IN THE
Court of Appeals of Indiana Ivan Hernandez-Vargas, FILED Oct 17 2024, 9:12 am Appellant-Defendant CLERK Indiana Supreme Court Court of Appeals and Tax Court v.
State of Indiana, Appellee-Plaintiff
October 17, 2024 Court of Appeals Case No. 24A-CR-1306 Appeal from the Hamilton Superior Court The Honorable Michael A. Casati, Judge Trial Court Cause No. 29D01-2110-F5-6351
Opinion by Judge Brown Judges Mathias and Kenworthy concur.
Court of Appeals of Indiana | Opinion 24A-CR-1306 | October 17, 2024 Page 1 of 8 Brown, Judge.
[1] Ivan Hernandez-Vargas appeals the trial court’s order upon revocation of his
probation which included a civil judgment for probation user fees assessed at
the time of original sentencing. We reverse and remand.
Facts and Procedural History
[2] In October 2021, the State charged Hernandez-Vargas with operating a motor
vehicle after forfeiture of license for life as a level 5 felony, operating a vehicle
while intoxicated endangering a person as a class A misdemeanor, and
operating a vehicle with a Schedule II controlled substance or its metabolite in
the blood, as a class C misdemeanor. On January 22, 2022, the parties entered
into a plea agreement which provided for Hernandez-Vargas to plead guilty to
the level 5 felony and the class A misdemeanor in exchange for dismissal of the
remaining charge as well as dismissal of all charges in an unrelated case.
Following a hearing, the trial court accepted the guilty plea and, on February
24, sentenced Hernandez-Vargas to five years with three years executed and
two years suspended to probation. The court ordered that the “executed” term
“shall be served as one (1) year as a direct commitment to Hamilton County
Community Corrections [(“HCCC”)] work release followed by two (2) years as
a direct commitment to [HCCC] on electronic monitored home detention.”
Appellant’s Appendix Volume II at 72. The court also imposed a $150 CARE
fee, court costs of $185.50, an alcohol and drug countermeasures fee of $200,
and probation user fees of $660, for total costs of $1,195.50. The court’s order
of probation provided that “[p]robation will be tolled during the service of the Court of Appeals of Indiana | Opinion 24A-CR-1306 | October 17, 2024 Page 2 of 8 executed term.” Id. at 74. Hernandez-Vargas began serving his executed
HCCC placement on the day he was sentenced.
[3] On February 7, 2024, HCCC filed a Notice of Non-Compliance after
Hernandez-Vargas tested positive for alcohol. On February 8, the Hamilton
County Probation Department filed a notice of violation. The court held a
factfinding hearing on May 23, 2024. Hernandez-Vargas admitted the violation
and the court revoked his placement in community corrections and his
probation and ordered him to serve 1700 days in the Department of Correction
(“DOC”) with 992 days of actual and good time credit. As part of its
revocation order, the court entered a civil judgment against Hernandez-Vargas
for $685.50 for “outstanding court costs and fees.” Id. at 118.
Discussion
[4] Hernandez-Vargas challenges the trial court’s entry of a civil judgment upon
revocation of his probation which included $660 of probation user fees assessed
at the time of his original sentencing. He argues that “it was an abuse of
discretion” for the trial court to “assess probation fees when [he] was not
actively serving probation when probation was revoked.” Appellant’s Brief at 6
(emphasis omitted). The State responds that the “trial court did not abuse its
discretion when it did not vacate probation fees that were assessed in the trial
court’s original sentencing order.” Appellee’s Brief at 7 (emphasis omitted).
The State characterizes Hernandez-Vargas’s claim as an improper collateral
attack on his original sentence, and it further argues that the trial court’s “hands
were tied” because statutory law requires a petition from the probation Court of Appeals of Indiana | Opinion 24A-CR-1306 | October 17, 2024 Page 3 of 8 department before a fee order may be amended. Id. at 10. We agree with
Hernandez-Vargas.
[5] Our opinion in Fleming v. State, 143 N.E.3d 987 (Ind. Ct. App. 2020) is directly
on point and instructive here. In Fleming, the defendant pled guilty to a level 5
felony and the trial court sentenced him per the terms of the plea agreement,
imposing a five-year sentence, with three years executed and two years
suspended. Fleming, 143 N.E.3d at 989. The three-year executed portion of the
sentence was to be served as one year in the DOC and two years in community
corrections. Id. Of the two years suspended, one year was to be served on
probation. Id. As part of the original sentencing order, the court ordered the
defendant to pay court costs and fees totaling $845, including $560 in
probation-related fees. Id.
