                                                                           FILED
                                                                       Dec 11 2018, 9:22 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
Indianapolis, Indiana                                     Jesse R. Drum
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Aaron A. Negash,                                          December 11, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-840
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable David J. Certo,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49G09-1705-CM-18997



Pyle, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018                           Page 1 of 22
                                        Statement of the Case

[1]   Aaron Negash (“Negash”) appeals his convictions, following a bench trial, for

      Class A misdemeanor carrying a handgun without a license 1 and Class A

      misdemeanor possession of a synthetic drug or lookalike substance.2 Negash

      argues that: (1) the trial court abused its discretion when it admitted the

      synthetic marijuana he possessed into evidence because it had been seized

      pursuant to an illegal search; (2) there was insufficient evidence to support his

      carrying a handgun without a license conviction; and (3) the trial court erred by

      ordering Negash to pay probation fees.


[2]   We conclude that: (1) the trial court properly admitted the evidence; (2) there

      was sufficient evidence to support his carrying a handgun without a license

      conviction; and (3) the trial court did not err in imposing probation fees.

      However, we remand to the trial court to hold an indigency hearing upon the

      completion of Negash’s sentence.


[3]   We affirm and remand with instructions.


                                                     Issues

             1. Whether the trial court abused its discretion when it admitted the
                synthetic marijuana into evidence.




      1
          IND. CODE § 35-47-2-1.
      2
          I.C. § 35-48-4-11.5.


      Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018       Page 2 of 22
          2. Whether there was sufficient evidence to support Negash’s carrying a
             handgun without a license conviction.

          3. Whether the trial court abused its discretion by ordering Negash to pay
             probation fees.

                                                        Facts

[4]   On the night of May 22, 2017, police from the Indianapolis Metropolitan Police

      Department were dispatched to the Living Room Lounge in Indianapolis on a

      report of shots fired. When Officer Matthew Plummer (“Officer Plummer”)

      and Sergeant Mark Gregory (“Sgt. Gregory”) arrived on scene, a suspect was

      already in custody. They learned that another vehicle was involved in the

      incident and that a vehicle with three occupants was parked behind the

      building. Officer Plummer and Sgt. Gregory “walked up and started conversing

      with the occupants in the vehicle.” (Tr. 12).


[5]   Negash, who identified himself as “Moses,” was seated in the driver’s seat of

      the vehicle.3 (Tr. 23). There was one front-seat passenger and one back-seat

      passenger. Officer Plummer spoke with Negash and the back-seat passenger

      and informed them that he and Sgt. Gregory were investigating a report of shots

      fired. Officer Plummer asked the occupants whether they “had [] heard

      anything, [and] [whether] there [were] any weapons in the vehicle[.]” (Tr. 12).

      The three occupants responded “no.” (Tr. 12). While Officer Plummer focused




      3
       Moses Negash (“Moses”) is Negash’s brother. During the bench trial, Moses testified that he owned the
      handgun and vehicle. He further testified that he allowed Negash to use the vehicle that night and left the
      handgun in his car that day, something he does not normally do.

      Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018                              Page 3 of 22
      on Negash and the back-seat passenger, Sgt. Gregory spoke to the front-seat

      passenger, who was “moving around, reaching for the glovebox, going for his

      wristband, [and] pulling his shirt up.” (Tr. 13). The back-seat passenger did

      not say anything to Officer Plummer, but he pointed to Negash and made “the

      outline [of] a gun with his index finger and his thumb.” (Tr. 13).


[6]   Officer Plummer then asked Negash to step out of the vehicle. As Negash

      stepped out of the vehicle, Officer Plummer observed “a huge bulge in

      [Negash’s] right pocket, sticking out, protruding.” (Tr. 14). Officer Plummer

      immediately conducted a pat-down of the outer layer of Negash’s clothing and

      felt “a baggie of narcotics.” (Tr. 14). During the pat-down, Officer Plummer

      also “looked down as [he] patted down and [could] see straight into the

      pocket.” (Tr. 15). Based on his experiences as a law enforcement officer,

      Officer Plummer recognized that the baggie contained synthetic marijuana. 4

      Officer Plummer arrested Negash and seized the synthetic marijuana. The

      police then searched the vehicle and located a handgun in the glovebox. The

      hammer of the handgun was cocked back and the gun was loaded.




