      MEMORANDUM DECISION
                                                                            FILED
      Pursuant to Ind. Appellate Rule 65(D), this                       Oct 20 2016, 9:22 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the                    CLERK
                                                                        Indiana Supreme Court
      purpose of establishing the defense of res judicata,                 Court of Appeals
                                                                             and Tax Court
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
      Suzy St. John                                          Gregory F. Zoeller
      Marion County Public Defender                          Attorney General of Indiana
      Appellate Division
                                                             Caryn N. Szyper
      Indianapolis, Indiana
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Clifford M. Lawrence,                                      October 20, 2016

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A02-1602-CR-336

              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Hon. Amy M. Jones, Judge
                                                                 Trial Court Cause No. 49G08-1505-
      Appellee-Plaintiff.
                                                                 CM-15546




      Bradford, Judge.



                                            Case Summary
[1]   Following his conviction for Class B misdemeanor public intoxication,

      Appellant-Defendant Clifford Lawrence was sentenced to 178 days of

      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-336 | October 20, 2016    Page 1 of 8
      probation. The trial court assessed a $50 supplemental public defender fee and

      ultimately ordered that Lawrence pay $220 in probation fees. Lawrence

      contends that the trial court abused its discretion in ordering that he pay the

      supplemental public defender and probation fees without first assessing his

      ability to pay either. Because we agree, we affirm the trial court’s judgment of

      conviction and sentence, reverse the trial court’s order to pay probation and

      supplemental public defender fees, and remand for further proceedings.



                            Facts and Procedural History
[2]   On May 5, 2015, Indianapolis Metropolitan Police Sergeant Allen Tuttle

      encountered Lawrence, who was in a vehicle in the emergency room parking

      lot at Community East Hospital in Indianapolis. Sergeant Tuttle approached

      the vehicle, which was not parked in an area designated for that purpose, and

      when he identified himself as a police officer, the vehicle “lurched forward an[]

      inch or two … six inches at the most.” Tr. p. 7. Sergeant Tuttle directed

      Lawrence to place the vehicle in park or turn it off, but Lawrence did neither.

      Sergeant Tuttle reached into the vehicle, placed it into park, and ordered

      Lawrence to exit. When Sergeant Tuttle helped Lawrence out of the vehicle, he

      could smell the odor of alcoholic beverage coming from Lawrence’s person.

      Lawrence admitted that he had been drinking and Sergeant Tuttle also noticed

      that his eyes were glassy and bloodshot, his speech was slow and slurred, his

      manual dexterity was poor, and he had difficulty retrieving his license.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-336 | October 20, 2016   Page 2 of 8
[3]   On May 6, 2015, the State charged Lawrence with Class B misdemeanor public

      intoxication. On January 28, 2016, the trial court found Lawrence guilty as

      charged and sentenced him to 178 days of non-reporting probation with alcohol

      monitoring for the first forty-five days. When the trial court noted that the cost

      for the monitoring would be subject to a “sliding fee scale[,]” the following

      exchange took place:


              THE DEFENDANT: With this sliding scale fee; where is this
              coming from?
              [Lawrence’s counsel]: It’s a payment plan.
              THE COURT: For anything that you have to pay for. So like
              probation is going to have like user fees, they’re going to have
              probation fees that are associated with you being on probation, as
              well as the alcohol monitoring. There’s a cost to have that
              device. So what you need to do is provide them proof that your
              only income is disability.
              THE DEFENDANT: Right.
              THE COURT: Okay. And then they’re going to adjust the fees;
              it could be all the way down to nothing, okay. But I let them do
              that. Because I don’t have a lot of time-- you can bring the proof
              in when you meet with your officer the first time so then they can
              get that set up for you, okay. So that’s what we’re going to do.
              You’re going to report to the probation department and then
              you’re going to have to report to Community Corrections
              because that’s where the monitoring device is. And we’ll give
              you both the referral slips. I’m going to find you indigent to
              Court Costs, I’m not going to access any fines.

      Tr. p. 24.


[4]   Also on January 28, 2016, the trial court issued a written probation order,

      which included what appears to be a generic fee schedule for misdemeanors and


      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-336 | October 20, 2016   Page 3 of 8
      felonies. The fee schedule indicated a maximum administrative fee of $50, a

      maximum probation user fee of $50 plus $20 per month, and a maximum

      public defender fee of $50. On February 1, 2016, Lawrence was assessed $270

      in “Case Fees[,]” which included a $50 supplemental public defender fee, a $50

      adult probation administrative fee, $164.90 for adult probation monthly and

      initial user fees, and $5.10 for “Probation User Fee – Clerk’s 3%[.]” Appellant’s

      App. p. 27.


                                 Discussion and Decision
[5]   Lawrence contends that the trial court erred in imposing $220 in probation fees

      and a $50 public defender fee without assessing his ability to pay. We review

      sentencing decisions, including the trial court’s imposition of costs or fees, for

      an abuse of discretion. Kimbrough v. State, 911 N.E.2d 621, 636 (Ind. Ct. App.

      2009). “An abuse of discretion occurs if the 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.” Anglemyer v. State, 868

      N.E.2d 482, 490 (Ind. 2007) (citation and quotation marks omitted).