[6] While the defendant was serving the executed portion of his sentence,
community corrections filed a notice of violation alleging that he violated a no
contact order. Id. The probation department also filed a notice of probation
violation alleging that he had not paid any portion of his $845 monetary
obligation. Id. at 989 n.1. Following a hearing, the revocation court found that
the defendant violated the rules of both community corrections and probation
by violating the no contact order. Id. at 989. The court revoked both
placements and ordered the defendant to serve four years in the DOC. Id.
Because the defendant was still serving his community corrections sentence
when the violations were filed, he had not yet begun serving his time on
probation. Id. The trial court issued an updated sentencing order reflecting the Court of Appeals of Indiana | Opinion 24A-CR-1306 | October 17, 2024 Page 4 of 8 sanction and reassessed $845 in court costs and fees, including the $560 in
probation fees. Id.
[7] On appeal, the defendant argued that the trial court abused its discretion by
imposing probation fees for a term of probation that was revoked before it ever
began. Id. at 989. This Court held:
Relying on Johnson v. State, 27 N.E.3d 793 (Ind. Ct. App. 2015), Fleming contends that the trial court abused its discretion by requiring him to pay probation user fees despite his probation being revoked before it ever began. In Johnson, the trial court ordered the defendant to pay twelve months of probation fees but after the defendant served just five months of probation, the trial court revoked his probation due to a violation. The defendant appealed the trial court’s order that he pay the entire twelve months of probation fees. This court held that “probation fees should reflect the time a defendant actually served on probation” and because “the $340 in probation fees reflected a twelve-month probation and [defendant] served only five of those months, the trial court should recalculate [defendant’s] probation fees, if appropriate, to correspond with the probation time [defendant] actually served.” Id. at 794-95 (citing I.C. § 35-38-2-1(e)).
Id. at 990-991. The Fleming court observed, “Fleming never served probation,
and the trial court revoked his previously ordered probation before his
probation even began.” Id. at 991. The Court stated that, “[a]lthough the trial
court revoked Fleming’s probation, the trial court nevertheless ordered him to
pay $560 in probation-related fees.” Id.
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IN THE
Court of Appeals of Indiana Ivan Hernandez-Vargas, FILED Oct 17 2024, 9:12 am Appellant-Defendant CLERK Indiana Supreme Court Court of Appeals and Tax Court v.
State of Indiana, Appellee-Plaintiff
October 17, 2024 Court of Appeals Case No. 24A-CR-1306 Appeal from the Hamilton Superior Court The Honorable Michael A. Casati, Judge Trial Court Cause No. 29D01-2110-F5-6351
Opinion by Judge Brown Judges Mathias and Kenworthy concur.
Court of Appeals of Indiana | Opinion 24A-CR-1306 | October 17, 2024 Page 1 of 8 Brown, Judge.
[1] Ivan Hernandez-Vargas appeals the trial court’s order upon revocation of his
probation which included a civil judgment for probation user fees assessed at
the time of original sentencing. We reverse and remand.
Facts and Procedural History
[2] In October 2021, the State charged Hernandez-Vargas with operating a motor
vehicle after forfeiture of license for life as a level 5 felony, operating a vehicle
while intoxicated endangering a person as a class A misdemeanor, and
operating a vehicle with a Schedule II controlled substance or its metabolite in
the blood, as a class C misdemeanor. On January 22, 2022, the parties entered
into a plea agreement which provided for Hernandez-Vargas to plead guilty to
the level 5 felony and the class A misdemeanor in exchange for dismissal of the
remaining charge as well as dismissal of all charges in an unrelated case.
Following a hearing, the trial court accepted the guilty plea and, on February
24, sentenced Hernandez-Vargas to five years with three years executed and
two years suspended to probation. The court ordered that the “executed” term
“shall be served as one (1) year as a direct commitment to Hamilton County
Community Corrections [(“HCCC”)] work release followed by two (2) years as
a direct commitment to [HCCC] on electronic monitored home detention.”
Appellant’s Appendix Volume II at 72. The court also imposed a $150 CARE
fee, court costs of $185.50, an alcohol and drug countermeasures fee of $200,
and probation user fees of $660, for total costs of $1,195.50. The court’s order
of probation provided that “[p]robation will be tolled during the service of the Court of Appeals of Indiana | Opinion 24A-CR-1306 | October 17, 2024 Page 2 of 8 executed term.” Id. at 74. Hernandez-Vargas began serving his executed
HCCC placement on the day he was sentenced.
[3] On February 7, 2024, HCCC filed a Notice of Non-Compliance after
Hernandez-Vargas tested positive for alcohol. On February 8, the Hamilton
County Probation Department filed a notice of violation. The court held a
factfinding hearing on May 23, 2024. Hernandez-Vargas admitted the violation
and the court revoked his placement in community corrections and his
probation and ordered him to serve 1700 days in the Department of Correction
(“DOC”) with 992 days of actual and good time credit. As part of its
revocation order, the court entered a civil judgment against Hernandez-Vargas
for $685.50 for “outstanding court costs and fees.” Id. at 118.
