FILED
                                                               Sep 21 2016, 8:01 am

                                                                   CLERK
                                                               Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Suzy St. John                                              Gregory F. Zoeller
      Marion County Public Defender                              Attorney General of Indiana
      Indianapolis, Indiana                                      Paula J. Beller
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Andre C. Coleman,                                          September 21, 2016
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A02-1511-CR-1999
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Allan W. Reid,
      Appellee-Plaintiff                                         Commissioner
                                                                 The Honorable Linda E. Brown,
                                                                 Judge
                                                                 Trial Court Cause No.
                                                                 49G10-1506-CM-20752



      Mathias, Judge.


[1]   Following a bench trial in Marion Superior Court, Andre Coleman

      (“Coleman”) was convicted of Class B misdemeanor public intoxication. He

      was ordered to serve 365 days in jail with 363 days suspended to probation.


      Court of Appeals of Indiana | Opinion 49A02-1511-CR-1999 | September 21, 2016            Page 1 of 9
      Coleman presents two issues on appeal, which we restate as whether the trial

      court abused its discretion in imposing a supplemental public defender fee,

      probation fees, and a drug and alcohol treatment fee.


[2]   We vacate the imposition of the supplemental public defender and probation

      fees and remand for proceedings consistent with this opinion.

                                       Facts and Procedural History

[3]   At approximately 1:20 a.m. on June 13, 2015, Indianapolis Airport Police

      Officer Julianna Matthews (“Officer Matthews”) was out on patrol when she

      noticed a car parked in the shoulder along the airport’s North Access Road.

      Officer Matthews was concerned because the car was protruding about two or

      three feet into the roadway, so she stopped to investigate. As she approached

      the car and knocked on its window, Officer Matthews encountered Coleman in

      the driver’s seat, who appeared to have been asleep. Coleman rolled down the

      window and spoke slowly to Officer Matthews. He was unable to keep his eyes

      open or his head still. Coleman admitted to drinking a “couple of beers” but

      stated that he was not intoxicated. Tr. p. 7. Based on this behavior, Officer

      Matthews believed that Coleman was under the influence and proceeded to

      conduct standardized field sobriety tests after Officer Tyler Frankel (“Officer

      Frankel”) arrived at the scene.


[4]   Coleman attempted to complete the first test but failed. Officer Matthews tried

      to administer two more sobriety tests, but Coleman failed because he refused to

      complete either test. Officer Matthews then arrested Coleman for public


      Court of Appeals of Indiana | Opinion 49A02-1511-CR-1999 | September 21, 2016   Page 2 of 9
      intoxication and due to an active warrant in an unrelated case. Appellant’s

      App. p. 12.

[5]   On June 13, 2015, the State charged Coleman with two counts of Class B

      misdemeanor public intoxication. That same day, the trial court held an initial

      hearing and found Coleman to be indigent. After a thorough examination of

      Coleman’s financial situation, the court appointed an attorney at public expense

      with no reimbursement requirement. Appellant’s App. p. 17.


[6]   On September 21, 2015, a bench trial was held, and the trial court took the issue

      under advisement. The trial court found Coleman guilty on both counts and

      merged Count II into Count I on October 5, 2015. On September 26, 2015, the

      trial court held a sentencing hearing and ordered Coleman to serve 365 days in

      jail with 363 days suspended to probation and to take an alcohol and drug

      treatment class. Upon Coleman’s completion of the class, his probation would

      become non-reporting. At the sentencing hearing, the trial court found Coleman

      indigent as to fines and costs. Tr. p. 34. Coleman asked the court if he had to

      pay for the alcohol and drug treatment class to which the court responded,

      “Yes, yeah.” Tr. p. 33. However, the court never inquired about Coleman’s

      financial situation at this time.


[7]   The trial court’s sentencing order also did not list a public defender fee or any

      other court costs or fees. Appellant’s App. p. 11. Although the sentencing order

      indicated that Coleman was required to participate in alcohol and drug

      treatment as part of his sentence, his total monetary obligation totaled $0. Id.


