MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                   Mar 17 2020, 9:31 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




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher Kunz                                         Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         George P. Sherman
                                                         Deputy Public Defender
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Sauntio Antonio Carter,                                  March 17, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1871
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Anne Flannelly,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G04-1711-F5-45593



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1871 | March 17, 2020                      Page 1 of 8
                                          Statement of the Case

[1]   Following Sauntio Carter’s (“Carter”) initial hearing, the trial court ordered

      him to pay a $100 supplemental public defender fund fee. Thereafter, a jury

      found Carter guilty of Level 5 felony stalking and two counts of Class A

      misdemeanor invasion of privacy.1 The trial court then merged the invasion of

      privacy convictions into the stalking conviction. Following the sentencing

      hearing, the trial court ordered Carter to pay a second $100 supplemental public

      defender fund fee. On appeal, Carter argues that: (1) the trial court’s merger of

      his convictions violated Indiana’s constitutional prohibition against double

      jeopardy; and (2) the trial court abused its discretion when it imposed an

      additional $100 public defender supplemental fund fee. We agree and reverse

      and remand to the trial court with instructions to issue a new sentencing order

      and abstract of judgment consistent with this opinion.


[2]   We reverse and remand with instructions.


                                                         Issues

               1. Whether the trial court’s merger of Carter’s convictions
               violated Indiana’s constitutional prohibition against double
               jeopardy.




      1
        Upon its own motion, the trial court found that there was “a total absence of evidence” as to the element of
      “actual notice” of a protective order for purposes of Level 5 felony stalking. (Tr. Vol. 3 at 29). As a result,
      the trial court entered judgment of conviction on the lesser included offense of Level 6 felony stalking, which
      did not require notice of a protective order. Additionally, each of the Class A misdemeanors were enhanced
      to Level 6 felonies in a separate filing because Carter had a prior unrelated conviction for invasion of privacy.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1871 | March 17, 2020                       Page 2 of 8
              2. Whether the trial court abused its discretion when it imposed a
              second $100 public defender supplemental fund fee.

                                                       Facts

[3]   In November 2017, the State charged Carter with one count of Level 5 felony

      stalking and six counts of Class A misdemeanor invasion of privacy. At

      Carter’s initial hearing, he requested a public defender, and the trial court found

      that he was “partially indigent” and appointed him a public defender. (App.

      65). In an order following the initial hearing, the trial court stated that Carter

      possessed the “ability to pay a preliminary fee to the Public Defender

      Supplemental Fund[]” of $100. (App. 65).


[4]   At the conclusion of the first phase of Carter’s jury trial in June 2019, the jury

      found him guilty of Level 5 felony stalking and two counts of Class A

      misdemeanor invasion of privacy.2 Carter then waived his right to a jury trial

      on the enhancement phase and pled guilty to two counts of Level 6 felony

      invasion of privacy. Following his guilty plea, the trial court entered judgments

      of conviction for the two counts of invasion of privacy as Level 6 felonies. The

      trial court did not enter judgment of conviction for the Level 5 felony at that

      time.




      2
       After the trial began, the State moved to dismiss three of the Class A misdemeanor invasion of privacy
      counts. The jury found Carter not guilty of one count of Class A misdemeanor invasion of privacy.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1871 | March 17, 2020                   Page 3 of 8
[5]   In July 2019, the trial court held a sentencing hearing. At this hearing, the trial

      court entered judgment of conviction on the lesser included offense of Level 6

      felony stalking. Defense counsel then requested that the two invasion of

      privacy convictions merge into the stalking conviction because the same

      evidence was used to prove all three counts. The trial court agreed and merged

      the two invasion of privacy convictions into the stalking conviction, without

      also vacating the two convictions. The court then sentenced Carter to 910 days

      in the Marion County Jail.


[6]   Thereafter, the trial court stated that Carter had “previously been ordered to

      pay $100 Public Defender Supplemental Fund Fee. I am ordering that fee. I’m

      also ordering $185 in court costs.” (Tr. Vol. 3 at 41). The basis for the court’s

      assessment of those costs against Carter was because it found that he was

      “mentally and physically able to work.” (Tr. Vol. 3 at 41). The sentencing

      order shows a $200 public defender fee listed among Carter’s monetary

      obligations. The trial court’s written “Order on Fees and Costs,” which the

      sentencing order references, reflects that the court assessed an additional $100

      public defender fee and $185 in court costs. (App. 223). The Chronological

      Case Summary (“CCS”) also indicates that Carter owes two $100 public

      defender supplemental fund fees. Carter now appeals.


                                                  Decision

[7]   On appeal, Carter argues that: (1) the trial court’s merger of his invasion of

      privacy convictions into the stalking conviction violated Indiana’s

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1871 | March 17, 2020   Page 4 of 8
      constitutional prohibition against double jeopardy; and (2) the trial court

      abused its discretion when it imposed an additional $100 public defender

      supplemental fund fee. We will address each of these arguments in turn.


