Case Information
*1 FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: TERESA L. CATALDO GREGORY F. ZOELLER Bristol, Indiana Attorney General of Indiana
ANN. L. GOODWIN Deputy Attorney General Indianapolis, Indiana IN THE
COURT OF APPEALS OF INDIANA
KEITH D. JACKSON, )
)
Appellant-Defendant, )
) vs. ) No. 20A03-1105-CR-222
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. ) APPEAL FROM THE ELKHART CIRCUIT COURT The Honorable Terry C. Shewmaker, Judge Cause No. 20C01-0910-FB-63 & 20C01-0412-FB-196 June 6, 2012
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Keith Jackson (Jackson), appeals his sentence for possession of a firearm by a serious violent felon, Ind. Code § 35-47-4-5(c), and the trial court's revocation of his probation and imposition of the bаlance of his suspended sentence in a separate, earlier Cause.
We reverse and remand.
ISSUES
Jackson raises three issues on appeal, which we restate as follows: (1) Whether the trial court abused its discretion by sentencing Jackson to community service;
(2) Whether the trial court abused its discretion by ordering Jaсkson to pay public defender fees of $500; and
(3) Whether the trial court abused its discretion by imposing the balance of Jackson’s suspended sentence following revocation of his probation in a separate Cause.
FACTS AND PROCEDURAL HISTORY On December 23, 2004, the State filed an Information in Cause Number 20C01- 0412-FB-00196 (Cause No. 196), chаrging Jackson with robbery using a deadly weapon, a Class B felony, I.C. § 35-42-5-1. On July 7, 2005, Jackson entered into a guilty plea with the State in which he pled guilty to the charge in exchange for a twelve-year *3 sentence at the Department of Correction (DOC), with four years suspended, and all other conditions left to the trial сourt’s discretion. On August 4, 2005, the trial court accepted the plea agreement and sentenced Jackson in accordance with its terms. Jackson was released from the DOC on April 12, 2009.
On October 28, 2009, the State filed an Information in Cause Number 20C01- 0910-FB-00063 (Cause No. 063), charging Jackson with unlawful possession of a firearm by а serious violent felon, a Class B felony, I.C. § 35-47-4-5(e). On October 29, 2009, the probation department filed its petition for violation of probation in Cause No. 196. The petition recommended that the trial court revoke Jackson’s probation and order him to serve the balance of his four-year suspended sеntence at the DOC.
On January 11, 2010, Jackson and the State filed a plea agreement with the trial court in Cause No. 063. Under the terms of the plea agreement, Jackson pled guilty to the charge in Cause No. 063 and admitted the probation violation in Cause No. 196. In exchange, the State agreed to the following:
[T]welve year incarceration with [six] of those [twelve] years suspended in [Cause No. 063]. [Two] years served (as one with good-time credit) in [Cause No. 196.] Discharged from probation in [Cause No. 196.] Case closed[.] Probation to calculate credit time in [Cause No. 063].
(Appellant’s App. p. 163). At the hearing on the plea agreement, the trial court accepted the plea agreement and agreed to be “bound by the terms of the plea agreement.” (January 11, 2011 Transcript p. 19). The trial court confirmed the terms of the plea agreement as to both Cause numbers and specifically notеd the two-year sentence, good time credit, and discharge from probation in Cause No. 196.
On February 3, 2011, the trial court held Jackson’s combined sentencing and sanctioning hearing. Jackson’s counsel explained to the trial court that the credit time provision of the plea agreement meant that Jackson’s 468 days of prior incarceration should be allotted as follows: 365 days to his probation violation in Cause No. 196 and 103 days in Cause No. 063. As a result, Jackson would be discharged from probation in Cause No. 196. The probation department would then be left to calculate the time in Cause No. 063, taking thе remaining 103 days into account.
The trial court agreed to allocate the credit time as suggested by Jackson’s counsel. The trial court then sentenced Jackson to a twelve-year executed sentence, with six years suspended on probation in Cause No. 063. The trial court imposed a finе of $7,000, which was also suspended. The trial court then questioned Jackson as follows:
[TRIAL COURT]: Are you able to work, Mr. Jackson?
[JACKSON]: Excuse me, sir?
[TRIAL COURT]: Are you able to work?
[JACKSON]: Yes, sir.
[TRIAL COURT]: So while on probation you could earn $500 to reimburse the county a reasonable sum for the public defender services. Correct?
[JACKSON]: Yes, sir.
