                                                                  FILED
                                                             Feb 24 2017, 10:06 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jessica A. Wegg                                            Curtis T. Hill, Jr.
Jonathan C. Little                                         Attorney General of Indiana
Indianapolis, Indiana                                      George P. Sherman
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Emmett Reece Sandoval,                                     February 24, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           21A01-1609-CR-2027
        v.                                                 Appeal from the Fayette Circuit
                                                           Court
State of Indiana,                                          The Honorable Beth A. Butsch,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           21C01-1511-F5-910



Baker, Judge.




Court of Appeals of Indiana | Opinion 21A01-1609-CR-2027 | February 24, 2017             Page 1 of 3
[1]   On November 13, 2015, the State charged Sandoval with Level 5 felony sexual

      misconduct with a minor. Bail was set at $20,000 cash or surety, with 10% to

      the clerk. On December 19, 2015, Sandoval’s grandfather posted the $2,000

      bond on Sandoval’s behalf. On May 27, 2016, Sandoval pleaded guilty as

      charged. At the August 9, 2016, sentencing hearing, the trial court sentenced

      Sandoval to four years imprisonment with two years suspended to probation.

      The trial court also ordered that court costs in the amount of $183 and an initial

      probation user fee in the amount of $50 be deducted from the bond, leaving a

      balance of $1,717. The trial court ordered that the balance of the bond was to

      be held in trust to be applied towards possible future appellate public defender

      fees.1 Sandoval now appeals.


[2]   The State asks that we find that Sandoval has invited any error and/or waived

      this argument. We decline to resolve this appeal by way of invited error—

      because we do not believe that the transcript clearly indicates that Sandoval

      assented to this use of his bond—or by way of waiver—because a claim that a

      trial court violated its statutory authority in imposing a sentence may be raised

      for the first time on appeal. Edsall v. State, 983 N.E.2d 200, 208 (Ind. Ct. App.

      2013).


[3]   The State also argues that this appeal is moot because Sandoval has not

      retained an appellate public defender to pursue this appeal. Initially, we note



      1
       Sandoval was represented by private counsel, not by a public defender, during the criminal proceedings
      below.

      Court of Appeals of Indiana | Opinion 21A01-1609-CR-2027 | February 24, 2017                    Page 2 of 3
      that the trial court was aware that Sandoval did not intend to use a public

      defender on appeal but has still not released the bond money to Sandoval.

      Reply Br. p. 7. Furthermore, we find that this issue is a matter of great

      importance that is likely to recur, so we choose to address it. Horseman v. Keller,

      841 N.E.2d 164, 170 (Ind. 2006).


[4]   It has been expressly held by this Court in the past that a trial court may not

      hold a portion of a criminal defendant’s bond money in trust to be used toward

      public defender fees not yet incurred. Hendrix v. State, 615 N.E.2d 483, 485

      (Ind. Ct. App. 1993). Indeed, the statutes governing the ways in which posted

      bonds may be managed do not anticipate the occurrence of this practice. Ind.

      Code §§ 35-33-8-3.2(a)(2), -7. It was error for the trial court to hold the balance

      of Sandoval’s bond in trust for future potential public defender fees not yet

      incurred.


[5]   The judgment of the trial court is reversed and remanded with instructions to

      the clerk of the Fayette County Court to return the balance of Sandoval’s bond

      immediately.


      Mathias, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Opinion 21A01-1609-CR-2027 | February 24, 2017   Page 3 of 3
