MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
                                                                         FILED
Memorandum Decision shall not be regarded as                        Oct 02 2017, 7:04 am
precedent or cited before any court except for the                       CLERK
purpose of establishing the defense of res judicata,                 Indiana Supreme Court
                                                                        Court of Appeals
collateral estoppel, or the law of the case.                              and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Victoria L. Bailey                                     Curtis T. Hill, Jr.
Marion County Public Defender Agency                   Attorney General of Indiana
Indianapolis, Indiana
                                                       Henry A. Flores, Jr.
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Kimberley Kennebrew,                                       October 2, 2017

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A02-1701-CR-1

        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Amy M. Jones,
                                                           Judge
Appellee-Plaintiff
                                                           Trial Court Cause No.
                                                           46G08-1601-CM-2729




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-1 | October 2, 2017          Page 1 of 4
                                          Case Summary
[1]   Appellant-Defendant Kimberley Kennebrew was convicted of two counts of

      Class A misdemeanor battery and the trial court entered judgment accordingly.

      In an amended judgment, the trial court merged the two convictions into one

      and, inter alia, imposed a $50 public defender fee. Kennebrew contends, and

      the State concedes, that the trial court abused its discretion in imposing the

      public defender fee. We reverse the trial court’s order that Kennebrew pay a

      public defender fee and remand for further proceedings.



                            Facts and Procedural History
[2]   On January 21, 2016, the State of Indiana charged Kennebrew with two counts

      of Class A misdemeanor battery. The imposition of a public defender fee was

      apparently not discussed at the initial hearing. On December 12, 2016, a jury

      found Kennebrew guilty as charged, and the trial imposed a 365-day sentence

      and $183 in court costs. On December 15, 2016, on Kennebrew’s motion, the

      trial court found Kennebrew indigent as to court costs and probation fees.

      Kennebrew filed her notice of appeal on January 4, 2017.


[3]   On March 7, 2017, the trial court held a restitution hearing in Kennebrew’s

      case. While the trial court did not order restitution, it did issue an amended

      sentencing order in which it merged Kennebrew’s conviction on Count II into

      her conviction on Count I. At the restitution hearing, the subject of imposing a

      public defender fee was not raised by either of the parties or the trial court.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-1 | October 2, 2017   Page 2 of 4
      However, the trial court’s amended sentencing order shows that a $50 public

      defender fee was now listed among Kennebrew’s obligations. On March 23,

      2017, Kennebrew filed a motion with this court asking to incorporate the

      March 7, 2017, proceedings into the record on appeal, which motion was

      granted on March 29, 2017.1


                                 Discussion and Decision
[4]   Kennebrew contends, and the State concedes, that the trial court abused its

      discretion in imposing a $50 public defender fee as part of her sentence. A trial

      court’s decision to impose fees as part of a criminal defendant’s sentence is

      reviewable for an abuse of discretion. Jackson v. State, 968 N.E.2d 328, 333

      (Ind. Ct. App. 2012) (citing Kimbrough v. State, 911 N.E.2d 621, 636 (Ind. Ct.

      App. 2009)). When a trial court imposes a fee authorized by statute, no abuse

      of discretion will be found. Jackson, 968 N.E.2d at 333. There are three statutes

      under which a trial court may impose a public defender fee. See Langdon v.

      State, 71 N.E.3d 1162, 1164 (Ind. Ct. App. 2017). Indiana Code section 33-35-

      7-6(a) permits a trial court to issue a public defender before the completion of

      the initial hearing coupled with a determination of whether the defendant is

      indigent. If found indigent, the fee is $100 for felony representation and $50 for

      misdemeanor representation. Id. Indiana Code section 33-40-3-6 permits a trial




      1
        On July 7, 2017, the State filed a motion to dismiss Kennebrew’s appeal, which motion Kennebrew
      opposed and our motions panel held in abeyance. In an order issued the same day as this memorandum
      decision, we deny the State’s motion to dismiss as moot.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-1 | October 2, 2017         Page 3 of 4
      court, upon a finding that a defendant can pay the costs of representation, to

      impose reasonable attorney fees. Finally, Indiana Code Section 33-37-2-3

      permits a trial court to impose a public defender fee upon a convicted defendant

      if the defendant is not found indigent. See Langdon, 71 N.E.3d at 1164.


[5]   There is no dispute that the trial court’s imposition of the public defender fee

      without a hearing constitutes an abuse of discretion. The only question before

      us is the one of the appropriate remedy, with Kennebrew requesting that we

      simply vacate the fee, and the State requesting that we remand the case for

      further proceedings. Because the issue of a public defender fee did not arise in

      the trial court, there is, quite simply, no way to know if such a fee can be

      justified on the record before us. In a similar case, we concluded that the

      proper remedy was to “remand to the trial court with instructions to observe the

      statutory requirements if it intends to impose public defender fees.” Jackson,

      968 N.E.2d at 334. We see no reason to deviate from that approach in this

      case. We remand for further proceedings consistent with our holding in

      Jackson.


[6]   The judgment of the trial court is reversed in part and remanded with

      instructions.


      May, J., and Barnes, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-1 | October 2, 2017   Page 4 of 4
