FOR PUBLICATION


ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

SUZY ST. JOHN                                  GREGORY F. ZOELLER
Indianapolis, Indiana                          Attorney General of Indiana

                                               JAMES B. MARTIN
                                               Deputy Attorney General

                                                                             FILED
                                               Indianapolis, Indiana

                                                                         Feb 15 2013, 9:18 am

                              IN THE                                             CLERK
                    COURT OF APPEALS OF INDIANA                                of the supreme court,
                                                                               court of appeals and
                                                                                      tax court




AMANDA VAUGHN,                                 )
                                               )
       Appellant-Defendant,                    )
                                               )
              vs.                              )    No. 49A02-1207-CR-544
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Plaintiff.                     )


                        APPEAL FROM THE MARION SUPERIOR COURT
                             The Honorable Kimberly Brown, Judge
                                Cause No. 49G16-1202-FD-9126


                                    February 15, 2013

                              OPINION - FOR PUBLICATION
BARNES, Judge
                                     Case Summary

       Amanda Vaughn appeals the trial court’s sentence for her conviction of Class A

misdemeanor criminal trespass. We reverse and remand.

                                          Issue

       Vaughn raises one issue, which we restate as whether the trial court abused its

discretion when it ordered her to serve forty hours of community service in lieu of fines

and costs.

                                          Facts

       The State charged Vaughn with Class D felony residential entry and Class B

misdemeanor criminal mischief. Vaughn ultimately pled guilty to Class A misdemeanor

criminal trespass, and the State dismissed the other charges. The plea agreement gave the

trial court discretion as to fines and costs. The trial court sentenced Vaughn to 165 days

with 151 days suspended. The trial court then found Vaughn indigent and assessed forty

hours of community service in lieu of fines and costs. The trial court also ordered that

Vaughn serve “an actual day in jail” for every eight hours of community service that she

did not complete. Tr. p. 10. Vaughn’s counsel then said that Vaughn would “take the

fine” instead, and the trial court ordered Vaughn to pay $165 in court costs and $10 in

fines within two months. Id.

       Vaughn filed a motion to reconsider the fines and court costs. Vaughn argued that

the trial court did not have the authority under the plea agreement to impose community

service and that the trial court’s order subjected her to possible incarceration due to her

indigency. At a hearing on the motion to reconsider, Vaughn argued that the trial court

                                            2
should find her indigent regarding court costs and fines and impose no further obligation.

Vaughn argued that the order violated her equal protection rights, that the order was not

authorized under the plea agreement, and that the order amounted to a conditional plea.

       The trial court vacated the order that Vaughn pay costs and fines and again

ordered that Vaughn complete forty hours of community service in lieu of costs and

fines. The trial court did not order that Vaughn would be sentenced to jail if she failed to

complete community service. However, the trial court expressly refused to eliminate the

possibility of a sanction of some kind for failing to complete the community service.

Vaughn now appeals.

                                            Analysis

       Vaughn argues that the trial court abused its discretion when it ordered her to

serve forty hours of community service in lieu of fines and costs.              “[S]entencing

decisions, including decisions to impose restitution, fines, costs, or fees, are generally left

to the trial court’s discretion.” Berry v. State, 950 N.E.2d 798, 799 (Ind. Ct. App. 2011).

If the fees imposed by the trial court fall within the parameters provided by statute, we

will not find an abuse of discretion. Id.

       Vaughn argues that the trial court’s imposition of community service in lieu of

fines and costs violated Vaughn’s plea agreement. “A plea agreement is contractual in

nature, binding the defendant, the State, and the trial court.” Bennett v. State, 802 N.E.2d

919, 921 (Ind. 2004). Once the trial court accepts the plea agreement, it “is strictly bound

by its sentencing provision and is precluded from imposing any sentence other than

required by the plea agreement.” Id.

                                               3
       In support of her argument, Vaughn relies on Jackson v. State, 968 N.E.2d 328

(Ind. Ct. App. 2012), for the proposition that a trial court cannot impose community

service without express agreement in the plea agreement. However, in Jackson, the trial

court ordered the defendant to perform fifty hours of community service as a condition of

probation. Jackson relied upon our supreme court’s opinion in Freije v. State, 709

N.E.2d 323, 325 (Ind. 1999). Freije held that, if a plea agreement gives the trial court

discretion to establish the conditions of probation, the trial court may “place a defendant

on home detention, . . . require community service work, or impose any other lawful

condition.” Freije, 709 N.E.2d at 325. In the absence of a plea term giving the trial court

such discretion, the trial court’s discretion is limited, but it may impose administrative,

ministerial, and standard conditions of probation that do not “materially add to the

punitive obligation.” Freije, 709 N.E.2d at 325. The plea agreement in Freije did not

give the trial court discretion regarding the probation conditions, and our supreme court

concluded that home detention and 650 hours of community service materially added to

the punitive obligation and exceeded the sentence allowed by the plea agreement.

