Dewan Nix v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 17, 2016
• Docket: 34A02-1510-CR-1632
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 17 2016, 9:04 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kimberly A. Jackson Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dewan Nix, May 17, 2016 Appellant-Defendant, Court of Appeals Case No. 34A02-1510-CR-1632 v. Appeal from the Howard Superior Court State of Indiana, The Honorable Appellee-Plaintiff. William C. Menges, Jr., Judge Trial Court Cause No. 34D01-1404-CM-274

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016 Page 1 of 11 [1] Dewan Nix pleaded guilty to invasion of privacy1 as a Class A misdemeanor

and, as part of his sentence, was ordered to pay a $1,300.00 reimbursement to

the Howard County Public Defender’s Supplemental Fund (“Public Defender

Fund”). Nix appeals his sentence and raises the following restated issues for

our review:

I. Whether the trial court properly released Nix’s bond from another cause number when that case had been consolidated with the present case; and

II. Whether the trial court abused its discretion when it ordered Nix to pay $1,300.00 to reimburse the Public Defender Fund.

[2] We affirm.

Facts and Procedural History [3] On April 20, 2014, Nix was located “at or near Main and Mulberry in Howard

County, Indiana” and “did knowingly or intentionally violate a no contact

order” by having contact with S.M. Appellant’s App. at 38. Nix was arrested,

and the State charged him with Class A misdemeanor invasion of privacy under

cause number 34D01-1404-CM-274 (“Cause 274”). The trial court set Nix’s

bond in Cause 274 at “$8,000.00 with 10% allowed,” and Nix paid an $800.00

1 See Ind. Code § 35-46-1-15.1.

Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016 Page 2 of 11 cash bond later that day. Id. at 23. He executed a bond agreement, which

stated:

CONDITIONS OF BOND: All bonds posted by defendants are subject to the following conditions: (a) defendant shall appear in Court at all times required by the Court; and (b) any other condition ordered by the Court pursuant to I.C. 35-33-8-3.2(a) including refraining from any direct or indirect contact with the alleged victim of an offense or other individual as ordered by the Court. Violation of any condition ordered by the Court may result in revocation of bond and issuance of re-arrest warrant.

I agree that there is an administrative fee of 10%, up to $50.00, of the 10% cash bond.

Cash bond is only released to the defendant in the case following disposition of the case pursuant to I.C. 35-33-8- 3.2(b). The cash bond is considered the defendant’s asset and will only be released to the defendant; and may be applied to payment of fines, costs, fees, and restitution as ordered by the court.

Id. at 30 (emphasis in original). At his initial hearing for Cause 274, Nix

requested the appointment of a public defender, which was granted by the trial

court. The trial court also “reserve[d] the right to order reimbursement to the

[Public Defender Fund].” Id. at 13.

[4] On April 29, 2014, Nix was arrested and charged with Class C felony

intimidation under cause number 34D01-1405-FC-330 (“Cause 330”). The trial

court set Nix’s bond in that case “in the sum of $10,000.00 with 10% allowed.”

Id. at 104. Nix again executed a bond agreement that was identical to the one

Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016 Page 3 of 11 executed in Cause 274 and paid $1,000.00 cash bond. Id. at 109. At his initial

hearing in Cause 330, Nix again requested the appointment of a public

defender, and the trial court granted the request. The trial court also ordered

Nix to “pay the sum of $100.00 to the [Public Defender Fund] within 30 days”

and reserved “the right to order [Nix] to pay additional fees.” Id. at 104-05.

[5] On June 25, 2014, the State filed a motion to continue the bench trial

previously set in Cause 274 “in order to allow the case to follow” Cause 330,

and the trial court granted the motion on the same date. Id. at 49. On June 18,

2015, Nix pleaded guilty to Class A misdemeanor invasion of privacy, and

pursuant to the plea agreement, the State agreed to dismiss his Class C felony

intimidation charge under Cause 330. Additionally, under the plea agreement,

the trial court sentenced Nix to one year, all suspended with credit for time

served, and Nix was placed on supervised probation for the duration of his

suspended sentence. Nix was also ordered to pay the Probation User’s Fees,

the Probation Administrative Fee, Court Costs, and a reimbursement to the

Public Defender Fund in the amount of $1,300.00. Id. at 9. Pursuant to the

conditions of supervised probation, Nix agreed, in writing, to the following:

FINANCIAL OBLIGATIONS: As part of your probation terms various costs and fees are assessed for services provided and as a measure of accountability. All payments will be in cash, cashiers’ check, money order, or under certain circumstances, credit cards. Any amount covered by your posted cash bond must still be listed on this form. The Probation Administration Fee and the $50.00 initial fee may be covered by posted cash bond, however, in some cases the $15.00 monthly fee will not be covered by your posted cash bond. In the case of multiple cause Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016 Page 4 of 11 numbers, a Probation Fee will apply to each consecutive cause. If financial obligations are not met by the termination date of your probation the Howard County Probation Department may file an Affidavit of Citation in which you may have to re-appear in the sentencing Court to determine how payment of your fees will be resolved. The Howard County Probation Department further reserves the right to file for a summary judgment with an agent for collections for any unpaid fees or costs.

