Love Barefield 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 03 2020, 8:49 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
Christopher Taylor-Price Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Tina L. Mann
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Love Barefield, September 3, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-32
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Grant Hawkins,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G05-1807-F6-23881
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-32 | September 3, 2020 Page 1 of 6
[1] Love Barefield argues the trial court abused its discretion when it ordered him
to pay a $100 public defender fee following his convictions of Level 6 felony
obstruction of justice 1 and Class B misdemeanor public nudity. 2 We affirm.
Facts and Procedural History
[2] On July 18, 2018, Barefield stood behind a female patron in the checkout line at
an Indianapolis Wal-Mart. The woman felt something brush against her
buttocks, and she turned around to investigate. She looked down and saw
Barefield holding his exposed penis, which was sticking out of a hole near the
pocket area of his sweatpants. She yelled to get the attention of Wal-Mart
employees, and Barefield quickly walked toward the rear of the store. A Wal-
Mart employee followed Barefield. A second Wal-Mart employee went outside
of the store and alerted Officer John Reichle, an off-duty Indianapolis
Metropolitan Police Department (“IMPD”) officer working security at the Wal-
Mart, that there was a man inside the store exposing himself. The employees
directed Officer Reichle to Barefield, and Officer Reichle detained him. Officer
Reichle asked for a sex crimes detective to be sent to the scene, and IMPD
Detective Michelle Floyd responded.
1
Ind. Code § 35-44.1-2-2.
2
Ind. Code § 35-45-4-1.5.
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[3] A short while later, Officer Reichle transported Barefield to a police station and
put him in an interview room. Detective Floyd monitored Barefield in the
interview room using video surveillance. She applied for and received a search
warrant for Barefield’s pants. Detective Floyd then told Barefield that she had
received a search warrant for his pants and that an evidence technician was
going to photograph and collect the sweatpants. Once Detective Floyd left the
interview room, Barefield started ripping his pants. An officer then entered the
room and collected the pants from Barefield.
[4] On July 23, 2018, the State charged Barefield with Level 6 felony obstruction of
justice, Class B misdemeanor public nudity, Class A misdemeanor public
indecency 3 and Class B misdemeanor battery. 4 Barefield requested the
appointment of counsel. In his petition, Barefield indicated that he did not
receive any public assistance, was employed, and made $446.00 a week. He
also indicated that he did not own his own home, nor did he have a savings or
checking account. On August 22, 2018, the court issued an order, stating:
Based on the foregoing Petition for Appointment of Counsel and
on a thorough examination of defendant’s total financial picture
and the nature of the criminal charges, the Court finds and
orders: This petition is GRANTED, as the Court finds that the
defendant is currently indigent. An attorney shall be appointed
3
Ind. Code § 35-45-4-1.
4
Ind. Code § 35-42-2-1.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-32 | September 3, 2020 Page 3 of 6
to represent the defendant as follows: Public Defender fee of
$100.
(App. Vol. II at 36) (emphasis in original). The court held a bench trial on
November 26, 2019. At the conclusion of trial, the court found Barefield guilty
of obstruction of justice and public nudity. The court found Barefield not guilty
of battery and public indecency. On December 6, 2019, the court sentenced
Barefield to concurrent terms of two years for the obstruction of justice count
and 180 days for the public indecency count. After pronouncing the sentence,
the judge stated, “No fines or costs. He’s indigent.” (Tr. Vol. II at 64.) The
court awarded Barefield credit for 341 days spent in pretrial incarceration and
ordered him to serve the remainder of his sentence in the Marion County Jail.
Discussion and Decision
[5] Sentencing decisions, including those imposing costs or fees, are generally left
to the sound discretion of the trial court. Cleveland v. State, 129 N.E.3d 227, 237
(Ind. Ct. App. 2019), trans. denied. We review such decisions for an abuse of
discretion, and we will reverse only if the decision “is clearly against the logic
and effect of the facts and circumstances before it.” Id. “If the fees imposed by
the trial court fall within the parameters provided by statute, we will not find an
abuse of discretion.” Langdon v. State, 71 N.E.3d 1162, 1163 (Ind. Ct. App.
2017).
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[6] Barefield argues the trial court abused its discretion when it ordered him to pay
a $100 public defender fee without making a specific finding that Barefield
could pay such a fee. Indiana Code section 35-33-7-6 (2004)5 states:
(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.
*****
(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).
Barefield notes that in Banks v. State, we held the trial court abused its discretion
in imposing a $200 public defender fee without finding the defendant had the
ability to pay the fee. 847 N.E.2d 1050, 1051 (Ind. Ct. App. 2006), trans. denied.
We stated that “[u]nder Ind. Code § 35-33-7-6 and Ind. Code § 33-9-11.5-6, a
court must explicitly find a defendant can pay the fees imposed. We are
directed to no such finding in the record.” Id. at 1052.
5
This statute was amended effective July 1, 2020.
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[7] However, Barefield’s case differs from Banks in two respects. First, Indiana
Code section 33-9-11.5-6 has since been repealed, and therefore, the statute is
not applicable to this case. P.L. 98-2004, Sec. 164. Second, unlike the trial
court in Banks, the record here indicates the trial court determined Barefield had
the ability to pay the public defender fee. In Barefield’s petition seeking
appointment of counsel, he indicated he received $446.00 a week in income.
The court thoroughly reviewed Barefield’s petition and made its decision after
considering Barefield’s “total financial picture and the nature of the criminal
charges.” (App. Vol. II at 36.) While Barefield was indigent, he possessed
some income that could be used to partially offset the cost of his representation.
Therefore, we cannot say the trial court abused its discretion when it ordered
Barefield to pay a $100 public defender fee. See Cleveland, 129 N.E.3d at 238
(holding trial court took necessary steps to determine defendant’s ability to pay
public defender fee by asking about defendant’s employment, working hours,
financial status, and custody arrangements).
Conclusion
[8] The trial court did not abuse its discretion when it ordered Barefield to pay a
$100 public defender fee because the court evaluated Barefield’s financial status,
income, and other factors before imposing the fee. Accordingly, we affirm.
[9] Affirmed.
Robb, J., and Vaidik, J., concur.
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