                                                                 FILED
                                                            Apr 19 2017, 8:59 am

                                                                 CLERK
                                                             Indiana Supreme Court
                                                                Court of Appeals
                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Valerie K. Boots                                           Curtis T. Hill, Jr.
Marion County Public Defender Agency                       Attorney General of Indiana
Indianapolis, Indiana                                      J.T. Whitehead
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Wendy Burnett,                                             April 19, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A02-1610-CR-2402
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable John Razumich,
Appellee-Plaintiff                                         Judge Pro Tempore
                                                           Trial Court Cause No.
                                                           49G12-1508-CM-29371



Baker, Judge.




Court of Appeals of Indiana | Opinion 49A02-1610-CR-2402 | April 19, 2017                Page 1 of 12
[1]   Wendy Burnett appeals her conviction of Operating a Vehicle While

      Intoxicated Endangering a Person,1 a Class A Misdemeanor. She argues that

      there was insufficient evidence to support her conviction for operating a vehicle

      while intoxicated endangering a person, that the trial court erred when it did

      not conduct an indigency hearing before imposing probation fees, and that her

      probation fees were improperly imposed by the probation department. We

      agree on all arguments, but as to her conviction, we find sufficient evidence

      supporting the lesser-included offense of Class C misdemeanor operating a

      vehicle while intoxicated.2 We reverse and remand for further proceedings and

      with instructions to vacate Burnett’s Class A misdemeanor conviction and to

      enter judgment for Class C misdemeanor operating a vehicle while intoxicated.

      As for the fees owed by Burnett, the judgment of the trial court is vacated and

      remanded for further proceedings.


                                                       Facts
[2]   On August 18, 2015, Burnett was riding in the passenger seat of a Chevrolet

      Impala in Indianapolis when the driver of the vehicle struck another vehicle.

      Burnett had fallen asleep before the collision, but she woke up upon the impact

      and jumped out of the vehicle. As a woman who lived nearby started yelling

      about the accident, Burnett got back into the vehicle’s passenger seat, and the




      1
          Ind. Code § 9-30-5-2(b).
      2
          I.C. § 9-30-5-2(a).


      Court of Appeals of Indiana | Opinion 49A02-1610-CR-2402 | April 19, 2017   Page 2 of 12
      driver drove away from the scene. The driver stopped the vehicle not far from

      the scene of the accident, and at some point, Burnett got into the driver’s seat

      and drove back past the scene; by then, police were there beginning an

      investigation.


[3]   Officer Matthew Fortney of the Indianapolis Metropolitan Police Department

      conducted a traffic stop on the Impala, which at the time was being driven by

      Burnett. Officer Fortney observed that Burnett’s breath smelled of alcohol, that

      her eyes were glassy, and that her speech was slow. Burnett told Officer

      Fortney that she had not been driving the vehicle at the time of the accident.


[4]   Officer Vincent Marshall conducted an investigation to determine whether

      Burnett was driving under the influence. He could hear her slur her speech, and

      when he asked whether she had been drinking or consuming alcohol, she stated

      that she had consumed approximately three beers before the officers arrived.

      Officer Marshall had Burnett complete the standard field sobriety tests, during

      which he observed that her eyes were red and watery and that her breath

      smelled of alcohol. The officer asked Burnett to take a portable breath test,

      which she declined to do. He then read the Indiana Implied Consent law, and

      Burnett refused to take a certified chemical test. Officer Marshall formed an

      opinion that Burnett was intoxicated based on her performance on the field

      sobriety tests and his observations, and he arrested her.


[5]   The State charged Burnett with one count of Class A misdemeanor operating a

      vehicle while intoxicated endangering a person, and two counts of Class B


      Court of Appeals of Indiana | Opinion 49A02-1610-CR-2402 | April 19, 2017   Page 3 of 12
      misdemeanor leaving the scene of an accident. On September 14, 2016, a

      bench trial took place. During the trial, the trial court admitted evidence of two

      phone calls that Burnett had made from jail to her son. In one of the phone

      calls, Burnett said that she had been in the car and dozed off and woke up to an

      accident, and that her reaction was to get in the car and drive away. The trial

      court found Burnett guilty of operating a vehicle while intoxicated endangering

      a person but not of leaving the scene of an accident.


