Ivan Hernandez-Vargas v. State of Indiana ( 2024 )


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  •                                             IN THE
    Court of Appeals of Indiana
    Ivan Hernandez-Vargas,                           FILED
    Oct 17 2024, 9:12 am
    Appellant-Defendant
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    v.
    State of Indiana,
    Appellee-Plaintiff
    October 17, 2024
    Court of Appeals Case No.
    24A-CR-1306
    Appeal from the Hamilton Superior Court
    The Honorable Michael A. Casati, Judge
    Trial Court Cause No.
    29D01-2110-F5-6351
    Opinion by Judge Brown
    Judges Mathias and Kenworthy concur.
    Court of Appeals of Indiana | Opinion 24A-CR-1306 | October 17, 2024   Page 1 of 8
    Brown, Judge.
    [1]   Ivan Hernandez-Vargas appeals the trial court’s order upon revocation of his
    probation which included a civil judgment for probation user fees assessed at
    the time of original sentencing. We reverse and remand.
    Facts and Procedural History
    [2]   In October 2021, the State charged Hernandez-Vargas with operating a motor
    vehicle after forfeiture of license for life as a level 5 felony, operating a vehicle
    while intoxicated endangering a person as a class A misdemeanor, and
    operating a vehicle with a Schedule II controlled substance or its metabolite in
    the blood, as a class C misdemeanor. On January 22, 2022, the parties entered
    into a plea agreement which provided for Hernandez-Vargas to plead guilty to
    the level 5 felony and the class A misdemeanor in exchange for dismissal of the
    remaining charge as well as dismissal of all charges in an unrelated case.
    Following a hearing, the trial court accepted the guilty plea and, on February
    24, sentenced Hernandez-Vargas to five years with three years executed and
    two years suspended to probation. The court ordered that the “executed” term
    “shall be served as one (1) year as a direct commitment to Hamilton County
    Community Corrections [(“HCCC”)] work release followed by two (2) years as
    a direct commitment to [HCCC] on electronic monitored home detention.”
    Appellant’s Appendix Volume II at 72. The court also imposed a $150 CARE
    fee, court costs of $185.50, an alcohol and drug countermeasures fee of $200,
    and probation user fees of $660, for total costs of $1,195.50. The court’s order
    of probation provided that “[p]robation will be tolled during the service of the
    Court of Appeals of Indiana | Opinion 24A-CR-1306 | October 17, 2024          Page 2 of 8
    executed term.” Id. at 74. Hernandez-Vargas began serving his executed
    HCCC placement on the day he was sentenced.
    [3]   On February 7, 2024, HCCC filed a Notice of Non-Compliance after
    Hernandez-Vargas tested positive for alcohol. On February 8, the Hamilton
    County Probation Department filed a notice of violation. The court held a
    factfinding hearing on May 23, 2024. Hernandez-Vargas admitted the violation
    and the court revoked his placement in community corrections and his
    probation and ordered him to serve 1700 days in the Department of Correction
    (“DOC”) with 992 days of actual and good time credit. As part of its
    revocation order, the court entered a civil judgment against Hernandez-Vargas
    for $685.50 for “outstanding court costs and fees.” Id. at 118.
    Discussion
    [4]   Hernandez-Vargas challenges the trial court’s entry of a civil judgment upon
    revocation of his probation which included $660 of probation user fees assessed
    at the time of his original sentencing. He argues that “it was an abuse of
    discretion” for the trial court to “assess probation fees when [he] was not
    actively serving probation when probation was revoked.” Appellant’s Brief at 6
    (emphasis omitted). The State responds that the “trial court did not abuse its
    discretion when it did not vacate probation fees that were assessed in the trial
    court’s original sentencing order.” Appellee’s Brief at 7 (emphasis omitted).
    The State characterizes Hernandez-Vargas’s claim as an improper collateral
    attack on his original sentence, and it further argues that the trial court’s “hands
    were tied” because statutory law requires a petition from the probation
    Court of Appeals of Indiana | Opinion 24A-CR-1306 | October 17, 2024       Page 3 of 8
    department before a fee order may be amended. Id. at 10. We agree with
    Hernandez-Vargas.
    [5]   Our opinion in Fleming v. State, 
    143 N.E.3d 987
     (Ind. Ct. App. 2020) is directly
    on point and instructive here. In Fleming, the defendant pled guilty to a level 5
    felony and the trial court sentenced him per the terms of the plea agreement,
    imposing a five-year sentence, with three years executed and two years
    suspended. Fleming, 143 N.E.3d at 989. The three-year executed portion of the
    sentence was to be served as one year in the DOC and two years in community
    corrections. Id. Of the two years suspended, one year was to be served on
    probation. Id. As part of the original sentencing order, the court ordered the
    defendant to pay court costs and fees totaling $845, including $560 in
    probation-related fees. Id.
    [6]   While the defendant was serving the executed portion of his sentence,
    community corrections filed a notice of violation alleging that he violated a no
    contact order. Id. The probation department also filed a notice of probation
    violation alleging that he had not paid any portion of his $845 monetary
    obligation. Id. at 989 n.1. Following a hearing, the revocation court found that
    the defendant violated the rules of both community corrections and probation
    by violating the no contact order. Id. at 989. The court revoked both
    placements and ordered the defendant to serve four years in the DOC. Id.
    Because the defendant was still serving his community corrections sentence
    when the violations were filed, he had not yet begun serving his time on
