Anthony M. Premore v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
Jul 21 2017, 6:52 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Peter D. Todd Curtis T. Hill, Jr.
Elkhart, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony M. Premore, July 21, 2017
Appellant-Defendant, Court of Appeals Case No.
20A05-1609-CR-2250
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Teresa L. Cataldo,
Appellee-Plaintiff. Judge
Trial Court Cause No.
20D03-1511-F4-53
Bradford, Judge.
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Case Summary
[1] On November 17, 2015, Appellee-Plaintiff the State of Indiana charged
Appellant-Defendant Anthony M. Premore with two counts of Level 4 felony
sexual misconduct with a minor. On July 27, 2015, following a jury trial,
Premore was found guilty as charged. The trial court subsequently sentenced
Premore to an aggregate term of sixteen years with four years suspended to
probation. The trial court also imposed a $10,000.00 fine, which the court
suspended. A hearing will be held by the trial court to determine whether
Premore is indigent once he begins serving his probationary term. The trial
court further ordered that Premore, if found to be indigent at that time, would
not be incarcerated for failing to pay the fine or any costs. On appeal, Premore
argues that it inappropriate to impose a $10,000.00 fine. Because the fine has
been suspended by the trial court and the indigency hearing will not be held
until after Premore has completed his twelve years of incarceration, there is no
issue before us ripe for appellate review.
Facts and Procedural History
[2] On November 17, 2015, the State charged Premore with two counts of Level 4
felony sexual misconduct with a minor. On July 27, 2016, Premore was
convicted on both charges after a jury trial. On September 1, 2016, the trial
court sentenced Premore to an aggregate term of sixteen years with four years
suspended to probation. Additionally, the trial court imposed a suspended
$10,000.00 fine. The fine will remain suspended until Premore has completed
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his executed sentence and a hearing has been held to determine whether he is
indigent. If Premore is found to be indigent at the time of his release, then he
will not be arrested or sanctioned for failing to pay the fine. On appeal,
Premore argues that the imposition of a $10,000.00 fine in his case is
inappropriate.
Discussion and Decision
[3] The Indiana Supreme Court has held that our appellate courts do not consider
issues concerning what a trial court may or may not do sometime in the future.
Ind. Dept. of Envtl. Mgmt. v. Chem. Waste Mgmt., Inc., 643 N.E.2d 331, 340 (Ind.
1994). Moreover, ripeness, as an aspect of subject matter jurisdiction, “relates
to the degree to which the defined issues in a case are based on actual facts
rather than on abstract possibilities, and are capable of being adjudicated on an
adequately developed record.” Id. at 336. It is a matter of speculation as to
what, if any, fine Premore will be ordered to pay upon his release in twelve
years. Because Premore has not completed his executed sentence, and the trial
court has not conducted the indigency hearing, the $10,000.00 remains
suspended, and there currently exists nothing for this court to review.
[4] We affirm the judgment of the trial court.
Najam, J., concurs.
Riley, J., concurs in result with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Anthony M. Premore, Court of Appeals Case No.
20A05-1609-CR-2250
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Riley, Judge concurring in result
[5] While I concur with the majority that the issue is not ripe for appellate review, I
write separately to express my view that even if we attempted to address the
issue on its merits, Premore would still not prevail. This court recently
authored a very detailed opinion on indigency hearings in Meunier-Short v. State,
52 N.E.3d 927 (Ind. Ct. App. 2016), in which we stated as follows:
If a trial court imposes costs or fines as a condition of probation,
the court is statutorily required to conduct an indigency hearing.
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Although the hearing must be conducted after a judgment of
conviction, the relevant statutes do not otherwise dictate when
the hearing is to be held. Accordingly, unless the State files a
petition to revoke a defendant’s probation for nonpayment of
fines, costs, or fees, the trial court is free to postpone the hearing
until the completion of the defendant’s sentence.
Id. at 930-31. In reaching its decision, the Meunier-Short court relied on Ind.
Code sections 33-37-2-3 and 35-38-1-18, which permit, but do not require, a
trial court to suspend payment of all or part of the fines or costs until the
defendant has completed all or part of his sentence. Accordingly, here, the trial
court properly suspended Premore’s fine and postponed the indigency hearing
until the completion of his executed sentence to determine what amount of the
fine, if any, Premore must pay.
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