Id. at 97. The conditions of probation, which were signed by Nix, further listed

the following as financial obligations Nix agreed to pay: $168.00 in court costs;

$50.00 as the initial probation fee; $1,300.00 to the Public Defender Fund;

$50.00 as a probation administrative fee; and “$15.00 per month thereafter” as

the monthly supervision fee. Id. Nix’s bond proceeds from both Cause 274 and

Cause 330 were released to pay the costs per the plea agreement and conditions

of probation. Nix filed a motion to correct error, which was denied by the trial

court. Nix now appeals.

Discussion and Decision [6] Sentencing decisions, including decisions to impose restitution, fines, costs, or

fees, are generally left to the trial court’s discretion. Berry v. State, 950 N.E.2d

798, 799 (Ind. Ct. App. 2011) (citing Kimbrough v. State, 911 N.E.2d 621, 636

(Ind. Ct. App. 2009)). We will reverse only for an abuse of discretion – if 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. McElroy v. State, 865 N.E.2d 584, 588 (Ind.

2007). “If the fees imposed by the trial court fall within the parameters provided

Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016 Page 5 of 11 by statute, we will not find an abuse of discretion.” Id. (citing Mathis v. State,

776 N.E.2d 1283, 1289 (Ind. Ct. App. 2002), trans. denied).

I. Consolidation of Cases [7] Nix argues that the trial court violated Indiana Code section 35-33-8-3.2(b)

when it ordered the bond from Cause 330 be released to pay the costs and fees

ordered in Cause 274. He contends that the language of the statute required the

trial court to order the bond from Cause 330 returned to him because the bond

proceeds in each case may only be applied to the costs and fees ordered in that

particular case. Nix asserts that, because the charge in Cause 330 was

dismissed and was a separate and distinct case from Cause 274, Indiana Code

section 35-33-8-3.2 required the trial court to release the bond from Cause 330

to him within thirty days of the dismissal of the case. Because the trial court did

not release the bond to him, it violated the statute.

[8] Indiana Code section 35-33-8-3.2 governs bail and bail forfeiture. Dillman v.

State, 2 N.E.3d 774, 776 (Ind. Ct. App. 2014). Under subsection (a) of the

statute, there are two further subsections, and the first of these subsections

permits a person to post a cash bond in the full amount of the bail. Ind. Code §

35-33-8-3.2(a)(1). The second subsection states in pertinent part:

(a) A court may admit a defendant to bail and impose any of the following conditions to assure the defendant’s appearance at any stage of the legal proceedings, or, upon a showing of clear and convincing evidence that the defendant poses a risk of physical danger to another person or the community, to assure the public’s physical safety:

Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016 Page 6 of 11 ....

(2) Require the defendant to execute:

(A) a bail bond by depositing cash or securities with the clerk of the court in an amount not less than ten percent (10%) of the bail; and

(B) an agreement that allows the court to retain all or a part of the cash or securities to pay fines, costs, fees, and restitution that the court may order the defendant to pay if the defendant is convicted.

A portion of the deposit, not to exceed ten percent (10%) of the monetary value of the deposit or fifty dollars ($50), whichever is the lesser amount, may be retained as an administrative fee. The clerk shall also retain from the deposit under this subdivision fines, costs, fees, and restitution as ordered by the court, publicly paid costs of representation that shall be disposed of in accordance with subsection (b), and the fee required by subsection (d).

I.C. § 35-33-8-3.2(a)(2). Subsection (a)(2) offers an alternative to paying the full

bail amount – a defendant may post only ten percent of the bail, but “that

amount is subject to retention by the clerk of the court for the reimbursement of

publicly paid costs of representation.” Dillman, 2 N.E.3d at 766; I.C. § 35-33-8-

3.2(a)(2). In the present case, Nix paid ten percent of the bail amount, so he is

governed by subsection (a)(2), and the ten percent of his bail that he paid was

able to be retained to reimburse the costs of his publicly paid representation.

Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016 Page 7 of 11 [9] Nix asserts that the funds he paid under Cause 330 should not have been

retained here because he was only convicted under Cause 274, and the two

cases were separate and distinct with the bond document in each case being

specific to each case. We disagree. Initially, we note that his two cases were

consolidated by the trial court, and he failed to object when such consolidation

occurred; he has therefore waived any objection to the consolidation of his two

cases. Wilson v. State, 931 N.E.2d 914, 919 (Ind. Ct. App. 2010) (“The failure to

raise an issue at trial waives the issue on appeal.”), trans. denied.

