MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any
                                                                     Jun 27 2019, 6:54 am
court except for the purpose of establishing
the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Dale W. Arnett                                           Curtis T. Hill, Jr.
Winchester, Indiana                                      Attorney General of Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Darlene Kay Herran,                                      June 27, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-3131
        v.                                               Appeal from the Henry Circuit
                                                         Court
State of Indiana,                                        The Honorable Kit C. Dean Crane,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         33C02-1802-F5-9



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019                 Page 1 of 13
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Darlene Herran (Herran), appeals the trial court’s Home

      Detention Order and Agreement and its Order to Pay Transcription Costs

      following her guilty plea to operating a motor vehicle after forfeiture for life, a

      Level 5 felony, Ind. Code § 9-30-10-17(a)(1).


[2]   We affirm.


                                                   ISSUES
[3]   Herran presents three issues on appeal, which we restate as:


          (1) Whether the trial court improperly ordered that it may assess the cost of

              the preparation of the transcript to Appellate Counsel;

          (2) Whether the trial court’s Home Detention Order and Agreement is

              subject to reversal for failing to comply with statutory notice

              requirements set out for electronic monitoring devices; and

          (3) Whether the trial court abused its discretion when it imposed a condition

              of Herran’s home detention that effectively prohibited her from living

              with her husband.


                      FACTS AND PROCEDURAL HISTORY
[4]   On February 22, 2018, Herran was observed driving north on 18th Street in New

      Castle, Indiana, by an officer of the New Castle Police Department who

      recognized her as a lifetime habitual traffic offender. After confirming that

      Herran’s driver’s license was subject to an indefinite suspension, the officer

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019   Page 2 of 13
      performed a traffic stop and subsequently arrested Herran. On February 23,

      2018, the State filed an Information, charging Herran with operating a motor

      vehicle after forfeiture for life, a Level 5 felony. On February 23, 2018, the trial

      court found Herran to be indigent and appointed a public defender to represent

      her.


[5]   On November 29, 2018, pursuant to a plea agreement with the State, Herran

      pleaded guilty to Level 5 felony operating a motor vehicle after forfeiture for

      life. According to the terms of the plea agreement, Herran would receive a

      sentence of five years, with three years to be executed on home detention and

      two years suspended to probation. A pending charge of conversion in another

      criminal matter was also dismissed. The plea agreement further provided that

      Herran could seek a modification of her placement after completing one and

      one-half years of her home detention. Prior to the entry of her guilty plea, the

      trial court reviewed Herran’s constitutional trial rights, which the trial court

      found she understood and waived voluntarily. Herran affirmed to the trial

      court that she had read the terms of her plea agreement, discussed it with her

      attorney, signed it, and understood that she could not request any modification

      of placement on home detention for 401 days. The trial court found that

      Herran knowingly and voluntarily pleaded guilty and that it should accept the

      plea agreement and be bound by its terms. The trial court accepted the plea

      agreement and sentenced Herran according to its terms. In its written

      sentencing order, the trial court granted the withdrawal of Herran’s public

      defender.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019   Page 3 of 13
[6]   On November 29, 2018, the trial court also entered its Home Detention Order

      and Agreement which enumerated the conditions of Herran’s home detention.

      The written standard conditions of Herran’s home detention provided that

      “[n]o person convicted of a felony will be allowed to live at or visit your

      residence.” (Appellant’s App. Vol. II, p. 47). Directly above the signature line

      of the Home Detention Order and Agreement was the following averment:


              I have read the above terms and conditions of home detention
              and had those terms and conditions fully explained to me. I have
              received a copy of said terms. I agree to comply with all terms
              and conditions specified.


      (Appellant’s App. Vol. II, p. 49). On November 29, 2018, Herran and Herran’s

      public defender signed the Home Detention Order and Agreement. Home

      detention was scheduled to commence on or before December 3, 2018. The

      trial court’s Probation Order and Agreement, which Herran also executed on

      November 29, 2018, did not contain any prohibition on her living with a felon.


[7]   On December 7, 2018, Herran filed an unverified pro se motion with the trial

      court seeking reconsideration of the conditions of her home detention to allow

      her to live with her husband, who she stated had been on parole since July

      2018. On December 18, 2018, the trial court denied Herran’s motion. On

      December 18, 2018, Appellate Counsel filed his appearance along with

      Herran’s unverified motion seeking to allow her to live with her husband while

      on home detention. Herran claimed that the condition of her home detention

      prohibiting her from living with a felon constituted an infringement upon her


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019   Page 4 of 13
      right to “society” with her husband and was an undue economic hardship.

