Aaron A. Negash v. State of Indiana

FILED
Dec 11 2018, 9:22 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Talisha Griffin Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Aaron A. Negash, December 11, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-840
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable David J. Certo,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G09-1705-CM-18997
Pyle, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018 Page 1 of 22
Statement of the Case
[1] Aaron Negash (“Negash”) appeals his convictions, following a bench trial, for
Class A misdemeanor carrying a handgun without a license 1 and Class A
misdemeanor possession of a synthetic drug or lookalike substance.2 Negash
argues that: (1) the trial court abused its discretion when it admitted the
synthetic marijuana he possessed into evidence because it had been seized
pursuant to an illegal search; (2) there was insufficient evidence to support his
carrying a handgun without a license conviction; and (3) the trial court erred by
ordering Negash to pay probation fees.
[2] We conclude that: (1) the trial court properly admitted the evidence; (2) there
was sufficient evidence to support his carrying a handgun without a license
conviction; and (3) the trial court did not err in imposing probation fees.
However, we remand to the trial court to hold an indigency hearing upon the
completion of Negash’s sentence.
[3] We affirm and remand with instructions.
Issues
1. Whether the trial court abused its discretion when it admitted the
synthetic marijuana into evidence.
1
IND. CODE § 35-47-2-1.
2
I.C. § 35-48-4-11.5.
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2. Whether there was sufficient evidence to support Negash’s carrying a
handgun without a license conviction.
3. Whether the trial court abused its discretion by ordering Negash to pay
probation fees.
Facts
[4] On the night of May 22, 2017, police from the Indianapolis Metropolitan Police
Department were dispatched to the Living Room Lounge in Indianapolis on a
report of shots fired. When Officer Matthew Plummer (“Officer Plummer”)
and Sergeant Mark Gregory (“Sgt. Gregory”) arrived on scene, a suspect was
already in custody. They learned that another vehicle was involved in the
incident and that a vehicle with three occupants was parked behind the
building. Officer Plummer and Sgt. Gregory “walked up and started conversing
with the occupants in the vehicle.” (Tr. 12).
[5] Negash, who identified himself as “Moses,” was seated in the driver’s seat of
the vehicle.3 (Tr. 23). There was one front-seat passenger and one back-seat
passenger. Officer Plummer spoke with Negash and the back-seat passenger
and informed them that he and Sgt. Gregory were investigating a report of shots
fired. Officer Plummer asked the occupants whether they “had [] heard
anything, [and] [whether] there [were] any weapons in the vehicle[.]” (Tr. 12).
The three occupants responded “no.” (Tr. 12). While Officer Plummer focused
3
Moses Negash (“Moses”) is Negash’s brother. During the bench trial, Moses testified that he owned the
handgun and vehicle. He further testified that he allowed Negash to use the vehicle that night and left the
handgun in his car that day, something he does not normally do.
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on Negash and the back-seat passenger, Sgt. Gregory spoke to the front-seat
passenger, who was “moving around, reaching for the glovebox, going for his
wristband, [and] pulling his shirt up.” (Tr. 13). The back-seat passenger did
not say anything to Officer Plummer, but he pointed to Negash and made “the
outline [of] a gun with his index finger and his thumb.” (Tr. 13).
[6] Officer Plummer then asked Negash to step out of the vehicle. As Negash
stepped out of the vehicle, Officer Plummer observed “a huge bulge in
[Negash’s] right pocket, sticking out, protruding.” (Tr. 14). Officer Plummer
immediately conducted a pat-down of the outer layer of Negash’s clothing and
felt “a baggie of narcotics.” (Tr. 14). During the pat-down, Officer Plummer
also “looked down as [he] patted down and [could] see straight into the
pocket.” (Tr. 15). Based on his experiences as a law enforcement officer,
Officer Plummer recognized that the baggie contained synthetic marijuana. 4
Officer Plummer arrested Negash and seized the synthetic marijuana. The
police then searched the vehicle and located a handgun in the glovebox. The
hammer of the handgun was cocked back and the gun was loaded.
