MEMORANDUM DECISION                                                              FILED
                                                                            08/22/2017, 10:46 am
Pursuant to Ind. Appellate Rule 65(D),                                           CLERK
this Memorandum Decision shall not be                                        Indiana Supreme Court
                                                                                Court of Appeals
regarded as precedent or cited before any                                         and Tax Court

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
Suzy St. John                                            Curtis T. Hill, Jr.
Marion County Public Defender –                          Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                    Marjorie Lawyer-Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brionna McCloud,                                         August 22, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1606-CR-1194
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Barbara L. Cook
Appellee-Plaintiff.                                      Crawford, Judge
                                                         Trial Court Cause Nos.
                                                         49G09-1512-F6-43342, 49G09-
                                                         1509-F6-31290, 49G09-1510-F6-
                                                         35534



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017           Page 1 of 19
                                          Case Summary
[1]   In January of 2016, Appellant-Defendant Brionna McCloud pled guilty to Class

      A misdemeanor battery and Class B misdemeanor leaving the scene of an

      accident. In pleading guilty, McCloud admitted that she left the scene after the

      vehicle which she was driving was involved in a collision with an unattended

      vehicle. As part of her plea agreement, McCloud agreed to pay restitution to

      Sara1 Wilson, the owner of the other vehicle involved in the accident. McCloud

      was thereafter placed on probation and ordered to pay $3772.47 in restitution.

      She was also ordered to pay certain costs, fees, and fines.


[2]   On appeal, McCloud contends that the trial court abused its discretion in (1)

      ordering her to pay restitution to Wilson, (2) imposing certain fees, and (3)

      failing to provide her with adequate notice of the terms of her probation.

      Concluding that the trial court did not abuse its discretion in ordering McCloud

      to pay restitution or in imposing the challenged fees, we affirm. However, we

      remand the matter to the trial court with the instruction that the court provide

      McCloud with a written copy of the terms of her probation if it has not yet done

      so.



                            Facts and Procedural History


      1
        Ms. Wilson’s name is spelled both “Sara” and “Sarah” in the record. For purposes of this memorandum
      decision, we will spell Ms. Wilson’s name “Sara.” We apologize to Ms. Wilson if this is an incorrect
      spelling.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017     Page 2 of 19
[3]   At some point in or around September of 2015, Appellee-Plaintiff the State of

      Indiana (“the State”) charged McCloud under cause number 49G09-1509-F6-

      31290 (“Cause No. F6-31290”) with Level 6 felony resisting law enforcement.2

      At some point in or around October of 2015, the State charged McCloud under

      cause number 49G09-1510-F6-35534 (“Cause No. F6-35534”) with Level 6

      felony theft.3


[4]   On September 23, 2015, McCloud was driving a vehicle in a Kroger parking lot

      when she struck an unattended vehicle owned by Wilson. McCloud did not

      stop at the scene of the accident after striking Wilson’s vehicle. Instead,

      McCloud drove to the other side of the parking lot, parked, and went into the

      store to steal liquor. In relation to these acts, on December 8, 2015, the State

      charged McCloud under cause number 49G09-1512-F6-43342 (“Cause No. F6-

      43342”) with two counts of Level 6 felony theft, one count of Class A

      misdemeanor Battery, and one count of Class B misdemeanor leaving the scene

      of an accident.


[5]   On January 11, 2016, McCloud entered into a plea agreement, under the terms

      of which she agreed to plead guilty to the following charges: (1) under Cause

      No. F6-31290 – Level 6 felony resisting law enforcement under, (2) under




      2
       This count alleged that on September 2, 2015, McCloud knowingly fled from Indianapolis Metropolitan
      Police Officer John Hartcher, after Officer Hartcher identified himself and ordered McCloud to stop.
      3
        This count alleged that on August 18, 2015, McCloud knowingly or intentionally exerted unauthorized
      control over property which belonged to Kroger, i.e., meat and bottles of alcohol.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017       Page 3 of 19
      Cause No. F6-35534 – Level 6 felony theft, and (3) under Cause No. F6-43342

      – Class A misdemeanor battery and Class B misdemeanor leaving the scene of

      an accident. According to the terms of McCloud’s plea, McCloud agreed to

      pay restitution to Wilson and the State agreed to dismiss the remaining charges

      under Cause No. F6-43342. The trial court accepted McCloud’s guilty plea and

      sentenced her pursuant to the term of the plea agreement as follows: (1) with

      respect to Cause No. F6-35534 – 365 days of incarceration in the Marion

      County Jail, (2) with respect to Cause No. F6-31290 – 365 days in the Marion

      County Community Corrections, and (3) with respect to Cause No. F6-43342 –

      365 days of supervised probation.4 The trial court also ordered McCloud to pay

      restitution to Wilson in an amount to be determined at a later date.


