Wendy Burnett v. State of Indiana
2017 Ind. App. LEXIS 168
| Ind. Ct. App. | 2017Background
- On Aug. 18, 2015, Wendy Burnett was a passenger in a Chevrolet Impala involved in a collision; she re-entered the vehicle and later drove past the scene where police were investigating.
- Officers who stopped the vehicle observed signs of intoxication (alcohol odor, glassy/red eyes, slow/slurred speech); Burnett refused portable and certified chemical tests.
- Burnett told officers she had consumed about three beers and, in a jail phone call, described dozing off, waking to the crash, then driving away.
- The State charged Burnett with Class A misdemeanor Operating a Vehicle While Intoxicated (OWI) Endangering a Person and two counts of leaving the scene (Class B).
- At a bench trial, the court convicted Burnett of OWI Endangering a Person but acquitted on leaving-the-scene counts; sentenced to 365 days with most suspended to probation and ordered various fees.
- The probation department later assessed additional probation fees; Burnett appealed, challenging sufficiency of evidence for the Class A conviction, the lack of an indigency hearing, and the probation-fee imposition process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for OWI Endangering a Person | State relied on Burnett’s intoxication after the crash and that she drove post-crash, arguing endangerment was established | Burnett argued there was no evidence she operated the vehicle in a manner that endangered anyone; she likely wasn’t driving at time of collision | Reversed Class A conviction for endangerment; evidence insufficient for endangering element but sufficient for lesser-included OWI (Class C) |
| Entry of conviction on lesser-included offense after reversal | State implicitly opposed reducing offense | Burnett sought conviction reduction to simple OWI if endangerment element failed | Court instructed entry of judgment for Class C OWI and resentencing |
| Imposition of probation fees by probation department | State argued probation’s assessed fees fit statutory ranges and reflected trial court intent that Burnett pay standard probation fees | Burnett argued trial court never expressly imposed probation fees; probation unlawfully imposed fees without petition or showing changed financial ability | Vacated probation fees and remanded; fees cannot be imposed by probation department without trial-court order or petition showing changed ability to pay |
| Indigency hearing before imposing costs/fees | State claimed court’s brief inquiry and evidence (employment as nurse) sufficed | Burnett argued court failed to conduct adequate indigency hearing to assess ability to pay | Court held the single-question inquiry was insufficient here; trial court must conduct meaningful indigency hearing when imposing fees (no later than completion of sentence) |
Key Cases Cited
- Gray v. State, 957 N.E.2d 171 (Ind. 2011) (standard for reviewing sufficiency of the evidence)
- Bailey v. State, 907 N.E.2d 1003 (Ind. 2009) (affirming conviction if reasonable inferences support guilt beyond a reasonable doubt)
- Dorsett v. State, 921 N.E.2d 529 (Ind. Ct. App. 2010) (endangerment requires more than intoxication; endangerment may be shown as exposing any person to risk)
- Chatham v. State, 845 N.E.2d 203 (Ind. Ct. App. 2006) (remand with instruction to enter judgment on lesser-included offense when appropriate)
- Coleman v. State, 61 N.E.3d 390 (Ind. Ct. App. 2016) (vacating probation fees imposed by probation department where trial court had not ordered them)
- Johnson v. State, 27 N.E.3d 793 (Ind. Ct. App. 2015) (trial court must conduct indigency hearing at some point; indigency hearing for probation fees should occur no later than sentence completion)