                                                                         FILED
                                                                     Jul 15 2019, 5:38 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Talisha Griffin                                             Curtis T. Hill, Jr.
Marion County Public Defender Agency                        Attorney General of Indiana
Indianapolis, Indiana                                       Evan Matthew Comer
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Darnell Cleveland,                                          July 15, 2019
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            18A-CR-2298
        v.                                                  Appeal from the Marion Superior
                                                            Court
State of Indiana,                                           The Honorable Clayton A.
Appellee-Plaintiff                                          Graham, Judge
                                                            Trial Court Cause No.
                                                            49G07-1711-CM-45511



Baker, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-2298 | July 15, 2019                            Page 1 of 23
[1]   Darnell Cleveland appeals his convictions for Class A Misdemeanor Carrying a

      Handgun Without a License1 and Class A Misdemeanor Possession of

      Marijuana,2 arguing that (1) the trial court should have excluded all evidence

      obtained from his search and arrest because they were both unlawful; (2) the

      trial court erred when it ordered the destruction of his handgun post-conviction;

      and (3) the trial court erred when it ordered him to pay a public defender fee

      without first conducting an indigency hearing. Finding that the search was

      lawful and that there was no error regarding the public defender fee, but that

      there was error regarding the trial court’s order to destroy, we affirm in part and

      reverse and remand in part with instructions.


                                                      Facts        3




[2]   On November 24, 2017, Indianapolis Metropolitan Police Department (IMPD)

      Officer Eric Parrish was patrolling 38th Street in Indianapolis when his radar

      detected a Ford Explorer driving by at sixty miles per hour in a thirty-five-mile-

      per-hour zone. Officer Parrish started following the vehicle. He also ran a

      search of the vehicle’s license plate number and found that the license plate was

      registered to a Chevrolet. With this information, Officer Parrish initiated a




      1
          Ind. Code § 35-47-2-1.
      2
          Ind. Code § 35-48-4-11.
      3
       We held oral argument in this case at Ivy Tech Community College in Muncie on May 1, 2019. We thank
      both parties for their stimulating discussion, and we thank Ivy Tech, its faculty, and its students for their
      warm and generous hospitality.

      Court of Appeals of Indiana | Opinion 18A-CR-2298 | July 15, 2019                                 Page 2 of 23
      traffic stop in a nearby Walgreens parking lot. Officer Nickolas Smith assisted

      Officer Parrish with the stop.


[3]   As the officers approached both sides of the stopped vehicle, they smelled the

      strong odor of raw marijuana emanating from the vehicle. Officer Parrish asked

      all the occupants—the driver, the passenger, and Cleveland, who was sitting in

      the backseat on the passenger’s side—for identification. Officer Parrish then

      discovered that there was an outstanding warrant for the driver’s arrest. Officer

      Parrish asked the driver to exit the vehicle. The driver complied.


[4]   Officer Parrish conducted a pat-down search of the driver to check for weapons.

      The driver started to resist, so Officer Smith went around to the driver’s side to

      help Officer Parrish detain, handcuff, and arrest the driver. After returning to

      the passenger’s side, Officer Smith saw Cleveland, who had exited the vehicle

      at some point, walking northbound through the Walgreens parking lot with a

      gold bag. Officer Smith ordered Cleveland to stop and to put the bag down,

      which he did. Cleveland was roughly twenty to thirty yards from the vehicle

      when he was ordered to stop. Officer Smith handcuffed Cleveland and returned

      him to the vehicle. He also conducted a pat-down search of Cleveland, during

      which he did not smell marijuana on Cleveland’s person nor did he find a gun.


[5]   Sometime later, Officer Smith went to retrieve Cleveland’s gold bag from the

      Walgreens parking lot. At some point, Officer Smith detected the smell of




      Court of Appeals of Indiana | Opinion 18A-CR-2298 | July 15, 2019         Page 3 of 23
      marijuana coming from the bag.4 Officer Smith opened the bag and found a

      handgun and two individual baggies containing marijuana. Officer Nathan

      Shell was dispatched to the scene to retrieve the gun, and he noticed that the

      handgun had seventeen rounds of ammunition inside the magazine and one

      round loaded inside the chamber. Officer Shell placed Cleveland in the back of

      the vehicle and read him his Miranda5 rights. Cleveland admitted that the

      handgun found inside the bag was his and that he used it for protection. He also

      testified that he knew about the marijuana but that he had “nothing to do with

      [it][.]” Tr. Vol. II p. 31.


