoxicated commits a Class C misdemeanor.

               (b) An offense described in subsection (a) is a Class A
               misdemeanor if the person operates a vehicle in a manner that
               endangers a person.

       Following Bray’s bench trial, the trial court found that the State had not proven

       Class A misdemeanor operating a vehicle while intoxicated endangering a

       person. Instead, the court found that the State had proven beyond a reasonable

       doubt that Bray was guilty of the lesser-included Class C misdemeanor

       operating while intoxicated. This judgment is reflected in the CCS, which

       states that Bray was “found guilty of OVWI/MC a lesser included offense.”

       (App. 10). Notwithstanding the “MA” notation on the sentencing and

       probation orders, the disposition listed on the sentencing order states that there

       was a “Finding of Guilty Lesser Included.” (App. 63). Because the CCS and

       sentencing order show that Bray was convicted of the lesser included offense

       described within INDIANA CODE § 9-30-5-2(b), remand on this issue is not

       necessary.


[12]   Remanded with instructions.


       May, J., and Crone, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1986 | March 17, 2020   Page 8 of 8