[10] Nix was charged with invasion of privacy under Cause 274 and, a few days

later, was charged under Cause 330 with intimidation. On June 25, 2014, the

State filed a motion to continue the bench trial previously set in Cause 274 “in

order to allow the case to follow” Cause 330, and the trial court granted the

motion on the same date. Id. at 49. Thereafter, motions, orders, and minute

entries for the cases contained the cause numbers for both cases, and the

Chronological Case Summary for Cause 330 indicated that it was consolidated

with Cause 274. Appellant’s App. at 62-66, 106. The plea agreement, which was

signed by Nix, contained both cause numbers. Id. at 71. In both Cause 274

and Cause 330, Nix requested, at the initial hearing, that a public defender be

appointed to represent him, which the trial court granted and informed Nix, at

that time, that it was reserving the right to order reimbursement to the Public

Defender Fund. Id. at 13, 104-05. Therefore, during the course of the

proceedings, Cause 274 and Cause 330 were consolidated, and pursuant to

Indiana Code section 35-33-8-3.2(a)(2), the trial court was authorized to order

Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016 Page 8 of 11 that Nix’s posted bonds be retained to reimburse the costs of his publicly paid

representation under the two cases when Nix pleaded guilty to invasion of

privacy. The trial court did not abuse its discretion when it consolidated the

publicly paid costs of Nix’s representation for two consolidated cases and

ordered that bond proceeds from both Cause 274 and Cause 330 be retained to

pay the Public Defender Fund.

II. Amount of Reimbursement [11] Nix contends that the trial court abused its discretion when it ordered him to

pay $1,300.00 to reimburse the Public Defender Fund. He alleges that the

imposition of such a fee was not authorized by any Indiana statutes.

Specifically, Nix claims that the pertinent statutes require an indigency hearing

before public defender fees may be imposed and that the trial court here never

made any determination that he was not indigent and therefore able to pay the

reimbursement to the Public Defender Fund. To the contrary, Nix asserts that

the trial court found he was unable to afford to pay for his counsel when it

appointed a public defender to represent him in the proceedings.

[12] We initially note that Nix invited any alleged error when he agreed to

reimburse the Public Defender Fund in the amount of $1,300.00 as a condition

of his probation. Appellant’s App. at 97-98. The doctrine of invited error is

grounded in estoppel. Arthur v. State, 950 N.E.2d 343, 347 (Ind. Ct. App. 2011),

trans. denied. “[U]nder this doctrine, ‘a party may not take advantage of an

error that she commits, invites, or which is the natural consequence of her own

Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016 Page 9 of 11 neglect or misconduct.’” Id. (quoting Wright v. State, 828 N.E.2d 904, 907 (Ind.

2005)). Invited error is not subject to appellate review, and a party may not

invite error and later argue that such error requires reversal. Pinkton v. State,

786 N.E.2d 796, 798 (Ind. Ct. App. 2003), trans. denied. Here, Nix agreed to

serve his suspended sentence on supervised probation pursuant to his plea

agreement, and as a condition of his probation, he agreed to pay $1,300.00 to

the Public Defender Fund. Appellant’s App. at 71, 97-98. Nix cannot now argue

that it was error to order him to pay a fee that he agreed to pay as a condition of

his probation.

[13] Even if Nix did not invite any alleged error, the trial court did not abuse its

discretion in ordering him to reimburse the Public Defender Fund in the

amount of $1,300.00. In both Cause 274 and Cause 330, Nix posted ten

percent of his bail. Pursuant to Indiana Code section 35-33-8-3.2(a)(2), when a

defendant pays ten percent of his bail, “that amount is subject to retention by

the clerk of the court for the reimbursement of publicly paid costs of

representation.” Dillman, 2 N.E.3d at 766. Therefore, the trial court in the

present case was authorized under Indiana Code section 35-33-8-3.2(a)(2) to

order Nix to reimburse the Public Defender Fund to pay for the costs of his

publicly-provided representation. Wright v. State, 949 N.E.2d 411, 416 (Ind. Ct.

App. 2011). Further, contrary to Nix’s contention, an indigency hearing was

not required in the present case. “A plain reading of [s]ection 35-33-8-3.2(a)(2)

. . . leads us to the conclusion that the absence of language requiring an

indigency hearing means that when a bail bond agreement is executed, such a

Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016 Page 10 of 11 hearing is not required.” Id. (citing State v. Dugan, 793 N.E.2d 1034, 1036 (Ind.

2003) (“It is just as important to recognize what the statute does not say as it is

to recognize what it does say.”)). To impose the hearing requirement contained

in other statutes where a defendant executed an agreement pursuant to Section

35-33-8-3.2(a)(2), would render the bail bond agreement meaningless. Id. We,

therefore, conclude that the trial court did not abuse its discretion when it

ordered Nix to pay $1,300.00 to reimburse the Public Defender Fund.

[14] Affirmed.

[15] Riley, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016 Page 11 of 11