FILED
Nov 21 2017, 10:28 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Rory Gallagher Curtis T. Hill, Jr.
Marion County Public Defender Attorney General of Indiana
Appellate Division Angela Sanchez
Indianapolis, Indiana Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Adam Whitaker, November 21, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1706-CR-1162
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Christina R.
Appellee-Plaintiff. Klineman, Judge
Trial Court Cause No.
49G17-1610-CM-42782
Brown, Judge.
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[1] Whitaker appeals the imposition of fees by the probation department. He raises
one issue which we revise and restate as whether the trial court erred in
releasing his bond in the amount of $740. We reverse and remand.
Facts and Procedural History
[2] On October 31, 2016, the State charged Whitaker under cause number 49G17-
1610-CM-42782 (“Cause No. 782”) with domestic battery and battery resulting
in bodily injury as class A misdemeanors. The court held a bench trial and
found Whitaker guilty of domestic battery.
[3] On May 2, 2017, the court held a sentencing hearing for the conviction under
Cause No. 782 as well as a hearing on a plea to invasion of privacy as a class A
misdemeanor under cause number 16046715 (“Cause No. 715”). The court
found Whitaker guilty of invasion of privacy under Cause No. 715 and stated:
“I’ll find you indigent for fines and costs and close out this matter.” Transcript
Volume II at 65. The court then turned to sentencing in Cause No. 782.
Whitaker’s mother testified that Whitaker worked for a sheet metal company,
was doing a job in Columbus, Ohio, and he was working in Ohio through the
week and coming home on weekends. Whitaker stated that he was letting his
ex-wife live in his condo. Upon questioning by the court, Whitaker indicated
that he had housing in Columbus, Ohio, that he lived with friends and family in
Indiana, and that he pays $900 a month for his ex-wife to live in his condo.
The court sentenced him to 365 days with 359 days suspended, placed him on
probation for 359 days, and ordered him to complete a substance abuse
evaluation and treatment. It also stated that if he successfully completed
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treatment, then probation would become non-reporting. The court did not
mention probation fees at the sentencing hearing.
[4] The same day, the court entered a sentencing order. Under the heading
“CONFINEMENT COMMENTS,” the order states in part: “Defendant is
placed on probation for 359 days. Substance Evaluation and Treatment if
deemed necessary. Defendant is permitted to travel for work. No Drug
Hotline. Probation shall become non reporting upon completion of Substance
Evaluation and Treatment. Probation and Substance Abuse fees are sliding
scale.” Appellant’s Appendix Volume II at 15. The order also states: “The
Court is assessing Court Costs and Fees in the amount of $0.00 and a Monetary
Award (if applicable) in the amount of $. The authority for this Order and the
breakdown of the costs and fees are as follows and are found in Indiana Code,
Sections 33-37-4-1, -4 and 33-37-5-19.” Id. at 16. Under the preprinted
headings “MONETARY OBLIGATIONS” and “Court Costs and Fees,” the
value of “$0.00” and total value of “$0.00” are listed. Id.
[5] An order of probation was also filed that same day, providing:
Special Conditions
In addition to the monetary conditions, you must also pay the
costs of any of the following Court-ordered programs as directed.
Substance Abuse Evaluation & Treatment
*****
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Sliding Scale for Probation Fees / DVC Classes / SAET
Id. at 48. The order of probation also included the following:
Id.
[6] A Bond Release Memo filed on June 2, 2017, from a probation officer
addressed to the trial court, states in part:
A bond was posted with the Marion County Clerk’s Office on the
behalf of the above named defendant and cause. The defendant
currently owes monetary obligations under this Cause in the
amount of $740.00.
The probation Department respectfully requests that the bond be
transferred to the Marion Superior Court Probation Department
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to apply towards the outstanding balance of fees, costs and fines
under this Cause.
Id. at 55. An order dated June 5, 2017, approved the request and states in part
“Bond to be given to MCCC in the amount of $740.” Id. at 56.
Discussion
[7] The issue is whether the trial court erred in releasing Whitaker’s bond in the
amount of $740. Whitaker argues that it was error for the probation
department to assess fees in the amount of $740 when the trial court did not
impose those fees as a condition of probation. He asserts that the facts of this
case are similar to those in De La Cruz v. State, 80 N.E.3d 210 (Ind. Ct. App.
2017), Burnett v. State, 74 N.E.3d 1221 (Ind. Ct. App. 2017), and Coleman v.
State, 61 N.E.3d 390 (Ind. Ct. App. 2016). His request is that we vacate the
$740 in fees imposed by probation and order reimbursement of any amount of
fees already paid.
