Christopher L. Sanders v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 25, 2020
• Docket: 20A-CR-380
• 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 Nov 25 2020, 8:31 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 Suzy St. John Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Angela N. Sanchez Assistant Section Chief Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Christopher L. Sanders, November 25, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-380 v. Appeal from the Marion Superior Court State of Indiana, The Honorable William J. Nelson, Appellee-Plaintiff Judge The Honorable Mark Renner, Magistrate Trial Court Cause Nos. 49G18-1905-F6-19415, 49G18- 1908-F6-30906

Altice, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-380 | November 25, 2020 Page 1 of 14 Case Summary [1] Christopher Sanders pled guilty to two counts of theft as Level 6 felonies, each

under a separate cause number, and was sentenced to an aggregate sentence of

two years in the Marion County Jail followed by one year on home detention.

Sanders appeals, presenting the following two issues for our review:

1. Did the trial court abuse its discretion in refusing to consider Sanders’s request for educational credit time?

2. Did the trial court abuse its discretion when it imposed public defender fees and drug and alcohol program fees?

[2] We affirm.

Facts & Procedural History [3] On May 17, 2019, the State charged Sanders with Level 6 felony theft in Cause

No. 49G18-1905-F6-19415 (F6-19415). During the initial hearing, Sanders

informed the court that he made $8.75 per hour and that he could not afford an

attorney. In a request for a public defender filed the same day, Sanders

indicated that he earned $350 per week. The trial court appointed counsel for

Sanders but ordered him to pay a public defender fee of $100.

[4] On August 7, 2019, the State charged Sanders with Level 6 felony theft in

Cause No. 49G18-1908-F6-30906 (F6-30906). F6-19415 and F6-30906 were

consolidated at the trial level and all subsequent hearings were held together.

Sanders was also on probation in Cause No. 49G25-1804-F6-13402 (F6-13402),

in which cause the State eventually filed a notice of probation violation. Court of Appeals of Indiana | Memorandum Decision 20A-CR-380 | November 25, 2020 Page 2 of 14 During an October 2019 bond review hearing in F6-30906, Sanders informed

the court that his rent was approximately $750 per month and that he had

dependent children in the home.

[5] On January 16, 2020, Sanders pled guilty as charged in both F6-19415 and F6-

30906 without the benefit of a plea agreement. Sanders also admitted that he

was on probation in F6-13402 when he committed each theft offense, resulting

in a violation of his probation. Magistrate Mark Renner accepted Sanders’s

guilty pleas and revoked his probation. The matter then proceeded to

sentencing. In an off-record conversation prior to the sentencing portion of the

hearing, which conversation was referenced on the record, defense counsel, the

State, and Magistrate Renner discussed whether Sanders was entitled to credit

time for his completion of various programs while he was incarcerated in the

Marion County Jail. 1 On the record, Sanders provided descriptions of the

programs he completed, which included Pinwheels for Prevention, a Victim

Impact Panel, a Core Civic course on breaking habits, a Core Civic course on

reentry, and Violence Free Living.

[6] In sentencing Sanders, the court specifically noted Sanders’s completion of

various programs while incarcerated and expressly stated that it was “tak[ing]

that into account in imposing the sentence.” Transcript Vol. II at 27. With

regard to the sanction for the probation revocation, the court stated, “I’m

1 Although there is no record of the conversation, in their respective briefs, Sanders and the State provide similar accounts as to the nature of the discussion that transpired off the record.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-380 | November 25, 2020 Page 3 of 14 finding that the probation is revoked but I’m not going to impose a further

sanction” despite the fact that Sanders was subject to 361 days of suspended

time in F6-13402. Id. The court explained that it “took [Sanders’s completion

of programs] into account . . . and in fact, that was basically the reason why

[the court] did away with the probation.” Id. at 29-30. The court continued, “I

thought that he had deserved [sic] some reward for everything that he had done

and the efforts that he had made, and that reward was not imposing any

probation time.” Id. at 30.

[7] The court sentenced Sanders to 545 days executed in the Marion County Jail in

F6-19415 and a consecutive 545-day sentence, with 180 days executed in the

Marion County Jail and 365 days on home detention, in F6-30906. The court

awarded Sanders credit for 266 days (which included 133 days of actual time

served). The court found Sanders indigent for fines and costs but assessed a fee

of $3 per day for home detention. Taken together, the sentencing orders

indicate that Sanders is also required to pay a $400 fee for alcohol and drug

programs, as well as the earlier-assessed $100 public defender fee.

