FILED
Apr 19 2017, 8:59 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Wendy Burnett, April 19, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1610-CR-2402
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable John Razumich,
Appellee-Plaintiff Judge Pro Tempore
Trial Court Cause No.
49G12-1508-CM-29371
Baker, Judge.
Court of Appeals of Indiana | Opinion 49A02-1610-CR-2402 | April 19, 2017 Page 1 of 12
[1] Wendy Burnett appeals her conviction of Operating a Vehicle While
Intoxicated Endangering a Person,1 a Class A Misdemeanor. She argues that
there was insufficient evidence to support her conviction for operating a vehicle
while intoxicated endangering a person, that the trial court erred when it did
not conduct an indigency hearing before imposing probation fees, and that her
probation fees were improperly imposed by the probation department. We
agree on all arguments, but as to her conviction, we find sufficient evidence
supporting the lesser-included offense of Class C misdemeanor operating a
vehicle while intoxicated.2 We reverse and remand for further proceedings and
with instructions to vacate Burnett’s Class A misdemeanor conviction and to
enter judgment for Class C misdemeanor operating a vehicle while intoxicated.
As for the fees owed by Burnett, the judgment of the trial court is vacated and
remanded for further proceedings.
Facts
[2] On August 18, 2015, Burnett was riding in the passenger seat of a Chevrolet
Impala in Indianapolis when the driver of the vehicle struck another vehicle.
Burnett had fallen asleep before the collision, but she woke up upon the impact
and jumped out of the vehicle. As a woman who lived nearby started yelling
about the accident, Burnett got back into the vehicle’s passenger seat, and the
1
Ind. Code § 9-30-5-2(b).
2
I.C. § 9-30-5-2(a).
Court of Appeals of Indiana | Opinion 49A02-1610-CR-2402 | April 19, 2017 Page 2 of 12
driver drove away from the scene. The driver stopped the vehicle not far from
the scene of the accident, and at some point, Burnett got into the driver’s seat
and drove back past the scene; by then, police were there beginning an
investigation.
[3] Officer Matthew Fortney of the Indianapolis Metropolitan Police Department
conducted a traffic stop on the Impala, which at the time was being driven by
Burnett. Officer Fortney observed that Burnett’s breath smelled of alcohol, that
her eyes were glassy, and that her speech was slow. Burnett told Officer
Fortney that she had not been driving the vehicle at the time of the accident.
[4] Officer Vincent Marshall conducted an investigation to determine whether
Burnett was driving under the influence. He could hear her slur her speech, and
when he asked whether she had been drinking or consuming alcohol, she stated
that she had consumed approximately three beers before the officers arrived.
Officer Marshall had Burnett complete the standard field sobriety tests, during
which he observed that her eyes were red and watery and that her breath
smelled of alcohol. The officer asked Burnett to take a portable breath test,
which she declined to do. He then read the Indiana Implied Consent law, and
Burnett refused to take a certified chemical test. Officer Marshall formed an
opinion that Burnett was intoxicated based on her performance on the field
sobriety tests and his observations, and he arrested her.
[5] The State charged Burnett with one count of Class A misdemeanor operating a
vehicle while intoxicated endangering a person, and two counts of Class B
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misdemeanor leaving the scene of an accident. On September 14, 2016, a
bench trial took place. During the trial, the trial court admitted evidence of two
phone calls that Burnett had made from jail to her son. In one of the phone
calls, Burnett said that she had been in the car and dozed off and woke up to an
accident, and that her reaction was to get in the car and drive away. The trial
court found Burnett guilty of operating a vehicle while intoxicated endangering
a person but not of leaving the scene of an accident.
[6] After a sentencing hearing that began on September 14, 2016, and concluded on
September 26, 2016, the trial court sentenced Burnett to 365 days, with five
days executed and the remainder suspended to probation. Burnett was ordered
to attend the Advocates Against Impaired Driving (AAID) destructive decision
panel and to submit to an alcohol evaluation test and follow recommendations
for treatment. The trial court ordered Burnett to pay a $200 countermeasure
fee, a $250 alcohol drug services fee, $183.50 in court costs, and a $16.50 fine.
The trial court stated that the court costs and fine “are in addition to your
various probation fees that are required.” Tr. p. 76. The trial court also stated
that Burnett’s probation would become non-reporting after she finished the
terms and conditions of her probation, and that
Part of those terms are repaying those things as soon as you are
able to. So, I do encourage you to get those done sooner rather
than later. My experience with probation has been the faster that
they get paid, the faster they are likely to not pay attention to you
so much, especially if you’re not causing problems for them
otherwise.
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Id.
[7] Defense counsel asked the trial court for a determination on whether Burnett
was indigent for purposes of appeal, stating that Burnett makes under $20,000
per year. When Burnett said that she would be interested in pursuing an
appeal, the trial court stated that defense counsel “summarized your financial
situation. Is that correct? Is that your income?” Id. at 78. Burnett replied
affirmatively. The trial court then found Burnett indigent as to the purposes of
appeal and appointed a public defender to represent her on appeal. Id.
