FILED
Feb 11 2019, 8:51 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots Curtis T. Hill, Jr.
Daniel Hageman Attorney General of Indiana
Marion County Public Defender Agency Angela N. Sanchez
– Appellate Division Assistant Section Chief,
Indianapolis, Indiana Criminal Appeals
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Teresa L. Holder, February 11, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-968
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Carol J. Orbison,
Appellee-Plaintiff. Senior Judge
Trial Court Cause No.
49G19-1708-CM-32260
Mathias, Judge.
[1] Teresa Holder (“Holder”) appeals the fees imposed for her disorderly conduct
conviction. She argues the trial court abused its discretion by imposing
probation fees without conducting an indigency hearing. She also argues that
Court of Appeals of Indiana | Opinion 18A-CR-968 | February 11, 2019 Page 1 of 9
the trial court erred by imposing a $100 public defender fee on Holder when she
was only charged with misdemeanors.
[2] We reverse and remand.
Facts and Procedural History
[3] On August 29, 2017, Holder was having a get-together in her back yard when
uniformed officers from the Indiana Metropolitan Police Department
(“IMPD”) entered. The officers proceeded to arrest a man whom the officers
believed was armed and had committed a felony. Holder, who was surprised
and had been drinking, began to yell. Officers directed her to quiet down, but
she continued shouting. Holder was handcuffed without physical incident,
although she did direct a variety of expletives at officers. She also told officers
that she did not have a weapon on her person, but if she did have a weapon, she
would use it on them.
[4] After being handcuffed, Holder yanked away from an officer and attempted to
run toward the other individual being arrested. The officer was able to take her
to the ground safely, but Holder continued to yell until officers placed her in the
back of an IMPD vehicle.
[5] Holder was charged with resisting law enforcement as a class A misdemeanor
and disorderly conduct as a class B misdemeanor. After a bench trial held on
March 26, 2018, the trial court found Holder guilty of disorderly conduct. The
trial court then proceeded immediately to sentencing, ordering Holder to 180
days of jail time, with credit for six days served, and the remaining 174 days
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suspended, with ninety days of non-reporting probation. Although the trial
court made no inquiry into Holder’s ability to pay, did not hold an indigency
hearing and did not make any mention of court cost and fees, the written
sentencing order imposes sixteen separate fees amounting to $395, including
probation fees amounting to $160. The trial court also imposed $100 in public
defender fees. In an unexplained discrepancy from the sentencing order, the
chronological case summary (“CCS”) notes fees of $445, but also shows $160 of
probation fees.
[6] Holder completed her community service on April 26, 2018 and paid $195 of
her financial obligation. On May 16, 2018, the Marion County Probation
Department filed a memo with the trial court, requesting that Holder’s bond
money be applied to her $395 financial obligation. On May 25, 2018, the
Probation Department filed a request for discharge, recommending Holder be
discharged from probation as scheduled on June 23, 2018. Probation also
requested a hearing to address Holder’s outstanding financial obligation. The
trial court approved the probation department’s request for discharge; however,
as of the date of appeal, no hearing had been set to address the outstanding
balance shown on the CCS in the amount of $250.
[7] Holder appeals, arguing that the trial court erred in two ways. First, Holder
argues that the trial court committed error by imposing fees without conducting
an indigency hearing. She additionally argues that the trial court erred by
imposing a felony-level public defender fee of $100 when she was only charged
with misdemeanors.
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Discussion and Decision
[8] Indiana Code section 33-37-2-3 provides the trial court with great flexibility in
imposing costs. Berry v. State, 950 N.E.2d 798, 801 (Ind. Ct. App. 2011). The
statute states:
(a) Except as provided in subsection (b), when the court imposes
costs, it shall conduct a hearing to determine whether the
convicted person is indigent. If the person is not indigent, the
court shall order the person to pay:
(1) the entire amount of the costs at the time the sentence
is pronounced;
(2) the entire amount of the costs at some later date; or
(3) specified parts of the costs at designated intervals.
(b) A court may impose costs and suspend payment of all or part
of the costs until the convicted person has completed all or part
of the sentence. If the court suspends payment of the costs, the
court shall conduct a hearing at the time the costs are due to
determine whether the convicted person is indigent. If the
convicted person is not indigent, the court shall order the
convicted person to pay the costs:
(1) at the time the costs are due; or
(2) in a manner set forth in subsection (a)(2) through
(a)(3).
***
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(e) If, after a hearing under subsection (a) or (b), the court
determines that a convicted person is able to pay part of the costs
of representation, the court shall order the person to pay an
amount of not more than the cost of the defense services
rendered on behalf of the person. The clerk shall deposit the
amount paid by a convicted person under this subsection in the
county’s supplemental public defender services fund established
under IC 33-40-3-1.
(f) A person ordered to pay part of the cost of representation
under subsection (e) has the same rights and protections as those
of other judgment debtors under the Constitution of the State of
Indiana and Indiana law.
[9] “[D]ecisions to impose restitution, fines, costs, or fees, are generally left to the
trial court’s discretion.” Berry, 950 N.E.2d at 799 (quoting Kimbrough v. State,
911 N.E.2d 621, 636 (Ind. Ct. App. 2009)). “A defendant’s indigency does not
shield him from all costs or fees related to his conviction.” Banks v. State, 847
N.E.2d 1050, 1051 (Ind. Ct. App. 2006), trans. denied. Sentencing decisions,
including decisions to impose costs and fees are reviewed for an abuse of
discretion. Johnson v. State, 27 N.E.3d 793, 794 (Ind. Ct. App. 2015). If the fees
imposed by the trial court fall within the parameters of the statute, we will not
find an abuse of discretion. Mathis v. State, 776 N.E.2d 1283, 1289 (Ind. Ct.
