MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any
                                                                          Nov 22 2017, 5:28 am
court except for the purpose of establishing
the defense of res judicata, collateral                                        CLERK
                                                                           Indiana Supreme Court
estoppel, or the law of the case.                                             Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Rory Gallagher                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Angela N. Sanchez
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Lamarcus Williams,                                      November 22, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1706-CR-1199
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable David Certo, Judge
Appellee-Plaintiff.                                     The Honorable David Hooper,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        49G12-1601-CM-1518



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1199 | November 22, 2017           Page 1 of 10
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Lamarcus Williams (Williams), appeals the trial court’s

      order requiring him to pay certain costs and probation fees.


[2]   We remand with instructions.


                                                   ISSUE
[3]   Williams presents one issue on appeal, which we restate as: Whether the trial

      court conducted an adequate indigency hearing to determine Williams’ ability

      to pay certain costs and probation fees.


                      FACTS AND PROCEDURAL HISTORY
[4]   On December 4, 2015, Williams, along with his mother and brother, travelled

      to Mississippi to attend a funeral. In order to travel to Mississippi, Williams’

      mother rented a vehicle from Avis Car Rental (Avis) at the Indianapolis

      Airport. Williams brought his handgun with him for protection and when the

      car was returned to Avis, he left it loaded underneath the driver’s seat. Avis

      later discovered the handgun and handed it over to the Indianapolis

      Metropolitan Police Department. When Williams was contacted by the police,

      Williams admitted that the handgun belonged to him and that he did not

      possess a permit.


[5]   On January 15, 2016, the State filed an Information, charging Williams with

      one Count of carrying a handgun without a license, a Class A misdemeanor. A

      jury trial was conducted on May 11, 2017, and the jury found Williams guilty

      Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1199 | November 22, 2017   Page 2 of 10
as charged. On the same day, the trial court conducted Williams’ sentencing

hearing. During closing arguments, the State recommended no jail time, sixty

hours of community service, and for Williams’ probation to terminate upon

payment of all fees. The State additionally sought for the destruction of

Williams’ handgun. William’s counsel, in turn, argued:


        Judge, I’ll just summarize. You know, the facts of this case, you
        know, this wasn’t an incident where he showed up at a, you
        know, ex-girlfriend’s house with a gun or anything like that. I
        would also like to point out that he does have a job. He is
        supporting his children who live with him. He lives with his
        [fiancée], who is in the courtroom right now and who has been in
        the courtroom throughout today.


        Again, he has no criminal history. So, honestly, I was going to
        recommend very close to what the State recommended. I was
        actually going to recommend 45 hours of community service,
        probation, and probation to terminate upon completion of—or
        probation to terminate upon completion of the community
        service and the paying of all fines and fees.


(Sentencing Tr. p. 105). After the parties’ submissions, the following exchange

occurred between the trial court, Williams’ counsel, and Williams:


        [TRIAL COURT]: How much does he make at his job?


        [WILLIAMS’ COUNSEL]: He makes $14 an hour, Judge, and
        he works from 11:00 to 7:00.


        [TRIAL COURT]: 40 hours a week?



Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1199 | November 22, 2017   Page 3 of 10
              [WILLIAMS]: Yes, sir.


              [TRIAL COURT]: How many kids does he have?


              [WILLIAMS]: Now? Five.


              [TRIAL COURT]: Five kids. And, gun destruction? Your
              response?


              [WILLIAMS’ COUNSEL]: Yes. We’re fine with that.


              [TRIAL COURT]: Fine with the gun destruction?


              [WILLIAMS’ COUNSEL]: Yes.


      (Sentencing Tr. p. 105).


[6]   The trial court then sentenced Williams to an executed sentence of two days

      and 363 days suspended to probation. Williams was ordered to complete forty-

      five hours of community service as well. The trial court additionally stated,

      because Williams is employed, “he will pay probation costs.” (Sentencing Tr.

      p. 106). Finally, the trial court stated that Williams’ probation would terminate

      “upon completion of all terms,” and “payment of all fees.” (Sentencing Tr. p.

