Christopher L. Sanders 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 Nov 25 2020, 8:31 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.
Indianapolis, Indiana Attorney General of Indiana
Angela N. Sanchez
Assistant Section Chief
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher L. Sanders, November 25, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-380
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable William J. Nelson,
Appellee-Plaintiff Judge
The Honorable Mark Renner,
Magistrate
Trial Court Cause Nos.
49G18-1905-F6-19415, 49G18-
1908-F6-30906
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-380 | November 25, 2020 Page 1 of 14
Case Summary
[1] Christopher Sanders pled guilty to two counts of theft as Level 6 felonies, each
under a separate cause number, and was sentenced to an aggregate sentence of
two years in the Marion County Jail followed by one year on home detention.
Sanders appeals, presenting the following two issues for our review:
1. Did the trial court abuse its discretion in refusing to consider
Sanders’s request for educational credit time?
2. Did the trial court abuse its discretion when it imposed public
defender fees and drug and alcohol program fees?
[2] We affirm.
Facts & Procedural History
[3] On May 17, 2019, the State charged Sanders with Level 6 felony theft in Cause
No. 49G18-1905-F6-19415 (F6-19415). During the initial hearing, Sanders
informed the court that he made $8.75 per hour and that he could not afford an
attorney. In a request for a public defender filed the same day, Sanders
indicated that he earned $350 per week. The trial court appointed counsel for
Sanders but ordered him to pay a public defender fee of $100.
[4] On August 7, 2019, the State charged Sanders with Level 6 felony theft in
Cause No. 49G18-1908-F6-30906 (F6-30906). F6-19415 and F6-30906 were
consolidated at the trial level and all subsequent hearings were held together.
Sanders was also on probation in Cause No. 49G25-1804-F6-13402 (F6-13402),
in which cause the State eventually filed a notice of probation violation.
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During an October 2019 bond review hearing in F6-30906, Sanders informed
the court that his rent was approximately $750 per month and that he had
dependent children in the home.
[5] On January 16, 2020, Sanders pled guilty as charged in both F6-19415 and F6-
30906 without the benefit of a plea agreement. Sanders also admitted that he
was on probation in F6-13402 when he committed each theft offense, resulting
in a violation of his probation. Magistrate Mark Renner accepted Sanders’s
guilty pleas and revoked his probation. The matter then proceeded to
sentencing. In an off-record conversation prior to the sentencing portion of the
hearing, which conversation was referenced on the record, defense counsel, the
State, and Magistrate Renner discussed whether Sanders was entitled to credit
time for his completion of various programs while he was incarcerated in the
Marion County Jail. 1 On the record, Sanders provided descriptions of the
programs he completed, which included Pinwheels for Prevention, a Victim
Impact Panel, a Core Civic course on breaking habits, a Core Civic course on
reentry, and Violence Free Living.
[6] In sentencing Sanders, the court specifically noted Sanders’s completion of
various programs while incarcerated and expressly stated that it was “tak[ing]
that into account in imposing the sentence.” Transcript Vol. II at 27. With
regard to the sanction for the probation revocation, the court stated, “I’m
1
Although there is no record of the conversation, in their respective briefs, Sanders and the State provide
similar accounts as to the nature of the discussion that transpired off the record.
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finding that the probation is revoked but I’m not going to impose a further
sanction” despite the fact that Sanders was subject to 361 days of suspended
time in F6-13402. Id. The court explained that it “took [Sanders’s completion
of programs] into account . . . and in fact, that was basically the reason why
[the court] did away with the probation.” Id. at 29-30. The court continued, “I
thought that he had deserved [sic] some reward for everything that he had done
and the efforts that he had made, and that reward was not imposing any
probation time.” Id. at 30.
[7] The court sentenced Sanders to 545 days executed in the Marion County Jail in
F6-19415 and a consecutive 545-day sentence, with 180 days executed in the
Marion County Jail and 365 days on home detention, in F6-30906. The court
awarded Sanders credit for 266 days (which included 133 days of actual time
served). The court found Sanders indigent for fines and costs but assessed a fee
of $3 per day for home detention. Taken together, the sentencing orders
indicate that Sanders is also required to pay a $400 fee for alcohol and drug
programs, as well as the earlier-assessed $100 public defender fee.
