MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                                FILED
court except for the purpose of establishing                               Dec 18 2019, 10:32 am

the defense of res judicata, collateral                                         CLERK
                                                                            Indiana Supreme Court
estoppel, or the law of the case.                                              Court of Appeals
                                                                                 and Tax Court




ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Valerie K. Boots                                        Curtis T. Hill, Jr.
Talisha Griffin                                         Attorney General of Indiana
Marion County Public Defender Agency
                                                        Benjamin J. Shoptaw
Appellate Division                                      Deputy Attorney General
Indianapolis, Indiana                                   Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Denzel Drain,                                           December 18, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1551
        v.                                              Appeal from the
                                                        Marion Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Anne Flannelly, Magistrate
                                                        Trial Court Cause No.
                                                        49G04-1802-F5-7100



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1551 | December 18, 2019                   Page 1 of 9
[1]   Denzel Drain (“Drain”) was convicted of carrying a handgun without a license 1

      as a Level 5 felony and was given a four-year sentence with two years executed

      in the Indiana Department of Correction (“the DOC”) and two years served in

      the Marion County Community Corrections (“Community Corrections”) work

      release program. Drain appeals and raises the following restated issues:


                 I.       Whether the trial court abused its discretion when it
                          imposed a public defender fee; and


                 II.      Whether the trial court abused its discretion when it
                          ordered Drain’s bond money to be released to pay
                          monetary obligations for Community Corrections without
                          specifying the fees imposed and including calculation of
                          those fees.


[2]   We affirm in part, vacate in part, and remand.


                                       Facts and Procedural History
[3]   On February 26, 2018, Indianapolis Metropolitan Police Department officers

      received a dispatch concerning a domestic disturbance. Tr. Vol. 2 at 134. The

      officers were told that the name of the suspect was Drain and that he was a

      light-skinned, black male, with long dreadlocks wearing a black t-shirt. Id. at

      136. The officers were informed that Drain was driving a 2006 Dodge Ram

      pick-up with a gold driver’s side door. Id. The officers were also told that

      Drain may have a gun. Id. at 136-37. A couple of hours later, an officer



      1
          See Ind. Code § 35-47-2-1.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1551 | December 18, 2019   Page 2 of 9
      observed a truck matching the dispatch description traveling on the road. Id. at

      137-38.


[4]   The officer followed the truck and ran the license plate to confirm it was the

      correct vehicle. Id. at 141. Once the officer confirmed that it was the correct

      truck registered to Drain, the officer waited for backup before initiating the

      traffic stop. Id. at 142-43. Drain failed to use a turn signal as he turned right,

      and the officers initiated a felony traffic stop due to the fact that Drain was

      believed to have a gun. Id. at 143-44. After removing Drain from the truck, the

      officers searched the truck and found a handgun under the dashboard above the

      brake pedal on the driver’s side. Id. at 170-72.


[5]   On February 28, 2018, the State charged Drain with Count I, Level 5 felony

      carrying a handgun without a license, Count II, Level 6 felony pointing a

      firearm, Count III, Class A misdemeanor domestic battery, and Count IV,

      Class A misdemeanor battery resulting in bodily injury. Appellant’s App. Vol. II

      at 25-27. On March 23, 2018, Drain posted bond and was placed on pre-trial

      GPS monitoring. Id. at 44, 63. Prior to trial, the State dismissed Counts II, III,

      and IV. Tr. Vol. 2 at 9. On May 23, 2019, a bifurcated jury trial was held on

      Count I, and the jury found Drain guilty of part 1 of the charge, carrying a

      handgun without a license. Tr. Vol. 3 at 4. Drain then pleaded guilty to having

      a prior conviction in part 2 of the charge. Id. at 5. The trial court sentenced

      Drain to four years, with two years executed in the DOC and two years served

      in Community Corrections work release program with GPS monitoring. Id. at

      33. Drain was also ordered to pay court costs and fees in the amount of $485,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1551 | December 18, 2019   Page 3 of 9
      which included a $100 public defender supplemental fund fee, a $220 safe

      school fee, and $185 in court costs. Id. at 34.


