MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              FILED
regarded as precedent or cited before any                                 Jan 17 2019, 9:13 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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Talisha Griffin                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Matthew V. Weaver,                                       January 17, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1717
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Clayton A.
Appellee-Plaintiff.                                      Graham, Judge
                                                         Trial Court Cause No.
                                                         49G07-1801-CM-1920



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1717 | January 17, 2019                  Page 1 of 14
                                                 Case Summary
[1]   Following a bench trial, Matthew Weaver was found guilty of two counts of

      Class A misdemeanor battery resulting in bodily injury, which stemmed from a

      physical fight between Weaver and his brother, Evan. The trial court merged

      the convictions and sentenced Weaver to 365 days in jail, less credit time, with

      359 days suspended to probation. The court also imposed a fine, court costs,

      probation fees, and a $50 public defender fee. On appeal, Weaver asserts that

      (1) the State failed to present sufficient evidence to rebut his claim that he acted

      in self-defense, and (2) the trial court improperly imposed a public defender fee.


[2]   We affirm in part and reverse and remand in part.


                                      Facts & Procedural History
[3]   At the time relevant to this appeal, adult brothers Weaver and Evan lived with

      their father (Father) at Father’s home.1 Weaver and Evan did not have a good

      relationship and often argued. Weaver could not drive and relied on Evan to

      drive him to work and other places.


[4]   On January 17, 2018, Evan removed cash from his bank account for school

      expenses. Evan came home around 9:00 or 10:00 p.m. and placed the money

      on his dresser in his room and began watching something on his laptop.

      Around this time, Weaver entered Evan’s room and asked Evan to drive him to




      1
          At the time of trial, Weaver was twenty-seven years old and Evan was nineteen or twenty.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1717 | January 17, 2019               Page 2 of 14
      get something to eat, although Weaver did not have any money. Evan said

      “no” to Weaver’s request and told Weaver that there were “other options,”

      such as eating food in the house or “Uber app.” Transcript Vol. II at 7. Evan

      observed that Weaver was getting agitated. The brothers continued to quarrel,

      and Weaver grabbed Evan’s cash. After Evan told Weaver that the money was

      for school books, Weaver set it down, and Evan pushed Weaver out of the

      room and closed the door.


[5]   Weaver immediately started pounding on Evan’s door and was able to push it

      open. Weaver entered the room, and he and Evan started “pushing and

      shoving each other,” wrestling to the ground. Id. at 9. Weaver hit Evan with a

      glass jar and bit Evan on his arm. The police were called to the residence and

      observed bite marks and bleeding on Evan’s arm as wells as scrapes and

      bleeding on his leg. Police observed no visible injuries to Weaver.


[6]   On January 18, 2018, the State charged Weaver with two counts of battery

      resulting in bodily injury as Class A misdemeanors. On or around this time,

      Weaver completed and signed a Request for Appointment of Public Defender

      form. In it, Weaver averred that he was not homeless, worked at McDonald’s

      making $800-900 per month, did not own a home, and was not responsible for

      any dependents.


[7]   At the January 22, 2018 initial hearing, six defendants were present, including

      Weaver. The trial court confirmed with each defendant that he or she had read,

      signed, and understood the advisement of rights form, and the court read to


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1717 | January 17, 2019   Page 3 of 14
each the charges that he or she faced. The court then explained, “[T]he next

thing we’re going to talk about is that attorney situation, which is are you going

to hire, or do you want to see if the public defender agency can be appointed to

represent you[,]” and it advised the defendants that “those forms that you filled

out” would be used by the court “to help make that determination.”

Supplemental Transcript at 8. When it was Weaver’s turn, the court advised:


        And then we go to Mr. Weaver. Court will appoint the public
        defender agency to represent you. You’re going to Court 7, and
        that judge does require anybody that’s appointed also be assessed
        a [inaudible. mic noise. may have said $50] public defender fee.
        So again, [inaudible. same mic noise] public defender fee. Just
        pay it at the clerk’s office, if you’re able to, as soon as possible.
        Do you understand that, sir?