4
In explaining how he was able to identify that the baggie contained synthetic marijuana, Officer Plummer
testified as follows:
Since I’ve been downtown, synthetic marijuana has plagued the downtown district. I’ve
only been downtown for approximately, a little over two years. I’ve come into contact
with it approximately 100 plus times. I’m familiar with it. I’m familiar with how
individuals act while smoking the spice. And then just, it’s something I’ve come across a
lot in my investigations downtown.
(Tr. 15-16).
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[7] Negash stood at the hood of the police vehicle while Officer Plummer was in
the same vehicle trying to verify Negash’s identity in the computer system. Sgt.
Gregory leaned into Officer Plummer’s window and asked, “is someone going
to be arrested for the gun?” (Tr. 27). Negash interjected and stated, “I have a
permit for that gun. It’s in the trunk.” (Tr. 27). Officer Plummer went to the
trunk but did not find a gun permit.
[8] The State charged Negash with Class A misdemeanor carrying a handgun
without a license and Class A misdemeanor possession of a synthetic drug or
lookalike substance. A bench trial was held on February 13, 2018. At trial,
Officer Plummer and Moses Negash testified to the facts above. When the
State introduced the synthetic marijuana into evidence, defense counsel
objected and stated the following:
I do object to State’s exhibit 1, Your Honor, and I would call for
the baggie and its contents and the testimony around it to be
excluded under the application of the exclusionary rule. It’s fruit
of the poisonous tree from an unlawful search.
* * *
When he asked Mr. Negash to step out of the car, it became a
detention, and at that time Mr. Negash was not advised of his
[P]irtle rights.
* * *
It wasn’t a gun, and he used further intrusive means of looking
into my client’s pocket and violated his right to having a warrant
for any search or consenting to a search by being read his [P]irtle
rights and waiving those rights.
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(Tr. 18). The trial court overruled the objection and admitted the synthetic
marijuana into evidence. The trial court found Negash guilty of both counts.
[9] Thereafter, the trial court held a sentencing hearing. During this hearing, the
trial court ordered Negash to “do [] [three hundred and five] (305) days on
probation with the standard conditions and fees.” (Tr. 62). Additionally, the
sentencing order, under the “Amount/Comment” section of “Part IV
Sentencing Conditions[,]” provided, in relevant part, that: Negash would be
subject to all “standard conditions and fees” of probation. (App. Vol. II at 13).
Further, the sentencing order, under the “Court Costs and Fees” section of
“Part V Monetary Obligations[,]” provided, in relevant part, that Negash was
obligated to pay: a $50.00 adult probation administrative fees; a $281.30 adult
probation month and initial user fee; and a $8.70 probation user fee. (App. Vol.
II at 14). The probation order for Negash lists fourteen standard conditions,
including “pay all Court-ordered fines, costs, fees and restitution as directed.”
(App. Vol. II at 15). The special conditions section of the probation order
includes that same conditions as in the sentencing order. The trial court
imposed a sentence of thirty (30) days in the Marion County Jail, with the
remaining three hundred and five (305) days to be served on probation with all
the standard conditions and fees for each of the Class A misdemeanor
convictions. The trial court ordered both convictions to run concurrently.
Negash now appeals.
Decision
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[10] On appeal, Negash argues that: (1) the trial court abused its discretion when it
admitted the synthetic marijuana he possessed into evidence because it had
been seized pursuant to an illegal search; (2) there was insufficient evidence to
support his carrying a handgun without a license conviction; and (3) the trial
court erred in imposing probation fees. We will review each argument in turn.
1. Admission of Evidence
[11] First, Negash argues that the trial court abused its discretion when it admitted
into evidence the synthetic marijuana Officer Plummer had seized.
Specifically, he argues that the search that produced the synthetic marijuana
was illegal because it violated his rights under the Fourth Amendment to the
United States Constitution and Article 1, Section 11 of the Indiana
Constitution.
[12] The admission of evidence is generally left to the discretion of the trial court.
