Brionna McCloud v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
08/22/2017, 10:46 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
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 Curtis T. Hill, Jr.
Marion County Public Defender – Attorney General of Indiana
Appellate Division
Indianapolis, Indiana Marjorie Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brionna McCloud, August 22, 2017
Appellant-Defendant, Court of Appeals Case No.
49A05-1606-CR-1194
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Barbara L. Cook
Appellee-Plaintiff. Crawford, Judge
Trial Court Cause Nos.
49G09-1512-F6-43342, 49G09-
1509-F6-31290, 49G09-1510-F6-
35534
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017 Page 1 of 19
Case Summary
[1] In January of 2016, Appellant-Defendant Brionna McCloud pled guilty to Class
A misdemeanor battery and Class B misdemeanor leaving the scene of an
accident. In pleading guilty, McCloud admitted that she left the scene after the
vehicle which she was driving was involved in a collision with an unattended
vehicle. As part of her plea agreement, McCloud agreed to pay restitution to
Sara1 Wilson, the owner of the other vehicle involved in the accident. McCloud
was thereafter placed on probation and ordered to pay $3772.47 in restitution.
She was also ordered to pay certain costs, fees, and fines.
[2] On appeal, McCloud contends that the trial court abused its discretion in (1)
ordering her to pay restitution to Wilson, (2) imposing certain fees, and (3)
failing to provide her with adequate notice of the terms of her probation.
Concluding that the trial court did not abuse its discretion in ordering McCloud
to pay restitution or in imposing the challenged fees, we affirm. However, we
remand the matter to the trial court with the instruction that the court provide
McCloud with a written copy of the terms of her probation if it has not yet done
so.
Facts and Procedural History
1
Ms. Wilson’s name is spelled both “Sara” and “Sarah” in the record. For purposes of this memorandum
decision, we will spell Ms. Wilson’s name “Sara.” We apologize to Ms. Wilson if this is an incorrect
spelling.
Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017 Page 2 of 19
[3] At some point in or around September of 2015, Appellee-Plaintiff the State of
Indiana (“the State”) charged McCloud under cause number 49G09-1509-F6-
31290 (“Cause No. F6-31290”) with Level 6 felony resisting law enforcement.2
At some point in or around October of 2015, the State charged McCloud under
cause number 49G09-1510-F6-35534 (“Cause No. F6-35534”) with Level 6
felony theft.3
[4] On September 23, 2015, McCloud was driving a vehicle in a Kroger parking lot
when she struck an unattended vehicle owned by Wilson. McCloud did not
stop at the scene of the accident after striking Wilson’s vehicle. Instead,
McCloud drove to the other side of the parking lot, parked, and went into the
store to steal liquor. In relation to these acts, on December 8, 2015, the State
charged McCloud under cause number 49G09-1512-F6-43342 (“Cause No. F6-
43342”) with two counts of Level 6 felony theft, one count of Class A
misdemeanor Battery, and one count of Class B misdemeanor leaving the scene
of an accident.
[5] On January 11, 2016, McCloud entered into a plea agreement, under the terms
of which she agreed to plead guilty to the following charges: (1) under Cause
No. F6-31290 – Level 6 felony resisting law enforcement under, (2) under
2
This count alleged that on September 2, 2015, McCloud knowingly fled from Indianapolis Metropolitan
Police Officer John Hartcher, after Officer Hartcher identified himself and ordered McCloud to stop.
3
This count alleged that on August 18, 2015, McCloud knowingly or intentionally exerted unauthorized
control over property which belonged to Kroger, i.e., meat and bottles of alcohol.
Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017 Page 3 of 19
Cause No. F6-35534 – Level 6 felony theft, and (3) under Cause No. F6-43342
– Class A misdemeanor battery and Class B misdemeanor leaving the scene of
an accident. According to the terms of McCloud’s plea, McCloud agreed to
pay restitution to Wilson and the State agreed to dismiss the remaining charges
under Cause No. F6-43342. The trial court accepted McCloud’s guilty plea and
sentenced her pursuant to the term of the plea agreement as follows: (1) with
respect to Cause No. F6-35534 – 365 days of incarceration in the Marion
County Jail, (2) with respect to Cause No. F6-31290 – 365 days in the Marion
County Community Corrections, and (3) with respect to Cause No. F6-43342 –
365 days of supervised probation.4 The trial court also ordered McCloud to pay
restitution to Wilson in an amount to be determined at a later date.
