                                                                                        FILED
                                                                                    Nov 30 2017, 9:34 am

                                                                                        CLERK
                                                                                    Indiana Supreme Court
                                                                                       Court of Appeals
                                                                                         and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Matthew D. Anglemeyer                                    Curtis T. Hill, Jr.
      Indianapolis, Indiana                                    Attorney General of Indiana
                                                               Justin F. Roebel
                                                               Supervising Deputy Attorney
                                                               General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Kristofer Polk,                                          November 30, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1703-CR-622
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Alicia Gooden,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               49G21-1610-F4-41626



      Pyle, Judge.


                                       Statement of the Case
[1]   Kristofer Polk (“Polk”) was convicted of three felonies. For one of those

      felonies, the trial court imposed an eight-year sentence, with six years executed

      and two years suspended, and ordered that he serve one year on probation.

      Court of Appeals of Indiana | Opinion 49A02-1703-CR-622 | November 30, 2017              Page 1 of 10
      The trial court found Polk indigent as to fines and costs, did not impose

      probation fees, and ordered the probation department to conduct a financial

      assessment. Polk contends that the trial court’s directive to the probation

      department to conduct a financial assessment was an improper delegation of the

      trial court’s authority to impose probation fees. Based on the alleged improper

      delegation of authority, he requests that we remand his case to the trial court to

      determine the amount of probation fees and to conduct an indigency hearing

      regarding his ability to pay.


[2]   We agree that remand to the trial court is necessary but not for the reason

      suggested by Polk. Because the trial court placed Polk on probation for a felony

      conviction, the trial court was statutorily required to impose probation fees.

      Here, however, the trial court did not impose probation fees. We also agree

      that the trial court will be required to hold an indigency hearing. Accordingly,

      we remand with instructions for the trial court to impose the statutorily-

      mandated probation fees for Polk’s felony conviction and to hold an indigency

      hearing, at the latest, upon the completion of Polk’s sentence.


[3]   We remand.


                                                      Issue
              Whether the trial court abused its discretion when it did not
              impose probation fees and ordered the probation department to
              conduct a financial assessment.




      Court of Appeals of Indiana | Opinion 49A02-1703-CR-622 | November 30, 2017   Page 2 of 10
                                                          Facts
[4]   In January 2017, following a jury trial, Polk was found guilty of Level 4 felony

      unlawful possession of a firearm by a serious violent felon, Level 5 felony

      possession of cocaine, and Level 6 felony resisting law enforcement.1

      Thereafter, the trial court imposed an eight (8) year sentence for Polk’s Level 4

      felony conviction, with four (4) years executed in the Indiana Department of

      Correction, two (2) years executed on Community Corrections, two (2) years

      suspended, and one (1) year of probation; a three (3) year sentence for his Level

      5 felony conviction to be served concurrently to the eight-year sentence; and a

      one (1) year sentence for his Level 6 felony conviction to be served

      consecutively to his eight-year sentence. Thus, the trial court imposed an

      aggregate nine-year sentence. When imposing this sentence, the trial court

      found Polk to be “indigent as to fines and costs[,] . . . ordered a sliding scale for

      Community Corrections[,] and order[ed] Probation to do a financial

      assessment.” (Tr. Vol. 3 at 104).2


[5]   During the sentencing hearing, the trial court made no comment about the

      amount of probation fees that it was going to impose. Additionally, in its




      1
        Polk was found not guilty of Level 5 felony battery resulting in injury to a public safety officer, and the State
      dismissed a Class A misdemeanor criminal trespass charge during trial. Polk stipulated to having a prior
      felony in a bifurcated proceeding for the serious violent felon charge, and the trial court found him guilty of
      that charge.
      2
        Other parts of the record also reflect the trial court’s directive to the probation department to conduct a
      financial assessment. For example, the trial court’s written sentencing order, the chronological case
      summary (“CCS”), and the trial court’s Community Corrections order all indicate that “Probation shall
      conduct financial assessment.” (App. Vol. 2 at 7, 14, 119).