[6]   After a sentencing hearing that began on September 14, 2016, and concluded on

      September 26, 2016, the trial court sentenced Burnett to 365 days, with five

      days executed and the remainder suspended to probation. Burnett was ordered

      to attend the Advocates Against Impaired Driving (AAID) destructive decision

      panel and to submit to an alcohol evaluation test and follow recommendations

      for treatment. The trial court ordered Burnett to pay a $200 countermeasure

      fee, a $250 alcohol drug services fee, $183.50 in court costs, and a $16.50 fine.

      The trial court stated that the court costs and fine “are in addition to your

      various probation fees that are required.” Tr. p. 76. The trial court also stated

      that Burnett’s probation would become non-reporting after she finished the

      terms and conditions of her probation, and that


              Part of those terms are repaying those things as soon as you are
              able to. So, I do encourage you to get those done sooner rather
              than later. My experience with probation has been the faster that
              they get paid, the faster they are likely to not pay attention to you
              so much, especially if you’re not causing problems for them
              otherwise.


      Court of Appeals of Indiana | Opinion 49A02-1610-CR-2402 | April 19, 2017   Page 4 of 12
      Id.


[7]   Defense counsel asked the trial court for a determination on whether Burnett

      was indigent for purposes of appeal, stating that Burnett makes under $20,000

      per year. When Burnett said that she would be interested in pursuing an

      appeal, the trial court stated that defense counsel “summarized your financial

      situation. Is that correct? Is that your income?” Id. at 78. Burnett replied

      affirmatively. The trial court then found Burnett indigent as to the purposes of

      appeal and appointed a public defender to represent her on appeal. Id.


[8]   The sentencing order for Burnett includes a section on the conditions of her

      probation, which includes the comment “all standard conditions and fees of

      probation.” Appellant’s App. Vol. II p. 13. The order’s monetary obligations

      section states that Burnett owes $649.50 in court costs and fees. This section

      does not include any probation fees. The probation order for Burnett lists

      fourteen standard conditions, including “pay all Court-ordered fines, costs, fees

      and restitution as directed.” Id. at 47. The special conditions section of the

      probation order includes the same conditions as in the sentencing order. The

      probation order includes a space for monetary conditions of probation. That

      section of Burnett’s order reads as follows:


       Monetary                   Misdemeanor                Felony Rate          Ordered Amount
       Obligation                 Rate
       Administrative             50                         100
       Fee
       Alcohol/Drug               250 (A Misd)               250
       Services Program           150 (B & C)
       Child Abuse Fee            100                        100

      Court of Appeals of Indiana | Opinion 49A02-1610-CR-2402 | April 19, 2017           Page 5 of 12
       Countermeasure             200                        200
       Fee
       Court Costs                183/183.50                 183/183.50
       Domestic                   50                         50
       Violence Fee
       Drug Interdiction          200-1,000                  200-1,000
       Fee
       Fine                       0-5,000                    0-10,000             $
       Pre-Trial Fee              50                         100
       Probation User             50 + 20/month              100 + 30/month
       Fee
       Public Defender            50                         100
       Fee
       Safe School Fee            200-1,000                  200-1,000
       Sexual Assault             250-1,000                  250-1,000
       Victim Fee



      Id. (blacked-out sections and blank spaces original). Subsequently, the

      probation department charged Burnett an adult probation administrative fee of

      $50, an adult probation monthly and initial user fee of $281.30, a probation user

      fee of $8.70, and a highway work zone fee of $.50, for a total of $340.50.

      Burnett now appeals.


                                    Discussion and Decision
                               I. Sufficiency of the Evidence
[9]   Burnett argues that the evidence is insufficient to support her conviction. When

      reviewing a claim of insufficient evidence, we will consider only the evidence

      and reasonable inferences that support the conviction. Gray v. State, 957 N.E.2d

      171, 174 (Ind. 2011). We will affirm if, based on the evidence and inferences, a



      Court of Appeals of Indiana | Opinion 49A02-1610-CR-2402 | April 19, 2017       Page 6 of 12
       reasonable jury could have found the defendant guilty beyond a reasonable

       doubt. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).


