Robert A. Turner v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
FILED
May 16 2012, 8:43 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
of the supreme court,
estoppel, or the law of the case. court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JILL M. ACKLIN GREGORY F. ZOELLER
Acklin Law Office, LLC Attorney General of Indiana
Westfield, Indiana
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROBERT A. TURNER, )
)
Appellant-Defendant, )
)
vs. ) No. 62A01-1111-CR-514
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE PERRY CIRCUIT COURT
The Honorable M. Lucy Goffinet, Judge
The Honorable Karen A. Werner, Magistrate
Cause No. 62C01-1009-FD-678
May 16, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
Following his convictions, pursuant to a guilty plea, for Class D felonies
Operating a Vehicle as a Habitual Traffic Violator (Count 1)1 and Operating a Vehicle
While Intoxicated Endangering a Person (Count 2),2 Appellant-Defendant Robert Turner
appeals the trial court’s imposition of a $525 public defender fee without making
specific findings regarding the fee.3 We affirm.
FACTS AND PROCEDURAL HISTORY
Following Turner’s arrest on September 13, 2010, the trial court set his bail at
$33,000 surety or $3300 (ten percent) cash bond. On September 16, 2010, the State
filed charges against Turner including, in addition to Counts 1 and 2, Class D felony
Operating a Vehicle with an ACE of .08 or More (Count 3) and Class B misdemeanor
Failure to Stop After Accident Resulting in Non-Vehicle Damage (Count 4). That day,
Carol Turner posted a $3305 cash bond on Turner’s behalf and executed an agreement
permitting the trial court to retain all or part of the bond to pay “fines, costs, fees and
restitution.” Appellee’s App. p. 1. The agreement additionally provided that, in the
event of a conviction, the trial court clerk could retain from the cash bond “publicly paid
costs of representation” to be deposited into the “supplemental public defender fund.”
Appellee’s App. p. 1.
1
Ind. Code § 9-30-10-16(a)(1) (2010).
2
Ind. Code §§ 9-30-5-2(a) and (b); 9-30-5-3(1) (2010).
3
In his initial brief, Turner additionally challenged the trial court’s failure to hold an indigency
hearing. Turner subsequently withdrew this argument in his reply brief.
2
On October 20, 2010, the trial court appointed defense counsel for Turner, and on
October 22, 2010, attorney Jason Hoch entered an appearance on Turner’s behalf. Hoch
thereafter represented Turner at five separate hearings as well as at the August 25, 2011,
plea hearing, where he entered a plea of guilty to Counts 1 and 2. Turner’s plea was
entered pursuant to a plea agreement in which the State agreed to dismiss Counts 3 and
4. At the October 10, 2011 sentencing hearing, where Turner was again represented by
Hoch, the trial court entered judgment of conviction and sentenced Turner to
consecutive sentences of two years executed in the Department of Correction on Count 1
and two years suspended to probation on Count 2. The trial court further dismissed
Counts 3 and 4 and ordered Turner to pay costs and fees.
Defense counsel Hoch filed a motion to withdraw and appoint appellate counsel
on October 13, 2011, after which the trial court granted the motion and appointed the
Indiana Public Defender as appellate counsel. On October 31, 2011, the trial court
entered a bond disbursement order in which it withheld certain costs and fees from the
cash bond, including a $525 public defender fee. The court ordered that $1,174.50 be
returned to Turner. The trial court did not hold an indigency hearing before assessing
this $525 fee, nor did it make specific findings regarding the fee’s reasonableness. This
appeal follows.
DISCUSSION AND DECISION
Upon appeal Turner contends that the trial court abused its discretion by imposing
a $525 fee, which it withheld from his cash bond, without making findings regarding the
reasonableness of the fee.
3
“‘[S]entencing decisions, including decisions to impose restitution, fines, costs, or
fees, are generally left to the trial court’s discretion.’” Wright v. State, 949 N.E.2d 411,
413 (Ind. Ct. App. 2011) (quoting Kimbrough v. State, 911 N.E.2d 621, 636 (Ind. Ct.
App. 2009)). If the fees imposed by the trial court fall within the parameters provided
by statute, the trial court has not abused its discretion. Id. “‘A defendant’s indigency
does not shield him from all costs or fees related to his conviction.’” Id. (quoting Banks
v. State, 847 N.E.2d 1050, 1051 (Ind. Ct. App. 2006)).
Indiana Code section 35-33-8-3.2 (2010)4 governs the conditions the trial court
can order when admitting a defendant to bail. Subsection 35-33-8-3.2(a)(2) specifically
permits the trial court to require the defendant to execute the following:
(A) a bail bond by depositing cash or securities with the clerk of the court
in an amount not less than ten percent (10%) of the bail; and
(B) an agreement that allows the court to retain all or part of the cash or
securities to pay fines, costs, fees, and restitution that the court may order
the defendant to pay if the defendant is convicted.
A portion of the deposit, not to exceed ten percent (10%) of the monetary
value of the deposit or fifty dollars ($50), whichever is the lesser amount,
may be retained as an administrative fee. The clerk shall also retain from
the deposit under this subdivision fines, costs, fees, and restitution as
ordered by the court, publicly paid costs of representation that shall be
disposed of in accordance with subsection (b), and the fee required by
subsection (d).
In executing the cash bail bond agreement, Turner agreed that, in the event of his
conviction, the trial court had the authority to retain all or part of his cash deposit to pay
fines, costs, fees and restitution ordered by the court. Given that Turner was convicted,
4
Section 35-33-8-3.2 was amended in 2012, but these amendments do not affect the language at
issue. See P.L. 35-2012 (S.E.A. 127).
4
the trial court was entitled, under his agreement and section 35-33-8-3.2, to apply his
cash bond toward the cost of his public defender.
Turner contends, based upon Indiana Code section 33-40-3-6 (2010), that the trial
court was required to make specific findings justifying the $525 fee. Section 33-40-3-6
contemplates a finding by the trial court regarding ability to pay, which is an
unnecessary step in the context of cash bonds under section 35-33-8-3.2. See Wright,
949 N.E.2d at 415-16 (concluding indigency hearing is unnecessary when court retains
cash bond funds for authorized costs and fees pursuant to a cash bail bond agreement).
To the extent section 33-40-3-6 requires findings regarding the reasonableness of fees,
therefore, it is inapplicable.
Turner points to no part of the record suggesting that the $525 fee at issue in this
case was not attributable to reasonable public defender fees. Such fee is not inconsistent
with the record, which shows that defense counsel represented Turner in multiple
hearings over the one-year pendency of his case. We find no abuse of discretion. See
Obregon v. State, 703 N.E.2d 695, 696 (Ind. Ct. App. 1998) (affirming $600 public
defender fee deducted from cash bond).
The judgment of the trial court is affirmed.
CRONE, J., and BROWN, J., concur.
5