Id. at 10 (alterations in original). Thereafter, the trial court reviewed with

Weaver the conditions of release, including a no-contact order with regard to

Evan, and informed Weaver of the next court date. When asked if he had any

questions for the court, Weaver said:


        WEAVER: I’ve got a couple. If I manage to find an attorney,
        would I still have to pay the $50 to the public defenders?


        COURT: That will be up to the judge in courtroom number 7 on
        how they want to handle that situation. So I can’t definitively
        answer that question. What was your second question?


Id. at 17. Weaver’s second question concerned whether he could “press charges

. . . on the other party,” and the trial court advised Weaver to discuss the matter


Court of Appeals of Indiana | Memorandum Decision 18A-CR-1717 | January 17, 2019   Page 4 of 14
      with his attorney. Id. The trial court inquired, “Any other questions, sir?” and

      Weaver replied, “That answers everything.” Id. at 18.


[8]   The trial court issued orders in connection with the appointment of counsel,

      including an Order on Petition for Counsel. Based on Weaver’s Petition for

      Appointment of Counsel “and on a thorough examination of defendant’s total

      financial picture and nature of the criminal charges,” the court “[g]ranted”

      Weaver’s request for counsel and stated that an attorney “shall be appointed to

      represent defendant” with a “[p]ublic defender fee of $50.” Appellant’s Appendix

      Vol. II at 30. A second document issued by the trial court was an Order of

      Appointment of Public Defender, in which the trial court found Weaver to be

      indigent and that counsel should be appointed, directed Weaver to report to the

      Marion County Public Defender’s Office within 24 hours, and ordered the

      public defender to enter an appearance. The order also required Weaver “to

      pay the sum of $50.00 before the case is complete.” Id. at 31.


[9]   At the February 6, 2018 pretrial hearing, where Weaver appeared in person and

      with counsel, the parties agreed to a continuance of the pretrial conference due

      to discovery matters, and with regard to the public defender, the trial court

      reminded Weaver:


              And Mr. Weaver, you have a public defender recoupment fee to
              pay, and that’s going to be due and owing, sir, to help offset what
              the taxpayers are paying for your representation, which is far
              more than what you’re being asked to pay. And that’s going to
              be due by February the 20th. [Your attorney] will tell you where
              to pay it.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1717 | January 17, 2019   Page 5 of 14
       Supplemental Transcript at 23. That same date, Weaver paid the $50.00 fee.


[10]   The matter proceeded to bench trial on June 26, 2018. Evan testified that he

       and Weaver would “get into fights” and described that there had been others

       worse than the present one. Transcript Vol. II at 13. Evan stated Weaver was

       “mainly the aggressor in most cases, and he does it to my siblings.” Id. Evan

       acknowledged that he had his hands on Weaver’s throat at one point during the

       struggle, when Weaver “was on top of [him] and hitting [him] with a glass

       Mason jar.” Id. at 15.


[11]   Weaver testified in his defense. He explained that he is a diabetic and “there

       wasn’t anything I could eat in the house that wouldn’t get my sugar sky high,”

       so he asked Evan to give him a ride for food. Id. at 19. He acknowledged that

       he “taunted” Evan by picking up Evan’s cash that was sitting on his dresser and

       saying “Evan, you want me to pay for the Uber with this?” Id. at 20.

       According to Weaver, Evan “pushed me into the corner, then told me to

       leave[,]” and when Weaver did not leave quickly enough, Evan punched him in

       the face. Id. at 21. Weaver described that Evan “would have killed me if I

       didn’t bite him then run out of his room like a coward.” Id.


[12]   At the conclusion of the evidence, the trial court determined that the State had

       proven that Weaver battered Evan, noting “[t]hese cases often come down to

       credibility” and finding “Evan Weaver more credible than Matthew Weaver.”