      106). The trial court issued a written order on the same day. The order




      Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1199 | November 22, 2017   Page 4 of 10
included a section titled “Monetary Obligations,” which listed Williams’ costs

and probation fees 1 as follows:



    Part V                          MONETARY OBLIGATION



    Court Costs and Fees



    Adult Probation Administrative Fee -CR                                              $50.00
    Adult Probation Monthly and Initial User Fees - CR                                 $281.30
    Automated Record Keeping Fee - CR                                                   $19.00
    Court Administration Fee - CR                                                        $5.00
    Court Costs - City and Town - CR                                                     $3.60
    Court Costs- County - CR                                                            $32.40
    Court Costs - State – CR                                                            $84.00
    DNA Sample Processing Fee - CR                                                        $2.00
    Document Storage Fee - CR                                                            $5.00
    Indianapolis International Airport Authority                                         $4.00
    Judicial Insurance Adjustment Fee - CR                                               $1.00
    Judicial Salary Fee - CR                                                            $20.00
    Jury Fee - CR                                                                        $2.00
    Probation User Fee - Clerk’s 3% - CR                                                 $8.70
    Public Defense Administration Fee - CR                                                $5.00
    Safe Schools Fee - CR                                                              $200.00
                                                                                Total: $723.00




(Appellant’s App. Vol. II, p. 13).




1
  In imposing the costs and fees, the trial court specified the authorizing statute in this case being Indiana
Code Section 33-37-4-1 (governing the collection of court costs fees) and I.C. § 33-37-5-19 (governing the
collection of other additional fees).

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1199 | November 22, 2017             Page 5 of 10
[7]    Williams now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[8]    Williams contends that the trial court failed to conduct a hearing to determine

       whether he was indigent prior to the imposition of costs and other probation

       fees. Williams, therefore, wants us to vacate the mandated costs and fees. In

       response, the State argues that vacating the costs and fees is not an appropriate

       remedy; rather, we should remand to the trial court if we determine that the

       trial court did not conduct an adequate indigency hearing.


[9]    Sentencing decisions, which include the imposition of fees, costs, and fines, are

       generally left to the trial court’s discretion. Bex v. State, 952 N.E.2d 347, 354

       (Ind. Ct. App. 2011), trans. denied. 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. at 588 (quoting K.S. v. State, 849

       N.E.2d 538, 544 (Ind. 2006)).


[10]   In the instant case, Williams was ordered to pay certain court costs, fines, and

       probation fees. Indiana Code Section 33-37-4-1 sets forth the costs the court

       shall collect from convicted defendants by operation of law. In addition, where,

       as here, a person is convicted of a misdemeanor, the trial court has discretion to

       impose probation fees. I.C. § 35-38-2-1(b).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1199 | November 22, 2017   Page 6 of 10
[11]   The Indiana legislature requires indigency hearings as to the imposition of fines

       and costs. See I.C. § 33-37-2-3(a) (providing “when the court imposes costs, it

       shall conduct a hearing to determine whether the convicted person is

       indigent”); and I.C. § 35-38-1-18 (providing the same for court-imposed fines).

       With respect to probation fees, we have held 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.” Johnson v. State, 27 N.E.3d 793, 795

       (Ind. Ct. App. 2015) (citing I.C. ch. 35-38-2). However, the trial court has a

       duty to conduct an indigency hearing, at the latest, upon the completion of the

       defendant’s sentence. Id.