[6]   On June 12, 2019, Community Corrections filed a memo with the trial court

      requesting the release of Drain’s bond to Community Corrections. Appellant’s

      App. Vol. II at 180. The memo stated that Drain “currently owes monetary

      obligations under this cause to Community Corrections in the amount of

      $2,180” and requested that Drain’s bond be transferred to Community

      Corrections to “apply toward the outstanding balance of program costs

      associated with the service provided to [Drain].” Id. On the same date, the trial

      court issued an order to the clerk of the court to “apply the refund from the

      bond which was posted on March 23, 2018 to the outstanding balance of court

      costs and any and all court-ordered fees” and issued a separate order releasing

      the balance of Drain’s bond to Community Corrections to be applied toward

      the outstanding balance of program costs. Id. at 181-82. Drain now appeals.

      Additional facts will be added as necessary.


                                     Discussion and Decision

                                      I.       Public Defender Fee
[7]   Drain argues that the trial court abused its discretion when it ordered him to

      pay a $100 public defender fee without first determining his ability to pay the

      fee. “[S]entencing decisions, including decisions to impose restitution, fines,

      costs, or fees, are generally left to the trial court’s discretion.” Kimbrough v.

      State, 911 N.E.2d 621, 636 (Ind. Ct. App. 2009). We will not find an abuse of


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1551 | December 18, 2019   Page 4 of 9
      discretion if the fees imposed by the trial court fall within the parameters

      provided by statute. Holder v. State, 119 N.E.3d 621, 624 (Ind. Ct. App. 2019).

      “A defendant’s indigency does not shield him from all costs or fees related to

      his conviction.” Banks v. State, 847 N.E.2d 1050, 1051 (Ind. Ct. App. 2006), trans.

      denied.


[8]   Drain asserts that the trial court abused its discretion in imposing a $100 public

      defender fee because the trial court did not explicitly find that Drain could pay

      the fee imposed. Drain contends that, under Indiana Code section 33-37-2-3(a),

      the trial court was required to hold a hearing to determine whether he was

      indigent before imposing any court costs. Because the trial court did not

      conduct a hearing regarding Drain’s indigency and ability to pay the public

      defender fee when it imposed court costs at the sentencing hearing, Drain

      argues that the order imposing the $100 public defender fee should be vacated

      and remanded for the trial court to hold such a hearing.


[9]   Although Drain is correct in his assertion that Indiana Code section 33-37-2-

      3(a) provides that when a trial court imposes costs, it is required to conduct a

      hearing to determine whether a convicted person is indigent, this requirement is

      not applicable to the present case. In Wright v. State, 949 N.E.2d 411 (Ind. Ct.

      App. 2011), this court held that “the indigency requirement of Indiana Code

      section 33-37-2-3(a) does not apply when a defendant has entered into a cash

      bail bond agreement pursuant to Indiana Code section 35-33-8-3.2(a)(2).”

      Wright, 949 N.E.2d at 416. Indiana Code section 35-38-8-3.2(a)(2) does not

      contain any language requiring an indigency hearing, and Wright found that

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1551 | December 18, 2019   Page 5 of 9
       imposing the hearing requirement of Indiana Code section 33-37-2-3(a) where a

       defendant executed an agreement pursuant to Indiana Code section 35-33-8-

       3.2(a)(2), would render the bail bond agreement meaningless. Wright, 949

       N.E.2d at 416. Further, this court has previously recognized that, when a

       defendant posts a cash bail bond pursuant to Indiana Code section 33-37-8-3.2,

       the trial court has the authority to impose public defender costs. See Turner v.

       State, 755 N.E.2d 194, 200 (Ind. Ct. App. 2001) (“Trial courts may deduct

       additional money to cover public defender costs from a defendant’s posted cash

       bond pursuant to Indiana Code Section 35-33-8-3.2. Such is not the case here,

       however, as Turner posted no bond and was incarcerated following his arrest

       through the conclusion of his trial.”), trans. denied.