Hammond v. State, 82 N.E.3d 880, 884 (Ind. Ct. App. 2017). We review
admissibility challenges for an abuse of that discretion and will reverse only
when the admission of evidence is clearly against the logic and effect of the facts
and circumstances before the court and the error affects the party’s substantial
rights. Id. “‘[W]hen an appellant’s challenge to such a ruling is predicated on
an argument that impugns the constitutionality of the search or seizure of
evidence, it raises a question of law, and we consider that question de novo.’”
Id. (quoting Guilmette v. State, 14 N.E.3d 38, 40-41 (Ind. 2014)). Generally
Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018 Page 7 of 22
speaking, evidence obtained pursuant to an unlawful search must be excluded
at trial. Clark v. State, 994 N.E.2d 252, 266 (Ind. 2013).
A. United States Constitution
[13] The Fourth Amendment to the United States Constitution provides that citizens
have the right to be “secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures[.]” U.S. CONST. amend. IV. We begin by
noting that there are three levels of police investigation, two of which implicate
the Fourth Amendment and one of which does not. Overstreet v. State, 724
N.E.2d 661, 663 (Ind. Ct. App. 2000), reh’g denied, trans denied. First, the
Fourth Amendment requires that an arrest or detention that lasts for more than
a short period of time must be justified by probable cause. Id. Second, the
police may, without a warrant or probable cause, briefly detain an individual
for investigatory purposes if, based upon specific and articulable facts, the
officer has a reasonable suspicion that criminal activity has or is about to occur.
Id. The third level of investigation occurs when a police officer makes a casual
and brief inquiry of a citizen, which involves neither an arrest nor a stop. Id.
This third level is a consensual encounter in which the Fourth Amendment is
not implicated. Id. The Fourth Amendment is not triggered unless an
encounter between a law enforcement officer and a citizen loses its consensual
nature. Id.
[14] A law enforcement officer’s approach to a vehicle parked in a public place does
not itself implicate the Fourth Amendment. Powell v. State, 912 N.E.2d 853,
Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018 Page 8 of 22
861 (Ind. Ct. App. 2009). While the individual remains free to leave, the
encounter is consensual and there has been no violation of the individual’s
Fourth Amendment rights. State v. Calmes, 894 N.E.2d 199, 202 (Ind. Ct. App.
2008). “Detention turns on an evaluation, under all the circumstances, of
whether a reasonable person would feel free to disregard the police and go
about his or her business.” Finger v. State, 799 N.E.2d 528, 532 (Ind. 2003).
Examples of circumstances under which a reasonable person would believe he
was not free to leave include: (1) the threatening presence of several officers, (2)
the display of a weapon by an officer, (3) physical touching of the person, or (4)
the use of language or tone of voice indicating that compliance with the officer’s
request might be compelled. Overstreet, 724 N.E.2d at 664.
[15] Here, Negash was seated in a vehicle that was parked behind the Living Room
Lounge. The record reveals that Officer Plummer and Sgt. Gregory
approached the vehicle on foot. The officers displayed no weapons as they
approached Negash’s vehicle. Nor did they use any language or speak in a tone
of voice which mandated compliance. We cannot say that Officer Plummer’s
approach to the parked vehicle and initial contact with Negash constituted an
investigatory stop or seizure under the Fourth Amendment. Therefore, Officer
Plummer did not have to possess reasonable suspicion of wrong doing in order
to approach the vehicle to ask Negash and other occupants their purpose for
being in the area. See Overstreet, 724 N.E.2d at 664 (holding that an interaction
between an officer and the defendant was a consensual encounter and thus the
Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018 Page 9 of 22
officer was not required to possess reasonable suspicion of wrongdoing to
approach the defendant).
[16] Negash argues that Officer Plummer’s request for Negash to exit the vehicle
and subsequent pat-down of Negash’s pocket violated the Fourth Amendment.
It is well-settled that an officer may conduct a
reasonable search for weapons for the protection of the police
officer, where he has reason to believe that he is dealing with an
armed and dangerous individual, regardless of whether he has
probable cause to arrest the individual for a crime. The officer
need not be absolutely certain that the individual is armed; the
issue is whether a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or that of others
was in danger.
