Jaron C. Gibbs v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 28 2017, 8:12 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Suzy St. John Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jaron C. Gibbs, February 28, 2017
Appellant-Defendant, Court of Appeals Case No.
49A05-1606-CR-1336
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Christina R.
Appellee-Plaintiff Klineman, Judge
Trial Court Cause No.
49G17-1504-CM-12284
Baker, Judge.
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[1] Jaron Gibbs appeals the probation department’s imposition of costs and fees
after the trial court elected to impose no fees. He also argues that the trial court
erred by merging one conviction into another instead of vacating one of them,
violating the prohibition against double jeopardy. We agree on both
arguments, and vacate and remand for further proceedings and with
instructions to vacate the second of Gibbs’s convictions.
Facts
[2] At the beginning of Gibbs’s legal proceedings, the trial court found him indigent
and appointed a public defender. On May 31, 2016, following a bench trial, the
trial court found Gibbs guilty of Class A misdemeanor domestic battery and
Class A misdemeanor domestic battery resulting in bodily injury. At the
sentencing hearing, the trial court asked for argument, and Gibbs’s attorney
explained as follows:
Mr. Gibbs is looking for work currently. He’s not working, he
doesn’t have a license, he doesn’t drive. We don’t believe that
any form of probation, I don’t know if that would be appropriate.
Because he [would] have to worry about his transportation with
him being (INAUDIBLE) or any treatment or anything like that.
We would ask for time served.
Tr. p. 100. The same day, the trial court sentenced Gibbs to 365 days, with 339
days suspended to non-reporting probation. The sentencing order states that
“The Court is assessing Court Costs and Fees in the amount of $0.00 . . . .”
Appellant’s App. Vol. II p. 13. The probation order includes a space for
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monetary conditions of probation. That section of Gibbs’s order reads as
follows:
Monetary Misdemeanor Felony Rate Ordered Amount
Obligation Rate
Administrative 50 100
Fee
Alcohol/Drug 250 (A Misd) 250
Services Program 150 (B & C)
Child Abuse Fee 100 100
Countermeasure 200 200
Fee
Court Costs 183/183.50 183/183.50
Domestic 50 50
Violence Fee
Drug Interdiction 200-1,000 200-1,000
Fee
Fine 0-5,000 0-10,000 $
Pre-Trial Fee 50 100
Probation User 50 + 20/month 100 + 30/month
Fee
Public Defender 50 100
Fee
Safe School Fee 200-1,000 200-1,000
Sexual Assault 250-1,000 250-1,000
Victim Fee
Id. at 51 (blacked-out sections and blank spaces original). Subsequently, the
probation department charged Gibbs $340 in probation user’s fees and $233 in
miscellaneous fees.1 On June 6, 2016, the trial court granted the probation
department’s request to transfer Gibbs’s bond to apply to the outstanding
1
None of these fees fell into the categories of “Fine,” “Safe School Fee,” or “Sexual Assault Victim Fee.”
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balance, leaving Gibbs with a remaining balance owed of $378. Gibbs now
appeals.
Discussion and Decision
I. Probation Fees and Costs
[3] When a defendant is convicted of a misdemeanor, the trial court has discretion
to impose certain probation fees. Ind. Code § 35-38-2-1(e). If the probation
department later wants to alter the fees imposed by the trial court, it must
petition the trial court to increase the probation fees. I.C. § 35-38-2-1.7(b). To
be entitled to an increase in fees, the probation department must demonstrate
that there was a change in the financial ability of the probationer while on
probation. Id.
[4] This Court has already considered the precise issue before us regarding
probation fees and costs. In Coleman v. State, 61 N.E.3d 390 (Ind. Ct. App.
2016), the trial court’s sentencing order did not list any court costs or fees, and
the probation order’s monetary obligation section included ordered amount
sections that were blacked out with the exception of “fine,” “safe school fee,”
and “sexual assault victim fee,” which were all blank. 61 N.E.3d at 393-94.
The probation department subsequently imposed an aggregate amount of $640
in fees on the defendant. This Court found that, “based on the record, we
cannot conclude that the trial court imposed these probation fees.” Id. at 394.
Therefore, we vacated the fees and remanded for further proceedings.
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[5] The State directs our attention to a Marion County local rule, which provides
that whenever an individual is placed on probation, a series of fees and costs
“shall be imposed under the Probation Court or Probation Order unless the
sentencing Judge specifically modifies the Order.” LR49-CR00-115(a).
Initially, we emphasize that any local rule (along with any statute) must also
comply with the constitutional due process rights of the people to whom the
rule is applied. Therefore, were this rule to be applied in a way that violated
Gibbs’s due process rights, we would find it to be unconstitutional.
[6] As a constitutional argument has not been made in this case, however, we note
that while we acknowledge this rule, we can only conclude that, by blacking out
the sections for the “Ordered Amount” of relevant fees and costs in the
probation order, the trial court did, in fact, modify the default imposition of
fees. Because the trial court in this case did not impose any probation fees or
costs on Gibbs, it was erroneous to accept the imposition of these fees without a
petition from the probation department and a showing that Gibbs’s financial
situation has changed since the sentencing hearing. Accordingly, we vacate the
fees and remand for further proceedings.2
2
Should the probation department petition for fees and costs, the trial court would have to hold an indigency
hearing at some point. The trial court could hold the hearing immediately or wait until Gibbs completes his
sentence to make the indigency determination. Johnson v. State, 27 N.E.3d 793, 795 (Ind. Ct. App. 2015).
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II. Merger
[7] Finally, the trial court entered a judgment of conviction for both Class A
misdemeanor convictions. In an attempt to avoid running afoul of the
prohibition against double jeopardy, the trial court merged one count into
another. The State concedes that Gibbs is correct that merging a conviction
without vacating it does not remedy a double jeopardy violation. West v. State,
22 N.E.3d 872, 875 (Ind. Ct. App. 2014). We agree. Therefore, we remand
with instructions to vacate Gibbs’s conviction for Class A misdemeanor
domestic violence causing bodily injury.
[8] The judgment of the trial court regarding the fees owed by Gibbs is vacated and
remanded for further proceedings consistent with this opinion and with
instructions to vacate Gibbs’s conviction for Class A misdemeanor domestic
violence resulting in bodily injury.
Mathias, J., and Pyle, J., concur.
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