       The community service here was imposed in lieu of costs and fines, not as a

condition of probation, and the plea agreement gave the trial court discretion regarding

those costs and fines. Because the trial court’s discretion in imposing costs and fines was

not limited here by the plea agreement, we conclude that, if ordering community service

in lieu of costs and fines was statutorily authorized, the imposition of community service

did not violate the plea agreement.         Consequently, we must determine whether

community service in lieu of costs and fines is statutorily authorized.

                                             4
           The trial court ordered Vaughn to pay $165 in court costs and $10 in fines.1

Although the statutes regarding the imposition of costs and fines address how a trial court

may enforce payment of the fines or costs by a non-indigent convicted person, the

statutes do not address the procedure a trial court should follow if the convicted person is

indigent. 2 See Ind. Code § 33-37-4-1 (governing the amount of court costs); I.C. § 33-

37-2-3 (governing the imposition of court costs);3 I.C. § 35-50-3-2 (governing the amount


1
    The trial court did not specify the statutes authorizing the costs and fines.
2
 We acknowledge that differing results have been reached as to whether costs and fines are permissible
where the defendant is indigent. In Whedon v. State, 765 N.E.2d 1276, 1279 (Ind. 2002), our supreme
court noted that fines or costs could be imposed upon an indigent defendant. Whedon, 765 N.E.2d at
1279 (noting that the legislature requires indigency hearing both as to the imposition of fines, Indiana
Code Section 35-38-1-18, and costs, Indiana Code Section 33-19-2-3 (the predecessor to Indiana Code
Section 33-37-2-3)). However, in Banks v. State, 847 N.E.2d 1050, 1052 (Ind. Ct. App. 2006), trans.
denied, we held that Indiana Code Section 33-37-2-3 does not permit the imposition of costs when a
convicted person is indigent. However, Vaughn makes no argument regarding this issue, and we do not
address it here.
3
    Indiana Code Section 33-37-2-3 provides:

                   (a)      Except as provided in subsection (b), when the court imposes
                            costs, it shall conduct a hearing to determine whether the
                            convicted person is indigent. If the person is not indigent, the
                            court shall order the person to pay:

                            (1)     the entire amount of the costs at the time sentence is
                                    pronounced;
                            (2)     the entire amount of the costs at some later date; or
                            (3)     specified parts of the costs at designated intervals.

                   (b)      A court may impose costs and suspend payment of all or part of
                            the costs until the convicted person has completed all or part of
                            the sentence. If the court suspends payment of the costs, the
                            court shall conduct a hearing at the time the costs are due to
                            determine whether the convicted person is indigent. If the
                            convicted person is not indigent, the court shall order the
                            convicted person to pay the costs:

                            (1)     at the time the costs are due; or
                            (2)     in a manner set forth in subsection (a)(2) through (a)(3).


                                                         5
of fines associated with the conviction for a Class A misdemeanor); and I.C. § 35-38-1-

18 (governing the imposition of fines).4 Further, none of the statutes governing costs and

fines mention or permit a trial court to impose community service in lieu of costs or fines.




                  (c)    If a court suspends payment of costs under subsection (b), the
                         court retains jurisdiction over the convicted person until the
                         convicted person has paid the entire amount of the costs.

                  (d)    Upon any default in the payment of the costs:

                         (1)     an attorney representing the county may bring an action
                                 on a debt for the unpaid amount;
                         (2)     the court may direct that the person, if the person is not
                                 indigent, be committed to the county jail and credited
                                 toward payment at the rate of twenty dollars ($20) for
                                 each twenty-four (24) hour period the person is
                                 confined, until the amount paid plus the amount credited
                                 equals the entire amount due; or
                         (3)     the court may institute contempt proceedings to enforce
                                 the court’s order for payment of the costs.

                  (e)    If, after a hearing under subsection (a) or (b), the court
                         determines that a convicted person is able to pay part of the costs
                         of representation, the court shall order the person to pay an
                         amount of not more than the cost of the defense services
                         rendered on behalf of the person. The clerk shall deposit the
                         amount paid by a convicted person under this subsection in the
                         county’s supplemental public defender services fund established
                         under IC 33-40-3-1.