[6]   On February 1, 2016, the trial court conducted a restitution hearing. The trial

      court took the matter under advisement and later ordered McCloud to pay

      $3772.47 in restitution to Wilson. The trial court also ordered McCloud to pay

      a $100.00 public defender fee and $340.00 in probation fees. This appeal

      follows.



                                  Discussion and Decision




      4
        Pursuant to the terms of her plea agreement, the 365 days in community corrections was to run consecutive
      to the term that was to be executed in the Marion County Jail and the 365 days on supervised probation was
      to run consecutive to the term that was to be served in community corrections. McCloud does not challenge
      her sentences relating to Cause Nos. F6-31290 or 35534 in the instant appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017         Page 4 of 19
[7]   McCloud challenges both the restitution order and the imposition of certain fees

      on appeal. We will discuss each in turn.


                                             I. Restitution
[8]   McCloud contends that the trial court abused its discretion in ordering her to

      pay $3772.47 in restitution to Wilson. Specifically, McCloud argues that (A)

      restitution was inappropriate because there was no evidence that the damage to

      Wilson’s vehicle occurred as a direct and immediate result of her criminal act,

      (B) the trial court abused its discretion by failing to consider her ability to pay

      the ordered restitution, and (C) the amount of restitution ordered by the trial

      court was excessive. We disagree.


[9]   The Indiana Supreme Court has held that “[t]he principal purpose of restitution

      is to vindicate the rights of society and to impress upon the defendant the

      magnitude of the loss the crime has caused.” Pearson v. State, 883 N.E.2d 770,

      772 (Ind. 2008) (citing Haltom v. State, 832 N.E.2d 969, 971 (Ind. 2005)).

      “Restitution also serves to compensate the offender’s victim.” Id. (citing

      Haltom, 832 N.E.2d at 971). In this vein, the Indiana General Assembly has

      established that “a trial court may order restitution to a victim of a crime.” Blixt

      v. State, 872 N.E.2d 149, 153 (Ind. Ct. App. 2007) (citing Ind. Code § 35-50-5-

      3). “A restitution order will be reviewed for an abuse of discretion.” Id. (citing

      Crawford v. State, 770 N.E.2d 775, 781 (Ind. 2002)). “An abuse of discretion has

      occurred only if no evidence or reasonable inferences therefrom support the trial

      court’s decision.” Little v. State, 839 N.E.2d 807, 809 (Ind. Ct. App. 2005).


      Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017   Page 5 of 19
                     A. Appropriateness of Award of Restitution
[10]   McCloud argues that the trial court abused its discretion in ordering restitution

       because there is no evidence that the damage to Wilson’s vehicle occurred as a

       direct and immediate result of her criminal act. In support, McCloud relies on

       M.C. v. State, 817 N.E.2d 606 (Ind. Ct. App. 2004). In M.C., the appellant was

       adjudicated to be delinquent for committing what would have been Class A

       misdemeanor leaving the scene of the accident causing serious bodily injury

       and Class B misdemeanor leaving the scene of the accident causing property

       damage, if committed by an adult. 817 N.E.2d at 608. The trial court ordered

       M.C. to pay restitution to the other individuals involved in the accident. Id.

       On appeal, a panel of this court reversed the trial court’s restitution order,

       concluding that the State had failed to establish M.C.’s fault or liability for the

       accident. Id. at 610. Because we believe that M.C. can easily be distinguished

       from the facts of the instant matter, we find McCloud’s reliance on M.C. to be

       unpersuasive.


[11]   In the instant matter, the factual basis to support McCloud’s guilty plea

       provides that

               on or about September 23, 2015, Marion County, State of
               Indiana, Brionna McCloud being the driver of a vehicle that was
               involved in an accident, involved in a collision with an
               unattended vehicle being the property of Sara Wilson, did
               knowingly or intentionally fail to stop the vehicle at the scene of
               said accident or as close as possible there to[.]




