Matthew Wininger v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 7, 2017
• Docket: 14A05-1701-CR-200
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jul 07 2017, 6:50 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Victoria L. Bailey Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Matthew Wininger, July 7, 2017 Appellant-Respondent, Court of Appeals Case No. 14A05-1701-CR-200 v. Appeal from the Daviess Superior Court State of Indiana, The Honorable Dean A. Sobecki, Appellee-Plaintiff. Judge Trial Court Cause No. 14D01-1510-F6-1343

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 14A05-1701-CR-200 | July 7, 2017 Page 1 of 4 Case Summary [1] Following a jury trial, Matthew Wininger (“Wininger”) was convicted of

Operating a Vehicle as a Habitual Traffic Violator, as a Level 6 felony.1 His sole

contention on appeal is that the trial court abused its discretion when it ordered

him to pay a public defender fee of $100.

[2] We affirm in part and reverse in part.

Facts and Procedural History [3] Wininger was charged with one count of Operating a Vehicle as a Habitual

Traffic Violator, and an initial hearing was held on December 14, 2015. At the

hearing, Wininger stated that appointed counsel was representing him in

another criminal matter. The trial court took judicial notice of the previous

appointment of counsel, and appointed the same counsel to represent Wininger.

[4] A jury trial was held on November 15, 2016, and Wininger was found guilty as

charged. Wininger received a sentence of two and one-half years, and was

ordered to pay court costs. The trial court also imposed a $100 fine suspended

on the condition that Wininger pay $100 to the Daviess County Supplemental

Public Defender’s Fee Fund. The trial court offered to appoint a public

defender to represent Wininger on appeal, and later appointed counsel.

1 Ind. Code § 9-30-10-16(a)(1).

Court of Appeals of Indiana | Memorandum Decision 14A05-1701-CR-200 | July 7, 2017 Page 2 of 4 [5] This appeal ensued.

Discussion and Decision [6] Wininger argues, and the State concedes, that the trial court erred when it

imposed a public defender fee without evaluating Wininger’s ability to pay.

[7] “Sentencing decisions, including decisions to impose restitution, fines, costs, or

fees, are generally left to the trial court’s discretion.” Kimbrough v. State, 911

N.E.2d 621, 636 (Ind. Ct. App. 2009). An abuse of discretion occurs if the

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. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g.

“If the trial court imposes fees within the statutory limits, there is no abuse of

discretion.” Kimbrough, 911 N.E.2d at 636.

[8] Here, the trial court did not identify a statutory basis for imposing a public

defender fee. Nonetheless, three different statutes authorize the imposition of

public defender fees, all of which require at least some inquiry into the

defendant’s financial circumstances. See I.C. § 35-33-7-6(c) (requiring a

“find[ing] that the person is able to pay part of the cost of representation”); I.C.

§ 33-40-3-6(a) (requiring a “finding of ability to pay the costs of

representation”); I.C. § 33-37-2-3(e) (requiring a hearing on indigency and a

“determin[ation] that a convicted person is able to pay part of the costs of

representation”); see also Jackson v. State, 968 N.E.2d 328, 333-34 (Ind. Ct. App.

Court of Appeals of Indiana | Memorandum Decision 14A05-1701-CR-200 | July 7, 2017 Page 3 of 4 2012) (discussing the three statutes). Moreover, even where a trial court does

not impose a public defender fee but instead imposes only a fine, the trial court

must at some point conduct a hearing to determine whether the convicted

person is indigent. See I.C. § 35-38-1-18(a) (requiring a hearing “whenever the

court imposes a fine”); I.C. § 35-38-1-18(b) (in the case of a suspended fine,

requiring a hearing “at the time the fine is due”).

[9] In the instant case, the trial court erred when it imposed the public defender fee

without considering Wininger’s ability to pay. We therefore reverse that

portion of the sentencing order imposing this fee. We affirm the judgment of

the trial court in all other respects.

Conclusion [10] The trial court erred when it imposed the public defender fee without an

indigency hearing.

[11] Affirmed in part and reversed in part.

Vaidik, C.J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 14A05-1701-CR-200 | July 7, 2017 Page 4 of 4