John Amos v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 29 2017, 10:58 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
Suzy St. John Curtis T. Hill, Jr.
Marion County Public Defender Attorney General of Indiana
Appellate Division
Katherine Cooper
Indianapolis, IN Deputy Attorney General
Indianapolis, IN
IN THE
COURT OF APPEALS OF INDIANA
John Amos, September 29, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1703-CR-517
v. Appeal from the Marion Superior
Court, Criminal Division 16
State of Indiana, The Honorable Patrick Murphy,
Appellee-Plaintiff Magistrate
Trial Court Cause Nos.
49G16-1607-F6-020081
49G17-1610-CM-042384
Vaidik, Chief Judge.
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Case Summary
[1] John Amos was convicted of multiple misdemeanors and sentenced to
probation. At his sentencing hearing the trial court stated that it was not going
to impose any costs or fines to him, and the written order reflects this statement.
The court then sentenced Amos to probation but made no comment regarding
probation fees.
[2] After sentencing, the probation department sought clarification on the court’s
order and sent a letter to the court asking whether administrative and probation-
user fees should be imposed on Amos. The court “approved” the
memorandum sent by the probation department, and $340 in fees were charged
to Amos. The State concedes that the probation department’s letter to the court
was not a petition for fees, as required by Indiana statute, and requests that we
remand. Thus, we vacate the order charging administrative and probation-user
fees and remand for further proceedings.
Facts and Procedural History
[3] At the conclusion of Amos’s bench trial where he was found guilty of invasion
of privacy, the trial court sentenced him to one year, all suspended to probation.
During sentencing, the trial court stated, “Again, I’m not going to impose any
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fine or cost.” Cause No. 28001 Tr. Vol. II p. 28.1 The court did not make any
comment regarding probation fees.
[4] No court costs or fees were entered on the written sentencing orders. However,
in a section titled “Monetary Conditions” on the written order of probation, the
trial court wrote, “Pursuant to Indiana Statute the minimum fee allowed by law
shall be imposed.” Appellant’s App. Vol. II p. 84. The order also contains a
table for setting the monetary obligations of probation. That section of Amos’s
order provides:
Id. (blacked-out sections and blank spaces in original).
1
Amos had two separate bench trials on February 13, Cause Nos. 49G16-1607-F6-28001 and 49G16-1610-
CM-42384. The sentencing transcript is included with the transcript for the cause number ending in 28001.
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[5] On February 23, the Marion County Probation Department filed a notice with
the trial court that Amos was “eligible to be assessed” $340 in probation fees (a
$50 administrative fee, a $50 initial probation-user fee, and a $20 per month
probation-user fee for twelve months). Appellant’s App. Vol. II p. 92. The
department sought “clarification as to if the Court wish[ed] to have these fees
assessed” against Amos. Id. Four days later the trial court issued an “Order on
Memorandum of Probation” and “approved” the probation department’s
memorandum. Id. at 93. Thereafter, $340 in probation fees were charged to
Amos.
[6] Amos now appeals.
Discussion and Decision
[7] Amos argues, and the State agrees, that the memorandum sent by the probation
department did not constitute a petition to have administrative or probation fees
imposed on Amos. We agree. Indiana Code section 35-38-2-1 states that if a
defendant is “convicted of a misdemeanor, the court may order the person to
pay the user’s fee prescribed under subsection (e).” Ind. Code § 35-38-2-1(b).
Subsection (e) details the maximum amount the court may order a person to
pay for probation fees, including the administrative fee and the probation-user
fee. The probation department may petition the trial court to impose or
increase a defendant’s probation-user fee if the defendant’s financial ability to
pay has changed while he is on probation. Ind. Code § 35-38-2-1.7(b).
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[8] At sentencing, the trial court explicitly stated, “Again, I’m not going to impose
any fine or cost.” Cause No. 28001 Tr. Vol. II. p. 28. This was reflected in its
written sentencing orders when it imposed no court costs or fines. The trial
court was silent on the issue of probation fees, despite sentencing Amos to
probation. In the written probation order, the court blacked out or left blank
each row under the column “ordered amount.” Yet, two weeks after the
sentencing hearing, the court “approved” $340 in administrative and probation-
user fees based on a clarification request from the probation department. The
State concedes that this request was not a petition to impose probation fees and
asks us to remand. Accordingly, we vacate the order imposing $340 in
administrative and probation-user fees and remand to the trial court to clarify
what, if any, probation fees will be imposed on Amos, including the category of
fee(s) and the amount.2
[9] Vacated and remanded with instructions.
Mathias, J., and Crone, J., concur.
2
Amos also argues that if the trial court orders probation fees, it must conduct an indigency hearing at the
time the fees are imposed. Amos relies on Indiana Code section 33-37-2-3 to support his argument. This
statute states, “[W]hen the court imposes costs, it shall conduct a hearing to determine whether the convicted
person is indigent.” Ind. Code § 33-37-2-3(a). But the statute does not dictate when this hearing is to occur.
If the State seeks to revoke a defendant’s probation for failure to pay costs and/or fees, the trial court must
hold the indigency hearing before revoking probation. Johnson v. State, 27 N.E.2d 793, 795 n.1 (Ind. Ct. App.
2015); see also Whedon v. State, 765 N.E.2d 1276, 1279 (Ind. 2002) (“[W]hen fines or costs are imposed upon
an indigent defendant, such a person may not be imprisoned for failure to pay the fines or costs.”).
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