FILED
Jun 23 2017, 9:02 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
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jose Arcia De La Cruz, June 23, 2017
Appellant-Defendant, Court of Appeals Case No.
49A05-1610-CR-2417
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Rebekah F.
Appellee-Plaintiff. Pierson-Treacy, Judge
The Honorable Ronnie Huerta,
Commissioner
Trial Court Cause No.
49G19-1512-CM-45644
Najam, Judge.
Statement of the Case
[1] Jose Arcia De La Cruz appeals the imposition of probation fees after his
conviction, following a bench trial, for operating a vehicle while intoxicated, as
Court of Appeals of Indiana | Opinion 49A05-1610-CR-2417 | June 23, 2017 Page 1 of 11
a Class C misdemeanor. He raises one issue on appeal, namely, whether the
trial court abused its discretion when it allowed the probation department to
assess probation fees against him. In response, the State contends that De La
Cruz’ appeal is moot.
[2] We disagree that this appeal is moot. On the merits, we reverse the trial court’s
order that the probation department assess probation fees, and we remand with
instructions to vacate the imposition of probation fees and order reimbursement
of those fees.
Facts and Procedural History
[3] On December 23, 2015, the State charged De La Cruz with operating a vehicle
while intoxicated endangering a person, as a Class A misdemeanor, and
operating a vehicle with an ACE of .15 or more, as a Class A misdemeanor.
The trial court appointed counsel for De La Cruz based on his indigency, with
no requirement for reimbursement. On September 29, 2016, the trial court
conducted a bench trial and found De La Cruz guilty of only the lesser-included
offense of operating a vehicle while intoxicated, as a Class C misdemeanor.
The trial court then sentenced De La Cruz to sixty days in jail, with fifty-six
days suspended, and to an additional 180 days of “non-reporting” probation.
Tr. at 37.
[4] During sentencing, the trial court questioned De La Cruz about his finances as
follows:
Court: . . . What is your weekly income, sir?
Court of Appeals of Indiana | Opinion 49A05-1610-CR-2417 | June 23, 2017 Page 2 of 11
De La Cruz: About three or four hundred dollars, but work has
gone down so I don’t have work right now.
Court: How much did you earn last week?
De La Cruz: Last week I didn’t work. There was no work.
Court: Do you support any minor children?
De La Cruz: In Mexico.
Court: How many children?
De La Cruz: Three.
Id. at 38. The trial court then stated, “All right, then I will find you indigent. I
won’t impose any court cost[s], no fines[,] no fees. I will also order probation[,]
if there are any fees associated with non-reporting[,] to assess your ability to
pay, also known as sliding scale for all of it.” Id.
[5] In the sentencing conditions section of the sentencing order, the probation
“amount/comment” subsection states in relevant part: “180 DAYS
PROBATION. AET AND AAID IS COMPLETED. ADS AND CMF IS
NOT ORDERED. SLIDING SCALE FOR PROBATION FEES.
NONREPORTING PROBATION AFTER INITIAL SIGN UP.” Appellant’s
Court of Appeals of Indiana | Opinion 49A05-1610-CR-2417 | June 23, 2017 Page 3 of 11
App. Vol. II at 12-13. The order of probation,1 signed on the same date as the
sentencing order, lists fourteen “Standard Conditions,” including “pay all
Court-ordered fines, costs, fees[,] and restitution as directed.” Id. at 44. Under
the “Special Conditions” section, the probation subsection states in relevant
part: “180 DAYS PROBATION. AET AND AAID IS COMPLETED. ADS
AND CMF IS NOT ORDERED. SLIDING SCALE FOR PROBATION
FEES. NONREPORTING PROBATION AFTER INITIAL SIGN UP.” Id.
[6] The “Monetary Conditions” section of the probation order includes a 4-column
chart. Id. The first column, entitled “Monetary Obligations,” lists various fees,
fines, and costs. Id. The second and third columns show “Misdemeanor Rate”
and “Felony Rate,” respectively. Id. The fourth column is entitled “Ordered
Amount,” but most of the rows in the column are blacked out. Id. The
“Administrative Fee” and “Probation User Fee” rows are two of the rows that
are blacked out. Id. The rows that are not blacked out are left blank.
[7] The last page of the Chronological Case Summary (“CCS”) shows the
following entry under the heading “FINANCIAL INFORMATION:”
Defendant Arcia De La Cruz, Jose
Total Charges 220.00
1
The State is incorrect when it asserts that the probation order was not entered on the CCS. See Appellant’s
App. Vol. II at 11.
Court of Appeals of Indiana | Opinion 49A05-1610-CR-2417 | June 23, 2017 Page 4 of 11
Total Payments and Credits 220.00
Balance Due as of 11/17/2016 0.00
Id. at 11. The “Case Transactions Summary for Arcia De La Cruz, Jose” sets
out probation administrative and user fees totaling $220 and payments of such
fees totaling $220. Appellant’s Supp. App. Vol. II at 2.