[6] On February 1, 2016, the trial court conducted a restitution hearing. The trial
court took the matter under advisement and later ordered McCloud to pay
$3772.47 in restitution to Wilson. The trial court also ordered McCloud to pay
a $100.00 public defender fee and $340.00 in probation fees. This appeal
follows.
Discussion and Decision
4
Pursuant to the terms of her plea agreement, the 365 days in community corrections was to run consecutive
to the term that was to be executed in the Marion County Jail and the 365 days on supervised probation was
to run consecutive to the term that was to be served in community corrections. McCloud does not challenge
her sentences relating to Cause Nos. F6-31290 or 35534 in the instant appeal.
Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017 Page 4 of 19
[7] McCloud challenges both the restitution order and the imposition of certain fees
on appeal. We will discuss each in turn.
I. Restitution
[8] McCloud contends that the trial court abused its discretion in ordering her to
pay $3772.47 in restitution to Wilson. Specifically, McCloud argues that (A)
restitution was inappropriate because there was no evidence that the damage to
Wilson’s vehicle occurred as a direct and immediate result of her criminal act,
(B) the trial court abused its discretion by failing to consider her ability to pay
the ordered restitution, and (C) the amount of restitution ordered by the trial
court was excessive. We disagree.
[9] The Indiana Supreme Court has held that “[t]he principal purpose of restitution
is to vindicate the rights of society and to impress upon the defendant the
magnitude of the loss the crime has caused.” Pearson v. State, 883 N.E.2d 770,
772 (Ind. 2008) (citing Haltom v. State, 832 N.E.2d 969, 971 (Ind. 2005)).
“Restitution also serves to compensate the offender’s victim.” Id. (citing
Haltom, 832 N.E.2d at 971). In this vein, the Indiana General Assembly has
established that “a trial court may order restitution to a victim of a crime.” Blixt
v. State, 872 N.E.2d 149, 153 (Ind. Ct. App. 2007) (citing Ind. Code § 35-50-5-
3). “A restitution order will be reviewed for an abuse of discretion.” Id. (citing
Crawford v. State, 770 N.E.2d 775, 781 (Ind. 2002)). “An abuse of discretion has
occurred only if no evidence or reasonable inferences therefrom support the trial
court’s decision.” Little v. State, 839 N.E.2d 807, 809 (Ind. Ct. App. 2005).
Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017 Page 5 of 19
A. Appropriateness of Award of Restitution
[10] McCloud argues that the trial court abused its discretion in ordering restitution
because there is no evidence that the damage to Wilson’s vehicle occurred as a
direct and immediate result of her criminal act. In support, McCloud relies on
M.C. v. State, 817 N.E.2d 606 (Ind. Ct. App. 2004). In M.C., the appellant was
adjudicated to be delinquent for committing what would have been Class A
misdemeanor leaving the scene of the accident causing serious bodily injury
and Class B misdemeanor leaving the scene of the accident causing property
damage, if committed by an adult. 817 N.E.2d at 608. The trial court ordered
M.C. to pay restitution to the other individuals involved in the accident. Id.
On appeal, a panel of this court reversed the trial court’s restitution order,
concluding that the State had failed to establish M.C.’s fault or liability for the
accident. Id. at 610. Because we believe that M.C. can easily be distinguished
from the facts of the instant matter, we find McCloud’s reliance on M.C. to be
unpersuasive.
[11] In the instant matter, the factual basis to support McCloud’s guilty plea
provides that
on or about September 23, 2015, Marion County, State of
Indiana, Brionna McCloud being the driver of a vehicle that was
involved in an accident, involved in a collision with an
unattended vehicle being the property of Sara Wilson, did
knowingly or intentionally fail to stop the vehicle at the scene of
said accident or as close as possible there to[.]
Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017 Page 6 of 19
Tr. pp. 20-21. Given that McCloud admitted that the vehicle she was driving
collided with an unattended vehicle, one may reasonably infer that McCloud
admitted to being at fault for the collision. This important fact distinguishes the
instant matter from M.C.
[12] As for who constitutes the victims of the crime of leaving the scene of an
accident, we have previously held that
[w]hen the crime is leaving the scene of an accident, clearly one
victim of that crime is the person who suffered personal injury or
property damage as a result of the accident. See Lowe v. State,
(1982) Ind. App., 433 N.E.2d 798 (to commit offense there must
be involvement in motor vehicle accident which causes property
damage to another). It is equally apparent that any persons who
sustained property damage as a result of the driver’s flight are
victims of his crime of leaving the scene of an accident; those
individuals would not have been injured had the driver stopped
at the site of the initial accident.