[8] The State argues that the trial court imposed probation fees and that Marion
County LR49-CR00-115 creates an allowable presumption of the imposition of
probation fees when an individual is convicted of a crime. It concedes that this
case is undeniably similar to Burnett, De La Cruz, and Coleman, but asserts that
the De La Cruz court erred when it assumed that the presence of blackened
boxes on the probation order, the same order at issue in this case, reflected an
act by the trial court to “specifically modify” the presumption and impose no
probation fees. Appellee’s Brief at 10. It contends that the record provides no
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evidence that the trial court modified the probation form and that the numerous
cases from Marion County using a form containing blackened boxes suggests
that the blackened boxes may, in fact, be the standard, unaltered form and not
the result of modification by the trial court. It also states that the notation on
the sentencing order and on the order of probation that probation fees would be
on a sliding scale indicate that the trial court clearly intended to impose
probation fees at least to some extent. The State argues that “[i]f the trial court
did not want to or intend to impose probation fees upon Whitaker, it seems
logical that it would not have ordered the release of his cash bond to the
probation department to pay such fees.” Id. at 11-12.
[9] Sentencing decisions include decisions to impose fees and costs. Johnson v.
State, 27 N.E.3d 793, 794 (Ind. Ct. App. 2015). A trial court’s sentencing
decisions are reviewed under an abuse of discretion standard. McElroy v. State,
865 N.E.2d 584, 588 (Ind. 2007). “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. (quoting K.S. v. State, 849 N.E.2d 538,
544 (Ind. 2006)). “If the fees imposed by the trial court fall within the
parameters provided by statute, we will not find an abuse of discretion.” Berry
v. State, 950 N.E.2d 798, 799 (Ind. Ct. App. 2011).
[10] When a defendant is convicted of a misdemeanor, the trial court has discretion
in imposing probation fees. Ind. Code § 35-38-2-1(e) provides:
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In addition to any other conditions of probation, the court may
order each person convicted of a misdemeanor to pay:
(1) not more than a fifty dollar ($50) initial probation
user’s fee;
(2) a monthly probation user’s fee of not less than ten
dollars ($10) nor more than twenty dollars ($20) for each
month that the person remains on probation;
(3) the costs of the laboratory test or series of tests to detect
and confirm the presence of the human immunodeficiency
virus (HIV) antigen or antibodies to the human
immunodeficiency virus (HIV) if such tests are required by
the court under section 2.3 of this chapter; and
(4) an administrative fee of fifty dollars ($50);
to either the probation department or the clerk.
[11] Ind. Code § 35-38-2-1.7(b) provides:
A probation department may petition a court to:
(1) impose a probation user’s fee on a person; or
(2) increase a person’s probation user’s fee;
under section 1 or 1.5 of this chapter if the financial ability of the
person to pay a probation user’s fee changes while the person is
on probation.
Further, the trial court must conduct an indigency hearing when it imposes
fines or costs as part of a defendant’s sentence. Johnson, 27 N.E.3d at 794-795;
see also Ind. Code § 33-37-2-3(a). However, no specific requirement indicates
when the hearing must be held as long as the hearing is held before the sentence
is completed. Johnson, 27 N.E.3d at 794-795.
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[12] Marion County LR49-CR00-115 provides in part:
In addition to costs as set by I.C[.] 33-37-4-1[1] whenever an
individual is placed on probation, or without placing a person on
probation the following fees and costs shall be imposed under the
Probation Court or Probation Order unless the sentencing Judge
specifically modifies the Order. The fees and costs collected
under the Court or Probation Order shall be applied in this
following descending order of priority:
Administrative fee
Probation User fee
Alcohol and Drug Service fee (33-37-5-8)
Court Costs (I.C 33-37-4-1)
Restitution (35-50-5-3)
Public Defender Reimbursement * (35-33-7-6)
Safe School fee (I.C. 33-37-5-18)
Child Abuse Prevention fee (I.C. 33-37-5-12)
Drug Interdiction fee (I.C. 33-37-5-9)
Alcohol Countermeasures fee (I.C. 33-37-5-10)
Domestic Violence fee (33-37-5-13)
(*Fee imposed only after judicial determination of ability
to pay)
1
Ind. Code § 33-37-4-1 is titled “Criminal costs fee; document fee; program fees; transfer to user fee fund.”
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In the event that these specific fees, or any other court ordered
fees, are not paid, the Court may enter judgment against the
individual and may seek appropriate steps to collect the judgment
owed.
[13] In De La Cruz v. State, we addressed a similar situation. In that case, the State
charged Jose Arcia De La Cruz with operating a vehicle while intoxicated
endangering a person and operating a vehicle with an ACE of .15 or more as
class A misdemeanors. 80 N.E.3d 210, 211 (Ind. Ct. App. 2017). The trial
court appointed counsel for De La Cruz based on his indigency, with no
requirement for reimbursement. Id. at 211-212. It found De La Cruz guilty of
operating a vehicle while intoxicated as a class C misdemeanor and sentenced
him to sixty days in jail with fifty-six days suspended and to an additional 180
days of “non-reporting” probation. Id. at 212. After questioning De La Cruz
about his finances, the court 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.
[14] In the sentencing conditions section of the sentencing order, the probation
“amount/comment” subsection stated in relevant part: “SLIDING SCALE
FOR PROBATION FEES. NONREPORTING PROBATION AFTER
INITIAL SIGN UP.” Id. The order of probation, signed on the same date as
the sentencing order, listed fourteen “Standard Conditions,” including “pay all
Court-ordered fines, costs, fees[,] and restitution as directed.” Id. Under the
“Special Conditions” section, the probation subsection states in relevant part:
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“SLIDING SCALE FOR PROBATION FEES. NONREPORTING
PROBATION AFTER INITIAL SIGN UP.” Id.
