MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Aug 27 2019, 10:03 am
court except for the purpose of establishing
                                                                              CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Talisha Griffin                                          Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                    Tiffany A. McCoy
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Ronny Bradley,                                           August 27, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2926
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia A. Gooden,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Richard
                                                         Hagenmaier, Commissioner
                                                         Trial Court Cause No.
                                                         49G21-1806-F6-19457



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2926 | August 27, 2019                   Page 1 of 9
                                                  Case Summary
[1]   Ronny Bradley appeals his eight-and-one-half-year sentence imposed by the

      trial court following his convictions for level 6 felony possession of cocaine and

      class B misdemeanor possession of marijuana and his adjudication as a habitual

      offender. Bradley contends that his sentence is inappropriate in light of the

      nature of the offenses and his character. Bradley also argues that the trial court

      abused its discretion when it imposed a $100 public defender fee without

      determining his ability to pay. We affirm his sentence but reverse and remand

      the fee order with instructions to determine Bradley’s ability to pay the fee.


                                    Facts and Procedural History1
[2]   The facts most favorable to the jury’s verdict are as follows. On June 13, 2018,

      Indianapolis Metropolitan Police Department Officer Michael Sojka was on

      patrol when he observed a car stopped on a street in a lane of traffic. After

      Officer Sojka pulled behind the car, the driver began driving and turned down

      an alley without signaling. Officer Sojka activated his lights and initiated a

      traffic stop. He observed a female in the driver’s seat and Bradley in the

      passenger seat. As Officer Sojka was getting out of his car, he could hear

      Bradley and the female driver yelling at each other, and he observed Bradley

      reaching down with his hands toward the floorboard and being “very

      animated” with his arms and body. Tr. Vol. 2 at 36. Bradley refused to comply



      1
        Bradley fails to set forth the facts in his appellant’s brief in accordance with the applicable standard of
      review as required by Indiana Appellate Rule 46(A)(6)(b).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2926 | August 27, 2019                         Page 2 of 9
      with the officer’s commands to place his hands outside the passenger window

      and instead kept “bringing his right hand back inside” and was “fumbling inside

      the vehicle, doing something in his lap.” Id. at 39, 72. Officer Sojka removed

      Bradley from the car and conducted a search of the car. On the passenger side,

      Officer Sojka located two bags of a “white rock substance” that was later

      confirmed to be 3.66 grams of cocaine. Id. at 41; State’s Ex. 29. On the

      passenger-side floorboard, Officer Sojka found a crack pipe, an eyeglass case

      containing drug paraphernalia, and a small baggie with pills that were later

      confirmed to contain fentanyl. Tr. Vol. 2 at 45. A handgun was located under

      the passenger seat. Bradley admitted to Officer Sojka that he and the driver had

      gone together to buy cocaine and that he had been using the drug paraphernalia

      and the crack pipe. Officer Sojka placed Bradley inside his patrol car, smelled

      an odor of marijuana, and asked Bradley if he had any marijuana on him.

      Bradley opened his mouth, and Officer Sojka saw a white wrapper with “green

      leafy substances” sticking out of it. Id. at 48. Before taking Bradley into

      custody, another officer searched his person and found a bag of marijuana.


[3]   The State charged Bradley with level 4 felony unlawful possession of a firearm

      by a serious violent felon, level 5 felony possession of a narcotic drug, level 5

      felony possession of cocaine, class B misdemeanor possession of marijuana,

      class C misdemeanor possession of paraphernalia, and with being a habitual

      offender. At the initial hearing, the trial court appointed Bradley a public

      defender and imposed a $100 public defender fee. Following a trial, the jury

      found Bradley not guilty of level 4 felony unlawful possession of a firearm by a


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2926 | August 27, 2019   Page 3 of 9
      serious violent felon, level 5 felony possession of a narcotic drug, and class C

      misdemeanor possession of paraphernalia and found him guilty of level 6

      felony possession of cocaine and class B misdemeanor possession of marijuana.