[8] De La Cruz filed this appeal on October 27, 2016, and, on March 30, 2017, he
was discharged from probation.
Discussion and Decision
[9] De La Cruz challenges the imposition of probation fees. Specifically, he
contends that the trial court abused its discretion when it allowed the probation
department, rather than the court, to assess those fees. “Sentencing decisions
include decisions to impose fees and costs,” and a trial court’s sentencing
decision is reviewed for abuse of discretion. Coleman v. State, 61 N.E.3d 390,
392 (Ind. Ct. App. 2016). “An abuse of discretion has occurred 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. The trial court must impose fees within
statutory parameters. Berry v. State, 950 N.E.2d 798, 799 (Ind. Ct. App. 2011).
[10] Before we address De La Cruz’ contentions, we must first address the State’s
assertion that this appeal is moot. As we have previously explained:
Court of Appeals of Indiana | Opinion 49A05-1610-CR-2417 | June 23, 2017 Page 5 of 11
where the principal questions at issue cease to be of real
controversy between the parties, the errors assigned become
moot questions and this court will not retain jurisdiction to
decide them. Stated differently, when we are unable to provide
effective relief upon an issue, the issue is deemed moot, and we
will not reverse the trial court’s determination where absolutely
no change in the status quo will result.
Jones v. State, 847 N.E.2d 190, 200 (Ind. Ct. App. 2006) (citations and
quotations omitted), trans. denied.
[11] Here, the State contends that De La Cruz’ appeal is moot because he has
already paid all of the probation fees and completed probation. We disagree.
De La Cruz timely appealed the trial court’s order that the probation
department assess probation fees. The probation department subsequently
charged him $220 in probation fees which he paid.2 On appeal he asserts that
the probation department should never have charged him the probation fees
because only the court had the statutory authority to do so. He seeks a remedy
of reimbursement of those fees. As discussed below, we reverse the trial court
order that the probation department assess probation fees and remand with
instructions to vacate the probation fees erroneously imposed and order
2
Thus, while satisfaction of a judgment will generally moot an appeal on the merits of that judgment, e.g.,
Carey v. Haddock, 877 N.E.2d 842, 844 (Ind. Ct. App. 2007), trans. denied, there is no court judgment for
probation fees in this case, only a probation department assessment of fees. That is, De La Cruz does not
appeal a trial court judgment of fees; rather, he appeals the trial court order allowing the probation
department to assess such fees.
Court of Appeals of Indiana | Opinion 49A05-1610-CR-2417 | June 23, 2017 Page 6 of 11
reimbursement of those fees. Because that remedy will provide De La Cruz
with effective relief, his appeal is not moot.
[12] The State’s assertion that Indiana Code Section 35-38-2-1.7(a) (2016) prohibits
the remedy of reimbursement in this case is not well taken. That statute
provides in relevant part that, “if the person is discharged from probation before
the date the person was scheduled to be released from probation, any monthly
probation user’s fee paid in advance by the person may not be refunded.” Id.
However, De La Cruz was not discharged from probation before the date he
was scheduled to be released from probation, nor is it clear from the record that
he paid the monthly user’s fee in advance of the date it was due.3 Therefore, the
State has not shown that Indiana Code Section 35-38-2-1.7(a) is applicable,
and, again, De La Cruz’ appeal is not moot.
[13] We thus turn to the merits of this appeal. De La Cruz contends that the trial
court erred when it did not order probation fees and instead allowed the
probation department to impose such fees on its own. We agree. Indiana Code
Section 35-38-2-1(b) provides that, if a person is convicted of a misdemeanor,
“the court may order the person to pay the user’s fee prescribed under subsection
(e)” following an indigency hearing. Coleman, 61 N.E.3d at 393 (emphasis
added). Subsection (e) states that “the court may order” the defendant to pay
not more than certain specified maximum amounts for specified fees, including
3
Moreover, the statute only addresses the monthly users’ fees, not the initial users’ fee or the administrative
fee that are also at issue in this case.
Court of Appeals of Indiana | Opinion 49A05-1610-CR-2417 | June 23, 2017 Page 7 of 11
user and administrative fees, “to either the probation department or the clerk.”
Subsection (f) states that “the probation department . . . shall collect” those fees.
(Emphasis added.) And Indiana Code Section 35-38-2-1.7(b) states that “[a]
probation department may petition a court” to “impose” or “increase” a
person’s probation fees.
[14] We recently held that those statutes give “the trial court, not the probation
department, . . . the discretion to impose probation fees.” Burnett v. State, No.
49A02-1610-CR-2402, -- N.E.3d --, 2017 WL 1399845, at *4 (Ind. Ct. App.