      Court of Appeals of Indiana | Opinion 49A02-1511-CR-1999 | September 21, 2016   Page 3 of 9
      The order of probation also indicated that Coleman was required to complete

      an alcohol and drug treatment program.1 However, the order of probation did

      not designate an amount owed for probation user fees. Appellant’s App. p. 27.


[8]   One day after sentencing, Coleman was charged $640 in court fees, which

      included a $50 supplemental public defender fee. The case transaction showed a

      breakdown of all of the fees including: a $250 alcohol and drug service program

      user fee, a $50 adult probation administrative fee, a $50 supplemental public

      defender fee, and a $2902 adult probation user fee. On April 22, 2016,

      Coleman’s balance remained at $640. Coleman now appeals.

                                                 Standard of Review

[9]   Sentencing decisions include decisions to impose fees and costs. Johnson v. State,

      27 N.E.3d 793, 794 (Ind. Ct. App. 2015). We review a trial court’s sentencing

      decision for an abuse of discretion. 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. (quotations omitted). “If the fees imposed by the trial court fall




      1
        The order of probation listed the alcohol and drug services program fee for a Class A misdemeanor as $250
      and for a Class B or C misdemeanor as $150. However, like many other categories on the order of probation,
      the amount owed section is blacked out. Appellant’s App. p. 27.
      2
          This fee included twelve months of probation fees at $20 and a $50 administrative fee.

      Court of Appeals of Indiana | Opinion 49A02-1511-CR-1999 | September 21, 2016                   Page 4 of 9
       within the parameters provided by statute, we will not find an abuse of

       discretion.” Berry v. State, 950 N.E.2d 798, 799 (Ind. Ct. App. 2011).

                                              I. Public Defender Fee

[10]   Coleman argues that the trial court abused its discretion in imposing a $50

       supplemental public defender fee without statutory authorization. However, the

       record does not support that the trial court even imposed this fee.


[11]   At the time of the initial hearing, the trial court granted Coleman’s petition for

       appointment of counsel which stated, “[n]o reimbursement required.”

       Appellant’s App. p. 17. At the sentencing hearing, the trial court stated,

       “[Coleman] had no fines and costs.” Tr. p. 34. The CCS also indicated that

       Coleman was found indigent to fines and costs. Appellant’s App. p. 9. Further,

       both the order of probation3 and the sentencing order do not reflect that

       Coleman owed a supplemental public defender fee. Appellant’s App. pp. 10-11,

       27. Even so, Coleman was charged with a $50 supplemental public defender fee

       in his case transaction summary. Appellant’s App. 28. This appears to be an

       error on the part of the probation department. Although Coleman argues that

       the trial court erred in imposing a supplemental public defender fee, it did not

       do so in its either its sentencing order or order of probation. See Appellant’s




       3
        Portions of the order of probation are blacked out, including the public defender fee among other fees that
       Coleman was charged in his case transaction summary. Coleman’s signature also does not appear on the
       order of probation. See Appellant’s App. p. 27.

       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1999 | September 21, 2016                      Page 5 of 9
       App. pp. 10-11, 27. Therefore, we conclude that the supplemental public

       defender fee was not properly imposed on Coleman, and we vacate it.

                                               II. Probation Fees

[12]   Coleman further asserts that the trial court abused its discretion in imposing

       probation fees when it did not conduct an indigency hearing. When a defendant

       is convicted of a misdemeanor, the trial court has discretion in imposing

       probation fees:

               In addition to any other conditions of probation, the court may
               order each person convicted of a misdemeanor to pay:


               (1) not more than a fifty dollar ($50) initial probation user’s fee;


               (2) a monthly probation user’s fee of not less than ten dollars
               ($10) nor more than twenty dollars ($20) for each month that the
               person remains on probation;


               (3) the costs of the laboratory test or series of tests to detect and
               confirm the presence of human immunodeficiency virus (HIV)
               antigen or antibodies to the human immunodeficiency virus
               (HIV) if such tests are required by the court under section 2.3 of
               this chapter; and


               (3) an administrative fee of fifty dollars ($50).