      1. Double Jeopardy


[8]   Carter argues, and the State concedes, that the trial court erred when it merged

      the two invasion of privacy convictions into the stalking conviction. We also

      agree. A trial court’s act of merging, without also vacating, convictions that

      violate double jeopardy prohibitions, is not sufficient to cure the double

      jeopardy violation. Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008),

      trans. denied. A double jeopardy violation occurs when judgments of conviction

      are entered and cannot be remedied by the “practical effect” of concurrent

      sentences or by merger after conviction has been entered. Morrison v. State, 824

      N.E.2d 734, 741-42 (Ind. Ct. App. 2005).


[9]   On the day of trial, the trial court entered judgments of conviction for the two

      invasion of privacy convictions. At sentencing, the trial court noted that due to

      double jeopardy concerns, it would merge the two convictions into the stalking

      conviction. The trial court did not vacate the invasion of privacy convictions

      prior to merging them into the stalking conviction. We therefore remand this

      cause to the trial court with instructions to vacate Carter’s invasion of privacy

      convictions.


      2. Public Defender Supplemental Fund Fee



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1871 | March 17, 2020   Page 5 of 8
[10]   Carter next argues that the trial court abused its discretion when it imposed an

       additional $100 public defender supplemental fund fee. “Sentencing decisions

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

       decision is reviewed for an abuse of discretion. Coleman v. State, 61 N.E.3d 390,

       392 (Ind. Ct. App. 2016). “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. 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).


[11]   As noted by Carter, there are three statutory provisions that allow a trial court

       to impose fees on a defendant to offset public defender costs, 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). Carter relies on INDIANA CODE §

       35-33-7-6, which provides that the trial court may impose a public defender

       supplemental fund fee before completing the initial hearing. 3 Under this statute,



       3
         The two other statutes address the trial court’s authority to order a defendant to pay all or part of the costs
       of counsel provided at public expense. The State suggests that the trial court relied on INDIANA CODE § 33-
       37-2-3, which provides that the trial court may impose part of the costs of representation upon a convicted
       person, provided that the trial court first determine that such person is not indigent. Here, the trial court
       found Carter “partially indigent” at his initial hearing. (App. 65). At sentencing, the trial court found that
       Carter was “mentally and physically able to work.” (Tr. Vol. 3 at 41). Because the trial court found Carter
       partially indigent and did not inquire further about Carter’s financial status under INDIANA CODE § 33-37-2-3,
       this statute is inapplicable. See Burnett v. State, 74 N.E.3d 1221, 1227 (Ind. Ct. App. 2017) (explaining that an
       indigency hearing under INDIANA CODE § 33-37-2-3 is sufficient when the trial court asks questions to
       determine a defendant’s “ability to pay.”).
       The next statute, INDIANA CODE § 33-40-3-6, authorizes the trial court to impose reasonable attorney fees if it
       finds that the defendant has the ability to pay the costs of representation. INDIANA CODE § 33-40-3-6 applies

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1871 | March 17, 2020                       Page 6 of 8
       the trial court is required to determine whether the defendant is indigent. I.C. §

       35-33-7-6(a). If the defendant is found to be indigent, the costs of representation

       are $100 in felony cases and $50 in misdemeanor cases. I.C. § 35-33-7-6(c).


[12]   Here, the trial court did not specify which statute authorized the public

       defender supplemental fees it imposed. However, there is language from the

       record that provides us with clarity. At Carter’s initial hearing, he requested the

       appointment of a public defender on his behalf. According to the trial court’s

       order following that hearing, the court found Carter “to be partially indigent

       with the present ability to pay a preliminary fee to the Public Defender

       Supplement Fund” of $100. (App. 65). This matches the language used by our

       Court to describe fees imposed for felony cases under INDIANA CODE § 35-33-7-

       6(c). See e.g., Berry, 950 N.E.2d at 800 (“The fact that Berry was found indigent

       at the initial hearing and the trial court ordered a fee of $100 leads us to agree

       with the State that the trial court imposed the public defender fee pursuant to

       Indiana Code § 35-33-7-6.”). At sentencing, the trial court stated that Carter

       had “previously been ordered to pay $100 Public Defender Supplemental Fund

       Fee. I am ordering that fee. I’m also ordering $185 in court costs.” (Tr. Vol. 3

       at 41). The CCS indicates that Carter owes two $100 public defender




       only in those situations where the court makes a finding of an ability to pay under the enumerated factors in
       INDIANA CODE § 33-40-3-7. Our review of the record reveals that the trial court never considered the
       enumerated factors. Thus, it is unlikely that the additional public defender fee was ordered pursuant to
       INDIANA CODE § 33-40-3-6.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1871 | March 17, 2020                     Page 7 of 8
       supplemental fund fees, and the sentencing order shows a $200 public defender

       fee among Carter’s monetary obligations.


[13]   Based upon the above being consistent with the imposition of a $100 fee under

       INDIANA CODE § 35-33-7-6, we conclude that trial court abused its discretion by

       imposing the additional $100 public defender supplemental fund fee. See

       Langdon v. State, 71 N.E.3d 1162, 1164 (Ind. Ct. App. 2017) (holding that the

       trial court abused its discretion when it imposed a second $50 supplemental

       public defender fee). Accordingly, we reverse the trial court’s imposition of the

       second public defender supplemental fee and remand this cause with

       instructions to issue a new sentencing and abstract of judgment consistent with

       this opinion.


[14]   Reversed and remanded with instructions.


       May, J., and Crone, J., concur.




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