MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 10 2020, 6:29 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Deborah Markisohn Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Lauren A. Jacobsen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kentrell A. Fleming, March 10, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1394 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa F. Borges, Appellee-Plaintiff Judge Trial Court Cause No. 49G04-1802-F5-5443
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1394 | March 10, 2020 Page 1 of 6 Case Summary [1] After finding that Kentrell Fleming violated a no contact order, the trial court
revoked Fleming’s placement in community corrections and a yet-to-be-served
term of probation. As part of his sanction, the trial court ordered Fleming to
pay certain probation-related fees. On appeal, Fleming argues that the court
abused its discretion by imposing probation fees for a term of probation that
was revoked before it ever began.
[2] We reverse and remand.
Facts & Procedural History [3] On February 15, 2018, the State charged Fleming with Count I, Level 5 felony
intimidation, and Count II, Level 5 felony battery resulting in serious bodily
injury. On September 26, 2018, Fleming pled guilty to Count II and the State
agreed to dismiss Count I. On October 10, 2018, the trial court sentenced
Fleming per the terms of the plea agreement, imposing a five-year sentence,
with three years executed and two years suspended. The executed portion of
the sentence was to be served as one year in the Department of Correction
(DOC) and two years in community corrections. Of the two years suspended,
one year was to be served on probation. As part of the original sentencing
order, the trial court ordered Fleming to pay court costs and fees totaling $845,
including $560 in probation-related fees.
[4] On February 1, 2019, community corrections filed a notice of violation alleging
that Fleming violated a no contact order. The probation department also filed a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1394 | March 10, 2020 Page 2 of 6 notice of probation violation on February 4, 2019. 1 The court held a contested
hearing over two days. On May 17, 2019, the trial court found that Fleming
violated the rules of both community corrections and probation by violating a
no contact order. The court revoked both placements and ordered Fleming to
serve four years in the DOC. Because Fleming was still serving his community
corrections sentence when the violations were filed, he had not yet begun
serving his time on probation. The trial court issued an updated sentencing
order reflecting the sanction and reassessed $845 in court costs and fees,
including the $560 in probation fees. Fleming now appeals. Additional facts
will be provided as necessary.
Discussion & Decision [5] Sentencing decisions include decisions to impose fees and costs. Berry v. State,
950 N.E.2d 798, 799 (Ind. Ct. App. 2011). A trial court’s sentencing decisions
are reviewed under an abuse of discretion standard. McElroy v. State, 865
N.E.2d 584, 588 (Ind. 2007). “An abuse of discretion has occurred when 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.’” Id. at 588 (quoting K.S. v. State, 849
N.E.2d 538, 544 (Ind. 2006)). “If the fees imposed by the trial court fall within
1 The notice of probation violation indicated that Fleming had not paid any portion of his $845 monetary obligation.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1394 | March 10, 2020 Page 3 of 6 the parameters provided by statute, we will not find an abuse of discretion.”
Berry, 950 N.E.2d at 799.
[6] Before addressing Fleming’s argument, we address the State’s contention that
Fleming “cannot challenge the assessment of probation fees since they appeared
in the original sentencing order and were not added as part of his sentence in
the revocation hearing.” Appellee’s Brief at 7. The State maintains that because
Fleming did not challenge imposition of probation fees when they were
assessed, he cannot challenge them following the revocation of his probation.
The State improperly characterizes Fleming’s challenge as a collateral challenge
to the validity of his sentence. Cf. Stephens v. State, 818 N.E.2d 936, 939 (Ind.
2004) (stating that a defendant cannot collaterally attack a sentence on appeal
from a probation revocation). 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.
[7] Citing I.C. § 35-38-2-1(b) (directing to I.C. § 35-38-2-1.7(b)), the State also
argues that the trial court was prohibited from vacating the imposition of
probation fees absent a petition from the probation department. The plain
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1394 | March 10, 2020 Page 4 of 6 language of the statute establishes that it is not relevant to this case. Pursuant to
I.C. § 35-38-2-1(b), the trial court may modify the conditions or terminate
probation at any time, except for fee payment which “may only be modified as
provided in section 1.7(b) of this chapter”. Section 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.
(Emphasis supplied). Neither of these provisions is applicable here. Further,
this statutory provision presumes the individual is actively serving probation,
which Fleming was not. We disagree with the State that the trial court was
statutorily constrained to leave the probation fees imposed as part of the
original sentence in place following the revocation of Fleming’s probation.