      Court of Appeals of Indiana | Opinion 49A02-1703-CR-622 | November 30, 2017                           Page 3 of 10
written sentencing order, the trial court did not impose probation fees. Instead,

the sentencing order, under the “Amount/Comment” section of “Part IV

Sentencing Conditions[,]” provided, in relevant part, that: Polk would be

subject to the “standard terms and condition[s]” of probation; “Probation shall

conduct financial assessment[;]” and the trial court was “assessing Court Costs

and Fees in the amount of $0.00[.]” (App. Vol. 2 at 7). The trial court’s

probation order was also silent on the specific amount of probation fees to be

imposed. The probation order contained a “Standard Condition” that Polk

would be required to “pay all Court-ordered fines, costs, fees and restitution as

directed.” (App. Vol. 2 at 126). Additionally, the order contained the

following information regarding “Special Conditions” and “Monetary

Conditions” of probation:




Court of Appeals of Indiana | Opinion 49A02-1703-CR-622 | November 30, 2017   Page 4 of 10
      (App. Vol. 2 at 126) (blacked-out sections and blanks spaces in original).3 No

      probation fees have been imposed in this case. Polk now appeals.


                                                      Decision
[6]   Polk challenges the trial court’s decision regarding probation fees. “Sentencing

      decisions include decisions to impose fees and costs[,]” and “we review a trial

      court’s sentencing decision for an abuse of discretion.” 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. “‘If the fees imposed by the trial court

      fall within the parameters provided by statute, we will not find an abuse of

      discretion.’” Id. (quoting Berry v. State, 950 N.E.2d 798, 799 (Ind. Ct. App.

      2011)).


[7]   The statute governing probation, INDIANA CODE § 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, if the person was convicted of a felony and is

      placed on probation, the court shall order the person to pay to the probation

      department the user’s fee prescribed under subsection (d).” I.C. § 35-38-2-1(b)




      3
          We note that the probation order is a form order for Marion County.


      Court of Appeals of Indiana | Opinion 49A02-1703-CR-622 | November 30, 2017   Page 5 of 10
      (emphasis added).4 Subsection (d) sets forth a list of fees, including the

      minimum and maximum amounts for an initial probation user’s fee and a

      monthly probation user’s fee, that the trial “court shall order each person

      convicted of a felony to pay[.]” I.C. § 35-38-2-1(d) (emphasis added).5


[8]   “[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). Instead, “‘the probation department . . . shall collect’” probation fees. De

      La Cruz v. State, 80 N.E.3d 210, 214 (Ind. Ct. App. 2017) (quoting I.C. § 35-38-

      2-1(f)) (emphasis added in De La Cruz). A probation department may, however,

      petition a trial court to “impose” or “increase” a person’s probation user’s fee



      4
        In contrast, when the conviction at issue is a misdemeanor, the trial court has discretion to order probation
      fees. See I.C. § 35-38-2-1(b) (providing that “[i]f the person was convicted of a misdemeanor, the court may
      order the person to pay the user’s fee prescribed under subsection (e)”) (emphasis added).
      5
          Subsection (d) of INDIANA CODE § 35-38-2-1 provides as follows:
               In addition to any other conditions of probation, the court shall order each person convicted of a
               felony to pay:
                 (1) not less than twenty-five dollars ($25) nor more than one hundred dollars ($100) as an
                 initial probation user’s fee;
                 (2) a monthly probation user’s fee of not less than fifteen dollars ($15) nor more than thirty
                 dollars ($30) for each month that the person remains on probation;
                 (3) the costs of the laboratory test or series of tests to detect and confirm the presence of the
                 human immunodeficiency virus (HIV) antigen or antibodies to the human
                 immunodeficiency virus (HIV) if such tests are required by the court under section 2.3 of
                 this chapter;
                 (4) an alcohol abuse deterrent fee and a medical fee set by the court under IC 9-30-9-8, if
                 the court has referred the defendant to an alcohol abuse deterrent program; and
                 (5) an administrative fee of one hundred dollars ($100);
               to either the probation department or the clerk.
      (Emphasis added).




      Court of Appeals of Indiana | Opinion 49A02-1703-CR-622 | November 30, 2017                              Page 6 of 10
       “if the financial ability of the person to pay a probation user’s fee changes while

       the person is on probation.” I.C. § 35-38-2-1.7(b).


[9]    Polk argues that the trial court abused its discretion by ordering the probation

       department to conduct a financial assessment. Polk asserts that the trial court’s

       directive to the probation department to conduct a financial assessment was an

       improper delegation of the trial court’s authority to impose probation fees. Polk

       contends that his case is almost identical to De La Cruz, where we vacated

       probation fees that were imposed by the probation department, and he requests

       that we remand this case to the trial court to determine the amount of probation

       fees and to hold an indigency hearing to determine his ability to pay.


[10]   The State argues that Polk has failed to show that the trial court improperly

       delegated its authority to impose probation fees to the probation department

       because the record on appeal reveals that no probation fees have been imposed.

