Kristofer Polk v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: November 30, 2017
• Docket: 49A02-1703-CR-622
• Status: Published

Opinion

FILED Nov 30 2017, 9:34 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew D. Anglemeyer Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kristofer Polk, November 30, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1703-CR-622 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia Gooden, Appellee-Plaintiff. Judge Trial Court Cause No. 49G21-1610-F4-41626

Pyle, Judge.

Statement of the Case [1] Kristofer Polk (“Polk”) was convicted of three felonies. For one of those

felonies, the trial court imposed an eight-year sentence, with six years executed

and two years suspended, and ordered that he serve one year on probation.

Court of Appeals of Indiana | Opinion 49A02-1703-CR-622 | November 30, 2017 Page 1 of 10 The trial court found Polk indigent as to fines and costs, did not impose

probation fees, and ordered the probation department to conduct a financial

assessment. Polk contends that the trial court’s directive to the probation

department to conduct a financial assessment was an improper delegation of the

trial court’s authority to impose probation fees. Based on the alleged improper

delegation of authority, he requests that we remand his case to the trial court to

determine the amount of probation fees and to conduct an indigency hearing

regarding his ability to pay.

[2] We agree that remand to the trial court is necessary but not for the reason

suggested by Polk. Because the trial court placed Polk on probation for a felony

conviction, the trial court was statutorily required to impose probation fees.

Here, however, the trial court did not impose probation fees. We also agree

that the trial court will be required to hold an indigency hearing. Accordingly,

we remand with instructions for the trial court to impose the statutorily-

mandated probation fees for Polk’s felony conviction and to hold an indigency

hearing, at the latest, upon the completion of Polk’s sentence.

[3] We remand.

Issue Whether the trial court abused its discretion when it did not impose probation fees and ordered the probation department to conduct a financial assessment.

Court of Appeals of Indiana | Opinion 49A02-1703-CR-622 | November 30, 2017 Page 2 of 10 Facts [4] In January 2017, following a jury trial, Polk was found guilty of Level 4 felony

unlawful possession of a firearm by a serious violent felon, Level 5 felony

possession of cocaine, and Level 6 felony resisting law enforcement.1

Thereafter, the trial court imposed an eight (8) year sentence for Polk’s Level 4

felony conviction, with four (4) years executed in the Indiana Department of

Correction, two (2) years executed on Community Corrections, two (2) years

suspended, and one (1) year of probation; a three (3) year sentence for his Level

5 felony conviction to be served concurrently to the eight-year sentence; and a

one (1) year sentence for his Level 6 felony conviction to be served

consecutively to his eight-year sentence. Thus, the trial court imposed an

aggregate nine-year sentence. When imposing this sentence, the trial court

found Polk to be “indigent as to fines and costs[,] . . . ordered a sliding scale for

Community Corrections[,] and order[ed] Probation to do a financial

assessment.” (Tr. Vol. 3 at 104).2

[5] During the sentencing hearing, the trial court made no comment about the

amount of probation fees that it was going to impose. Additionally, in its

1 Polk was found not guilty of Level 5 felony battery resulting in injury to a public safety officer, and the State dismissed a Class A misdemeanor criminal trespass charge during trial. Polk stipulated to having a prior felony in a bifurcated proceeding for the serious violent felon charge, and the trial court found him guilty of that charge. 2 Other parts of the record also reflect the trial court’s directive to the probation department to conduct a financial assessment. For example, the trial court’s written sentencing order, the chronological case summary (“CCS”), and the trial court’s Community Corrections order all indicate that “Probation shall conduct financial assessment.” (App. Vol. 2 at 7, 14, 119).

Court of Appeals of Indiana | Opinion 49A02-1703-CR-622 | November 30, 2017 Page 3 of 10 written sentencing order, the trial court did not impose probation fees. Instead,

the sentencing order, under the “Amount/Comment” section of “Part IV

Sentencing Conditions[,]” provided, in relevant part, that: Polk would be

subject to the “standard terms and condition[s]” of probation; “Probation shall

conduct financial assessment[;]” and the trial court was “assessing Court Costs

and Fees in the amount of $0.00[.]” (App. Vol. 2 at 7). The trial court’s

probation order was also silent on the specific amount of probation fees to be

imposed. The probation order contained a “Standard Condition” that Polk

would be required to “pay all Court-ordered fines, costs, fees and restitution as

directed.” (App. Vol. 2 at 126). Additionally, the order contained the

following information regarding “Special Conditions” and “Monetary

Conditions” of probation:

Court of Appeals of Indiana | Opinion 49A02-1703-CR-622 | November 30, 2017 Page 4 of 10 (App. Vol. 2 at 126) (blacked-out sections and blanks spaces in original).3 No

probation fees have been imposed in this case. Polk now appeals.