[8] The sentencing order for Burnett includes a section on the conditions of her
probation, which includes the comment “all standard conditions and fees of
probation.” Appellant’s App. Vol. II p. 13. The order’s monetary obligations
section states that Burnett owes $649.50 in court costs and fees. This section
does not include any probation fees. The probation order for Burnett lists
fourteen standard conditions, including “pay all Court-ordered fines, costs, fees
and restitution as directed.” Id. at 47. The special conditions section of the
probation order includes the same conditions as in the sentencing order. The
probation order includes a space for monetary conditions of probation. That
section of Burnett’s order reads as follows:
Monetary Misdemeanor Felony Rate Ordered Amount
Obligation Rate
Administrative 50 100
Fee
Alcohol/Drug 250 (A Misd) 250
Services Program 150 (B & C)
Child Abuse Fee 100 100
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Countermeasure 200 200
Fee
Court Costs 183/183.50 183/183.50
Domestic 50 50
Violence Fee
Drug Interdiction 200-1,000 200-1,000
Fee
Fine 0-5,000 0-10,000 $
Pre-Trial Fee 50 100
Probation User 50 + 20/month 100 + 30/month
Fee
Public Defender 50 100
Fee
Safe School Fee 200-1,000 200-1,000
Sexual Assault 250-1,000 250-1,000
Victim Fee
Id. (blacked-out sections and blank spaces original). Subsequently, the
probation department charged Burnett an adult probation administrative fee of
$50, an adult probation monthly and initial user fee of $281.30, a probation user
fee of $8.70, and a highway work zone fee of $.50, for a total of $340.50.
Burnett now appeals.
Discussion and Decision
I. Sufficiency of the Evidence
[9] Burnett argues that the evidence is insufficient to support her conviction. When
reviewing a claim of insufficient evidence, we will consider only the evidence
and reasonable inferences that support the conviction. Gray v. State, 957 N.E.2d
171, 174 (Ind. 2011). We will affirm if, based on the evidence and inferences, a
Court of Appeals of Indiana | Opinion 49A02-1610-CR-2402 | April 19, 2017 Page 6 of 12
reasonable jury could have found the defendant guilty beyond a reasonable
doubt. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).
[10] To convict Burnett of operating a vehicle while intoxicated endangering a
person, the State was required to prove beyond a reasonable doubt that she
operated a vehicle while intoxicated in a manner that endangered a person.
Ind. Code § 9-30-5-2(b). This statute “requires more than intoxication to prove
endangerment.” Dorsett v. State, 921 N.E.2d 529, 532 (Ind. Ct. App. 2010). The
element of endangerment can be established by evidence showing that the
defendant’s condition or operating manner could have endangered any person,
including the public, the police, or the defendant. Id.
[11] At the end of the trial, the trial court stated:
Certainly while individuals who have been through the system
can rapidly come up with stories, I think that taken in
conjunction with other things, I’m not entirely sure that Ms.
Burnett was on the ball enough to make up the story that
someone else was driving the vehicle under the stressors and the
intoxication. . . .
With regards to Count I, the operating while intoxication, [sic]
we have very clear evidence that even if Wendy Burnett was not
the one driving the vehicle at the time of the collision, we have
extremely clear evidence that she got back behind the wheel of
the vehicle at a later point in time while she was still under the
effects of the alcohol that she had consumed earlier.
[12] Tr. p. 57. During sentencing, the trial court stated that Burnett “did provide
[her] vehicle to somebody who crashed it into two other cars.” Id. at 75. In
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other words, after hearing from a witness and listening to an audio recording of
a phone call Burnett had made to her son from jail in which she described what
had taken place, the trial court found that Burnett was not driving at the time of
the accident. There is no evidence in the record that Burnett drove in a manner
that endangered a person when she started driving after the accident.
Therefore, we find insufficient evidence supporting the Class A misdemeanor
operating a vehicle while intoxicated endangering a person conviction.
[13] When a conviction is reversed because of insufficient evidence, we may remand
to the trial court with instructions to enter a judgment of conviction on a lesser-
included offense if the evidence is sufficient to support the lesser offense.
Chatham v. State, 845 N.E.2d 203, 208 (Ind. Ct. App. 2006). Operating a
vehicle while intoxicated is an inherently lesser-included offense of operating a
vehicle while intoxicated endangering a person. We find that Burnett’s
presentation—slow and slurred speech, glassy eyes, and breath smelling of
alcohol—and the officers’ conclusions at the scene are sufficient to show that
she was intoxicated. Accordingly, we reverse Burnett’s operating a vehicle
while intoxicated endangering a person conviction and remand with
instructions to enter judgment for operating a vehicle while intoxicated as a
Class C misdemeanor and to resentence accordingly.
II. Probation Fees
[14] When a defendant is convicted of a misdemeanor, the trial court has discretion
to impose certain probation fees. Ind. Code § 35-38-2-1(e). If the probation
Court of Appeals of Indiana | Opinion 49A02-1610-CR-2402 | April 19, 2017 Page 8 of 12
department later wants to alter the fees imposed by the trial court, it must
petition the trial court to increase the probation fees. I.C. § 35-38-2-1.7(b). To
be entitled to an increase in fees, the probation department must demonstrate
that there was a change in the financial ability of the probationer while on
probation. Id.