App. 2002), trans. denied.
[10] Here, the fees imposed do not fall within the parameters of the statute. The
statute plainly requires a trial court to determine indigency “when the court
imposes costs.” I.C. § 33-37-2-3(a) (emphasis added). Subsection (b) provides the
court with the opportunity to suspend costs until the time the sentence is
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completed. I.C. § 33-37-2-3(b). Here, the probation fees were imposed on
Holder in conjunction with her sentencing without any inquiry or any findings
regarding her possible indigency.1 There is no indication that these costs were
suspended or that an indigency hearing would take place when the costs
became due at a later date. Moreover, in an unexplained discrepancy, the
written sentencing order imposes sixteen separate fees amounting to $395,
including probation fees amounting to $160. The CCS shows an obligation of
$445, but also shows probation fees of $160. As such, we remand for the trial
court to determine what Holder’s remaining obligation is, if any, determine if
Holder is indigent, and assess the appropriate costs.
[11] Holder also challenges the assessment of a $100 public defender fee. In Berry v.
State, 950 N.E.2d 798, 800 n.2 (Ind. Ct. App. 2011), we acknowledged that
there were three possible statutes under which a trial court has the authority to
order a defendant to pay all or a part of the costs of counsel provided at public
expense. Two of these statutes could potentially apply in this case: Indiana
Code section 33-37-2-3 and Indiana Code section 35-33-7-6. The trial court
failed to identify which of these two statutes it relied on to impose the public
defender fee.
1
While a determination of indigency is necessary when a court imposes costs, an indigency hearing is not
required in order to apply cash bond money to these costs. See Ind. Code § 35-33-8-3.2(a)(2); Wright v. State,
949 N.E.2d 411, 416 (Ind. Ct. App. 2011). Here, the costs totaled significantly more than the $150 cash bond
posted by Holder, requiring an indigency hearing for the remainder of the obligation.
Court of Appeals of Indiana | Opinion 18A-CR-968 | February 11, 2019 Page 6 of 9
[12] As is mentioned above, Indiana Code section 33-37-2-3 relates to the costs that
may be imposed following a criminal conviction and requires that “when the
court imposes costs, it shall conduct a hearing to determine whether the
convicted person is indigent.” Ind. Code § 33-37-2-3(a). Subsection (e) further
provides that “[i]f, after a hearing under subsection (a) or (b),[2] the court
determines that a convicted person is able to pay part of the costs of
representation, the court shall order the person to pay an amount of not more
than the cost of the defense services rendered on behalf of the person.”
[13] Indiana Code section 35-33-7-6(a) provides that “[p]rior to 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.” Subsection (c) goes on to say
that “[i]f the court finds that the person is able to pay a part of the cost of
representation by the assigned counsel, the court shall order the person to pay
the following: … (2) For a misdemeanor action, a fee of fifty dollars ($50).”
[14] In Berry, the trial court imposed a public defender fee of $100 but did not specify
under which statute it imposed the fee. We concluded that “[t]he fact that
Berry was found indigent at the initial hearing and the trial court ordered a fee
of $100 leads us to agree … that the trial court imposed the public defender fee
2
Again, subsection (b) indicates that if payment of costs is suspended until after the person has completed all
or a part of their sentence, “the court shall conduct a hearing at the time the costs are due to determine
whether the convicted person is indigent.” Ind. Code § 33-37-2-3(b).
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pursuant to Indiana Code section 35-33-7-6.”3 950 N.E.2d at 800. We noted
that the trial court failed to make a finding regarding Berry’s ability to pay and
remanded to the trial court to determine whether Berry was able to pay the $100
public defender fee. Id. at 802.
[15] In this case, Holder argues that the trial court imposed the $100 public defender
fee pursuant to Indiana Code section 35-33-7-6(c). It is undisputed this case
involves only misdemeanor charges. Thus, given the plain language of the
statute, she argues that the highest fee the trial court could impose was $50.
The State, on the other hand, argues that the trial court imposed a public
defender cost pursuant to Indiana Code section 33-37-2-3(g) and, as such, could
order Holder to pay $100 toward the cost of her publicly-funded representation.
[16] Similar to the situation in Berry, the trial court found Holder indigent prior to
trial, appointed a public defender, and then imposed what it referred to on its
sentencing order as a “Public Defense Administration Fee.” Appellant’s App.
Vol. II, p. 11. Given these circumstances and consistent with our conclusion in
Berry, we conclude that the trial court intended to impose the public defender
fee pursuant to Indiana Code section 35-33-7-6. As such, the most the trial
3
The defendant in Berry was charged with and convicted of a felony. As such, the trial court could impose
a fee of $100 pursuant to Indiana Code section 35-33-7-6.
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court could impose is $50. On remand, we instruct the trial court to conduct a
hearing to determine Holder’s ability to pay this $50 fee.4
Conclusion
[17] The record in the instant matter lacks any determination regarding the
defendant’s ability to pay the fees imposed. Moreover, the imposition of a $100
public defender fee was contrary to statute and outside the trial court’s
authority. We reverse the imposition of the $100 public defender fee and
remand to the trial court for proceedings consistent with this opinion.
[18] Reversed and remanded.
Bailey, J., and Bradford, J., concur.
4
While the State is correct to assert that the trial court could have imposed a public defense cost of $100
pursuant to Indiana Code section 33-37-2-3(e), the language of the statute indicates that such a cost could
only have been imposed following a hearing on Holder’s ability to pay.
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Teresa L. Holder v. State of Indiana
Combined Opinion