                  (f)    A person ordered to pay part of the cost of representation under
                         subsection (e) has the same rights and protections as those of
                         other judgment debtors under the Constitution of the State of
                         Indiana and Indiana law.
4
    Indiana Code Section 35-38-1-18 provides:

                  (a)    Except as provided in subsection (b), whenever the court
                         imposes a fine, it shall conduct a hearing to determine whether
                         the convicted person is indigent. If the person is not indigent, the
                         court shall order:

                         (1)     that the person pay the entire amount at the time
                                 sentence is pronounced;
                         (2)     that the person pay the entire amount at some later date;
                                                     6
       The State argues that “[c]ommunity service is a reasonable condition in lieu of

fines and costs.” Appellee’s Br. p. 6. Although community service may be a reasonable

alternative to the imposition of costs or fines, the trial court must have the statutory

authority to make such an order. The State cites several statutes that allow the imposition

                     (3)     that the person pay specified parts at designated
                             intervals; or
                     (4)     at the request of the person, commitment of the person to
                             the county jail for a period of time set by the court in
                             lieu of a fine. If the court orders a person committed to
                             jail under this subdivision, the person’s total
                             confinement for the crime that resulted in the conviction
                             must not exceed the maximum term of imprisonment
                             prescribed for the crime under IC 35-50-2 or IC 35-50-3.

              (b)    A court may impose a fine and suspend payment of all or part of
                     the fine until the convicted person has completed all or part of
                     the sentence. If the court suspends payment of the fine, the court
                     shall conduct a hearing at the time the fine is due to determine
                     whether the convicted person is indigent. If the convicted person
                     is not indigent, the court shall order the convicted person to pay
                     the fine:

                     (1)     at the time the fine is due; or
                     (2)     in a manner set forth in subsection (a)(2) through (a)(4).

              (c)    If a court suspends payment of a fine under subsection (b), the
                     court retains jurisdiction over the convicted person until the
                     convicted person has paid the entire amount of the fine.

              (d)    Upon any default in the payment of the fine:

                     (1)     an attorney representing the county may bring an action
                             on a debt for the unpaid amount;
                     (2)     the court may direct that the person, if the person is not
                             indigent, be committed to the county jail and credited
                             toward payment at the rate of twenty dollars ($20) for
                             each twenty-four (24) hour period the person is
                             confined, until the amount paid plus the amount credited
                             equals the entire amount due; or
                     (3)     the court may institute contempt proceedings or order
                             the convicted person’s wages, salary, and other income
                             garnished in accordance with IC 24-4.5-5-105 to enforce
                             the court’s order for payment of the fine.



                                                 7
of community service, but none of them are relevant here. See, e.g., I.C. § 31-14-12-3

(authorizing the trial court to order community service in the context of contempt for

failure to pay child support in a paternity action); I.C. § 31-14-15-4 (authorizing the trial

court to order community service in the context of contempt for parenting time violations

in a paternity action); I.C. § 31-16-12-6 (authorizing the trial court to order community

service in the context of contempt for failure to pay child support); I.C. § 31-17-4-8

(authorizing the trial court to order community service in the context of contempt for

parenting time violations); and I.C. § 34-28-5-1 (authorizing the trial court to order

community service in lieu of a monetary judgment for an ordinance violation).

       Given the lack of statutory authority for the trial court to impose a community

service requirement in lieu of costs and fees, we must reverse the trial court’s order. We

remand for the trial court to address the imposition of costs and fees in this case. In

doing so, we note that, our supreme court has held, “when fines or costs are imposed

upon an indigent defendant, such a person may not be imprisoned for failure to pay the

fines or costs.” Whedon, 765 N.E.2d at 1279.

                                        Conclusion

       The trial court erred by imposing community service in lieu of costs and fines

without statutory authority to do so. We reverse and remand.

       Reversed and remanded.

RILEY, J., concurs.

BAKER, J., dissents with opinion.



                                             8
                              IN THE
                    COURT OF APPEALS OF INDIANA


AMANDA VAUGHN,                                   )
                                                 )
      Appellant-Defendant,                       )
                                                 )
              vs.                                )    No. 49A02-1207-CR-544
                                                 )
STATE OF INDIANA,                                )
                                                 )
      Appellee-Plaintiff.                        )



BAKER, Judge, dissenting.

      I respectfully dissent and part ways with the majority’s determination that the trial

court erred in ordering Vaughn to serve forty hours of community service in lieu of

paying fines and costs.

      First, I would note that a trial court may exercise its discretion by suspending fines

and costs, and “may impose any reasonable condition it deems appropriate when it does

so.” Campbell v. State, 551 N.E.2d 1164, 1169 (Ind. Ct. App. 1990). In my view,

ordering Vaughn to perform community service in lieu of fines and costs was reasonable.

      As the majority points out, the trial court did not order that Vaughn would be

imprisoned if she failed to complete the ordered community service. Slip op. at 3.

                                            9
Moreover, I cannot agree with the majority’s view that the statutes the State cites in

support of the notion that community service is permissible in lieu of fines and costs are

not relevant here. By analogy, I believe that the trial court had the authority to order

Vaughn to perform community service in this instance. Thus, I would affirm the trial

court’s judgment.




                                           10