[12]   Williams states that his case mimics the factual scenario in this court’s decision

       of Burnett v. State, 74 N.E.3d 1221, 1227 (Ind. Ct. App. 2017). In Burnett,

       Burnett was charged with operating a vehicle while intoxicated endangering a

       person, a Class A misdemeanor. Id. Following a bench trial, Burnett was

       found guilty as charged. Id. During the sentencing phase, the trial court asked

       one question to determine Burnett’s financial situation. Id. After Burnett

       expressed that she made less than $20,000, the trial court sentenced her to 365

       days with five days executed and the remainder suspended to probation. Id.

       The trial court ordered Burnett to pay several court costs, fees, and fines, which

       were payable alongside other probation fees. Id. The trial court’s sentencing

       order and order of probation indicated that Burnett’s probation would become

       non-reporting after she had finished paying all her probation fees. Id. On

       appeal, Burnett argued that the trial court failed to conduct an adequate

       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1199 | November 22, 2017   Page 7 of 10
indigency hearing before it ordered her to pay certain probation fees. Id. In

turn, the State contended that the trial court did conduct an indigency hearing

based in part on its one question and on the fact that the record showed that

Burnett was employed as a nurse and wore her nurse’s uniform to trial. Id. We

agreed with Burnett and noted:


        While in some cases such a brief inquiry into a defendant’s
        financial situation may be sufficient—if, for example, the
        defendant reports a six-figure income or significant assets or has
        in some other way established herself as financially secure—in
        Burnett’s case, it was not. . . . In this case, a sufficient indigency
        hearing would consist of the trial court asking Burnett questions
        in order to assess her actual ability to pay. Such questions might
        include asking about her exact yearly income, her assets or debts,
        or any financial expenses that could have an impact on her
        ability to pay fees, such as the cost of her rent, utilities, or
        transportation to and from work, medical expenses, or any
        dependents.


Id. at 1227. In the instant case, we observe the existence of conflicting evidence

in the record concerning Williams’ financial status. Although Williams

retained private counsel and was employed at the time of sentencing, the trial

court subsequently appointed appellate counsel. At his sentencing, Williams’

trial counsel’s argument for Williams’ probation was to “terminate upon

completion of the community service and the paying of all fines and fees,”

instead of requesting the trial court to find Williams indigent for the purposes of

paying costs and fines. (Sentencing Tr. p. 105).




Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1199 | November 22, 2017   Page 8 of 10
[13]   We agree with Williams’ that the facts of this case militate a similar finding as

       stipulated in Burnett. Like in Burnett, the trial court engaged in a superficial

       review of Williams’ financial status. The trial court did not ask whether

       Williams had any debts, whether he paid any child support, or whether the trial

       court should know anything else about his financial circumstances that would

       impact his ability to pay mandated costs and fees. Instead, all the trial court

       asked was how many hours Williams worked, how much he earned, and how

       many children he had. Based on the limited exchange between the trial court

       and Williams regarding his financial position, we conclude that the trial court

       did not conduct a sufficient indigency hearing with regards to Williams’ costs.

       See I.C. § 33-37-2-3(a). Therefore, because the court ordered Williams to pay

       costs and fees without conducting an adequate indigency hearing, the proper

       remedy is to remand to the trial court for such a hearing. See Briscoe v. State, 783

       N.E.2d 790, 792 (Ind. Ct. App. 2003) (stating that “[w]here a trial court fails to

       conduct an indigency hearing when required, the proper remedy is to remand

       with instructions to hold such a hearing”).


[14]   With respect to Williams’ probation fees, as we discussed above, the 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.” Johnson, 27 N.E.3d at

       795 (citing I.C. ch. 35-38-2). Consequently, in this case, on the completion of

       Williams’ sentence the trial court should conduct an indigency hearing to assess

       Williams’ ability to pay probation fees.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1199 | November 22, 2017   Page 9 of 10
                                            CONCLUSION
[15]   For the foregoing reasons, we remand with instructions to the trial court to

       determine whether Williams is indigent for the purposes of paying the costs and

       probation fees.


[16]   Remanded with instructions.


[17]   Robb, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1199 | November 22, 2017 Page 10 of 10