    probation. Id. The trial court issued an updated sentencing order reflecting the
    Court of Appeals of Indiana | Opinion 24A-CR-1306 | October 17, 2024       Page 4 of 8
    sanction and reassessed $845 in court costs and fees, including the $560 in
    probation fees. Id.
    [7]   On appeal, the defendant argued that the trial court abused its discretion by
    imposing probation fees for a term of probation that was revoked before it ever
    began. Id. at 989. This Court held:
    Relying on Johnson v. State, 
    27 N.E.3d 793
     (Ind. Ct. App. 2015),
    Fleming contends that the trial court abused its discretion by
    requiring him to pay probation user fees despite his probation
    being revoked before it ever began. In Johnson, the trial court
    ordered the defendant to pay twelve months of probation fees but
    after the defendant served just five months of probation, the trial
    court revoked his probation due to a violation. The defendant
    appealed the trial court’s order that he pay the entire twelve
    months of probation fees. This court held that “probation fees
    should reflect the time a defendant actually served on probation”
    and because “the $340 in probation fees reflected a twelve-month
    probation and [defendant] served only five of those months, the
    trial court should recalculate [defendant’s] probation fees, if
    appropriate, to correspond with the probation time [defendant]
    actually served.” 
    Id.
     at 794-95 (citing I.C. § 35-38-2-1(e)).
    Id. at 990-991. The Fleming court observed, “Fleming never served probation,
    and the trial court revoked his previously ordered probation before his
    probation even began.” Id. at 991. The Court stated that, “[a]lthough the trial
    court revoked Fleming’s probation, the trial court nevertheless ordered him to
    pay $560 in probation-related fees.” Id. It concluded that the trial court abused
    its discretion in ordering Fleming to pay probation fees as part of a sanction that
    Court of Appeals of Indiana | Opinion 24A-CR-1306 | October 17, 2024          Page 5 of 8
    did not include probation and remanded the case to the trial court with
    instructions to reduce the amount of fees by $560. Id.
    [8]   The circumstances presented here require the same conclusion, and the State’s
    attempts to distinguish Fleming are unavailing. 1 In this case, as in Fleming,
    Hernandez-Vargas never served probation, and the trial court revoked his
    previously ordered probation before his probation even began. Despite
    revoking his probation, the trial court nevertheless entered a civil judgment
    ordering Hernandez Vargas to pay $685.50, which included $660 in the
    previously assessed probation-related fees. We conclude that the trial court
    abused its discretion in doing so.
    [9]   We note that, as it did in Fleming, the State characterizes Hernandez-Vargas’s
    current challenge as an improper collateral “challenge to the validity of his
    [original] sentence.” Appellee’s Brief at 9 (citing Stephens v. State, 
    818 N.E.2d 936
    , 939 (Ind. 2004) (holding that defendant cannot collaterally attack sentence
    on appeal from probation revocation)). We rejected this argument in Fleming,
    noting that:
    1
    The State suggests that Fleming should not control because, unlike in Fleming, the fees ordered here “were
    not part of the [revocation] sanctions order but were part of the original sentence.” Appellee’s Brief at 10.
    The State’s assertion misrepresents the facts of Fleming as the probation fees in Fleming had been assessed as
    part of the original sentencing order. Fleming, 143 N.E.3d at 989. The State further suggests that, unlike the
    defendant in Fleming, an argument could be made that Hernandez-Vargas was, in fact, already serving
    probation at the time of the revocation. The State argues that he “was already required to fulfill the terms of
    his probation” when he was serving executed time in community corrections so he arguably was “effectively
    already serving [probation].” Appellee’s Brief at 7, 10. However, the court’s probation order specifically
    provided that “[p]robation will be tolled during the service of the executed term.” Appellant’s Appendix
    Volume II at 74. We find the State’s attempts to distinguish Fleming on these bases unpersuasive.
    Court of Appeals of Indiana | Opinion 24A-CR-1306 | October 17, 2024                                Page 6 of 8
    When the probation fees were imposed as part of the original
    sentencing order, Fleming had no basis to object as his probation
    had not yet been revoked. After the trial court revoked his
    probation, however, the court again imposed probation-related
    fees. Fleming is not collaterally attacking the imposition of
    probation fees as set out in the original sentencing order. Rather,
    Fleming argues that the trial court abused its discretion when it
    failed to modify his fee obligation following the revocation of his
    probation. A judgment revoking probation is a final appealable
    order. 
    Ind. Code § 35-38-2-3
    (l). Fleming can therefore challenge
    the court’s imposition of probation fees.
    Fleming, 143 N.E.3d at 990. Contrary to the State’s argument, Hernandez-
    Vargas can challenge the trial court’s failure to vacate or modify his fee
    obligation upon revocation of his probation.
    [10]   Regarding the State’s assertion, based upon 
    Ind. Code §§ 35-38-2-1
    (b) and 35-
    38-2-1.7(b), 2 that the trial court’s hands were tied and that it was prohibited
    from modifying or vacating the prior fee order absent a petition from the
    probation department, we specifically rejected this exact assertion in Fleming.
    See 
    id.
     (considering the statutory language, finding the provisions irrelevant and
    inapplicable to an individual not actively serving probation, and disagreeing
    with the State’s contention “that the trial court was statutorily constrained to
    2
    
