                                                                                 FILED
                                                                             Feb 11 2019, 8:51 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                           Curtis T. Hill, Jr.
      Daniel Hageman                                             Attorney General of Indiana
      Marion County Public Defender Agency                       Angela N. Sanchez
      – Appellate Division                                       Assistant Section Chief,
      Indianapolis, Indiana                                      Criminal Appeals
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Teresa L. Holder,                                          February 11, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CR-968
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Carol J. Orbison,
      Appellee-Plaintiff.                                        Senior Judge
                                                                 Trial Court Cause No.
                                                                 49G19-1708-CM-32260



      Mathias, Judge.


[1]   Teresa Holder (“Holder”) appeals the fees imposed for her disorderly conduct

      conviction. She argues the trial court abused its discretion by imposing

      probation fees without conducting an indigency hearing. She also argues that



      Court of Appeals of Indiana | Opinion 18A-CR-968 | February 11, 2019                           Page 1 of 9
      the trial court erred by imposing a $100 public defender fee on Holder when she

      was only charged with misdemeanors.

[2]   We reverse and remand.


                                  Facts and Procedural History
[3]   On August 29, 2017, Holder was having a get-together in her back yard when

      uniformed officers from the Indiana Metropolitan Police Department

      (“IMPD”) entered. The officers proceeded to arrest a man whom the officers

      believed was armed and had committed a felony. Holder, who was surprised

      and had been drinking, began to yell. Officers directed her to quiet down, but

      she continued shouting. Holder was handcuffed without physical incident,

      although she did direct a variety of expletives at officers. She also told officers

      that she did not have a weapon on her person, but if she did have a weapon, she

      would use it on them.

[4]   After being handcuffed, Holder yanked away from an officer and attempted to

      run toward the other individual being arrested. The officer was able to take her

      to the ground safely, but Holder continued to yell until officers placed her in the

      back of an IMPD vehicle.


[5]   Holder was charged with resisting law enforcement as a class A misdemeanor

      and disorderly conduct as a class B misdemeanor. After a bench trial held on

      March 26, 2018, the trial court found Holder guilty of disorderly conduct. The

      trial court then proceeded immediately to sentencing, ordering Holder to 180

      days of jail time, with credit for six days served, and the remaining 174 days
      Court of Appeals of Indiana | Opinion 18A-CR-968 | February 11, 2019        Page 2 of 9
      suspended, with ninety days of non-reporting probation. Although the trial

      court made no inquiry into Holder’s ability to pay, did not hold an indigency

      hearing and did not make any mention of court cost and fees, the written

      sentencing order imposes sixteen separate fees amounting to $395, including

      probation fees amounting to $160. The trial court also imposed $100 in public

      defender fees. In an unexplained discrepancy from the sentencing order, the

      chronological case summary (“CCS”) notes fees of $445, but also shows $160 of

      probation fees.


[6]   Holder completed her community service on April 26, 2018 and paid $195 of

      her financial obligation. On May 16, 2018, the Marion County Probation

      Department filed a memo with the trial court, requesting that Holder’s bond

      money be applied to her $395 financial obligation. On May 25, 2018, the

      Probation Department filed a request for discharge, recommending Holder be

      discharged from probation as scheduled on June 23, 2018. Probation also

      requested a hearing to address Holder’s outstanding financial obligation. The

      trial court approved the probation department’s request for discharge; however,

      as of the date of appeal, no hearing had been set to address the outstanding

      balance shown on the CCS in the amount of $250.


[7]   Holder appeals, arguing that the trial court erred in two ways. First, Holder

      argues that the trial court committed error by imposing fees without conducting

      an indigency hearing. She additionally argues that the trial court erred by

      imposing a felony-level public defender fee of $100 when she was only charged

      with misdemeanors.

      Court of Appeals of Indiana | Opinion 18A-CR-968 | February 11, 2019     Page 3 of 9
                                      Discussion and Decision

[8]   Indiana Code section 33-37-2-3 provides the trial court with great flexibility in

      imposing costs. Berry v. State, 950 N.E.2d 798, 801 (Ind. Ct. App. 2011). The

      statute states:

              (a) Except as provided in subsection (b), when the court imposes
              costs, it shall conduct a hearing to determine whether the
              convicted person is indigent. If the person is not indigent, the
              court shall order the person to pay:


                       (1) the entire amount of the costs at the time the sentence
                       is pronounced;


                       (2) the entire amount of the costs at some later date; or


                       (3) specified parts of the costs at designated intervals.