[10]   To convict Burnett of operating a vehicle while intoxicated endangering a

       person, the State was required to prove beyond a reasonable doubt that she

       operated a vehicle while intoxicated in a manner that endangered a person.

       Ind. Code § 9-30-5-2(b). This statute “requires more than intoxication to prove

       endangerment.” Dorsett v. State, 921 N.E.2d 529, 532 (Ind. Ct. App. 2010). The

       element of endangerment can be established by evidence showing that the

       defendant’s condition or operating manner could have endangered any person,

       including the public, the police, or the defendant. Id.


[11]   At the end of the trial, the trial court stated:

               Certainly while individuals who have been through the system
               can rapidly come up with stories, I think that taken in
               conjunction with other things, I’m not entirely sure that Ms.
               Burnett was on the ball enough to make up the story that
               someone else was driving the vehicle under the stressors and the
               intoxication. . . .


               With regards to Count I, the operating while intoxication, [sic]
               we have very clear evidence that even if Wendy Burnett was not
               the one driving the vehicle at the time of the collision, we have
               extremely clear evidence that she got back behind the wheel of
               the vehicle at a later point in time while she was still under the
               effects of the alcohol that she had consumed earlier.


[12]   Tr. p. 57. During sentencing, the trial court stated that Burnett “did provide

       [her] vehicle to somebody who crashed it into two other cars.” Id. at 75. In

       Court of Appeals of Indiana | Opinion 49A02-1610-CR-2402 | April 19, 2017    Page 7 of 12
       other words, after hearing from a witness and listening to an audio recording of

       a phone call Burnett had made to her son from jail in which she described what

       had taken place, the trial court found that Burnett was not driving at the time of

       the accident. There is no evidence in the record that Burnett drove in a manner

       that endangered a person when she started driving after the accident.

       Therefore, we find insufficient evidence supporting the Class A misdemeanor

       operating a vehicle while intoxicated endangering a person conviction.


[13]   When a conviction is reversed because of insufficient evidence, we may remand

       to the trial court with instructions to enter a judgment of conviction on a lesser-

       included offense if the evidence is sufficient to support the lesser offense.

       Chatham v. State, 845 N.E.2d 203, 208 (Ind. Ct. App. 2006). Operating a

       vehicle while intoxicated is an inherently lesser-included offense of operating a

       vehicle while intoxicated endangering a person. We find that Burnett’s

       presentation—slow and slurred speech, glassy eyes, and breath smelling of

       alcohol—and the officers’ conclusions at the scene are sufficient to show that

       she was intoxicated. Accordingly, we reverse Burnett’s operating a vehicle

       while intoxicated endangering a person conviction and remand with

       instructions to enter judgment for operating a vehicle while intoxicated as a

       Class C misdemeanor and to resentence accordingly.


                                           II. Probation Fees
[14]   When a defendant is convicted of a misdemeanor, the trial court has discretion

       to impose certain probation fees. Ind. Code § 35-38-2-1(e). If the probation


       Court of Appeals of Indiana | Opinion 49A02-1610-CR-2402 | April 19, 2017   Page 8 of 12
       department later wants to alter the fees imposed by the trial court, it must

       petition the trial court to increase the probation fees. I.C. § 35-38-2-1.7(b). To

       be entitled to an increase in fees, the probation department must demonstrate

       that there was a change in the financial ability of the probationer while on

       probation. Id.


[15]   This Court has recently considered this same issue regarding probation fees and

       costs. In Coleman v. State, 61 N.E.3d 390 (Ind. Ct. App. 2016), the trial court's

       sentencing order did not list any court costs or fees, and the probation order's

       monetary obligation section included ordered amount sections that were

       blacked out with the exception of “fine,” “safe school fee,” and “sexual assault

       victim fee,” which were all blank. 61 N.E.3d at 393-94. The probation

       department subsequently imposed an aggregate amount of $640 in fees on the

       defendant. This Court found that, “based on the record, we cannot conclude

       that the trial court imposed these probation fees.” Id. at 394. Therefore, we

       vacated the fees and remanded for further proceedings.