       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017   Page 6 of 19
       Tr. pp. 20-21. Given that McCloud admitted that the vehicle she was driving

       collided with an unattended vehicle, one may reasonably infer that McCloud

       admitted to being at fault for the collision. This important fact distinguishes the

       instant matter from M.C.


[12]   As for who constitutes the victims of the crime of leaving the scene of an

       accident, we have previously held that


               [w]hen the crime is leaving the scene of an accident, clearly one
               victim of that crime is the person who suffered personal injury or
               property damage as a result of the accident. See Lowe v. State,
               (1982) Ind. App., 433 N.E.2d 798 (to commit offense there must
               be involvement in motor vehicle accident which causes property
               damage to another). It is equally apparent that any persons who
               sustained property damage as a result of the driver’s flight are
               victims of his crime of leaving the scene of an accident; those
               individuals would not have been injured had the driver stopped
               at the site of the initial accident.


       Kingston v. State, 479 N.E.2d 1356, 1359 (Ind. Ct. App. 1985).


[13]   Also, in J.P.B. v. State, 705 N.E.2d 1075 (Ind. Ct. App. 1999), we considered

       whether restitution was appropriate after an individual was convicted of leaving

       the scene of an accident. In pleading guilty to the charged offense, J.P.B.

       admitted that he had struck the victim’s vehicle. J.P.B., 705 N.E.2d at 1077.

       At sentencing, J.P.B. was ordered to pay restitution to the owner of the vehicle

       damaged in the accident. Id. On appeal, we concluded that the owner of the

       vehicle constituted a victim of J.P.B.’s criminal act and that the loss suffered by

       the victim was a “direct and immediate result of” J.P.B.’s criminal act. Id.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017   Page 7 of 19
[14]   As was mentioned above, here, one may reasonably infer from McCloud’s

       guilty plea that McCloud assumed fault for the accident and that she was

       driving the vehicle that struck Wilson’s vehicle. McCloud’s plea agreement

       explicitly states that McCloud “shall pay restitution to Sarah Wilson in the

       amount of TBD.” Appellant’s App. Vol. II, p. 41 (emphasis added). This

       statement coupled with the parties’ statements during McCloud’s guilty plea

       hearing makes it clear that McCloud understood that she would be required to

       pay restitution as part of her sentencing following her guilty plea.5


[15]   With regards to plea agreements, the Indiana Supreme Court recently reiterated

       the following:

                The terms of a plea agreement between the State and the
                defendant are contractual in nature. Lee v. State, 816 N.E.2d 35,
                38 (Ind. 2004). When a trial court accepts a plea agreement, it is
                bound by its terms. Berry v. State, 10 N.E.3d 1243, 1246 (Ind.
                2014). As such, we are guided by contract interpretation
                principles, beginning with the agreement’s plain language and
                determining the intent of the parties at the time the plea was
                entered. Id. at 1247 (citing Citimortgage, Inc. v. Barabas, 975
                N.E.2d 805, 813 (Ind. 2012) (“The ultimate goal of any contract
                interpretation is to determine the intent of the parties at the time
                that they made the agreement.”)). To the extent issues of




       5
         In trying to challenge the imposition of restitution during the restitution hearing, McCloud’s counsel
       acknowledged that restitution was included as a condition to McCloud’s guilty plea but claimed that given
       McCloud’s position that the damages to Wilson’s vehicle were not caused by McCloud’s act of leaving the
       scene of the accident, it was counsel’s belief that the parties were agreeing that the trial court would be in the
       position to determine whether restitution would be owed. After considering the arguments presented by
       McCloud’s counsel, the trial court indicated that it did not agree with counsel’s interpretation of the relevant
       case law and ordered McCloud to pay $3772.47 in restitution to Wilson.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017                Page 8 of 19
               statutory interpretation are relevant, our standard of review is de
               novo. Day v. State, 57 N.E.3d 809, 811 (Ind. 2016).


       State v. Smith, 71 N.E.3d 368, 370 (Ind. 2017) (italics in original).


[16]   In accepting the plea agreement, McCloud agreed to the terms contained there,

       including that she pay restitution to Wilson. The trial court was bound by the

       terms contained in the parties’ plea agreement. McCloud’s argument that the

       trial court abused its discretion by imposing an order of restitution is therefore

       without merit.