Kingston v. State, 479 N.E.2d 1356, 1359 (Ind. Ct. App. 1985).
[13] Also, in J.P.B. v. State, 705 N.E.2d 1075 (Ind. Ct. App. 1999), we considered
whether restitution was appropriate after an individual was convicted of leaving
the scene of an accident. In pleading guilty to the charged offense, J.P.B.
admitted that he had struck the victim’s vehicle. J.P.B., 705 N.E.2d at 1077.
At sentencing, J.P.B. was ordered to pay restitution to the owner of the vehicle
damaged in the accident. Id. On appeal, we concluded that the owner of the
vehicle constituted a victim of J.P.B.’s criminal act and that the loss suffered by
the victim was a “direct and immediate result of” J.P.B.’s criminal act. Id.Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017 Page 7 of 19
[14] As was mentioned above, here, one may reasonably infer from McCloud’s
guilty plea that McCloud assumed fault for the accident and that she was
driving the vehicle that struck Wilson’s vehicle. McCloud’s plea agreement
explicitly states that McCloud “shall pay restitution to Sarah Wilson in the
amount of TBD.” Appellant’s App. Vol. II, p. 41 (emphasis added). This
statement coupled with the parties’ statements during McCloud’s guilty plea
hearing makes it clear that McCloud understood that she would be required to
pay restitution as part of her sentencing following her guilty plea.5
[15] With regards to plea agreements, the Indiana Supreme Court recently reiterated
the following:
The terms of a plea agreement between the State and the
defendant are contractual in nature. Lee v. State, 816 N.E.2d 35,
38 (Ind. 2004). When a trial court accepts a plea agreement, it is
bound by its terms. Berry v. State, 10 N.E.3d 1243, 1246 (Ind.
2014). As such, we are guided by contract interpretation
principles, beginning with the agreement’s plain language and
determining the intent of the parties at the time the plea was
entered. Id. at 1247 (citing Citimortgage, Inc. v. Barabas, 975
N.E.2d 805, 813 (Ind. 2012) (“The ultimate goal of any contract
interpretation is to determine the intent of the parties at the time
that they made the agreement.”)). To the extent issues of
5
In trying to challenge the imposition of restitution during the restitution hearing, McCloud’s counsel
acknowledged that restitution was included as a condition to McCloud’s guilty plea but claimed that given
McCloud’s position that the damages to Wilson’s vehicle were not caused by McCloud’s act of leaving the
scene of the accident, it was counsel’s belief that the parties were agreeing that the trial court would be in the
position to determine whether restitution would be owed. After considering the arguments presented by
McCloud’s counsel, the trial court indicated that it did not agree with counsel’s interpretation of the relevant
case law and ordered McCloud to pay $3772.47 in restitution to Wilson.
Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017 Page 8 of 19
statutory interpretation are relevant, our standard of review is de
novo. Day v. State, 57 N.E.3d 809, 811 (Ind. 2016).
State v. Smith, 71 N.E.3d 368, 370 (Ind. 2017) (italics in original).
[16] In accepting the plea agreement, McCloud agreed to the terms contained there,
including that she pay restitution to Wilson. The trial court was bound by the
terms contained in the parties’ plea agreement. McCloud’s argument that the
trial court abused its discretion by imposing an order of restitution is therefore
without merit.
B. Ability to Pay
[17] McCloud also argues that the trial court abused its discretion by failing to
consider her ability to pay—or claimed lack thereof—when ordering her to pay
$3772.47 in restitution. The Indiana Supreme Court recently reiterated that
when setting restitution as a condition of probation, our trial
courts are required to consider the defendant’s ability to pay.
Our own precedent has clearly established “when the trial court
enters an order of restitution as part of a condition of probation,
the court is required to inquire into the defendant’s ability to pay.
This is so in order to prevent indigent defendants from being
imprisoned because of a probation violation based on a
defendant’s failure to pay restitution.” [Pearson, 883 N.E.2d at
772]. When restitution is ordered as part of an executed
sentence, no inquiry into the ability to pay is required because
restitution is merely a money judgment, and a defendant cannot
be imprisoned for non-payment. Id. at 773.
Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017 Page 9 of 19
Bell v. State, 59 N.E.3d 959, 963 (Ind. 2016). Stated differently, “a trial court
may order restitution as part of a defendant’s sentence wholly apart from
probation.” Pearson, 883 N.E.2d at 772-73.