      4
        In explaining how he was able to identify that the baggie contained synthetic marijuana, Officer Plummer
      testified as follows:
               Since I’ve been downtown, synthetic marijuana has plagued the downtown district. I’ve
               only been downtown for approximately, a little over two years. I’ve come into contact
               with it approximately 100 plus times. I’m familiar with it. I’m familiar with how
               individuals act while smoking the spice. And then just, it’s something I’ve come across a
               lot in my investigations downtown.
      (Tr. 15-16).

      Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018                             Page 4 of 22
[7]   Negash stood at the hood of the police vehicle while Officer Plummer was in

      the same vehicle trying to verify Negash’s identity in the computer system. Sgt.

      Gregory leaned into Officer Plummer’s window and asked, “is someone going

      to be arrested for the gun?” (Tr. 27). Negash interjected and stated, “I have a

      permit for that gun. It’s in the trunk.” (Tr. 27). Officer Plummer went to the

      trunk but did not find a gun permit.


[8]   The State charged Negash with Class A misdemeanor carrying a handgun

      without a license and Class A misdemeanor possession of a synthetic drug or

      lookalike substance. A bench trial was held on February 13, 2018. At trial,

      Officer Plummer and Moses Negash testified to the facts above. When the

      State introduced the synthetic marijuana into evidence, defense counsel

      objected and stated the following:


              I do object to State’s exhibit 1, Your Honor, and I would call for
              the baggie and its contents and the testimony around it to be
              excluded under the application of the exclusionary rule. It’s fruit
              of the poisonous tree from an unlawful search.

                                                       * * *


              When he asked Mr. Negash to step out of the car, it became a
              detention, and at that time Mr. Negash was not advised of his
              [P]irtle rights.

                                                       * * *


              It wasn’t a gun, and he used further intrusive means of looking
              into my client’s pocket and violated his right to having a warrant
              for any search or consenting to a search by being read his [P]irtle
              rights and waiving those rights.


      Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018      Page 5 of 22
      (Tr. 18). The trial court overruled the objection and admitted the synthetic

      marijuana into evidence. The trial court found Negash guilty of both counts.


[9]   Thereafter, the trial court held a sentencing hearing. During this hearing, the

      trial court ordered Negash to “do [] [three hundred and five] (305) days on

      probation with the standard conditions and fees.” (Tr. 62). Additionally, the

      sentencing order, under the “Amount/Comment” section of “Part IV

      Sentencing Conditions[,]” provided, in relevant part, that: Negash would be

      subject to all “standard conditions and fees” of probation. (App. Vol. II at 13).

      Further, the sentencing order, under the “Court Costs and Fees” section of

      “Part V Monetary Obligations[,]” provided, in relevant part, that Negash was

      obligated to pay: a $50.00 adult probation administrative fees; a $281.30 adult

      probation month and initial user fee; and a $8.70 probation user fee. (App. Vol.

      II at 14). The probation order for Negash lists fourteen standard conditions,

      including “pay all Court-ordered fines, costs, fees and restitution as directed.”

      (App. Vol. II at 15). The special conditions section of the probation order

      includes that same conditions as in the sentencing order. The trial court

      imposed a sentence of thirty (30) days in the Marion County Jail, with the

      remaining three hundred and five (305) days to be served on probation with all

      the standard conditions and fees for each of the Class A misdemeanor

      convictions. The trial court ordered both convictions to run concurrently.

      Negash now appeals.


                                                   Decision


      Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018      Page 6 of 22
[10]   On appeal, Negash argues that: (1) the trial court abused its discretion when it

       admitted the synthetic marijuana he possessed into evidence because it had

       been seized pursuant to an illegal search; (2) there was insufficient evidence to

       support his carrying a handgun without a license conviction; and (3) the trial

       court erred in imposing probation fees. We will review each argument in turn.


       1. Admission of Evidence


[11]   First, Negash argues that the trial court abused its discretion when it admitted

       into evidence the synthetic marijuana Officer Plummer had seized.

       Specifically, he argues that the search that produced the synthetic marijuana

       was illegal because it violated his rights under the Fourth Amendment to the

       United States Constitution and Article 1, Section 11 of the Indiana

       Constitution.


[12]   The admission of evidence is generally left to the discretion of the trial court.

