John Amos v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 29, 2017
• Docket: 49A02-1703-CR-517
• 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 Sep 29 2017, 10:58 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. Marion County Public Defender Attorney General of Indiana Appellate Division Katherine Cooper Indianapolis, IN Deputy Attorney General Indianapolis, IN

IN THE COURT OF APPEALS OF INDIANA

John Amos, September 29, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1703-CR-517 v. Appeal from the Marion Superior Court, Criminal Division 16 State of Indiana, The Honorable Patrick Murphy, Appellee-Plaintiff Magistrate Trial Court Cause Nos. 49G16-1607-F6-020081 49G17-1610-CM-042384

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-517 | September 29, 2017 Page 1 of 5 Case Summary [1] John Amos was convicted of multiple misdemeanors and sentenced to

probation. At his sentencing hearing the trial court stated that it was not going

to impose any costs or fines to him, and the written order reflects this statement.

The court then sentenced Amos to probation but made no comment regarding

probation fees.

[2] After sentencing, the probation department sought clarification on the court’s

order and sent a letter to the court asking whether administrative and probation-

user fees should be imposed on Amos. The court “approved” the

memorandum sent by the probation department, and $340 in fees were charged

to Amos. The State concedes that the probation department’s letter to the court

was not a petition for fees, as required by Indiana statute, and requests that we

remand. Thus, we vacate the order charging administrative and probation-user

fees and remand for further proceedings.

Facts and Procedural History [3] At the conclusion of Amos’s bench trial where he was found guilty of invasion

of privacy, the trial court sentenced him to one year, all suspended to probation.

During sentencing, the trial court stated, “Again, I’m not going to impose any

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-517 | September 29, 2017 Page 2 of 5 fine or cost.” Cause No. 28001 Tr. Vol. II p. 28.1 The court did not make any

comment regarding probation fees.

[4] No court costs or fees were entered on the written sentencing orders. However,

in a section titled “Monetary Conditions” on the written order of probation, the

trial court wrote, “Pursuant to Indiana Statute the minimum fee allowed by law

shall be imposed.” Appellant’s App. Vol. II p. 84. The order also contains a

table for setting the monetary obligations of probation. That section of Amos’s

order provides:

Id. (blacked-out sections and blank spaces in original).

1 Amos had two separate bench trials on February 13, Cause Nos. 49G16-1607-F6-28001 and 49G16-1610- CM-42384. The sentencing transcript is included with the transcript for the cause number ending in 28001.

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-517 | September 29, 2017 Page 3 of 5 [5] On February 23, the Marion County Probation Department filed a notice with

the trial court that Amos was “eligible to be assessed” $340 in probation fees (a

$50 administrative fee, a $50 initial probation-user fee, and a $20 per month

probation-user fee for twelve months). Appellant’s App. Vol. II p. 92. The

department sought “clarification as to if the Court wish[ed] to have these fees

assessed” against Amos. Id. Four days later the trial court issued an “Order on

Memorandum of Probation” and “approved” the probation department’s

memorandum. Id. at 93. Thereafter, $340 in probation fees were charged to

Amos.

[6] Amos now appeals.

Discussion and Decision [7] Amos argues, and the State agrees, that the memorandum sent by the probation

department did not constitute a petition to have administrative or probation fees

imposed on Amos. We agree. Indiana Code section 35-38-2-1 states that if a

defendant is “convicted of a misdemeanor, the court may order the person to

pay the user’s fee prescribed under subsection (e).” Ind. Code § 35-38-2-1(b).

Subsection (e) details the maximum amount the court may order a person to

pay for probation fees, including the administrative fee and the probation-user

fee. The probation department may petition the trial court to impose or

increase a defendant’s probation-user fee if the defendant’s financial ability to

pay has changed while he is on probation. Ind. Code § 35-38-2-1.7(b).

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-517 | September 29, 2017 Page 4 of 5 [8] At sentencing, the trial court explicitly stated, “Again, I’m not going to impose

any fine or cost.” Cause No. 28001 Tr. Vol. II. p. 28. This was reflected in its

written sentencing orders when it imposed no court costs or fines. The trial

court was silent on the issue of probation fees, despite sentencing Amos to

probation. In the written probation order, the court blacked out or left blank

each row under the column “ordered amount.” Yet, two weeks after the

sentencing hearing, the court “approved” $340 in administrative and probation-

user fees based on a clarification request from the probation department. The

State concedes that this request was not a petition to impose probation fees and

asks us to remand. Accordingly, we vacate the order imposing $340 in

administrative and probation-user fees and remand to the trial court to clarify

what, if any, probation fees will be imposed on Amos, including the category of

fee(s) and the amount.2

[9] Vacated and remanded with instructions.

Mathias, J., and Crone, J., concur.

2 Amos also argues that if the trial court orders probation fees, it must conduct an indigency hearing at the time the fees are imposed. Amos relies on Indiana Code section 33-37-2-3 to support his argument. This statute states, “[W]hen the court imposes costs, it shall conduct a hearing to determine whether the convicted person is indigent.” Ind. Code § 33-37-2-3(a). But the statute does not dictate when this hearing is to occur. If the State seeks to revoke a defendant’s probation for failure to pay costs and/or fees, the trial court must hold the indigency hearing before revoking probation. Johnson v. State, 27 N.E.2d 793, 795 n.1 (Ind. Ct. App. 2015); see also Whedon v. State, 765 N.E.2d 1276, 1279 (Ind. 2002) (“[W]hen fines or costs are imposed upon an indigent defendant, such a person may not be imprisoned for failure to pay the fines or costs.”).

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