MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Dec 30 2015, 6:45 am
regarded as precedent or cited 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
Suzy St. John Gregory F. Zoeller
Marion County Public Defender Attorney General
Appellate Division
Lyubov Gore
Indianapolis, Indiana Deupty Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jesse Abrams, December 30, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1504-CR-194
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Patrick J. Dietrick,
Appellee-Plaintiff Judge
The Honorable Mark Renner,
Commissioner
Trial Court Cause No.
49G21-1411-CM-52716
Bradford, Judge.
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Case Summary
[1] Appellant-Defendant Jesse Abrams was convicted of Class A misdemeanor
invasion of privacy for violating a protective order. The trial court imposed two
$50.00 public defender fees, one at the initial hearing after determining Abrams
to be indigent and another at sentencing. On appeal, Abrams argues that the
trial court abused its discretion by ordering a second $50.00 public defender fee.
We reverse and remand with instructions.
Facts and Procedural History
[2] On November 24, 2014, Appellee-Plaintiff the State of Indiana (“the State”)
charged Abrams with Class A misdemeanor invasion of privacy after he
violated an ex parte protective order. At the initial hearing, the trial court found
Abrams to be indigent, appointed a public defender to represent him, and
ordered him to pay a $50.00 “public defender fee.” Appellant’s App. p. 20. At
a bench trial, the trial court found Abrams guilty as charged and imposed the
following sentence: “The court…sentences you to 365 days: 82 days of jail time,
with the 41 days of credit, actual time having spent, you’ve got time served.
You will be placed on probation for 283 days.” Tr. p. 102. The trial court also
imposed court costs and fees in the amount of $168.00, which included a $50.00
“Supplemental Public Defender Fee.” Appellant’s App. p. 15.
Discussion and Decision
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[3] On appeal, Abrams argues that the trial court erred by ordering him to pay a
second $50.00 public defender fee at sentencing. “[S]entencing decisions,
including decisions to impose restitution, fines, costs, or fees, are generally left
to the trial court’s discretion. If the trial court imposes fees within the statutory
limits, there is no abuse of discretion.” Kimbrough v. State, 911 N.E.2d 621, 636
(Ind. Ct. App. 2009) (citations omitted).
[4] Indiana Code section 35-33-7-6 governs the limits on public defender fees which
may be imposed against an indigent party.
(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).
The clerk of the court shall deposit fees collected under this
subsection in the county’s supplemental public defender services
fund established under IC 33-40-3-1.
Ind. Code § 35-33-7-6.
[5] At the initial hearing on November 24, 2014, the trial court conducted “a
thorough examination of defendant’s total financial picture and the nature of
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the criminal charges” before finding that Abrams was indigent, appointing a
public defender, and ordering Abrams to pay a $50.00 public defender fee to the
Supplemental Public Defender Fund. Appellant’s App. p. 20. Abrams does not
contend that there was any error with the imposition of this first public defender
fee and paid the fee on March 11, 2015.
[6] At sentencing, the trial court imposed court costs and fees in the amount of
$168.00, which included a $50.00 “Supplemental Public Defender Fee.”
Appellant’s App. p. 15. This fee was imposed in addition to the initial public
defender fee. The State does not acknowledge that there was a second $50.00
fee imposed by the trial court. “There is nothing in the record to support
Defendant’s claim that the fee was imposed at any time other than the initial
hearing.” Appellee’s Br. p. 9 n. 2. However, it appears from the sentencing
order that the public defender fee ordered at sentencing is distinct from the one
ordered at the initial hearing. Additionally, Abrams provided a summary of his
outstanding charges, certified by the Marion County Clerk of Courts, detailing
the court fees owed. This detail confirms that Abrams was charged two $50.00
public defender fees, first at the initial hearing and again at sentencing.
[7] The State cites to Indiana Code sections 33-40-3-6 and 33-37-2-3 as alternative
sections under which the trial court could have imposed a public defender fee at
sentencing. However, fees may be ordered under Section 33-37-2-3 only if the
defendant is found not to be indigent. Abrams was found to be indigent in this
case. Alternatively, Section 33-40-3-6 provides that
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If at any stage of a prosecution for a felony or a misdemeanor the
court makes a finding of ability to pay the costs of representation
under section 7 of this chapter, the court shall require payment by
the person or the person’s parent, if the person is a child alleged
to be a delinquent child, of the following costs in addition to
other costs assessed against the person:
(1) Reasonable attorney’s fees if an attorney has been
appointed for the person by the court.
[8] The trial court could have made a finding at sentencing regarding Abrams
ability to pay the costs of representation in addition to the $50.00 maximum fee
previously imposed under Indiana Code section 35-33-7-6; however, it did not
do so. Rather, it seems simply that the trial court mistakenly ordered two
$50.00 supplemental public defender fees. Accordingly, we remand with
instructions that the trial court rescind the $50.00 public defender fee imposed
at sentencing.
[9] Remanded with instructions.
Baker, J., and Pyle, J., concur.
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