MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),                                 May 13 2016, 5:50 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
court except for the purpose of establishing                                 and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Ruth Ann Johnson                                        Gregory F. Zoeller
Suzy St. John                                           Attorney General of Indiana
Marion County Public Defender Agency
                                                        Richard C. Webster
Indianapolis, Indiana                                   Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Andre Thomas,                                           May 13, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1508-CR-1092
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Clayton A.
Appellee-Plaintiff.                                     Graham, Judge
                                                        Trial Court Cause No.
                                                        49G07-1408-CM-38329



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1092 | May 13, 2016             Page 1 of 4
                                       Statement of the Case
[1]   Andre Thomas (“Thomas”) appeals the trial court’s order that he pay probation

      fees. Specifically, Thomas argues that the trial court abused its discretion when

      it ordered him to pay probation fees without first conducting an indigency

      hearing. Although a trial court is not required to conduct an indigency hearing

      at the time it orders probation fees, the trial court has a duty to conduct such a

      hearing before or upon the completion of a defendant’s sentence. We therefore

      remand this case to the trial court to conduct an indigency hearing upon the

      completion of Thomas’ sentence.


[2]   We remand.


                                                     Issue
              Whether the trial court abused its discretion when it ordered
              Thomas to pay probation fees without first conducting an
              indigency hearing.


                                                     Facts
[3]   In July 2015, Thomas was convicted in a bench trial of Class A misdemeanor

      criminal trespass. The trial court sentenced him to 365 days in the Marion

      County Jail, with 357 days suspended to non-reporting probation. Thomas was

      also ordered to pay a fine and court costs as well as probation fees. The trial

      court specifically ordered that the probation fees would be “sliding fee scale

      and/or reduced fee schedule, so that will be based on your income, or sliding

      fee. . . .” (Tr. 91). At the time of sentencing, Thomas was not employed.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1092 | May 13, 2016   Page 2 of 4
                                                  Decision
[4]   Thomas argues that the trial court abused its discretion when it ordered him to

      pay probation fees without first conducting an indigency hearing. Sentencing

      decisions include decisions to impose fees and costs. Johnson v. State, 27 N.E.2d

      793, 794 (Ind. Ct. App. 2015). A trial court’s sentencing decisions are reviewed

      under an abuse of discretion standard. Id. An abuse of discretion occurs when

      the sentencing 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. Id.


[5]   In the Johnson case, Johnson was convicted of two misdemeanors. As a

      condition of Johnson’s probation, the trial court ordered him to pay $340 for

      probation fees. The trial court also ordered a sliding-fee scale for the payment

      of these fees but delayed making an indigency determination until more

      information regarding Johnson’s financial situation came to light. Id. On

      appeal, Johnson argued that the trial court abused its discretion when it ordered

      him to pay probation fees without first conducting an indigency hearing.


[6]   This Court pointed out that INDIANA CODE § 33-37-2-3 requires a trial court

      that imposes costs on a defendant to conduct an indigency hearing. Id.

      However, we further noted that the statute does not specify when the hearing

      has to be held. Id. Because no statutory language required the trial court to

      conduct an indigency hearing before or directly after ordering probation fees,

      we concluded that the trial court acted within its authority when it chose to wait


      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1092 | May 13, 2016   Page 3 of 4
      and see if Johnson could pay probation fees before it found him indigent. Id. at

      794-95. We explained that at the latest, an indigency hearing for probation fees

      should be held at the time a defendant completes his sentence. Id. at 795. We

      therefore remanded the case to the trial court to conduct an indigency hearing

      upon the completion of Johnson’s sentence. Id.


[7]   Here, as in Johnson, the trial court placed Thomas on a sliding fee scale for

      probation fees. Pursuant to INDIANA CODE § 33-37-2-3, the trial court has a

      duty to conduct an indigency hearing at some point in time. Here, the trial

      court did not conduct such a hearing when it ordered Thomas to pay probation

      fees. Accordingly, as in Johnson, we remand to the trial court to conduct an

      indigency hearing at the time Thomas completes his sentence.


[8]   Remanded.


      Kirsch, J., and Riley, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1092 | May 13, 2016   Page 4 of 4
