Whitaker v. State

87 N.E.3d 1139

Adam WHITAKER, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

Court of Appeals Case No. 49A02–1706–CR–1162

Court of Appeals of Indiana.

Filed November 21, 2017

Attorney for Appellant : Rory Gallagher, Marion County Public Defender, Appellate Division, Indianapolis, Indiana

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Angela Sanchez, Supervising Deputy Attorney General, Indianapolis, Indiana

Brown, Judge.

[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 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

* * * * *

Sliding Scale for Probation Fees / DVC Classes / SAET

Id. at 48. The order of probation also included the following:

Monetary Obligation Misdemeanor Felony Ordered
Rate Rate Amount
Administrative Fee            50               100              [REDACTED/]
Alcohol/Drug                  250 (A Misd)     250              [REDACTED/]
Services Program              150 (B & C)                       [REDACTED/]
Child Abuse Fee               100              100              [REDACTED/]
Countermeasure Fee            200              200              [REDACTED/]
Court Costs                   183 / 183.50     183 / 183.50     [REDACTED/]
Domestic Violence Fee         50               50               [REDACTED/]
Drug Interdiction Fee         200 - 1,000      200 - 1,000      [REDACTED/]
Fine                          0 - 5,000        0 - 10,000       $
Pre-Trial Fee                 50               100              [REDACTED/]
Probation User Fee            50 +             100 +            [REDACTED/]
                              20/month         30/month
Public Defender Fee           50               100              [REDACTED/]
Safe School Fee               200 - 1,000      200 - 1,000
Sexual Assault Victim Fee     250 - 1,000      250 - 1,000

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 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 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:

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.

[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

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