                                                                           FILED
                                                                      Nov 21 2017, 10:28 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Rory Gallagher                                            Curtis T. Hill, Jr.
Marion County Public Defender                             Attorney General of Indiana
Appellate Division                                        Angela Sanchez
Indianapolis, Indiana                                     Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Adam Whitaker,                                            November 21, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1706-CR-1162
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Christina R.
Appellee-Plaintiff.                                       Klineman, Judge
                                                          Trial Court Cause No.
                                                          49G17-1610-CM-42782



Brown, Judge.




Court of Appeals of Indiana | Opinion 49A02-1706-CR-1162 | November 21, 2017                   Page 1 of 13
[1]   Whitaker appeals the imposition of fees by the probation department. He raises

      one issue which we revise and restate as whether the trial court erred in

      releasing his bond in the amount of $740. We reverse and remand.


                                       Facts and Procedural History

[2]   On October 31, 2016, the State charged Whitaker under cause number 49G17-

      1610-CM-42782 (“Cause No. 782”) with domestic battery and battery resulting

      in bodily injury as class A misdemeanors. The court held a bench trial and

      found Whitaker guilty of domestic battery.


[3]   On May 2, 2017, the court held a sentencing hearing for the conviction under

      Cause No. 782 as well as a hearing on a plea to invasion of privacy as a class A

      misdemeanor under cause number 16046715 (“Cause No. 715”). The court

      found Whitaker guilty of invasion of privacy under Cause No. 715 and stated:

      “I’ll find you indigent for fines and costs and close out this matter.” Transcript

      Volume II at 65. The court then turned to sentencing in Cause No. 782.

      Whitaker’s mother testified that Whitaker worked for a sheet metal company,

      was doing a job in Columbus, Ohio, and he was working in Ohio through the

      week and coming home on weekends. Whitaker stated that he was letting his

      ex-wife live in his condo. Upon questioning by the court, Whitaker indicated

      that he had housing in Columbus, Ohio, that he lived with friends and family in

      Indiana, and that he pays $900 a month for his ex-wife to live in his condo.

      The court sentenced him to 365 days with 359 days suspended, placed him on

      probation for 359 days, and ordered him to complete a substance abuse

      evaluation and treatment. It also stated that if he successfully completed
      Court of Appeals of Indiana | Opinion 49A02-1706-CR-1162 | November 21, 2017   Page 2 of 13
      treatment, then probation would become non-reporting. The court did not

      mention probation fees at the sentencing hearing.


[4]   The same day, the court entered a sentencing order. Under the heading

      “CONFINEMENT COMMENTS,” the order states in part: “Defendant is

      placed on probation for 359 days. Substance Evaluation and Treatment if

      deemed necessary. Defendant is permitted to travel for work. No Drug

      Hotline. Probation shall become non reporting upon completion of Substance

      Evaluation and Treatment. Probation and Substance Abuse fees are sliding

      scale.” Appellant’s Appendix Volume II at 15. The order also states: “The

      Court is assessing Court Costs and Fees in the amount of $0.00 and a Monetary

      Award (if applicable) in the amount of $. The authority for this Order and the

      breakdown of the costs and fees are as follows and are found in Indiana Code,

      Sections 33-37-4-1, -4 and 33-37-5-19.” Id. at 16. Under the preprinted

      headings “MONETARY OBLIGATIONS” and “Court Costs and Fees,” the

      value of “$0.00” and total value of “$0.00” are listed. Id.


[5]   An order of probation was also filed that same day, providing:


              Special Conditions


              In addition to the monetary conditions, you must also pay the
              costs of any of the following Court-ordered programs as directed.


              Substance Abuse Evaluation & Treatment


                                                    *****

      Court of Appeals of Indiana | Opinion 49A02-1706-CR-1162 | November 21, 2017   Page 3 of 13
              Sliding Scale for Probation Fees / DVC Classes / SAET


      Id. at 48. The order of probation also included the following:




      Id.


[6]   A Bond Release Memo filed on June 2, 2017, from a probation officer

      addressed to the trial court, states in part:


              A bond was posted with the Marion County Clerk’s Office on the
              behalf of the above named defendant and cause. The defendant
              currently owes monetary obligations under this Cause in the
              amount of $740.00.


              The probation Department respectfully requests that the bond be
              transferred to the Marion Superior Court Probation Department
      Court of Appeals of Indiana | Opinion 49A02-1706-CR-1162 | November 21, 2017   Page 4 of 13
              to apply towards the outstanding balance of fees, costs and fines
              under this Cause.