[6]   On November 27, 2017, the State charged Cleveland with one count of Class A

      misdemeanor carrying a handgun without a license and one count of Class A

      misdemeanor possession of marijuana. At Cleveland’s August 27, 2018, bench

      trial, Cleveland objected to the State’s introduction of the handgun and the

      marijuana found inside the gold bag, arguing that the evidence was obtained

      from a search that was unlawful under both the Fourth Amendment to the

      United States Constitution and Article 1, Section 11 of the Indiana

      Constitution. The trial court overruled his objection. Later, at the conclusion of

      trial, Cleveland renewed his objection, arguing that the State lacked probable




      4
        On direct examination, Officer Smith testified that he smelled the marijuana after opening the bag, but on
      cross-examination, Officer Smith testified that he smelled the marijuana as he “got actually close to the bag
      and picked it up.” Tr. Vol. II p. 17, 24.
      5
          Miranda v. Arizona, 384 U.S. 436 (1966).


      Court of Appeals of Indiana | Opinion 18A-CR-2298 | July 15, 2019                                  Page 4 of 23
      cause to arrest him in the first place. Once again, the trial court overruled his

      objection.


[7]   The trial court found Cleveland guilty as charged. After a sentencing hearing,

      the trial court imposed a 365-day aggregate sentence, with 263 days suspended

      to probation and 90 days suspended to home detention. Additionally, without

      conducting an indigency hearing, the trial court ordered Cleveland to pay a $50

      public defender fee; the trial court also ordered that Cleveland’s handgun be

      destroyed. Cleveland now appeals.


                                 Discussion and Decision

                                                    I. Search
[8]   First, Cleveland argues that the trial court erroneously admitted evidence in

      violation of the Fourth Amendment to the United States Constitution and

      Article 1, Section 11 of the Indiana Constitution.6 Specifically, Cleveland

      contends that certain evidence—the handgun and the marijuana—should have




      6
        There is some confusion over whether Cleveland properly preserved one issue for appeal. Cleveland did, in
      fact, object to the introduction of the evidence obtained from the search of his gold bag and the arrest, but the
      State argues that this was not a continuing objection that covered his lone statement to Officer Shell. See Ind.
      Evidence Rule 103(b). The record shows that Cleveland did not object to preserve this issue for appeal, so we
      can only review it for fundamental error. Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010). There is
      fundamental error only when the resulting error denies the defendant fundamental due process. Mathews v.
      State, 849 N.E.2d 578, 587 (Ind. 2006). And because this was one brief statement—made in isolation by
      Cleveland, who had been properly Mirandized—we find that the trial court did not commit fundamental error
      by admitting it. See Fleener v. State, 656 N.E.2d 1140, 1142 (Ind. 1995) (holding that the trial court’s admission
      of a negative statement is not fundamental error when there is sufficient independent evidence of guilt).

      Court of Appeals of Indiana | Opinion 18A-CR-2298 | July 15, 2019                                    Page 5 of 23
       been excluded because the officers’ search of his gold bag was unlawful under

       the federal and state constitutions.


[9]    As a general matter, the Fourth Amendment to the United States Constitution

       protects citizens from unreasonable searches and seizures. Article 1, Section 11

       of the Indiana Constitution contains nearly identical language and says that

       “[t]he right of the people to be secure in their persons, houses, papers, and

       effects, against unreasonable search or seizure, shall not be violated[.]”

       Evidence that is the product of an unlawful search is inadmissible under both

       the Fourth Amendment to the United States Constitution and Article 1, Section

       11 of the Indiana Constitution. Hill v. State, 956 N.E.2d 174, 177 (Ind. Ct. App.

       2011) (holding that evidence that is obtained from an illegal search is “fruit of

       the poisonous tree,” and therefore, inadmissible in a court of law).


[10]   We will not reverse the trial court’s decision to admit evidence unless it is

       clearly against the logic and effect of the facts and circumstances before it. Reed

       v. Bethel, 2 N.E.3d 98, 107 (Ind. Ct. App. 2014). We will review a trial court’s

       conclusions of law de novo, giving no weight to the legal analysis below.