[TRIAL COURT]: And perform 50 hours of community service restitution. You can do that also?
[JACKSON]: Yes, sir.
[TRIAL COURT]: It is so orderеd. [The c]ourt will also order the credit time allocated and calculated between [Cause No. 063] and [Cause No. 196]. Probation will file a memorandum with the [c]ourt. The [c]ourt will then issue an amendment to its sentencing order and abstract to include the correct credit time on each case. [Cause No. 196] he’s discharged from probation. Correct?
[STATE]: Correct.
[TRIAL COURT]: Correct?
[JACKSON’S COUNSEL]: Yes, your Honor.
(February 3, 2011 Tr. pp. 5-6).
On February 8, 2011, Jackson filed his handwritten motion to correct error with the trial court. Jackson alleged that the trial court had erred by imposing additional sanctions not specified in the plea agreement. On February 24, 2011, Jackson filed a letter with the trial cоurt elaborating on the allegations in his motion to correct error. Jackson disputed that the fifty hours of community service and reimbursement of $500 dollars in public defender fees were conditions of his plea agreement in Cause No. 063. Jackson also contended that he had not been afforded thе agreed upon credit time in Cause No. 196.
On February 25, 2011, the probation department submitted its credit time calculation memorandum to the trial court. The memorandum showed Jackson’s incarceration time prior to his conviction in Cause No. 063 as 473 days. However, the probation department conсluded that Jackson was “entitled to zero (0) days credit against the 4 year sentence imposed” in Cause No. 196 because “[Jackson] was incarcerated in the Elkhart County correctional facility under [Cause No. 196].” (Appellant’s App. p *6 52). On March 24, 2011, the trial court held a hearing. That same day, the trial court issued its order revoking Jackson’s probation in Cause No. 196 and ordering him to serve four years, with no days credited. In Cause No. 063, however, the trial court ordered that Jackson receive 473 days credit plus 473 days earned credit time.
On April 15, 2011, Jackson filed a motion to correct erroneous sentenсe in both Cause No. 063 and Cause No. 196. On April 18, 2011, the trial court denied Jackson’s motion to correct erroneous sentence, reasoning as follows:
The [c]ourt notes it has the inherant [ sic ] power to order restitution, whether financial or community service, and the [c]ourt also notes that attorneys were furnished to [Jackson] at public еxpense and [Jackson] agreed that he could work while on probation and earn $500.00 for reimbursement to the [p]ublic [d]efender for the [public defender’s] services.
(Appellant’s App. p. 153).
Jackson now appeals. Additional facts will be provided as necessary. DISCUSSION AND DECISION I. Community Service
Jackson first challenges the community service condition of his probation in Cause
No. 063 following his plea agreement with the State. The trial court has broad discretion
to impose conditions of probation.
Freije v. State
, 709 N.E.2d 323, 325 (Ind. 1999).
However, “[i]f the court accepts a plea agreement, it shall be bound by its terms.” I.C. §
35-35-3-3(e). Thus, when the trial court establishes terms of probation fоllowing its
acceptance of a plea agreement, its discretion is limited.
S.S. v. State
,
Although the trial court may impose administrative or ministerial conditions as
terms of probation, it may not impose probation conditions that constitute “substantial
obligations of a punitive nature” if the plea agreement “is silent to such punitive
conditions.”
Id
. Community service “materially add[s] to the punitive obligation” and
thus “may not be impоsed in the absence of a plea agreement provision giving the trial
court discretion to impose conditions of probation.”
Freije
,
Jackson argues that the imposition of community service is a material term not addressed in the plea agreement, and therefore the trial court erred by imрosing it. The State, although acknowledging the supreme court’s decision in Freije , nonetheless argues that Jackson invited the error by agreeing to perform the community service.
Here, Jackson’s plea agreement did not specify community service as a condition
of probation. Bearing in mind that plea agreements are to be strictly adhered to, we
cannot agree that the trial court may properly vary its terms to add a punitive obligation
simply by seeking the defendant’s verbal assent.
See Briscoe v. State
,
II. Public Defender Fees
Jackson next argues that the trial court’s imposition of public defender fees was an abuse of discretion. Specifically, Jackson alleges that the trial court erred by imposing a public defender fee of $500 since it was not part of his plea agreement and he had previously been found indigent. We review the trial court’s imposition of costs or fees for an abuse of discretion. Kimbrough v. State , 911 N.E.2d 621, 636 (Ind. Ct. App. 2009). If the trial court imposes fees within statutory limits, there is no abuse of discretion. Id .