Wilson v. State, 745 N.E.2d 789, 792 (Ind. 2001) (quoting Terry v. Ohio, 392 U.S.
1, 27 (1968)).5 After Officer Plummer explained that he was there investigating
a report of shots fired and asked Negash and the back-seat passenger if they had
heard anything, the back-seat passenger pointed to Negash and made “the
outline [of] a gun with his index finger and his thumb.” (Tr. 13). Additionally,
the front seat passenger acted suspiciously by “moving around, reaching for the
glovebox, going for his waistband, [and] pulling his shirt up.” (Tr. 13). See
Wyoming v. Houghton, 526 U.S. 295, 304-05 (1999) (noting that “a car passenger
. . . will often be engaged in a common enterprise with the driver, and have the
same interest in concealing the fruits or the evidence of their wrongdoing”).
5
In Terry v. Ohio, the Supreme Court defined a “Terry” frisk as a pat down search that involves a “carefully
limited search of the outer clothing of the suspect in an attempt to discover weapons which might be used to
assault [an officer].” Shinault v. State, 668 N.E.2d 274, 277 (Ind. Ct. App. 1996).
Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018 Page 10 of 22
Taken together, we conclude that Officer Plummer had reason to believe that
he was dealing with an individual who was likely armed and dangerous, thus
supporting his request that Negash step out of the vehicle and the subsequent
pat down. As soon as Negash stepped out of the vehicle, Officer Plummer
observed “a huge bulge in his right pocket, sticking out, protruding.” (Tr. 14).
Officer Plummer then conducted a limited search of Negash’s outer clothing
and felt “a baggie of narcotics,” which he could also see inside of Negash’s right
pocket. (Tr. 14). Because Officer Plummer saw the synthetic marijuana,
seizure of the baggie was proper pursuant to the “plain view doctrine.” See
Corwin v. State, 962 N.E.2d 118, 122 (Ind. Ct. App. 2012) (holding that the
warrantless seizure of contraband is justified during a Terry frisk if the object’s
identity as contraband is “immediately apparent or instantaneously
ascertainable”), trans. denied. See also Hannibal v. State, 804 N.E.2d 206, 210-11
(Ind. Ct. App. 2004) (concluding that the seizure of marijuana was proper
under the plain view doctrine). Therefore, the initial encounter, request for
Negash to exit the vehicle, and subsequent pat down did not violate the Fourth
Amendment.
B. Article 1, Section 11 of the Indiana Constitution
[17] Negash also asserts that Officer Plummer’s initial approach towards the vehicle
and subsequent pat-down violated Article 1, Section 11 of the Indiana
Constitution. Article 1, Section 11, like the Fourth Amendment, prohibits
unreasonable searches and seizures. However, the legality of a search under the
Indiana Constitution “turns on an evaluation of the reasonableness of the police
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conduct under the totality of the circumstances.” Litchfield v. State, 824 N.E.2d
356, 359 (Ind. 2005). Reasonableness of a search depends on a balance of: (1)
the degree of concern, suspicion, or knowledge that a violation has occurred; (2)
the degree of intrusion the method of the search or seizure imposes on the
citizen’s ordinary activities; and (3) the extent of law enforcement needs. Id. at
361. “It is the State’s burden to show that its intrusion into ‘those areas of life
that Hoosiers regard as private,’ was reasonable under the totality of the
circumstances.” Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2013) (quoting
State v. Quirk, 842 N.E.2d 334, 339-40 (Ind. 2006)).
[18] The State argues that Negash has waived this state constitutional claim because
he did not object to the admission of evidence on those grounds before the trial
court. At trial, Negash objected to the search on the grounds he was not
provided with the warnings required under Pirtle v. State, 323 N.E.2d 634
(1975), and that the search violated the Fourth Amendment. On appeal, his
argument is based on the factors from Litchfield. “It is well-settled in Indiana
that a defendant may not argue one ground for objection at trial and then raise
new grounds on appeal.” Gill v. State, 730 N.E.2d 709, 711 (Ind. 2000).
