The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 17 2020, 9:12 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
Daniel Hageman Curtis T. Hill, Jr.
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Samuel J. Dayton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Adelina Monique Bray, March 17, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1986
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark Renner,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
49G08-1809-CM-31309
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1986 | March 17, 2020 Page 1 of 8
Statement of the Case
[1] Adelina Bray (“Bray”) appeals, following a bench trial, her conviction for Class
C misdemeanor operating a vehicle while intoxicated, which was a lesser-
included offense to her charge of Class A misdemeanor operating a vehicle
while intoxicated endangering a person. Bray argues that: (1) the trial court
abused its discretion when it failed to conduct an indigency hearing at the time
it assessed fees and stated that she could qualify for early termination of her
probation upon payment of the imposed fees; and (2) remand is necessary to
amend the sentencing order and order of probation. We agree that the trial
court abused its discretion by failing to conduct an indigency hearing after
imposing fees and stating that Bray could qualify for early termination of her
probation upon payment of the imposed fees. However, we do not agree that
remand is necessary to amend the sentencing order and order of probation.
Accordingly, we remand this case to the trial court with instructions to hold an
indigency hearing.
[2] We remand.
Issues
1. Whether the trial court abused its discretion when it failed to
conduct an indigency hearing at the time it assessed fees and stated
that she could qualify for early termination of her probation upon
payment of the imposed fees.
2. Whether remand is necessary to amend the sentencing order
and order of probation.
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Facts
[3] In September 2018, the State charged Bray with Class A misdemeanor
operating a vehicle while intoxicated endangering a person. The charging
information specifically stated that Bray was charged under “I.C. 9-30-5-2(a) &
(b).”1 (App. 15). In June 2019, the trial court conducted a bench trial. The
trial court found Bray not guilty of the Class A misdemeanor offense due to the
State’s failure to establish the endangerment element of the offense. However,
the court found Bray guilty of the lesser-included offense of Class C
misdemeanor operating a vehicle while intoxicated, and this judgment is
reflected in the Chronological Case Summary (“CCS”).
[4] Thereafter, the trial court held a sentencing hearing. During the hearing, the
trial court did not inquire into Bray’s financial status. When sentencing Bray,
the trial court stated the following:
[The] [s]entence then is ma’am, sixty days fifty-eight days
suspended with the two-day executed sentence is satisfied [by] the
time that you have already spent in custody. Probation for one
hundred eighty days and [Advocates Against Impaired Driving]
Destructive Decision Panel, alcohol evaluation and treatment if
recommended, a $400.00 [alcohol and drug service] fee, $200.00
countermeasure fee, rather than show Probation to be non-
reporting -- you get all of these things concluded then I’ll allow
1
INDIANA CODE § 9-30-5-2 states:
(a) Except as provided in subsection (b), a person who operates a vehicle while intoxicated
commits a Class C misdemeanor.
(b) An offense described in subsection (a) is a Class A misdemeanor if the person operates a
vehicle in a manner that endangers a person.
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Probation to terminate. So, I’m giving you the incentive to get
everything done, get the fees paid then I will terminate Probation
once you show that those things are concluded. Court costs are
$185.50 and no fine is imposed. The INAUDIBLE, Probation
and administrative costs an[d] I’ll set the lowest Probation user fee
at $15.00 per month. It’s my hope that you get all of these terms
and requirements concluded so that you can get off of Probation as
quickly as possible.
(Tr. 32-33). In its sentencing order, the trial court noted that Bray’s “probation
will terminate upon completion of terms and payment of fees[.]” (App. 63).
The sentencing order’s monetary obligations section shows that Bray owes fees
and costs totaling $975, which includes a probation administration fee of $50
and a probation user fee of $140. The probation order lists standard conditions,
including condition fourteen, which states that Bray shall “pay all Court-
ordered fines, costs, fees and restitution as directed.” (App. 42). The special
conditions section of the probation order includes the same conditions as the
sentencing order. Bray now appeals.
Decision
[5] On appeal, Bray argues that: (1) the trial court abused its discretion when it
failed to conduct an indigency hearing at the time it assessed fees and stated
that she could qualify for early termination of her probation upon payment of
the imposed fees; and (2) remand is necessary to amend the sentencing order
and order of probation. We will address each of these arguments in turn.
1. Probation Fees
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[6] Bray first argues that the trial court “failed to conduct an indigency hearing at
the time it assessed probation fees and made payment of those fees a condition
for early termination.” (Bray’s Br. 8). “Sentencing decisions include decisions
to impose fees and costs[,]” and a trial court’s sentencing decision is reviewed
for an abuse of discretion. Coleman v. State, 61 N.E.3d 390, 392 (Ind. Ct. App.
2016). An abuse of discretion has occurred 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 deductions 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. Berry v. State, 950
N.E.2d 798, 799 (Ind. Ct. App. 2011).