      Id. at 55. An order dated June 5, 2017, approved the request and states in part

      “Bond to be given to MCCC in the amount of $740.” Id. at 56.


                                                   Discussion

[7]   The issue is whether the trial court erred in releasing Whitaker’s bond in the

      amount of $740. Whitaker argues that it was error for the probation

      department to assess fees in the amount of $740 when the trial court did not

      impose those fees as a condition of probation. He asserts that the facts of this

      case are similar to those in De La Cruz v. State, 80 N.E.3d 210 (Ind. Ct. App.

      2017), Burnett v. State, 74 N.E.3d 1221 (Ind. Ct. App. 2017), and Coleman v.

      State, 61 N.E.3d 390 (Ind. Ct. App. 2016). His request is that we vacate the

      $740 in fees imposed by probation and order reimbursement of any amount of

      fees already paid.


[8]   The State argues that the trial court imposed probation fees and that Marion

      County LR49-CR00-115 creates an allowable presumption of the imposition of

      probation fees when an individual is convicted of a crime. It concedes that this

      case is undeniably similar to Burnett, De La Cruz, and Coleman, but asserts that

      the De La Cruz court erred when it assumed that the presence of blackened

      boxes on the probation order, the same order at issue in this case, reflected an

      act by the trial court to “specifically modify” the presumption and impose no

      probation fees. Appellee’s Brief at 10. It contends that the record provides no


      Court of Appeals of Indiana | Opinion 49A02-1706-CR-1162 | November 21, 2017   Page 5 of 13
       evidence that the trial court modified the probation form and that the numerous

       cases from Marion County using a form containing blackened boxes suggests

       that the blackened boxes may, in fact, be the standard, unaltered form and not

       the result of modification by the trial court. It also states that the notation on

       the sentencing order and on the order of probation that probation fees would be

       on a sliding scale indicate that the trial court clearly intended to impose

       probation fees at least to some extent. The State argues that “[i]f the trial court

       did not want to or intend to impose probation fees upon Whitaker, it seems

       logical that it would not have ordered the release of his cash bond to the

       probation department to pay such fees.” Id. at 11-12.


[9]    Sentencing decisions include decisions to impose fees and costs. Johnson v.

       State, 27 N.E.3d 793, 794 (Ind. Ct. App. 2015). A trial court’s sentencing

       decisions are reviewed under an abuse of discretion standard. McElroy v. State,

       865 N.E.2d 584, 588 (Ind. 2007). “An abuse of discretion has occurred when

       the sentencing 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.’” Id. (quoting K.S. v. State, 849 N.E.2d 538,

       544 (Ind. 2006)). “If the fees imposed by the trial court fall within the

       parameters provided by statute, we will not find an abuse of discretion.” Berry

       v. State, 950 N.E.2d 798, 799 (Ind. Ct. App. 2011).


[10]   When a defendant is convicted of a misdemeanor, the trial court has discretion

       in imposing probation fees. Ind. Code § 35-38-2-1(e) provides:



       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1162 | November 21, 2017   Page 6 of 13
               In addition to any other conditions of probation, the court may
               order each person convicted of a misdemeanor to pay:

                        (1) not more than a fifty dollar ($50) initial probation
                        user’s fee;

                        (2) a monthly probation user’s fee of not less than ten
                        dollars ($10) nor more than twenty dollars ($20) for each
                        month that the person remains on probation;

                        (3) the costs of the laboratory test or series of tests to detect
                        and confirm the presence of the human immunodeficiency
                        virus (HIV) antigen or antibodies to the human
                        immunodeficiency virus (HIV) if such tests are required by
                        the court under section 2.3 of this chapter; and

                        (4) an administrative fee of fifty dollars ($50);

               to either the probation department or the clerk.

[11]   Ind. Code § 35-38-2-1.7(b) provides:


               A probation department may petition a court to:

                        (1) impose a probation user’s fee on a person; or

                        (2) increase a person’s probation user’s fee;

               under section 1 or 1.5 of this chapter if the financial ability of the
               person to pay a probation user’s fee changes while the person is
               on probation.

       Further, the trial court must conduct an indigency hearing when it imposes

       fines or costs as part of a defendant’s sentence. Johnson, 27 N.E.3d at 794-795;

       see also Ind. Code § 33-37-2-3(a). However, no specific requirement indicates

       when the hearing must be held as long as the hearing is held before the sentence

       is completed. Johnson, 27 N.E.3d at 794-795.

