Adelina Monique Bray v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 17, 2020
• Docket: 19A-CR-1986
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 17 2020, 9:12 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Daniel Hageman Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Adelina Monique Bray, March 17, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1986 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Mark Renner, Appellee-Plaintiff. Magistrate Trial Court Cause No. 49G08-1809-CM-31309

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1986 | March 17, 2020 Page 1 of 8 Statement of the Case

[1] Adelina Bray (“Bray”) appeals, following a bench trial, her conviction for Class

C misdemeanor operating a vehicle while intoxicated, which was a lesser-

included offense to her charge of Class A misdemeanor operating a vehicle

while intoxicated endangering a person. Bray argues that: (1) the trial court

abused its discretion when it failed to conduct an indigency hearing at the time

it assessed fees and stated that she could qualify for early termination of her

probation upon payment of the imposed fees; and (2) remand is necessary to

amend the sentencing order and order of probation. We agree that the trial

court abused its discretion by failing to conduct an indigency hearing after

imposing fees and stating that Bray could qualify for early termination of her

probation upon payment of the imposed fees. However, we do not agree that

remand is necessary to amend the sentencing order and order of probation.

Accordingly, we remand this case to the trial court with instructions to hold an

indigency hearing.

[2] We remand.

Issues

1. Whether the trial court abused its discretion when it failed to conduct an indigency hearing at the time it assessed fees and stated that she could qualify for early termination of her probation upon payment of the imposed fees.

2. Whether remand is necessary to amend the sentencing order and order of probation.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1986 | March 17, 2020 Page 2 of 8 Facts

[3] In September 2018, the State charged Bray with Class A misdemeanor

operating a vehicle while intoxicated endangering a person. The charging

information specifically stated that Bray was charged under “I.C. 9-30-5-2(a) &

(b).”1 (App. 15). In June 2019, the trial court conducted a bench trial. The

trial court found Bray not guilty of the Class A misdemeanor offense due to the

State’s failure to establish the endangerment element of the offense. However,

the court found Bray guilty of the lesser-included offense of Class C

misdemeanor operating a vehicle while intoxicated, and this judgment is

reflected in the Chronological Case Summary (“CCS”).

[4] Thereafter, the trial court held a sentencing hearing. During the hearing, the

trial court did not inquire into Bray’s financial status. When sentencing Bray,

the trial court stated the following:

[The] [s]entence then is ma’am, sixty days fifty-eight days suspended with the two-day executed sentence is satisfied [by] the time that you have already spent in custody. Probation for one hundred eighty days and [Advocates Against Impaired Driving] Destructive Decision Panel, alcohol evaluation and treatment if recommended, a $400.00 [alcohol and drug service] fee, $200.00 countermeasure fee, rather than show Probation to be non- reporting -- you get all of these things concluded then I’ll allow

1 INDIANA CODE § 9-30-5-2 states: (a) Except as provided in subsection (b), a person who operates a vehicle while intoxicated commits a Class C misdemeanor. (b) An offense described in subsection (a) is a Class A misdemeanor if the person operates a vehicle in a manner that endangers a person.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1986 | March 17, 2020 Page 3 of 8 Probation to terminate. So, I’m giving you the incentive to get everything done, get the fees paid then I will terminate Probation once you show that those things are concluded. Court costs are $185.50 and no fine is imposed. The INAUDIBLE, Probation and administrative costs an[d] I’ll set the lowest Probation user fee at $15.00 per month. It’s my hope that you get all of these terms and requirements concluded so that you can get off of Probation as quickly as possible.

(Tr. 32-33). In its sentencing order, the trial court noted that Bray’s “probation

will terminate upon completion of terms and payment of fees[.]” (App. 63).

The sentencing order’s monetary obligations section shows that Bray owes fees

and costs totaling $975, which includes a probation administration fee of $50

and a probation user fee of $140. The probation order lists standard conditions,

including condition fourteen, which states that Bray shall “pay all Court-

ordered fines, costs, fees and restitution as directed.” (App. 42). The special

conditions section of the probation order includes the same conditions as the

sentencing order. Bray now appeals.

Decision

[5] On appeal, Bray argues that: (1) the trial court abused its discretion when it

failed to conduct an indigency hearing at the time it assessed fees and stated

that she could qualify for early termination of her probation upon payment of

the imposed fees; and (2) remand is necessary to amend the sentencing order

and order of probation. We will address each of these arguments in turn.

1. Probation Fees

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1986 | March 17, 2020 Page 4 of 8 [6] Bray first argues that the trial court “failed to conduct an indigency hearing at

the time it assessed probation fees and made payment of those fees a condition

for early termination.” (Bray’s Br. 8). “Sentencing decisions include decisions

to impose fees and costs[,]” and a trial court’s sentencing decision is reviewed

for an abuse of discretion. Coleman v. State, 61 N.E.3d 390, 392 (Ind. Ct. App.

2016). 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. 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).