       Ind. Code § 35-38-2-1(e) (emphasis added). Under Indiana Code section

       35-38-2-1.7(b):




       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1999 | September 21, 2016   Page 6 of 9
                A probation department may petition a court to: (1) impose a
                probation user’s fee on a person; or (2) increase a person’s
                probation user’s fee; under section 1 or 1.5 of this chapter if the
                financial ability of the person to pay a probation user’s fee
                changes while the person is on probation.


[13]   Further, the trial court must conduct an indigency hearing when it imposes

       fines or costs as part of a defendant’s sentence. Johnson, 27 N.E.3d at 794-95; see

       also Ind. Code § 33-37-2-3(a). However, no specific requirement indicates when

       the hearing must be held as long as the hearing is held before the sentence is

       completed. Johnson, 27 N.E.3d at 794-95.


[14]   In its order of probation, the trial court did not designate the fees that later

       appeared on Coleman’s case transaction summary.4 These monetary obligations

       were listed as standard categories on the order of probation, but the ordered

       amount sections were blacked out with the exception of the “fine,” “safe school

       fee,” and “sexual assault fee.” Each of these categories appeared to have

       ordered amounts of “0.” The fees in the case transaction summary were within

       the trial court’s discretion to impose under Indiana Code section 35-38-2-1(e).5

       Further, at the sentencing hearing, the trial court stated that Coleman had no

       fines or costs but did not hold an indigency hearing. Tr. p. 34.




       4
        This does not include the supplemental public defender fee or the alcohol and drug services fee, as these fees
       are addressed in previous and subsequent sections of this opinion.
       5
        We acknowledge that the probation department could have petitioned the trial court to impose these fees,
       but the record contains no evidence of this.

       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1999 | September 21, 2016                      Page 7 of 9
[15]   Again, based on the record, we cannot conclude that the trial court imposed

       these probation fees. Because the trial court stated at the sentencing hearing that

       Coleman would be found indigent as to a fines and costs, and the order of

       probation contained blacked out portions, we vacate Coleman’s probation fees

       and remand to the trial court to hold an indigency hearing.6

                                  III. Drug and Alcohol Treatment Fee

[16]   Coleman asserts that the trial court abused its discretion in imposing a $250

       alcohol and drug services fee when he was convicted of a Class B misdemeanor.

       The State concedes that this was an error. The order of probation lists the fee

       for alcohol and drug services as $250 for a Class A misdemeanor and $150 for a

       Class B or Class C misdemeanor. Because this was a fee listed on the order of

       probation that we concluded was not imposed by the trial court, we vacate the

       fee pending an indigency hearing. If the trial court determines after an

       indigency hearing that Coleman is not indigent and able to pay the probation

       fees, we instruct the trial court correct the order to reflect that Coleman owes

       $150 for the alcohol and drug services fee to correspond with his Class B

       misdemeanor conviction.

                                                    Conclusion

[17]   Based on the record, we conclude that the trial court did not impose a

       supplemental public defender fee or any of the other probation fees reflected on



       6
        We note that the indigency hearing does not have to be held until Coleman completes his probation
       sentence. See Johnson, 27 N.E.3d at 794-95.

       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1999 | September 21, 2016                  Page 8 of 9
       Coleman’s case transaction summary. The imposition of these fees appears to

       be an error by the probation department. We therefore vacate these fees and

       remand to the trial court to hold an indigency hearing. Further, if the trial court

       concludes that Coleman is not indigent, it should order Coleman to pay a $150

       alcohol and drug services fee.


[18]   Vacated and remanded for proceedings consistent with this opinion.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1999 | September 21, 2016   Page 9 of 9