Jaron C. Gibbs v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 28, 2017
• Docket: 49A05-1606-CR-1336
• 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 Feb 28 2017, 8:12 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Suzy St. John Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jaron C. Gibbs, February 28, 2017 Appellant-Defendant, Court of Appeals Case No. 49A05-1606-CR-1336 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Christina R. Appellee-Plaintiff Klineman, Judge Trial Court Cause No. 49G17-1504-CM-12284

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1336 | February 28, 2017 Page 1 of 6 [1] Jaron Gibbs appeals the probation department’s imposition of costs and fees

after the trial court elected to impose no fees. He also argues that the trial court

erred by merging one conviction into another instead of vacating one of them,

violating the prohibition against double jeopardy. We agree on both

arguments, and vacate and remand for further proceedings and with

instructions to vacate the second of Gibbs’s convictions.

Facts [2] At the beginning of Gibbs’s legal proceedings, the trial court found him indigent

and appointed a public defender. On May 31, 2016, following a bench trial, the

trial court found Gibbs guilty of Class A misdemeanor domestic battery and

Class A misdemeanor domestic battery resulting in bodily injury. At the

sentencing hearing, the trial court asked for argument, and Gibbs’s attorney

explained as follows:

Mr. Gibbs is looking for work currently. He’s not working, he doesn’t have a license, he doesn’t drive. We don’t believe that any form of probation, I don’t know if that would be appropriate. Because he [would] have to worry about his transportation with him being (INAUDIBLE) or any treatment or anything like that. We would ask for time served.

Tr. p. 100. The same day, the trial court sentenced Gibbs to 365 days, with 339

days suspended to non-reporting probation. The sentencing order states that

“The Court is assessing Court Costs and Fees in the amount of $0.00 . . . .”

Appellant’s App. Vol. II p. 13. The probation order includes a space for

Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1336 | February 28, 2017 Page 2 of 6 monetary conditions of probation. That section of Gibbs’s order reads as

follows:

Monetary Misdemeanor Felony Rate Ordered Amount Obligation Rate Administrative 50 100 Fee Alcohol/Drug 250 (A Misd) 250 Services Program 150 (B & C) Child Abuse Fee 100 100 Countermeasure 200 200 Fee Court Costs 183/183.50 183/183.50 Domestic 50 50 Violence Fee Drug Interdiction 200-1,000 200-1,000 Fee Fine 0-5,000 0-10,000 $ Pre-Trial Fee 50 100 Probation User 50 + 20/month 100 + 30/month Fee Public Defender 50 100 Fee Safe School Fee 200-1,000 200-1,000 Sexual Assault 250-1,000 250-1,000 Victim Fee

Id. at 51 (blacked-out sections and blank spaces original). Subsequently, the

probation department charged Gibbs $340 in probation user’s fees and $233 in

miscellaneous fees.1 On June 6, 2016, the trial court granted the probation

department’s request to transfer Gibbs’s bond to apply to the outstanding

1 None of these fees fell into the categories of “Fine,” “Safe School Fee,” or “Sexual Assault Victim Fee.”

Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1336 | February 28, 2017 Page 3 of 6 balance, leaving Gibbs with a remaining balance owed of $378. Gibbs now

appeals.

Discussion and Decision I. Probation Fees and Costs [3] When a defendant is convicted of a misdemeanor, the trial court has discretion

to impose certain probation fees. Ind. Code § 35-38-2-1(e). If the probation

department later wants to alter the fees imposed by the trial court, it must

petition the trial court to increase the probation fees. I.C. § 35-38-2-1.7(b). To

be entitled to an increase in fees, the probation department must demonstrate

that there was a change in the financial ability of the probationer while on

probation. Id.

[4] This Court has already considered the precise issue before us regarding

probation fees and costs. In Coleman v. State, 61 N.E.3d 390 (Ind. Ct. App.

2016), the trial court’s sentencing order did not list any court costs or fees, and

the probation order’s monetary obligation section included ordered amount

sections that were blacked out with the exception of “fine,” “safe school fee,”

and “sexual assault victim fee,” which were all blank. 61 N.E.3d at 393-94.

The probation department subsequently imposed an aggregate amount of $640

in fees on the defendant. This Court found that, “based on the record, we

cannot conclude that the trial court imposed these probation fees.” Id. at 394.

Therefore, we vacated the fees and remanded for further proceedings.

Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1336 | February 28, 2017 Page 4 of 6 [5] The State directs our attention to a Marion County local rule, which provides

that whenever an individual is placed on probation, a series of fees and costs

“shall be imposed under the Probation Court or Probation Order unless the

sentencing Judge specifically modifies the Order.” LR49-CR00-115(a).

Initially, we emphasize that any local rule (along with any statute) must also

comply with the constitutional due process rights of the people to whom the

rule is applied. Therefore, were this rule to be applied in a way that violated

Gibbs’s due process rights, we would find it to be unconstitutional.

[6] As a constitutional argument has not been made in this case, however, we note

that while we acknowledge this rule, we can only conclude that, by blacking out

the sections for the “Ordered Amount” of relevant fees and costs in the

probation order, the trial court did, in fact, modify the default imposition of

fees. Because the trial court in this case did not impose any probation fees or

costs on Gibbs, it was erroneous to accept the imposition of these fees without a

petition from the probation department and a showing that Gibbs’s financial

situation has changed since the sentencing hearing. Accordingly, we vacate the

fees and remand for further proceedings.2

2 Should the probation department petition for fees and costs, the trial court would have to hold an indigency hearing at some point. The trial court could hold the hearing immediately or wait until Gibbs completes his sentence to make the indigency determination. Johnson v. State, 27 N.E.3d 793, 795 (Ind. Ct. App. 2015).

Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1336 | February 28, 2017 Page 5 of 6 II. Merger [7] Finally, the trial court entered a judgment of conviction for both Class A

misdemeanor convictions. In an attempt to avoid running afoul of the

prohibition against double jeopardy, the trial court merged one count into

another. The State concedes that Gibbs is correct that merging a conviction

without vacating it does not remedy a double jeopardy violation. West v. State,

22 N.E.3d 872, 875 (Ind. Ct. App. 2014). We agree. Therefore, we remand

with instructions to vacate Gibbs’s conviction for Class A misdemeanor

domestic violence causing bodily injury.

[8] The judgment of the trial court regarding the fees owed by Gibbs is vacated and

remanded for further proceedings consistent with this opinion and with

instructions to vacate Gibbs’s conviction for Class A misdemeanor domestic

violence resulting in bodily injury.

Mathias, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1336 | February 28, 2017 Page 6 of 6