[7] When a defendant is convicted of a misdemeanor, the trial court has discretion

to impose certain probation fees. IND. CODE § 35-38-2-1(e). Bray correctly

notes that, under INDIANA CODE § 33-37-2-3, if a trial court imposes costs on a

defendant, a trial court is required to conduct an indigency hearing. In regard

to probation fees, an indigency hearing should take place no later than when a

defendant completes her sentence. Johnson v. State, 27 N.E.3d 793, 795 (Ind.

Ct. App. 2015). However, relevant to this case, our Court has also held that

“[a]ny disparate treatment based on a defendant’s financial situation––whether

it be by conferring a benefit, modifying a sentence, or something else––triggers

the requirement to have an indigency hearing at the time the fees are imposed

to determine the defendant’s ability to pay.” Burnett v. State, 74 N.E.3d 1221,

1228 (Ind. Ct. App. 2017).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1986 | March 17, 2020 Page 5 of 8 [8] In Burnett, Burnett was found guilty of Class A misdemeanor operating a

vehicle while intoxicated endangering a person.2 At sentencing, the trial court

asked one question to determine Burnett’s financial situation, and Burnett

stated that she made less than $20,000 per year. The trial court then sentenced

her to 365 days with five days executed and the remainder suspended to

probation. The trial court ordered Burnett to pay several court costs, fees, and

fines, which were payable alongside other probation fees. The trial court stated

that Burnett’s probation would become non-reporting after she finished the

terms and conditions of her probation. The sentencing order and order of

probation also indicated that Burnett’s probation would become non-reporting

after she had finished paying all of her probation fees. On appeal, Burnett

argued that the trial court had failed to conduct an adequate indigency hearing

before it ordered her to pay certain probation fees. We agreed and determined

that a sufficient inquiry into a defendant’s ability to pay might include questions

concerning “her exact yearly income, her assets or debts, or any financial

expenses that could have an impact on her ability to pay fees, such as the cost of

her rent, utilities, or transportation to and from work, medical expenses, or any

dependents.” Id. at 1227. We further noted that:

As a result of the trial court’s assumption that Burnett could pay her probation fees, let alone its assumption that she could pay them ‘sooner rather than later,’ Burnett could be unfairly prevented from receiving the benefit of non-reporting probation.

2 On appeal, this Court reversed this conviction and remanded with instructions that the trial court enter judgment for Class C misdemeanor operating a vehicle while intoxicated.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1986 | March 17, 2020 Page 6 of 8 Any disparate treatment based on a defendant’s financial situation––whether it be by conferring a benefit, modifying a sentence, or something else––triggers the requirement to have an indigency hearing at the time the fees are imposed to determine the defendant’s ability to pay.

Id. at 1228.

[9] Here, similar to the trial court in Burnett, the trial court ordered Bray to pay

certain probation fees and “incentive[ized]” her “quick[]” payment of those fees

to earn an early termination of probation. (Tr. 32-33). There is no evidence in

the record concerning Bray’s financial status or the trial court’s attempt to

ascertain such information. Thus, the probation fees imposed could prevent

Bray from receiving the benefit of early termination of probation, as

contemplated by the trial court. Based on the foregoing, we conclude that the

trial court abused its discretion when it failed to conduct an indigency hearing

at the time it assessed fees and stated that Bray could qualify for early

termination of her probation upon payment of the imposed fees. See I.C. § 33-

37-2-3(a). Accordingly, we remand to the trial court to hold an indigency

hearing.

2. Sentencing Order and Order of Probation

[10] Bray next argues that the sentencing order and order of probation should be

amended to reflect her conviction for the lesser-included Class C misdemeanor

offense. According to Bray, the sentencing order and order of probation are not

clear because they do not explicitly show that she was acquitted of Class A

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1986 | March 17, 2020 Page 7 of 8 misdemeanor operating a vehicle while intoxicated endangering a person. We

disagree.

[11] Here, the State charged Bray under INDIANA CODE § 9-30-5-2(a) and (b), which

provide:

(a) Except as provided in subsection (b), a person who operates a vehicle while intoxicated commits a Class C misdemeanor.

(b) An offense described in subsection (a) is a Class A misdemeanor if the person operates a vehicle in a manner that endangers a person.

Following Bray’s bench trial, the trial court found that the State had not proven

Class A misdemeanor operating a vehicle while intoxicated endangering a

person. Instead, the court found that the State had proven beyond a reasonable

doubt that Bray was guilty of the lesser-included Class C misdemeanor

operating while intoxicated. This judgment is reflected in the CCS, which

states that Bray was “found guilty of OVWI/MC a lesser included offense.”

(App. 10). Notwithstanding the “MA” notation on the sentencing and

probation orders, the disposition listed on the sentencing order states that there

was a “Finding of Guilty Lesser Included.” (App. 63). Because the CCS and

sentencing order show that Bray was convicted of the lesser included offense

described within INDIANA CODE § 9-30-5-2(b), remand on this issue is not

necessary.

[12] Remanded with instructions.

May, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1986 | March 17, 2020 Page 8 of 8