       Sanders v. State, 989 N.E.2d 332, 334 (Ind. 2013).


                         The Fourth Amendment to the United States Constitution


[11]   The Fourth Amendment prohibits warrantless searches unless an exception

       applies. Black v. State, 810 N.E.2d 713, 715 (Ind. 2004). The automobile

       exception is well established, allowing officers to conduct a warrantless search

       of a vehicle where (1) the vehicle was readily mobile or capable of being driven

       Court of Appeals of Indiana | Opinion 18A-CR-2298 | July 15, 2019            Page 6 of 23
       when the police first seized it; and (2) probable cause existed that the vehicle

       contained contraband or evidence of a crime. Cheatham v. State, 819 N.E.2d 71,

       75-76 (Ind. Ct. App. 2004). Probable cause exists “where facts found on a

       reasonable inquiry would induce a reasonably intelligent and prudent person to

       believe the accused has committed [a] crime.” Street v. Shoe Carnival, Inc., 660

       N.E.2d 1054, 1056 (Ind. Ct. App. 1996). “The determination of probable cause

       is a mixed question of law and fact.” Earles v. Perkins, 788 N.E.2d 1260, 1264

       (Ind. Ct. App. 2003). Furthermore, the standard for attaining probable cause is

       the same under both the federal and state constitutions. See, e.g., State v. Gilbert,

       997 N.E.2d 414, 417 (Ind. Ct. App. 2013).


[12]   Here, it is undisputed that the officers had the authority to invoke the

       automobile exception to search the Ford Explorer and its contents therein.7

       However, Cleveland contends that the automobile exception did not extend to

       his person or his gold bag because he had left the vehicle. What is most

       pertinent to our analysis is the fact that Cleveland and his gold bag were inside

       the vehicle at the time that the officers suspected the vehicle of containing

       contraband. By virtue of the bag’s presence inside the vehicle, the officers had

       the constitutional authority to search it from the outset. See Wilkinson v. State, 70

       N.E.3d 392, 404 (Ind. Ct. App. 2017) (holding that under the automobile




       7
         During oral argument, Cleveland argued that the officers could not have had probable cause to believe that
       a crime had occurred inside the vehicle because they only smelled raw as opposed to burnt marijuana.
       Despite Cleveland’s insistence, there is no difference between raw marijuana or burnt marijuana for purposes
       of establishing probable cause. Possession of either is illegal under state law, and the smell of either would
       lead a reasonably intelligent and prudent officer to conclude that there is potential criminal activity afoot.

       Court of Appeals of Indiana | Opinion 18A-CR-2298 | July 15, 2019                                 Page 7 of 23
       exception, once probable cause is established, officers are permitted to search

       any items in the vehicle that might conceal controlled substances); see also

       United States v. Ross, 456 U.S. 798, 825 (1982) (establishing that “if probable

       cause justifies the search of a lawfully stopped vehicle, it justifies the search of

       every part of the vehicle and its contents that may conceal the object of the

       search[]”).


[13]   Here, it does not matter that Cleveland left the vehicle with the bag and walked

       away. The gold bag was inside the vehicle at the time of the initial seizure, and

       during that time, the officers could have invoked the automobile exception to

       search it. The probable cause to stop and search the vehicle and its contents was

       established from the beginning, and said probable cause did not cease the

       moment Cleveland exited the vehicle and walked away. If this were the case,

       passengers—even those as compliant, respectful, and non-violent as

       Cleveland—would have license to abscond with contraband from police

       presence to avoid any possibility of arrest for themselves or for those still inside

       the vehicle. Therefore, the search of Cleveland’s gold bag did not violate the

       Fourth Amendment to the United States Constitution. 8




       8
         Because we find that the officers had the probable cause necessary to search the gold bag, there is no need to
       address whether the officers had probable cause to arrest Cleveland under the belief that he was fleeing the
       scene of a crime or that his gold bag smelled of marijuana while outside the vehicle. Having already
       concluded that the officers could search the gold bag pursuant to the automobile exception to the warrant
       requirement, such an analysis is unnecessary.

