MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                         Sep 09 2015, 8:41 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Victoria L. Bailey                                       Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert E. Ellett,                                        September 9, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1410-CR-706
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Clayton A.
Appellee-Plaintiff                                       Graham, Judge
                                                         Trial Court Cause No.
                                                         49G17-1312-CM-78908



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-706 | September 9, 2015   Page 1 of 8
                                             Case Summary
[1]   Robert E. Ellett appeals the trial court’s sentencing order imposing fees, costs,

      and a fine totaling $338. Ellett contends that the trial court abused its discretion

      in imposing this amount without first conducting an indigency hearing

      regarding his ability to pay. Finding no abuse of discretion, we affirm.


                                 Facts and Procedural History
[2]   On December 13, 2013, the State charged Ellett with class A misdemeanor

      battery and class A misdemeanor domestic battery. Thereafter, the trial court

      held an indigency hearing, found Ellett indigent, and appointed a public

      defender to represent him. The State subsequently amended the charging

      information to add a charge for class D felony criminal confinement. The case

      proceeded to a jury trial, and the jury found Ellett guilty as charged. During the

      sentencing hearing, Ellett discussed his stable financial situation due to his full-

      time job with Jiffy Lube earning $8.80 per hour, and the fact that the suspension

      of the entirety of his sentence to probation would allow him to maintain that

      job. The trial court noted that Ellett was able to and had already paid a $100

      public defender recoupment fee. Tr. at 165. The trial court merged the two

      battery convictions and sentenced Ellett to an aggregate sentence of 545 days

      with 473 days suspended to probation, and seventy-two days of credit time for

      days already served. The trial court assessed court costs, fees, and a fine against

      Ellett in the aggregate amount of $338. Specifically, the court’s order imposed

      the following:



      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-706 | September 9, 2015   Page 2 of 8
               Adult Probation Monthly and Initial User Fees – CR       $97.00
               Automated Record Keeping Fee – CR                        $7.00
               Court Administration Fee – CR                            $5.00
               Court Costs – City and Town – CR                         $3.60
               Court Costs – County – CR                                $32.40
               Court Costs – State – CR                                 $84.00
               Criminal Court Fines                                     $20.00
               DNA Sample Processing Fee – CR                           $2.00
               Document Storage Fee – CR                                $2.00
               Domestic Violence Prevention Fee – CR                    $50.00
               Indianapolis Metropolitan Police                         $4.00
               Judicial Insurance Adjustment Fee – CR                   $1.00
               Judicial Salary Fee – CR                                 $20.00
               Jury Fee – CR                                            $2.00
               Probation User Fee – Clerks 3% - CR                      $3.00
               Public Defense Administration Fee – CR                   $5.00
               Supplemental Public Defender Fee – CR                  $100.00[ 1]
                                                                 Total: $338.00


      Appellant’s App. at 18. These amounts were ordered to be paid “during the

      course of probation.” Tr. at 165.


[3]   Private counsel entered an appearance on Ellett’s behalf and filed a notice of

      appeal. However, due to Ellett’s failure to maintain contact with counsel and

      his alleged inability to pay for transcript fees and the costs of representation,

      counsel moved to withdraw his appearance. This Court granted counsel’s

      motion to withdraw and remanded the matter to the trial court to determine




      1
        Although the $100 public defender fee remains listed in the trial court’s order, as we stated above, the trial
      court determined during sentencing that Ellett had already paid this fee. This amount is not included in the
      trial court’s total calculation of $338, and Ellett does not appeal the imposition of this fee.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-706 | September 9, 2015               Page 3 of 8
      whether Ellett was entitled to pauper counsel for the purposes of appeal. On

      March 17, 2015, the trial court appointed pauper counsel and the Marion

      County Public Defender Agency perfected this appeal. We will provide

      additional facts where necessary.


                                     Discussion and Decision
[4]   Sentencing decisions, including decisions to impose fines, costs, or fees, are

      generally left to the discretion of the trial court. Berry v. State, 950 N.E.2d 798,

      799 (Ind. Ct. App. 2011). We will reverse only for an abuse of discretion—that

      is to say, if 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. 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.” Berry, 950 N.E.2d at 799 (quoting Banks v. State, 847

      N.E.2d 1050, 1051 (Ind. Ct. App. 2006), trans. denied.). Indeed, a trial court

      does not abuse its discretion if the fees imposed fall within the parameters

      provided by statute. Id. Although Ellett challenges only the aggregate amount

      that the trial court imposed, we will address each type of fee, cost, or fine

      separately, as the law differs with regard to each.


           Section 1 – The trial court did not abuse its discretion in
                      imposing statutory costs and fees.
[5]   In its written sentencing order imposing fees and costs, the trial court relied on

      Indiana Code Sections 33-37-4-1 and 33-37-5-19. Indiana Code Section 33-37-


      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-706 | September 9, 2015   Page 4 of 8
      4-1 specifically requires the trial court to impose certain court costs regardless of

      whether the convicted person is indigent. Id. at 802. Indiana Code Section 33-

      37-4-1(a) mandates a trial court to impose a “criminal costs fee” of $120 when a

      defendant is convicted of a felony or a misdemeanor. In addition, subsection

      (b) of that statute mandates the imposition of nineteen additional fees as

      required by Indiana Code chapter 33-37-5, including several that were imposed

      by the trial court here, such as an automated record keeping fee, a court

      administration fee, a DNA sample processing fee, a document storage fee, a

      domestic violence prevention fee, a law enforcement continuing education

      program fee, 2 a judicial insurance adjustment fee, a judicial salary fee, and a

      public defense administration fee. See Ind. Code § 33-37-4-1(b). Similarly,

      Indiana Code Section 33-37-5-19 mandates the collection of a “jury fee” of $2

      in each action in which a defendant is found to have committed a crime.