[8] Magistrate Renner set a hearing for January 24, 2020, so Sanders could present

his request for educational credit time to Judge William Nelson. Magistrate

Renner explained:

I’m going to [set the matter for hearing] because I’ve already considered it, I’m going to let another judge, Judge Nelson consider whether that might merit further consideration. It wouldn’t be fair for [Sanders] to come in front of me again when I’ve basically already said I thought about it and gave him the

Court of Appeals of Indiana | Memorandum Decision 20A-CR-380 | November 25, 2020 Page 4 of 14 opportunity and the credit in not imposing a sanction from probation. But Judge Nelson might have a different approach, and I’ll give him the opportunity to present that.

Id.

[9] On January 24, 2020, Sanders appeared before Judge Nelson and requested

educational credit time. In response, Judge Nelson stated, “That’s not up to me

to do that.” Id. at 33. Sanders explained that he did not think he was able to

earn credit for the programs he completed because they were not completed in

the Department of Correction, but he thought the court might be able to

exercise discretion to award credit regardless. Sanders acknowledged that

Magistrate Renner had already taken his completion of the programs into

consideration in determining his sentence. Judge Nelson responded, “[i]f it’s

already been considered, sir, I’m not going to reconsider it.” Id. at 35. Judge

Nelson then explained that completion of programs at the Marion County Jail

did not give rise to educational credit time but noted that such could be

considered in the imposition of a sentence. As an example, Judge Nelson

offered, “say you could have gotten a five-year sentence, but the judge

considered all you’ve accomplished in jail, and only gave you a three-year

sentence. So it could be considered in that respect, but it cannot be used later

on to gain additional credit.” Id. at 36. Judge Nelson denied Sanders’s request

for educational credit time. The hearing before Judge Nelson lasted three

minutes. Sanders now appeals. Additional facts will be provided as necessary.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-380 | November 25, 2020 Page 5 of 14 Discussion & Decision [10] Sentencing decisions are within the sound discretion of the trial court and are

reviewed on appeal for an abuse of discretion. Anglemyer v. State, 868 N.E.2d

482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of

discretion occurs if the 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.

1. Credit Time

[11] Sanders argues that the trial court abused its discretion in summarily denying

his request for educational credit time. On appeal, he expressly states that he is

“not asking this Court to determine the merits of whether he is entitled to

educational credit time,” rather, he is “only asking for the hearing on the merits

in the trial court he was denied.” Appellant’s Brief at 11.

[12] For the programs he completed, Sanders seeks educational credit time under

Ind. Code § 35-50-6-3.3(b), which provides, in pertinent part:

In addition to any educational credit that a person earns under subsection (a) [i.e., GED, high school diploma, degree from postsecondary institution], or good time credit a person earns under section 3 or 3.1 [i.e., jail time credit] of this chapter, a person may earn educational credit if, while confined by the department of correction, the person:

(1) is in credit Class I, Class A, or Class B;

(2) demonstrates a pattern consistent with rehabilitation; and Court of Appeals of Indiana | Memorandum Decision 20A-CR-380 | November 25, 2020 Page 6 of 14 (3) successfully completes requirements for at least one (1) of the following:

(A) To obtain a certificate of completion of a career and technical or vocational education program approved by the department of correction.

(B) To obtain a certificate of completion of a substance abuse program approved by the department of correction.

(C) To obtain a certificate of completion of a literacy and basic life skills program approved by the department of correction.

(D) To obtain a certificate of completion of a reformative program approved by the department of correction.

(E) An individualized case management plan approved by the department of correction.

(Emphasis supplied). While it is true that jail time credit is a matter of statutory

right, and thus trial courts do not have discretion in awarding or denying such

credit, an award of educational credit time under subsection (b) is not

mandated. Indeed, the statute provides that such credit “may” be awarded if

the statutory requirements are met. Sentencing decisions not mandated by

statute are within the discretion of the trial court and will be reversed only upon

a showing of abuse of that discretion. Molden v. State, 750 N.E.2d 448, 449

(Ind. Ct. App. 2001).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-380 | November 25, 2020 Page 7 of 14 [13] Here, Sanders was afforded not one, but two hearings regarding educational

credit time. On January 16, 2020, Sanders presented his argument for

educational credit time to Magistrate Renner. Sanders identified five programs

he had completed while in the Marion County Jail and explained the content of

those courses. Magistrate Renner clearly took Sanders’s efforts into

consideration when determining the sentence to impose, explaining “that was

basically the reason why I did away with the probation,” which decision

essentially vacated 361 days of suspended time that could have been imposed

for the probation violation. Transcript Vol. II at 30. Magistrate Renner made it

clear that Sanders “deserved some reward for everything that he had done and

the efforts that he had made, and that reward was not imposing any probation

time.” Id. at 30.