      (Appellant’s App. Vol. II, p. 10). On December 20, 2018, the trial court denied

      Herran’s second motion without a hearing and without entering any findings of

      fact or conclusions of law.


[8]   Herran filed a notice of appeal on December 31, 2018, in which Appellate

      Counsel was identified as “pro bono” counsel. (Appellant’s App. Vol. II, p. 57).

      In her notice of appeal, Herran requested that the Henry Circuit Court 2

      Reporter prepare a transcript of the November 29, 2018, sentencing hearing and

      furnish it to Appellate Counsel. Herran attached to her notice of appeal a copy

      of the chronological case summary entry dated February 27, 2018, noting that

      the trial court had found her indigent and had appointed her a public defender

      for purposes of addressing the operating while forfeited for life charge.


[9]   On January 11, 2019, we granted a motion by Herran to proceed in forma

      pauperis and expressly relieved her of the obligation to pay the filing fee for her

      appeal. On January 24, 2019, the Clerk of the Henry Circuit Court 2 filed a

      notice indicating that the transcript had not yet been completed. 1 On January

      25, 2019, the trial court entered its Order to Pay Transcription Costs as follows:


               [Appellate Counsel] contacted court staff to request the
               preparation of a transcript. Until just recently and after the
               transcript had already been completed, [Appellate Counsel] did
               not advise the [c]ourt that he expected that the transcript be



      1
        An invoice included in the Appendix indicates that the transcript was delivered by the court reporter on
      January 8, 2019.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019                    Page 5 of 13
               prepared at no cost to [Herran]. In fact, the [c]ourt has never
               received any pleading from [Appellate Counsel] requesting such
               a finding, nor have there been any pleadings filed asserting
               indigency. Due to high volume, the [c]ourt uses outside services
               to prepare transcripts. Accordingly, the [c]ourt FINDS and
               ORDERS as follows:


               The Henry County Auditor shall pay . . . the sum of $94.50 as
               costs of transcript service to [the ] Court Reporter . . . [Appellate
               Counsel] however, is put on notice that the [c]ourt may assess
               such costs against [Appellate Counsel].


       (Appellant’s App. Vol. II, p. 61). On January 31, 2019, Herran filed a motion

       to correct error requesting that the trial court not assess the cost of the transcript

       preparation to Appellate Counsel. The trial court did not rule on the motion.


[10]   Herran now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                              I. Costs of Transcript

[11]   Herran first contends that the trial court erroneously ordered that Appellate

       Counsel may be assessed the costs of the preparation of the transcript. The

       State counters that the issue is not ripe for appeal because the trial court’s Order

       to Pay Transcription Costs did not, in fact, assess those costs to Appellate

       Counsel and merely warned that it may do so. The concept of ripeness refers to

       the degree that the defined issues in a case are based on actual facts, not abstract

       possibilities, and are capable of being decided on an adequately developed

       record. Buck v. Grube, 833 N.E.2d 110, 118 n.7 (Ind. Ct. App. 2005). In ruling


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019   Page 6 of 13
       on ripeness, we consider the fitness of the issue for judicial decision as well as

       the hardship to the parties of withholding a decision on the merits. Id.


[12]   We agree with the State that this issue is not ripe for appeal. The transcript was

       paid for with public funds, and this appeal has proceeded in due course. The

       trial court did not yet order Appellate Counsel to pay the costs of the

       preparation of the transcript. Neither Herran nor Appellate Counsel have

       sustained any injury, and, therefore, we decline to address the issue. 2


                                II. Notice Requirement for Electronic Surveillance

[13]   Herran next briefly argues that the trial court failed to adequately notify her of

