      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                       FILED
      regarded as precedent or cited before any                              Sep 13 2018, 9:05 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
      Peter D. Todd                                            Curtis T. Hill, Jr.
      Elkhart, Indiana                                         Attorney General of Indiana

                                                               Caroline G. Templeton
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Michael S. Duffield,                                     September 13, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-213
              v.                                               Appeal from the Elkhart Superior
                                                               Court
      State of Indiana,                                        The Honorable Teresa L. Cataldo,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               20D03-1607-FB-4



      Friedlander, Senior Judge.


[1]   Michael S. Duffield appeals the sentencing order imposed by the trial court

      after a jury determined he was guilty of incest, a Class B felony. We affirm.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-213 | September 13, 2018               Page 1 of 5
[2]   In 2016, J.D. disclosed that, in 2001, her uncle, Duffield, had sexual intercourse

      with her on several occasions. She was fifteen years old at the time. J.D. first

      told her parents and then told law enforcement.


[3]   The State charged Duffield with one count of incest, a Class B felony. A jury

      determined Duffield was guilty. On January 4, 2018, the trial court sentenced

      Duffield to fifteen years, with the final two years of the sentence suspended to

      probation. The court also ordered Duffield to participate in sex offender

      treatment. The court further directed him to pay restitution for J.D.’s

      counseling and forbade him to contact her.


[4]   In addition, the court ordered Duffield to pay: (1) a $500 sex assault victim’s

      fee; (2) a $100 child abuse prevention fee; and (3) court costs, all to be paid

      within thirty days. The court informed Duffield that failure to timely pay the

      fees and costs would result in the imposition of late payment fees but that “the

      defendant, if indigent, shall not be incarcerated for failure to pay fines and

      costs.” Appellant’s App. Vol. 2, p. 18. The court further imposed a fine of

      $10,000 but suspended it. Finally, the court appointed counsel to represent

      Duffield on appeal. This appeal followed.

                                                                                                    1
[5]   Duffield does not contest his conviction or his fifteen-year sentence. Instead,

      he claims the trial court improperly imposed a late fee for nonpayment of fees




      1
       To the contrary, Duffield concedes: “[s]ufficient evidence exists to support the conviction, and the trial
      court did not abuse its discretion in sentencing Duffield.” Appellant’s Br. p. 4, n 1.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-213 | September 13, 2018                   Page 2 of 5
      and costs. Sentencing decisions include decisions to impose fees and costs.

      Johnson v. State, 27 N.E.3d 793 (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. Coleman v. State, 61

      N.E.3d 390 (Ind. Ct. App. 2016).


[6]   Indiana Code section 33-37-5-22 (2013) provides, in relevant part: (1) if a

      defendant is convicted of a crime; and (2) the court imposes court costs, fees, or

      fines; and (3) the defendant has not been determined to be indigent; and (4) the
                                                                                                2
      court is governed by a local rule that imposes a late payment fee; and (5) the

      defendant fails to timely pay the costs, fees, or fines; then (6) the clerk of courts

      “shall” collect a late payment fee of twenty-five dollars. “[A] court may

      suspend a late payment fee if the court finds that the defendant has

      demonstrated good cause for failure to make a timely payment of court costs, a

      fine, or a civil penalty.” Id.


[7]   In this case, the trial court’s final judgment ordered Duffield to pay fees and

      court costs within thirty days or he would be subject to late payment fees. The

      State correctly notes the record does not indicate that Duffield failed to meet the




      2
        Neither party directs us to a local rule, but Elkhart County Circuit and Superior Courts Local Rule 2
      appears to meet the criteria of Indiana Code section 33-37-5-22 because it imposes a $25.00 late fee for failure
      to timely pay costs, fines, and penalties.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-213 | September 13, 2018                    Page 3 of 5
       payment deadline. In the absence of proof that the late payment fee has

       actually been assessed, Duffield has not suffered any harm from the trial court’s

       order.


[8]    Duffield further argues that the court’s mere statement that he could be required

       to pay late fees is an abuse of discretion because he is indigent. We disagree.

       The trial court appointed counsel to represent Duffield on appeal, but while a

       trial court’s appointment of counsel for a defendant implies a finding of

       indigency, the appointment of counsel is not conclusive as to the defendant’s

       inability to pay costs. Briscoe v. State, 783 N.E.2d 790 (Ind. Ct. App. 2003).


[9]    Further, although a trial court has an affirmative duty to conduct an indigency

       hearing at some point if it imposes fines or costs as part of a defendant’s

       sentence, id., “[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.” Johnson v. State, 27 N.E.3d at 795. At sentencing, Duffield told the

       court he had a truck that he might be able to sell for “six, seven hundred

       dollars.” Tr. Vol. III, p. 111.


[10]   We conclude the trial court did not abuse its discretion in stating that Duffield

       would be subject to late payment fees for failure to timely pay court costs and

       fees. We expect that if the clerk seeks to impose late payment fees on Duffield,

       the court will make an indigency determination and will further allow Duffield

       an opportunity to otherwise demonstrate good cause for failure to make timely

       payment per Indiana Code section 33-37-5-22.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-213 | September 13, 2018   Page 4 of 5
[11]   For the reasons stated above, we affirm the judgment of the trial court.


[12]   Affirmed.


[13]   Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-213 | September 13, 2018   Page 5 of 5
