Kimberley Kennebrew v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
FILED
Memorandum Decision shall not be regarded as Oct 02 2017, 7:04 am
precedent or cited before any court except for the CLERK
purpose of establishing the defense of res judicata, Indiana Supreme Court
Court of Appeals
collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Victoria L. Bailey Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kimberley Kennebrew, October 2, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1701-CR-1
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Amy M. Jones,
Judge
Appellee-Plaintiff
Trial Court Cause No.
46G08-1601-CM-2729
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-1 | October 2, 2017 Page 1 of 4
Case Summary
[1] Appellant-Defendant Kimberley Kennebrew was convicted of two counts of
Class A misdemeanor battery and the trial court entered judgment accordingly.
In an amended judgment, the trial court merged the two convictions into one
and, inter alia, imposed a $50 public defender fee. Kennebrew contends, and
the State concedes, that the trial court abused its discretion in imposing the
public defender fee. We reverse the trial court’s order that Kennebrew pay a
public defender fee and remand for further proceedings.
Facts and Procedural History
[2] On January 21, 2016, the State of Indiana charged Kennebrew with two counts
of Class A misdemeanor battery. The imposition of a public defender fee was
apparently not discussed at the initial hearing. On December 12, 2016, a jury
found Kennebrew guilty as charged, and the trial imposed a 365-day sentence
and $183 in court costs. On December 15, 2016, on Kennebrew’s motion, the
trial court found Kennebrew indigent as to court costs and probation fees.
Kennebrew filed her notice of appeal on January 4, 2017.
[3] On March 7, 2017, the trial court held a restitution hearing in Kennebrew’s
case. While the trial court did not order restitution, it did issue an amended
sentencing order in which it merged Kennebrew’s conviction on Count II into
her conviction on Count I. At the restitution hearing, the subject of imposing a
public defender fee was not raised by either of the parties or the trial court.
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However, the trial court’s amended sentencing order shows that a $50 public
defender fee was now listed among Kennebrew’s obligations. On March 23,
2017, Kennebrew filed a motion with this court asking to incorporate the
March 7, 2017, proceedings into the record on appeal, which motion was
granted on March 29, 2017.1
Discussion and Decision
[4] Kennebrew contends, and the State concedes, that the trial court abused its
discretion in imposing a $50 public defender fee as part of her sentence. A trial
court’s decision to impose fees as part of a criminal defendant’s sentence is
reviewable 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)). When a trial court imposes a fee authorized by statute, no abuse
of discretion will be found. Jackson, 968 N.E.2d at 333. There are three statutes
under which a trial court may impose a public defender fee. See Langdon v.
State, 71 N.E.3d 1162, 1164 (Ind. Ct. App. 2017). Indiana Code section 33-35-
7-6(a) permits a trial court to issue a public defender before the completion of
the initial hearing coupled with a determination of whether the defendant is
indigent. If found indigent, the fee is $100 for felony representation and $50 for
misdemeanor representation. Id. Indiana Code section 33-40-3-6 permits a trial
1
On July 7, 2017, the State filed a motion to dismiss Kennebrew’s appeal, which motion Kennebrew
opposed and our motions panel held in abeyance. In an order issued the same day as this memorandum
decision, we deny the State’s motion to dismiss as moot.
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court, upon a finding that a defendant can pay the costs of representation, to
impose reasonable attorney fees. Finally, Indiana Code Section 33-37-2-3
permits a trial court to impose a public defender fee upon a convicted defendant
if the defendant is not found indigent. See Langdon, 71 N.E.3d at 1164.
[5] There is no dispute that the trial court’s imposition of the public defender fee
without a hearing constitutes an abuse of discretion. The only question before
us is the one of the appropriate remedy, with Kennebrew requesting that we
simply vacate the fee, and the State requesting that we remand the case for
further proceedings. Because the issue of a public defender fee did not arise in
the trial court, there is, quite simply, no way to know if such a fee can be
justified on the record before us. In a similar case, we concluded that the
proper remedy was to “remand to the trial court with instructions to observe the
statutory requirements if it intends to impose public defender fees.” Jackson,
968 N.E.2d at 334. We see no reason to deviate from that approach in this
case. We remand for further proceedings consistent with our holding in
Jackson.
[6] The judgment of the trial court is reversed in part and remanded with
instructions.
May, J., and Barnes, J., concur.
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