[10]   Here, Drain executed a cash bond agreement on March 23, 2018, and in doing

       so, he agreed to give the trial court authority to retain all or part of the $2,000

       placed in escrow to pay publicly paid costs of representation, fines, costs, fees,

       and restitution if he failed to appear or was convicted. Appellant’s App. Vol. II at

       63. Drain was convicted of Level 5 felony carrying a handgun without a license

       on May 23, 2019, and, therefore, the trial court had the authority to use the

       bond money held in escrow to pay the public defender fee pursuant to the cash

       bond agreement. Drain entered into the cash bond agreement, a contract, and

       he is bound by its terms, which are authorized by statute. We, therefore,

       conclude that the trial court did not abuse its discretion when it ordered Drain

       to pay the $100 public defender fee and applied his bond to pay that fee.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1551 | December 18, 2019   Page 6 of 9
                    II.     Release of Bond to Community Corrections
[11]   Generally, the setting of the amount of bail is within the discretion of the trial

       court and will be reversed only for an abuse of discretion. Lopez v. State, 985

       N.E.2d 358, 360 (Ind. Ct. App. 2013). Likewise, the trial court has discretion

       in the manner of executing the bail money. Winn v. State, 973 N.E.2d 653, 656

       (Ind. Ct. App. 2012). An abuse of discretion occurs when the trial court’s

       decision is clearly against the logic and effect of the facts and circumstances

       before it. Id. at 655.


[12]   Drain argues that the trial court abused its discretion when it released the

       balance of his bond to Community Corrections to pay the requested fees

       because there was no review conducted of the requested fees. Drain asserts that

       he did not owe any pretrial service fees to Community Corrections and that

       Community Corrections never petitioned the trial court to impose fees for GPS

       monitoring. He also contends that the trial court did not impose fees or costs

       for his placement in the Community Corrections work release program at the

       sentencing hearing, and at the time his bond was released to Community

       Corrections, he had not begun serving his time in the work release program and

       did not owe any fees for that program. Therefore, he maintains that the

       imposition of the fees requested by Community Corrections exceeded statutory

       authority and was an abuse of discretion.


[13]   As discussed above, Indiana Code section 35-33-8-3.2(a)(2) states in pertinent

       part that a trial court “may admit a defendant to bail and . . . require the

       defendant to execute . . . an agreement that allows the court to retain all or a
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1551 | December 18, 2019   Page 7 of 9
       part of the cash or securities to pay fines, costs, fees, and restitution that the

       court may order the defendant to pay if the defendant is convicted.” Drain

       executed a cash bond agreement, which contained this statutory language, and

       he was convicted of Level 5 felony carrying a handgun without a license.

       Therefore, the trial court had the authority to apply Drain’s bond to any

       Community Corrections fees he was ordered to pay.


[14]   Under Indiana Code section 35-33-8-3.2(a)(5), when a trial court admits a

       defendant to bail, it can “[p]lace the defendant under the reasonable supervision

       of a probation officer, pretrial services agency, or other appropriate public

       official. If the court places the defendant under the supervision of a probation

       officer or pretrial services agency, the court shall determine whether the

       defendant must pay the pretrial services fee.” After Drain was sentenced,

       Community Corrections requested that the remaining bond be applied “toward

       the outstanding balance of program costs associated with the service provided

       to [Drain].” Appellant’s App. Vol. II at 180. As a condition of his pre-trial

       release, Drain was ordered to be placed on GPS monitoring, and Community

       Corrections charged Drain $5 a day for supervising the GPS monitoring.

       Appellant’s App. Vol. II at 44, 63, 186-87; Supp. Tr. Vol. 2 at 8.


[15]   The State concedes, however, that the trial court did not clearly state at the

       sentencing hearing that it was imposing fees for Drain’s pre-trial GPS

       monitoring as required under statute. See Indiana Code § 35-33-8-3.2(a)(5).

       The sentencing order did not contain any calculation or mention of fees to be

       paid to Community Corrections. Appellant’s App. Vol. II at 18-19, Tr. Vol. 3 at

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1551 | December 18, 2019   Page 8 of 9
       33-34. Only after sentencing did the trial court issue an order that the balance

       of Drain’s bond be applied to his outstanding Community Corrections costs

       without clearly stating what fees the trial court was imposing or including any

       calculation of those fees. See Appellant’s App. Vol. II at 180-81. We, therefore,

       conclude that the trial court abused its discretion in issuing this order. We

       vacate the trial court’s order and remand to the trial court to hold a hearing to

       impose fees consistent with the statutory guidelines.


[16]   Affirmed in part, vacated in part, and remanded.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1551 | December 18, 2019   Page 9 of 9