       Hammond v. State, 82 N.E.3d 880, 884 (Ind. Ct. App. 2017). We review

       admissibility challenges for an abuse of that discretion and will reverse only

       when the admission of evidence is clearly against the logic and effect of the facts

       and circumstances before the court and the error affects the party’s substantial

       rights. Id. “‘[W]hen an appellant’s challenge to such a ruling is predicated on

       an argument that impugns the constitutionality of the search or seizure of

       evidence, it raises a question of law, and we consider that question de novo.’”

       Id. (quoting Guilmette v. State, 14 N.E.3d 38, 40-41 (Ind. 2014)). Generally




       Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018       Page 7 of 22
       speaking, evidence obtained pursuant to an unlawful search must be excluded

       at trial. Clark v. State, 994 N.E.2d 252, 266 (Ind. 2013).


       A. United States Constitution


[13]   The Fourth Amendment to the United States Constitution provides that citizens

       have the right to be “secure in their persons, houses, papers, and effects, against

       unreasonable searches and seizures[.]” U.S. CONST. amend. IV. We begin by

       noting that there are three levels of police investigation, two of which implicate

       the Fourth Amendment and one of which does not. Overstreet v. State, 724

       N.E.2d 661, 663 (Ind. Ct. App. 2000), reh’g denied, trans denied. First, the

       Fourth Amendment requires that an arrest or detention that lasts for more than

       a short period of time must be justified by probable cause. Id. Second, the

       police may, without a warrant or probable cause, briefly detain an individual

       for investigatory purposes if, based upon specific and articulable facts, the

       officer has a reasonable suspicion that criminal activity has or is about to occur.

       Id. The third level of investigation occurs when a police officer makes a casual

       and brief inquiry of a citizen, which involves neither an arrest nor a stop. Id.

       This third level is a consensual encounter in which the Fourth Amendment is

       not implicated. Id. The Fourth Amendment is not triggered unless an

       encounter between a law enforcement officer and a citizen loses its consensual

       nature. Id.


[14]   A law enforcement officer’s approach to a vehicle parked in a public place does

       not itself implicate the Fourth Amendment. Powell v. State, 912 N.E.2d 853,


       Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018      Page 8 of 22
       861 (Ind. Ct. App. 2009). While the individual remains free to leave, the

       encounter is consensual and there has been no violation of the individual’s

       Fourth Amendment rights. State v. Calmes, 894 N.E.2d 199, 202 (Ind. Ct. App.

       2008). “Detention turns on an evaluation, under all the circumstances, of

       whether a reasonable person would feel free to disregard the police and go

       about his or her business.” Finger v. State, 799 N.E.2d 528, 532 (Ind. 2003).

       Examples of circumstances under which a reasonable person would believe he

       was not free to leave include: (1) the threatening presence of several officers, (2)

       the display of a weapon by an officer, (3) physical touching of the person, or (4)

       the use of language or tone of voice indicating that compliance with the officer’s

       request might be compelled. Overstreet, 724 N.E.2d at 664.


[15]   Here, Negash was seated in a vehicle that was parked behind the Living Room

       Lounge. The record reveals that Officer Plummer and Sgt. Gregory

       approached the vehicle on foot. The officers displayed no weapons as they

       approached Negash’s vehicle. Nor did they use any language or speak in a tone

       of voice which mandated compliance. We cannot say that Officer Plummer’s

       approach to the parked vehicle and initial contact with Negash constituted an

       investigatory stop or seizure under the Fourth Amendment. Therefore, Officer

       Plummer did not have to possess reasonable suspicion of wrong doing in order

       to approach the vehicle to ask Negash and other occupants their purpose for

       being in the area. See Overstreet, 724 N.E.2d at 664 (holding that an interaction

       between an officer and the defendant was a consensual encounter and thus the




       Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018       Page 9 of 22
       officer was not required to possess reasonable suspicion of wrongdoing to

       approach the defendant).


[16]   Negash argues that Officer Plummer’s request for Negash to exit the vehicle

       and subsequent pat-down of Negash’s pocket violated the Fourth Amendment.

