MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         Mar 18 2020, 10:10 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
Christopher Kunz                                         Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Appellate Division                                       Courtney Staton
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Steven Thomas,                                           March 18, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2084
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marshelle Dawkins
Appellee-Plaintiff.                                      Broadwell, Magistrate
                                                         Trial Court Cause No.
                                                         49G17-1907-F6-27189



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2084 | March 18, 2020             Page 1 of 6
[1]   Steven Thomas appeals his sentence for domestic battery as a class A

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

      trial court abused its discretion in sentencing him with respect to certain fees.

      We remand.


                                      Facts and Procedural History

[2]   On July 12, 2019, the State charged Thomas with strangulation as a level 6

      felony and domestic battery as a class A misdemeanor. On August 8, 2019, the

      court held a bench trial. The court found Thomas guilty of domestic battery as

      a class A misdemeanor and not guilty of strangulation as a level 6 felony. At

      the end of the trial, the court stated:


              [T]he Defendant is going to be sentenced in this matter to three
              hundred and sixty-five (365) days, with credit for 22 (22) days,
              which leaves three hundred and forty-three (343) days remaining.
              One hundred and twenty (120) days will be served on Marion
              County Community Corrections Home Detention, with GPS
              Monitoring. Two hundred and twenty-three (223) of the total
              three sixty-five (365) will be suspended to probation.


      Transcript Volume II at 20.


[3]   Upon questioning by the court, Thomas indicated he was not working, lost his

      job because of his incarceration, and was in the process of looking for

      employment. The court stated:


              So, with respect to court costs, I’m going to find you indigent to
              court costs and I’m not going to order a fine, and I will cap
              probation fees at a total of one hundred dollars ($100.00USD).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2084 | March 18, 2020   Page 2 of 6
              Sir, you may appeal both the sentence and the conviction. You
              have thirty (30) days to do so, if you fail to do so, you waive your
              right to appeal. If you need the public Defender Agency to
              represent you for the appeal, I can appoint them as pauper
              counsel.


      Id. at 21.


[4]   On August 22, 2019, the court entered an order which listed the “Sentence” as

      “0 Year(s) and 365 Day(s)” and under the heading “Suspended” stated “0

      Year(s) and 343 Day(s).” Appellant’s Appendix Volume II at 12 (some

      capitalization omitted). Under “Confinement Type,” the court listed

      community corrections and, under “Confinement Comments,” the order stated:

      “Defendant is sentenced to 120 days MCCC/HD/GPS and 223 Probation.”

      Id. (some capitalization omitted). Under “Sentencing Conditions” and

      “Amount/Comment,” the court listed “120 days. Sliding scale” for each

      category of “Community Corrections,” “Electronic Monitoring,” and “Home

      Detention.” Id. at 12-13. Under “Probation,” it stated “223 Days. Fees capped

      at $100.00.” Id. at 13. Under “Monetary Obligations” and “Court Costs and

      Fees,” the court listed a $100 Supplemental Public Defender Fee. Id. An entry

      in the chronological case summary (“CCS”) states: “Conditions of Community

      Corrections Sliding Scale.” Id. at 8. A document titled “Courtroom Minutes –

      Criminal Pre-Trial/Guilty Plea” contains handwritten notations of “Cap Prob

      Fees $100.00 NCO remains” and “Prob-capped @ 100.00.” Id. at 44-45.


[5]   On October 7, 2019, Marion County Community Corrections (“MCCC”) filed

      a discharge summary indicating Thomas successfully completed his home
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2084 | March 18, 2020   Page 3 of 6
      detention sentence through community corrections. The discharge summary

      states he “paid $0.00 towards their fees and [is] currently $840.00 in arrears to

      [MCCC].” Id. at 51. On October 8, 2019, the court granted the motion for

      discharge. In a letter from Thomas’s probation officer to the court, which was

      filed on October 15, 2019, the officer noted that the court ordered Thomas’s

      probation fees be capped at $100.00 and sought “clarification on how much is

      to be assessed to his Administrative fee and how much is to be assessed as his

      Probation User fee.” Id. at 52. On October 16, 2019, the court entered an order

      indicating to “[s]plit the fee 50/50.” Id. at 53.


