MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  FILED
court except for the purpose of establishing                           Jul 07 2017, 6:50 am

the defense of res judicata, collateral                                    CLERK
                                                                       Indiana Supreme Court
estoppel, or the law of the case.                                         Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Victoria L. Bailey                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Matthew Wininger,                                        July 7, 2017
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         14A05-1701-CR-200
        v.                                               Appeal from the Daviess Superior
                                                         Court
State of Indiana,                                        The Honorable Dean A. Sobecki,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         14D01-1510-F6-1343



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 14A05-1701-CR-200 | July 7, 2017             Page 1 of 4
                                           Case Summary
[1]   Following a jury trial, Matthew Wininger (“Wininger”) was convicted of

      Operating a Vehicle as a Habitual Traffic Violator, as a Level 6 felony.1 His sole

      contention on appeal is that the trial court abused its discretion when it ordered

      him to pay a public defender fee of $100.


[2]   We affirm in part and reverse in part.



                                Facts and Procedural History
[3]   Wininger was charged with one count of Operating a Vehicle as a Habitual

      Traffic Violator, and an initial hearing was held on December 14, 2015. At the

      hearing, Wininger stated that appointed counsel was representing him in

      another criminal matter. The trial court took judicial notice of the previous

      appointment of counsel, and appointed the same counsel to represent Wininger.


[4]   A jury trial was held on November 15, 2016, and Wininger was found guilty as

      charged. Wininger received a sentence of two and one-half years, and was

      ordered to pay court costs. The trial court also imposed a $100 fine suspended

      on the condition that Wininger pay $100 to the Daviess County Supplemental

      Public Defender’s Fee Fund. The trial court offered to appoint a public

      defender to represent Wininger on appeal, and later appointed counsel.




      1
          Ind. Code § 9-30-10-16(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 14A05-1701-CR-200 | July 7, 2017   Page 2 of 4
[5]   This appeal ensued.



                                 Discussion and Decision
[6]   Wininger argues, and the State concedes, that the trial court erred when it

      imposed a public defender fee without evaluating Wininger’s ability to pay.


[7]   “Sentencing decisions, including decisions to impose restitution, fines, costs, or

      fees, are generally left to the trial court’s discretion.” Kimbrough v. State, 911

      N.E.2d 621, 636 (Ind. Ct. App. 2009). An abuse of discretion occurs if the

      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. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g.

      “If the trial court imposes fees within the statutory limits, there is no abuse of

      discretion.” Kimbrough, 911 N.E.2d at 636.


[8]   Here, the trial court did not identify a statutory basis for imposing a public

      defender fee. Nonetheless, three different statutes authorize the imposition of

      public defender fees, all of which require at least some inquiry into the

      defendant’s financial circumstances. See I.C. § 35-33-7-6(c) (requiring a

      “find[ing] that the person is able to pay part of the cost of representation”); I.C.

      § 33-40-3-6(a) (requiring a “finding of ability to pay the costs of

      representation”); I.C. § 33-37-2-3(e) (requiring a hearing on indigency and a

      “determin[ation] that a convicted person is able to pay part of the costs of

      representation”); see also Jackson v. State, 968 N.E.2d 328, 333-34 (Ind. Ct. App.


      Court of Appeals of Indiana | Memorandum Decision 14A05-1701-CR-200 | July 7, 2017   Page 3 of 4
       2012) (discussing the three statutes). Moreover, even where a trial court does

       not impose a public defender fee but instead imposes only a fine, the trial court

       must at some point conduct a hearing to determine whether the convicted

       person is indigent. See I.C. § 35-38-1-18(a) (requiring a hearing “whenever the

       court imposes a fine”); I.C. § 35-38-1-18(b) (in the case of a suspended fine,

       requiring a hearing “at the time the fine is due”).


[9]    In the instant case, the trial court erred when it imposed the public defender fee

       without considering Wininger’s ability to pay. We therefore reverse that

       portion of the sentencing order imposing this fee. We affirm the judgment of

       the trial court in all other respects.



                                               Conclusion
[10]   The trial court erred when it imposed the public defender fee without an

       indigency hearing.


[11]   Affirmed in part and reversed in part.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 14A05-1701-CR-200 | July 7, 2017   Page 4 of 4