April 19, 2017) (emphasis added). In Burnett, the trial court referred at the
sentencing hearing to “various probation fees that are required,” and it noted in
its sentencing and probation orders that the defendant had to follow “all
standard conditions and fees of probation, and that probation would become
non-reporting upon “payment of all fees.” Id. However, as in our case, the
probation order had blacked out or left blank the spaces for the “ordered
amount” of probation fees. Id. Thus, despite the court’s general references to
probation fees, we held that the trial court had not imposed probation fees on
the defendant and that it was therefore “erroneous to accept the imposition of
these fees without a petition from the probation department and a showing that
[the defendant’s] financial situation has changed since the sentencing hearing.”
Id.; see also Coleman, 61 N.E.3d at 393-94 (vacating probation fees imposed by
the probation department where the sentencing order did not list any such fees,
and the probation order included “ordered amount” sections that were either
blacked out or blank).
Court of Appeals of Indiana | Opinion 49A05-1610-CR-2417 | June 23, 2017 Page 8 of 11
[15] De La Cruz’ situation is similar to that of the defendants in Burnett and
Coleman. Although De La Cruz’ sentencing and probation orders referred to a
“sliding scale for probation fees” and the trial court “order[ed] probation[,] if
there are any fees associated with non-reporting[,] to assess [De La Cruz’]
ability to pay,” Tr. at 38, the trial court did not impose probation fees. Rather,
as in Burnett and Coleman, the probation order included a “monetary
obligations” section with an “ordered amount” column in which all the rows
for specific fees were either blacked out or blank. Such a probation order, along
with the absence of a clear statement imposing probation fees, shows the trial
court’s intent not to impose such fees. Burnett, 2017 WL 1399845, *4; Coleman,
61 N.E.3d at 394.
[16] However, the State maintains that Marion County courts presumptively impose
probation fees pursuant to a local rule. Marion County LR49-CR00-1154
provides that “whenever an individual is placed on probation,” certain listed
probation fees and costs, including administrative and user fees, “shall be
imposed under the Probation Court or Probation Order unless the sentencing
Judge specifically modifies the Order.” The local rule does not provide what
amounts should be imposed for each specified fee.5 Id. “Indiana trial courts
4
We note that this local rule was not raised or addressed in either Burnett or Coleman.
5
The State contends that “the trial court’s order read in conjunction with the local rule provided for
assessing the statutory maximum amount of probation fees.” Appellee’s Br. at 20. However, nothing in the
plain language of the local rule requires the assessment of the statutory maximum amount of probation fees;
rather, the local rule is completely silent as to the amount of any fees.
Court of Appeals of Indiana | Opinion 49A05-1610-CR-2417 | June 23, 2017 Page 9 of 11
may establish local rules for their own governance as long as the local rules do
not conflict with the rules established by the Indiana Supreme Court or by
statute.” Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 645–646 (Ind.
2012); see also I.C. § 34-8-1-4 (“Other Indiana Courts may establish rules for
their own government, supplementary to and not conflicting with the rules
prescribed by the supreme court or any statute.”).
[17] De La Cruz contends that LR49-CR00-115 is invalid because it conflicts with
Indiana Code Section 35-38-2-1(b). Specifically, he maintains that, while the
statute makes the imposition of probation fees discretionary for misdemeanors,
the local rule makes such fees mandatory. We disagree. Although LR49-
CR00-115 creates a presumption that probation fees are ordered, by its plain
language it allows a trial court discretion to modify an order regarding
probation fees in any manner it sees fit. Thus, under both the local rule and
state statute, the trial court has discretion to order probation fees or not.
[18] However, the local rule did not operate as an order for probation fees in this
case because the trial court did “specifically modify” the presumption of
probation fees when it blacked out or left blank every row for specific fees in the
“amount ordered” column of the “monetary obligations” section of the
probation order. Appellant’s App. at 44. The trial court did not order
probation fees, and it abused its discretion when it authorized the probation
Court of Appeals of Indiana | Opinion 49A05-1610-CR-2417 | June 23, 2017 Page 10 of 11
department to do so.6 Accordingly, we reverse the order that the probation
department assess probation fees, and we remand with instructions to vacate
the probation fees and order reimbursement of those fees from the probation
department.7
[19] Reversed and remanded with instructions.
Riley, J., and Bradford, J., concur.
6
Clearly, this error was not harmless, as the State contends, since it cost De La Cruz $220 he should not
have been required to pay.
7
Unlike in Burnett and Coleman, the trial court here conducted an indigency hearing and determined that De
La Cruz was indigent. Therefore, it is not necessary to remand for such a hearing. Cf. Burnett, 2017 WL
1399845, *4 (holding trial court made insufficient indigency inquiry where it only asked if it was true that the
defendant made less than $20,000 per year); Coleman, 61 N.E.3d at 394 (holding no indigency inquiry was
made, and remanding for such a hearing).
Court of Appeals of Indiana | Opinion 49A05-1610-CR-2417 | June 23, 2017 Page 11 of 11