      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                          FILED
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                                  Jun 14 2019, 9:38 am

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


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                         Curtis T. Hill, Jr.
      Marion County Public Defender Agency                     Attorney General of Indiana
      Indianapolis, Indiana
                                                               Caroline G. Templeton
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Antonio Terrell Miles,                                   June 14, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-2416
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Lisa F. Borges,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               49G04-1804-F5-11296



      Shepard, Senior Judge.


[1]   The trial court determined Antonio Miles was guilty of carrying a handgun

      without a license with a prior conviction, a Level 5 felony; criminal


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2416 | June 14, 2019                       Page 1 of 6
      recklessness, a Level 6 felony; and operating a motor vehicle without receiving

      a license, a Class C misdemeanor. He appeals the court’s orders to pay certain

      fees and costs. We affirm.


[2]   Miles and Victoria Barnes had been in a romantic relationship, but Barnes

      ended it in early March 2018. On the night of March 11, Miles was at Barnes’

      apartment to discuss their relationship.


[3]   Booker Housley arrived at Barnes’ apartment because he and Barnes had

      planned to carpool to work. Housley recognized Miles’ car in the parking lot

      and called Barnes to see if she had made alternate plans. She told Housley that

      Miles was about to leave. Miles left her apartment and got into his car as

      Housley approached. Miles was gone when they left the apartment.


[4]   Housley drove toward his workplace, with Barnes sitting in the front passenger

      seat. Suddenly, several gunshots struck the front driver’s side window, cracking

      it. Housley stopped the car and saw Miles pull up in his car, holding a

      handgun. Barnes recognized Miles’ car but could not see the driver. Miles

      fired several more shots at Housley’s car before driving away. Housley drove to

      work, where he called the police.


[5]   Meanwhile, Officer Nathan Lush of the Indianapolis Metropolitan Police

      Department was dispatched to investigate. He inspected Housley’s car and

      noted the driver’s side window was shattered. In addition, there were several

      bullet holes on the driver’s side of the car. Housley told Officer Lush that Miles



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2416 | June 14, 2019   Page 2 of 6
      was the shooter. In addition, Housley later identified Miles as the shooter in a

      photographic lineup.


[6]   On April 6, 2018, the State charged Miles with carrying a handgun without a

      license with a prior conviction, criminal recklessness, criminal mischief, and

      operating a motor vehicle without ever receiving a license. The trial court held

      an initial hearing on April 9 and determined Miles was “partially indigent.”

      Appellant’s App. Vol. II, p. 43. As a result, the court appointed a public

      defender but ordered Miles to pay $100 to the Public Defender Supplemental

      Fund. The fee would be due within thirty days of Miles’ release from

      incarceration.


[7]   Miles, by counsel, issued notices of deposition for several witnesses, but the

      record does not indicate whether these occurred. Next, Miles waived jury trial

      and requested permission to represent himself. The trial court granted Miles’

      request but ordered his public defender to serve as standby counsel.


[8]   The court held a bench trial on August 31, 2018. Miles represented himself,

      with standby counsel present. Miles conferred with counsel during closing

      arguments. The court determined Miles was guilty as charged, except that

      Miles was guilty of criminal mischief as a Class B, rather than Class A,

      misdemeanor. The court later vacated the criminal mischief conviction on

      double jeopardy grounds.


[9]   On September 12, 2018, the court held a sentencing hearing. Miles conferred

      with standby counsel during the hearing. The court sentenced Miles to seven

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2416 | June 14, 2019   Page 3 of 6
       years, with one year suspended to community corrections, to be served on

       home detention. The court also ordered Miles to pay $185 in court costs and

       $200 for a “safe schools fee,” subject to a “financial assessment as to your

       ability to pay fees and costs while you are on Community Corrections.” Tr.

       Vol. II, p. 148. In its order committing Miles to community corrections, the

       court further stated that the conditions of his placement would include a

       “financial assessment as to ability to pay fees and costs.” Appellant’s App. Vol.

       II, p. 158.


[10]   In this appeal, Miles first claims the court erred in imposing a $100 public

       defender fee at his initial hearing. Indiana Code section 35-33-7-6 (2004)

       provides:


               (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.

                                                      ****

               (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).

               (2) For a misdemeanor action, a fee of fifty dollars ($50).

                                                      ****

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


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2416 | June 14, 2019    Page 4 of 6
[11]   The trial court determined Miles could afford to pay the $100 fee and ordered

       him to do so within thirty days of his release from incarceration. Miles is not

       challenging the court’s determination that he could afford to pay the $100 fee.

       He instead argues the fee is inappropriate because he decided to represent

       himself later in the case and did not need an attorney. Miles’ argument is

       flawed because the court did not know Miles planned to represent himself at the

       time the court imposed the fee. The court had the authority to revisit the fee

       under Indiana Code section 35-33-7-6(d), but Miles never raised the issue after

       he began representing himself.


[12]   In any event, the plain language of the statute states that if a court determines a

       defendant can afford to pay the fee, the court “shall” order the defendant to pay

       it. Id. Indiana courts presumptively treat the word “shall” as mandatory unless

       it appears clear from the context or purpose of the statute that the legislature

       intended a different meaning. Taylor v. State, 786 N.E.2d 285, 287 (Ind. 2003).

       The trial court was obligated to impose the fee. Further, Miles benefitted from

       his attorney’s representation and assistance because the attorney issued notices

       of deposition and later served as standby counsel at trial. The court did not err

       in imposing the public defender fee.


[13]   Next, Miles argues the court erred during the sentencing hearing by ordering

       him to pay fees and costs without inquiring into his ability to pay. We review

       the court’s imposition of fees and costs for an abuse of discretion. Mathis v.

       State, 776 N.E.2d 1283 (Ind. Ct. App. 2002), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2416 | June 14, 2019   Page 5 of 6
[14]   When a court directs a defendant to pay fees and costs, “it shall conduct a

       hearing to determine whether the convicted person is indigent.” Ind. Code §

       33-37-2-3 (2007). The court need not require fees and costs to be paid at the

       sentencing hearing. Instead, “[a] court may impose costs and suspend payment

       of all or part of the costs until the convicted person has completed all or part of

       the sentence. If the court suspends payment of the costs, the court shall

       conduct a hearing at the time the costs are due to determine whether the

       convicted person is indigent.” Id. If a court suspends payment of costs, “the

       court retains jurisdiction over the convicted person until the convicted person

       has paid the entire amount of the costs.” Id.


[15]   In this case, the trial court sentenced Miles to seven years, with one year to be

       served on community corrections. The court’s statements at sentencing and in

       it its order placing Miles in community corrections demonstrate that the court

       suspended payment of costs and fees until Miles is released from incarceration,

       at which time there will be an assessment of his ability to pay. The court’s

       decision complies with Indiana Code section 33-37-2-3 and is not an abuse of

       discretion. See Kimbrough v. State, 911 N.E.2d 621 (Ind. Ct. App. 2009) (trial

       court did not abuse discretion in delaying due date for court costs until after

       defendant finished serving the executed portion of his sentence).


[16]   For the foregoing reasons, we affirm the judgment of the trial court.


       Mathias, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2416 | June 14, 2019   Page 6 of 6