[7] When a defendant is convicted of a misdemeanor, the trial court has discretion
to impose certain probation fees. IND. CODE § 35-38-2-1(e). Bray correctly
notes that, under INDIANA CODE § 33-37-2-3, if a trial court imposes costs on a
defendant, a trial court is required to conduct an indigency hearing. In regard
to probation fees, an indigency hearing should take place no later than when a
defendant completes her sentence. Johnson v. State, 27 N.E.3d 793, 795 (Ind.
Ct. App. 2015). However, relevant to this case, our Court has also held that
“[a]ny disparate treatment based on a defendant’s financial situation––whether
it be by conferring a benefit, modifying a sentence, or something else––triggers
the requirement to have an indigency hearing at the time the fees are imposed
to determine the defendant’s ability to pay.” Burnett v. State, 74 N.E.3d 1221,
1228 (Ind. Ct. App. 2017).
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[8] In Burnett, Burnett was found guilty of Class A misdemeanor operating a
vehicle while intoxicated endangering a person.2 At sentencing, the trial court
asked one question to determine Burnett’s financial situation, and Burnett
stated that she made less than $20,000 per year. The trial court then sentenced
her to 365 days with five days executed and the remainder suspended to
probation. The trial court ordered Burnett to pay several court costs, fees, and
fines, which were payable alongside other probation fees. The trial court stated
that Burnett’s probation would become non-reporting after she finished the
terms and conditions of her probation. The sentencing order and order of
probation also indicated that Burnett’s probation would become non-reporting
after she had finished paying all of her probation fees. On appeal, Burnett
argued that the trial court had failed to conduct an adequate indigency hearing
before it ordered her to pay certain probation fees. We agreed and determined
that a sufficient inquiry into a defendant’s ability to pay might include questions
concerning “her exact yearly income, her assets or debts, or any financial
expenses that could have an impact on her ability to pay fees, such as the cost of
her rent, utilities, or transportation to and from work, medical expenses, or any
dependents.” Id. at 1227. We further noted that:
As a result of the trial court’s assumption that Burnett could pay
her probation fees, let alone its assumption that she could pay
them ‘sooner rather than later,’ Burnett could be unfairly
prevented from receiving the benefit of non-reporting probation.
2
On appeal, this Court reversed this conviction and remanded with instructions that the trial court enter
judgment for Class C misdemeanor operating a vehicle while intoxicated.
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Any disparate treatment based on a defendant’s financial
situation––whether it be by conferring a benefit, modifying a
sentence, or something else––triggers the requirement to have an
indigency hearing at the time the fees are imposed to determine
the defendant’s ability to pay.
Id. at 1228.
[9] Here, similar to the trial court in Burnett, the trial court ordered Bray to pay
certain probation fees and “incentive[ized]” her “quick[]” payment of those fees
to earn an early termination of probation. (Tr. 32-33). There is no evidence in
the record concerning Bray’s financial status or the trial court’s attempt to
ascertain such information. Thus, the probation fees imposed could prevent
Bray from receiving the benefit of early termination of probation, as
contemplated by the trial court. Based on the foregoing, we conclude that the
trial court abused its discretion when it failed to conduct an indigency hearing
at the time it assessed fees and stated that Bray could qualify for early
termination of her probation upon payment of the imposed fees. See I.C. § 33-
37-2-3(a). Accordingly, we remand to the trial court to hold an indigency
hearing.
2. Sentencing Order and Order of Probation
[10] Bray next argues that the sentencing order and order of probation should be
amended to reflect her conviction for the lesser-included Class C misdemeanor
offense. According to Bray, the sentencing order and order of probation are not
clear because they do not explicitly show that she was acquitted of Class A
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1986 | March 17, 2020 Page 7 of 8
misdemeanor operating a vehicle while intoxicated endangering a person. We
disagree.
[11] Here, the State charged Bray under INDIANA CODE § 9-30-5-2(a) and (b), which
provide:
(a) Except as provided in subsection (b), a person who operates a
vehicle while intoxicated commits a Class C misdemeanor.
(b) An offense described in subsection (a) is a Class A
misdemeanor if the person operates a vehicle in a manner that
endangers a person.
Following Bray’s bench trial, the trial court found that the State had not proven
Class A misdemeanor operating a vehicle while intoxicated endangering a
person. Instead, the court found that the State had proven beyond a reasonable
doubt that Bray was guilty of the lesser-included Class C misdemeanor
operating while intoxicated. This judgment is reflected in the CCS, which
states that Bray was “found guilty of OVWI/MC a lesser included offense.”
(App. 10). Notwithstanding the “MA” notation on the sentencing and
probation orders, the disposition listed on the sentencing order states that there
was a “Finding of Guilty Lesser Included.” (App. 63). Because the CCS and
sentencing order show that Bray was convicted of the lesser included offense
described within INDIANA CODE § 9-30-5-2(b), remand on this issue is not
necessary.
[12] Remanded with instructions.
May, J., and Crone, J., concur.
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