       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1162 | November 21, 2017     Page 7 of 13
[12]   Marion County LR49-CR00-115 provides in part:


                  In addition to costs as set by I.C[.] 33-37-4-1[1] whenever an
                  individual is placed on probation, or without placing a person on
                  probation the following fees and costs shall be imposed under the
                  Probation Court or Probation Order unless the sentencing Judge
                  specifically modifies the Order. The fees and costs collected
                  under the Court or Probation Order shall be applied in this
                  following descending order of priority:


                           Administrative fee

                           Probation User fee

                           Alcohol and Drug Service fee (33-37-5-8)

                           Court Costs (I.C 33-37-4-1)

                           Restitution (35-50-5-3)

                           Public Defender Reimbursement * (35-33-7-6)

                           Safe School fee (I.C. 33-37-5-18)

                           Child Abuse Prevention fee (I.C. 33-37-5-12)

                           Drug Interdiction fee (I.C. 33-37-5-9)

                           Alcohol Countermeasures fee (I.C. 33-37-5-10)

                           Domestic Violence fee (33-37-5-13)

                           (*Fee imposed only after judicial determination of ability
                           to pay)




       1
           Ind. Code § 33-37-4-1 is titled “Criminal costs fee; document fee; program fees; transfer to user fee fund.”


       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1162 | November 21, 2017                          Page 8 of 13
               In the event that these specific fees, or any other court ordered
               fees, are not paid, the Court may enter judgment against the
               individual and may seek appropriate steps to collect the judgment
               owed.


[13]   In De La Cruz v. State, we addressed a similar situation. In that case, the State

       charged Jose Arcia De La Cruz with operating a vehicle while intoxicated

       endangering a person and operating a vehicle with an ACE of .15 or more as

       class A misdemeanors. 80 N.E.3d 210, 211 (Ind. Ct. App. 2017). The trial

       court appointed counsel for De La Cruz based on his indigency, with no

       requirement for reimbursement. Id. at 211-212. It found De La Cruz guilty of

       operating a vehicle while intoxicated as a class C misdemeanor and sentenced

       him to sixty days in jail with fifty-six days suspended and to an additional 180

       days of “non-reporting” probation. Id. at 212. After questioning De La Cruz

       about his finances, the court stated, “All right, then I will find you indigent. I

       won’t impose any court cost[s], no fines[,] no fees. I will also order probation[,]

       if there are any fees associated with non-reporting[,] to assess your ability to

       pay, also known as sliding scale for all of it.” Id.


[14]   In the sentencing conditions section of the sentencing order, the probation

       “amount/comment” subsection stated in relevant part: “SLIDING SCALE

       FOR PROBATION FEES. NONREPORTING PROBATION AFTER

       INITIAL SIGN UP.” Id. The order of probation, signed on the same date as

       the sentencing order, listed fourteen “Standard Conditions,” including “pay all

       Court-ordered fines, costs, fees[,] and restitution as directed.” Id. Under the

       “Special Conditions” section, the probation subsection states in relevant part:

       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1162 | November 21, 2017   Page 9 of 13
       “SLIDING SCALE FOR PROBATION FEES. NONREPORTING

       PROBATION AFTER INITIAL SIGN UP.” Id.


[15]   The “Monetary Conditions” section of the probation order included a 4-column

       chart similar to the chart in the present case. Id. Most of the rows in the

       column titled “Ordered Amount” were blacked out, the “Administrative Fee”

       and “Probation User Fee” rows were two of the rows that were blacked out,

       and the rows that were not blacked out were left blank. Id. The last page of the

       chronological case summary showed total charges of $220 and total payments

       of $220. Id. The “Case Transactions Summary for Arcia De La Cruz, Jose” set

       out probation administrative and user fees totaling $220 and payments of such

       fees totaling $220. Id. at 212-213.


[16]   On appeal, De La Cruz challenged the imposition of probation fees and argued

       that the trial court abused its discretion when it allowed the probation

       department, rather than the court, to assess those fees. Id. at 213. In our

       decision, we noted that there was no court judgment for probation fees, only a

       probation department assessment of fees, and that De La Cruz did “not appeal

       a trial court judgment of fees; rather, he appeal[ed] the trial court order allowing

       the probation department to assess such fees.” Id. at 213 n.2. We observed that

       Ind. Code § 35-38-2-1(b) provided that, if a person is convicted of a

       misdemeanor, “the court may order the person to pay the user’s fee prescribed

       under subsection (e)” following an indigency hearing. Id. at 214 (quoting

       Coleman v. State, 61 N.E.3d 390, 393 (Ind. Ct. App. 2016) (emphasis added)).