[8] Magistrate Renner set a hearing for January 24, 2020, so Sanders could present
his request for educational credit time to Judge William Nelson. Magistrate
Renner explained:
I’m going to [set the matter for hearing] because I’ve already
considered it, I’m going to let another judge, Judge Nelson
consider whether that might merit further consideration. It
wouldn’t be fair for [Sanders] to come in front of me again when
I’ve basically already said I thought about it and gave him the
Court of Appeals of Indiana | Memorandum Decision 20A-CR-380 | November 25, 2020 Page 4 of 14
opportunity and the credit in not imposing a sanction from
probation. But Judge Nelson might have a different approach,
and I’ll give him the opportunity to present that.
Id.
[9] On January 24, 2020, Sanders appeared before Judge Nelson and requested
educational credit time. In response, Judge Nelson stated, “That’s not up to me
to do that.” Id. at 33. Sanders explained that he did not think he was able to
earn credit for the programs he completed because they were not completed in
the Department of Correction, but he thought the court might be able to
exercise discretion to award credit regardless. Sanders acknowledged that
Magistrate Renner had already taken his completion of the programs into
consideration in determining his sentence. Judge Nelson responded, “[i]f it’s
already been considered, sir, I’m not going to reconsider it.” Id. at 35. Judge
Nelson then explained that completion of programs at the Marion County Jail
did not give rise to educational credit time but noted that such could be
considered in the imposition of a sentence. As an example, Judge Nelson
offered, “say you could have gotten a five-year sentence, but the judge
considered all you’ve accomplished in jail, and only gave you a three-year
sentence. So it could be considered in that respect, but it cannot be used later
on to gain additional credit.” Id. at 36. Judge Nelson denied Sanders’s request
for educational credit time. The hearing before Judge Nelson lasted three
minutes. Sanders now appeals. Additional facts will be provided as necessary.
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Discussion & Decision
[10] Sentencing decisions are within the sound discretion of the trial court and are
reviewed on appeal for an abuse of discretion. Anglemyer v. State, 868 N.E.2d
482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of
discretion occurs if the decision is “clearly against the logic and effect of the
facts and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.” Id.
1. Credit Time
[11] Sanders argues that the trial court abused its discretion in summarily denying
his request for educational credit time. On appeal, he expressly states that he is
“not asking this Court to determine the merits of whether he is entitled to
educational credit time,” rather, he is “only asking for the hearing on the merits
in the trial court he was denied.” Appellant’s Brief at 11.
[12] For the programs he completed, Sanders seeks educational credit time under
Ind. Code § 35-50-6-3.3(b), which provides, in pertinent part:
In addition to any educational credit that a person earns under
subsection (a) [i.e., GED, high school diploma, degree from
postsecondary institution], or good time credit a person earns
under section 3 or 3.1 [i.e., jail time credit] of this chapter, a
person may earn educational credit if, while confined by the
department of correction, the person:
(1) is in credit Class I, Class A, or Class B;
(2) demonstrates a pattern consistent with rehabilitation; and
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(3) successfully completes requirements for at least one (1) of the
following:
(A) To obtain a certificate of completion of a career and
technical or vocational education program approved by
the department of correction.
(B) To obtain a certificate of completion of a substance
abuse program approved by the department of correction.
(C) To obtain a certificate of completion of a literacy and
basic life skills program approved by the department of
correction.
(D) To obtain a certificate of completion of a reformative
program approved by the department of correction.
(E) An individualized case management plan approved by
the department of correction.
(Emphasis supplied). While it is true that jail time credit is a matter of statutory
right, and thus trial courts do not have discretion in awarding or denying such
credit, an award of educational credit time under subsection (b) is not
mandated. Indeed, the statute provides that such credit “may” be awarded if
the statutory requirements are met. Sentencing decisions not mandated by
statute are within the discretion of the trial court and will be reversed only upon
a showing of abuse of that discretion. Molden v. State, 750 N.E.2d 448, 449
(Ind. Ct. App. 2001).