[18] The parties disagree as to whether restitution was ordered as part of McCloud’s
sentence or as a condition of her probation, and the record contains indications
that both are true. However, we conclude that the trial court properly ordered
restitution regardless of whether said restitution was ordered as a part of
McCloud’s sentence or as a condition of her probation.
[19] Before determining the amount of restitution that McCloud was to pay to
Wilson, the trial court engaged McCloud in the following line of questioning:
[Trial Court]: … Do you intend to work when you are
released Ms. McCloud?
[The Defendant]: Can you say that again, Your Honor?
[Trial Court]: Do you intend to work?
[The Defendant]: Yes, Your Honor.
[Trial Court]: When was the last time you worked, ma’am?
[The Defendant]: Actually, I was fifteen.
[Trial Court]: Ok, and how old are you now?
[The Defendant]: I’m nineteen, Your Honor.
[Trial Court]: Ok. Do you have any children, ma’am?
[The Defendant]: No, Your Honor.
Tr. p. 24. The trial court also included the requirement that McCloud “be
employed full time [or] be actively seeking full-time employment” as a
condition of McCloud’s probation. Appellant’s App. Vol. II, p. 42. The
inclusion of this requirement coupled with the above-quoted colloquy
Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017 Page 10 of 19
demonstrates that the trial court considered McCloud’s ability to pay before
ordering her to pay restitution to Wilson. The trial court, therefore, satisfied the
requirements of Bell, and, accordingly, did not abuse its discretion in this
regard.
C. Amount of Restitution
[20] McCloud also challenges the amount of restitution ordered by the trial court,
arguing that it is excessive. We disagree.
[21] During the restitution hearing, the State presented evidence indicating that
McCloud’s actions caused $3772.47 in damage to Wilson’s vehicle. McCloud’s
counsel stipulated “that those are the expenses associated with the damage that
was done to the vehicle.” Tr. p. 27. Of this amount, the State requested that
$500.00 be paid directly to Wilson and the remaining $3272.47 be paid to
Wilson’s insurance company.6 The trial court ordered that McCloud pay only
the amount necessary to cover the cost of the repairs to Wilson’s vehicle.
Accordingly, the trial court did not award an excessive amount of restitution. 7
6
The $500.00 represented Wilson’s deductible, which was paid by Wilson, and the remaining represented
the amount paid by Wilson’s insurance company.
7
Although the trial court’s restitution order did not explicitly include the breakdown of funds requested by
the State, the funds awarded by the trial court clearly represent the cost of the repairs to Wilson’s vehicle.
Thus, to the extent that McCloud argues that the amount of restitution ordered was excessive merely because
Wilson only paid $500.00 toward the repairs of the vehicle and the rest was paid by Wilson’s insurance
company, we disagree. One may reasonably assume that Wilson’s insurance company will be able to recover
the funds that it paid in order to fix Wilson’s vehicle from Wilson if it so chooses. Furthermore, it seems
appropriate to note that the parties expected a portion of the funds to be paid to Wilson’s insurance company
as McCloud’s counsel specifically stated during the restitution hearing that McCloud did not contest that
restitution funds could be paid to a third party, i.e., Wilson’s insurance company.
Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017 Page 11 of 19
II. Assessment of Certain Fees
[22] McCloud also contends that the trial court abused its discretion in ordering her
to pay certain fees, namely a $100.00 public defender fee and $340.00 in
probation fees. “We review the trial court’s imposition of costs or fees for an
abuse of discretion.” Jackson v. State, 968 N.E.2d 328, 333 (Ind. Ct. App. 2012)
(citing Kimbrough v. State, 911 N.E.2d 621, 636 (Ind. Ct. App. 2009)). If the
trial court imposes fees within statutory limits, there is no abuse of discretion.
Id. (citing Kimbrough, 911 N.E.2d at 636).
A. Public Defender Fee
[23] “There are three statutes that address when a defendant must reimburse the
county for counsel provided to him at public expense—all three of which
require the funds to be deposited in the county’s supplemental public defender
services fund.” May v. State, 810 N.E.2d 741, 745 (Ind. Ct. App. 2004). “A
trial court can order reimbursement for costs of representation under any of the
three statutes or combination thereof.” Id.[24] The first statute, Indiana Code section 35-33-7-6, provides, in relevant part, as
follows:
(a) Prior to the completion of the initial hearing, the judicial
officer shall determine whether a person who requests assigned
counsel is indigent. If the person is found to be indigent, the
judicial officer shall assign counsel to the person.