       Id. at 28. In sentencing Weaver, the trial court noted that Weaver had already




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1717 | January 17, 2019   Page 6 of 14
       paid “his public defender recoupment fee[.]” Id. at 26-27. Weaver now

       appeals.


                                      Discussion and Decision
                                                 I. Sufficiency

[13]   Weaver challenges the sufficiency of the evidence contending the State failed to

       rebut his claim of self-defense. The standard of review for a challenge to the

       sufficiency of evidence to rebut a claim of self-defense is the same as the

       standard for any sufficiency of the evidence claim. Wilson v. State, 770 N.E.2d

       799, 801 (Ind. Ct. App. 2002) (citing Sanders v. State, 704 N.E.2d 119, 123 (Ind.

       1999)). We consider only the probative evidence and reasonable inferences

       supporting the trial court’s decision. Tharpe v. State, 955 N.E.2d 836, 844 (Ind.

       Ct. App. 2011), trans. denied. We neither reweigh the evidence nor judge the

       credibility of witnesses. Wilson, 770 N.E.2d at 801. The trier of fact is entitled

       to determine which version of the incident to credit and is the sole judge of the

       effect that any discrepancies or contradictions might have on the outcome of the

       case. Scott v. State, 867 N.E.2d 690, 695 (Ind. Ct. App. 2007), trans. denied. If

       there is sufficient evidence of probative value to support the conclusion of the

       trier of fact, then the verdict will not be disturbed. Wilson, 770 N.E.2d at 801.


[14]   Self-defense is a legal justification for an otherwise criminal act. Bryant v. State,

       984 N.E.2d 240, 250 (Ind. Ct. App. 2013), trans. denied. To prevail on such a

       claim, the defendant must show that he: (1) was in a place where he had a right

       to be; (2) did not provoke, instigate, or participate willingly in the violence; and


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1717 | January 17, 2019   Page 7 of 14
       (3) had a reasonable fear of death or great bodily harm. Wilson, 770 N.E.2d at

       800. A defendant, however, is not justified in using force if that person “has

       entered into combat with another person or is the initial aggressor unless the

       person withdraws from the encounter and communicates to the other person

       the intent to do so and the other person nevertheless continues or threatens to

       continue unlawful actions.” Ind. Code § 35-41-3-2. “When a claim of self-

       defense is raised and finds support in the evidence, the State bears the burden of

       negating at least one of the necessary elements.” King v. State, 61 N.E.3d 1275,

       1283 (Ind. Ct. App. 2016), trans. denied. If a defendant is convicted despite his

       claim of self-defense, this Court will reverse only if no reasonable person could

       say that self-defense was negated by the State beyond a reasonable doubt.

       Wilson, 770 N.E.2d at 801.


[15]   Weaver asserts that, at trial, he showed that he had a right to be in Evan’s

       room, that Evan was the initial aggressor of the violence, and that he (Weaver)

       had a right to use force in self-defense. He maintains that it was the State’s

       burden to rebut one of the elements of self-defense and that it failed to do so.

       We reject Weaver’s argument on various levels.


[16]   As an initial matter, we cannot agree that Weaver was in a place he had a right

       to be when the conflict arose. Weaver was in Evan’s bedroom, and Evan

       clearly did not want him there. Evan pushed Weaver out of the room into the

       hallway and closed the door. Weaver barged back into the room. Weaver’s

       suggestion that “[n]othing in the record supports the contention that Evan



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1717 | January 17, 2019   Page 8 of 14
       rescinded any permission or authority for Weaver to be in his room” is simply

       disingenuous. Reply Brief at 3.


[17]   Furthermore, we cannot agree with Weaver that he “did not provoke, instigate,

       or participate willingly” in the violence. Id. at 4. After Evan declined Weaver’s

       initial request to drive him to get food, Weaver continued to badger Evan, and,

       by Weaver’s own admission, he “taunted” Evan by picking up Evan’s money

       and suggesting he could use it to obtain food. Transcript Vol. II at 20. Evan

       pushed Weaver out, but Weaver re-entered Evan’s room, where they pushed

       and shoved each other and wrestled to the ground. Weaver then hit Evan with

       a glass jar and bit his arm, leaving marks and causing bleeding. At a minimum,

       Weaver was a mutual combatant, and under Indiana law, “[A] mutual

       combatant, whether or not the initial aggressor, must declare an armistice

       before he or she may claim self-defense.” Wilson, 770 N.E.2d at 801 (citing I.C.

