                                                                                     FILED
                                                                             Jun 23 2017, 9:02 am

                                                                                     CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                         Curtis T. Hill, Jr.
      Marion County Public Defender Agency                     Attorney General of Indiana
      Indianapolis, Indiana
                                                               Eric P. Babbs
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jose Arcia De La Cruz,                                   June 23, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A05-1610-CR-2417
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Rebekah F.
      Appellee-Plaintiff.                                      Pierson-Treacy, Judge

                                                               The Honorable Ronnie Huerta,
                                                               Commissioner
                                                               Trial Court Cause No.
                                                               49G19-1512-CM-45644



      Najam, Judge.


                                       Statement of the Case
[1]   Jose Arcia De La Cruz appeals the imposition of probation fees after his

      conviction, following a bench trial, for operating a vehicle while intoxicated, as
      Court of Appeals of Indiana | Opinion 49A05-1610-CR-2417 | June 23, 2017                           Page 1 of 11
      a Class C misdemeanor. He raises one issue on appeal, namely, whether the

      trial court abused its discretion when it allowed the probation department to

      assess probation fees against him. In response, the State contends that De La

      Cruz’ appeal is moot.


[2]   We disagree that this appeal is moot. On the merits, we reverse the trial court’s

      order that the probation department assess probation fees, and we remand with

      instructions to vacate the imposition of probation fees and order reimbursement

      of those fees.


                                 Facts and Procedural History
[3]   On December 23, 2015, the State charged De La Cruz with operating a vehicle

      while intoxicated endangering a person, as a Class A misdemeanor, and

      operating a vehicle with an ACE of .15 or more, as a Class A misdemeanor.

      The trial court appointed counsel for De La Cruz based on his indigency, with

      no requirement for reimbursement. On September 29, 2016, the trial court

      conducted a bench trial and found De La Cruz guilty of only the lesser-included

      offense of operating a vehicle while intoxicated, as a Class C misdemeanor.

      The trial court then sentenced De La Cruz to sixty days in jail, with fifty-six

      days suspended, and to an additional 180 days of “non-reporting” probation.

      Tr. at 37.


[4]   During sentencing, the trial court questioned De La Cruz about his finances as

      follows:

              Court: . . . What is your weekly income, sir?
      Court of Appeals of Indiana | Opinion 49A05-1610-CR-2417 | June 23, 2017   Page 2 of 11
              De La Cruz: About three or four hundred dollars, but work has
              gone down so I don’t have work right now.


              Court: How much did you earn last week?


              De La Cruz: Last week I didn’t work. There was no work.


              Court: Do you support any minor children?


              De La Cruz: In Mexico.


              Court: How many children?


              De La Cruz: Three.


      Id. at 38. The trial court then stated, “All right, then I will find you indigent. I

      won’t impose any court cost[s], no fines[,] no fees. I will also order probation[,]

      if there are any fees associated with non-reporting[,] to assess your ability to

      pay, also known as sliding scale for all of it.” Id.


[5]   In the sentencing conditions section of the sentencing order, the probation

      “amount/comment” subsection states in relevant part: “180 DAYS

      PROBATION. AET AND AAID IS COMPLETED. ADS AND CMF IS

      NOT ORDERED. SLIDING SCALE FOR PROBATION FEES.

      NONREPORTING PROBATION AFTER INITIAL SIGN UP.” Appellant’s




      Court of Appeals of Indiana | Opinion 49A05-1610-CR-2417 | June 23, 2017   Page 3 of 11
      App. Vol. II at 12-13. The order of probation,1 signed on the same date as the

      sentencing order, lists fourteen “Standard Conditions,” including “pay all

      Court-ordered fines, costs, fees[,] and restitution as directed.” Id. at 44. Under

      the “Special Conditions” section, the probation subsection states in relevant

      part: “180 DAYS PROBATION. AET AND AAID IS COMPLETED. ADS

      AND CMF IS NOT ORDERED. SLIDING SCALE FOR PROBATION

      FEES. NONREPORTING PROBATION AFTER INITIAL SIGN UP.” Id.


[6]   The “Monetary Conditions” section of the probation order includes a 4-column

      chart. Id. The first column, entitled “Monetary Obligations,” lists various fees,

      fines, and costs. Id. The second and third columns show “Misdemeanor Rate”

      and “Felony Rate,” respectively. Id. The fourth column is entitled “Ordered

      Amount,” but most of the rows in the column are blacked out. Id. The

      “Administrative Fee” and “Probation User Fee” rows are two of the rows that

      are blacked out. Id. The rows that are not blacked out are left blank.


[7]   The last page of the Chronological Case Summary (“CCS”) shows the

      following entry under the heading “FINANCIAL INFORMATION:”

              Defendant Arcia De La Cruz, Jose


              Total Charges              220.00




      1
       The State is incorrect when it asserts that the probation order was not entered on the CCS. See Appellant’s
      App. Vol. II at 11.