****
Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017 Page 12 of 19
(c) If the court finds that the person is able to pay part of the cost
of representation by the assigned counsel, the court shall order
the person to pay the following:
(1) For a felony action, a fee of one hundred dollars
($100).
(2) For a misdemeanor action, a fee of fifty dollars
($50).
The clerk of the court shall deposit fees collected under this
subsection in the county’s supplemental public defender services
fund established under IC 33-40-3-1.
(d) The court may review the finding of indigency at any time
during the proceedings.
The next statute, Indiana Code section 33-40-3-6, provides, again in relevant
part, as follows:
(a) If at any stage of a prosecution for a felony or a misdemeanor
the court makes a finding of ability to pay the costs of
representation under section 7 of this chapter,[8] the court shall
require payment by the person or the person’s parent, if the
person is a child alleged to be a delinquent child, of the following
costs in addition to other costs assessed against the person:
(1) Reasonable attorney’s fees if an attorney has been
appointed for the person by the court.
(2) Costs incurred by the county as a result of court
appointed legal services rendered to the person.
****
(d) The sum of:
8
Indiana Code section 33-40-3-7(a) provides that if a defendant is receiving publicly paid representation,
“the court shall consider: (1) the person’s independently held assets and assets available to the spouse of the
person or the person’s parent if the person is unemancipated; (2) the person’s income; (3) the person’s
liabilities; (4) the extent of the burden that payment of costs assessed under section 6 of this chapter would
impose on the person and the dependents of the person.” “If, after considering the factors described in
subsection (a), the court determines that the person is able to pay the costs of representation, the court shall
enter a finding that the person is able to pay those additional costs.” Ind. Code § 33-40-3-7(b).
Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017 Page 13 of 19
(1) the fee collected under IC 35-33-7-6;
(2) any amount assessed by the court under this
section; and
(3) any amount ordered to be paid under IC 33-37-2-
3;
may not exceed the cost of defense services rendered to the
person.
The final statute, Indiana Code section 33-37-2-3, provides, in relevant part, as
follows:
(a) Except as provided in subsection (b), when the court imposes
costs, it shall conduct a hearing to determine whether the
convicted person is indigent. If the person is not indigent, the
court shall order the person to pay:
(1) the entire amount of the costs at the time sentence
is pronounced;
(2) the entire amount of the costs at some later date;
or
(3) specified parts of the costs at designated intervals.
(b) A court may impose costs and suspend payment of all or part
of the costs until the convicted person has completed all or part
of the sentence. If the court suspends payment of the costs, the
court shall conduct a hearing at the time the costs are due to
determine whether the convicted person is indigent. If the
convicted person is not indigent, the court shall order the
convicted person to pay the costs:
(1) at the time the costs are due; or
(2) in a manner set forth in subsection (a)(2) through
(a)(3).
(c) If a court suspends payment of costs under subsection (b), the
court retains jurisdiction over the convicted person until the
convicted person has paid the entire amount of the costs.
****
(e) If, after a hearing under subsection (a) or (b), the court
determines that a convicted person is able to pay part of the costs
Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017 Page 14 of 19
of representation, the court shall order the person to pay an
amount of not more than the cost of the defense services
rendered on behalf of the person. The clerk shall deposit the
amount paid by a convicted person under this subsection in the
county's supplemental public defender services fund established
under IC 33-40-3-1.
[25] Although the trial court did not specify under which of the above-quoted
statutes it imposed the $100.00 public defender fee, we conclude that Indiana
Code section 33-40-3-6 authorized the trial court to impose the fee at any time
during the proceedings under so long as the trial court first considered
McCloud’s ability to pay the fee. As is quoted above, before imposing any
fines, fees, or restitution, the trial court engaged McCloud in the following line
of questioning:
[Trial Court]: … Do you intend to work when you are
released Ms. McCloud?
[The Defendant]: Can you say that again, Your Honor?
[Trial Court]: Do you intend to work?
[The Defendant]: Yes, Your Honor.
[Trial Court]: When was the last time you worked, ma’am?
[The Defendant]: Actually, I was fifteen.
[Trial Court]: Ok, and how old are you now?
[The Defendant]: I’m nineteen, Your Honor.
[Trial Court]: Ok. Do you have any children, ma’am?
[The Defendant]: No, Your Honor.