[14] Despite the leniency afforded for his efforts, Sanders was given a second bite at

the apple when he was provided the opportunity to again assert his request for

educational credit time to Judge Nelson. Judge Nelson immediately recognized

that Sanders’s efforts had already been considered by Magistrate Renner and

Judge Nelson explained that he was “not going to reconsider it.” Id. at 35.

Sanders has not provided us with any authority that he is entitled to another

hearing, and we find the request unwarranted.

2. Fees

[15] Sanders argues that the trial court abused its discretion in ordering him to pay

certain fees. Sentencing decisions include decisions to impose fees and costs

and the imposition of such is within the trial court’s discretion. Berry v. State, Court of Appeals of Indiana | Memorandum Decision 20A-CR-380 | November 25, 2020 Page 8 of 14 950 N.E.2d 798, 799 (Ind. Ct. App. 2011). “If the fees imposed by the trial

court fall within the parameters provided by statute, we will not find an abuse

of discretion.” Id. (citing Mathis v. State, 776 N.E.2d 1283, 1289 (Ind. Ct. App.

2011)). “A defendant’s indigency does not shield him from all costs or fees

related to his conviction.” Banks v. State, 847 N.E.2d 1050, 1051 (Ind. Ct. App.

2006), trans. denied.

[16] First, Sanders argues that the trial court erred in ordering him to pay a $100

public defender fee under F6-19415 without first determining his ability to pay

such fee. There are three statutory provisions that directly address the

imposition of public defender fees, and the trial court can order reimbursement

under any or a combination thereof. Langdon v. State, 71 N.E.3d 1162, 1164

(Ind. Ct. App. 2017). One such statute is Ind. Code § 35-33-7-6, which

provides, in relevant part:

(a) Prior to the completion of the initial hearing, the judicial officer shall determine whether a person who requests assigned counsel is indigent under section 6.5 of this chapter. If the person is found to be indigent, the judicial officer shall assign counsel to the person.

***

(c) If the court finds that the person is able to pay part of the cost of representation by the assigned counsel, the court shall order the person to pay the following:

(1) For a felony action, a fee of one hundred dollars ($100).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-380 | November 25, 2020 Page 9 of 14 ***

(d) The court may review the finding of indigency at any time during the proceedings.

[17] The second is found in Ind. Code § 33-40-3-6(a)(1), and it reads as follows:

(a) If at any stage of a prosecution for a felony or a misdemeanor the court makes a finding of ability to pay the costs of representation under section 7 of this chapter, the court shall require payment ... of the following costs in addition to other costs assessed against the person:

(1) Reasonable attorney’s fees if an attorney has been appointed for the person by the court.

The language of this statutory provision is similar to the language in I.C. § 35-

33-7-6(c)(1). In both provisions, the trial court must find that the defendant has

the ability to pay before it can impose a public defender fee.

[18] The third is found in Ind. Code § 33-37-2-3(e), which provides as follows:

(e) If, after a hearing under subsection (a) or (b), the court determines that a convicted person is able to pay part of the costs of representation, the court shall order the person to pay an amount of not more than the cost of the defense services rendered on behalf of the person....

This is the only statutory provision requiring the trial court to conduct a hearing

to determine if the defendant is indigent. In the previous two sections, the trial

Court of Appeals of Indiana | Memorandum Decision 20A-CR-380 | November 25, 2020 Page 10 of 14 court simply has to make a finding on whether the defendant can pay for part or

all of his representation from a public defender

[19] While the trial court did not specifically state which statute it was relying upon

when it ordered Sanders to pay the fee, it appears from the record that Sanders

was ordered to pay pursuant to I.C. § 35-33-7-6(c). Indeed, the court imposed

the specific monetary amount specified under I.C. § 35-33-7-6(c)(1), the order

was made during the initial hearing immediately after the court found Sanders

to be indigent and appointed counsel, and the sentencing order described the fee

as a “Supplemental Public Defender Fee,” which term this court has used when

referring to the fee imposed under this statute. 2 Appellant’s Appendix Vol. II at

16, 192.

