Case Information
*1 MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
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.
A TTORNEY FOR A PPELLANT A TTORNEYS FOR A PPELLEE Suzy St. John Curtis T. Hill, Jr.
Marion County Public Defender Attorney General of Indiana Appellate Division Katherine Cooper Indianapolis, IN Deputy Attorney General
Indianapolis, IN I N T H E
COURT OF APPEALS OF INDIANA John Amos, September 29, 2017 Court of Appeals Case No. Appellant-Defendant,
49A02-1703-CR-517 v. Appeal from the Marion Superior Court, Criminal Division 16 State of Indiana, The Honorable Patrick Murphy, Magistrate Appellee-Plaintiff
Trial Court Cause Nos. 49G16-1607-F6-020081 49G17-1610-CM-042384
Vaidik, Chief Judge.
Case Summary
[1] John Amos was convicted of multiple misdemeanors and sentenced to
probation. At his sentencing hearing the trial court stated that it was not going to impose any costs or fines to him, and the written order reflects this statement. The court then sentenced Amos to probation but made no comment regarding probation fees. After sentencing, the probation department sought clarification on the court’s
order and sent a letter to the court asking whether administrative and probation- user fees should be imposed on Amos. Th e court “approved” the memorandum sent by the probation department, and $340 in fees were charged to Amos. The State concedes that the probation department’s letter to the court was not a petition for fees, as required by Indiana statute, and requests that we remand. Thus, we vacate the order charging administrative and probation-user fees and remand for further proceedings.
Facts and Procedural History At the conclusion of Amos’s bench trial where he was found guilty of invasion
of privacy, the trial court sentenced him to one year, all suspended to probation. During sentencing, t he trial court stated, “Again, I’m not go ing to impose any *3 fine or cost.” Cause No. 28001 Tr. Vol. II p. 28. [1] The court did not make any comment regarding probation fees. No court costs or fees were entered on the written sentencing orders. However,
in a section titled “Monetary Conditions” on the written order of probation, the tria l court wrote, “Pursuant to Indiana Statute the minimum fee allowed by law shall be imposed.” Appellant’s App. Vol. II p. 84. The order also contains a table for setting the monetary obligations of probation. That section of Amos’s order provides:
Id. (blacked-out sections and blank spaces in original).
*4 [5] On February 23, the Marion County Probation Department filed a notice with
the trial court that Amos was “eligible to be assessed” $340 in probation fees ( a $50 administrative fee, a $50 initial probation-user fee, and a $20 per month probation- user fee for twelve months). Appellant’s App. Vol. II p. 92. The department sought “clarification a s to if the Court wish[ed] to have these fees assessed” against Amos. Id. Four days later the trial court issued an “Order on Memorandum of Probation” and “approved” the pr obation department’s memorandum. Id. at 93. Thereafter, $340 in probation fees were charged to Amos. Amos now appeals.
Discussion and Decision Amos argues, and the State agrees, that the memorandum sent by the probation
department did not constitute a petition to have administrative or probation fees imposed on Amos. We agree. Indiana Code section 35-38-2-1 states that if a defendant is “convicted of a misdemeanor, the court may order the person to pay the user’s fee pr escribed under subsection (e).” Ind. Code § 35-38-2-1(b). Subsection (e) details the maximum amount the court may order a person to pay for probation fees, including the administrative fee and the probation-user fee. The probation department may petition the trial court to impose or increase a defendant’ s probation-user fee if the defendant’s financial ability to pay has changed while he is on probation. Ind. Code § 35-38-2-1.7(b). At sentencing, t he trial court explicitly stated, “Again, I’m not going to impose any fine or cost.” Cause No. 28001 Tr. Vol. II. p. 28. This was reflected in its written sentencing orders when it imposed no court costs or fines. The trial court was silent on the issue of probation fees, despite sentencing Amos to probation. In the written probation order, the court blacked out or left blank each row under the column “ordered amount . ” Yet, two weeks after the sentencing he aring, the court “approved” $340 in administrative and probation- user fees based on a clarification request from the probation department. The State concedes that this request was not a petition to impose probation fees and asks us to remand. Accordingly, we vacate the order imposing $340 in administrative and probation-user fees and remand to the trial court to clarify what, if any, probation fees will be imposed on Amos, including the category of fee(s) and the amount. [2] Vacated and remanded with instructions.
Mathias, J., and Crone, J., concur.
[1] Amos had two separate bench trials on February 13, Cause Nos. 49G16-1607-F6-28001 and 49G16-1610- CM-42384. The sentencing transcript is included with the transcript for the cause number ending in 28001.
[2] Amos also argues that if the trial court orders probation fees, it must conduct an indigency hearing at the time the fees are imposed. Amos relies on Indiana Code section 33-37-2-3 to support his argument. This statute states, “[W]hen the court imposes c osts, it shall conduct a hearing to determine whether the convicted person is indigent.” Ind. Code § 33 -37-2-3(a). But the statute does not dictate when this hearing is to occur. If the State seeks to revoke a defendant’s pro bation for failure to pay costs and/or fees, the trial court must hold the indigency hearing before revoking probation. Johnson v. State , 27 N.E.2d 793, 795 n.1 (Ind. Ct. App. 2015); see also 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.”).