Tr. p. 24. The above-quoted colloquy demonstrates that the trial court
considered McCloud’s ability to pay before imposing the $100.00 public
defender fee. The trial court’s questions mirrored the factors for considerations
set forth in Indiana Code section 33-40-3-7. Given McCloud’s stated plan to
Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017 Page 15 of 19
obtain employment once released to community corrections, the trial court’s
determination that McCloud could afford to pay a $100.00 public defender fee
was reasonable. The trial court, therefore, did not abuse its discretion in
imposing this fee.
B. Probation Fees
[26] Indiana Code section 35-38-2-1(e) provides, in relevant part, as follows:
In addition to any other conditions of probation, the court may
order each person convicted of a misdemeanor to pay:
(1) not more than a fifty dollar ($50) initial probation
user’s fee;
(2) a monthly probation user’s fee of not less than ten
dollars ($10) nor more than twenty dollars ($20) for
each month that the person remains on probation;
****
(4) an administrative fee of fifty dollars ($50);
to either the probation department or the clerk.
In the instant matter, McCloud was ordered to pay an initial probation user fee,
a $20.00 monthly user fee, and the $50.00 administrative fee, for a total of
$340.00 in probation fees.
[27] In challenging the imposition of the $340.00 in probation fees, McCloud
incorrectly asserts that the fees were imposed by the probation department,
rather than the trial court. Review of the record demonstrates otherwise.
McCloud’s probation order, which was signed and issued by the trial court, set
forth the probation fees which would apply to McCloud. As such, we conclude
that the trial court, and not the probation department, imposed the fees in
Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017 Page 16 of 19
question. We further conclude that McCloud has failed to establish that the
trial court abused its discretion in doing so.
III. Notice of Conditions of Probation
[28] McCloud last contends that the trial court abused its discretion by failing to
provide her with written notice of the terms of her probation. Indiana Code
section 35-38-2-2.3(b) provides that
When a person is placed on probation, the person shall be given
a written statement specifying:
(1) the conditions of probation; and
(2) that if the person violates a condition of probation
during the probationary period, a petition to revoke
probation may be filed before the earlier of the
following:
(A) One (1) year after the termination of
probation.
(B) Forty-five (45) days after the state
receives notice of the violation.
“Thus, the law generally requires that if a person is placed on probation, the
trial court must provide the defendant a written statement containing the terms
and conditions of probation at the sentencing hearing.” Gil v. State, 988 N.E.2d
1231, 1234 (Ind. Ct. App. 2013) (citing Kerrigan v. State, 540 N.E.2d 1251, 1252
(Ind. Ct. App. 1989)). “However, we have previously held that the trial court’s
failure to provide written probation terms may be harmless error if the
defendant has been orally advised of the conditions and acknowledges that he
understands the conditions.” Id. (citing Kerrigan, 540 N.E.2d at 1252).
Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017 Page 17 of 19
[29] Although the trial court entered written probation terms, it is unclear from the
record whether such terms were provided to McCloud. During the guilty plea
hearing, McCloud indicated that she understood that all of the standard terms
of probation would apply. At sentencing, the trial court stated the following:
During the time that you are on Probation for three hundred
sixty-five days, you shall attend an eight hour anti-conversion
class. You shall pay restitution to Sara Wilson in the amount to
be determined and we’ll set that out for a Restitution hearing at a
later time. You shall stay away from all Kroger stores in Marion
County[.]
Tr. pp. 23-24. The trial court also indicated that McCloud would be required to
pay certain fees and fines. McCloud, however, did not orally indicate that she
understood these terms. Because we are unable to determine whether McCloud
was provided notice of all of the terms of her probation, we remand the matter
to the trial court with the instruction that the trial court provide McCloud with
a copy of the written terms of her probation, if the court has not already done
so. See Gil, 988 N.E.2d at 1234 (concluding that the trial court’s error in failing
to enter written probation terms was not harmless and remanding the matter to
the trial court with the instruction that the trial court enter written probation
terms).
Conclusion
[30] In sum, we conclude that the trial court did not abuse its discretion in ordering
McCloud to pay $3772.47 in restitution to Wilson or in imposing certain fees.
Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017 Page 18 of 19
However, to the extent that we are unable to determine whether McCloud was
provided with a written copy of the terms of her probation, we remand the
matter to the trial court with the instruction that the court provide McCloud
with a copy of the written terms of her probation, if the court has not already
done so.
[31] The judgment of the trial court is affirmed and remanded.
Baker, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1194 | August 22, 2017 Page 19 of 19