                                            B. Ability to Pay
[17]   McCloud also argues that the trial court abused its discretion by failing to

       consider her ability to pay—or claimed lack thereof—when ordering her to pay

       $3772.47 in restitution. The Indiana Supreme Court recently reiterated that


               when setting restitution as a condition of probation, our trial
               courts are required to consider the defendant’s ability to pay.
               Our own precedent has clearly established “when the trial court
               enters an order of restitution as part of a condition of probation,
               the court is required to inquire into the defendant’s ability to pay.
               This is so in order to prevent indigent defendants from being
               imprisoned because of a probation violation based on a
               defendant’s failure to pay restitution.” [Pearson, 883 N.E.2d at
               772]. When restitution is ordered as part of an executed
               sentence, no inquiry into the ability to pay is required because
               restitution is merely a money judgment, and a defendant cannot
               be imprisoned for non-payment. Id. at 773.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017   Page 9 of 19
       Bell v. State, 59 N.E.3d 959, 963 (Ind. 2016). Stated differently, “a trial court

       may order restitution as part of a defendant’s sentence wholly apart from

       probation.” Pearson, 883 N.E.2d at 772-73.


[18]   The parties disagree as to whether restitution was ordered as part of McCloud’s

       sentence or as a condition of her probation, and the record contains indications

       that both are true. However, we conclude that the trial court properly ordered

       restitution regardless of whether said restitution was ordered as a part of

       McCloud’s sentence or as a condition of her probation.


[19]   Before determining the amount of restitution that McCloud was to pay to

       Wilson, the trial court engaged McCloud in the following line of questioning:

               [Trial Court]:    … Do you intend to work when you are
               released Ms. McCloud?
               [The Defendant]: Can you say that again, Your Honor?
               [Trial Court]:    Do you intend to work?
               [The Defendant]: Yes, Your Honor.
               [Trial Court]:    When was the last time you worked, ma’am?
               [The Defendant]: Actually, I was fifteen.
               [Trial Court]:    Ok, and how old are you now?
               [The Defendant]: I’m nineteen, Your Honor.
               [Trial Court]:    Ok. Do you have any children, ma’am?
               [The Defendant]: No, Your Honor.


       Tr. p. 24. The trial court also included the requirement that McCloud “be

       employed full time [or] be actively seeking full-time employment” as a

       condition of McCloud’s probation. Appellant’s App. Vol. II, p. 42. The

       inclusion of this requirement coupled with the above-quoted colloquy


       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017   Page 10 of 19
       demonstrates that the trial court considered McCloud’s ability to pay before

       ordering her to pay restitution to Wilson. The trial court, therefore, satisfied the

       requirements of Bell, and, accordingly, did not abuse its discretion in this

       regard.


                                      C. Amount of Restitution
[20]   McCloud also challenges the amount of restitution ordered by the trial court,

       arguing that it is excessive. We disagree.


[21]   During the restitution hearing, the State presented evidence indicating that

       McCloud’s actions caused $3772.47 in damage to Wilson’s vehicle. McCloud’s

       counsel stipulated “that those are the expenses associated with the damage that

       was done to the vehicle.” Tr. p. 27. Of this amount, the State requested that

       $500.00 be paid directly to Wilson and the remaining $3272.47 be paid to

       Wilson’s insurance company.6 The trial court ordered that McCloud pay only

       the amount necessary to cover the cost of the repairs to Wilson’s vehicle.

       Accordingly, the trial court did not award an excessive amount of restitution. 7




       6
         The $500.00 represented Wilson’s deductible, which was paid by Wilson, and the remaining represented
       the amount paid by Wilson’s insurance company.
       7
         Although the trial court’s restitution order did not explicitly include the breakdown of funds requested by
       the State, the funds awarded by the trial court clearly represent the cost of the repairs to Wilson’s vehicle.
       Thus, to the extent that McCloud argues that the amount of restitution ordered was excessive merely because
       Wilson only paid $500.00 toward the repairs of the vehicle and the rest was paid by Wilson’s insurance
       company, we disagree. One may reasonably assume that Wilson’s insurance company will be able to recover
       the funds that it paid in order to fix Wilson’s vehicle from Wilson if it so chooses. Furthermore, it seems
       appropriate to note that the parties expected a portion of the funds to be paid to Wilson’s insurance company
       as McCloud’s counsel specifically stated during the restitution hearing that McCloud did not contest that
       restitution funds could be paid to a third party, i.e., Wilson’s insurance company.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017          Page 11 of 19
                              II. Assessment of Certain Fees
[22]   McCloud also contends that the trial court abused its discretion in ordering her

       to pay certain fees, namely a $100.00 public defender fee and $340.00 in

       probation fees. “We review the trial court’s imposition of costs or fees for an

       abuse of discretion.” Jackson v. State, 968 N.E.2d 328, 333 (Ind. Ct. App. 2012)

       (citing Kimbrough v. State, 911 N.E.2d 621, 636 (Ind. Ct. App. 2009)). If the

       trial court imposes fees within statutory limits, there is no abuse of discretion.

