MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 27 2019, 10:03 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Talisha Griffin Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Appellate Division
Indianapolis, Indiana Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ronny Bradley, August 27, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2926
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Alicia A. Gooden,
Appellee-Plaintiff Judge
The Honorable Richard
Hagenmaier, Commissioner
Trial Court Cause No.
49G21-1806-F6-19457
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2926 | August 27, 2019 Page 1 of 9
Case Summary
[1] Ronny Bradley appeals his eight-and-one-half-year sentence imposed by the
trial court following his convictions for level 6 felony possession of cocaine and
class B misdemeanor possession of marijuana and his adjudication as a habitual
offender. Bradley contends that his sentence is inappropriate in light of the
nature of the offenses and his character. Bradley also argues that the trial court
abused its discretion when it imposed a $100 public defender fee without
determining his ability to pay. We affirm his sentence but reverse and remand
the fee order with instructions to determine Bradley’s ability to pay the fee.
Facts and Procedural History1
[2] The facts most favorable to the jury’s verdict are as follows. On June 13, 2018,
Indianapolis Metropolitan Police Department Officer Michael Sojka was on
patrol when he observed a car stopped on a street in a lane of traffic. After
Officer Sojka pulled behind the car, the driver began driving and turned down
an alley without signaling. Officer Sojka activated his lights and initiated a
traffic stop. He observed a female in the driver’s seat and Bradley in the
passenger seat. As Officer Sojka was getting out of his car, he could hear
Bradley and the female driver yelling at each other, and he observed Bradley
reaching down with his hands toward the floorboard and being “very
animated” with his arms and body. Tr. Vol. 2 at 36. Bradley refused to comply
1
Bradley fails to set forth the facts in his appellant’s brief in accordance with the applicable standard of
review as required by Indiana Appellate Rule 46(A)(6)(b).
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with the officer’s commands to place his hands outside the passenger window
and instead kept “bringing his right hand back inside” and was “fumbling inside
the vehicle, doing something in his lap.” Id. at 39, 72. Officer Sojka removed
Bradley from the car and conducted a search of the car. On the passenger side,
Officer Sojka located two bags of a “white rock substance” that was later
confirmed to be 3.66 grams of cocaine. Id. at 41; State’s Ex. 29. On the
passenger-side floorboard, Officer Sojka found a crack pipe, an eyeglass case
containing drug paraphernalia, and a small baggie with pills that were later
confirmed to contain fentanyl. Tr. Vol. 2 at 45. A handgun was located under
the passenger seat. Bradley admitted to Officer Sojka that he and the driver had
gone together to buy cocaine and that he had been using the drug paraphernalia
and the crack pipe. Officer Sojka placed Bradley inside his patrol car, smelled
an odor of marijuana, and asked Bradley if he had any marijuana on him.
Bradley opened his mouth, and Officer Sojka saw a white wrapper with “green
leafy substances” sticking out of it. Id. at 48. Before taking Bradley into
custody, another officer searched his person and found a bag of marijuana.
[3] The State charged Bradley with level 4 felony unlawful possession of a firearm
by a serious violent felon, level 5 felony possession of a narcotic drug, level 5
felony possession of cocaine, class B misdemeanor possession of marijuana,
class C misdemeanor possession of paraphernalia, and with being a habitual
offender. At the initial hearing, the trial court appointed Bradley a public
defender and imposed a $100 public defender fee. Following a trial, the jury
found Bradley not guilty of level 4 felony unlawful possession of a firearm by a
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serious violent felon, level 5 felony possession of a narcotic drug, and class C
misdemeanor possession of paraphernalia and found him guilty of level 6
felony possession of cocaine and class B misdemeanor possession of marijuana.
The trial court adjudicated Bradley a habitual offender. The trial court
sentenced Bradley to two and one-half years for the felony, enhanced by six
years for the habitual offender finding, and to a concurrent 180-day term for the
misdemeanor for a total of eight and one-half years executed. This appeal
ensued.
Discussion and Decision
Section 1 – Bradley has failed to establish that his sentence is
inappropriate in light of the nature of the offenses and his
character.
[4] Bradley requests that we revise his sentence pursuant to Indiana Appellate Rule
7(B), which provides that we “may revise a sentence authorized by statute if,
after due consideration of the trial court’s decision, [we] find that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” “Sentence review under Appellate Rule 7(B) is very deferential to
the trial court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “Such
deference should prevail unless overcome by compelling evidence portraying in
a positive light the nature of the offense (such as accompanied by restraint,
regard, and lack of brutality) and the defendant’s character (such as substantial
virtuous traits or persistent examples of good character).” Stephenson v. State, 29
N.E.3d 111, 122 (Ind. 2015). The principal role of appellate review is to
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attempt to “leaven the outliers[.]” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). “We do not look to determine if the sentence was appropriate; instead
we look to make sure the sentence was not inappropriate.” Conley, 972 N.E.2d
at 876. Bradley bears the burden of persuading us that his sentence is
inappropriate. Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016).
[5] In considering the nature of Bradley’s offenses, “the advisory sentence is the
starting point the Legislature has selected as an appropriate sentence for the
crime committed.” Id. The sentencing range for a level 6 felony is between six
months and two and one-half years, with a one-year advisory term. Ind. Code §
35-50-2-7(b). The maximum sentence for a class B misdemeanor is 180 days of
imprisonment. Ind. Code § 35-50-3-3. A habitual offender enhancement carries
an additional fixed term between two years and six years if the person is
convicted of a level 6 felony. Ind. Code § 35-50-2-8(i).
