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.
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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
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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.
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