                                                                                          FILED
                                                                                     Mar 10 2017, 9:34 am

                                                                                          CLERK
                                                                                      Indiana Supreme Court
                                                                                         Court of Appeals
                                                                                           and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Suzy St. John                                             Curtis T. Hill, Jr.
      Marion County Public Defender                             Attorney General of Indiana
      Indianapolis, Indiana                                     Christina D. Pace
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Darren D. Langdon,                                        March 10, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A02-1606-CR-1470
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable David J. Certo,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                49G12-1508-CM-30166



      Pyle, Judge.


                                        Statement of the Case
[1]   During Darren Langdon’s (“Langdon”) initial hearing, the trial court ordered

      him to pay a $50.00 supplemental public defender fee. Following the

      sentencing hearing, the trial court ordered Langdon to pay a second $50.00


      Court of Appeals of Indiana | Opinion 49A02-1606-CR-1470 | March 10, 2017                  Page 1 of 5
      supplemental public defender fee. Langdon claims that the trial court lacked

      statutory authority to impose the second fee. We agree and reverse the trial

      court’s imposition of the second fee.


[2]   We reverse and remand for the issuance of an amended sentencing order.


                                                      Issue
                 The sole issue for our review is whether the trial court abused its
                 discretion when it imposed the second $50.00 supplemental
                 public defender fee following the sentencing hearing.


                                                      Facts
[3]   In August 2015, the State charged Langdon with Class A misdemeanor battery

      resulting in bodily injury1 after he was involved in a physical altercation with

      his supervisor. At Langdon’s initial hearing, the trial court found him to be

      indigent and appointed a public defender to represent him. The trial court also

      imposed a $50.00 public defender fee, which Langdon paid the following day.

      Langdon also posted a $150.00 cash bond.


[4]   The trial court convicted Langdon as charged following a May 2016 bench trial

      and sentenced him to time served following a June 2016 sentencing hearing.

      Also at the sentencing hearing, the trial court suspended Langdon’s $185.00

      court costs, found him to be indigent, and appointed a public defender should

      he decide to pursue an appeal. In a Marion County sentencing order form



      1
          IND. CODE § 35-42-2-1.

      Court of Appeals of Indiana | Opinion 49A02-1606-CR-1470 | March 10, 2017        Page 2 of 5
      issued three days later, the trial court ordered Langdon to pay a second $50.00

      supplemental public defender fee. The sentencing order form cited INDIANA

      CODE §§ 33-37-4-1, -4 and 33-37-5-19 as authority for the imposition of this

      second fee. Langdon now appeals the imposition of this fee.

                                                   Decision
[5]   Langdon’s sole argument is that the trial court abused its discretion when it

      imposed the second $50.00 supplemental public defender fee in the written

      sentencing order. Sentencing decisions, including decisions to impose

      restitution, fines, costs, or fees, are generally left to the trial court’s discretion.

      Berry v. State, 950 N.E.2d 798, 799 (Ind. Ct. App. 2011). If the fees imposed by

      the trial court fall within the parameters provided by statute, we will not find an

      abuse of discretion. Id.


[6]   We begin by noting that the three statutes listed on the Marion County

      sentencing order form do not support the imposition of the second

      supplemental public defender fee. Specifically, INDIANA CODE § 33-37-4-1(a)

      concerns the imposition of a $120 criminal costs fee; subsection (b) sets forth a

      list of criminal costs that do not include a supplemental public defender fee; and

      subsection (c) concerns a pretrial diversion program fee. INDIANA CODE § 33-

      37-4-4 concerns civil cost fees, and INDIANA CODE § 33-37-5-19 concern a $2.00

      jury collection fee. The trial court identified no other statutory basis for

      imposing the public defender fees on Langdon.




      Court of Appeals of Indiana | Opinion 49A02-1606-CR-1470 | March 10, 2017       Page 3 of 5
[7]   There are three statutory provisions that directly address the imposition of

      public defender fees, and the trial court can order reimbursement under any or a

      combination thereof. Jackson v. State, 968 N.E.2d 328, 333 (Ind. Ct. App.

      2012). The first statute, INDIANA CODE § 33-35-7-6(a), provides that the trial

      court may impose a supplemental public defender fee before completing the

      initial hearing. Pursuant to this statute, the trial court must determine whether

      the defendant is indigent. I.C. § 35-33-7-6(a). If the defendant is found to be

      indigent, public defender fees are $100 in felony cases and $50 in misdemeanor

      cases. I.C. § 35-33-7-6(c). As acknowledged by Langdon, this is the statutory

      provision that supported the trial court’s imposition of the first $50.00 public

      defender fee. Because Langdon was charged with a misdemeanor, found to be

      indigent, and previously ordered to pay a $50.00 public defender fee, INDIANA

      CODE § 33-35-7-6 does not support the imposition of the second $50.00

      supplemental public defender’s fee.


[8]   The second statute, INDIANA CODE § 33-40-3-6, provides that if the trial court

      finds that the defendant has the ability to pay the costs of representation, the

      trial court shall impose reasonable attorney fees at any stage of a misdemeanor

      or felony prosecution. In such cases, the trial court must consider certain

      enumerated factors to determine the defendant’s ability to pay. Id.; See I.C. §

      33-40-3-7. Because the trial court did not find that Langdon had the ability to

      pay the costs of representation, this statutory provision also fails to support the

      imposition of the second $50.00 supplemental public defender’s fee.




      Court of Appeals of Indiana | Opinion 49A02-1606-CR-1470 | March 10, 2017   Page 4 of 5
[9]    The third statute, INDIANA CODE § 33-37-2-3, provides that the trial court may

       impose part of the attorney fees upon a convicted person, provided the trial

       court first determines that such person is not indigent. I.C. § 33-37-2-3. In the

       latter case, the trial court may suspend payment of fees until completion of the

       executed portion of the defendant’s sentence, holding a hearing to determine

       indigency thereafter. Berry, 950 N.E.2d at 802. This statute does not support

       the imposition of the second $50.00 supplemental public defender’s fee because

       the trial court determined that Langdon was indigent.


[10]   Langdon is correct that none of these statutory provisions support the

       imposition of the second $50.00 fee. Accordingly, the trial court abused its

       discretion in imposing it. We, therefore, reverse the trial court’s imposition of

       the second supplemental public defender fee and remand for the issuance of an

       amended sentencing order.2


[11]   Reversed and remanded.


       Baker, J., and Mathias, J., concur.




       2
         The State contends that the trial court had statutory authority to impose the second fee pursuant to
       INDIANA CODE 35-33-8-3.2(a)(2) and (b), which provide that if the trial court requires the defendant to
       deposit cash or cash and security bail, the court may require the defendant to execute an agreement that
       allows the court to retain all or part of the of the cash to pay publicly paid costs of representation if the
       defendant is convicted. This statute does not support the imposition of the second supplemental public
       defender fee in this case because the record on appeal does not reveal such a bail agreement. Furthermore,
       there is no evidence that the trial court retained part of Langdon’s cash bail to pay the second fee.




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