Timothy Wellbaugh v. State of Indiana

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 11 2014, 10:09 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

SUZY ST. JOHN GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana

GRAHAM T. YOUNGS

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

TIMOTHY WELLBAUGH, )

)

Appellant-Defendant, )

)

vs. ) No. 49A02-1404-CR-271 )

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable David Cook, Judge The Honorable Patrick Murphy, Commissioner Cause No. 49F07-1401-CM-3147

December 11, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

Timothy Wellbaugh challenges the court’s order imposing a $50.00 public defender fee. We remand.

FACTS AND PROCEDURAL HISTORY On January 21, 2014, the State charged Wellbaugh with Class A misdemeanor resisting law enforcement.1 The court found Wellbaugh indigent. On finding Wellbaugh guilty, the court sentenced him to 180 days probation, eighty hours of community service work, and “no fines or costs.” (Tr. at 44.) However, when the sentence was entered into the Chronological Case Summary (CCS), it indicated the trial court assessed a $50.00 supplemental public defender fee. (App. at 8.)

DISCUSSION AND DECISION

Ind. Code § 35-33-7-6(a) provides a trial court must determine the indigency of a defendant and assign counsel if the defendant is indigent. Ind. Code § 35-33-7-6(c) determines the maximum fee to be paid by parties represented by the public defender’s office. Ind. Code § 33-37-2-3 addresses fees that may be assessed if a party is not indigent. Ind. Code § 33-40-3-6 states if the court “makes a finding of ability to pay the costs of representation,” the court can assess fees. Thus, a trial court must determine, prior to an assessment of public defender fees, indigency or whether the party has the ability to pay the costs of representation.

The State concedes the trial court did not assess Wellbaugh’s ability to pay fees. We agree and remand so the trial court may assess Wellbaugh’s ability, if any, to pay the public

1 Ind. Code § 35-44.1-3-1 (2013).

3

defender fee.

Remanded.

BARNES, J., and PYLE, J., concur.