 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:
VICTORIA L. BAILEY                                 GREGORY F. ZOELLER
Marion County Public Defender Agency               Attorney General of Indiana
Indianapolis, Indiana
                                                   RICHARD C. WEBSTER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana
                                                                                 FILED
                                                                            Feb 13 2013, 9:27 am
                              IN THE
                    COURT OF APPEALS OF INDIANA                                     CLERK
                                                                                  of the supreme court,
                                                                                  court of appeals and
                                                                                         tax court




JULIA PATTERSON,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
           vs.                                     )        No. 49A02-1204-CR-300
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )

                     APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Rebekah Pierson-Treacy, Judge
                             Cause No. 49F19-1108-CM-59355


                                        February 13, 2013
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       Julia Patterson (“Patterson”) was convicted in Marion Superior Court of Class A

misdemeanor operating a vehicle while intoxicated, and the trial court ordered Patterson

to pay a $50 supplemental public defender fee. Patterson appeals and argues that the trial

court abused its discretion when it ordered her to pay the public defender fee.

       Reversed and remanded for proceedings consistent with this opinion.

                             Facts and Procedural History

       On August 21, 2011, Patterson was charged with Class A misdemeanor operating

a vehicle while intoxicated and Class C misdemeanor operating a vehicle while

intoxicated. The State later amended the charging information to include a third count of

Class C misdemeanor operating while intoxicated.

       Due to a mistake in Patterson’s reported income, a public defender was not

initially appointed in this case. At a pre-trial conference on October 14, 2011, Patterson

informed the court that a mistake had been made and that she earned $350 per week.

Patterson stated that she did not have the funds to pay an attorney because she provides

the sole support for her three-year-old son. The trial court agreed and appointed a public

defender for Patterson.

        After a bench trial held on March 19, 2012, the trial court found Patterson guilty

of Class A misdemeanor operating a vehicle while intoxicated and dismissed the two C

misdemeanor charges. Patterson was sentenced to home detention and probation. In its

sentencing order, the trial court imposed numerous costs and fees, including the $50

supplemental public defender fee at issue in this appeal.



                                             2
                                   Standard of Review

       “‘[S]entencing decisions, including decisions to impose restitution, fines, costs, or

fees, are generally left to the trial court’s discretion.’” Berry v. State, 950 N.E.2d 798,

799 (Ind. Ct. App. 2011) (quoting Kimbrough v. State, 911 N.E.2d 621, 636 (Ind. Ct.

App. 2009)). A trial court does not abuse its discretion if the fees imposed by the trial

court fall within the parameters provided by statute. Id. (citing Mathis v. State, 776

N.E.2d 1283, 1289 (Ind. Ct. App. 2002), trans. denied. “‘A defendant’s indigency does

not shield him from all costs or fees related to his conviction.’” Id. (citing Banks v. State,

847 N.E.2d 1050, 1051 (Ind. Ct. App. 2006), trans. denied).

                                 Discussion and Decision

       Three, separate Indiana statutes authorize trial courts to impose a public defender

fee, if the requirements within those statutes are met. However, Patterson argues that the

imposed $50 public defender fee was not authorized by any of those statues under the

facts of this case.

       First, we consider whether the trial court properly imposed the public defender fee

pursuant to Indiana Code section 33-40-3-6, which provides in pertinent part:

      If at any stage of a prosecution for a felony or a misdemeanor the court
      makes a finding of ability to pay the costs of representation under section 7
      of this chapter, the court shall require payment by the person . . . , of the
      following costs in addition to other costs assessed against the person:
             (1) Reasonable attorney’s fees if an attorney has been appointed for
             the person by the court.
             (2) Costs incurred by the county as a result of court appointed legal
             services rendered to the person.




                                              3
This section explicitly requires the court to consider the factors enumerated in section 33-

40-3-7 before the court may order the defendant to pay public defender fees. In this case,

it is clear on the record before us that the trial court did not consider the section 33-40-3-

7 factors to determine whether Patterson had the ability to pay the fee. Because the trial

court failed to make the statutorily required finding, the trial court could not impose the

$50 public defender fee pursuant to Indiana Code section 33-40-3-6.