Accordingly, we agree with the State that Negash has waived his state
constitutional claim. See Redfield v. State, 78 N.E.3d 1104, 1108 (Ind. Ct. App.
2017) (finding waiver when, “in his arguments to the trial court, Redfield
mentioned Article 1, Section 11 but did not provide any independent analysis
under that provision of the laws and facts”), trans. denied.
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[19] Waiver notwithstanding, it is clear that Officer Plummer’s initial approach and
subsequent pat-down were reasonable under Article 1, Section 11. Specifically,
he had a high degree of suspicion that a violation had occurred because he was
in the process of investigating a report of shots fired with an alleged suspect still
at large; the front-seat passenger was acting suspiciously and making furtive
gestures; and the back-seat passenger pointed to Negash and made “the outline
[of] a gun with his index finger and his thumb.” (Tr. 13). Then, Officer
Plummer observed a “huge bulge in [Negash’s] right pocket, sticking out,
protruding.” (Tr. 14). Officer Plummer then patted down the outer layer of
Negash’s clothing and felt “a baggie of narcotics,” and he could see the baggie
of synthetic marijuana in Negash’s pocket. (Tr. 14).
[20] In addition, the degree of intrusion was slight. The record reveals that the
police approached Negash’s vehicle on foot and did not impede his movement.
Officer Plummer did not display a weapon, show any force, or put his hands on
Negash until he had reason to believe that Negash was armed and dangerous.
Even then, the degree of intrusion for the initial search was low. See Robinson v.
State, 5 N.E.3d 362, 368 (Ind. 2014) (describing a Terry stop as a “relatively
minor” intrusion).
[21] Finally, law enforcement needs were high. The police were investigating a
shooting where an alleged suspect was still at large. As detailed above, based
on the front-seat passenger’s behavior and the backseat passenger’s signal that
Negash possessed a gun, Officer Plummer needed to conduct a pat down of
Negash for weapons for police and public safety.
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[22] In light of the above factors, we conclude that Officer Plummer’s search was
reasonable and did not violate the Indiana Constitution. Because we have also
found that the search did not violate the Fourth Amendment, we, thus, also
conclude that the trial court did not abuse its discretion in admitting into
evidence the synthetic marijuana discovered in Negash’s pocket.
2. Sufficiency of Evidence
[23] Next, Negash challenges the sufficiency of the evidence for his carrying a
handgun without a license conviction. He specifically contends that there is
insufficient evidence that he possessed the handgun. Our standard of review for
sufficiency of evidence claims is well-settled. We do not assess the credibility of
the witnesses or reweigh the evidence in determining whether the evidence is
sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We consider only
the probative evidence and reasonable inferences supporting the verdict. Id.
Reversal is appropriate only when no reasonable fact-finder could find the
elements of the crime proven beyond a reasonable doubt. Id. Thus, the
evidence is not required to overcome every reasonable hypothesis of innocence
and is sufficient if an inference may reasonably be drawn from it to support the
verdict. Id. at 147.
[24] In order to convict Negash of carrying a handgun without a license, the State
was required to prove beyond a reasonable doubt that Negash “carr[ied] a
handgun in any vehicle or on or about [his] body without being licensed under
this chapter to carry a handgun.” I.C. § 35-47-2-1. To prove that a defendant
Court of Appeals of Indiana | Opinion 18A-CR-840 | December 11, 2018 Page 14 of 22
possessed contraband, the State may prove either actual or constructive
possession. Eckrich v. State, 73 N.E.3d 744, 746 (Ind. Ct. App. 2017), trans.
denied. Actual possession occurs “when a person has direct physical control
over [an] item.” Sargent v. State, 27 N.E.3d 729, 733 (Ind. 2015). When a
person does not have direct physical control over an item, as was the case here,
the person may still have constructive possession of the item if he “‘has (1) the
capability to maintain dominion and control of [it]; and (2) the intent to
maintain dominion and control over it.’” Id. (quoting Gray v. State, 957 N.E.2d
171, 174 (Ind. 2011)). In cases where the accused has exclusive possession of
the premises on which the contraband is found, an inference is permitted that
he knew of the presence of the contraband and was capable of controlling it.
