                                                                    Mar 06 2015, 9:44 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Suzy St. John                                             Gregory F. Zoeller
Marion County Public Defender                             Attorney General of Indiana
Indianapolis, Indiana
                                                          Kenneth E. Biggins
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Demand Johnson,                                           March 6, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1406-CR-437
        v.                                                Appeal from the Marion Superior
                                                          Court.
                                                          The Honorable Amy Jones, Judge.
State of Indiana,                                         Cause No. 49F08-1402-CM-9023
Appellee-Plaintiff




Baker, Judge.




Court of Appeals of Indiana | Opinion 49A02-1406-CR-437 | March 6, 2015                    Page 1 of 5
[1]   Demand Johnson appeals the trial court’s order that he pay $340 for probation

      fees. Specifically, Johnson argues that the trial court abused its discretion when

      it ordered him to pay probation fees without first conducting an indigency

      hearing. We find no requirement that a trial court should conduct an indigency

      hearing at the time probation fees are ordered. Nevertheless, the trial court has

      a duty to conduct an indigency hearing before or upon the completion of a

      defendant’s sentence. Additionally, probation fees should reflect the time a

      defendant actually served on probation. Therefore, we remand to the trial court

      to conduct an indigency hearing upon the completion of Johnson’s sentence

      and to reassess probation fees relative to the time that Johnson served on

      probation.


                                                      Facts
[2]   Johnson was found guilty of Carrying a Handgun Without a License, a Class A

      misdemeanor, and Possessing Alcohol as a Minor, a Class C misdemeanor. On

      May 28, 2014, Johnson was sentenced to 365 days in prison, with 361 days

      suspended to probation. The trial court found that Johnson was indigent to

      court costs and other fees. However, as a condition of his probation, Johnson

      was ordered to pay a probation administration fee of $50 and a probation user

      fee of $290. The trial court ordered a sliding fee scale for the probation fees, but

      delayed making an indigency determination until more information regarding

      Johnson’s financial situation came to light. The probation fees reflected the

      total sum that Johnson was required to pay for the twelve months he was to

      serve on probation. On October 21, 2014, Johnson admitted to violating the

      Court of Appeals of Indiana | Opinion 49A02-1406-CR-437 | March 6, 2015    Page 2 of 5
      terms of his probation by failing to report to the Probation Department as

      directed and by failing to obtain/maintain full-time employment. Appellant’s

      App. p. 33-35. On October 24, 2014, Johnson again violated the terms of his

      probation when he was arrested and charged with Criminal Trespass. Id. at 36-

      37. Following these violations, Johnson’s probation was revoked by the trial

      court on November 7, 2014. Id. at 38. Thus, Johnson served approximately

      five months’ probation before revocation. Id. at 38. Johnson has yet to pay any

      amount towards the probation fees. It is unclear from the record whether

      Johnson has completed his sentence. Johnson now appeals.


                                    Discussion and Decision
[3]   Sentencing decisions include decisions to impose fees and costs. Berry v. State,

      950 N.E.2d 798, 799 (Ind. Ct. App. 2011). 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)). “If the fees imposed by the trial court fall within the

      parameters provided by statute, we will not find an abuse of discretion.” Berry,

      950 N.E.2d at 799.


[4]   Johnson argues that the trial court abused its discretion when it ordered him to

      pay $340 in probation fees without first conducting an indigency hearing.


      Court of Appeals of Indiana | Opinion 49A02-1406-CR-437 | March 6, 2015     Page 3 of 5
      Johnson rightly asserts that, under Indiana Code section 33-37-2-3, if a trial

      court imposes costs on a defendant, a trial court is required to conduct an

      indigency hearing. However, “the statute does not otherwise dictate when the

      hearing is to be held.” Berry, 950 N.E.2d at 802; Ind. Code § 33-37-2-3. 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. See Ind. Code ch. 35-

      38-2 (no language in this chapter requires the trial court to conduct an

      indigency hearing before or directly after ordering probation fees). That being

      said, the trial court has a duty to conduct an indigency hearing at some point in

      time. I.C. § 33-37-2-3. At the latest, an indigency hearing for probation fees

      should be held at the time a defendant completes his sentence.1 Consequently,

      in this case, on the completion of Johnson’s sentence, the trial court should

      conduct an indigency hearing to assess Johnson’s ability to pay probation fees.


[5]   Also, the trial court ordered Johnson to pay probation fees of $340 for twelve

      months’ probation. However, the trial court revoked Johnson’s probation after

      he had served approximately five months. Appellant’s App. p. 38. Since the

      $340 in probation fees reflected a twelve-month probation and Johnson served

      only five of those months, the trial court should recalculate Johnson’s probation




      1
        However, if revocation of probation is a result of a defendant’s failure to pay fees and/or costs, the trial court
      has a duty to conduct an indigency hearing before revoking probation. Whedon v. State, 765 N.E.2d 1276,
      1279 (Ind. 2002) (“. . . [W]hen fines or costs are imposed upon an indigent defendant, such a person may not
      be imprisoned for failure to pay the fines or costs.”). However, Johnson’s probation was not revoked for
      failure to pay fees and/or costs; thus, an indigency hearing was not required when his probation was
      revoked.

      Court of Appeals of Indiana | Opinion 49A02-1406-CR-437 | March 6, 2015                                 Page 4 of 5
      fees, if appropriate, to correspond with the probation time Johnson actually

      served. I.C. § 35-38-2-1(e).


[6]   The judgment of the trial court is remanded to conduct an indigency hearing on

      the completion of Johnson’s sentence, whereupon, the trial court shall also

      recalculate the amount of probation fees owed, if any.


      Vaidik, C.J., and Riley, J., concur.




      Court of Appeals of Indiana | Opinion 49A02-1406-CR-437 | March 6, 2015   Page 5 of 5
