                                                                          FILED
                                                                    Jun 07 2019, 8:50 am

                                                                          CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Talisha Griffin                                            Curtis T. Hill, Jr.
Marion County Public Defender Agency                       Attorney General of Indiana
Appellate Division                                         Caryn N. Szyper
Indianapolis, Indiana                                      Deputy Attorney General
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Lawrence Amick,                                            June 7, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           19A-CR-27
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Elizabeth Christ,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           49G24-1607-F6-27107



Brown, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-27 | June 7, 2019                              Page 1 of 6
[1]   Lawrence Amick appeals his sentence for forgery and auto theft as level 6

      felonies. He raises one issue which we revise and restate as whether the trial

      court abused its discretion in entering community corrections fees based on a

      sliding scale. We remand.


                                        Facts and Procedural History

[2]   In July 2016, the State charged Amick with forgery and auto theft as level 6

      felonies. On October 23, 2018, the court held a jury trial, and the jury found

      him guilty as charged. On December 12, 2018, a sentencing hearing was held

      and Amick was sentenced to 730 days in community corrections for each count

      to be served concurrently. Amick’s counsel then questioned him regarding his

      employment, income, and children. The following exchange then occurred:


              [Defense Counsel]: Alright. Judge, I would ask the court to find
              him indigent in regards to any additional fines, fees, and cost,
              eligible for a sliding scale for home detention. I’m assuming that
              the Thinking for a Change classes can be offered through
              Community Corrections?

              THE COURT: Yes.

              [Defense Counsel]: Okay. So, I – I don’t know if there’s a way
              that they can discount that or put that on a sliding fee scale, but if
              they could, we request that.

              THE COURT: The Court will not impose a fine. I am imposing
              court cost in the amount of hundred and eighty-five dollars
              ($185.00). I’m imposing a one hundred dollar ($100.00) Public
              Defender recoupment fee. I’m going to order the cash bond
              refund applied to court cost, PD recoupment fee, and then two
              hundred and ten dollars ($210.00) held for Marion County
              Community Corrections fees that you’ll be incurring. I’m

      Court of Appeals of Indiana | Opinion 19A-CR-27 | June 7, 2019               Page 2 of 6
              ordering Community Corrections to evaluate you for sliding
              scale fees for the cost of your home detention, and I have
              appointed pauper counsel for the purpose of appeal.


      Transcript Volume II at 178.


[3]   The sentencing order lists concurrent sentences of 730 days for each count with

      zero days suspended. Under “Sentencing Conditions,” it lists “Community

      Corrections” under “Condition” and “sliding scale for fees” under

      “Amount/Comment.” Appellant’s Appendix Volume II at 12 (capitalization

      omitted). It lists “Home Detention” and an effective date of December 12,

      2018. (12) It also lists certain “Court Costs and Fees” and the corresponding

      amounts which totaled $285. Id. at 13. An order titled “Order of Commitment

      to Community Corrections (Sentencing location CCC)” states that Amick was

      sentenced to 730 days executed in Community Corrections and states “sliding

      scale for fees” for community corrections with an effective date of December

      12, 2018. Id. at 165.


[4]   On December 13, 2018, the Marion County Community Corrections

      (“MCCC”) filed a memo stating that a bond was posted with the Marion

      County Clerk’s Office on behalf of Amick in the underlying cause and that he

      owed monetary obligations to MCCC in the amount of $3,680. It also

      requested that the bond amount filed with the Clerk’s Office be transferred to it

      to apply toward the outstanding balance of program costs associated with the

      services provided to Amick. On December 20, 2018, the court approved the

      MCCC’s request and entered a “Bond Refund Order,” which states in part:

      Court of Appeals of Indiana | Opinion 19A-CR-27 | June 7, 2019           Page 3 of 6
              The defendant in the above-mentioned cause number had a bond
              posted under receipt number 2016-80366-CCB. There is a refund
              accessible in the amount of $495. The CLERK of the Court is
              hereby directed to apply bond money to the following:

              1. $185.00 to Court Costs

              2. $100.00 to PD Fee

              3. $210.00 to Community Corrections


      Id. at 172.


                                                    Discussion

[5]   The issue is whether the trial court abused its discretion in entering the

      community corrections fees based on a sliding scale. Sentencing decisions

      include decisions to impose fees and costs. Johnson v. State, 27 N.E.3d 793, 794

      (Ind. Ct. App. 2015). A trial court’s sentencing decisions are reviewed under an

      abuse of discretion standard. McElroy v. State, 865 N.E.2d 584, 588 (Ind. 2007).

      “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.

      (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). “If the fees imposed by

      the trial court fall within the parameters provided by statute, we will not find an

      abuse of discretion.” Berry v. State, 950 N.E.2d 798, 799 (Ind. Ct. App. 2011).


[6]   Amick argues that the court abused its discretion when it ordered MCCC to

      evaluate him for sliding scale fees for the cost of home detention and asserts

      that the court holds the discretion to impose fees. The State argues that Amick

      Court of Appeals of Indiana | Opinion 19A-CR-27 | June 7, 2019               Page 4 of 6
      invited any error when he specifically requested the court to impose home

      detention fees on a sliding scale. It states that, “[w]hile the scale is not included

      in the record, it appears to have been a fee schedule known to the court and the

      parties, and thus, [MCCC] merely implemented the trial court’s order by

      applying its scale to Amick’s financial circumstances.” Appellee’s Brief at 9. It

      acknowledges that, “because the sliding fee scale is not in the appellate record,

      it is unknown on appeal what the trial court was referring to and how it is

      administered,” and asserts that “[t]o the extent that this Court deems that

      information necessary to Amick’s appeal, this Court should remand to the trial

      court to give it an opportunity to clarify its intent regarding the home detention

      fees.” Id. at 12. In reply, Amick asserts that no error was invited and that he is

      arguing that the court abused its discretion when it granted MCCC authority to

      determine what the sliding scale would be without first petitioning the court

      and receiving approval for the estimated costs.


[7]   Rules governing the direct placement in a community corrections program are

      governed by Ind. Code § 35-38-2.6 et seq. State v. Vanderkolk, 32 N.E.3d 775,

      777 (Ind. 2015). Ind. Code § 35-38-2.6-4.5 provides that, if a court places a

      person on home detention as part of a community corrections program, the

      placement must comply with all applicable provisions in Ind. Code §§ 35-38-

      2.5. Ind. Code § 35-38-2.5-6(7) provides that an order for home detention must

      include “[a] requirement that the offender pay a home detention fee set by the

      court . . . .” (Emphasis added).




      Court of Appeals of Indiana | Opinion 19A-CR-27 | June 7, 2019              Page 5 of 6
[8]    The record does not include the “sliding scale” or state who established it or

       who administers it. We have no way of knowing whether the trial court

       intended to delegate any statutory responsibility to MCCC or whether the fees

       requested by MCCC and entered by the trial court were consistent with the

       sliding scale. Accordingly, we remand the matter to provide the trial court an

       opportunity to clarify its intent regarding the fee and for further proceedings

       consistent with this opinion.


                                                     Conclusion

[9]    For the foregoing reasons, we remand.


[10]   Remanded.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-27 | June 7, 2019             Page 6 of 6