       The second statute pursuant to which trial courts may impose a public defender fee

is Indiana Code section 33-37-2-3. This statute grants the trial court significant flexibility

in imposing costs and provides as follows:

       (a) Except as provided in subsection (b), when the court imposes costs, it
       shall conduct a hearing to determine whether the convicted person is
       indigent. If the person is not indigent, the court shall order the person to
       pay:
               (1) the entire amount of the costs at the time sentence is pronounced;
               (2) the entire amount of the costs at some later date; or
               (3) specified parts of the costs at designated intervals.
       (b) A court may impose costs and suspend payment of all or part of the
       costs until the convicted person has completed all or part of the sentence. If
       the court suspends payment of the costs, the court shall conduct a hearing at
       the time the costs are due to determine whether the convicted person is
       indigent. If the convicted person is not indigent, the court shall order the
       convicted person to pay the costs:
               (1) at the time the costs are due; or
               (2) in a manner set forth in subsection (a)(2) through (a)(3).
                                              ***
       (e) If, after a hearing under subsection (a) or (b), 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. The clerk shall deposit
       the amount paid by a convicted person under this subsection in the county’s
       supplemental public defender services fund established under IC 33-40-3-1.

(Emphasis added).


                                              4
        The State does not argue and we cannot conclude that the court was permitted to

impose the public defender fee in this case under subsection (a) of the statute because the

trial court did not hold an indigency hearing. And the statute applies only to defendants

that the court finds not to be indigent. Banks v. State, 847 N.E.2d 1050, 1052 n.3 (Ind. Ct.

App. 2006) (citing Mathis v. State, 776 N.E.2d 1283, 1288 (Ind. Ct. App. 2002), trans.

denied).

        In addition, subsection (b) does not apply in this case because the court did not

suspend all or part of the costs imposed on Patterson, who was sentenced to home

detention and probation. However, the State argues that our court should assume that the

public defender fee was imposed as a condition of probation (and therefore the court was

not required to hold a hearing on her current ability to pay)1 simply because Patterson

was told to make payment through the probation department. We cannot agree, as there

is nothing in the record that would lead to a reasonable conclusion that Patterson was

ordered to pay the public defender fee as a condition of probation.

        The third statute a trial court may utilize to impose the public defender fee is

Indiana Code section 35-33-7-6. That statute provides that “[p]rior to the completion of

the initial hearing, the judicial officer shall determine whether a person who requests

1
  In Rich v. State, 890 N.E.2d 44, 48 (Ind. Ct. App. 2008), trans. denied and Kimbrough v. State, 911
N.E.2d 621, 638 (Ind. Ct. App. 2009), the defendants were ordered to pay costs pursuant to Indiana Code
section 33-37-2-3(b) as a condition of probation. Both defendants appealed and argued that the court had
not determined their ability to pay. In both cases, our court held that when the defendant is not required
to pay costs until he or she has completed the executed portion of his or her sentence, it is not necessary
for the trial court to hold a hearing to determine his or her current ability to pay. See also Berry v. State,
950 N.E.2d 758, 801 (Ind. Ct. App. 2011) (“Rich and Kimbrough mean that if the trial court suspends
payment of costs until the executed portion of the sentence has been served, then it must hold an
indigency hearing at the time the costs are due. They do not stand for the proposition that a trial court is
required to defer assessment of costs until after release from incarceration.”).
                                                      5
assigned counsel is indigent.” Next, “[i]f the person is found to be indigent, the judicial

officer shall assign counsel to the person” and “[i]f 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” a fee of $50 for a misdemeanor action.2 Although the statute contemplates

that the trial court will order the defendant to pay the fee at the initial hearing, it does not

prohibit trial courts from imposing the fee at other stages of the proceedings. See

Jackson v. State, 968 N.E.2d 328, 333 (Ind. Ct. App. 2012) (citing Davis v. State, 843

N.E.2d 65, 68 (Ind. Ct. App. 2006)). Because the trial court appointed trial and appellate

counsel for Patterson and ordered her to pay a fee of $50 for her misdemeanor conviction,

it is reasonable to assume that the trial court imposed the public defender fee pursuant to

Indiana Code section 35-33-7-6.

        However, this statute explicitly requires the trial court to make a finding

concerning Patterson’s ability to pay. See Berry, 950 N.E.2d at 800; Banks, 847 N.E.2d

at 1052. Because the trial court failed to make the required finding in this case, we

reverse and remand this case to the trial court with instructions to determine whether

Patterson has the ability to pay the $50 public defender fee. See Berry, 950 N.E.2d at

800.

        Reversed and remanded for proceedings consistent with this opinion.

KIRSCH, J., and CRONE, J., concur.




2
 Indiana Code section 35-33-7-6 also provides that “[t]he clerk of the court shall deposit fees collected
under this subsection in the county’s supplemental public defender services fund established under IC 33-
40-3-1.”
                                                   6