[15] The “Monetary Conditions” section of the probation order included a 4-column
chart similar to the chart in the present case. Id. Most of the rows in the
column titled “Ordered Amount” were blacked out, the “Administrative Fee”
and “Probation User Fee” rows were two of the rows that were blacked out,
and the rows that were not blacked out were left blank. Id. The last page of the
chronological case summary showed total charges of $220 and total payments
of $220. Id. The “Case Transactions Summary for Arcia De La Cruz, Jose” set
out probation administrative and user fees totaling $220 and payments of such
fees totaling $220. Id. at 212-213.
[16] On appeal, De La Cruz challenged the imposition of probation fees and argued
that the trial court abused its discretion when it allowed the probation
department, rather than the court, to assess those fees. Id. at 213. In our
decision, we noted that there was no court judgment for probation fees, only a
probation department assessment of fees, and that De La Cruz did “not appeal
a trial court judgment of fees; rather, he appeal[ed] the trial court order allowing
the probation department to assess such fees.” Id. at 213 n.2. We observed that
Ind. Code § 35-38-2-1(b) provided 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. Id. at 214 (quoting
Coleman v. State, 61 N.E.3d 390, 393 (Ind. Ct. App. 2016) (emphasis added)).
We observed that Ind. Code § 35-38-2-1(e) states that “the court may order” the
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defendant to pay not more than certain specified maximum amounts for
specified fees, including user and administrative fees, “to either the probation
department or the clerk,” and that subsection (f) states that “the probation
department . . . shall collect” those fees. Id. We also observed that Ind. Code §
35-38-2-1.7(b) states that “[a] probation department may petition a court” to
“impose” or “increase” a person’s probation fees. Id. We noted that we had
recently held that those statutes give “the trial court, not the probation department, .
. . the discretion to impose probation fees.” Id. (quoting Burnett v. State, 74
N.E.3d 1221, 1227 (Ind. Ct. App. 2017) (emphasis added)). We stated that,
“[a]lthough 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’s] ability to
pay,’ the trial court did not impose probation fees.” Id. (citation omitted). We
held that “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,” and that “[s]uch 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.” Id. (citing Burnett, 74
N.E.3d at 1227; Coleman, 61 N.E.3d at 394).
[17] We also addressed the State’s argument that Marion County courts
presumptively impose probation fees pursuant to Marion County LR49-CR00-
115. Id. at 214-215. We concluded that the local rule did not operate as “as an
order for probation fees in this case because the trial court did ‘specifically
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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.” Id. at 215. We concluded that the
trial court did not order probation fees and it abused its discretion when it
authorized the probation department to do so. Id. We reversed the order that
the probation department assess probation fees and remanded with instructions
to vacate the probation fees and order reimbursement of those fees from the
probation department.2 Id.
Conclusion
[18] In accordance with Coleman, Burnett, and De La Cruz, we conclude that the trial
court did not order probation fees and that it abused its discretion when it
authorized the probation department to do so. Accordingly, we reverse the
order that the bond be given to MCCC in the amount of $740, and we remand
with instructions to vacate the probation fees and order reimbursement of those
fees from the probation department.3 See De La Cruz, 80 N.E.3d at 215.
2
We note that following remand in Burnett, the trial court granted the defendant’s motion for court-ordered
refund of probation fees on July 25, 2017, and ordered the Marion County Probation Department to issue a
refund to Burnett in the amount of $250. See July 25, 2017 Order in Cause No. 49G12-1508-CM-29371.
Following remand in Coleman, the trial court entered an order on November 18, 2016, it found Coleman to
be “indigent to the total monetary obligation of $640.00 which was imposed on October 26, 2015” and
ordered that “the Defendant’s total monetary obligation shall be $0.00 regarding the above entitled matter.”
November 18, 2016 Order in Cause No. 49G10-1506-CM-20752.
3
At the May 2, 2017 hearing, the court stated with respect to Cause No. 715, “I’ll find you indigent for fines
and costs and close out this matter.” Transcript Volume II at 65. Accordingly, we need not remand for an
indigency hearing. See De La Cruz, 80 N.E.3d at 215 n.7 (holding that it was not necessary to remand for an
indigency hearing because the trial court determined that the defendant was indigent). As noted, Ind. Code §
35-38-2-1.7(b) provides that a “probation department may petition a court to . . . impose a probation user’s
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[19] For the foregoing reasons, we reverse the court’s order that bond be given to
MCCC in the amount of $740.
[20] Reversed and remanded.
Najam, J., and Kirsch, J, concur.
fee on a person . . . if the financial ability of the person to pay a probation user’s fee changes while the person
is on probation.” The trial court could then hold a hearing immediately or wait until he completes his
sentence to make the indigency determination. See Johnson, 27 N.E.3d at 795.
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