       Court of Appeals of Indiana | Opinion 18A-CR-2298 | July 15, 2019                                  Page 8 of 23
                                Article 1, Section 11 of the Indiana Constitution


[14]   Searches by law enforcement require a different review under Article 1, Section

       11 of the Indiana Constitution:


               Conformity of a search to the Indiana Constitution turns on an
               evaluation of the “reasonableness” of the conduit of the law
               enforcement officers, not on the expectation of privacy commonly
               associated with Fourth Amendment analysis. Relevant
               considerations in evaluating reasonableness of a search under all
               the circumstances include the degree to which the search or
               seizure disrupts the suspect’s normal activities, and those facts and
               observations that support the officer’s decision to initiate the
               search or seizure. . . . [T]he reasonableness of a search or seizure
               generally turns on a balance of: 1) the degree of concern,
               suspicion, or knowledge that a violation has occurred, 2) the
               degree of intrusion the method of the search or seizure imposes on
               the citizen’s ordinary activities, and 3) the extent of law
               enforcement needs.


       Stark v. State, 960 N.E.2d 887, 892 (Ind. Ct. App. 2012) (internal citations

       omitted). With this analysis in mind, we find that the search of Cleveland’s gold

       bag did not violate Article 1, Section 11 of the Indiana Constitution, and

       therefore, any evidence obtained as a result of the lawful search is admissible.


[15]   First, regarding knowledge of a violation, there was the initial suspicion that a

       traffic violation had occurred. Then, as the officers approached either side of the

       stopped vehicle, they smelled raw marijuana. This created a strong suspicion

       that there was illegal activity happening inside the vehicle, regardless of

       whether the driver, passenger, or backseat passenger was committing it. Also,

       Officer Parrish ran a license plate check of the vehicle and discovered that the


       Court of Appeals of Indiana | Opinion 18A-CR-2298 | July 15, 2019            Page 9 of 23
       plates were registered to another vehicle. This discrepancy created a strong

       suspicion in the minds of the officers that the vehicle was stolen and that the

       occupants had committed a theft. Furthermore, the driver had an outstanding

       warrant for his arrest, and when the officers attempted to pat down the driver,

       he began resisting until the point of his detention and arrest. All of this evidence

       in the aggregate created a strong suspicion that the law had been violated.


[16]   Second, regarding the intrusion into Cleveland’s ordinary activities, Cleveland

       had already been detained along with the vehicle’s other occupants in the initial

       stop. While he may not have been arrested at this point, Cleveland was asked

       for his identification as part of the traffic stop. Therefore, there was little further

       intrusion into Cleveland’s normal activities since he had already been restricted

       in action. Cleveland had already walked some twenty to thirty yards away from

       the vehicle before he was officially stopped, handcuffed, and searched. Just

       “because the driver may have been independently culpable for the traffic

       offenses, [it] does not entitle the passenger to simply exit the vehicle and walk

       away.” Tawdul v. State, 720 N.E.2d 1211, 1217 (Ind. Ct. App. 1999). Yes,

       Cleveland’s normal activities were interrupted by the stop and search, but there

       was no indication that Cleveland had permission to leave the vehicle, especially

       since the officers were attempting to detain and arrest the driver. Moreover,

       even though we are evaluating this intrusion under a reasonableness standard

       and not under an expectation of privacy standard, our Supreme Court has held

       that “individuals have a ‘reduced expectation of privacy with regard to the

       property they transport in cars’ traveling on public highways where the property


       Court of Appeals of Indiana | Opinion 18A-CR-2298 | July 15, 2019           Page 10 of 23
       is subject to police examination and is ‘exposed to traffic accidents that may

       render all their contents open to public scrutiny.’” Krise v. State, 746 N.E.2d

       957, 971 (Ind. 2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 303 (1999)).

       As such, this search did not unreasonably intrude into Cleveland’s normal

       activities.