              (b) A court may impose costs and suspend payment of all or part
              of the costs until the convicted person has completed all or part
              of the sentence. If the court suspends payment of the costs, the
              court shall conduct a hearing at the time the costs are due to
              determine whether the convicted person is indigent. If the
              convicted person is not indigent, the court shall order the
              convicted person to pay the costs:


                       (1) at the time the costs are due; or


                       (2) in a manner set forth in subsection (a)(2) through
                       (a)(3).


                                                        ***


      Court of Appeals of Indiana | Opinion 18A-CR-968 | February 11, 2019           Page 4 of 9
               (e) If, after a hearing under subsection (a) or (b), the court
               determines that a convicted person is able to pay part of the costs
               of representation, the court shall order the person to pay an
               amount of not more than the cost of the defense services
               rendered on behalf of the person. The clerk shall deposit the
               amount paid by a convicted person under this subsection in the
               county’s supplemental public defender services fund established
               under IC 33-40-3-1.


               (f) A person ordered to pay part of the cost of representation
               under subsection (e) has the same rights and protections as those
               of other judgment debtors under the Constitution of the State of
               Indiana and Indiana law.


[9]    “[D]ecisions to impose restitution, fines, costs, or fees, are generally left to the

       trial court’s discretion.” Berry, 950 N.E.2d at 799 (quoting Kimbrough v. State,

       911 N.E.2d 621, 636 (Ind. Ct. App. 2009)). “A defendant’s indigency does not

       shield him from all costs or fees related to his conviction.” Banks v. State, 847

       N.E.2d 1050, 1051 (Ind. Ct. App. 2006), trans. denied. Sentencing decisions,

       including decisions to impose costs and fees are reviewed for an abuse of

       discretion. Johnson v. State, 27 N.E.3d 793, 794 (Ind. Ct. App. 2015). If the fees

       imposed by the trial court fall within the parameters of the statute, we will not

       find an abuse of discretion. Mathis v. State, 776 N.E.2d 1283, 1289 (Ind. Ct.

       App. 2002), trans. denied.


[10]   Here, the fees imposed do not fall within the parameters of the statute. The

       statute plainly requires a trial court to determine indigency “when the court

       imposes costs.” I.C. § 33-37-2-3(a) (emphasis added). Subsection (b) provides the

       court with the opportunity to suspend costs until the time the sentence is

       Court of Appeals of Indiana | Opinion 18A-CR-968 | February 11, 2019          Page 5 of 9
       completed. I.C. § 33-37-2-3(b). Here, the probation fees were imposed on

       Holder in conjunction with her sentencing without any inquiry or any findings

       regarding her possible indigency.1 There is no indication that these costs were

       suspended or that an indigency hearing would take place when the costs

       became due at a later date. Moreover, in an unexplained discrepancy, the

       written sentencing order imposes sixteen separate fees amounting to $395,

       including probation fees amounting to $160. The CCS shows an obligation of

       $445, but also shows probation fees of $160. As such, we remand for the trial

       court to determine what Holder’s remaining obligation is, if any, determine if

       Holder is indigent, and assess the appropriate costs.

[11]   Holder also challenges the assessment of a $100 public defender fee. In Berry v.

       State, 950 N.E.2d 798, 800 n.2 (Ind. Ct. App. 2011), we acknowledged that

       there were three possible statutes under which a trial court has the authority to

       order a defendant to pay all or a part of the costs of counsel provided at public

       expense. Two of these statutes could potentially apply in this case: Indiana

       Code section 33-37-2-3 and Indiana Code section 35-33-7-6. The trial court

       failed to identify which of these two statutes it relied on to impose the public

       defender fee.




       1
         While a determination of indigency is necessary when a court imposes costs, an indigency hearing is not
       required in order to apply cash bond money to these costs. See Ind. Code § 35-33-8-3.2(a)(2); Wright v. State,
       949 N.E.2d 411, 416 (Ind. Ct. App. 2011). Here, the costs totaled significantly more than the $150 cash bond
       posted by Holder, requiring an indigency hearing for the remainder of the obligation.

