Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited Sep 03 2013, 5:42 am
before 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:
JILL M. ACKLIN GREGORY F. ZOELLER
Acklin Law Office, LLC Attorney General of Indiana
Westfield, Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DWIGHT MCPHERSON, )
)
Appellant-Defendant, )
)
vs. ) No. 48A05-1302-CR-64
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Angela Warner Sims, Judge
Cause No. 48C01-1204-FD-634
48C01-1206-FD-1045
48C01-1206-FD-1220
September 3, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issues
Dwight McPherson appeals his sentence. He presents two issues on appeal: 1)
whether the trial court properly imposed a public defender fee; and 2) whether the trial
court correctly ordered the restitution amount to be determined by the probation
department. Concluding that the trial court abused its discretion on both issues, we
remand.
Facts and Procedural History
In December of 2012, McPherson entered into a plea with the State, agreeing to
plead guilty to several charges involving theft and attempted theft as Class D felonies,
and criminal mischief as a Class A misdemeanor, following an incident in which
McPherson stole packages of meat from a grocery store. The plea agreement provided
that McPherson would be sentenced to a total of thirty-six months, with the executed
portion to be determined by the court. The court gave McPherson 426 days for time
served, and sentenced him to 654 days suspended and 654 days on probation, for a total
of thirty-six months as provided by the plea agreement. The court also ordered
McPherson to pay a $200 public defender fee, and left a restitution amount to be
determined by the probation department. This appeal followed. Additional facts will be
supplied as necessary.
Discussion and Decision
I. Assessment of Fees
The trial court has discretion in sentencing a defendant and its decision will be
reversed only upon showing a manifest abuse of discretion. Banks v. State, 847 N.E.2d
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1050, 1051 (Ind. Ct. App. 2006), trans. denied. If the trial court imposes fees within the
statutory limits, there is no abuse of discretion. Id.
McPherson argues that there are three governing statutes here, one of which sets a
cap of $100, and two of which require a finding by the court that the defendant is able to
pay. Namely, Indiana Code section 35-33-7-6(c) states that “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 . . . [f]or a felony action, a fee of one hundred dollars.”
Indiana Code section 33-40-3-6 provides that the court shall require payment of costs
incurred by the county as a result of court appointed counsel, if the court makes a finding
of an ability to pay those costs. Finally, Indiana Code section 33-37-2-3(a) requires the
court to conduct a hearing to determine whether a convicted person is indigent, where the
court is imposing costs. Subsection (e) of that statute requires the court to determine
whether a convicted person is able to pay part of the costs of representation before
ordering the person to pay for defense services rendered. In Jackson v. State, we noted
that fees may be ordered under any combination of these statutes. 968 N.E.2d 328, 333
(Ind. Ct. App. 2012). McPherson argues that because the trial court here never made a
finding as to his ability to pay a fee, and moreover that the fee imposed exceeded the cap
set by Indiana Code section 35-33-7-6, we should remand for reconsideration of this fee.
We agree.
The State also agrees with McPherson, although it cites to a fourth statutory basis
under which McPherson could have been assessed fees. Nonetheless, the State concedes
that the record is opaque as to whether the requirements of that statute have been met.
The State notes that Indiana Code section 35-33-8-3.2(a) allows the court, in admitting a
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defendant to bail, to require that the defendant execute an agreement that allows the court
to retain all or part of the cash securities to pay costs of representation, among other
things. However, the record here is silent as to whether such an agreement was executed.
II. Restitution
McPherson also argues that the trial court erred in leaving to the probation
department a determination of the amount of restitution. Both we and the State agree
with McPherson. We have previously held that the statute allowing the court to order
restitution requires the court to set that amount itself, and that leaving a determination to
the probation department does not comply with the statute. McGuire v. State, 625 N.E.2d
1281, 1282 (Ind. Ct. App. 1993). We remand to the trial court for a determination of
McPherson’s ability to pay restitution, the amount of any restitution, and the manner of
performance.
Conclusion
Concluding that the trial court erred in its imposition of a public defender fee and
in leaving a determination of restitution to the probation department, we remand for
proceedings consistent with this opinion.
Remanded.
RILEY, J., and KIRSCH, J., concur.
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