      Court of Appeals of Indiana | Opinion 49A05-1610-CR-2417 | June 23, 2017                        Page 4 of 11
               Total Payments and Credits                 220.00


               Balance Due as of 11/17/2016 0.00


       Id. at 11. The “Case Transactions Summary for Arcia De La Cruz, Jose” sets

       out probation administrative and user fees totaling $220 and payments of such

       fees totaling $220. Appellant’s Supp. App. Vol. II at 2.


[8]    De La Cruz filed this appeal on October 27, 2016, and, on March 30, 2017, he

       was discharged from probation.


                                      Discussion and Decision
[9]    De La Cruz challenges the imposition of probation fees. Specifically, he

       contends that the trial court abused its discretion when it allowed the probation

       department, rather than the court, to assess those fees. “Sentencing decisions

       include decisions to impose fees and costs,” and a trial court’s sentencing

       decision is reviewed for abuse of discretion. Coleman v. State, 61 N.E.3d 390,

       392 (Ind. Ct. App. 2016). “An abuse of discretion has occurred 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. The trial court must impose fees within

       statutory parameters. Berry v. State, 950 N.E.2d 798, 799 (Ind. Ct. App. 2011).


[10]   Before we address De La Cruz’ contentions, we must first address the State’s

       assertion that this appeal is moot. As we have previously explained:



       Court of Appeals of Indiana | Opinion 49A05-1610-CR-2417 | June 23, 2017   Page 5 of 11
                where the principal questions at issue cease to be of real
                controversy between the parties, the errors assigned become
                moot questions and this court will not retain jurisdiction to
                decide them. Stated differently, when we are unable to provide
                effective relief upon an issue, the issue is deemed moot, and we
                will not reverse the trial court’s determination where absolutely
                no change in the status quo will result.


       Jones v. State, 847 N.E.2d 190, 200 (Ind. Ct. App. 2006) (citations and

       quotations omitted), trans. denied.


[11]   Here, the State contends that De La Cruz’ appeal is moot because he has

       already paid all of the probation fees and completed probation. We disagree.

       De La Cruz timely appealed the trial court’s order that the probation

       department assess probation fees. The probation department subsequently

       charged him $220 in probation fees which he paid.2 On appeal he asserts that

       the probation department should never have charged him the probation fees

       because only the court had the statutory authority to do so. He seeks a remedy

       of reimbursement of those fees. As discussed below, we reverse the trial court

       order that the probation department assess probation fees and remand with

       instructions to vacate the probation fees erroneously imposed and order




       2
         Thus, while satisfaction of a judgment will generally moot an appeal on the merits of that judgment, e.g.,
       Carey v. Haddock, 877 N.E.2d 842, 844 (Ind. Ct. App. 2007), trans. denied, there is no court judgment for
       probation fees in this case, only a probation department assessment of fees. That is, De La Cruz does not
       appeal a trial court judgment of fees; rather, he appeals the trial court order allowing the probation
       department to assess such fees.

       Court of Appeals of Indiana | Opinion 49A05-1610-CR-2417 | June 23, 2017                          Page 6 of 11
       reimbursement of those fees. Because that remedy will provide De La Cruz

       with effective relief, his appeal is not moot.


[12]   The State’s assertion that Indiana Code Section 35-38-2-1.7(a) (2016) prohibits

       the remedy of reimbursement in this case is not well taken. That statute

       provides in relevant part that, “if the person is discharged from probation before

       the date the person was scheduled to be released from probation, any monthly

       probation user’s fee paid in advance by the person may not be refunded.” Id.

       However, De La Cruz was not discharged from probation before the date he

       was scheduled to be released from probation, nor is it clear from the record that

       he paid the monthly user’s fee in advance of the date it was due.3 Therefore, the

       State has not shown that Indiana Code Section 35-38-2-1.7(a) is applicable,

       and, again, De La Cruz’ appeal is not moot.


[13]   We thus turn to the merits of this appeal. De La Cruz contends that the trial

       court erred when it did not order probation fees and instead allowed the

       probation department to impose such fees on its own. We agree. Indiana Code

       Section 35-38-2-1(b) provides that, if a person is convicted of a misdemeanor,

       “the court may order the person to pay the user’s fee prescribed under subsection

       (e)” following an indigency hearing. Coleman, 61 N.E.3d at 393 (emphasis

       added). Subsection (e) states that “the court may order” the defendant to pay

       not more than certain specified maximum amounts for specified fees, including



       3
         Moreover, the statute only addresses the monthly users’ fees, not the initial users’ fee or the administrative
       fee that are also at issue in this case.

       Court of Appeals of Indiana | Opinion 49A05-1610-CR-2417 | June 23, 2017                            Page 7 of 11
       user and administrative fees, “to either the probation department or the clerk.”

       Subsection (f) states that “the probation department . . . shall collect” those fees.

       (Emphasis added.) And Indiana Code Section 35-38-2-1.7(b) states that “[a]

       probation department may petition a court” to “impose” or “increase” a

       person’s probation fees.


[14]   We recently held that those statutes give “the trial court, not the probation

       department, . . . the discretion to impose probation fees.” Burnett v. State, No.

       49A02-1610-CR-2402, -- N.E.3d --, 2017 WL 1399845, at *4 (Ind. Ct. App.