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[13] Here, Sanders was afforded not one, but two hearings regarding educational
credit time. On January 16, 2020, Sanders presented his argument for
educational credit time to Magistrate Renner. Sanders identified five programs
he had completed while in the Marion County Jail and explained the content of
those courses. Magistrate Renner clearly took Sanders’s efforts into
consideration when determining the sentence to impose, explaining “that was
basically the reason why I did away with the probation,” which decision
essentially vacated 361 days of suspended time that could have been imposed
for the probation violation. Transcript Vol. II at 30. Magistrate Renner made it
clear that Sanders “deserved some reward for everything that he had done and
the efforts that he had made, and that reward was not imposing any probation
time.” Id. at 30.
[14] Despite the leniency afforded for his efforts, Sanders was given a second bite at
the apple when he was provided the opportunity to again assert his request for
educational credit time to Judge Nelson. Judge Nelson immediately recognized
that Sanders’s efforts had already been considered by Magistrate Renner and
Judge Nelson explained that he was “not going to reconsider it.” Id. at 35.
Sanders has not provided us with any authority that he is entitled to another
hearing, and we find the request unwarranted.
2. Fees
[15] Sanders argues that the trial court abused its discretion in ordering him to pay
certain fees. Sentencing decisions include decisions to impose fees and costs
and the imposition of such is within the trial court’s discretion. Berry v. State,
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950 N.E.2d 798, 799 (Ind. Ct. App. 2011). “If the fees imposed by the trial
court fall within the parameters provided by statute, we will not find an abuse
of discretion.” Id. (citing Mathis v. State, 776 N.E.2d 1283, 1289 (Ind. Ct. App.
2011)). “A defendant’s indigency does not shield him from all costs or fees
related to his conviction.” Banks v. State, 847 N.E.2d 1050, 1051 (Ind. Ct. App.
2006), trans. denied.
[16] First, Sanders argues that the trial court erred in ordering him to pay a $100
public defender fee under F6-19415 without first determining his ability to pay
such fee. There are three statutory provisions that directly address the
imposition of public defender fees, and the trial court can order reimbursement
under any or a combination thereof. Langdon v. State, 71 N.E.3d 1162, 1164
(Ind. Ct. App. 2017). One such statute is Ind. Code § 35-33-7-6, which
provides, in relevant part:
(a) Prior to the completion of the initial hearing, the judicial
officer shall determine whether a person who requests assigned
counsel is indigent under section 6.5 of this chapter. 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).
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***
(d) The court may review the finding of indigency at any time
during the proceedings.
[17] The second is found in Ind. Code § 33-40-3-6(a)(1), and it reads as follows:
(a) If at any stage of a prosecution for a felony or a misdemeanor
the court makes a finding of ability to pay the costs of
representation under section 7 of this chapter, the court shall
require payment ... of the following costs in addition to other
costs assessed against the person:
(1) Reasonable attorney’s fees if an attorney has been
appointed for the person by the court.
The language of this statutory provision is similar to the language in I.C. § 35-
33-7-6(c)(1). In both provisions, the trial court must find that the defendant has
the ability to pay before it can impose a public defender fee.
[18] The third is found in Ind. Code § 33-37-2-3(e), which provides as follows:
(e) If, after a hearing under subsection (a) or (b), the court
determines that a convicted person is able to pay part of the costs
of representation, the court shall order the person to pay an
amount of not more than the cost of the defense services
rendered on behalf of the person....
This is the only statutory provision requiring the trial court to conduct a hearing
to determine if the defendant is indigent. In the previous two sections, the trial
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court simply has to make a finding on whether the defendant can pay for part or
all of his representation from a public defender
[19] While the trial court did not specifically state which statute it was relying upon
when it ordered Sanders to pay the fee, it appears from the record that Sanders
was ordered to pay pursuant to I.C. § 35-33-7-6(c). Indeed, the court imposed
the specific monetary amount specified under I.C. § 35-33-7-6(c)(1), the order
was made during the initial hearing immediately after the court found Sanders
to be indigent and appointed counsel, and the sentencing order described the fee
as a “Supplemental Public Defender Fee,” which term this court has used when
referring to the fee imposed under this statute. 2 Appellant’s Appendix Vol. II at
16, 192.
