Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                  May 08 2013, 8:00 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

KIMBERLY A. JACKSON                              GREGORY F. ZOELLER
Indianapolis, Indiana                            Attorney General of Indiana

                                                 KARL M. SCHARNBERG
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ASHLEY N. LAWRENCE,                              )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 92A04-1211-CR-597
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE WHITLEY SUPERIOR COURT
                         The Honorable Douglas M. Fahl, Judge
                            Cause No. 92D01-1206-CM-401


                                        May 8, 2013

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARTEAU, Senior Judge
                             STATEMENT OF THE CASE

       Ashley N. Lawrence appeals the revocation of her probation and the sentence

imposed by the trial court. We reverse and remand.

                                         ISSUE

       Lawrence raises two issues, one of which we find dispositive: whether the trial

court abused its discretion in the course of determining that Lawrence was not entitled to

court-appointed counsel.

                       FACTS AND PROCEDURAL HISTORY

       In 2012, Lawrence pleaded guilty to Class C misdemeanor operating a vehicle

with an ACE of .08 or more, Class A misdemeanor operating a vehicle while intoxicated,

Class A misdemeanor battery resulting in bodily injury, and Class B misdemeanor

criminal mischief. The trial court dismissed the first count, entered a judgment of

conviction on the other three, and sentenced Lawrence to one year with thirty days

executed and the remainder suspended to probation, plus an additional six months of

probation.

       On October 1, 2012, the probation department filed a notice of probation violation.

The trial court held a hearing on November 14, 2012. The following discussion occurred

at that hearing:

       COURT:              Alright.    How would you like to proceed this
                           afternoon? Do you wish to admit or deny the
                           allegations?

       LAWRENCE:           I will like to ask for a court appointed attorney.



                                            2
COURT:      Alright. Please raise your right hand. Do you swear or
            affirm that the testimony you are about to give is the
            truth, the whole truth and nothing but the truth so help
            you God?

LAWRENCE:   Yes, I do.

COURT:      Ma’am where are you working?

LAWRENCE:   I am currently not employed. I’m a full time student.

COURT:      Alright. Well, how are you affording to be a full time
            student?

LAWRENCE:   I take out loans.

COURT:      Okay.

LAWRENCE:   I have financial aid and also I’ve picked out a loan to
            pay for my school.

COURT:      Alright. Okay. Ma’am I’m not going to appoint an
            attorney to represent you. What you are, uh, I
            appreciated the fact that you are going to college, but
            you are what’s a, you are voluntarily unemployed.
            Alright. So you need to hire your own attorney. It’s
            not that you are unemployed by terms, or that you are
            destitute in this particular case. You are choosing not
            to work and you are choosing to go to college.
            Therefore it’s not appropriate for the taxpayers to pay
            for your attorney. You will have to pay for your own
            attorney. So I’m going to deny your request for a
            public defender. Would you like to set this matter,
            would you to [sic] set this matter for a fact finding to
            give you the chance to hire an attorney?

LAWRENCE:   Uh, I mean, I don’t have the money for an attorney.

COURT:      Okay. Alright. Do you wish to have the matter set for
            a fact finding? Or do you wish to admit to the
            allegations? I don’t want you to admit simply because
            you don’t have an attorney. If you feel that you
            committed these allegations, and you wish to admit,

                                3
                            that’s fine. If you would like we can set the matter for
                            a fact finding and the State can prove beyond the
                            preponderance of the evidence that you did in fact
                            commit these offenses if they are unable [sic] to do so.

       LAWRENCE:            Um, I admit.

Tr. pp. 4-5.

       The trial court accepted Lawrence’s admission and ordered her to serve the

remainder of her one-year sentence. This appeal followed.

                             DISCUSSION AND DECISION

       Lawrence argues that the trial court failed to perform an adequate investigation

into her ability to afford private counsel and that remand is necessary for a more thorough

inquiry. The State agrees with Lawrence.

       The grant of probation is a favor by the trial court, not a right. Beeler v. State, 959

N.E.2d 828, 829 (Ind. Ct. App. 2011), trans. denied. A probation revocation hearing is in

the nature of a civil proceeding. Donald v. State, 930 N.E.2d 76, 79 (Ind. Ct. App. 2010).

Nevertheless, a defendant is entitled to certain due process protections prior to the

revocation of his or her probation. Cooper v. State, 900 N.E.2d 64, 66 (Ind. Ct. App.

1999). Among these protections is the right to “representation by counsel.” Ind. Code §

35-38-2-3(f) (2010). As a general matter, it is within the court’s discretion to determine

whether counsel shall be appointed at public expense. Shively v. State, 912 N.E.2d 427,

430 (Ind. Ct. App. 2009). An abuse of discretion occurs when the court’s decision is

contrary to the logic and effect of the facts and circumstances before it or when the trial

court errs on a matter of law. Wilson v. State, 973 N.E.2d 1211, 1213-14 (Ind. Ct. App.


                                              4
2012). A court does not have discretion to deny counsel to an indigent defendant.

Shively, 912 N.E.2d at 430.

       There is no set specific financial guideline for the determination of indigency. Id.

It is clear, however, that a defendant does not have to be totally without means in order to

be appointed counsel at public expense. Id. A determination of ability to pay must

include a balancing of assets against liabilities and a consideration of the amount of the

defendant’s disposable income or other resources reasonably available to him or her after

the payment of fixed or certain obligations. Id. at 431. Moreover, because the right to

counsel is a fundamental constitutional right, the record in each case must show that

careful consideration of indigency, commensurate with the right at stake, has been given

to the defendant. Id.

       Here, based upon the discussion between Lawrence and the trial court at the

probation revocation hearing, we cannot conclude that the court carefully considered

Lawrence’s financial circumstances and balanced her assets against her liabilities. The

court simply determined that Lawrence was “voluntarily unemployed” because she was a

full-time college student. The State agrees “that the trial court’s inquiry in this case was

inadequate.” Appellee’s Br. p. 6. Under these circumstances, the court’s inquiry was

insufficient and amounted to an abuse of discretion. See Graves v. State, 503 N.E.2d

1258, 1262 (Ind. Ct. App. 1987) (determining that the trial court’s inquiry into Graves’

financial circumstances was insufficient; Graves was an unemployed college student

attending school on borrowed money and his bail was posted by his cousin).



                                             5
        Furthermore, the court’s abuse of discretion in determining whether Lawrence was

indigent requires us to reverse the court’s conclusion that Lawrence violated the terms of

her probation. See id. (reversing a misdemeanor conviction for dealing in marijuana due

to a deficient indigency determination at an initial hearing). We remand for a more

thorough indigency determination, to be followed by further proceedings as appropriate.1

                                           CONCLUSION

        For the reasons stated above, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

        Reversed and remanded.

CRONE, J., and PYLE, J., concur.




1
  The State claims that there is sufficient evidence to support the revocation of Lawrence’s probation.
However, the State’s evidence was never put to the test because Lawrence admitted to violating the terms
of her probation immediately after the denial of her request for court-appointed counsel. Thus, we do not
address the sufficiency of the evidence.
                                                   6