      The trial court adjudicated Bradley a habitual offender. The trial court

      sentenced Bradley to two and one-half years for the felony, enhanced by six

      years for the habitual offender finding, and to a concurrent 180-day term for the

      misdemeanor for a total of eight and one-half years executed. This appeal

      ensued.


                                     Discussion and Decision

       Section 1 – Bradley has failed to establish that his sentence is
        inappropriate in light of the nature of the offenses and his
                                 character.
[4]   Bradley requests that we revise his sentence pursuant to Indiana Appellate Rule

      7(B), which provides that we “may revise a sentence authorized by statute if,

      after due consideration of the trial court’s decision, [we] find that the sentence is

      inappropriate in light of the nature of the offense and the character of the

      offender.” “Sentence review under Appellate Rule 7(B) is very deferential to

      the trial court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “Such

      deference should prevail unless overcome by compelling evidence portraying in

      a positive light the nature of the offense (such as accompanied by restraint,

      regard, and lack of brutality) and the defendant’s character (such as substantial

      virtuous traits or persistent examples of good character).” Stephenson v. State, 29

      N.E.3d 111, 122 (Ind. 2015). The principal role of appellate review is to

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2926 | August 27, 2019   Page 4 of 9
      attempt to “leaven the outliers[.]” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

      2008). “We do not look to determine if the sentence was appropriate; instead

      we look to make sure the sentence was not inappropriate.” Conley, 972 N.E.2d

      at 876. Bradley bears the burden of persuading us that his sentence is

      inappropriate. Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016).


[5]   In considering the nature of Bradley’s offenses, “the advisory sentence is the

      starting point the Legislature has selected as an appropriate sentence for the

      crime committed.” Id. The sentencing range for a level 6 felony is between six

      months and two and one-half years, with a one-year advisory term. Ind. Code §

      35-50-2-7(b). The maximum sentence for a class B misdemeanor is 180 days of

      imprisonment. Ind. Code § 35-50-3-3. A habitual offender enhancement carries

      an additional fixed term between two years and six years if the person is

      convicted of a level 6 felony. Ind. Code § 35-50-2-8(i).


[6]   Bradley contends that the nature of the offenses did not warrant the sentence he

      received because his offenses were “non-violent, drug offenses that stem from

      an addiction.” Appellant’s Br. at 16. “One factor we consider when

      determining the appropriateness of a deviation from the advisory sentence is

      whether there is anything more or less egregious about the offense committed

      by the defendant that makes it different from the ‘typical’ offense accounted for

      by the legislature when it set the advisory sentence.” Williams v. State, 51

      N.E.3d 1205, 1211 (Ind. Ct. App. 2016). “The nature of the offense is found in

      the details and circumstances surrounding the offense and the defendant’s

      participation therein.” Morris v. State, 114 N.E.3d 531, 539 (Ind. Ct. App.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2926 | August 27, 2019   Page 5 of 9
      2018), trans. denied (2019). Although Bradley’s offenses are not particularly

      egregious, he repeatedly disobeyed the officers’ commands to show his hands

      and attempted to conceal the marijuana.


[7]   As for Bradley’s character, he acknowledges that he has a significant criminal

      history, but blames his lengthy criminal history on his addiction to drugs.

      “The significance of a criminal history in assessing a defendant’s character and

      an appropriate sentence varies based on the gravity, nature, and number of

      prior offenses in relation to the current offense.” Rutherford v. State, 866 N.E.2d

      867, 874 (Ind. Ct. App. 2007). During his adult life, the fifty-four-year-old

      Bradley has been arrested twenty-five times, resulting in ten misdemeanor and

      nine felony convictions ranging from dealing and possession of marijuana,

      possession of cocaine and narcotics, unlawful possession of a firearm by a

      serious violent felon, battery, and resisting law enforcement. Bradley claims he

      now recognizes that he has an addiction problem and is less likely to reoffend

      because of his age. However, his age has not slowed down his criminal activity.

      He committed his most recent offense just a few months before he committed

      the current offenses. Bradley’s extensive criminal history does not support a

      sentence reduction.