       the use of an electronic monitoring device as part of her home detention. She

       therefore asks us to determine “that any conditions of electronic monitoring in

       this matter be declared null and void.” (Appellant’s Br. p. 9). The terms of

       Herran’s home detention order and agreement provided that she “shall ensure

       compliance with this [c]ourt’s order on home detention by wearing an




       2
[1]      We note that a party who was permitted to proceed in the trial court in forma pauperis may proceed in like
       manner on appeal without prior authorization from the trial court or the appellate court. Ind. Appellate Rule
       40(A)(1). If a party is granted in forma pauperis status by this court, the effect is that the party “is relieved of
       the obligation to prepay filing fees or costs in either the trial court or the Court on Appeal or to give security
       therefor[.]” App. R. 40(D)(1) (emphasis added). Costs are defined, in relevant part, in the Appellate Rules as
       “the cost of preparing the Record on Appeal, including the Transcript[.]” App. R. 67(B)(2). Thus, a
       defendant who has been determined to be indigent is entitled to a transcript on appeal at public expense. See
       I.C. § 33-40-8-5; see also Hollowell v. State, 19 N.E.3d 263, 266-67 (Ind. 2014) (noting that, after the Court of
       Appeals had granted him in forma pauperis status, Hollowell was entitled to a transcript of his post-conviction
       relief hearing at public expense); Wright v. State, 772 N.E.2d 449, 461 (Ind. Ct. App. 2002) (“[C]riminal
       defendants in Indiana who cannot afford to pay for a transcript are still entitled to one if they are found to be
       indigent.”).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019                         Page 7 of 13
       electronic non-removable anklet twenty-four (24) hours a day during the period

       of detention[.]” (Appellant’s App. Vol. II, p. 47).


[14]   Herran directs us to Indiana Code section 35-38-2.5-11, which provides that


               [b]efore entering an order for home detention that requires the
               use of a monitoring device described in section 3.3 of this chapter
               the court shall inform the offender and other persons residing in
               the home of the nature and extent of electronic surveillance
               provided by the monitoring device in the home.


       Assuming, without deciding, that she preserved this claim, section 35-38-2.5-11

       applies to Herran’s electronic monitoring device, and the trial court failed to

       provide adequate notice, we conclude that, on the record before us, Herran is

       unable to demonstrate that she has suffered any prejudice. We will not reverse

       any order or action by a trial court unless it impacts the defendant’s substantial

       rights. See App. Rule 66(A). Herran alleges a lack of notice, and her claim of

       prejudice is that “electronic monitoring should be disallowed because more

       expansive terms of that condition may be applied than were noticed to the

       probationer.” Our review of the conditions of the home detention order and

       agreement leads us to conclude that Herran was put on notice that her presence

       and absence from her home would be monitored by the anklet. Without any

       evidence that some other form of monitoring was imposed in this case, we

       cannot conclude that Herran’s substantial rights have been impacted by any

       error on the part of the trial court. See id.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019   Page 8 of 13
                        III. Prohibition on Living or Visiting with Felons in Home


[15]   Herran’s final contention on appeal is that the condition of her home detention

       prohibiting her from cohabitating or visiting with felons in her home infringes

       upon her constitutionally-protected, fundamental right to marriage. Herran

       essentially argues that the condition is unconstitutional as it applies to her

       because its effect is to prevent her from living with her spouse, who she

       represents is a convicted felon. Thus, Herran requests that we invalidate this

       condition of her home detention.


[16]   The State counters with a number of arguments as to why we should not

       address the merits of Herran’s arguments, including that Herran has waived her

       argument by failing to raise these issues below. Our review of the record

       indicates that the Home Detention Order and Agreement was executed after the

       conclusion of the sentencing hearing, and, therefore, Herran had no

       opportunity to object at the trial level apart from raising the issue in her

       subsequent motions. Although her argument was not as well developed below

       as on appeal, we find it was sufficiently raised in her motions to preserve it for

       our review. In addition, contrary to the State’s assertion that Herran invited

       any error when she entered into her plea agreement and signed the Home

       Detention Order and Agreement, we note that even when a defendant enters

       into an agreement enumerating conditions as part of her conditional freedom,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019   Page 9 of 13
       we will review the propriety of those agreed-upon conditions. See, e.g., Green v.

       State, 719 N.E.2d 426, 430 (Ind. Ct. App. 1999) (finding the condition of work

       release agreement that Green had signed obligating him to waive his 4th

       Amendment rights as to any law enforcement officer to be overly broad).