                                                  Discussion

[6]   The issue is whether the trial court abused its discretion in sentencing Thomas

      with respect to fees. 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).


[7]   Thomas argues his fees for home detention as a condition of probation must be

      capped at $100 because that was the court’s only verbal order while he was
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2084 | March 18, 2020   Page 4 of 6
      present in court, the fee of $840 was not ordered by the court, and the $100 cap

      on probation fees must also apply to any home detention fees assessed. He

      asserts that, if this Court finds the sliding scale language in the sentencing order

      and CCS supersedes the court’s oral order at sentencing, we should remand for

      the trial court to clarify its intent regarding fees because the record is unclear

      whether the court improperly delegated its statutorily-imposed responsibility to

      set the home detention fees.


[8]   The State asserts remand is appropriate to allow the trial court to determine the

      amount of fees owed. It contends the court’s order that Thomas’s probation

      user fees be capped at $100 would not similarly cap his home detention fees

      because home detention fees are distinct from probation user fees and that

      remand will allow the trial court to clarify its intent.


[9]   Ind. Code § 35-38-2.5-5 provides that “as a condition of probation a court may

      order an offender confined to the offender’s home for a period of home

      detention.” 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 in addition to the probation user’s fee required under IC 35-

      38-2-1 or IC 31-40.” 1 (Emphasis added).




      1
       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 § 35-38-2.6-1(a) provides that
      “this chapter applies to the sentencing of a person convicted of a felony whenever any part of the sentence
      may not be suspended under IC 35-50-2-2.1 or IC 35-50-2-2.2.” Thomas asserts that, because he was not
      convicted of a felony, his sentence to home detention was necessarily as a condition of probation pursuant to
      Ind. Code § 35-38-2.5-5.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2084 | March 18, 2020                    Page 5 of 6
[10]   The record does not indicate who established the “sliding scale” or who

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

       delegate any statutory responsibility regarding fees to MCCC or whether the

       fees requested by MCCC were consistent with the sliding scale. Accordingly,

       we remand the matter to provide the trial court an opportunity to clarify its

       intent regarding the fees and for further proceedings consistent with this

       opinion. 2 See Amick v. State, 126 N.E.3d 909, 911-912 (Ind. Ct. App. 2019)

       (remanding the matter to provide the trial court an opportunity to clarify its

       intent regarding the fee).


[11]   Remanded.


       Baker, J., and Riley, J., concur.




       2
         Thomas argues that, to the extent the sentencing order and CCS contradict what the court verbally told
       him, we should follow Whatley v. State, 685 N.E.2d 48 (Ind. 1997). In that case, the trial court orally
       informed the defendant that he was being sentenced to 365 days, but the abstract of judgment sent to the
       Department of Correction reflected that the defendant was sentenced to the charge as a class C felony with a
       two-year sentence. 685 N.E.2d at 50. The Court observed that the required separate judgment under Indiana
       Criminal Rule 15.1 was not done, but noted that a CCS entry existed which was consistent with the abstract
       of judgment but varied from the court’s oral sentencing pronouncement. Id. The Court held that various
       approaches have been taken to resolve the inconsistency between a judge’s in-court pronouncement of
       sentence and the subsequent abstract of judgment. Id. The Court observed that the Court of Appeals has
       either stricken the sentence modification or remanded to the trial court for a proper sentencing. Id. The
       Court held that “[w]hile either approach is available, we elect to reinstate the original in-court sentencing and to
       vacate the subsequent contradictory language.” Id. (emphasis added). Whatley does not preclude remand in
       this case.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2084 | March 18, 2020                          Page 6 of 6