[8] We now turn to the merits of Fleming’s argument. Relying on Johnson v. State,
27 N.E.3d 793 (Ind. Ct. App. 2015), Fleming contends that the trial court
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 10 2020, 6:29 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Deborah Markisohn Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Lauren A. Jacobsen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kentrell A. Fleming, March 10, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1394 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa F. Borges, Appellee-Plaintiff Judge Trial Court Cause No. 49G04-1802-F5-5443
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1394 | March 10, 2020 Page 1 of 6 Case Summary [1] After finding that Kentrell Fleming violated a no contact order, the trial court
revoked Fleming’s placement in community corrections and a yet-to-be-served
term of probation. As part of his sanction, the trial court ordered Fleming to
pay certain probation-related fees. On appeal, Fleming argues that the court
abused its discretion by imposing probation fees for a term of probation that
was revoked before it ever began.
[2] We reverse and remand.
Facts & Procedural History [3] On February 15, 2018, the State charged Fleming with Count I, Level 5 felony
intimidation, and Count II, Level 5 felony battery resulting in serious bodily
injury. On September 26, 2018, Fleming pled guilty to Count II and the State
agreed to dismiss Count I. On October 10, 2018, the trial court sentenced
Fleming per the terms of the plea agreement, imposing a five-year sentence,
with three years executed and two years suspended. The executed portion of
the sentence was to be served as one year in the Department of Correction
(DOC) and two years in community corrections. Of the two years suspended,
one year was to be served on probation. As part of the original sentencing
order, the trial court ordered Fleming to pay court costs and fees totaling $845,
including $560 in probation-related fees.
[4] On February 1, 2019, community corrections filed a notice of violation alleging
that Fleming violated a no contact order. The probation department also filed a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1394 | March 10, 2020 Page 2 of 6 notice of probation violation on February 4, 2019. 1 The court held a contested
hearing over two days. On May 17, 2019, the trial court found that Fleming
violated the rules of both community corrections and probation by violating a
no contact order. The court revoked both placements and ordered Fleming to
serve four years in the DOC. Because Fleming was still serving his community
corrections sentence when the violations were filed, he had not yet begun
serving his time on probation. The trial court issued an updated sentencing
order reflecting the sanction and reassessed $845 in court costs and fees,
including the $560 in probation fees. Fleming now appeals. Additional facts
will be provided as necessary.
Discussion & Decision [5] Sentencing decisions include decisions to impose fees and costs. Berry v. State,
950 N.E.2d 798, 799 (Ind. Ct. App. 2011). A trial court’s sentencing decisions
are reviewed under an abuse of discretion standard. McElroy v. State, 865
N.E.2d 584, 588 (Ind. 2007). “An abuse of discretion has occurred when 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.’” Id. at 588 (quoting K.S. v. State, 849
N.E.2d 538, 544 (Ind. 2006)). “If the fees imposed by the trial court fall within
1 The notice of probation violation indicated that Fleming had not paid any portion of his $845 monetary obligation.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1394 | March 10, 2020 Page 3 of 6 the parameters provided by statute, we will not find an abuse of discretion.”
Berry, 950 N.E.2d at 799.
[6] Before addressing Fleming’s argument, we address the State’s contention that
Fleming “cannot challenge the assessment of probation fees since they appeared
in the original sentencing order and were not added as part of his sentence in
the revocation hearing.” Appellee’s Brief at 7. The State maintains that because
Fleming did not challenge imposition of probation fees when they were
assessed, he cannot challenge them following the revocation of his probation.
The State improperly characterizes Fleming’s challenge as a collateral challenge
to the validity of his sentence. Cf. Stephens v. State, 818 N.E.2d 936, 939 (Ind.
2004) (stating that a defendant cannot collaterally attack a sentence on appeal
from a probation revocation). 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.
[7] Citing I.C. § 35-38-2-1(b) (directing to I.C. § 35-38-2-1.7(b)), the State also
argues that the trial court was prohibited from vacating the imposition of
probation fees absent a petition from the probation department. The plain
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1394 | March 10, 2020 Page 4 of 6 language of the statute establishes that it is not relevant to this case. Pursuant to
I.C. § 35-38-2-1(b), the trial court may modify the conditions or terminate
probation at any time, except for fee payment which “may only be modified as
provided in section 1.7(b) of this chapter”. Section 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.
(Emphasis supplied). Neither of these provisions is applicable here. Further,
this statutory provision presumes the individual is actively serving probation,
which Fleming was not. We disagree with the State that the trial court was
statutorily constrained to leave the probation fees imposed as part of the
original sentence in place following the revocation of Fleming’s probation.
[8] We now turn to the merits of Fleming’s argument. 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
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1394 | March 10, 2020 Page 5 of 6 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)).
[9] In this case, Fleming never served probation, and the trial court revoked his
previously ordered probation before his probation even began. Although the
trial court revoked Fleming’s probation, the trial court nevertheless ordered him
to pay $560 in probation-related fees. We conclude that the trial court abused
its discretion in ordering Fleming to pay probation fees as part of a sanction that
did not include probation. We remand this case to the trial court with
instructions to reduce the amount of fees by $560.
[10] Judgment reversed and remanded.
Robb, J. and Bradford, C.J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1394 | March 10, 2020 Page 6 of 6