      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                      FILED
      regarded as precedent or cited before any                             Oct 31 2019, 5:41 am

      court except for the purpose of establishing                               CLERK
      the defense of res judicata, collateral                                Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                         Curtis T. Hill, Jr.
      Daniel Hageman                                           Attorney General of Indiana
      Marion County Public Defender Agency                     Sierra A. Murray
      – Appellate Division                                     Deputy Attorney General
      Indianapolis, Indiana                                    Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jacqueline Dejournett,                                   October 31, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-63
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Amy M. Jones,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               49G08-1803-CM-7238



      Mathias, Judge.


[1]   Jacqueline Dejournett (“Dejournett”) was convicted in Marion Superior Court

      of Class A misdemeanor operating a vehicle with an alcohol concentration


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-63 | October 31, 2019                 Page 1 of 5
      equivalent to 0.15 or more. She was ordered to serve 365 days in the county jail

      with 357 days suspended to probation and pay $340.00 in probation fees.

      Dejournett appeals and argues that the trial court abused its discretion when it

      ordered her to pay probation fees without conducting an indigency hearing.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On February 20, 2018, at approximately 7:00 p.m., Indianapolis Metropolitan

      Police Department Officer Cooper Dinges (“Officer Dinges”) responded to a

      report of an intoxicated driver near the intersection of English and Southeastern

      Avenues. In a parking lot near that intersection, the officer observed a black

      vehicle without a license plate circling the lot. Officer Dinges activated his

      emergency lights, shined his spotlight on the vehicle, and it came to a stop.


[4]   Dejournett was the driver and sole occupant of the vehicle. Officer Dinges

      smelled alcohol and saw numerous beer cans inside the vehicle. He also noted

      that Dejournett’s speech was slurred.


[5]   Officer Adam Jones (“Officer Jones”) arrived on the scene shortly thereafter to

      conduct sobriety tests on Dejournett. Officer Jones observed the smell of

      alcohol, Dejournett’s bloodshot eyes, and slurred speech. He then administered

      a horizontal gaze nystagmus field sobriety test during which Dejournett

      displayed all six signs of intoxication. After Dejournett refused a chemical test,

      Officer Jones obtained a search warrant, and Dejournett was transported to

      Eskenazi Hospital for a blood draw. The results indicated that her whole blood
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-63 | October 31, 2019   Page 2 of 5
      ethyl alcohol concentration was in the range of .198 to .237% gram of alcohol

      per 100 milliliters of her blood.

[6]   On December 12, 2018, Dejournett was convicted in a bench trial of Class A

      misdemeanor operating a vehicle with an alcohol concentration equivalent to

      .15 or more. During the sentencing hearing, Dejournett informed the court that

      she relied on her fiancé for financial support and had filed a disability claim.

      The trial court ordered Dejournett to serve 365 days at the county jail with 357

      days suspended to probation.

[7]   The trial court further ordered Dejournett to undergo a substance abuse

      evaluation and treatment with random drug and alcohol testing. The court

      imposed a $200.00 countermeasure fee, a $400.00 alcohol drug services fee, and

      a $340.00 fee for the costs of probation and drug and alcohol tests. The trial

      court found Dejournett indigent for the purposes of court costs.

[8]   Dejournett now appeals.1




      1
        As the apparent result of a probation violation, on April 4, 2019, Dejournett and the State entered into an
      agreement, which was approved by the trial court, modifying her sentence to be served in the Behavioral
      Health Alternative Court program. Appellant’s App. p. 7. Dejournett agreed to serve a minimum of twelve
      months in the program and to abide by its rules and conditions. Id. at 91–95. The trial court lacked
      jurisdiction to approve the agreement as our court obtained jurisdiction over this case on January 17, 2019.
      Therefore, the agreement is arguably void. However, neither party has addressed the enforceability of the
      agreement in this appeal, and the placement modification does not change the outcome here.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-63 | October 31, 2019                      Page 3 of 5
                                      Discussion and Decision

[9]    Dejournett argues that the trial court abused its discretion when it ordered her

       to pay the “maximum amount of probation fees” but failed to conduct an

       indigency hearing. Appellant’s Br. at 7. “‘Sentencing decisions include

       decisions to impose fees and costs,’ and a trial court’s sentencing decision is

       reviewed for abuse of discretion.” De La Cruz v. State, 80 N.E.3d 210, 213 (Ind.

       Ct. App. 2017) (quoting Coleman v. State, 61 N.E.3d 390, 392 (Ind. Ct. App.

       2016)). An abuse of discretion occurs when the sentencing decision is clearly

       against the logic and effect of the facts and circumstances before the court. Id.


[10]   A trial court may order a person convicted of a misdemeanor to pay costs. See

       Ind. Code § 35-38-2-1. If a trial court imposes costs or fines as a condition of

       probation, the court is statutorily required to conduct an indigency hearing. See

       Ind. Code § 33-37-2-3(a) (costs); Ind. Code § 35-38-1-18(a) (fines). Although the

       hearing must be conducted after a judgment of conviction, see id., the relevant

       statutes do not otherwise dictate when the hearing is to be held, see Berry v. State,

       950 N.E.2d 798, 802 (Ind. Ct. App. 2011). Accordingly, unless the State files a

       petition to revoke a defendant’s probation for nonpayment of fines, costs, or

       fees, the trial court is free to postpone the hearing until the completion of the

       defendant’s sentence. See Johnson v. State, 27 N.E.3d 793, 795 & n.1 (Ind. Ct.

       App. 2015) (“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.”).



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-63 | October 31, 2019   Page 4 of 5
[11]   Moreover, “[a] defendant’s indigency does not shield [her] from all costs or fees

       related to [her] conviction.” Banks v. State, 847 N.E.2d 1050, 1051 (Ind. Ct.

       App. 2006), trans. denied. An indigency determination merely prevents the

       defendant from being imprisoned for her inability to pay. Henderson v. State, 44

       N.E.3d 811, 815 (Ind. Ct. App. 2015) (emphasizing that “the trial court may in

       its discretion fine [the defendant] whether or not he is found to be indigent”); see

       also Berry, 950 N.E.2d at 803 n.6 (noting the imposition of costs is an issue

       separate from the sanctions imposed for nonpayment).


[12]   For these reasons, we conclude that Dejournett is mistaken.

               Notwithstanding the indigency hearing requirement contained in
               Indiana Code sections 33-37-2-3(a) and 35-38-1-18(a), a trial
               court has the authority to assess fines, costs, and fees against an
               indigent defendant; “indeed, a different result would amount to
               inverse discrimination since it would enable an indigent to avoid
               both the fine and imprisonment for nonpayment whereas other
               defendants must always suffer one or the other[.]”


       Meunier-Short v. State, 52 N.E.3d 927, 931 (Ind. Ct. App. 2016) (quoting

       Williams v. Illinois, 399 U.S. 235, 244 (1970)).


[13]   Affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-63 | October 31, 2019   Page 5 of 5
