MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       Feb 28 2017, 8:12 am
court except for the purpose of establishing
                                                                     CLERK
the defense of res judicata, collateral                          Indiana Supreme Court
                                                                    Court of Appeals
estoppel, or the law of the case.                                     and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Suzy St. John                                            Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jaron C. Gibbs,                                          February 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1606-CR-1336
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Christina R.
Appellee-Plaintiff                                       Klineman, Judge
                                                         Trial Court Cause No.
                                                         49G17-1504-CM-12284



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1336 | February 28, 2017   Page 1 of 6
[1]   Jaron Gibbs appeals the probation department’s imposition of costs and fees

      after the trial court elected to impose no fees. He also argues that the trial court

      erred by merging one conviction into another instead of vacating one of them,

      violating the prohibition against double jeopardy. We agree on both

      arguments, and vacate and remand for further proceedings and with

      instructions to vacate the second of Gibbs’s convictions.


                                                     Facts
[2]   At the beginning of Gibbs’s legal proceedings, the trial court found him indigent

      and appointed a public defender. On May 31, 2016, following a bench trial, the

      trial court found Gibbs guilty of Class A misdemeanor domestic battery and

      Class A misdemeanor domestic battery resulting in bodily injury. At the

      sentencing hearing, the trial court asked for argument, and Gibbs’s attorney

      explained as follows:


              Mr. Gibbs is looking for work currently. He’s not working, he
              doesn’t have a license, he doesn’t drive. We don’t believe that
              any form of probation, I don’t know if that would be appropriate.
              Because he [would] have to worry about his transportation with
              him being (INAUDIBLE) or any treatment or anything like that.
              We would ask for time served.


      Tr. p. 100. The same day, the trial court sentenced Gibbs to 365 days, with 339

      days suspended to non-reporting probation. The sentencing order states that

      “The Court is assessing Court Costs and Fees in the amount of $0.00 . . . .”

      Appellant’s App. Vol. II p. 13. The probation order includes a space for



      Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1336 | February 28, 2017   Page 2 of 6
monetary conditions of probation. That section of Gibbs’s order reads as

follows:


    Monetary                   Misdemeanor                 Felony Rate                Ordered Amount
    Obligation                 Rate
    Administrative             50                          100
    Fee
    Alcohol/Drug               250 (A Misd)                250
    Services Program           150 (B & C)
    Child Abuse Fee            100                         100
    Countermeasure             200                         200
    Fee
    Court Costs                183/183.50                  183/183.50
    Domestic                   50                          50
    Violence Fee
    Drug Interdiction          200-1,000                   200-1,000
    Fee
    Fine                       0-5,000                     0-10,000                   $
    Pre-Trial Fee              50                          100
    Probation User             50 + 20/month               100 + 30/month
    Fee
    Public Defender            50                          100
    Fee
    Safe School Fee            200-1,000                   200-1,000
    Sexual Assault             250-1,000                   250-1,000
    Victim Fee



Id. at 51 (blacked-out sections and blank spaces original). Subsequently, the

probation department charged Gibbs $340 in probation user’s fees and $233 in

miscellaneous fees.1 On June 6, 2016, the trial court granted the probation

department’s request to transfer Gibbs’s bond to apply to the outstanding




1
    None of these fees fell into the categories of “Fine,” “Safe School Fee,” or “Sexual Assault Victim Fee.”


Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1336 | February 28, 2017             Page 3 of 6
      balance, leaving Gibbs with a remaining balance owed of $378. Gibbs now

      appeals.


                                   Discussion and Decision
                                I. Probation Fees and Costs
[3]   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). If the probation

      department later wants to alter the fees imposed by the trial court, it must

      petition the trial court to increase the probation fees. I.C. § 35-38-2-1.7(b). To

      be entitled to an increase in fees, the probation department must demonstrate

      that there was a change in the financial ability of the probationer while on

      probation. Id.


[4]   This Court has already considered the precise issue before us regarding

      probation fees and costs. In Coleman v. State, 61 N.E.3d 390 (Ind. Ct. App.

      2016), the trial court’s sentencing order did not list any court costs or fees, and

      the probation order’s monetary obligation section included ordered amount

      sections that were blacked out with the exception of “fine,” “safe school fee,”

      and “sexual assault victim fee,” which were all blank. 61 N.E.3d at 393-94.

      The probation department subsequently imposed an aggregate amount of $640

      in fees on the defendant. This Court found that, “based on the record, we

      cannot conclude that the trial court imposed these probation fees.” Id. at 394.

      Therefore, we vacated the fees and remanded for further proceedings.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1336 | February 28, 2017   Page 4 of 6
[5]   The State directs our attention to a Marion County local rule, which provides

      that whenever an individual is placed on probation, a series of fees and costs

      “shall be imposed under the Probation Court or Probation Order unless the

      sentencing Judge specifically modifies the Order.” LR49-CR00-115(a).

      Initially, we emphasize that any local rule (along with any statute) must also

      comply with the constitutional due process rights of the people to whom the

      rule is applied. Therefore, were this rule to be applied in a way that violated

      Gibbs’s due process rights, we would find it to be unconstitutional.


[6]   As a constitutional argument has not been made in this case, however, we note

      that while we acknowledge this rule, we can only conclude that, by blacking out

      the sections for the “Ordered Amount” of relevant fees and costs in the

      probation order, the trial court did, in fact, modify the default imposition of

      fees. Because the trial court in this case did not impose any probation fees or

      costs on Gibbs, it was erroneous to accept the imposition of these fees without a

      petition from the probation department and a showing that Gibbs’s financial

      situation has changed since the sentencing hearing. Accordingly, we vacate the

      fees and remand for further proceedings.2




      2
        Should the probation department petition for fees and costs, the trial court would have to hold an indigency
      hearing at some point. The trial court could hold the hearing immediately or wait until Gibbs completes his
      sentence to make the indigency determination. Johnson v. State, 27 N.E.3d 793, 795 (Ind. Ct. App. 2015).

      Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1336 | February 28, 2017           Page 5 of 6
                                                II. Merger
[7]   Finally, the trial court entered a judgment of conviction for both Class A

      misdemeanor convictions. In an attempt to avoid running afoul of the

      prohibition against double jeopardy, the trial court merged one count into

      another. The State concedes that Gibbs is correct that merging a conviction

      without vacating it does not remedy a double jeopardy violation. West v. State,

      22 N.E.3d 872, 875 (Ind. Ct. App. 2014). We agree. Therefore, we remand

      with instructions to vacate Gibbs’s conviction for Class A misdemeanor

      domestic violence causing bodily injury.


[8]   The judgment of the trial court regarding the fees owed by Gibbs is vacated and

      remanded for further proceedings consistent with this opinion and with

      instructions to vacate Gibbs’s conviction for Class A misdemeanor domestic

      violence resulting in bodily injury.


      Mathias, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1336 | February 28, 2017   Page 6 of 6