Discussion
[4] Hernandez-Vargas challenges the trial court’s entry of a civil judgment upon
revocation of his probation which included $660 of probation user fees assessed
at the time of his original sentencing. He argues that “it was an abuse of
discretion” for the trial court to “assess probation fees when [he] was not
actively serving probation when probation was revoked.” Appellant’s Brief at 6
(emphasis omitted). The State responds that the “trial court did not abuse its
discretion when it did not vacate probation fees that were assessed in the trial
court’s original sentencing order.” Appellee’s Brief at 7 (emphasis omitted).
The State characterizes Hernandez-Vargas’s claim as an improper collateral
attack on his original sentence, and it further argues that the trial court’s “hands
were tied” because statutory law requires a petition from the probation Court of Appeals of Indiana | Opinion 24A-CR-1306 | October 17, 2024 Page 3 of 8 department before a fee order may be amended. Id. at 10. We agree with
Hernandez-Vargas.
[5] Our opinion in Fleming v. State, 143 N.E.3d 987 (Ind. Ct. App. 2020) is directly
on point and instructive here. In Fleming, the defendant pled guilty to a level 5
felony and the trial court sentenced him per the terms of the plea agreement,
imposing a five-year sentence, with three years executed and two years
suspended. Fleming, 143 N.E.3d at 989. The three-year executed portion of the
sentence was to be served as one year in the DOC and two years in community
corrections. Id. Of the two years suspended, one year was to be served on
probation. Id. As part of the original sentencing order, the court ordered the
defendant to pay court costs and fees totaling $845, including $560 in
probation-related fees. Id.
[6] While the defendant was serving the executed portion of his sentence,
community corrections filed a notice of violation alleging that he violated a no
contact order. Id. The probation department also filed a notice of probation
violation alleging that he had not paid any portion of his $845 monetary
obligation. Id. at 989 n.1. Following a hearing, the revocation court found that
the defendant violated the rules of both community corrections and probation
by violating the no contact order. Id. at 989. The court revoked both
placements and ordered the defendant to serve four years in the DOC. Id.
Because the defendant was still serving his community corrections sentence
when the violations were filed, he had not yet begun serving his time on
probation. Id. The trial court issued an updated sentencing order reflecting the Court of Appeals of Indiana | Opinion 24A-CR-1306 | October 17, 2024 Page 4 of 8 sanction and reassessed $845 in court costs and fees, including the $560 in
probation fees. Id.
[7] On appeal, the defendant argued that the trial court abused its discretion by
imposing probation fees for a term of probation that was revoked before it ever
began. Id. at 989. This Court held:
Relying on Johnson v. State, 27 N.E.3d 793 (Ind. Ct. App. 2015), Fleming contends that the trial court abused its discretion by requiring him to pay probation user fees despite his probation being revoked before it ever began. In Johnson, the trial court ordered the defendant to pay twelve months of probation fees but after the defendant served just five months of probation, the trial court revoked his probation due to a violation. The defendant appealed the trial court’s order that he pay the entire twelve months of probation fees. This court held that “probation fees should reflect the time a defendant actually served on probation” and because “the $340 in probation fees reflected a twelve-month probation and [defendant] served only five of those months, the trial court should recalculate [defendant’s] probation fees, if appropriate, to correspond with the probation time [defendant] actually served.” Id. at 794-95 (citing I.C. § 35-38-2-1(e)).
Id. at 990-991. The Fleming court observed, “Fleming never served probation,
and the trial court revoked his previously ordered probation before his
probation even began.” Id. at 991. The Court stated that, “[a]lthough the trial
court revoked Fleming’s probation, the trial court nevertheless ordered him to
pay $560 in probation-related fees.” Id. It concluded that the trial court abused
its discretion in ordering Fleming to pay probation fees as part of a sanction that
Court of Appeals of Indiana | Opinion 24A-CR-1306 | October 17, 2024 Page 5 of 8 did not include probation and remanded the case to the trial court with
instructions to reduce the amount of fees by $560. Id.
[8] The circumstances presented here require the same conclusion, and the State’s
attempts to distinguish Fleming are unavailing. 1 In this case, as in Fleming,
Hernandez-Vargas never served probation, and the trial court revoked his
previously ordered probation before his probation even began. Despite
revoking his probation, the trial court nevertheless entered a civil judgment
ordering Hernandez Vargas to pay $685.50, which included $660 in the
previously assessed probation-related fees. We conclude that the trial court
abused its discretion in doing so.
