MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Jul 07 2017, 6:50 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Victoria L. Bailey Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Matthew Wininger, July 7, 2017
Appellant-Respondent, Court of Appeals Case No.
14A05-1701-CR-200
v. Appeal from the Daviess Superior
Court
State of Indiana, The Honorable Dean A. Sobecki,
Appellee-Plaintiff. Judge
Trial Court Cause No.
14D01-1510-F6-1343
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 14A05-1701-CR-200 | July 7, 2017 Page 1 of 4
Case Summary
[1] Following a jury trial, Matthew Wininger (“Wininger”) was convicted of
Operating a Vehicle as a Habitual Traffic Violator, as a Level 6 felony.1 His sole
contention on appeal is that the trial court abused its discretion when it ordered
him to pay a public defender fee of $100.
[2] We affirm in part and reverse in part.
Facts and Procedural History
[3] Wininger was charged with one count of Operating a Vehicle as a Habitual
Traffic Violator, and an initial hearing was held on December 14, 2015. At the
hearing, Wininger stated that appointed counsel was representing him in
another criminal matter. The trial court took judicial notice of the previous
appointment of counsel, and appointed the same counsel to represent Wininger.
[4] A jury trial was held on November 15, 2016, and Wininger was found guilty as
charged. Wininger received a sentence of two and one-half years, and was
ordered to pay court costs. The trial court also imposed a $100 fine suspended
on the condition that Wininger pay $100 to the Daviess County Supplemental
Public Defender’s Fee Fund. The trial court offered to appoint a public
defender to represent Wininger on appeal, and later appointed counsel.
1
Ind. Code § 9-30-10-16(a)(1).
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[5] This appeal ensued.
Discussion and Decision
[6] Wininger argues, and the State concedes, that the trial court erred when it
imposed a public defender fee without evaluating Wininger’s ability to pay.
[7] “Sentencing decisions, including decisions to impose restitution, fines, costs, or
fees, are generally left to the trial court’s discretion.” Kimbrough v. State, 911
N.E.2d 621, 636 (Ind. Ct. App. 2009). An abuse of discretion occurs if the
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. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g.
“If the trial court imposes fees within the statutory limits, there is no abuse of
discretion.” Kimbrough, 911 N.E.2d at 636.
[8] Here, the trial court did not identify a statutory basis for imposing a public
defender fee. Nonetheless, three different statutes authorize the imposition of
public defender fees, all of which require at least some inquiry into the
defendant’s financial circumstances. See I.C. § 35-33-7-6(c) (requiring a
“find[ing] that the person is able to pay part of the cost of representation”); I.C.
§ 33-40-3-6(a) (requiring a “finding of ability to pay the costs of
representation”); I.C. § 33-37-2-3(e) (requiring a hearing on indigency and a
“determin[ation] that a convicted person is able to pay part of the costs of
representation”); see also Jackson v. State, 968 N.E.2d 328, 333-34 (Ind. Ct. App.
Court of Appeals of Indiana | Memorandum Decision 14A05-1701-CR-200 | July 7, 2017 Page 3 of 4
2012) (discussing the three statutes). Moreover, even where a trial court does
not impose a public defender fee but instead imposes only a fine, the trial court
must at some point conduct a hearing to determine whether the convicted
person is indigent. See I.C. § 35-38-1-18(a) (requiring a hearing “whenever the
court imposes a fine”); I.C. § 35-38-1-18(b) (in the case of a suspended fine,
requiring a hearing “at the time the fine is due”).
[9] In the instant case, the trial court erred when it imposed the public defender fee
without considering Wininger’s ability to pay. We therefore reverse that
portion of the sentencing order imposing this fee. We affirm the judgment of
the trial court in all other respects.
Conclusion
[10] The trial court erred when it imposed the public defender fee without an
indigency hearing.
[11] Affirmed in part and reversed in part.
Vaidik, C.J., and Robb, J., concur.
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