Harrison v. State, 32 N.E.3d 240, 248 (Ind. Ct. App. 2015), trans. denied.
“[W]hen possession of the premises is non-exclusive, th[e] inference is
permitted only if some additional circumstances indicate the defendant’s
knowledge of the presence of the contraband and the ability to control it.” Id.
Some of these recognized additional circumstances include: (1) incriminating
statements made by the defendant; (2) attempted flight or furtive gestures; (3) a
drug manufacturing setting; (4) proximity of the defendant to the contraband;
(5) the contraband being in plain view; and (6) the location of the contraband
being in close proximity to items owned by the defendant. Id.
[25] Here, Negash had the capability to maintain dominion and control over the
handgun. The State meets this requirement when it “shows that the defendant
is able to reduce the [contraband] to [the] defendant’s personal possession.”
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Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified on reh’g on other
grounds, 685 N.E.2d 698 (Ind. 1997). Because the handgun was in the glove
compartment and easily within reach of the driver’s seat, Negash was able to
reduce the handgun to his personal possession. See id. at 1275.
[26] Although Negash did not have exclusive possession of the vehicle where the
firearm was found, there were additional circumstances proving Negash’s
knowledge of the presence of the handgun and ability to control it. First,
Negash made an incriminating statement. When Sgt. Gregory asked Officer
Plummer if “someone [was] going to be arrested for the gun,” Negash
interjected, “I have a permit for that gun. It’s in the trunk.” (Tr. 27). This
claim of possessing a permit for the gun suggests Negash owned the handgun.
In addition, the glovebox containing the handgun was in close proximity to
Negash. Together, the incriminating statement and the Negash’s close
proximity to the handgun demonstrate the additional circumstances required to
show his knowledge of the handgun and ability to maintain dominion and
control over it.
[27] Based on this evidence, we find there was sufficient evidence that Negash
constructively possessed the handgun to support his conviction for carrying a
handgun without a license. Negash’s arguments are simply a request that we
reweigh the evidence, which we cannot do. See Drane, 867 N.E.2d at 146.
3. Probation Fees
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[28] Finally, Negash challenges the trial court’s decision regarding probation fees.
He raises two, alternative arguments. First, Negash argues that the trial court
“did not intend to impose the [probation] fees listed in the Sentencing Order.”
(Negash’s Br. 28). Alternatively, he argues that if the trial court did impose
fees, the trial court abused its discretion because it did not conduct an indigency
hearing to determine if he is capable of paying the fees assessed to him.
[29] “Sentencing decisions include decisions to impose fees and costs[,]” and “we
review a trial court’s sentencing decision for an abuse of discretion.” Coleman v.
State, 61 N.E.3d 390, 392 (Ind. Ct. App. 2016). An abuse of discretion occurs
“when the sentencing decision is clearly against the logic and effect of the facts
and circumstances before the court, or the reasonable, probable, and actual
deduction to be drawn therefrom.” Id. “‘If the fees imposed by the trial court
fall within the parameters provided by statute, we will not find an abuse of
discretion.’” Id. (quoting Berry v. State, 950 N.E.2d 798, 799 (Ind. Ct. App.
2011)).
[30] The statute governing probation provides that whenever a trial court places a
person on probation, the court is required to, among other things, “specify in
the record the conditions of probation[.]” IND. CODE § 35-38-2-1(a). “If the
person was convicted of a misdemeanor, the court may order the person to pay
the user’s fee prescribed under subsection (e).” I.C. § 35-38-2-1(b) (emphasis
added). Subsection (e) sets forth a list of fees, including the maximum amount
for an initial probation user’s fee, and the maximum and minimum amount for
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a monthly probation user’s fee, that the trial “court may order each person
convicted of a misdemeanor to pay[.]” I.C. § 35-38-2-1(e) (emphasis added).6
[31] In Marion County, a local rule also provides that,
whenever an individual is placed 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. The fees and costs collected under the Court or
Probation Order shall be applied in this following descending
order of priority:
Administrative fee
Probation User fee
...
