MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Feb 25 2019, 9:01 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




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Valerie K. Boots                                         Curtis T. Hill, Jr.
Daniel Hageman                                           Attorney General of Indiana
Marion County Public Defender Agency
                                                         Evan Matthew Comer
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Teresa Treat,                                            February 25, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1406
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Angela Dow Davis, Judge
                                                         Trial Court Cause No.
                                                         49G16-1712-CM-48898



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1406 | February 25, 2019                Page 1 of 8
[1]   Following a bench trial, Teresa Treat (“Treat”) was convicted of domestic

      battery1 as a Class A misdemeanor and was sentenced to 180 days of

      incarceration, which was suspended to probation. Treat appeals her sentence

      and raises the following issue: whether the trial court abused its discretion

      when it ordered her to pay probation user fees.


[2]   We affirm.


                                      Facts and Procedural History
[3]   On the night of December 21, 2017, Treat and her husband, J.T., went out for

      dinner with Treat’s daughter and her daughter’s boyfriend at a restaurant in

      Southport, Indiana, where Treat consumed a couple of alcoholic beverages.

      Afterwards, Treat and J.T. left the restaurant and began driving to J.T.’s

      mother’s house in New Palestine, Indiana, because J.T. wanted to give some

      money to his son, who was having a party to celebrate his birthday. On the

      way to the house, Treat became very upset about her marriage, and she

      punched J.T. on the right side of his face with a closed fist. Tr. Vol. II at 14.

      This punch resulted in a bruise that lingered for approximately three or four

      weeks. Id. at 15.


[4]   When Treat and J.T. arrived at his mother’s home, the party was over, and

      everybody had already left. J.T. drove Treat home, and she went straight to




      1
          See Ind. Code § 35-42-2-1.3(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1406 | February 25, 2019   Page 2 of 8
      bed. J.T. then left the house and went to a nearby gas station where he called

      the police and reported the battery. Id. at 17. When officers arrived at the

      house, they took photographs of J.T.’s injuries. Treat was then arrested and

      charged with one count of Class A misdemeanor domestic battery and one

      count of Class A misdemeanor battery resulting in bodily injury. Appellant’s

      App. Vol. II at 17. After a bench trial, Treat was convicted of Class A

      misdemeanor domestic battery and acquitted of the battery resulting in bodily

      injury charge. Tr. Vol. II at 78.


[5]   A sentencing hearing was held on May 31, 2018, and the trial court sentenced

      Treat to 180 days in prison with 176 days suspended to non-reporting

      probation. Id. at 81; Appellant’s App. Vol. II at 12. At the conclusion of the

      sentencing hearing, the trial court told Treat, “I think there’s a nominal fee for

      the non-reporting probation but I’m ordering no fines and no court costs.” Tr.

      Vol. II at 83. The trial court’s sentencing order did not specify the probation

      user fees; however, it did list a $50.00 domestic violence prevention fee and a

      $50.00 supplemental public defender fee. Appellant’s App. Vol. II at 12.


[6]   The next day, the Marion County Probation Department (“the Probation

      Department”) filed a memorandum with the trial court, which stated:


              The above[-]named defendant was convicted of … MA:
              Domestic Battery and sentenced to 176 days Non-Reporting
              Probation. Per the Indiana Trial Court Fee Manual, the
              following fees are eligible to be assessed that were not addressed
              by the Court:



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1406 | February 25, 2019   Page 3 of 8
              Probation Administrative Fee in the amount of $50.00


              Probation User Fee in the amount of $170.00


              The Probation Department is seeking clarification as to if the
              Court wishes to have these fees assessed.


      Id. at 87. In response to this memorandum, the trial court issued an “Order on

      Memorandum of Probation” that ordered the Probation Department to

      “[p]lease access [sic] fees as defendant was made aware there were fees involved

      at sentencing.” Id. at 88. On June 8, 2018, the trial court approved a request

      from the Probation Department to apply Treat’s bond to her outstanding

      balance of $320.00. Id. at 89-90. Treat now appeals.


                                     Discussion and Decision
[7]   Treat challenges the imposition of probation fees. Specifically, she contends

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

      Department, rather than the trial court, to assess those fees. “‘Sentencing

      decisions include decisions to impose fees and costs,’ and a trial court’s

      sentencing decision is reviewed for abuse of discretion.” De La Cruz v. State, 80

      N.E.3d 210, 213 (Ind. Ct. App. 2017) (quoting Coleman v. State, 61 N.E.3d 390,

      392 (Ind. Ct. App. 2016)). An abuse of discretion occurs 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. The trial court must impose fees within statutory parameters.

