Timothy Wellbaugh v. State of Indiana ( 2014 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Dec 11 2014, 10:09 am
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.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUZY ST. JOHN GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
GRAHAM T. YOUNGS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TIMOTHY WELLBAUGH, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1404-CR-271
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David Cook, Judge
The Honorable Patrick Murphy, Commissioner
Cause No. 49F07-1401-CM-3147
December 11, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Timothy Wellbaugh challenges the court’s order imposing a $50.00 public defender
fee. We remand.
FACTS AND PROCEDURAL HISTORY
On January 21, 2014, the State charged Wellbaugh with Class A misdemeanor
resisting law enforcement.1 The court found Wellbaugh indigent. On finding Wellbaugh
guilty, the court sentenced him to 180 days probation, eighty hours of community service
work, and “no fines or costs.” (Tr. at 44.) However, when the sentence was entered into the
Chronological Case Summary (CCS), it indicated the trial court assessed a $50.00
supplemental public defender fee. (App. at 8.)
DISCUSSION AND DECISION
Ind. Code § 35-33-7-6(a) provides a trial court must determine the indigency of a
defendant and assign counsel if the defendant is indigent. Ind. Code § 35-33-7-6(c)
determines the maximum fee to be paid by parties represented by the public defender’s
office. Ind. Code § 33-37-2-3 addresses fees that may be assessed if a party is not indigent.
Ind. Code § 33-40-3-6 states if the court “makes a finding of ability to pay the costs of
representation,” the court can assess fees. Thus, a trial court must determine, prior to an
assessment of public defender fees, indigency or whether the party has the ability to pay the
costs of representation.
The State concedes the trial court did not assess Wellbaugh’s ability to pay fees. We
agree and remand so the trial court may assess Wellbaugh’s ability, if any, to pay the public
1
Ind. Code § 35-44.1-3-1 (2013).
2
defender fee.
Remanded.
BARNES, J., and PYLE, J., concur.
3