Andre Thomas v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 13, 2016
• Docket: 49A02-1508-CR-1092
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), May 13 2016, 5:50 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Ann Johnson Gregory F. Zoeller Suzy St. John Attorney General of Indiana Marion County Public Defender Agency Richard C. Webster Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Andre Thomas, May 13, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1508-CR-1092 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Clayton A. Appellee-Plaintiff. Graham, Judge Trial Court Cause No. 49G07-1408-CM-38329

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1092 | May 13, 2016 Page 1 of 4 Statement of the Case [1] Andre Thomas (“Thomas”) appeals the trial court’s order that he pay probation

fees. Specifically, Thomas argues that the trial court abused its discretion when

it ordered him to pay probation fees without first conducting an indigency

hearing. Although a trial court is not required to conduct an indigency hearing

at the time it orders probation fees, the trial court has a duty to conduct such a

hearing before or upon the completion of a defendant’s sentence. We therefore

remand this case to the trial court to conduct an indigency hearing upon the

completion of Thomas’ sentence.

[2] We remand.

Issue Whether the trial court abused its discretion when it ordered Thomas to pay probation fees without first conducting an indigency hearing.

Facts [3] In July 2015, Thomas was convicted in a bench trial of Class A misdemeanor

criminal trespass. The trial court sentenced him to 365 days in the Marion

County Jail, with 357 days suspended to non-reporting probation. Thomas was

also ordered to pay a fine and court costs as well as probation fees. The trial

court specifically ordered that the probation fees would be “sliding fee scale

and/or reduced fee schedule, so that will be based on your income, or sliding

fee. . . .” (Tr. 91). At the time of sentencing, Thomas was not employed.

Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1092 | May 13, 2016 Page 2 of 4 Decision [4] Thomas argues that the trial court abused its discretion when it ordered him to

pay probation fees without first conducting an indigency hearing. Sentencing

decisions include decisions to impose fees and costs. Johnson v. State, 27 N.E.2d

793, 794 (Ind. Ct. App. 2015). A trial court’s sentencing decisions are reviewed

under an abuse of discretion standard. Id. An abuse of discretion occurs 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.

[5] In the Johnson case, Johnson was convicted of two misdemeanors. As a

condition of Johnson’s probation, the trial court ordered him to pay $340 for

probation fees. The trial court also ordered a sliding-fee scale for the payment

of these fees but delayed making an indigency determination until more

information regarding Johnson’s financial situation came to light. Id. On

appeal, Johnson argued that the trial court abused its discretion when it ordered

him to pay probation fees without first conducting an indigency hearing.

[6] This Court pointed out that INDIANA CODE § 33-37-2-3 requires a trial court

that imposes costs on a defendant to conduct an indigency hearing. Id.

However, we further noted that the statute does not specify when the hearing

has to be held. Id. Because no statutory language required the trial court to

conduct an indigency hearing before or directly after ordering probation fees,

we concluded that the trial court acted within its authority when it chose to wait

Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1092 | May 13, 2016 Page 3 of 4 and see if Johnson could pay probation fees before it found him indigent. Id. at

794-95. We explained that at the latest, an indigency hearing for probation fees

should be held at the time a defendant completes his sentence. Id. at 795. We

therefore remanded the case to the trial court to conduct an indigency hearing

upon the completion of Johnson’s sentence. Id.

[7] Here, as in Johnson, the trial court placed Thomas on a sliding fee scale for

probation fees. Pursuant to INDIANA CODE § 33-37-2-3, the trial court has a

duty to conduct an indigency hearing at some point in time. Here, the trial

court did not conduct such a hearing when it ordered Thomas to pay probation

fees. Accordingly, as in Johnson, we remand to the trial court to conduct an

indigency hearing at the time Thomas completes his sentence.

[8] Remanded.

Kirsch, J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1092 | May 13, 2016 Page 4 of 4