[6] Bradley contends that the nature of the offenses did not warrant the sentence he
received because his offenses were “non-violent, drug offenses that stem from
an addiction.” Appellant’s Br. at 16. “One factor we consider when
determining the appropriateness of a deviation from the advisory sentence is
whether there is anything more or less egregious about the offense committed
by the defendant that makes it different from the ‘typical’ offense accounted for
by the legislature when it set the advisory sentence.” Williams v. State, 51
N.E.3d 1205, 1211 (Ind. Ct. App. 2016). “The nature of the offense is found in
the details and circumstances surrounding the offense and the defendant’s
participation therein.” Morris v. State, 114 N.E.3d 531, 539 (Ind. Ct. App.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2926 | August 27, 2019 Page 5 of 9
2018), trans. denied (2019). Although Bradley’s offenses are not particularly
egregious, he repeatedly disobeyed the officers’ commands to show his hands
and attempted to conceal the marijuana.
[7] As for Bradley’s character, he acknowledges that he has a significant criminal
history, but blames his lengthy criminal history on his addiction to drugs.
“The significance of a criminal history in assessing a defendant’s character and
an appropriate sentence varies based on the gravity, nature, and number of
prior offenses in relation to the current offense.” Rutherford v. State, 866 N.E.2d
867, 874 (Ind. Ct. App. 2007). During his adult life, the fifty-four-year-old
Bradley has been arrested twenty-five times, resulting in ten misdemeanor and
nine felony convictions ranging from dealing and possession of marijuana,
possession of cocaine and narcotics, unlawful possession of a firearm by a
serious violent felon, battery, and resisting law enforcement. Bradley claims he
now recognizes that he has an addiction problem and is less likely to reoffend
because of his age. However, his age has not slowed down his criminal activity.
He committed his most recent offense just a few months before he committed
the current offenses. Bradley’s extensive criminal history does not support a
sentence reduction.
[8] Moreover, Bradley’s many contacts with the law have not caused him to reform
his behavior. He argues that “a lengthy prison sentence does not further his
goal of effectively addressing and resolving the underlying cause for his
convictions.” Appellant’s Br. at 16. The record indicates that Bradley has
received help in the past for his mental illness and drug addiction, but he
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stopped taking his prescribed medication and self-medicated with illicit drugs.
Moreover, Bradley has been granted the leniency of probation and community
corrections but has violated both thirty times, which reflects extremely poorly
on his character. In sum, Bradley has not persuaded us that his sentence is
inappropriate in light of the nature of the offenses or his character.
Accordingly, we affirm it.
Section 2 – The trial court abused its discretion in imposing
the public defender fee.
[9] Bradley also claims that the trial court erred in imposing a $100 public defender
fee without first determining his ability to pay. “[S]entencing decisions,
including decisions to impose restitution, fines, costs, or fees, are generally left
to the trial court's discretion.” Berry v. State, 950 N.E.2d 798, 799 (Ind. Ct. App.
2011). If the fees imposed by the trial court fall within statutory parameters, we
will not find an abuse of discretion. Langdon v. State, 71 N.E.3d 1162, 1164
(Ind. Ct. App. 2017). “A defendant’s indigency does not shield him from all
costs or fees related to his conviction.” Berry, 950 N.E.2d at 799.
[10] Here, Bradley suggests, and the State agrees, that the trial court imposed the
public defender fee pursuant to Indiana Code Section 35-33-7-6, which provides
in relevant part,
(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.
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….
(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).
….
(d) The court may review the finding of indigency at any time
during the proceedings.
The statute acknowledges that there can be “degrees of indigency” and that
“one may be indigent for purposes of paying private counsel thousands of
dollars for representation, but still be able to pay a nominal amount to partially
reimburse the costs of his appointed counsel.” Wooden v. State, 757 N.E.2d 212,
281 n.4 (Ind. Ct. App. 2001), trans. denied (2002).
[11] On appeal, Bradley contends that “nothing in the record supports that the trial
court inquired into [his] ability to pay part of the costs of representation before
imposing the fee.” Appellant’s Br. at 18. Before Bradley’s initial hearing, he
completed a Request for Appointment of Public Defender form in which he
affirmed under penalty of perjury that he was not homeless, supported only
himself, was not employed, and did not own his own home.2 Appellant’s App.
2
During his sentencing hearing and in his presentence investigation report, Bradley indicated that he receives
monthly disability benefits of $730 to $750. Tr. Vol. 2 at 154; Appellant’s App. Vol. 2 at 151.
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Vol. 2 at 43. Based on the information that Bradley provided, the trial court
appointed Bradley a public defender and ordered him to pay a $100 public
defender fee. Appellant’s App. Vol. 2 at 41-42; Supp. Tr. Vol. 2 at 7-8.
[12] Our courts have interpreted Indiana Code Section 35-33-7-6 to require that the
trial court make a finding regarding a defendant’s ability to pay. See Banks v.
State, 847 N.E.2d 1050, 1052 (Ind. Ct. App. 2006) (“Under Ind. Code § 35-33-7-
6 …, a court must explicitly find a defendant can pay the fees imposed.”), trans.
denied; see also Berry, 950 N.E.2d at 800 (concluding that $100 public defender
fee was imposed under Ind. Code § 35-33-7-6, which requires a finding by the
trial court to determine the defendant’s ability to pay). Because the trial court
in this case did not make such a finding, we reverse and remand to the trial
court to determine Bradley’s ability to pay the $100 public defender fee as part
of the costs of representation. “Section 35-33-7-6 does not require an additional
hearing, only a finding of ability to pay.” Berry, 950 N.E.2d at 802. Thus, in
making its determination, the trial court on remand may, but is not required to,
hold a hearing.
[13] Affirmed in part and reversed and remanded in part.
Baker, J., and Kirsch, J., concur.
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