      Because all of these fees are mandated by statute, they are imposed by operation

      of law, and “neither indigency nor ability to pay is relevant and a hearing is not

      required.” Berry, 950 N.E.2d at 803.


[6]   Here, the trial court properly provided the statutory authority for the court costs

      imposed and listed and identified each of the applicable fees. See id. (requiring

      trial court to specify statutory sources for fees imposed upon a defendant).

      Therefore, we conclude that the trial court did not abuse its discretion in



      2
       We note that the trial court lists a $4 fee for the “Indianapolis Metropolitan Police.” Appellant’s App. at 18.
      We will presume by the label that this fee is a law enforcement continuing education program fee as neither
      Ellett nor the State discusses this fee or informs us otherwise.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-706 | September 9, 2015             Page 5 of 8
      imposing these statutory fees and costs at the time of sentencing without first

      holding an indigency hearing. This comes with the caveat, however, that the

      imposition of these court costs is a separate issue from the sanctions imposed

      for nonpayment. “Such sanctions could only be imposed in the event of a

      determination of an ability to pay.” Id. at 803 n.6; see Whedon v. State, 765

      N.E.2d 1276, 1278-79 (Ind. 2002) (holding that “when fines or costs are

      imposed upon an indigent defendant, such a person may not be imprisoned for

      failure to pay the fines or costs”).


           Section 2 – The trial court did not abuse its discretion in
                          imposing probation fees.
[7]   We next address the trial court’s imposition of probation user fees. Specifically,

      the trial court ordered that Ellett “be placed on a sliding fee scale or a reduced

      fee schedule” for $100 of probation fees. Tr. at 165. Ellett correctly points out

      that Indiana Code Section 33-37-2-3 states in relevant part that “when the court

      imposes costs, it shall conduct a hearing to determine whether the convicted

      person is indigent.” However, we have recognized that this statute “provides

      the trial court with great flexibility in imposing costs.” Berry, 950 N.E.2d at

      801. Indeed, a panel of this Court recently held that a trial court may, within its

      discretion, delay holding an indigency hearing regarding the payment of

      probation fees until a defendant completes his sentence. Johnson v. State, 27

      N.E.3d 793, 795 (Ind. Ct. App. 2015). We noted that although Indiana Code

      Section 33-37-2-3 provides that a trial court that imposes costs on a defendant is




      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-706 | September 9, 2015   Page 6 of 8
      required to conduct an indigency hearing, the statute does not otherwise dictate

      when the hearing is to be held. Id.


[8]   Thus, while we acknowledged that a trial court has a duty pursuant to Indiana

      Code Section 33-37-2-3 to conduct an indigency hearing at some point in time,

      we concluded that a trial court is within its discretion to wait and see if a

      defendant can pay probation fees before it finds the defendant indigent. See id.

      (citing Indiana Code chapter 35-38-2 which contains no language requiring the

      trial court to conduct an indigency hearing before or directly after ordering

      probation fees). The trial court here indicated such a desire to wait and see if

      Ellett could handle the probation fees by imposing them “on a sliding fee

      scale.” Tr. at 165. Accordingly, we cannot say that the trial court abused its

      discretion in imposing probation fees at the time of sentencing without first

      holding an indigency hearing. As with the imposition of statutory costs, this

      comes with the caveat that the trial court does have a duty to conduct a hearing

      before imposing any sanctions upon Ellett for failure to pay. See Whedon, 765

      N.E.2d at 1278-79.


           Section 3 – The trial court did not abuse its discretion in
                                assessing a fine.
[9]   Finally, we address the trial court’s assessment of a $20 fine. Indiana Code

      Section 35-38-1-18(a) states in relevant part that “whenever the court imposes a

      fine, it shall conduct a hearing to determine whether the convicted person is

      indigent.” Similar to the language of Indiana Code Section 33-37-2-3(a)

      considered above, the statutory language regarding the imposition of fines

      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-706 | September 9, 2015   Page 7 of 8
       requires an indigency hearing but does not dictate when that hearing must be

       held. Therefore, a trial court could arguably, within its discretion, delay

       holding an indigency hearing regarding the payment of a fine until the

       defendant completes his sentence. While it may have been more prudent for the

       trial court here to hold an indigency hearing prior to the imposition of this

       albeit minimal fine, we decline to find an abuse of discretion. Again, we

       remind the trial court that Ellett may not be sanctioned or imprisoned for

       failure to pay this fine. See Whedon, 765 N.E.2d at 1278-79. The trial court’s

       sentencing order is affirmed.


[10]   Affirmed.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-706 | September 9, 2015   Page 8 of 8