       April 19, 2017) (emphasis added). In Burnett, the trial court referred at the

       sentencing hearing to “various probation fees that are required,” and it noted in

       its sentencing and probation orders that the defendant had to follow “all

       standard conditions and fees of probation, and that probation would become

       non-reporting upon “payment of all fees.” Id. However, as in our case, the

       probation order had blacked out or left blank the spaces for the “ordered

       amount” of probation fees. Id. Thus, despite the court’s general references to

       probation fees, we held that the trial court had not imposed probation fees on

       the defendant and that it was therefore “erroneous to accept the imposition of

       these fees without a petition from the probation department and a showing that

       [the defendant’s] financial situation has changed since the sentencing hearing.”

       Id.; see also Coleman, 61 N.E.3d at 393-94 (vacating probation fees imposed by

       the probation department where the sentencing order did not list any such fees,

       and the probation order included “ordered amount” sections that were either

       blacked out or blank).


       Court of Appeals of Indiana | Opinion 49A05-1610-CR-2417 | June 23, 2017        Page 8 of 11
[15]   De La Cruz’ situation is similar to that of the defendants in Burnett and

       Coleman. Although De La Cruz’ sentencing and probation orders referred to a

       “sliding scale for probation fees” and the trial court “order[ed] probation[,] if

       there are any fees associated with non-reporting[,] to assess [De La Cruz’]

       ability to pay,” Tr. at 38, the trial court did not impose probation fees. Rather,

       as in Burnett and Coleman, the probation order included a “monetary

       obligations” section with an “ordered amount” column in which all the rows

       for specific fees were either blacked out or blank. Such a 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, 2017 WL 1399845, *4; Coleman,

       61 N.E.3d at 394.


[16]   However, the State maintains that Marion County courts presumptively impose

       probation fees pursuant to a local rule. Marion County LR49-CR00-1154

       provides that “whenever an individual is placed on probation,” certain listed

       probation fees and costs, including administrative and user fees, “shall be

       imposed under the Probation Court or Probation Order unless the sentencing

       Judge specifically modifies the Order.” The local rule does not provide what

       amounts should be imposed for each specified fee.5 Id. “Indiana trial courts




       4
           We note that this local rule was not raised or addressed in either Burnett or Coleman.
       5
         The State contends that “the trial court’s order read in conjunction with the local rule provided for
       assessing the statutory maximum amount of probation fees.” Appellee’s Br. at 20. However, nothing in the
       plain language of the local rule requires the assessment of the statutory maximum amount of probation fees;
       rather, the local rule is completely silent as to the amount of any fees.

       Court of Appeals of Indiana | Opinion 49A05-1610-CR-2417 | June 23, 2017                        Page 9 of 11
       may establish local rules for their own governance as long as the local rules do

       not conflict with the rules established by the Indiana Supreme Court or by

       statute.” Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 645–646 (Ind.

       2012); see also I.C. § 34-8-1-4 (“Other Indiana Courts may establish rules for

       their own government, supplementary to and not conflicting with the rules

       prescribed by the supreme court or any statute.”).


[17]   De La Cruz contends that LR49-CR00-115 is invalid because it conflicts with

       Indiana Code Section 35-38-2-1(b). Specifically, he maintains that, while the

       statute makes the imposition of probation fees discretionary for misdemeanors,

       the local rule makes such fees mandatory. We disagree. Although LR49-

       CR00-115 creates a presumption that probation fees are ordered, by its plain

       language it allows a trial court discretion to modify an order regarding

       probation fees in any manner it sees fit. Thus, under both the local rule and

       state statute, the trial court has discretion to order probation fees or not.


[18]   However, the local rule did not operate as an order for probation fees in this

       case because the trial court did “specifically modify” the presumption of

       probation fees when it blacked out or left blank every row for specific fees in the

       “amount ordered” column of the “monetary obligations” section of the

       probation order. Appellant’s App. at 44. The trial court did not order

       probation fees, and it abused its discretion when it authorized the probation




       Court of Appeals of Indiana | Opinion 49A05-1610-CR-2417 | June 23, 2017   Page 10 of 11
       department to do so.6 Accordingly, we reverse the order that the probation

       department assess probation fees, and we remand with instructions to vacate

       the probation fees and order reimbursement of those fees from the probation

       department.7


[19]   Reversed and remanded with instructions.


       Riley, J., and Bradford, J., concur.




       6
         Clearly, this error was not harmless, as the State contends, since it cost De La Cruz $220 he should not
       have been required to pay.
       7
         Unlike in Burnett and Coleman, the trial court here conducted an indigency hearing and determined that De
       La Cruz was indigent. Therefore, it is not necessary to remand for such a hearing. Cf. Burnett, 2017 WL
       1399845, *4 (holding trial court made insufficient indigency inquiry where it only asked if it was true that the
       defendant made less than $20,000 per year); Coleman, 61 N.E.3d at 394 (holding no indigency inquiry was
       made, and remanding for such a hearing).

       Court of Appeals of Indiana | Opinion 49A05-1610-CR-2417 | June 23, 2017                          Page 11 of 11