Decision [6] Polk challenges the trial court’s decision regarding probation fees. “Sentencing

decisions include decisions to impose fees and costs[,]” and “we review a trial

court’s sentencing decision for an abuse of discretion.” Coleman v. State, 61

N.E.3d 390, 392 (Ind. Ct. App. 2016). An abuse of discretion occurs “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. “‘If the fees imposed by the trial court

fall within the parameters provided by statute, we will not find an abuse of

discretion.’” Id. (quoting Berry v. State, 950 N.E.2d 798, 799 (Ind. Ct. App.

2011)).

[7] The statute governing probation, INDIANA CODE § 35-38-2-1, provides that

whenever a trial court places a person on probation, the court is required to,

among other things, “specify in the record the conditions of probation[.]” IND.

CODE § 35-38-2-1(a). “In addition, if the person was convicted of a felony and is

placed on probation, the court shall order the person to pay to the probation

department the user’s fee prescribed under subsection (d).” I.C. § 35-38-2-1(b)

3 We note that the probation order is a form order for Marion County.

Court of Appeals of Indiana | Opinion 49A02-1703-CR-622 | November 30, 2017 Page 5 of 10 (emphasis added).4 Subsection (d) sets forth a list of fees, including the

minimum and maximum amounts for an initial probation user’s fee and a

monthly probation user’s fee, that the trial “court shall order each person

convicted of a felony to pay[.]” I.C. § 35-38-2-1(d) (emphasis added).5

[8] “[I]t is the trial court, not the probation department, that has the discretion to

impose probation fees.” Burnett v. State, 74 N.E.3d 1221, 1227 (Ind. Ct. App.

2017). Instead, “‘the probation department . . . shall collect’” probation fees. De

La Cruz v. State, 80 N.E.3d 210, 214 (Ind. Ct. App. 2017) (quoting I.C. § 35-38-

2-1(f)) (emphasis added in De La Cruz). A probation department may, however,

petition a trial court to “impose” or “increase” a person’s probation user’s fee

4 In contrast, when the conviction at issue is a misdemeanor, the trial court has discretion to order probation fees. See I.C. § 35-38-2-1(b) (providing that “[i]f the person was convicted of a misdemeanor, the court may order the person to pay the user’s fee prescribed under subsection (e)”) (emphasis added). 5 Subsection (d) of INDIANA CODE § 35-38-2-1 provides as follows: In addition to any other conditions of probation, the court shall order each person convicted of a felony to pay: (1) not less than twenty-five dollars ($25) nor more than one hundred dollars ($100) as an initial probation user’s fee; (2) a monthly probation user’s fee of not less than fifteen dollars ($15) nor more than thirty dollars ($30) for each month that the person remains on probation; (3) the costs of the laboratory test or series of tests to detect and confirm the presence of the human immunodeficiency virus (HIV) antigen or antibodies to the human immunodeficiency virus (HIV) if such tests are required by the court under section 2.3 of this chapter; (4) an alcohol abuse deterrent fee and a medical fee set by the court under IC 9-30-9-8, if the court has referred the defendant to an alcohol abuse deterrent program; and (5) an administrative fee of one hundred dollars ($100); to either the probation department or the clerk. (Emphasis added).

Court of Appeals of Indiana | Opinion 49A02-1703-CR-622 | November 30, 2017 Page 6 of 10 “if the financial ability of the person to pay a probation user’s fee changes while

the person is on probation.” I.C. § 35-38-2-1.7(b).

[9] Polk argues that the trial court abused its discretion by ordering the probation

department to conduct a financial assessment. Polk asserts that the trial court’s

directive to the probation department to conduct a financial assessment was an

improper delegation of the trial court’s authority to impose probation fees. Polk

contends that his case is almost identical to De La Cruz, where we vacated

probation fees that were imposed by the probation department, and he requests

that we remand this case to the trial court to determine the amount of probation

fees and to hold an indigency hearing to determine his ability to pay.

[10] The State argues that Polk has failed to show that the trial court improperly

delegated its authority to impose probation fees to the probation department

because the record on appeal reveals that no probation fees have been imposed.

The State contends that “it was prudent for the trial court to not order probation

fees during sentencing and instead direct the probation department to later

conduct a financial assessment” because Polk’s “ability to pay probation fees

will not be fully known until he completes his period of incarceration and then

starts probation[.]” (State’s Br. 9). The State suggests that, at that time, the

probation department can use the financial assessment and petition for the trial

court to impose probation fees.

