MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                              FILED
this Memorandum Decision shall not be                                  May 08 2019, 9:44 am

regarded as precedent or cited before any                                     CLERK
                                                                        Indiana Supreme Court
court except for the purpose of establishing                               Court of Appeals
                                                                             and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Barbara J. Simmons                                       Curtis T. Hill, Jr.
Oldenburg, Indiana                                       Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Marvin E. Hart,                                          May 8, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2174
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Jose Salinas, Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         49G14-1711-CM-45432



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2174 | May 8, 2019                     Page 1 of 6
                                                  Case Summary
[1]   After Marvin E. Hart’s convictions, pursuant to a plea agreement, he appeals

      the trial court’s delay of his indigency hearing pending the probation

      department’s assessment of his ability to pay probation user fees. We affirm.


                                                           Issue
[2]   Hart’s sole issue on appeal is whether the trial court abused its discretion in

      delaying his indigency hearing regarding probation user fees and ordering the

      probation department to assess his ability to pay probation user fees.


                                                           Facts
[3]   On November 26, 2017, the State charged Hart with various offenses. On

      August 15, 2018, the trial court conducted Hart’s guilty plea and sentencing

      hearing. At the time, Hart was incarcerated in the Department of Correction

      (“DOC”) in a separate cause and was scheduled for release in March 2019.


[4]   Hart pleaded guilty to resisting law enforcement and possession of a synthetic

      drug or synthetic drug lookalike, Class A misdemeanors. 1 The trial court

      imposed the following concurrent sentences, to be served “after [Hart’s] current

      DOC sentence”:


                 Count Two and Three [ ] are concurrent. Your sentence is 365
                 [days] in the Marion County Jail, 185 suspended, no executed




      1
          In exchange for Hart’s guilty plea, the State agreed to dismiss a second count of resisting law enforcement.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2174 | May 8, 2019                           Page 2 of 6
               time. 180 [days] on probation. Standard conditions of probation
               to include weekly drug testing and substance abuse evaluation.


                          Indigent to fines and costs. I will assess a $200.00 drug
               fee. [ ]


      Tr. Vol. II pp. 8, 9. Although the trial court found Hart to be indigent as to

      fines and court costs, when defense counsel moved for an indigency finding for

      probation user fees, the trial court stated:


               [Hart’s] motion to be found indigent is denied. [Hart is] free to
               [file an] interlocutory [appeal] if [he] want[s]. I’m going to allow
               probation to do an assessment. Hopefully once [Hart] gets out, .
               . . he’ll have employment opportunities. I’ll reassess it within 36
               days . . . .


      Id. at 10. The trial court’s “Order on Fees and Costs” provides: “Probation to

      assess minimum Fees[ 2] within 30 or 60 days; Court will address the issue at

      that time. [Hart] may request a hearing.” App. Vol. II p. 49 (italics omitted).

      Hart now appeals.


                                                      Analysis
[5]   Hart argues that the trial court abused its discretion in “delegat[ing] the

      obligation to determine Mr. Hart’s ability to pay probation user fees to the




      2
        As the State notes in its Appellee’s brief, Indiana Code Section 35-38-2-1 allows for “[an] initial fee of not
      more than $50, monthly user fees of not less than $10, costs of testing, and a $50 administrative fee”; and
      local rules allow for “[a] $400 substance abuse fee which may be waived if [the defendant] seek[s] treatment.”
      Appellee’s Br. p. 7.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2174 | May 8, 2019                         Page 3 of 6
      probation department and den[ying] his request for an [indigency] hearing[.]”

      Appellant’s Br. p. 4. We review a trial court’s sentencing decisions, which

      include decisions to impose fees and costs, for an abuse of discretion. McElroy

      v. State, 865 N.E.2d 584, 588 (Ind. 2007). An abuse of discretion occurs when

      the trial court’s decision is against the logic and effect of the facts and

      circumstances before the court. Id. If the fees imposed by the trial court fall

      within statutory parameters, we will not find any abuse of sentencing discretion.

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


[6]   Indiana Code Section 35-38-2-1, governing conditions of probation and user

      fees, inter alia, provides:


              Whenever it places a person on probation, the court shall:


                      (1) specify in the record the conditions of the probation; [ ]


                      ...


              (b) [ ] If the person was convicted of a misdemeanor, the court may order
              the person to pay the user’s fee prescribed under subsection (e). The
              court may:


                      (1) modify the conditions (except a fee payment may only
                      be modified as provided in section 1.7(b) of this chapter); or


                      (2) terminate the probation;


              at any time. If the person commits an additional crime, the court
              may revoke the probation. [ ]

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2174 | May 8, 2019      Page 4 of 6
      Ind. Code § 35-38-2-1 (emphasis added). Notably, Indiana Code Section 35-38-

      2-1.7(b) permits a probation department to petition a court to impose a

      probation user’s fee on a person or to increase a person’s probation user’s fee “if

      the financial ability of the person to pay a probation user’s fee changes while the person is

      on probation.” Such is the case here.


[7]   “A trial court should conduct an indigency hearing before or upon the

      completion of a defendant’s sentence.” Johnson v. State, 27 N.E.3d 793, 794

      (Ind. Ct. App. 2015); see Burnett v. State, 74 N.E.3d 1221, 1227 (Ind. Ct. App.

      2017). Indiana law does not, however, require a trial court to conduct an

      indigency hearing at the time probation fees are ordered. Johnson, 27 N.E.3d at

      794.


[8]   As we have previously stated, it is the trial court, not the probation department,

      that has the discretion to impose probation fees.” Burnett, 74 N.E.3d at 1227.

      In Burnett, despite the fact that the trial court conducted an inadequate

      indigency hearing and assessed no probation user’s fees at sentencing, “the

      probation department subsequently imposed an aggregate amount of $640 in

      fees on the defendant.” Id. at 1226. On appeal, we—in relevant part—vacated

      the trial court’s judgment regarding the fees owed by Burnett because the trial

      court did not order the $640 in fees assessed by the probation department. Id.


[9]   Here, unlike Burnett, the trial court assessed minimum fees, but delayed Hart’s

      indigency hearing pending the probation department’s assessment of Hart’s

      “employment opportunities,” ability to pay, and the court’s determination of


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2174 | May 8, 2019         Page 5 of 6
       the appropriate probation user fees depending on how Hart’s “financial ability .

       . . to pay a probation user’s fee change[d]” while Hart completes probation.

       App. Vol. II p. 49; see I.C. § 35-38-2-1.7(b).


[10]   Inasmuch as Section 1.7(b) explicitly permits a probation department to assess a

       probationer’s ability to pay and to request the trial court to increase or impose

       additional probation fees, we cannot find an abuse of discretion here. See I.C. §

       35-38-2-1.7(b); Tr. Vol. II p. 10. The trial court did not impermissibly delegate

       its authority to impose fees. Rather, the trial court delegated the assessment of

       Hart’s ability to pay fees to the probation department; stated that it would

       review the matter of probation user fees in thirty to sixty days; and indicated

       that Hart could request a hearing regarding the fees. 3


                                                    Conclusion
[11]   The trial court did not abuse its discretion in delaying Hart’s indigency hearing

       pending the probation department’s assessment of Hart’s financial

       circumstances. We affirm.


[12]   Affirmed.


       Baker, J., and May, J., concur.




       3
        Further, we note that the delayed indigency hearing resulted, as a practical matter, from the fact that Hart
       was already incarcerated at the time of sentencing and would not begin serving his 180-day probation term
       until he was released from incarceration in March 2019.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2174 | May 8, 2019                         Page 6 of 6