       It is well-settled that an officer may conduct a

                reasonable search for weapons for the protection of the police
                officer, where he has reason to believe that he is dealing with an
                armed and dangerous individual, regardless of whether he has
                probable cause to arrest the individual for a crime. The officer
                need not be absolutely certain that the individual is armed; the
                issue is whether a reasonably prudent man in the circumstances
                would be warranted in the belief that his safety or that of others
                was in danger.

       Wilson v. State, 745 N.E.2d 789, 792 (Ind. 2001) (quoting Terry v. Ohio, 392 U.S.

       1, 27 (1968)).5 After Officer Plummer explained that he was there investigating

       a report of shots fired and asked Negash and the back-seat passenger if they had

       heard anything, the back-seat passenger pointed to Negash and made “the

       outline [of] a gun with his index finger and his thumb.” (Tr. 13). Additionally,

       the front seat passenger acted suspiciously by “moving around, reaching for the

       glovebox, going for his waistband, [and] pulling his shirt up.” (Tr. 13). See

       Wyoming v. Houghton, 526 U.S. 295, 304-05 (1999) (noting that “a car passenger

       . . . will often be engaged in a common enterprise with the driver, and have the

       same interest in concealing the fruits or the evidence of their wrongdoing”).




       5
         In Terry v. Ohio, the Supreme Court defined a “Terry” frisk as a pat down search that involves a “carefully
       limited search of the outer clothing of the suspect in an attempt to discover weapons which might be used to
       assault [an officer].” Shinault v. State, 668 N.E.2d 274, 277 (Ind. Ct. App. 1996).

       Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018                             Page 10 of 22
       Taken together, we conclude that Officer Plummer had reason to believe that

       he was dealing with an individual who was likely armed and dangerous, thus

       supporting his request that Negash step out of the vehicle and the subsequent

       pat down. As soon as Negash stepped out of the vehicle, Officer Plummer

       observed “a huge bulge in his right pocket, sticking out, protruding.” (Tr. 14).

       Officer Plummer then conducted a limited search of Negash’s outer clothing

       and felt “a baggie of narcotics,” which he could also see inside of Negash’s right

       pocket. (Tr. 14). Because Officer Plummer saw the synthetic marijuana,

       seizure of the baggie was proper pursuant to the “plain view doctrine.” See

       Corwin v. State, 962 N.E.2d 118, 122 (Ind. Ct. App. 2012) (holding that the

       warrantless seizure of contraband is justified during a Terry frisk if the object’s

       identity as contraband is “immediately apparent or instantaneously

       ascertainable”), trans. denied. See also Hannibal v. State, 804 N.E.2d 206, 210-11

       (Ind. Ct. App. 2004) (concluding that the seizure of marijuana was proper

       under the plain view doctrine). Therefore, the initial encounter, request for

       Negash to exit the vehicle, and subsequent pat down did not violate the Fourth

       Amendment.


       B. Article 1, Section 11 of the Indiana Constitution


[17]   Negash also asserts that Officer Plummer’s initial approach towards the vehicle

       and subsequent pat-down violated Article 1, Section 11 of the Indiana

       Constitution. Article 1, Section 11, like the Fourth Amendment, prohibits

       unreasonable searches and seizures. However, the legality of a search under the

       Indiana Constitution “turns on an evaluation of the reasonableness of the police

       Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018      Page 11 of 22
       conduct under the totality of the circumstances.” Litchfield v. State, 824 N.E.2d

       356, 359 (Ind. 2005). Reasonableness of a search depends on a balance of: (1)

       the degree of concern, suspicion, or knowledge that a violation has occurred; (2)

       the degree of intrusion the method of the search or seizure imposes on the

       citizen’s ordinary activities; and (3) the extent of law enforcement needs. Id. at

       361. “It is the State’s burden to show that its intrusion into ‘those areas of life

       that Hoosiers regard as private,’ was reasonable under the totality of the

       circumstances.” Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2013) (quoting

       State v. Quirk, 842 N.E.2d 334, 339-40 (Ind. 2006)).


[18]   The State argues that Negash has waived this state constitutional claim because

       he did not object to the admission of evidence on those grounds before the trial

       court. At trial, Negash objected to the search on the grounds he was not

       provided with the warnings required under Pirtle v. State, 323 N.E.2d 634

       (1975), and that the search violated the Fourth Amendment. On appeal, his

       argument is based on the factors from Litchfield. “It is well-settled in Indiana

       that a defendant may not argue one ground for objection at trial and then raise

       new grounds on appeal.” Gill v. State, 730 N.E.2d 709, 711 (Ind. 2000).

