Case Information
*1 A TTORNEY FOR A PPELLANT A TTORNEYS FOR A PPELLEE
Suzy St. John Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana Kenneth E. Biggins
Deputy Attorney General Indianapolis, Indiana I N T H E COURT OF APPEALS OF INDIANA Demand Johnson, March 6, 2015 Court of Appeals Case No.
Appellant-Defendant, 49A02-1406-CR-437 v. Appeal from the Marion Superior Court. The Honorable Amy Jones, Judge.
State of Indiana, Cause No. 49F08-1402-CM-9023
Appellee-Plaintiff
Baker, Judge.
[1] Demand Johnson appeals the trial court’s order that he pay $340 for probation
fees. Specifically, Johnson argues that the trial court abused its discretion when
it ordered him to pay probation fees without first conducting an indigency
hearing. We find no requirement that a trial court should conduct an indigency
hearing at the time probation fees are ordered. Nevertheless, the trial court has
a duty to conduct an indigency hearing before or upon the completion of a
defendant’s sentence. Additionally, probation fees should reflect the time a
defendant actually served on probation. Therefore, we remand to the trial court
to conduct an indigency hearing upon the completion of Johnson’s sentence
and to reassess probation fees relative to the time that Johnson served on
probation.
Facts Johnson was found guilty of Carrying a Handgun Without a License, a Class A
misdemeanor, and Possessing Alcohol as a Minor, a Class C misdemeanor. On
May 28, 2014, Johnson was sentenced to 365 days in prison, with 361 days
suspended to probation. The trial court found that Johnson was indigent to
court costs and other fees. However, as a condition of his probation, Johnson
was ordered to pay a probation administration fee of $50 and a probation user
fee of $290. The trial court ordered a sliding fee scale for the probation fees, but
delayed making an indigency determination until more information regarding
Johnson’s financial situation came to light. The probation fees reflected the
total sum that Johnson was required to pay for the twelve months he was to
serve on probation. On October 21, 2014, Johnson admitted to violating the
terms of his probation by failing to report to the Probation Department as
directed and by failing to obtain/maintain full-time employment. Appellant’s
App. p. 33-35. On October 24, 2014, Johnson again violated the terms of his
probation when he was arrested and charged with Criminal Trespass. Id. at 36-
37. Following these violations, Johnson’s probation was revoked by the trial
court on November 7, 2014. Id. at 38. Thus, Johnson served approximately
five months’ probation before revocation. Id. at 38. Johnson has yet to pay any
amount towards the probation fees. It is unclear from the record whether
Johnson has completed his sentence. Johnson now appeals.
Discussion and Decision [3] Sentencing decisions include decisions to impose fees and costs. Berry v. State ,
950 N.E.2d 798, 799 (Ind. Ct. App. 2011). A trial court’s sentencing decisions
are reviewed under an abuse of discretion standard. McElroy v. State , 865
N.E.2d 584, 588 (Ind. 2007). “An abuse of discretion has occurred 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. at 588 ( quoting K.S. v. State , 849 N.E.2d
538, 544 (Ind. 2006)). “If the fees imposed by the trial court fall within the
parameters provided by statute, we will not find an abuse of discretion.” Berry ,
950 N.E.2d at 799. Johnson argues that the trial court abused its discretion when it ordered him to
pay $340 in probation fees without first conducting an indigency hearing.
Johnson rightly asserts that, under Indiana Code section 33-37-2-3, if a trial
court imposes costs on a defendant, a trial court is required to conduct an
indigency hearing. However, “the statute does not otherwise dictate when the
hearing is to be held.” Berry , 950 N.E.2d at 802; Ind. Code § 33-37-2-3. A trial
court acts within its authority when it chooses to wait and see if a defendant can
pay probation fees before it finds the defendant indigent. See Ind. Code ch. 35-
38-2 (no language in this chapter requires the trial court to conduct an
indigency hearing before or directly after ordering probation fees). That being
said, the trial court has a duty to conduct an indigency hearing at some point in
time. I.C. § 33-37-2-3. At the latest, an indigency hearing for probation fees
should be held at the time a defendant completes his sentence. [1] Consequently,
in this case, on the completion of Johnson’s sentence, the trial court should
conduct an indigency hearing to assess Johnson’s ability to pay probation fees. Also, the trial court ordered Johnson to pay probation fees of $340 for twelve
months’ probation. However, the trial court revoked Johnson’s probation after
he had served approximately five months. Appellant’s App. p. 38. Since the
$340 in probation fees reflected a twelve-month probation and Johnson served
only five of those months, the trial court should recalculate Johnson’s probation
*5 fees, if appropriate, to correspond with the probation time Johnson actually
served. I.C. § 35-38-2-1(e). The judgment of the trial court is remanded to conduct an indigency hearing on
the completion of Johnson’s sentence, whereupon, the trial court shall also
recalculate the amount of probation fees owed, if any.
Vaidik, C.J., and Riley, J., concur.
[1] However, if revocation of probation is a result of a defendant’s failure to pay fees and/or costs, the trial court has a duty to conduct an indigency hearing before revoking probation. Whedon v. State , 765 N.E.2d 1276, 1279 (Ind. 2002) (“. . . [W]hen fines or costs are imposed upon an indigent defendant, such a person may not be imprisoned for failure to pay the fines or costs.”). However, Johnson’s probation was not revoked for failure to pay fees and/or costs; thus, an indigency hearing was not required when his probation was revoked.