We first observe that costs and fees are not a part of the defendant’s sentence and
are separate from fines.
See
I.C. §§ 33-37-1-3(b); 33-37-2-2; -5. Thus, although the plea
agreement did not provide for costs and fees, we do not agree that the trial court was
prohibited from imposing them, albeit within statutory restrictions.
See Brisco
, 783
N.E.2d at 791-92. Also, Jackson asserts his indigency as a bar to the $500 public
defender fee because the trial court had already made a finding that he was indigent and
had appointed trial counsel in Cause No. 063 as a result. It is true that this court has
reached different conclusions on whether appointment of trial сounsel based on indigence
is conclusive as to the defendant’s ability to pay fines or costs.
Compare Clenna v. State
,
*9
782 N.E.2d 1029, 1034 (Ind. Ct. App. 2003)
with Brisco
, 783 N.E.2d at 792-93.
However, later cases have concluded that appointment of counsel affords only a
presumption of indigency at the time of sentencing.
See McRoy v. State
,
We do not know, however, whether the trial cоurt attempted to adhere to statutory
restrictions because it did not identify the statutory basis for imposing the public defender
fees on Jackson. Three statutory provisions address the imposition of public defender
fees and the trial court can order reimbursement under any or a combination thereof.
May v. State
,
Second, if the trial court finds that the defendant has the ability to pay “the costs of
representation,” the trial court shall impose reasonable attorney fees “at any stаge” of a
felony or misdemeanor prosecution. I.C. § 33-40-3-6. In such case, the trial court must
consider certain enumerated factors to determine the defendant’s ability to pay.
Id
.; I.C.
§ 33-40-3-7. Finally, the trial court may impose part of the attorney fees upon a
convicted person, provided the trial court first determines that such person is not indigent.
*10
I.C. § 33-37-2-3. In the latter case, the trial court may suspend payment of fees until
completion of the executed portion of the defendant’s sentence, holding a hearing to
determine indigency thereafter.
Berry v. State
,
In
May v. State
, the defendant was ordered to reimburse the public dеfender fund
$750 following his conviction for a felony.
May
,
Here, the trial court did not specify the statutory authority under which it imposed
the $500 fee. Further, although the trial court asked Jackson if he could work, we cannot
say this constituted a sufficient inquiry into Jackson’s ability to pay.
See Lamonte v.
State
,
III. Discharge from Probation
Finally, Jackson disputes the trial court’s order requiring him to serve his four- year suspended sentence in Cause No. 193. Jackson directs us to language in the plea agreement specifically requiring a two-year sentence for the probation violation, rather than the originally suspended sentence of four years. The State agrees with Jackson that *11 the trial court committed error because the plea agreement called for a two-year rather than a four-year sentence. The State requests us to remand to the trial court for re- sentencing and re-issuing of an amended abstract of judgment.
Upon finding that a probation violation occurred, the trial court may order a defendant to continue оn probation, with or without modification of conditions, execute all or part of the defendant’s suspended sentence, or extend the duration of probation for up to an additional year in excess of the original probationary period ordered. See I.C. § 35-38-2-3(g)(1-3). If the parties enter into a plea agreement that calls for the trial court to treat a probation violation in a particular manner, once accepted, the trial court is thereby bound. See I.C. § 35-35-3-3(e).
Here, the express terms of the plea agreement indicated that Jackson should receive a two year exeсuted sentence, rather than the four-year suspended sentence originally imposed in Cause No. 196. After applying the time credit, the trial court was obligated to discharge Jackson from probation in Cause No. 196. Accordingly, the trial court committed error by imposing the suspended sentence of fоur years contrary to the accepted plea agreement. We therefore reverse and remand to the trial court to re- sentence Jackson in accordance with the plea agreement.
CONCLUSION
Based on the foregoing, we conclude that (1) the trial court abused its discretiоn by ordering Jackson to serve community service contrary to his plea agreement; (2) the trial court abused its discretion by ordering Jackson to pay public defender fees; and (3) *12 the trial court abused its discretion by ordering Jackson to serve his suspended sentence as a result of his probation viоlation. Accordingly, we reverse and remand.
Reversed and remanded with instructions.
NAJAM, J. and DARDEN, J. concur
Notes
[1] Jackson was also fined $7,000 by the trial court in Cause No. 063. The trial court, however, suspended payment of that fine and Jackson does not address its propriety on appeal. Because this issue is not properly before us, however, we do not address it.