MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                              Jul 06 2018, 9:54 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth A. Johnson                                          Curtis T. Hill, Jr.
Megan E. Shipley                                         Attorney General of Indiana
Public Defender
Indianapolis, Indiana                                    Laura R. Anderson
                                                         James T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Travis Jovan Allen, Jr.                                  July 6, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1710-CR-2345
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,
Appellee-Plaintiff.                                      The Honorable Hugh Patrick
                                                         Murphy, Magistrate
                                                         Trial Court Cause No.
                                                         49G16-1706-F6-20572



Barnes, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2345 | July 6, 2018             Page 1 of 5
                                                 Case Summary
[1]   Travis Allen, Jr. (“Allen”) appeals the trial court’s assessment of a supplemental

      public defender fee. We reverse and remand.


                                                         Issue
[2]   The sole issue before us is whether the trial court erred in assessing a $100

      supplemental public defender fee to Allen.


                                                         Facts
[3]   On August 5, 2016, a trial court issued a no-contact order barring Allen from

      contacting R.H. The trial court subsequently provided oral and written notice

      of its no-contact order to Allen. On June 2, 2017, Allen went to R.H.’s

      residence and was arrested. On June 2, 2017, the State charged him with Level

      6 felony residential entry and Class A misdemeanor invasion of privacy. 1 Allen

      appeared for an initial hearing on June 5, 2017, during which the trial court

      appointed “indigent counsel”; the corresponding chronological case summary

      entry states, “Indigent Counsel Appointed at County Expense.” App. Vol. II p.

      10, 51. The order of appointment of public defender states that Allen’s petition

      for appointment of counsel is “GRANTED; as the court finds that the

      defendant is currently indigent” and that “[n]o reimbursement [is] required.”

      Id. at 54.




      1
          The State dismissed the Level 6 felony charge on August 29, 2017.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2345 | July 6, 2018   Page 2 of 5
[4]   Allen was tried by a jury on August 30, 2017, and was found guilty of Class A

      misdemeanor invasion of privacy. In sentencing him, on September 18, 2017,

      the trial court imposed no jail time or fine, but ordered him to complete eighty

      hours of community service and assessed court costs of $185. The trial court

      referred to the $185 in court costs in its sentencing remarks, but did not mention

      a supplemental public defender fee. On its sentencing order form, however, the

      trial court assessed both court costs of $185 and a $100 supplemental public

      defender fee, for a total of $285 in “[m]onetary [o]bligations.” Id. at 19. The

      trial court did not conduct a hearing as to Allen’s ability to pay fees and costs.

      He now appeals the assessment of the supplemental public defender fee.2


                                                    Analysis
[5]   Allen argues that the trial court erred in assessing the supplemental public

      defender fee.


              There are three statutes that address when a defendant must
              reimburse the county for counsel provided to him at public
              expense—all three of which require the funds to be deposited in
              the county’s supplemental public defender services fund. A trial
              court can order reimbursement for costs of representation under




      2
        In his appellate brief, Allen also argues that the trial court erred in ordering him to complete community
      service work. In his verified notice of post-judgment change in circumstances, filed on May 11, 2018, Allen
      advises that, on May 7, 2018, the trial court conducted a compliance hearing wherein it found him to be in
      compliance and closed the case. As Allen has completed his sentence, his argument as to community service
      is moot. Lee v. State, 816 N.E.2d 35, 40 (Ind. 2004) (holding that once sentence is served, the issue of its
      validity is rendered moot).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2345 | July 6, 2018              Page 3 of 5
        any of the three statutes or combination thereof. The first statute,
        Indiana Code § 35-33-7-6, provides in relevant part:


                 If the court finds that the person is able to pay part of the cost of
                 representation by the assigned counsel, the court shall
                 order the person to pay the following:


                 (1) For a felony action, a fee of one hundred dollars
                 ($100).


        Ind. Code § 35-33-7-6(c). Although this statute contemplates that
        trial courts will order the defendant to pay the $100 fee at the
        initial hearing, see I.C. § 35-33-7-6(a), the statute does not
        prohibit trial courts from imposing it at other stages of the
        proceedings.


        The remaining two statutes, Indiana Code §§ 33-9-11.5-6 and [33-
        37-2-3], allow trial courts to impose representation costs against a
        defendant in excess of $100. Specifically, Indiana Code § 33-9-
        11.5-6(a) provides that if “the court makes a finding of ability to pay
        the costs of representation,” the defendant shall pay “[r]easonable
        attorney’s fees if an attorney has been appointed for the person
        by the court.” These fees, which cannot exceed the cost of
        defense services rendered to the person, can be imposed “at any
        stage of a prosecution.” Ind. Code § 33-9-11.5-6(a), (d).


        Finally, Indiana Code § [33-37-2-3(a), -(e)] provide[ ] that “[w]hen
        the court imposes costs, it shall conduct a hearing to determine whether
        the convicted person is indigent.” If, after such a hearing, “the court
        determines that a convicted person is able to pay part of the costs of
        representation, the court shall order the person to pay an amount
        of not more than the cost of the defense services rendered on
        behalf of the person.” Ind. Code § [33-37-2-3(e)]. This fee must
        be assessed when the court imposes costs. I.C. § [33-37-2-3(a)].


Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2345 | July 6, 2018      Page 4 of 5
      May v. State, 810 N.E.2d 741, 745-46 (Ind. Ct. App. 2004) (emphasis added).


[6]   The foregoing statutes require the trial court to conduct a hearing and to make a

      finding as to the defendant’s ability to pay before imposing public defense costs.

      No such hearing was conducted here; nor was such a finding reached. In its

      brief, the State concedes, “[R]emand appears necessary in order to clarify the

      inconsistency between the finding of indigency, which states that no

      reimbursement is required, and the contradictory order requiring that public

      defender costs be paid.” Appellee’s Br. p. 12. Accordingly, and given the

      inconsistencies between the trial court’s record, its sentencing remarks, and its

      sentencing order, we reverse the assessment of the supplemental public defender

      fee and remand to the trial court with instructions to conduct a hearing to

      determine whether Allen is able to pay part of the costs of his representation.


                                                Conclusion
[7]   The trial court erred in assessing a supplemental public defender fee to Allen

      without conducting a hearing to determine his ability to pay part of the costs of

      his representation. We reverse and remand for a hearing consistent with this

      opinion.


[8]   Reversed and remanded.


[9]   Vaidik, C.J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2345 | July 6, 2018   Page 5 of 5