       Accordingly, we agree with the State that Negash has waived his state

       constitutional claim. See Redfield v. State, 78 N.E.3d 1104, 1108 (Ind. Ct. App.

       2017) (finding waiver when, “in his arguments to the trial court, Redfield

       mentioned Article 1, Section 11 but did not provide any independent analysis

       under that provision of the laws and facts”), trans. denied.




       Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018       Page 12 of 22
[19]   Waiver notwithstanding, it is clear that Officer Plummer’s initial approach and

       subsequent pat-down were reasonable under Article 1, Section 11. Specifically,

       he had a high degree of suspicion that a violation had occurred because he was

       in the process of investigating a report of shots fired with an alleged suspect still

       at large; the front-seat passenger was acting suspiciously and making furtive

       gestures; and the back-seat passenger pointed to Negash and made “the outline

       [of] a gun with his index finger and his thumb.” (Tr. 13). Then, Officer

       Plummer observed a “huge bulge in [Negash’s] right pocket, sticking out,

       protruding.” (Tr. 14). Officer Plummer then patted down the outer layer of

       Negash’s clothing and felt “a baggie of narcotics,” and he could see the baggie

       of synthetic marijuana in Negash’s pocket. (Tr. 14).


[20]   In addition, the degree of intrusion was slight. The record reveals that the

       police approached Negash’s vehicle on foot and did not impede his movement.

       Officer Plummer did not display a weapon, show any force, or put his hands on

       Negash until he had reason to believe that Negash was armed and dangerous.

       Even then, the degree of intrusion for the initial search was low. See Robinson v.

       State, 5 N.E.3d 362, 368 (Ind. 2014) (describing a Terry stop as a “relatively

       minor” intrusion).


[21]   Finally, law enforcement needs were high. The police were investigating a

       shooting where an alleged suspect was still at large. As detailed above, based

       on the front-seat passenger’s behavior and the backseat passenger’s signal that

       Negash possessed a gun, Officer Plummer needed to conduct a pat down of

       Negash for weapons for police and public safety.

       Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018       Page 13 of 22
[22]   In light of the above factors, we conclude that Officer Plummer’s search was

       reasonable and did not violate the Indiana Constitution. Because we have also

       found that the search did not violate the Fourth Amendment, we, thus, also

       conclude that the trial court did not abuse its discretion in admitting into

       evidence the synthetic marijuana discovered in Negash’s pocket.


       2. Sufficiency of Evidence


[23]   Next, Negash challenges the sufficiency of the evidence for his carrying a

       handgun without a license conviction. He specifically contends that there is

       insufficient evidence that he possessed the handgun. Our standard of review for

       sufficiency of evidence claims is well-settled. We do not assess the credibility of

       the witnesses or reweigh the evidence in determining whether the evidence is

       sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We consider only

       the probative evidence and reasonable inferences supporting the verdict. Id.

       Reversal is appropriate only when no reasonable fact-finder could find the

       elements of the crime proven beyond a reasonable doubt. Id. Thus, the

       evidence is not required to overcome every reasonable hypothesis of innocence

       and is sufficient if an inference may reasonably be drawn from it to support the

       verdict. Id. at 147.


[24]   In order to convict Negash of carrying a handgun without a license, the State

       was required to prove beyond a reasonable doubt that Negash “carr[ied] a

       handgun in any vehicle or on or about [his] body without being licensed under

       this chapter to carry a handgun.” I.C. § 35-47-2-1. To prove that a defendant


       Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018     Page 14 of 22
       possessed contraband, the State may prove either actual or constructive

       possession. Eckrich v. State, 73 N.E.3d 744, 746 (Ind. Ct. App. 2017), trans.

       denied. Actual possession occurs “when a person has direct physical control

       over [an] item.” Sargent v. State, 27 N.E.3d 729, 733 (Ind. 2015). When a

       person does not have direct physical control over an item, as was the case here,

       the person may still have constructive possession of the item if he “‘has (1) the

       capability to maintain dominion and control of [it]; and (2) the intent to

       maintain dominion and control over it.’” Id. (quoting Gray v. State, 957 N.E.2d

       171, 174 (Ind. 2011)). In cases where the accused has exclusive possession of

       the premises on which the contraband is found, an inference is permitted that

       he knew of the presence of the contraband and was capable of controlling it.