[16]   The State contends that “[t]here is no reason whatsoever to believe that

       probation would arrive at a non-statutory scheme for fees in contrast with the

       trial court’s determination.” Appellee’s Br. p. 18 (emphasis added). This

       argument misses the essence of our state’s statute—it is the trial court, not the

       probation department, that has the discretion to impose probation fees. That

       the amount of the probation fees imposed on Burnett falls within the statutory

       scheme does not mean that the fees were imposed according to statute. Here,

       the trial court stated that Burnett had “various probation fees that are required.”

       Court of Appeals of Indiana | Opinion 49A02-1610-CR-2402 | April 19, 2017   Page 9 of 12
       Tr. p. 76. The trial court’s sentencing order and order of probation stated that

       Burnett had to follow “all standard conditions and fees of probation” and that

       her probation would become non-reporting upon “payment of all fees.”

       Appellant’s App. Vol. II p. 13-14, 47. Because the trial court did not impose

       any probation fees or costs on Burnett, it was erroneous to accept the

       imposition of these fees without a petition from the probation department and a

       showing that Burnett’s financial situation has changed since the sentencing

       hearing. Accordingly, we vacate the fees and remand for further proceedings.


[17]   Lastly, Burnett argues that the trial court erred by failing to conduct an

       indigency hearing before imposing fees. Indiana Code section 33-37-2-3

       requires a trial court to hold an indigency hearing if the court imposes costs on

       a defendant. A trial court “has a duty to conduct an indigency hearing at some

       point in time.” Johnson v. State, 27 N.E.3d 793, 795 (Ind. Ct. App. 2015) (citing

       Ind. Code § 33-37-2-3). An indigency hearing for probation fees should take

       place no later than when a defendant completes her sentence. Id.


[18]   The trial court asked one question to determine Burnett’s financial situation.

       After her counsel stated that she makes less than $20,000, the trial court stated

       that defense counsel “summarized your financial situation. Is that correct? Is

       that your income?” Tr. p. 78. Burnett replied affirmatively. The trial court did

       not inquire further into just how much less than $20,000 Burnett makes. 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

       Court of Appeals of Indiana | Opinion 49A02-1610-CR-2402 | April 19, 2017   Page 10 of 12
       secure—in Burnett’s case, it was not. The State contends 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. Standing alone, such facts are deficient in assessing a

       person’s ability to pay. 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.


[19]   Nonetheless, the trial court assumed Burnett’s ability to pay. The trial court

       stated that by making Burnett’s probation non-reporting, “that gives you the

       opportunity to save a little bit on your probation fees and to kind of just have it

       hanging over your head, as opposed to something where you’re reporting on a

       regular basis.” Id. at 74. The trial court also stated that


               once all of your terms are completed, your probation will become
               non-reporting. Part of those terms are repaying those things as
               soon as you are able to. So, I do encourage you to get those done
               sooner rather than later. My experience with probation has been
               the faster that they get paid, the faster they are likely to not pay
               attention to you so much, especially if you’re not causing
               problems for them otherwise.


       Id. at 76. As a result of the trial court’s assumption that Burnett could pay her

       probation fees, let alone its assumption that she could pay them “sooner rather


       Court of Appeals of Indiana | Opinion 49A02-1610-CR-2402 | April 19, 2017   Page 11 of 12
       than later,” Burnett could be unfairly prevented from receiving the benefit of

       non-reporting probation. Any disparate treatment based on a defendant’s

       financial situation—whether it be by conferring a benefit, modifying a sentence,

       or something else—triggers the requirement to have an indigency hearing at the

       time the fees are imposed to determine the defendant’s ability to pay.


[20]   The judgment of the trial court is reversed with respect to Burnett’s conviction

       and remanded with instructions to vacate her conviction of Class A

       misdemeanor, to enter judgment for Class C misdemeanor operating a vehicle

       while intoxicated, and to resentence Burnett accordingly. The judgment of the

       trial court regarding the fees owed by Burnett is vacated and remanded for

       further proceedings consistent with this opinion.


       Barnes, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1610-CR-2402 | April 19, 2017   Page 12 of 12