[17]   The State also argues that we should not address Herran’s claim because she

       waived her right to seek any modification of her placement when she entered

       into the fixed-term plea agreement and the Home Detention Order and

       Agreement. The General Assembly has recently amended the sentence

       modification statute, Indiana Code section 35-38-1-17 (2018). As of the writing

       of this opinion, the effect of these amendments on the ability of a defendant to

       seek modification of a sentence imposed pursuant to a fixed-term plea

       agreement is being reviewed by our supreme court. See State v. Stafford, 117

       N.E.3d 621 (Ind. Ct. App. 2018), trans. granted; Rodriguez v. State, 116 N.E.3d

       515 (Ind. Ct. App. 2018), trans. granted. However, we need not resolve the issue

       because we conclude that, even if Herran had the ability to seek modification of

       her sentence, she is not entitled to relief on the merits of her claim.


[18]   It is well-established that, once a trial court accepts a plea agreement, it is

       bound by its terms. I.C. § 35-35-3-3(e); State v. Smith, 71 N.E.3d 368, 370 (Ind.

       2017). Our supreme court has held that if a plea agreement is silent as to the

       conditions of probation and does not reserve to the trial court the discretion to

       impose probation conditions, the trial court may impose only those conditions

       that do not “materially add to the punitive obligation” provided for by the plea


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019   Page 10 of 13
       agreement. Freije v. State, 709 N.E.2d 323, 324-25 (Ind. 1999). For example,

       even if not specifically provided for in the plea agreement, a trial court may

       impose certain administrative or ministerial conditions, such as reporting

       requirements, providing notification of changes in employment or address, and

       remaining within the jurisdiction of the court. Id. at 325. These are the sort of

       conditions that are regularly imposed upon a defendant subject to probation,

       and a defendant who enters into a plea agreement that calls for a sentence to be

       served on probation should reasonably expect that the county’s standard

       conditions may apply. Id. However, if a condition materially adds to the

       punitive obligation of a sentence, it may not be imposed in absence of a

       provision in the plea agreement providing the trial court with discretion to set

       the conditions of probation. Id.


[19]   Freije involved conditions of probation, as opposed to the conditions of home

       detention at issue here. However, we have analogized home detention to

       probation. Although different statutory schemes are involved in these two

       forms of alternative commitment, we see no reason why Freije would not apply

       equally to home detention conditions. See, e.g., Rodriguez v. State, 714 N.E.2d

       667, 670 (holding that the same standard of review applies to home detention

       conditions and conditions of probation).


[20]   Here, Herran’s plea agreement did not specifically provide for the conditions of

       home detention, and it did not reserve to the trial court the discretion to impose

       those conditions. Thus, the discretion of the trial court to impose conditions of

       home detention was limited to those which did not materially add to the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019   Page 11 of 13
       punitive obligations of the sentence. See Freije, 709 N.E.2d at 325. The

       condition at issue here was entered as part of the standard conditions of the

       home detention order and agreement, which is the type of ministerial or

       administrative condition which could be imposed without being expressly

       provided for in the plea agreement. Id.


[21]   Herran argues that the challenged condition unduly infringes upon her

       fundamental right to be married. It has been recognized that citizens have a

       fundamental right to enter into and maintain a marriage relationship. See, e.g.,

       Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113

       (1942) (“Marriage and procreation are fundamental to the very existence and

       survival of the race.”). However, the condition of Herran’s home detention

       prohibiting her from living with a felon or having a felon visit her home did not

       implicate Herran’s ability to remain legally married to her spouse, nor did it

       materially add to the punitive obligations of her sentence. It does not require

       her to divorce her husband, legally separate from him, or to alter her legal status

       as to her spouse in any way. This was not a ‘no-contact’ order prohibiting

       Herran from having any contact with her spouse. Because this standard

       condition of home detention did not materially add to the punitive obligation of

       Herran’s sentence, we conclude that the trial court did not abuse its discretion

       when it entered its Home Detention Order and Agreement. See Freije, 709

       N.E.2d at 325.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019   Page 12 of 13
                                             CONCLUSION
[22]   Based on the foregoing, we conclude that the issue of whether the trial court

       could assess the cost of the transcript to pro bono Appellate Counsel is not ripe

       for our consideration and that Herran has not demonstrated that she was

       prejudiced by any failure on the part of the trial court to provide additional

       notice to her regarding the electronic monitoring of her home detention. We

       also conclude that the standard condition of the Home Detention Order and

       Agreement having the effect of precluding Herran from living with her spouse

       was not an abuse of the trial court’s discretion.


[23]   Affirmed.


[24]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019   Page 13 of 13
