Kimberley Kennebrew v. State of Indiana (mem. dec.)
49A02-1701-CR-1
| Ind. Ct. App. | Oct 2, 2017Background
- Kimberley Kennebrew was charged with two counts of Class A misdemeanor battery and convicted by jury on December 12, 2016.
- The trial court initially imposed a 365-day sentence and $183 in court costs. On December 15, 2016, the court found Kennebrew indigent for court costs and probation fees.
- On March 7, 2017, at a restitution hearing the court issued an amended sentencing order merging Count II into Count I.
- The amended order (entered after the restitution hearing) added a $50 public defender fee, although the fee was never discussed at any hearing and no finding supporting the fee was made on the record.
- Kennebrew appealed; the State concedes the fee was improperly imposed without a hearing and the Court of Appeals reversed the fee imposition and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly imposed a $50 public defender fee post-conviction without a hearing or on-record findings | State does not defend fee; concedes abuse of discretion | Kennebrew argues fee was imposed without statutory procedure or hearing and must be vacated | Court: Imposition without a hearing is an abuse of discretion; reverse the fee and remand for statutory-compliant proceedings |
| Appropriate remedy for an improperly imposed public defender fee (vacate vs. remand) | State requests remand for further proceedings to determine if fee can be justified | Kennebrew asks the court to simply vacate the fee | Court adopts remand approach (follow Jackson): reverse in part and remand with instructions to observe statutory requirements if fee is to be imposed |
Key Cases Cited
- Jackson v. State, 968 N.E.2d 328 (Ind. Ct. App. 2012) (remand required where public defender fee imposed without statutory procedure)
- Kimbrough v. State, 911 N.E.2d 621 (Ind. Ct. App. 2009) (standard for reviewing imposition of fees is abuse of discretion)
- Langdon v. State, 71 N.E.3d 1162 (Ind. Ct. App. 2017) (describing statutory bases for public defender fees)