       Id. (citing Kimbrough, 911 N.E.2d at 636).


                                      A. Public Defender Fee
[23]   “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.” May v. State, 810 N.E.2d 741, 745 (Ind. Ct. App. 2004). “A

       trial court can order reimbursement for costs of representation under any of the

       three statutes or combination thereof.” Id.


[24]   The first statute, Indiana Code section 35-33-7-6, provides, in relevant part, as

       follows:

               (a) Prior to the completion of the initial hearing, the judicial
               officer shall determine whether a person who requests assigned
               counsel is indigent. If the person is found to be indigent, the
               judicial officer shall assign counsel to the person.
                                                ****




       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017   Page 12 of 19
         (c) 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).
                 (2) For a misdemeanor action, a fee of fifty dollars
                 ($50).
         The 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.
         (d) The court may review the finding of indigency at any time
         during the proceedings.


The next statute, Indiana Code section 33-40-3-6, provides, again in relevant

part, as follows:

         (a) 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,[8] the court shall
         require payment by the person or the person’s parent, if the
         person is a child alleged to be a delinquent child, 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.
                                          ****
         (d) The sum of:



8
   Indiana Code section 33-40-3-7(a) provides that if a defendant is receiving publicly paid representation,
“the court shall consider: (1) the person’s independently held assets and assets available to the spouse of the
person or the person’s parent if the person is unemancipated; (2) the person’s income; (3) the person’s
liabilities; (4) the extent of the burden that payment of costs assessed under section 6 of this chapter would
impose on the person and the dependents of the person.” “If, after considering the factors described in
subsection (a), the court determines that the person is able to pay the costs of representation, the court shall
enter a finding that the person is able to pay those additional costs.” Ind. Code § 33-40-3-7(b).

Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017              Page 13 of 19
              (1) the fee collected under IC 35-33-7-6;
              (2) any amount assessed by the court under this
              section; and
              (3) any amount ordered to be paid under IC 33-37-2-
              3;
        may not exceed the cost of defense services rendered to the
        person.


The final statute, Indiana Code section 33-37-2-3, provides, in relevant part, 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).
        (c) If a court suspends payment of costs under subsection (b), the
        court retains jurisdiction over the convicted person until the
        convicted person has paid the entire amount of the costs.
                                          ****
        (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
Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017   Page 14 of 19
               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.


[25]   Although the trial court did not specify under which of the above-quoted

       statutes it imposed the $100.00 public defender fee, we conclude that Indiana

       Code section 33-40-3-6 authorized the trial court to impose the fee at any time

       during the proceedings under so long as the trial court first considered

       McCloud’s ability to pay the fee. As is quoted above, before imposing any

       fines, fees, or restitution, the trial court engaged McCloud in the following line

       of questioning:

               [Trial Court]:    … Do you intend to work when you are
               released Ms. McCloud?
               [The Defendant]: Can you say that again, Your Honor?
               [Trial Court]:    Do you intend to work?
               [The Defendant]: Yes, Your Honor.
               [Trial Court]:    When was the last time you worked, ma’am?
               [The Defendant]: Actually, I was fifteen.
               [Trial Court]:    Ok, and how old are you now?
               [The Defendant]: I’m nineteen, Your Honor.
               [Trial Court]:    Ok. Do you have any children, ma’am?
               [The Defendant]: No, Your Honor.


       Tr. p. 24. The above-quoted colloquy demonstrates that the trial court

       considered McCloud’s ability to pay before imposing the $100.00 public

       defender fee. The trial court’s questions mirrored the factors for considerations

       set forth in Indiana Code section 33-40-3-7. Given McCloud’s stated plan to
       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017   Page 15 of 19
       obtain employment once released to community corrections, the trial court’s

       determination that McCloud could afford to pay a $100.00 public defender fee

       was reasonable. The trial court, therefore, did not abuse its discretion in

       imposing this fee.