[20] We have before noted with regard to imposition of a public defender fee under

I.C. § 35-33-7-6 that there can be “degrees of indigency” and that “one may be

indigent for purposes of paying private counsel thousands of dollars for

representation, but still be able to pay a nominal amount to partially reimburse

the costs of his appointed counsel.” Wooden v. State, 757 N.E.2d 212, 281 n.4

(Ind. Ct. App. 2001), trans. denied (2002). To this end, we have interpreted I.C.

§ 35-33-7-6 to require that the trial court make a finding regarding a defendant’s

ability to pay. See Berry, 950 N.E.2d at 800 (concluding that $100 public

2 See Langdon v. State, 71 N.E.3d 1162, 1164 (Ind. Ct. App. 2017) (observing that I.C. § 35-33-7-6(a) permits a trial court to “impose a supplemental public defender fee before completing the initial hearing) (emphasis supplied).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-380 | November 25, 2020 Page 11 of 14 defender fee was imposed under I.C. § 35-33-7-6, which requires a finding by

the trial court as to the defendant’s ability to pay).

[21] Here, during the initial hearing, the court inquired of Sanders if he was

employed. Sanders answered in the affirmative and informed the court that he

earned $8.75 an hour. 3 Immediately thereafter, the court found Sanders to be

indigent, appointed him counsel, and ordered him to pay the $100 public

defender fee. Implicit in this exchange is that the trial court determined that

being employed, Sanders could offset a nominal amount of the costs of his

public defender’s representation. See Cleveland v. State, 129 N.E.3d 227, 238

(Ind. Ct. App. 2019) (holding that trial court did its due diligence by inquiring

into defendant’s financial abilities and made an implicit finding as to

defendant’s indigency status), trans. denied. 4

[22] Sanders also challenges the court’s order that he pay a $400 fee for drug and

alcohol programs. Ind. Code § 33-47-4-2(b)(2) permits the imposition of a drug

and alcohol services program fee. County clerks in counties, such as Marion

County, with established drug and alcohol services programs are permitted to

collect such fees set by the court. By local rule, a substance abuse fee “may be

waived by the court” if a defendant is determined to be indigent. Ind. Marion

3 On a form requesting appointment of counsel, Sanders indicated that his weekly income was approximately $350. 4 We note that it is better practice for a trial court to make express findings on the record regarding a defendant’s ability to pay the fee as part of its indigency determination. See id. at n.10 (noting “it is still the better practice for trial courts to include an explicit indigency finding in their record”).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-380 | November 25, 2020 Page 12 of 14 Cir. & Super. Crim. Rule 115 (emphasis supplied). Sanders cites no statute or

local rule that requires a trial court to waive drug and alcohol fees when a

defendant is indigent. Sanders nevertheless argues that the trial court failed to

exercise discretion in imposing the fee, believing it to be mandatory.

[23] During the sentencing hearing, the trial court provided Sanders with a home

detention placement because of his substance abuse issues. The court stated:

While on home detention, you talked about in your PSI, about needing help, about needing treatment. That’s a condition of home detention, substance abuse treatment. You’ve got to, sir. You recognize you need it; you must do it. I’m also requiring mental health evaluation and treatment. You’ve acknowledged mental health problems; you’ve got to do it.

I want you to seriously, finally . . . take the opportunity both of those substance abuse and mental health evaluations and treatment, take advantage of that opportunity that I am giving you. The State argued that you didn’t deserve opportunity on home detention. I disagree, that’s why I am giving you this chance. I don’t want to just warehouse you for basically three years. That’s a waste, that’s a waste.

Transcript Vol. 2 at 28. The court then found Sanders indigent for fines and

costs in both cases and ordered that he pay the administrative costs associated

with the evaluations. The court told Sanders, “you’ve got to pay those.” Id. It

is this final statement that Sanders zeroes in on to support his argument that the

court did not believe it had discretion to impose the $400 fee.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-380 | November 25, 2020 Page 13 of 14 [24] The court’s statement in this regard should not be read in isolation. When read

in context, the court’s commentary does not show that the court thought it was

compelled by law to impose the fees. Rather, the trial court chose to impose

costs on Sanders. The trial court expressly found Sanders to be indigent for

fines and costs in both cases, and yet still imposed the $400 fee. After imposing

the fee, the court simply impressed upon Sanders the need to pay the fee that

was ordered. Sanders has not established that the trial court’s decision to

impose the $400 program fee was an abuse of discretion.

[25] Judgment affirmed.

Riley, J. and May, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-380 | November 25, 2020 Page 14 of 14