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

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1406 | February 25, 2019   Page 4 of 8
[8]   The statute governing probation, Indiana Code section 35-38-2-1, provides that

      whenever a trial court places a person on probation, the court is required to,

      among other things, “specify in the record the conditions of probation[.]” Ind.

      Code § 35-38-2-1(a).


              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;


              ....


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


              to either the probation department or the clerk.


      Ind. Code § 35-38-2-1(e).


[9]   “[I]t is the trial court, not the probation department, that has the discretion to

      impose probation fees.” Burnett v. State, 74 N.E.3d 1221, 1227 (Ind. Ct. App.

      2017). A probation department may, however, petition a trial court to

      “impose” or “increase” a person’s probation user’s fee “if the financial ability of

      the person to pay a probation user’s fee changes while the person is on

      probation.” Ind. Code § 35-38-2-1.7(b).



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1406 | February 25, 2019   Page 5 of 8
[10]   Treat argues that the trial court impermissibly delegated its authority to impose

       probation fees to the Probation Department when it adopted the fees included

       in the probation department’s June 1, 2018 memorandum. In support of her

       argument, Treat cites to several probation fee cases, where the trial court’s

       sentencing order and probation order did not impose probation fees, but the

       probation department later imposed probation fees after sentencing. See, e.g., De

       La Cruz, 80 N.E.3d at 212-14 (vacating probation fees because the trial court

       imposed a “sliding scale” probation fee calculation that essentially gave the

       probation department the unilateral authority to determine whether the

       defendant would be required to pay probation fees and finding that trial court’s

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

       probation fees, shows the trial court’s intent not to impose such fees”); Burnett,

       74 N.E.3d at 1227 (vacating probation fees imposed by the probation

       department after sentencing and remanding for further proceedings, where the

       trial court made vague references to “various probation fees that are required”

       and sections of the sentencing order that should have contained fee amounts

       were blacked out); Coleman, 61 N.E.3d at 393-94 (vacating the probation fees

       imposed by the probation department where the sentencing order did not list

       any such fees and the probation order contained “ordered amount” sections

       that were either blacked out or blank).


[11]   We find the present case to be distinguishable from those previous cases. Here,

       unlike the above cited cases, the probation department did not independently

       impose probation fees on Treat. At her sentencing hearing, the trial court


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1406 | February 25, 2019   Page 6 of 8
       explicitly stated that Treat would be required to pay “a nominal fee for the non-

       reporting probation.” Tr. Vol. II at 83. However, although the trial court’s

       sentencing order listed a $50.00 domestic violence prevention fee and a $50.00

       supplemental public defender fee as monetary obligations, it did not contain

       any reference to any additional fees that Treat would be required to pay.

       Appellant’s App. Vol. II at 12. The day after the sentencing hearing, the

       Probation Department filed a memorandum with the trial court, requesting

       clarification as to whether the trial court wanted to have a $50.00 administrative

       fee and a $170.00 probation user fee assessed. Id. at 87. The trial court

       responded by issuing an order for the Probation Department to assess probation

       user fees, which authorized the user fees listed in the Probation Department’s

       memorandum. Id. at 88. Therefore, while the trial court relied upon the

       calculations made by the Probation Department, the trial judge, and not a

       probation officer, ultimately made the determination that Treat should pay

       probation fees and entered the order requiring her to pay the fees. Id. We

       conclude that the trial court did not delegate its authority to impose probation

       fees and, instead, merely clarified the sentencing order that omitted fees that the

       trial judge had intended to impose originally. Tr. Vol. II at 83.


[12]   Treat, however, maintains that the only way the trial court could alter its

       sentencing order was by following the procedures outlined in Indiana Code

       Section 35-38-2-1.7(b), which provides that the probation department may

       petition a trial court to impose or increase a probation user’s fees upon a

       showing that the financial ability of the probationer to pay the fees has changed


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1406 | February 25, 2019   Page 7 of 8
       while the person is on probation. Although section 35-38-1-2.7(b) sets out a

       procedure of how a probation user’s fees can be modified while they are on

       probation, that is not what occurred in the present case. Here, the day after the

       trial court sentenced Treat to non-reporting probation and informed her that

       there would be a nominal fee for such, the Probation Department sent the trial

       court a memorandum requesting clarification as to whether the trial court

       wished fees to be assessed, not modification of the existing fees based on Treat’s

       ability to pay. We, therefore, conclude that the trial court did not delegate its

       authority to the Probation Department and did not abuse its discretion when it

       ordered Treat to pay $220.00 in probation fees.


[13]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1406 | February 25, 2019   Page 8 of 8