                                           B. Probation Fees
[26]   Indiana Code section 35-38-2-1(e) provides, in relevant part, as follows:


               In addition to any other conditions of probation, the court may
               order each person convicted of a misdemeanor to pay:
                      (1) not more than a fifty dollar ($50) initial probation
                      user’s fee;
                      (2) a monthly probation user’s fee of not less than ten
                      dollars ($10) nor more than twenty dollars ($20) for
                      each month that the person remains on probation;
                                               ****
                      (4) an administrative fee of fifty dollars ($50);
               to either the probation department or the clerk.


       In the instant matter, McCloud was ordered to pay an initial probation user fee,

       a $20.00 monthly user fee, and the $50.00 administrative fee, for a total of

       $340.00 in probation fees.


[27]   In challenging the imposition of the $340.00 in probation fees, McCloud

       incorrectly asserts that the fees were imposed by the probation department,

       rather than the trial court. Review of the record demonstrates otherwise.

       McCloud’s probation order, which was signed and issued by the trial court, set

       forth the probation fees which would apply to McCloud. As such, we conclude

       that the trial court, and not the probation department, imposed the fees in

       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017   Page 16 of 19
       question. We further conclude that McCloud has failed to establish that the

       trial court abused its discretion in doing so.


                        III. Notice of Conditions of Probation
[28]   McCloud last contends that the trial court abused its discretion by failing to

       provide her with written notice of the terms of her probation. Indiana Code

       section 35-38-2-2.3(b) provides that


               When a person is placed on probation, the person shall be given
               a written statement specifying:
                      (1) the conditions of probation; and
                      (2) that if the person violates a condition of probation
                      during the probationary period, a petition to revoke
                      probation may be filed before the earlier of the
                      following:
                             (A) One (1) year after the termination of
                             probation.
                             (B) Forty-five (45) days after the state
                             receives notice of the violation.


       “Thus, the law generally requires that if a person is placed on probation, the

       trial court must provide the defendant a written statement containing the terms

       and conditions of probation at the sentencing hearing.” Gil v. State, 988 N.E.2d

       1231, 1234 (Ind. Ct. App. 2013) (citing Kerrigan v. State, 540 N.E.2d 1251, 1252

       (Ind. Ct. App. 1989)). “However, we have previously held that the trial court’s

       failure to provide written probation terms may be harmless error if the

       defendant has been orally advised of the conditions and acknowledges that he

       understands the conditions.” Id. (citing Kerrigan, 540 N.E.2d at 1252).


       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017   Page 17 of 19
[29]   Although the trial court entered written probation terms, it is unclear from the

       record whether such terms were provided to McCloud. During the guilty plea

       hearing, McCloud indicated that she understood that all of the standard terms

       of probation would apply. At sentencing, the trial court stated the following:


               During the time that you are on Probation for three hundred
               sixty-five days, you shall attend an eight hour anti-conversion
               class. You shall pay restitution to Sara Wilson in the amount to
               be determined and we’ll set that out for a Restitution hearing at a
               later time. You shall stay away from all Kroger stores in Marion
               County[.]


       Tr. pp. 23-24. The trial court also indicated that McCloud would be required to

       pay certain fees and fines. McCloud, however, did not orally indicate that she

       understood these terms. Because we are unable to determine whether McCloud

       was provided notice of all of the terms of her probation, we remand the matter

       to the trial court with the instruction that the trial court provide McCloud with

       a copy of the written terms of her probation, if the court has not already done

       so. See Gil, 988 N.E.2d at 1234 (concluding that the trial court’s error in failing

       to enter written probation terms was not harmless and remanding the matter to

       the trial court with the instruction that the trial court enter written probation

       terms).



                                               Conclusion
[30]   In sum, we conclude that the trial court did not abuse its discretion in ordering

       McCloud to pay $3772.47 in restitution to Wilson or in imposing certain fees.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017   Page 18 of 19
       However, to the extent that we are unable to determine whether McCloud was

       provided with a written copy of the terms of her probation, we remand the

       matter to the trial court with the instruction that the court provide McCloud

       with a copy of the written terms of her probation, if the court has not already

       done so.


[31]   The judgment of the trial court is affirmed and remanded.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017   Page 19 of 19