       Court of Appeals of Indiana | Opinion 18A-CR-968 | February 11, 2019                               Page 6 of 9
[12]   As is mentioned above, Indiana Code section 33-37-2-3 relates to the costs that

       may be imposed following a criminal conviction and requires that “when the

       court imposes costs, it shall conduct a hearing to determine whether the

       convicted person is indigent.” Ind. Code § 33-37-2-3(a). Subsection (e) further

       provides that “[i]f, after a hearing under subsection (a) or (b),[2] the court

       determines that a convicted person is able to pay part of the costs of

       representation, the court shall order the person to pay an amount of not more

       than the cost of the defense services rendered on behalf of the person.”


[13]   Indiana Code section 35-33-7-6(a) provides that “[p]rior to completion of the

       initial hearing, the judicial officer shall determine whether a person who

       requests assigned counsel is indigent. If the person is found to be indigent, the

       judicial officer shall assign counsel to the person.” Subsection (c) goes on to say

       that “[i]f the court finds that the person is able to pay a part of the cost of

       representation by the assigned counsel, the court shall order the person to pay

       the following: … (2) For a misdemeanor action, a fee of fifty dollars ($50).”

[14]   In Berry, the trial court imposed a public defender fee of $100 but did not specify

       under which statute it imposed the fee. We concluded that “[t]he fact that

       Berry was found indigent at the initial hearing and the trial court ordered a fee

       of $100 leads us to agree … that the trial court imposed the public defender fee




       2
         Again, subsection (b) indicates that if payment of costs is suspended until after the person has completed all
       or a part of their sentence, “the court shall conduct a hearing at the time the costs are due to determine
       whether the convicted person is indigent.” Ind. Code § 33-37-2-3(b).

       Court of Appeals of Indiana | Opinion 18A-CR-968 | February 11, 2019                                Page 7 of 9
       pursuant to Indiana Code section 35-33-7-6.”3 950 N.E.2d at 800. We noted

       that the trial court failed to make a finding regarding Berry’s ability to pay and

       remanded to the trial court to determine whether Berry was able to pay the $100

       public defender fee. Id. at 802.


[15]   In this case, Holder argues that the trial court imposed the $100 public defender

       fee pursuant to Indiana Code section 35-33-7-6(c). It is undisputed this case

       involves only misdemeanor charges. Thus, given the plain language of the

       statute, she argues that the highest fee the trial court could impose was $50.

       The State, on the other hand, argues that the trial court imposed a public

       defender cost pursuant to Indiana Code section 33-37-2-3(g) and, as such, could

       order Holder to pay $100 toward the cost of her publicly-funded representation.

[16]   Similar to the situation in Berry, the trial court found Holder indigent prior to

       trial, appointed a public defender, and then imposed what it referred to on its

       sentencing order as a “Public Defense Administration Fee.” Appellant’s App.

       Vol. II, p. 11. Given these circumstances and consistent with our conclusion in

       Berry, we conclude that the trial court intended to impose the public defender

       fee pursuant to Indiana Code section 35-33-7-6. As such, the most the trial




       3
         The defendant in Berry was charged with and convicted of a felony. As such, the trial court could impose
       a fee of $100 pursuant to Indiana Code section 35-33-7-6.

       Court of Appeals of Indiana | Opinion 18A-CR-968 | February 11, 2019                            Page 8 of 9
       court could impose is $50. On remand, we instruct the trial court to conduct a

       hearing to determine Holder’s ability to pay this $50 fee.4


                                                     Conclusion

[17]   The record in the instant matter lacks any determination regarding the

       defendant’s ability to pay the fees imposed. Moreover, the imposition of a $100

       public defender fee was contrary to statute and outside the trial court’s

       authority. We reverse the imposition of the $100 public defender fee and

       remand to the trial court for proceedings consistent with this opinion.

[18]   Reversed and remanded.


       Bailey, J., and Bradford, J., concur.




       4
         While the State is correct to assert that the trial court could have imposed a public defense cost of $100
       pursuant to Indiana Code section 33-37-2-3(e), the language of the statute indicates that such a cost could
       only have been imposed following a hearing on Holder’s ability to pay.

       Court of Appeals of Indiana | Opinion 18A-CR-968 | February 11, 2019                                 Page 9 of 9