[8]   Moreover, Bradley’s many contacts with the law have not caused him to reform

      his behavior. He argues that “a lengthy prison sentence does not further his

      goal of effectively addressing and resolving the underlying cause for his

      convictions.” Appellant’s Br. at 16. The record indicates that Bradley has

      received help in the past for his mental illness and drug addiction, but he

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2926 | August 27, 2019   Page 6 of 9
       stopped taking his prescribed medication and self-medicated with illicit drugs.

       Moreover, Bradley has been granted the leniency of probation and community

       corrections but has violated both thirty times, which reflects extremely poorly

       on his character. In sum, Bradley has not persuaded us that his sentence is

       inappropriate in light of the nature of the offenses or his character.

       Accordingly, we affirm it.


          Section 2 – The trial court abused its discretion in imposing
                            the public defender fee.
[9]    Bradley also claims that the trial court erred in imposing a $100 public defender

       fee without first determining his ability to pay. “[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 statutory parameters, we

       will not find an abuse of discretion. Langdon v. State, 71 N.E.3d 1162, 1164

       (Ind. Ct. App. 2017). “A defendant’s indigency does not shield him from all

       costs or fees related to his conviction.” Berry, 950 N.E.2d at 799.


[10]   Here, Bradley suggests, and the State agrees, that the trial court imposed the

       public defender fee pursuant to Indiana Code Section 35-33-7-6, which provides

       in relevant part,


               (a) Prior to the completion of the initial hearing, the judicial
               officer shall determine whether a person who requests assigned
               counsel is indigent. If the person is found to be indigent, the
               judicial officer shall assign counsel to the person.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2926 | August 27, 2019   Page 7 of 9
                ….


                (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).


                ….


                (d) The court may review the finding of indigency at any time
                during the proceedings.


       The statute acknowledges that there can be “degrees of indigency” and that

       “one may be indigent for purposes of paying private counsel thousands of

       dollars for representation, but still be able to pay a nominal amount to partially

       reimburse the costs of his appointed counsel.” Wooden v. State, 757 N.E.2d 212,

       281 n.4 (Ind. Ct. App. 2001), trans. denied (2002).


[11]   On appeal, Bradley contends that “nothing in the record supports that the trial

       court inquired into [his] ability to pay part of the costs of representation before

       imposing the fee.” Appellant’s Br. at 18. Before Bradley’s initial hearing, he

       completed a Request for Appointment of Public Defender form in which he

       affirmed under penalty of perjury that he was not homeless, supported only

       himself, was not employed, and did not own his own home.2 Appellant’s App.



       2
        During his sentencing hearing and in his presentence investigation report, Bradley indicated that he receives
       monthly disability benefits of $730 to $750. Tr. Vol. 2 at 154; Appellant’s App. Vol. 2 at 151.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2926 | August 27, 2019                    Page 8 of 9
       Vol. 2 at 43. Based on the information that Bradley provided, the trial court

       appointed Bradley a public defender and ordered him to pay a $100 public

       defender fee. Appellant’s App. Vol. 2 at 41-42; Supp. Tr. Vol. 2 at 7-8.


[12]   Our courts have interpreted Indiana Code Section 35-33-7-6 to require that the

       trial court make a finding regarding a defendant’s ability to pay. See Banks v.

       State, 847 N.E.2d 1050, 1052 (Ind. Ct. App. 2006) (“Under Ind. Code § 35-33-7-

       6 …, a court must explicitly find a defendant can pay the fees imposed.”), trans.

       denied; see also Berry, 950 N.E.2d at 800 (concluding that $100 public defender

       fee was imposed under Ind. Code § 35-33-7-6, which requires a finding by the

       trial court to determine the defendant’s ability to pay). Because the trial court

       in this case did not make such a finding, we reverse and remand to the trial

       court to determine Bradley’s ability to pay the $100 public defender fee as part

       of the costs of representation. “Section 35-33-7-6 does not require an additional

       hearing, only a finding of ability to pay.” Berry, 950 N.E.2d at 802. Thus, in

       making its determination, the trial court on remand may, but is not required to,

       hold a hearing.


[13]   Affirmed in part and reversed and remanded in part.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2926 | August 27, 2019   Page 9 of 9