[20] We have before noted with regard to imposition of a public defender fee under
I.C. § 35-33-7-6 that there can be “degrees of indigency” and that “one may be
indigent for purposes of paying private counsel thousands of dollars for
representation, but still be able to pay a nominal amount to partially reimburse
the costs of his appointed counsel.” Wooden v. State, 757 N.E.2d 212, 281 n.4
(Ind. Ct. App. 2001), trans. denied (2002). To this end, we have interpreted I.C.
§ 35-33-7-6 to require that the trial court make a finding regarding a defendant’s
ability to pay. See Berry, 950 N.E.2d at 800 (concluding that $100 public
2
See Langdon v. State, 71 N.E.3d 1162, 1164 (Ind. Ct. App. 2017) (observing that I.C. § 35-33-7-6(a) permits a
trial court to “impose a supplemental public defender fee before completing the initial hearing) (emphasis
supplied).
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defender fee was imposed under I.C. § 35-33-7-6, which requires a finding by
the trial court as to the defendant’s ability to pay).
[21] Here, during the initial hearing, the court inquired of Sanders if he was
employed. Sanders answered in the affirmative and informed the court that he
earned $8.75 an hour. 3 Immediately thereafter, the court found Sanders to be
indigent, appointed him counsel, and ordered him to pay the $100 public
defender fee. Implicit in this exchange is that the trial court determined that
being employed, Sanders could offset a nominal amount of the costs of his
public defender’s representation. See Cleveland v. State, 129 N.E.3d 227, 238
(Ind. Ct. App. 2019) (holding that trial court did its due diligence by inquiring
into defendant’s financial abilities and made an implicit finding as to
defendant’s indigency status), trans. denied. 4
[22] Sanders also challenges the court’s order that he pay a $400 fee for drug and
alcohol programs. Ind. Code § 33-47-4-2(b)(2) permits the imposition of a drug
and alcohol services program fee. County clerks in counties, such as Marion
County, with established drug and alcohol services programs are permitted to
collect such fees set by the court. By local rule, a substance abuse fee “may be
waived by the court” if a defendant is determined to be indigent. Ind. Marion
3
On a form requesting appointment of counsel, Sanders indicated that his weekly income was approximately
$350.
4
We note that it is better practice for a trial court to make express findings on the record regarding a
defendant’s ability to pay the fee as part of its indigency determination. See id. at n.10 (noting “it is still the
better practice for trial courts to include an explicit indigency finding in their record”).
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Cir. & Super. Crim. Rule 115 (emphasis supplied). Sanders cites no statute or
local rule that requires a trial court to waive drug and alcohol fees when a
defendant is indigent. Sanders nevertheless argues that the trial court failed to
exercise discretion in imposing the fee, believing it to be mandatory.
[23] During the sentencing hearing, the trial court provided Sanders with a home
detention placement because of his substance abuse issues. The court stated:
While on home detention, you talked about in your PSI, about
needing help, about needing treatment. That’s a condition of
home detention, substance abuse treatment. You’ve got to, sir.
You recognize you need it; you must do it. I’m also requiring
mental health evaluation and treatment. You’ve acknowledged
mental health problems; you’ve got to do it.
***
I want you to seriously, finally . . . take the opportunity both of
those substance abuse and mental health evaluations and
treatment, take advantage of that opportunity that I am giving
you. The State argued that you didn’t deserve opportunity on
home detention. I disagree, that’s why I am giving you this
chance. I don’t want to just warehouse you for basically three
years. That’s a waste, that’s a waste.
Transcript Vol. 2 at 28. The court then found Sanders indigent for fines and
costs in both cases and ordered that he pay the administrative costs associated
with the evaluations. The court told Sanders, “you’ve got to pay those.” Id. It
is this final statement that Sanders zeroes in on to support his argument that the
court did not believe it had discretion to impose the $400 fee.
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[24] The court’s statement in this regard should not be read in isolation. When read
in context, the court’s commentary does not show that the court thought it was
compelled by law to impose the fees. Rather, the trial court chose to impose
costs on Sanders. The trial court expressly found Sanders to be indigent for
fines and costs in both cases, and yet still imposed the $400 fee. After imposing
the fee, the court simply impressed upon Sanders the need to pay the fee that
was ordered. Sanders has not established that the trial court’s decision to
impose the $400 program fee was an abuse of discretion.
[25] Judgment affirmed.
Riley, J. and May, J., concur.
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