Lucino Jorge 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 Oct 04 2017, 7:42 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
Larry D. Allen
Indianapolis, IN Deputy Attorney General
Indianapolis, IN
IN THE
COURT OF APPEALS OF INDIANA
Lucino Jorge, October 4, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1703-CR-401
v. Appeal from the Marion Superior
Court, Criminal Division 10
State of Indiana, The Honorable Linda Brown,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G10-1602-CM-5419
Vaidik, Chief Judge.
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Case Summary
[1] Lucino Jorge was convicted of two misdemeanors and sentenced to one year of
supervised probation. At sentencing the trial court ordered “standard”
probation fees without specifying what fees qualified as “standard” or
specifying a dollar amount for those fees. Two weeks after sentencing,
administrative and probation-user fees totaling $340 were charged to Jorge.
Finding nothing in the record to indicate that the trial court imposed these fees,
we vacate the fees and remand for further proceedings.
Facts and Procedural History
[2] Immediately following a bench trial where Jorge was found guilty of operating
a vehicle while intoxicated in a manner that engenders a person, the trial court
sentenced Jorge to supervised probation for one year. The court stated, “Sir,
you will be on probation for [one year] with all the standard conditions and fees
of probation.” Tr. p. 30. But the court did not specify what fees qualified as
“standard” nor did it specify the amount for each probation fee. The court also
ordered Jorge to pay a $200 countermeasure fee, $183.50 in court costs, and a
$50 fine, totaling $433.50. Id. at 31; Appellant’s App. Vol. II p. 12.
[3] The trial court issued a written sentencing order the same day. It includes a
section titled “Sentencing Conditions” that says, “[365] days on probation, all
standard conditions and fees of probation, no alcohol while on probation.”
Appellant’s App. Vol. II pp. 11-12. The order also contains a section titled
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“Monetary Obligations” that lists the breakdown of the $433.50 that Jorge was
ordered to pay. This section does not list any probation fees. The written
probation order, also issued on January 31, lists fourteen standard conditions,
including “pay all Court-ordered fines, costs, fees, and restitution as directed.”
Id. at 36. This order also lists special conditions, which are identical to the
“Sentencing Conditions,” and the order contains a table for setting the
monetary obligations of probation. That section of Jorge’s order provides:
Id. (blacked-out sections and blank spaces in original). The chronological case
summary (CCS) reflects that on February 13, two weeks after the sentencing
hearing, Jorge was charged $340 in probation fees—an administrative fee of $50
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and a probation-user fee of $290 (a $50 initial probation-user fee and a $20 per
month probation-user fee for twelve months). Id. at 40, 43.1
[4] Jorge appeals.
Discussion and Decision
[5] Jorge argues that the $340 in probation fees should not be charged to him
because they were not part of the trial court’s sentencing or probation orders.
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 State contends
that the probation fees are proper because “all of the [probation] fees alleged are
within the statutory limits and were clearly part of the trial court’s intended
order.” Appellee’s Br. p. 11. But the fact that Jorge’s probation fees total an
amount that falls within statutory limits does not mean that they were imposed
according to the statute. The statute permits only the trial court to set these
fees, but nothing in the record indicates that the trial court did so in this case.
1
There is no indication in the record how this $340 charge came to be, i.e., whether it was the result of some
action by the judge, the judge’s staff, the clerk’s office, the probation department, or some combination
thereof.
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[6] In its orders, the trial court stated that Jorge would have to pay the “standard”
probation fees, but it did not specify what fees were “standard” nor did it
specify the amount of those fees. While it appears that the trial court intended
to order Jorge to pay probation fees, there is no evidence that the court itself set
the fees that later appeared on the CCS. See Coleman v. State, 61 N.E.3d 390
(Ind. Ct. App. 2016) (vacating probation and other fees that were charged just
one day after sentencing because they were not part of the trial court’s
sentencing or probation orders).
[7] The State also argues that the trial court, nevertheless, properly ordered the
administrative and probation-user fees without specifying an amount because
the court stated that it was ordering the “standard” fees of probation. The State
contends that the Marion County trial courts “streamline” the imposition of
probation fees by ordering the “standard” fees. Appellee’s Br. p. 12.
Specifically, the State claims that the court’s language refers to its local rule
LR49-CR00-115(b), which states in part:
In addition to costs as set out by I.C. 33-37-4-1 whenever an
individual is placed on probation, or without placing a person on
probation[,] the following fees and costs shall be imposed under
the Probation Court or Probation Order unless the sentencing
Judge specifically modifies the Order.
But the local rule never identifies what the “standard” fees of probation are or
states their amounts, nor does it include the above chart that appears on the
written probation order. “The local rule does not provide what amounts should
be imposed for each specific fee.” De La Cruz v. State, 80 N.E.3d 210, 215 (Ind.
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Ct. App. 2017). And thus, the local rule does not operate as an order for
probation fees.2 We vacate the $340 administrative and probation-user fees and
remand to the trial court to specifically determine what, if any, probation fees
will be imposed on Jorge, including the category and amount.3
[8] Vacated and remanded with instructions.
Mathias, J., and Crone, J., concur.
2
The defects with the trial court’s sentencing order can be cured easily. The court only needs to provide the
defendant with a written list of its “standard” fees at the time of sentencing. This list should be tailored to the
level of offense and delineate each fee by name and amount. Thus, the court would then be free to sentence
the defendant to “standard fees” without having to verbally enunciate each fee as part of the sentencing
order.
3
Jorge also argues that because the trial court ordered him to pay costs, fines, and fees the court is required to
conduct an indigency hearing. Jorge 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.
In any event, if revocation of probation is a result of a defendant’s failure to pay fees and/or costs, the trial
court must hold the indigency hearing before revoking probation. Johnson v. State, 27 N.E.3d 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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