[11] Our caselaw has made it clear that it is “the trial court, not the probation

department, that has the discretion to impose probation fees.” Burnett, 74

Court of Appeals of Indiana | Opinion 49A02-1703-CR-622 | November 30, 2017 Page 7 of 10 N.E.3d at 1227. Indeed, we have recently remanded several probation fee cases

in which the trial court’s sentencing order and probation order had not imposed

probation fees but where the probation department had imposed probation fees

after sentencing. See, e.g., De La Cruz, 80 N.E.3d at 214 (vacating probation fees

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

statement imposing probation fees, shows the trial court’s intent not to impose

such fees”); Burnett, 74 N.E.3d at 1227 (vacating probation fees imposed by the

probation department after sentencing and remanding for further proceedings);

Coleman, 61 N.E.3d at 393-94 (vacating the probation fees imposed by the

probation department where the sentencing order did not list any such fees and

the probation order contained “ordered amount” sections that were either

blacked out or blank). Those cases all involved misdemeanor convictions,

statutory discretion for the trial court to impose probation fees, and an actual

imposition of probation fees that was improperly done by the probation

department instead of the trial court.6

[12] Here, it is clear, and the parties do not dispute, that the trial court did not

impose probation fees and that it ordered the probation department to conduct

a financial assessment. While the parties direct the focus of their arguments on

the meaning behind the trial court’s directive for the probation department to

conduct a financial assessment, we find that the more appropriate focus in this

6 We note that De La Cruz, Burnett, and Coleman originated from Marion County and involved the same probation order form.

Court of Appeals of Indiana | Opinion 49A02-1703-CR-622 | November 30, 2017 Page 8 of 10 case should be directed to the fact that the trial court placed Polk on probation

for a felony conviction, which required the trial court to impose probation fees.

[13] Here, Polk’s conviction was a felony conviction; therefore, the trial court was

statutorily mandated to impose probation fees. See I.C. § 35-38-2-1(b)

(providing that “if the person was convicted of a felony and is placed on

probation, the court shall order the person to pay to the probation department

the [probation] user’s fee prescribed under subsection (d)”); I.C. § 35-38-2-1(d)

(providing that the trial “court shall order each person convicted of a felony to

pay” fees, including an initial probation user’s fee, a monthly probation user’s

fee, and an administrative fee). Additionally, the record on appeal reveals that

there has been no imposition of probation fees, either by the trial court as

required by statute or incorrectly imposed by the probation department.

Because the trial court abused its discretion by failing to impose the statutorily-

mandated probation fees for Polk’s felony conviction, we remand to the trial

[14] On remand, the trial court will also be required to hold an indigency hearing.

See Johnson v. State, 27 N.E.3d 793, 795 (Ind. Ct. App. 2015) (explaining that a

trial court is required to hold an indigency hearing for probation fees); see also

I.C. § 33-37-2-3 (providing that a court must conduct an indigency hearing

when imposing costs); I.C. § 35-38-1-18 (providing that a court must conduct an

indigency hearing when imposing a fine). However, there is no requirement as

to when the indigency hearing must be held. See Johnson, 27 N.E.3d at 795. In

regard to probation fees, our Court has explained that “[a] trial court acts

Court of Appeals of Indiana | Opinion 49A02-1703-CR-622 | November 30, 2017 Page 9 of 10 within its authority when it chooses to wait and see if a defendant can pay

probation fees before it finds the defendant indigent.” Id. (citing I.C. ch. 35-38-

2). See also Whedon v. State, 765 N.E.2d 1276, 1279 (Ind. 2002) (explaining that

“a defendant’s financial resources are more appropriately determined not at the

time of initial sentencing but at the conclusion of incarceration, thus allowing

consideration of whether the defendant may have accumulated assets through

inheritance or otherwise”). “At the latest, an indigency hearing for probation

fees should be held at the time a defendant completes his sentence.” Johnson, 27

N.E.3d at 795. Therefore, because the trial court will be imposing probation

fees on remand, it will need to hold an indigency hearing, at the latest, at the

time that Polk completes his sentence, which in this instance includes executed

time at the Indiana Department of Correction and on Community Corrections.7

[15] Remanded.

Riley, J., and Robb, J., concur.

7 We note that indigency hearing would, alternatively, have to be held before the trial court could revoke probation revocation premised on a failure to pay fees. See Johnson, 27 N.E.3d at 795 n.1.

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