                                         A. Probation Fees
[6]   Lawrence contends that the trial court abused its discretion in ordering $220 in

      probation fees without first assessing his ability to pay. Indiana Code section

      35-38-2-1(e) provides as follows:

              (e) In addition to any other conditions of probation, the court
              may order each person convicted of a misdemeanor to pay:

      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-336 | October 20, 2016   Page 4 of 8
                   (1) not more than a fifty dollar ($50) initial probation user’s
                   fee;
                   (2) a monthly probation user’s fee of not less than ten dollars
                   ($10) nor more than twenty dollars ($20) for each month that
                   the person remains on probation;
               ….
               (4) an administrative fee of fifty dollars ($50);
               to either the probation department or the clerk.

[7]   Lawrence contends that the trial court abused its discretion in ordering the

      payment of probation fees without first conducting an indigency hearing. This

      court has concluded that an indigency hearing is required before a trial court

      may order the payment of probation fees. See Johnson v. State, 27 N.E.3d 793,

      794 (Ind. Ct. App. 2015) (“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.”). While the trial court found

      Lawrence indigent as to “Court Costs[,]” Tr. p. 24, it made no finding

      regarding probation fees. We therefore remand with instructions for the trial

      court to conduct an indigency hearing with regard to Lawrence’s ability to pay

      probation fees.1




      1
         Lawrence also contends that the trial court abused its discretion by delegating to the probation department
      the possible reduction of his probation fees pursuant to the “sliding scale” mentioned at sentencing. Put
      another way, Lawrence is essentially alleging that the trial court delegated the indigency determination to the
      probation department. As Lawrence points out, there is no statutory authority for such a delegation of the
      trial court’s authority. That said, we see no reason that an evaluation of the individual’s finances by the
      probation department (and recommendations resulting therefrom) could not factor into the trial court’s
      indigency determination.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-336 | October 20, 2016              Page 5 of 8
[8]   The State contends that the trial court was not required to hold an indigency

      hearing before assessing probation fees. Indiana Code section 33-37-2-3

      provides, in part, that “when the court imposes costs, it shall conduct a hearing

      to determine whether the convicted person is indigent.” The state notes that

      section 33-37-2-3 appears in Indiana Code Article 33-37, which the State

      contends is limited to costs and fees imposed pursuant to that Article, which

      does not include probation fees. In support of this argument, the State relies on

      the following statutory language: “(a) The costs imposed by [Indiana Code

      Article 33-37] are for all proceedings in the action. (b) The costs imposed by

      [Indiana Code Article 33-37] include fees.” Ind. Code § 33-37-1-3. While it is

      true that Indiana Code section 33-37-1-3 refers to costs imposed pursuant to

      Indiana Code Article 33-37, it does nothing to limit section 33-37-2-3’s

      requirement for an indigency hearing to only those costs imposed pursuant to

      Article 33-37. We are not convinced by the State’s argument that a trial court

      may order probation fees without conducting an indigency hearing, as has been

      previously required by this court in Johnson, 27 N.E.3d at 794.


                       B. Supplemental Public Defender Fee
[9]   Lawrence also contends that the trial court abused its discretion in ordering a

      $50 supplemental public defender fee. It seems clear that the trial court

      imposed this fee pursuant to Indiana Code section 35-33-7-6, which provides as

      follows:

              (a) Prior to the completion of the initial hearing, the judicial
              officer shall determine whether a person who requests assigned

      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-336 | October 20, 2016   Page 6 of 8
               counsel is indigent. If the person is found to be indigent, the
               judicial officer shall assign counsel to the person.
               (b) If jurisdiction over an indigent defendant is transferred to
               another court, the receiving court shall assign counsel
               immediately upon acquiring jurisdiction over the defendant.
               (c) If the court finds that the person is able to pay part of the cost
               of representation by the assigned counsel, the court shall order
               the person to pay the following:
                   (1) For a felony action, a fee of one hundred dollars ($100).
                   (2) For a misdemeanor action, a fee of fifty dollars ($50).
               The clerk of the court shall deposit fees collected under this
               subsection in the county’s supplemental public defender services
               fund established under IC 33-40-3-1.
               (d) The court may review the finding of indigency at any time
               during the proceedings.

       Ind. Code § 35-33-7-6.


[10]   Here, the trial court found Lawrence indigent and granted his petition for

       appointment of counsel on May 6, 2015, the day he was charged, based “on a

       thorough examination of defendant’s total financial picture[.]” Appellant’s

       App. p. 15. Although Indiana Code section 35-33-7-6(d) allows the trial court

       to review this indigency finding at any time during the proceedings, it did not.

       That said, despite the indigency finding, section 35-33-7-6(c) allowed the trial

       court to assess a $50 supplemental public defender fee if it found that Lawrence

       was able to pay part of the cost of the representation. Because the trial court

       made no such finding, assessing the supplemental public defender’s fee amounts

       to an abuse of discretion. We remand with instructions to conduct a hearing on

       Lawrence’s ability to pay part of the cost of representation by his appointed

       counsel.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-336 | October 20, 2016   Page 7 of 8
[11]   We affirm the judgment of the trial court in part, reverse in part, and remand

       with instructions.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-336 | October 20, 2016   Page 8 of 8