       Harrison v. State, 32 N.E.3d 240, 248 (Ind. Ct. App. 2015), trans. denied.

       “[W]hen possession of the premises is non-exclusive, th[e] inference is

       permitted only if some additional circumstances indicate the defendant’s

       knowledge of the presence of the contraband and the ability to control it.” Id.

       Some of these recognized additional circumstances include: (1) incriminating

       statements made by the defendant; (2) attempted flight or furtive gestures; (3) a

       drug manufacturing setting; (4) proximity of the defendant to the contraband;

       (5) the contraband being in plain view; and (6) the location of the contraband

       being in close proximity to items owned by the defendant. Id.


[25]   Here, Negash had the capability to maintain dominion and control over the

       handgun. The State meets this requirement when it “shows that the defendant

       is able to reduce the [contraband] to [the] defendant’s personal possession.”


       Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018      Page 15 of 22
       Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified on reh’g on other

       grounds, 685 N.E.2d 698 (Ind. 1997). Because the handgun was in the glove

       compartment and easily within reach of the driver’s seat, Negash was able to

       reduce the handgun to his personal possession. See id. at 1275.


[26]   Although Negash did not have exclusive possession of the vehicle where the

       firearm was found, there were additional circumstances proving Negash’s

       knowledge of the presence of the handgun and ability to control it. First,

       Negash made an incriminating statement. When Sgt. Gregory asked Officer

       Plummer if “someone [was] going to be arrested for the gun,” Negash

       interjected, “I have a permit for that gun. It’s in the trunk.” (Tr. 27). This

       claim of possessing a permit for the gun suggests Negash owned the handgun.

       In addition, the glovebox containing the handgun was in close proximity to

       Negash. Together, the incriminating statement and the Negash’s close

       proximity to the handgun demonstrate the additional circumstances required to

       show his knowledge of the handgun and ability to maintain dominion and

       control over it.


[27]   Based on this evidence, we find there was sufficient evidence that Negash

       constructively possessed the handgun to support his conviction for carrying a

       handgun without a license. Negash’s arguments are simply a request that we

       reweigh the evidence, which we cannot do. See Drane, 867 N.E.2d at 146.


       3. Probation Fees




       Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018     Page 16 of 22
[28]   Finally, Negash challenges the trial court’s decision regarding probation fees.

       He raises two, alternative arguments. First, Negash argues that the trial court

       “did not intend to impose the [probation] fees listed in the Sentencing Order.”

       (Negash’s Br. 28). Alternatively, he argues that if the trial court did impose

       fees, the trial court abused its discretion because it did not conduct an indigency

       hearing to determine if he is capable of paying the fees assessed to him.


[29]   “Sentencing decisions include decisions to impose fees and costs[,]” and “we

       review a trial court’s sentencing decision for an abuse of discretion.” Coleman v.

       State, 61 N.E.3d 390, 392 (Ind. Ct. App. 2016). An abuse of discretion occurs

       “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

       deduction 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.’” Id. (quoting Berry v. State, 950 N.E.2d 798, 799 (Ind. Ct. App.

       2011)).


[30]   The statute governing probation provides that whenever a trial court places a

       person on probation, the court is required to, among other things, “specify in

       the record the conditions of probation[.]” IND. CODE § 35-38-2-1(a). “If the

       person was convicted of a misdemeanor, the court may order the person to pay

       the user’s fee prescribed under subsection (e).” I.C. § 35-38-2-1(b) (emphasis

       added). Subsection (e) sets forth a list of fees, including the maximum amount

       for an initial probation user’s fee, and the maximum and minimum amount for



       Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018     Page 17 of 22
       a monthly probation user’s fee, that the trial “court may order each person

       convicted of a misdemeanor to pay[.]” I.C. § 35-38-2-1(e) (emphasis added).6


[31]   In Marion County, a local rule also provides that,


                  whenever an individual is placed on probation . . . the following
                  fees and costs shall be imposed under the Probation Court or
                  Probation Order unless the sentencing Judge specifically modifies
                  the Order. The fees and costs collected under the Court or
                  Probation Order shall be applied in this following descending
                  order of priority:

                     Administrative fee
                     Probation User fee
                     ...