[17]   Third, regarding the extent of law enforcement needs, even though there was no

       indication that Cleveland was armed, the officers were dealing with a

       precarious situation. Not only did the driver of the vehicle resist arrest, leading

       both officers to be solely focused on him, but Cleveland also amplified the

       situation by exiting the vehicle with the gold bag in tow. The officers had the

       authority to defuse the situation and confirm that Cleveland did not have any

       contraband on his person. Furthermore, as mentioned above, the officers had

       the probable cause necessary to search the gold bag pursuant to the automobile

       exception, and that authority to search did not diminish once Cleveland walked

       away. Consequently, a search of the bag was necessary for law enforcement to

       ensure that potential evidence would not be removed or destroyed, especially

       considering that the officers suspected the vehicle of containing contraband.


[18]   Therefore, in looking at the totality of the circumstances, this search of

       Cleveland’s gold bag was lawful pursuant to Article 1, Section 11 of the Indiana

       Constitution, and all evidence obtained from that search was admissible.




       Court of Appeals of Indiana | Opinion 18A-CR-2298 | July 15, 2019         Page 11 of 23
                                II. Handgun Destruction
[19]   Next, Cleveland argues that the trial court erred when it ordered the destruction

       of his handgun post-conviction because the trial court lacked statutory authority

       to do so.


[20]   Statutory interpretation is a question of law reserved for the court and is

       reviewed de novo. Montgomery v. State, 878 N.E.2d 262, 266 (Ind. Ct. App.

       2007). We assign words their plain and ordinary meaning unless the statute

       provides other definitions. Id. Our primary rule for statutory construction is to

       ascertain and give effect to the intent of the legislature. Chambliss v. State, 746

       N.E.2d 73, 77 (Ind. 2001).


[21]   Indiana Code section 35-47-3-2(b) authorizes trial courts to order return or

       disposal of a firearm post-conviction, and it says the following:


               (b) Firearms shall be returned to the rightful owner at once
               following final disposition of the cause . . . . If the rightful
               ownership is not known the law enforcement agency holding the
               firearm shall make a reasonable attempt to ascertain the rightful
               ownership and cause the return of the firearm. However, nothing
               in this chapter shall be construed as requiring the return of
               firearms to rightful owners who have been convicted for the misuse of
               firearms. . . .


       (Emphasis added). This Court has affirmed a trial court’s authority to order

       destruction of a firearm for those convicted of misuse of a firearm. See Barany v.

       State, 54 N.E.3d 386, 387-88 (Ind. Ct. App. 2016) (holding that the trial court’s



       Court of Appeals of Indiana | Opinion 18A-CR-2298 | July 15, 2019           Page 12 of 23
       order to destroy a firearm used by defendant for murder was an appropriate

       option because defendant had misused the weapon).


[22]   In Trice v. State, this Court directly answered the question of whether use of a

       firearm included mere possession of a firearm, holding as follows:


               [T]he definitions of the term “misuse” can best be applied here to
               mean that a conviction for the misuse of a firearm must involve
               some use of the firearm that is incorrect, improper, or unsuitable.
               Trice did not use the handgun; rather, he was merely in possession
               of it. Thus, it defies logic and relevant precedent to say that he
               misused the handgun.


       114 N.E.3d 496, 501 (Ind. Ct. App. 2018) (emphases in original), trans. denied.

       Stated another way, Trice held that the definition of use does not encompass

       mere possession.


[23]   In reaching its holding, the Trice Court cited precedent from our Supreme Court

       that reached similar conclusions, albeit in other legal contexts. In Nicoson v.

       State, 938 N.E.2d 660 (Ind. 2010), our Supreme Court analyzed Indiana Code

       section 35-50-2-11, which defines when a firearm is “used” in the commission

       of an offense, as a separate charge, or for purposes of an enhanced sentence. In

       deferring to our General Assembly, the Supreme Court held as follows:


               Mere possession of a firearm or being “armed” with a deadly
               weapon is not enough. As the Court of Appeals pointed out, it is
               reasonable to infer that the General Assembly was recognizing the
               additional escalation of danger associated with the actual use of a
               firearm versus the mere possession of one during the commission
               of an offense.



       Court of Appeals of Indiana | Opinion 18A-CR-2298 | July 15, 2019        Page 13 of 23
       Id. at 665. Thus, our Supreme Court in Nicoson found that the trial court had the

       authority to add a five-year enhancement to the defendant’s sentence because of

       the defendant’s actual use of the weapon—namely, holding a “9 millimeter

       weapon to somebody’s head as they were lying in a prone position.” Id.