    Ind. Code § 35-38-2-1
    (b) provides in pertinent part that the court may modify the conditions of probation at
    any time, “except a fee payment may only be modified as provided in section 1.7(b) of this chapter.”
    (parenthetical omitted). 
    Ind. Code § 35-38-2-1
    .7(b) provides: “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.”
    Court of Appeals of Indiana | Opinion 24A-CR-1306 | October 17, 2024                                  Page 7 of 8
    leave the probation fees imposed as part of the original sentence in place
    following the revocation of Fleming’s probation”). The State has given us no
    cause to reconsider our conclusion in Fleming that trial courts are not statutorily
    constrained to leave in place probation fees such as the ones at issue here.
    [11]   Based on the foregoing, we reverse the trial court’s civil judgment order and
    remand with instructions to reduce the amount of fees by $660. 3
    [12]   Reversed and remanded.
    Mathias, J., and Kenworthy, J., concur.
    ATTORNEY FOR APPELLANT
    James D. Crum
    Coots, Henke & Wheeler, P.C.
    Carmel, Indiana
    ATTORNEYS FOR APPELLEE
    Theodore E. Rokita
    Attorney General of Indiana
    J.T. Whitehead
    Deputy Attorney General
    Indianapolis, Indiana
    3
    The Chronological Case Summary indicates that, of the originally assessed amount of $1,195.50,
    Hernandez-Vargas paid $510 toward his assessed fees, which included a $150 CARE fee. Hernandez-Vargas
    briefly mentions in a footnote that the CARE fee “was a condition of probation” and that having already
    paid that fee despite never having served probation, he has “ultimately overpaid for what was actually due in
    court costs and fees.” Appellant’s Brief at 7 n.3. He does not cite any authority or explain or suggest that
    this Court should grant him further relief and therefore, he has waived any argument regarding the propriety
    of the CARE fee, and we decline to address this matter further. See Lyles v. State, 
    834 N.E.2d 1035
    , 1050
    (Ind. Ct. App. 2005) (“A party waives an issue where the party fails to develop a cogent argument or provide
    adequate citation to authority and portions of the record.”), trans. denied.
    Court of Appeals of Indiana | Opinion 24A-CR-1306 | October 17, 2024                              Page 8 of 8
    

Document Info

Docket Number: 24A-CR-01306

Filed Date: 10/17/2024

Precedential Status: Precedential

Modified Date: 10/17/2024