[15] This Court has recently considered this same issue regarding probation fees and
costs. In Coleman v. State, 61 N.E.3d 390 (Ind. Ct. App. 2016), the trial court's
sentencing order did not list any court costs or fees, and the probation order's
monetary obligation section included ordered amount sections that were
blacked out with the exception of “fine,” “safe school fee,” and “sexual assault
victim fee,” which were all blank. 61 N.E.3d at 393-94. The probation
department subsequently imposed an aggregate amount of $640 in fees on the
defendant. This Court found that, “based on the record, we cannot conclude
that the trial court imposed these probation fees.” Id. at 394. Therefore, we
vacated the fees and remanded for further proceedings.
[16] The State contends that “[t]here is no reason whatsoever to believe that
probation would arrive at a non-statutory scheme for fees in contrast with the
trial court’s determination.” Appellee’s Br. p. 18 (emphasis added). This
argument misses the essence of our state’s statute—it is the trial court, not the
probation department, that has the discretion to impose probation fees. That
the amount of the probation fees imposed on Burnett falls within the statutory
scheme does not mean that the fees were imposed according to statute. Here,
the trial court stated that Burnett had “various probation fees that are required.”
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Tr. p. 76. The trial court’s sentencing order and order of probation stated that
Burnett had to follow “all standard conditions and fees of probation” and that
her probation would become non-reporting upon “payment of all fees.”
Appellant’s App. Vol. II p. 13-14, 47. Because the trial court did not impose
any probation fees or costs on Burnett, it was erroneous to accept the
imposition of these fees without a petition from the probation department and a
showing that Burnett’s financial situation has changed since the sentencing
hearing. Accordingly, we vacate the fees and remand for further proceedings.
[17] Lastly, Burnett argues that the trial court erred by failing to conduct an
indigency hearing before imposing fees. Indiana Code section 33-37-2-3
requires a trial court to hold an indigency hearing if the court imposes costs on
a defendant. A trial court “has a duty to conduct an indigency hearing at some
point in time.” Johnson v. State, 27 N.E.3d 793, 795 (Ind. Ct. App. 2015) (citing
Ind. Code § 33-37-2-3). An indigency hearing for probation fees should take
place no later than when a defendant completes her sentence. Id.
[18] The trial court asked one question to determine Burnett’s financial situation.
After her counsel stated that she makes less than $20,000, the trial court stated
that defense counsel “summarized your financial situation. Is that correct? Is
that your income?” Tr. p. 78. Burnett replied affirmatively. The trial court did
not inquire further into just how much less than $20,000 Burnett makes. While
in some cases such a brief inquiry into a defendant’s financial situation may be
sufficient—if, for example, the defendant reports a six-figure income or
significant assets or has in some other way established herself as financially
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secure—in Burnett’s case, it was not. The State contends that the trial court did
conduct an indigency hearing based in part on its one question and on the fact
that the record showed that Burnett was employed as a nurse and wore her
nurse’s uniform to trial. Standing alone, such facts are deficient in assessing a
person’s ability to pay. In this case, a sufficient indigency hearing would
consist of the trial court asking Burnett questions in order to assess her actual
ability to pay. Such questions might include asking about her exact yearly
income, her assets or debts, or any financial expenses that could have an impact
on her ability to pay fees, such as the cost of her rent, utilities, or transportation
to and from work, medical expenses, or any dependents.
[19] Nonetheless, the trial court assumed Burnett’s ability to pay. The trial court
stated that by making Burnett’s probation non-reporting, “that gives you the
opportunity to save a little bit on your probation fees and to kind of just have it
hanging over your head, as opposed to something where you’re reporting on a
regular basis.” Id. at 74. The trial court also stated that
once all of your terms are completed, your probation will become
non-reporting. Part of those terms are repaying those things as
soon as you are able to. So, I do encourage you to get those done
sooner rather than later. My experience with probation has been
the faster that they get paid, the faster they are likely to not pay
attention to you so much, especially if you’re not causing
problems for them otherwise.
Id. at 76. As a result of the trial court’s assumption that Burnett could pay her
probation fees, let alone its assumption that she could pay them “sooner rather
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than later,” Burnett could be unfairly prevented from receiving the benefit of
non-reporting probation. Any disparate treatment based on a defendant’s
financial situation—whether it be by conferring a benefit, modifying a sentence,
or something else—triggers the requirement to have an indigency hearing at the
time the fees are imposed to determine the defendant’s ability to pay.
[20] The judgment of the trial court is reversed with respect to Burnett’s conviction
and remanded with instructions to vacate her conviction of Class A
misdemeanor, to enter judgment for Class C misdemeanor operating a vehicle
while intoxicated, and to resentence Burnett accordingly. The judgment of the
trial court regarding the fees owed by Burnett is vacated and remanded for
further proceedings consistent with this opinion.
Barnes, J., and Crone, J., concur.
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