[24]   The Trice Court also cited Mickens v. State, 742 N.E.2d 927 (Ind. 2001), in which

       our Supreme Court held that there was a difference between use of a firearm

       and possession of a firearm for purposes of double jeopardy. More specifically,

       our Supreme Court stated that “[c]arrying the gun along the street was one

       crime and using it was another.” Id. at 931. The Mickens Court held that the

       defendant’s convictions for murder and carrying a handgun without a license

       did not violate the prohibition against double jeopardy because these crimes

       required the State to proffer evidence of different criminal acts committed by

       the defendant. Once again, our Supreme Court deferred heavily to the General

       Assembly in determining that there were several instances where the legislature

       required proof of action in statutes containing “use” of a firearm and that the

       legislature had amended these statutes without including possession in its

       definition. Therefore, to possess is not to use.


[25]   Also, the Trice Court cited Daniels v. State, 957 N.E.2d 1025, 1030 (Ind. Ct.

       App. 2011), in which this Court held that “[t]he word ‘use,’ in statutes

       prohibiting the use of a firearm in the commission of an offense, includes

       brandishing, displaying, bartering, striking with, and most obviously, firing or

       attempting to fire, a firearm.” Consequently, the Trice Court reversed the trial

       court’s order to destroy the firearm post-conviction.

       Court of Appeals of Indiana | Opinion 18A-CR-2298 | July 15, 2019          Page 14 of 23
[26]   Given this legal backdrop, we find Cleveland’s argument compelling. This

       Court, along with our Supreme Court, has reasonably concluded that the

       General Assembly did not define “use” to include an action like “possession.”

       In evaluating precedent, deference to the legislature, and a strict construction of

       criminal statutes against the State with ambiguities resolved in favor of the

       defendant, see Chastain v. State, 58 N.E.3d 235, 238 (Ind. Ct. App. 2016), trans.

       denied, we conclude that a conviction involving unlawful possession of a firearm

       alone does not give a trial court statutory authority to order destruction of a

       firearm post-conviction.


[27]   Moreover, like the defendant in Trice, Cleveland was found with a gun, was

       compliant with law enforcement throughout the entire process, and was tried

       and convicted under the same criminal statute. 9 There is no evidence to support

       the contention that Cleveland was using the firearm in an incorrect, improper,

       or unsuitable way. Accordingly, the trial court erred when it ordered

       destruction of Cleveland’s firearm post-conviction.


[28]   However, in terms of relief, the immediate return of Cleveland’s firearm is not

       permissible under current law. Cleveland is still not licensed to carry a firearm,

       and the trial court does not have the authority to return the firearm directly to

       Cleveland. As of now, given our lack of statutory guidance, we order that the




       9
           See I.C. § 35-47-2-1.


       Court of Appeals of Indiana | Opinion 18A-CR-2298 | July 15, 2019        Page 15 of 23
       IMPD must withhold Cleveland’s firearm until a proper solution becomes

       available. This is a conundrum that only our General Assembly can resolve.


                                   III. Indigency Hearing
[29]   Third, Cleveland argues that the trial court erred when it ordered him to pay a

       public defender fee without first conducting an indigency hearing and without

       making a finding on whether Cleveland was indigent. Sentencing decisions,

       including those where a trial court imposes fees and costs, are generally left to

       the trial court’s discretion. Kimbrough v. State, 911 N.E.2d 621, 636 (Ind. Ct.

       App. 2009). We will reverse a trial court’s sentencing decision only if it is

       clearly against the logic and effect of the facts and circumstances before it.

       McElroy v. State, 865 N.E.2d 584, 588 (Ind. 2007). “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).


[30]   Three statutory provisions allow a trial court to impose fees on a defendant to

       offset public defender costs. The first is found in Indiana Code section 35-33-7-

       6(c)(2), which reads as follows:


               (c) If the court finds that the person is able to pay part of the cost
               of representation by the assigned counsel, the court shall order the
               person to pay the following:

                        (1) For a felony action, a fee of one hundred dollars ($100).

                        (2) For a misdemeanor action, a fee of fifty dollars ($50).