Marion LR49-CR00-115(b).
[32] First, Negash argues that the trial court “did not intend to impose” any
probation fees. (Negash’s Br. 28). Negash acknowledges that the trial court
listed probation fees on the sentencing order, but he argues that because the
ordered amount lines for the Probation Administrative Fee, Initial Probation
User Fee, and Monthly Probation Fee on the order of probation form are blank,
6
Subsection (e) of INDIANA CODE § 35-38-2-1 provides 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; (3) the costs
of the laboratory test or series of tests to detect and confirm the presence of the
human immunodeficiency virus (HIV) antigen and antibodies to the human
immunodeficiency virus (HIV) if such tests are required by the court under
section 2.3 of this chapter; and (4) administrative fee of fifty dollars ($50); to
either the probation department or the clerk.
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“such action shows [that] the trial court did not intend to impose the fees listed
in the Sentencing Order.” (Negash’s Br. 28). The State responds that the trial
court did order specific statutory probation fees on page two of the sentencing
order: a $50.00 adult probation administrative fee; a $281.30 adult probation
monthly and initial user fee; and a $8.70 probation user fee. The State contends
that the “trial court did not abuse its discretion by ordering probation fees on
page two of the [Marion County Sentencing] order instead of on page three.”
(State’s Br. 2).
[33] The “Marion County Sentencing Order” consisted of four pages. (see App. Vol.
II 13-16). Pages one and two are made up of the sentencing order. Pages three
and four are made up of the probation order. At sentencing, the trial court
ordered Negash to “do those [three hundred and five] (305) days on probation
with the standard conditions and fees.” (Tr. 62). Additionally, the sentencing
order, under the “Amount/Comment” section of “Part IV Sentencing
Conditions[,]” provided, in relevant part, that: Negash would be subject to all
“standard conditions and fees” of probation. (App. Vol. II at 13). Importantly,
the sentencing order also included a section for monetary obligations. That
section of Negash’s order reads as follows:
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(App. Vol. II at 14). Further, the order of probation provides, in relevant part,
as follows:
(App. Vol. II at 15). Negash is correct that the lines to fill out the fee amounts
for the Probation Administrative Fee; Initial User Fee; and Monthly Probation
Fee on the order of probation within the Marion County Sentencing Order are
blank. However, the special conditions section on the order of probation
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includes all standard conditions and fees of probation. Based on the above, the
trial court exercised its discretion and ordered probation fees.
[34] Turning to Negash’s alternative argument, we agree that the trial court is
required to hold an indigency hearing when imposing probation fees. See
Johnson v. State, 27 N.E.3d 793, 795 (Ind. Ct. App. 2015) (explaining that a trial
court is required to hold an indigency hearing for probation fees); see also I.C. §
33-37-2-3 (providing that a court must conduct an indigency hearing when
imposing costs); I.C. § 35-38-1-18 (providing that a court must conduct an
indigency hearing when imposing a fine). However, there is no requirement as
to when the indigency hearing must be held. See Johnson, 27 N.E.3d at 795. In
regards to probation fees, our Court has explained that “[a] trial court acts
within its authority when it chooses to wait and see if a defendant can pay
probation fees before it finds the defendant indigent.” Id. See also Whedon v.
State, 765 N.E.2d 1276, 1279 (Ind. 2002) (explaining that “a defendant’s
financial resources are more appropriately determined not at the time of initial
sentencing but at the conclusion of incarceration, thus allowing consideration of
whether the defendant may have accumulated assets through inheritance or
otherwise”). “At the latest, an indigency hearing for probation fees should be
held at the time a defendant completes his sentence.” Johnson, 27 N.E.3d at
795. Therefore, because the trial court imposed probation fees, it will need to
hold an indigency hearing, at the latest, at the time that Negash completes his
sentence.
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[35] Affirmed and remanded with instructions.
Najam, J., and Crone, J., concur.
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