       Marion LR49-CR00-115(b).


[32]   First, Negash argues that the trial court “did not intend to impose” any

       probation fees. (Negash’s Br. 28). Negash acknowledges that the trial court

       listed probation fees on the sentencing order, but he argues that because the

       ordered amount lines for the Probation Administrative Fee, Initial Probation

       User Fee, and Monthly Probation Fee on the order of probation form are blank,




       6
           Subsection (e) of INDIANA CODE § 35-38-2-1 provides 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; (3) the costs
                     of the laboratory test or series of tests to detect and confirm the presence of the
                     human immunodeficiency virus (HIV) antigen and antibodies to the human
                     immunodeficiency virus (HIV) if such tests are required by the court under
                     section 2.3 of this chapter; and (4) administrative fee of fifty dollars ($50); to
                     either the probation department or the clerk.

       Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018                                Page 18 of 22
       “such action shows [that] the trial court did not intend to impose the fees listed

       in the Sentencing Order.” (Negash’s Br. 28). The State responds that the trial

       court did order specific statutory probation fees on page two of the sentencing

       order: a $50.00 adult probation administrative fee; a $281.30 adult probation

       monthly and initial user fee; and a $8.70 probation user fee. The State contends

       that the “trial court did not abuse its discretion by ordering probation fees on

       page two of the [Marion County Sentencing] order instead of on page three.”

       (State’s Br. 2).


[33]   The “Marion County Sentencing Order” consisted of four pages. (see App. Vol.

       II 13-16). Pages one and two are made up of the sentencing order. Pages three

       and four are made up of the probation order. At sentencing, the trial court

       ordered Negash to “do those [three hundred and five] (305) days on probation

       with the standard conditions and fees.” (Tr. 62). Additionally, the sentencing

       order, under the “Amount/Comment” section of “Part IV Sentencing

       Conditions[,]” provided, in relevant part, that: Negash would be subject to all

       “standard conditions and fees” of probation. (App. Vol. II at 13). Importantly,

       the sentencing order also included a section for monetary obligations. That

       section of Negash’s order reads as follows:




       Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018     Page 19 of 22
(App. Vol. II at 14). Further, the order of probation provides, in relevant part,

as follows:




(App. Vol. II at 15). Negash is correct that the lines to fill out the fee amounts

for the Probation Administrative Fee; Initial User Fee; and Monthly Probation

Fee on the order of probation within the Marion County Sentencing Order are

blank. However, the special conditions section on the order of probation



Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018     Page 20 of 22
       includes all standard conditions and fees of probation. Based on the above, the

       trial court exercised its discretion and ordered probation fees.


[34]   Turning to Negash’s alternative argument, we agree that the trial court is

       required to hold an indigency hearing when imposing probation fees. See

       Johnson v. State, 27 N.E.3d 793, 795 (Ind. Ct. App. 2015) (explaining that a trial

       court is required to hold an indigency hearing for probation fees); see also I.C. §

       33-37-2-3 (providing that a court must conduct an indigency hearing when

       imposing costs); I.C. § 35-38-1-18 (providing that a court must conduct an

       indigency hearing when imposing a fine). However, there is no requirement as

       to when the indigency hearing must be held. See Johnson, 27 N.E.3d at 795. In

       regards to probation fees, our Court has explained that “[a] trial court acts

       within its authority when it chooses to wait and see if a defendant can pay

       probation fees before it finds the defendant indigent.” Id. See also Whedon v.

       State, 765 N.E.2d 1276, 1279 (Ind. 2002) (explaining that “a defendant’s

       financial resources are more appropriately determined not at the time of initial

       sentencing but at the conclusion of incarceration, thus allowing consideration of

       whether the defendant may have accumulated assets through inheritance or

       otherwise”). “At the latest, an indigency hearing for probation fees should be

       held at the time a defendant completes his sentence.” Johnson, 27 N.E.3d at

       795. Therefore, because the trial court imposed probation fees, it will need to

       hold an indigency hearing, at the latest, at the time that Negash completes his

       sentence.




       Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018      Page 21 of 22
[35]   Affirmed and remanded with instructions.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018   Page 22 of 22