       § 35-41-3-2(e)(3), providing that a person is not justified in using force “if the

       person has entered into combat with another person or is the initial aggressor,

       unless the person withdraws from the encounter and communicates to the other

       person the intent to do so and the other person nevertheless continues or

       threatens to continue unlawful action”). There is no evidence that Weaver

       communicated an intent to withdraw from the encounter, and he was required

       to do so as a precondition for a claim of self-defense.


[18]   Lastly, there is no evidence that Weaver had a reasonable fear or apprehension

       of bodily harm, other than his self-serving statement that he thought Evan

       would kill him if he did not bite him and run away. The trial court expressly

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1717 | January 17, 2019   Page 9 of 14
       stated that it did not find Weaver’s version of events to be credible. We cannot

       reweigh the evidence or judge the credibility of witnesses on appeal. Wilson,

       770 N.E.2d at 801. The State presented sufficient evidence to rebut Weaver’s

       self-defense claim.


                                               II. Public Defender fee

[19]   Weaver asserts that the trial court improperly imposed a public defender fee.2

       “‘Sentencing decisions include decisions to impose fees and costs,’ and a trial

       court’s sentencing decision is reviewed for abuse of discretion.” De La Cruz v.

       State, 80 N.E.3d 210, 213 (Ind. Ct. App. 2017) (quoting 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. If the fees imposed by the trial court fall

       within the parameters provided by statute, we will not find an abuse of

       discretion. Langdon v. State, 71 N.E.3d 1162, 1163 (Ind. Ct. App. 2017) (citing

       Berry v. State, 950 N.E.2d 798, 799 (Ind. Ct. App. 2011)). A defendant’s




       2
         The State maintains that because Weaver already has paid the fee, the issue is moot and “[t]here is no
       effective relief this Court can grant [him].” Appellee’s Brief at 9. Weaver urges that the issue of the fee is not
       moot. We agree with Weaver and address the merits of his claim. See De La Cruz v. State, 80 N.E.3d 210, 213
       (Ind. Ct. App. 2017) (holding defendant’s appeal of fees ordered by probation was not moot even though he
       had already paid fees and completed probation).



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1717 | January 17, 2019                    Page 10 of 14
       indigency does not shield him from all costs or fees related to his conviction.

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


[20]   As Weaver observes, there are three statutory provisions that address the

       imposition of public defender fees, and a trial court may order payment under

       any of the three or a combination thereof.3 Langdon, 71 N.E.3d at 1164. One of

       those statutes, Ind. Code § 35-33-7-6, provides in relevant part:


                (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.


                                                           ***




       3
        As this court has observed, “Various conflicting provisions of Indiana Code pertain to appointment of
       counsel and payment of associated costs of representation for indigent criminal defendants.” Lamonte v. State,
       839 N.E.2d 172, 176 n.1 (Ind. Ct. App. 2005). The Lamonte court summarized the provisions:

                Indiana Code section 35-33-7-6 allows a trial court to impose a fee of $50 on a
                misdemeanor defendant if the court finds that the defendant is able to pay part of the cost
                of representation by the assigned counsel. Indiana Code section 33-40-3-6 and Indiana
                Code section 33-37-2-3 grant trial courts the discretion to impose representation costs
                against a defendant in excess of that amount in other instances. However, Indiana Code
                section 33-40-3-6 applies only in those situations where the court makes a finding of
                ability to pay the costs of representation, while Indiana Code section 33-37-2-3 applies
                only to those defendants that the court deems not indigent.


