Anthony M. Premore v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 21, 2017
• Docket: 20A05-1609-CR-2250
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Jul 21 2017, 6:52 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 Peter D. Todd Curtis T. Hill, Jr. Elkhart, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Anthony M. Premore, July 21, 2017 Appellant-Defendant, Court of Appeals Case No. 20A05-1609-CR-2250 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Teresa L. Cataldo, Appellee-Plaintiff. Judge Trial Court Cause No. 20D03-1511-F4-53

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A05-1609-CR-2250| July 21, 2017 Page 1 of 5 Case Summary [1] On November 17, 2015, Appellee-Plaintiff the State of Indiana charged

Appellant-Defendant Anthony M. Premore with two counts of Level 4 felony

sexual misconduct with a minor. On July 27, 2015, following a jury trial,

Premore was found guilty as charged. The trial court subsequently sentenced

Premore to an aggregate term of sixteen years with four years suspended to

probation. The trial court also imposed a $10,000.00 fine, which the court

suspended. A hearing will be held by the trial court to determine whether

Premore is indigent once he begins serving his probationary term. The trial

court further ordered that Premore, if found to be indigent at that time, would

not be incarcerated for failing to pay the fine or any costs. On appeal, Premore

argues that it inappropriate to impose a $10,000.00 fine. Because the fine has

been suspended by the trial court and the indigency hearing will not be held

until after Premore has completed his twelve years of incarceration, there is no

issue before us ripe for appellate review.

Facts and Procedural History [2] On November 17, 2015, the State charged Premore with two counts of Level 4

felony sexual misconduct with a minor. On July 27, 2016, Premore was

convicted on both charges after a jury trial. On September 1, 2016, the trial

court sentenced Premore to an aggregate term of sixteen years with four years

suspended to probation. Additionally, the trial court imposed a suspended

$10,000.00 fine. The fine will remain suspended until Premore has completed

Court of Appeals of Indiana | Memorandum Decision 20A05-1609-CR-2250| July 21, 2017 Page 2 of 5 his executed sentence and a hearing has been held to determine whether he is

indigent. If Premore is found to be indigent at the time of his release, then he

will not be arrested or sanctioned for failing to pay the fine. On appeal,

Premore argues that the imposition of a $10,000.00 fine in his case is

inappropriate.

Discussion and Decision [3] The Indiana Supreme Court has held that our appellate courts do not consider

issues concerning what a trial court may or may not do sometime in the future.

Ind. Dept. of Envtl. Mgmt. v. Chem. Waste Mgmt., Inc., 643 N.E.2d 331, 340 (Ind.

1994). Moreover, ripeness, as an aspect of subject matter jurisdiction, “relates

to the degree to which the defined issues in a case are based on actual facts

rather than on abstract possibilities, and are capable of being adjudicated on an

adequately developed record.” Id. at 336. It is a matter of speculation as to

what, if any, fine Premore will be ordered to pay upon his release in twelve

years. Because Premore has not completed his executed sentence, and the trial

court has not conducted the indigency hearing, the $10,000.00 remains

suspended, and there currently exists nothing for this court to review.

[4] We affirm the judgment of the trial court.

Najam, J., concurs.

Riley, J., concurs in result with opinion.

Court of Appeals of Indiana | Memorandum Decision 20A05-1609-CR-2250| July 21, 2017 Page 3 of 5 IN THE COURT OF APPEALS OF INDIANA

Anthony M. Premore, Court of Appeals Case No. 20A05-1609-CR-2250 Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff.

Riley, Judge concurring in result

[5] While I concur with the majority that the issue is not ripe for appellate review, I

write separately to express my view that even if we attempted to address the

issue on its merits, Premore would still not prevail. This court recently

authored a very detailed opinion on indigency hearings in Meunier-Short v. State,

52 N.E.3d 927 (Ind. Ct. App. 2016), in which we stated as follows:

If a trial court imposes costs or fines as a condition of probation, the court is statutorily required to conduct an indigency hearing.

Court of Appeals of Indiana | Memorandum Decision 20A05-1609-CR-2250| July 21, 2017 Page 4 of 5 Although the hearing must be conducted after a judgment of conviction, the relevant statutes do not otherwise dictate when the hearing is to be held. Accordingly, unless the State files a petition to revoke a defendant’s probation for nonpayment of fines, costs, or fees, the trial court is free to postpone the hearing until the completion of the defendant’s sentence.

Id. at 930-31. In reaching its decision, the Meunier-Short court relied on Ind.

Code sections 33-37-2-3 and 35-38-1-18, which permit, but do not require, a

trial court to suspend payment of all or part of the fines or costs until the

defendant has completed all or part of his sentence. Accordingly, here, the trial

court properly suspended Premore’s fine and postponed the indigency hearing

until the completion of his executed sentence to determine what amount of the

fine, if any, Premore must pay.

Court of Appeals of Indiana | Memorandum Decision 20A05-1609-CR-2250| July 21, 2017 Page 5 of 5