       (Emphasis added).
       Court of Appeals of Indiana | Opinion 18A-CR-2298 | July 15, 2019              Page 16 of 23
[31]   The second is found in Indiana Code section 33-40-3-6(a)(1), and it reads as

       follows:


               (a) If at any stage of a prosecution for a felony or a misdemeanor
               the court makes a finding of ability to pay the costs of
               representation under section 7 of this chapter, the court shall
               require payment . . . of the following costs in addition to other
               costs assessed against the person:

                        (1) Reasonable attorney’s fees if an attorney has been
                            appointed for the person by the court.


       The language of this statutory provision is similar to the language in section 35-

       33-7-6(c)(2). In both provisions, the trial court must find that the defendant is

       indigent before it can impose a public defender fee.


[32]   The third is found in Indiana Code section 33-37-2-3(e), and it reads as follows:


               (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. . . .


       This is the only statutory provision requiring the trial court to conduct a hearing

       to determine if the defendant is indigent, which is what Cleveland is requesting.

       In the previous two sections, the trial court simply has to make a finding on

       whether the defendant can pay for part or all of his representation from a public

       defender.


[33]   Even though the trial court did not specify under which statute it ordered

       Cleveland to pay a public defender fee, certain language in the record provides

       Court of Appeals of Indiana | Opinion 18A-CR-2298 | July 15, 2019         Page 17 of 23
       us with clarity. The trial court referred to the fees imposed as “recoupment

       fees[,]” tr. vol. II p. 56, and later as “Supplemental Public Defender Fee[s][.]”

       Appellant’s App. Vol. II p. 11. This is the very language used by our Court to

       describe fees ordinarily imposed under section 35-33-7-6(c). See Langdon v. State,

       71 N.E.3d 1162, 1164 (Ind. Ct. App. 2017). Furthermore, the trial court

       imposed a $50 fee, the same amount specified for misdemeanor convictions in

       section 35-33-7-6(c)(2). Accordingly, it is more than likely the trial court

       imposed the $50 public defender fee pursuant to section 35-33-7-6(c). We find

       no reason to remand for clarification when the dollar amount and language

       from the trial court’s order matches this specific statutory provision. Therefore,

       because this statutory provision does not require the trial court to conduct an

       indigency hearing, the trial court in Cleveland’s case did not err by not

       conducting one.


[34]   Cleveland also argues that the trial court failed to make a finding on whether he

       was indigent, which all three statutes require. Cleveland’s argument is

       unavailing. While the trial court did not set aside time during sentencing solely

       to evaluate and rule on Cleveland’s indigency status, it still took the necessary

       steps that would ordinarily aid a trial court in making such a finding. The trial

       court asked Cleveland numerous questions about his employment, working

       hours, financial status, and custody arrangements. See Tr. Vol. II p. 54-55.

       Implicit in the response to Cleveland’s answers is the trial court’s finding that

       Cleveland could offset part of the cost of his public defender’s representation.

       The trial court did its due diligence by inquiring into Cleveland’s financial


       Court of Appeals of Indiana | Opinion 18A-CR-2298 | July 15, 2019         Page 18 of 23
       abilities and making an implicit finding about Cleveland’s indigency status.

       Therefore, it did not err.10


[35]   The judgment of the trial court is affirmed in part and reversed and remanded in

       part with instructions.


       Robb, J., concurs.
       Bradford, J., concurs in part and dissents in part with a separate opinion.




       10
         Despite this outcome, we note that it is still the better practice for trial courts to include an explicit
       indigency finding in their record along with reference to the proper statutory provision.

       Court of Appeals of Indiana | Opinion 18A-CR-2298 | July 15, 2019                                      Page 19 of 23
                                                    IN THE
           COURT OF APPEALS OF INDIANA

       Darnell Cleveland,                                          Court of Appeals Case No.
                                                                   18A-CR-2298
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Bradford, Judge, concurs in part and dissents in part with opinion.


[36]   While I concur with the majority’s disposition in most respects, I must disagree

       with its conclusion that a conviction for carrying a handgun without a license

       does not entitle a law enforcement agency to seize and destroy the handgun in

       question. I find the reasoning of Trice v. State, 114 N.E.3d 496 (Ind. Ct. App.

       2018), trans. denied, on which Cleveland relies, to be unpersuasive and so would

       affirm the judgment of the trial court in full. Consequently, I respectfully

       dissent in part.