       Id.; see also Langdon v. State, 968 N.E.2d 328, 333 (Ind. Ct. App. 2012) (discussing same three statutes
       concerning imposition of public defender fees).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1717 | January 17, 2019                   Page 11 of 14
               (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 statute effectively acknowledges that “there can be degrees of indigency,”

       such that “[o]ne may be indigent for purposes of paying private counsel

       thousands of dollars for representation, but still be able to pay a nominal

       amount to partially reimburse the costs of his appointed counsel.” Wooden v.

       State, 757 N.E.2d 212, 218 n.4 (Ind. Ct. App. 2001), trans. denied.


[21]   In the present case, although the trial court did not explicitly identify under

       which of the three possible statutes it was imposing the public defender fee, the

       record reflects that (1) the trial court made the determination at the initial

       hearing after appointing the public defender office to represent Weaver, and (2)

       the amount ordered to be paid was $50. Both of these factors are consistent

       with I.C. § 35-33-7-6, and we thus find that I.C. § 35-33-7-6 was the statute

       under which the trial court was operating. See e.g., Langdon, 71 N.E.3d at 1164

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1717 | January 17, 2019   Page 12 of 14
       (where defendant was charged with misdemeanor, found to be indigent, and

       ordered to pay a $50 public defender fee, I.C. § 35-33-7-6(c) was the statutory

       provision that supported the imposition of the fee at initial hearing); Berry, 950

       N.E.2d at 800 (“The fact that Berry was found indigent at the initial hearing

       and the trial court ordered a fee of $100 leads us to agree with the State that the

       trial court imposed the public defender fee pursuant to Indiana Code Section

       35-33-7-6.”).


[22]   On appeal, Weaver contends that “[r]egardless of what statute the trial court

       relied on, it should have inquired into Weaver’s ability to pay the $50.00 public

       defender fee before assessing it on January 22, 2018” at the initial hearing, and

       he asks us to reimburse the fee and remand the matter for the trial court to hold

       a hearing to determine Weaver’s ability to pay. Appellant’s Brief at 15; Reply

       Brief at 5. We agree with Weaver in part.


[23]   Here, before the initial hearing, Weaver filed a Request for Appointment of

       Public Defender, and in it, he affirmed under penalty of perjury that he did not

       own a home, was employed making $800-900 per month, and was not

       responsible for supporting anyone besides himself. Based on the information

       that Weaver had provided, the trial court ordered Weaver to pay a $50 public

       defender fee, which was an amount within statutory limits of I.C. § 35-33-7-

       6(c). As we discussed above, “If the fees imposed . . . fall within the parameters

       provided by statute, we will not find an abuse of discretion.” Berry, 950 N.E.2d

       at 799.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1717 | January 17, 2019   Page 13 of 14
[24]   That said, I.C. § 35-33-7-6 allows the trial court to order the defendant to pay a

       public defender fee “[i]f the court finds that the person is able to pay part of the

       cost of representation.” Our courts have interpreted I.C. § 35-33-7-6 to require

       the trial court “to make a finding regarding [the defendant’s] ability to pay.”

       Berry, 950 N.E.2d at 800; see also Banks, 847 N.E.2d at 1052 (“Under Ind. Code

       § 35-33-7-6 . . . a court must explicitly find a defendant can pay the fees

       imposed.”). Because the trial court in this case did not make such a finding, we

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

       Weaver is able to pay the $50 public defender fee. See Berry, 905 N.E.2d at 800

       (holding that “trial court was required to make a finding regarding Berry’s

       ability to pay” and remanding for trial court “to determine whether Berry is

       able to pay the $100 public defender fee”). Although Weaver asks for a hearing

       on remand, this court has observed that “[s]ection 35-33-7-6 does not require an

       additional hearing, only a finding of ability to pay.” Id. at 802. Thus, in

       making its determination, the trial court on remand may, but is not required to,

       hold a hearing.


[25]   Judgment affirmed in part and reversed and remanded in part.


       Najam, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1717 | January 17, 2019   Page 14 of 14