[9] We note that, as it did in Fleming, the State characterizes Hernandez-Vargas’s
current challenge as an improper collateral “challenge to the validity of his
[original] sentence.” Appellee’s Brief at 9 (citing Stephens v. State, 818 N.E.2d
936, 939 (Ind. 2004) (holding that defendant cannot collaterally attack sentence
on appeal from probation revocation)). We rejected this argument in Fleming,
noting that:
1 The State suggests that Fleming should not control because, unlike in Fleming, the fees ordered here “were not part of the [revocation] sanctions order but were part of the original sentence.” Appellee’s Brief at 10. The State’s assertion misrepresents the facts of Fleming as the probation fees in Fleming had been assessed as part of the original sentencing order. Fleming, 143 N.E.3d at 989. The State further suggests that, unlike the defendant in Fleming, an argument could be made that Hernandez-Vargas was, in fact, already serving probation at the time of the revocation. The State argues that he “was already required to fulfill the terms of his probation” when he was serving executed time in community corrections so he arguably was “effectively already serving [probation].” Appellee’s Brief at 7, 10. However, the court’s probation order specifically provided that “[p]robation will be tolled during the service of the executed term.” Appellant’s Appendix Volume II at 74. We find the State’s attempts to distinguish Fleming on these bases unpersuasive.
Court of Appeals of Indiana | Opinion 24A-CR-1306 | October 17, 2024 Page 6 of 8 When the probation fees were imposed as part of the original sentencing order, Fleming had no basis to object as his probation had not yet been revoked. After the trial court revoked his probation, however, the court again imposed probation-related fees. Fleming is not collaterally attacking the imposition of probation fees as set out in the original sentencing order. Rather, Fleming argues that the trial court abused its discretion when it failed to modify his fee obligation following the revocation of his probation. A judgment revoking probation is a final appealable order. Ind. Code § 35-38-2-3(l). Fleming can therefore challenge the court’s imposition of probation fees.
Fleming, 143 N.E.3d at 990. Contrary to the State’s argument, Hernandez-
Vargas can challenge the trial court’s failure to vacate or modify his fee
obligation upon revocation of his probation.
[10] Regarding the State’s assertion, based upon Ind. Code §§ 35-38-2-1(b) and 35-
38-2-1.7(b), 2 that the trial court’s hands were tied and that it was prohibited
from modifying or vacating the prior fee order absent a petition from the
probation department, we specifically rejected this exact assertion in Fleming.
See id. (considering the statutory language, finding the provisions irrelevant and
inapplicable to an individual not actively serving probation, and disagreeing
with the State’s contention “that the trial court was statutorily constrained to
2 Ind. Code § 35-38-2-1(b) provides in pertinent part that the court may modify the conditions of probation at any time, “except a fee payment may only be modified as provided in section 1.7(b) of this chapter.” (parenthetical omitted). Ind. Code § 35-38-2-1.7(b) provides: “A probation department may petition a court to: (1) impose a probation user’s fee on a person; or (2) increase a person’s probation user’s fee; under section 1 or 1.5 of this chapter if the financial ability of the person to pay a probation user’s fee changes while the person is on probation.”
Court of Appeals of Indiana | Opinion 24A-CR-1306 | October 17, 2024 Page 7 of 8 leave the probation fees imposed as part of the original sentence in place
following the revocation of Fleming’s probation”). The State has given us no
cause to reconsider our conclusion in Fleming that trial courts are not statutorily
constrained to leave in place probation fees such as the ones at issue here.
[11] Based on the foregoing, we reverse the trial court’s civil judgment order and
remand with instructions to reduce the amount of fees by $660. 3
[12] Reversed and remanded.
Mathias, J., and Kenworthy, J., concur.
ATTORNEY FOR APPELLANT James D. Crum Coots, Henke & Wheeler, P.C. Carmel, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
3 The Chronological Case Summary indicates that, of the originally assessed amount of $1,195.50, Hernandez-Vargas paid $510 toward his assessed fees, which included a $150 CARE fee. Hernandez-Vargas briefly mentions in a footnote that the CARE fee “was a condition of probation” and that having already paid that fee despite never having served probation, he has “ultimately overpaid for what was actually due in court costs and fees.” Appellant’s Brief at 7 n.3. He does not cite any authority or explain or suggest that this Court should grant him further relief and therefore, he has waived any argument regarding the propriety of the CARE fee, and we decline to address this matter further. See Lyles v. State, 834 N.E.2d 1035, 1050 (Ind. Ct. App. 2005) (“A party waives an issue where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record.”), trans. denied.
Court of Appeals of Indiana | Opinion 24A-CR-1306 | October 17, 2024 Page 8 of 8