       Court of Appeals of Indiana | Opinion 18A-CR-2298 | July 15, 2019                       Page 20 of 23
[37]   Indiana Code section 35-47-3-2(c) authorizes the seizure and disposal of

       firearms by the authorities “when the rightful owner has been convicted of an

       offense related to the misuse of a firearm[,]” and I conclude that carrying a

       handgun without a license easily qualifies as “misuse.” The verb “to use” may

       be defined as “to put into action or service [or] have recourse to or enjoyment of[,]”

       while the noun “misuse” may be defined as “wrong or improper use[.]”

       WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1447, 2523 (Phillip

       Babcock Gove et al. eds., G.&C. Merriam Company 1964) (emphasis added).

       A person carrying a handgun for protection (as was Cleveland) is ensuring that

       he will have recourse to it should the need arise and may enjoy the sense of

       security its possession provides, even if it is not further employed. In other

       words, he is “using” the handgun for self-defense by carrying it with him. This

       use becomes misuse, however, when the person is not legally entitled to carry

       that handgun. I conclude that the authorities were well within their rights to

       seize and destroy Cleveland’s handgun.


[38]   In reaching the opposite conclusion on indistinguishable facts, the Trice court

       relied on the Indiana Supreme Court’s opinions in Nicoson v. State, 938 N.E.2d

       660 (Ind. 2010), and Mickens v. State, 742 N.E.2d 927 (Ind. 2001). In my view,

       neither of those cases has any applicability here. In Nicoson, the Indiana

       Supreme Court addressed the scope of Indiana Code section 35-50-2-11, which

       provides, in part, that sentences for certain convictions can be enhanced upon a

       showing that “the person knowingly or intentionally used a firearm in the

       commission of the offense.” (Emphasis added). Section 32-50-2-11 seems to


       Court of Appeals of Indiana | Opinion 18A-CR-2298 | July 15, 2019           Page 21 of 23
       clearly require some active employment of the firearm beyond mere possession,

       such as firing, pointing, brandishing, etc., to commit the underlying offense. In

       contrast, no such active use is required by section 35-47-3-2. So, while I have

       no quarrel with the Nicoson Court’s conclusion that “[m]ere possession of a

       firearm or being ‘armed’ with a deadly weapon is not enough” in the context of

       section 35-50-2-11, Nicoson, 938 N.E.2d at 665, the case simply does not stand

       for the proposition that mere possession does not qualify as misuse pursuant to

       Indiana Code section 35-47-3-2. In my view, Nicoson’s interpretation of an

       entirely different statute has no bearing on this case.


[39]   The holding of Mickens is similarly inapplicable to Indiana Code section 35-47-

       3-2. Mickens was convicted of murder (for shooting his victim twice) and

       carrying a handgun without a license, and one of his claims on appeal was that

       the two convictions violated the same-actual-evidence test.11 The Mickens court

       rejected the claim, stating that “[c]arrying the gun along the street was one

       crime and using it was another.” Mickens, 742 N.E.2d 931. While the Trice

       court concluded that this passage serves to draw a hard-and-fast distinction

       between possession and use, I would attach no such significance to it. The

       question of whether carrying a handgun constitutes “use” was not at issue in

       Mickens. Moreover, literal application of the above passage would restrict “use”




       11
         “[T]wo or more offenses are the ‘same offense’ in violation of Article I, Section 14 of the Indiana
       Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence
       used to convict, the essential elements of one challenged offense also establish the essential elements of
       another challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999).

       Court of Appeals of Indiana | Opinion 18A-CR-2298 | July 15, 2019                                   Page 22 of 23
       of a firearm to actually firing it, an interpretation that would exclude such

       obvious uses as pistol-whipping or pointing. Mickens was never meant as a

       statement on the question of what does—or does not—constitute “use” of a

       firearm. I would not apply it here.


[40]   In summary, I have little trouble concluding that possession of a handgun

       without a license qualifies as misuse pursuant to Indiana Code section 35-47-3-

       2. Consequently, I would affirm the judgement of the trial court in all respects.




       Court of Appeals of Indiana | Opinion 18A-CR-2298 | July 15, 2019        Page 23 of 23