       The State contends that “it was prudent for the trial court to not order probation

       fees during sentencing and instead direct the probation department to later

       conduct a financial assessment” because Polk’s “ability to pay probation fees

       will not be fully known until he completes his period of incarceration and then

       starts probation[.]” (State’s Br. 9). The State suggests that, at that time, the

       probation department can use the financial assessment and petition for the trial

       court to impose probation fees.


[11]   Our caselaw has made it clear that it is “the trial court, not the probation

       department, that has the discretion to impose probation fees.” Burnett, 74


       Court of Appeals of Indiana | Opinion 49A02-1703-CR-622 | November 30, 2017   Page 7 of 10
       N.E.3d at 1227. Indeed, we have recently remanded several probation fee cases

       in which the trial court’s sentencing order and probation order had not imposed

       probation fees but where the probation department had imposed probation fees

       after sentencing. See, e.g., De La Cruz, 80 N.E.3d at 214 (vacating probation fees

       because the 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);

       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). Those cases all involved misdemeanor convictions,

       statutory discretion for the trial court to impose probation fees, and an actual

       imposition of probation fees that was improperly done by the probation

       department instead of the trial court.6


[12]   Here, it is clear, and the parties do not dispute, that the trial court did not

       impose probation fees and that it ordered the probation department to conduct

       a financial assessment. While the parties direct the focus of their arguments on

       the meaning behind the trial court’s directive for the probation department to

       conduct a financial assessment, we find that the more appropriate focus in this




       6
        We note that De La Cruz, Burnett, and Coleman originated from Marion County and involved the same
       probation order form.

       Court of Appeals of Indiana | Opinion 49A02-1703-CR-622 | November 30, 2017                 Page 8 of 10
       case should be directed to the fact that the trial court placed Polk on probation

       for a felony conviction, which required the trial court to impose probation fees.


[13]   Here, Polk’s conviction was a felony conviction; therefore, the trial court was

       statutorily mandated to impose probation fees. See I.C. § 35-38-2-1(b)

       (providing that “if the person was convicted of a felony and is placed on

       probation, the court shall order the person to pay to the probation department

       the [probation] user’s fee prescribed under subsection (d)”); I.C. § 35-38-2-1(d)

       (providing that the trial “court shall order each person convicted of a felony to

       pay” fees, including an initial probation user’s fee, a monthly probation user’s

       fee, and an administrative fee). Additionally, the record on appeal reveals that

       there has been no imposition of probation fees, either by the trial court as

       required by statute or incorrectly imposed by the probation department.

       Because the trial court abused its discretion by failing to impose the statutorily-

       mandated probation fees for Polk’s felony conviction, we remand to the trial

       court to impose probation fees.


[14]   On remand, the trial court will also be required to hold an indigency hearing.

       See Johnson v. State, 27 N.E.3d 793, 795 (Ind. Ct. App. 2015) (explaining that a

       trial court is required to hold an indigency hearing for probation fees); see also

       I.C. § 33-37-2-3 (providing that a court must conduct an indigency hearing

       when imposing costs); I.C. § 35-38-1-18 (providing that a court must conduct an

       indigency hearing when imposing a fine). However, there is no requirement as

       to when the indigency hearing must be held. See Johnson, 27 N.E.3d at 795. In

       regard to probation fees, our Court has explained that “[a] trial court acts

       Court of Appeals of Indiana | Opinion 49A02-1703-CR-622 | November 30, 2017   Page 9 of 10
       within its authority when it chooses to wait and see if a defendant can pay

       probation fees before it finds the defendant indigent.” Id. (citing I.C. ch. 35-38-

       2). See also Whedon v. State, 765 N.E.2d 1276, 1279 (Ind. 2002) (explaining that

       “a defendant’s financial resources are more appropriately determined not at the

       time of initial sentencing but at the conclusion of incarceration, thus allowing

       consideration of whether the defendant may have accumulated assets through

       inheritance or otherwise”). “At the latest, an indigency hearing for probation

       fees should be held at the time a defendant completes his sentence.” Johnson, 27

       N.E.3d at 795. Therefore, because the trial court will be imposing probation

       fees on remand, it will need to hold an indigency hearing, at the latest, at the

       time that Polk completes his sentence, which in this instance includes executed

       time at the Indiana Department of Correction and on Community Corrections.7


[15]   Remanded.


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




       7
        We note that indigency hearing would, alternatively, have to be held before the trial court could revoke
       probation revocation premised on a failure to pay fees. See Johnson, 27 N.E.3d at 795 n.1.

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