Donnie Shirrell v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 22, 2020
• Docket: 19A-CR-2883
• 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 May 22 2020, 10:11 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 ATTORNEY FOR APPELLEE Christopher Taylor-Price Megan M. Smith Marion County Public Defender Agency Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Donnie Shirrell, May 22, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2883 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Angela Dow Appellee-Plaintiff, Davis, Judge The Honorable Matthew Kubacki, Judge Pro Tempore Trial Court Cause No. 49G16-1907-CM-26123

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2883 | May 22, 2020 Page 1 of 8 Case Summary and Issue [1] Following a bench trial, Donnie Shirrell was found guilty of invasion of privacy

for violating a protective order his ex-girlfriend had against him. The trial court

sentenced him to 365 days in the Marion County Jail, with credit for ten days

served in pre-trial detention and the remaining 355 days suspended to

probation. The court also ordered him to pay $185 in court costs and the

“[s]tandard costs of probation.” Appealed Order at 2. Shirrell now appeals,

arguing that the trial court abused its discretion in not ordering a specific

amount of probation costs. Concluding the trial court was required to state the

specific amount of probation costs Shirrell is obligated to pay, we remand.

Facts and Procedural History [2] In early 2019, K.H. broke up with Shirrell after several years of dating and

thereafter sought and was granted a protective order against Shirrell that was to

expire on April 16, 2021. Shirrell was served with a copy of the protective

order. In June of 2019, K.H. reported to the Indianapolis Metropolitan Police

Department that Shirrell was harassing her in violation of the protective order.

Specifically, he had contacted her numerous times in April, May, and June

through various means including texts, emails, and Facebook messages.

[3] The State charged Shirrell with invasion of privacy, a Class A misdemeanor.

Immediately following the bench trial where Shirrell was found guilty, the trial

court sentenced him as follows:

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2883 | May 22, 2020 Page 2 of 8 I am going to sentence[] you to 365 days in the Marion County Jail . . . plus five days good time credit for ten [total days] – 355 days suspended. On that suspended time, you will be placed on probation so it will be standard probation; standard terms and conditions of probation. . . . No . . . [c]ontact with [K.H.] for the balance of the suspended time of 355 days. . . . I will access [sic] court costs in the amount of $185.00 and I will not impose a fine. The standard costs of probation.

Transcript, Volume II at 57-58 (emphasis added).1 The court did not specify

what probation costs were “standard” nor did it specify an amount for each

category. The written sentencing order includes a section titled “Sentencing

Conditions” that states, “365 days probation, random drug and alcohol testing.

Can petition for non reporting probation after 3 months if no violations.

Standard costs of probation.” Appealed Order at 2 (emphasis added). The

sentencing order also includes a section titled “Monetary Obligations” that

shows several line items and specific amounts for court costs, but no line items

or amounts for probation costs.2 Additionally, the probation order issued the

same day shows fourteen standard conditions, including the following:

1 A no-contact order with K.H. was also entered for the duration of Shirrell’s probation. See Appellant’s Appendix, Volume II at 69-70. In addition, at the time Shirrell was charged in this case, he was on probation for another case out of Shelby County. His probation in this case was ordered to begin when his probation in Shelby County ended. 2 In addition to the $185.00 in various court costs, Shirrell was assessed a $50.00 Supplemental Public Defender Fee. Id.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2883 | May 22, 2020 Page 3 of 8 Appellant’s App., Vol. II at 14. Under “Special Conditions,” the probation

order again states “Standard costs of probation.” Id. Shirrell now appeals the

order that he pay “standard costs of probation,” requesting remand for the

imposition of specific costs.

Discussion and Decision I. Standard of Review [4] Sentencing decisions include decisions to impose fees and costs. Johnson v.

State, 27 N.E.3d 793, 794 (Ind. Ct. App. 2015). We review a trial court’s

sentencing decision for an abuse of discretion. McElroy v. State, 865 N.E.2d

584, 588 (Ind. 2007). An abuse of discretion occurs only when the trial court’s

decision is clearly against the logic and effect of the facts and circumstances

before it or if the court has misinterpreted the law. Newland v. State, 126 N.E.3d

928, 931 (Ind. Ct. App. 2019).

II. Costs of Probation [5] When a defendant is convicted of a misdemeanor, the trial court may impose

certain probation fees. Ind. Code § 35-38-2-1(e); cf. Ind. Code § 35-38-2-1(d)

(setting out the range of probation fees a trial court must impose for a felony

conviction). If the probation department later wants to alter the fees imposed

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2883 | May 22, 2020 Page 4 of 8 by the trial court, it must petition the trial court to impose or increase the

probation fees and demonstrate that there has been a change in the financial

ability of the probationer while on probation. Ind. Code § 35-38-2-1.7(b). But it

is the trial court, not the probation department, that has the initial discretion to

impose probation fees in a misdemeanor case. Burnett v. State, 74 N.E.3d 1221,

1227 (Ind. Ct. App. 2017). The probation department only has the authority to

collect the fees ordered by the trial court. Ind. Code § 35-38-2-1(f).