       We observed that Ind. Code § 35-38-2-1(e) states that “the court may order” the

       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1162 | November 21, 2017   Page 10 of 13
       defendant to pay not more than certain specified maximum amounts for

       specified fees, including user and administrative fees, “to either the probation

       department or the clerk,” and that subsection (f) states that “the probation

       department . . . shall collect” those fees. Id. We also observed that Ind. Code §

       35-38-2-1.7(b) states that “[a] probation department may petition a court” to

       “impose” or “increase” a person’s probation fees. Id. We noted that we had

       recently held that those statutes give “the trial court, not the probation department, .

       . . the discretion to impose probation fees.” Id. (quoting Burnett v. State, 74

       N.E.3d 1221, 1227 (Ind. Ct. App. 2017) (emphasis added)). We stated that,

       “[a]lthough De La Cruz’ sentencing and probation orders referred to a ‘sliding

       scale for probation fees’ and the trial court ‘order[ed] probation[,] if there are

       any fees associated with non-reporting[,] to assess [De La Cruz’s] ability to

       pay,’ the trial court did not impose probation fees.” Id. (citation omitted). We

       held that “as in Burnett and Coleman, the probation order included a ‘monetary

       obligations’ section with an ‘ordered amount’ column in which all the rows for

       specific fees were either blacked out or blank,” and that “[s]uch a probation

       order, along with the absence of a clear statement imposing probation fees,

       shows the trial court’s intent not to impose such fees.” Id. (citing Burnett, 74

       N.E.3d at 1227; Coleman, 61 N.E.3d at 394).


[17]   We also addressed the State’s argument that Marion County courts

       presumptively impose probation fees pursuant to Marion County LR49-CR00-

       115. Id. at 214-215. We concluded that the local rule did not operate as “as an

       order for probation fees in this case because the trial court did ‘specifically

       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1162 | November 21, 2017   Page 11 of 13
       modify’ the presumption of probation fees when it blacked out or left blank

       every row for specific fees in the ‘amount ordered’ column of the ‘monetary

       obligations’ section of the probation order.” Id. at 215. We concluded that the

       trial court did not order probation fees and it abused its discretion when it

       authorized the probation department to do so. Id. We reversed the order that

       the probation department assess probation fees and remanded with instructions

       to vacate the probation fees and order reimbursement of those fees from the

       probation department.2 Id.


                                                      Conclusion

[18]   In accordance with Coleman, Burnett, and De La Cruz, we conclude that the trial

       court did not order probation fees and that it abused its discretion when it

       authorized the probation department to do so. Accordingly, we reverse the

       order that the bond be given to MCCC in the amount of $740, and we remand

       with instructions to vacate the probation fees and order reimbursement of those

       fees from the probation department.3 See De La Cruz, 80 N.E.3d at 215.




       2
         We note that following remand in Burnett, the trial court granted the defendant’s motion for court-ordered
       refund of probation fees on July 25, 2017, and ordered the Marion County Probation Department to issue a
       refund to Burnett in the amount of $250. See July 25, 2017 Order in Cause No. 49G12-1508-CM-29371.
       Following remand in Coleman, the trial court entered an order on November 18, 2016, it found Coleman to
       be “indigent to the total monetary obligation of $640.00 which was imposed on October 26, 2015” and
       ordered that “the Defendant’s total monetary obligation shall be $0.00 regarding the above entitled matter.”
       November 18, 2016 Order in Cause No. 49G10-1506-CM-20752.
       3
         At the May 2, 2017 hearing, the court stated with respect to Cause No. 715, “I’ll find you indigent for fines
       and costs and close out this matter.” Transcript Volume II at 65. Accordingly, we need not remand for an
       indigency hearing. See De La Cruz, 80 N.E.3d at 215 n.7 (holding that it was not necessary to remand for an
       indigency hearing because the trial court determined that the defendant was indigent). As noted, Ind. Code §
       35-38-2-1.7(b) provides that a “probation department may petition a court to . . . impose a probation user’s

       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1162 | November 21, 2017                     Page 12 of 13
[19]   For the foregoing reasons, we reverse the court’s order that bond be given to

       MCCC in the amount of $740.


[20]   Reversed and remanded.


       Najam, J., and Kirsch, J, concur.




       fee on a person . . . if the financial ability of the person to pay a probation user’s fee changes while the person
       is on probation.” The trial court could then hold a hearing immediately or wait until he completes his
       sentence to make the indigency determination. See Johnson, 27 N.E.3d at 795.

       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1162 | November 21, 2017                         Page 13 of 13