[6] We have recently vacated probation fees in several cases in which the trial

court’s sentencing and probation orders had not imposed specific probation fees

but instead the probation department had imposed probation fees after

sentencing. See, e.g., De La Cruz v. State, 80 N.E.3d 210, 214 (Ind. Ct. App.

2017) (vacating probation fees imposed by probation department after

sentencing because trial court’s “probation order, along with the absence of a

clear statement [by the trial court] imposing probation fees, shows the trial

court’s intent not to impose such fees”); Burnett, 74 N.E.3d at 1224, 1227

(vacating probation fees imposed by probation department after sentencing

because although trial court stated certain fees and costs were “in addition to

your various probation fees that are required[,]” the sentencing and probation

orders were silent as to those fees); Coleman v. State, 61 N.E.3d 390, 393-94 (Ind.

Ct. App. 2016) (vacating probation and other fees that appeared on defendant’s

case transaction summary one day after sentencing that were not designated by

the trial court in the probation order). Unlike those cases, the record before us

does not show that probation fees have been assessed against Shirrell by the

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2883 | May 22, 2020 Page 5 of 8 probation department. But like those cases, the trial court is the only entity

authorized to impose those fees and although the trial court here clearly stated

its intention to impose probation fees, it failed to do so. See Brief of Appellant

at 9 (acknowledging the trial court “did explicitly state it was ordering

probation fees”).

[7] The State argues the trial court was not required to set the amount of fees at the

time of sentencing because the trial court is required to hold an indigency

hearing when it imposes costs, and indigency is “more appropriately

determined not at the time of initial sentencing but at the conclusion of

incarceration[.]” Brief of Appellee at 6 (quoting Whedon v. State, 765 N.E.2d

1276, 1279 (Ind. 2002)). But Shirrell was not ordered to execute any part of his

sentence, so this reasoning does not hold water. He was to immediately begin

serving probation, and, presumably, immediately pay his “probation

administrative fee,” “initial probation user fee,” and begin to pay his “monthly

probation fees.” See Appellant’s App., Vol. II at 14. The State further argues

that if there is no obligation to hold an indigency hearing until a defendant

completes probation, see Johnson, 27 N.E.3d at 795, there can be no obligation

to set the amount of fees until the defendant has completed probation, either,

see Br. of Appellee at 6-7. However, the court in Johnson stated that “[w]e find

no requirement that a trial court should conduct an indigency hearing at the time

probation fees are ordered[,]” implicitly acknowledging that the assessment of

fees is to be done at the time of sentencing even if the determination of whether

the defendant can afford to pay them can be deferred. 27 N.E.3d at 794

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2883 | May 22, 2020 Page 6 of 8 (emphasis added); see Kimbrough v. State, 911 N.E.2d 621, 636 (Ind. Ct. App.

2009) (“[S]entencing decisions, including decisions to impose restitution, fines,

costs, or fees, are generally left to the trial court’s discretion.”) (emphasis

added). A defendant cannot begin to pay probation fees if he does not know

the amount he is obligated to pay.3

[8] The probation order in this case accurately sets out the range of fees that may be

imposed in a misdemeanor case. See Appellant’s App., Vol. II at 14. And

because there is a range, there are no “standard costs of probation.” Instead, the

trial court is required to set an amount within the appropriate range in each case

and yet the spaces for the ordered amount of each type of probation fee were

left blank in this case. See id. Accordingly, we hold the trial court abused its

discretion because the order to pay probation costs was not made as provided

by statute. See Newland, 126 N.E.3d at 931. Shirrell requests that we remand so

the trial court may determine the amount of probation fees he is obligated to

pay. See Br. of Appellant at 9. In accordance with Indiana statutes making

such assessment within the discretion of the trial court and with our

determination that the assessment should be made at the time of sentencing, we

3 If an indigency hearing can be held on the last day of a defendant’s probationary period, and, according to the State, fees can also be assessed at that time, then the logical conclusion is that the defendant could be required to pay the sum total of his fees immediately or risk being found in violation of the conditions of his probation. Additionally, there would be no purpose to a “monthly probation user fee” if the fee cannot be paid monthly during the term of probation.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2883 | May 22, 2020 Page 7 of 8 remand to the trial court to assess the appropriate amount of probation fees and

amend its sentencing and probation orders accordingly.

Conclusion [9] The trial court was clear in its intention to impose probation costs on Shirrell; it

was therefore required to state the specific amount of those costs. We remand

to the trial court with instructions to amend its orders to reflect the specific costs

imposed.

[10] Remanded.

May, J., and Vaidik, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2883 | May 22, 2020 Page 8 of 8