Travis Jovan Allen, Jr. v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Jul 06 2018, 9:54 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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Ruth A. Johnson Curtis T. Hill, Jr.
Megan E. Shipley Attorney General of Indiana
Public Defender
Indianapolis, Indiana Laura R. Anderson
James T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Travis Jovan Allen, Jr. July 6, 2018
Appellant-Defendant, Court of Appeals Case No.
49A02-1710-CR-2345
v. Appeal from the Marion Superior
Court
State of Indiana,
Appellee-Plaintiff. The Honorable Hugh Patrick
Murphy, Magistrate
Trial Court Cause No.
49G16-1706-F6-20572
Barnes, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2345 | July 6, 2018 Page 1 of 5
Case Summary
[1] Travis Allen, Jr. (“Allen”) appeals the trial court’s assessment of a supplemental
public defender fee. We reverse and remand.
Issue
[2] The sole issue before us is whether the trial court erred in assessing a $100
supplemental public defender fee to Allen.
Facts
[3] On August 5, 2016, a trial court issued a no-contact order barring Allen from
contacting R.H. The trial court subsequently provided oral and written notice
of its no-contact order to Allen. On June 2, 2017, Allen went to R.H.’s
residence and was arrested. On June 2, 2017, the State charged him with Level
6 felony residential entry and Class A misdemeanor invasion of privacy. 1 Allen
appeared for an initial hearing on June 5, 2017, during which the trial court
appointed “indigent counsel”; the corresponding chronological case summary
entry states, “Indigent Counsel Appointed at County Expense.” App. Vol. II p.
10, 51. The order of appointment of public defender states that Allen’s petition
for appointment of counsel is “GRANTED; as the court finds that the
defendant is currently indigent” and that “[n]o reimbursement [is] required.”
Id. at 54.
1
The State dismissed the Level 6 felony charge on August 29, 2017.
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[4] Allen was tried by a jury on August 30, 2017, and was found guilty of Class A
misdemeanor invasion of privacy. In sentencing him, on September 18, 2017,
the trial court imposed no jail time or fine, but ordered him to complete eighty
hours of community service and assessed court costs of $185. The trial court
referred to the $185 in court costs in its sentencing remarks, but did not mention
a supplemental public defender fee. On its sentencing order form, however, the
trial court assessed both court costs of $185 and a $100 supplemental public
defender fee, for a total of $285 in “[m]onetary [o]bligations.” Id. at 19. The
trial court did not conduct a hearing as to Allen’s ability to pay fees and costs.
He now appeals the assessment of the supplemental public defender fee.2
Analysis
[5] Allen argues that the trial court erred in assessing the supplemental public
defender fee.
There are three statutes that address when a defendant must
reimburse the county for counsel provided to him at public
expense—all three of which require the funds to be deposited in
the county’s supplemental public defender services fund. A trial
court can order reimbursement for costs of representation under
2
In his appellate brief, Allen also argues that the trial court erred in ordering him to complete community
service work. In his verified notice of post-judgment change in circumstances, filed on May 11, 2018, Allen
advises that, on May 7, 2018, the trial court conducted a compliance hearing wherein it found him to be in
compliance and closed the case. As Allen has completed his sentence, his argument as to community service
is moot. Lee v. State, 816 N.E.2d 35, 40 (Ind. 2004) (holding that once sentence is served, the issue of its
validity is rendered moot).
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any of the three statutes or combination thereof. The first statute,
Indiana Code § 35-33-7-6, provides in relevant part:
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).
Ind. Code § 35-33-7-6(c). Although this statute contemplates that
trial courts will order the defendant to pay the $100 fee at the
initial hearing, see I.C. § 35-33-7-6(a), the statute does not
prohibit trial courts from imposing it at other stages of the
proceedings.
The remaining two statutes, Indiana Code §§ 33-9-11.5-6 and [33-
37-2-3], allow trial courts to impose representation costs against a
defendant in excess of $100. Specifically, Indiana Code § 33-9-
11.5-6(a) provides that if “the court makes a finding of ability to pay
the costs of representation,” the defendant shall pay “[r]easonable
attorney’s fees if an attorney has been appointed for the person
by the court.” These fees, which cannot exceed the cost of
defense services rendered to the person, can be imposed “at any
stage of a prosecution.” Ind. Code § 33-9-11.5-6(a), (d).
Finally, Indiana Code § [33-37-2-3(a), -(e)] provide[ ] that “[w]hen
the court imposes costs, it shall conduct a hearing to determine whether
the convicted person is indigent.” If, after such a hearing, “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.” Ind. Code § [33-37-2-3(e)]. This fee must
be assessed when the court imposes costs. I.C. § [33-37-2-3(a)].
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May v. State, 810 N.E.2d 741, 745-46 (Ind. Ct. App. 2004) (emphasis added).
[6] The foregoing statutes require the trial court to conduct a hearing and to make a
finding as to the defendant’s ability to pay before imposing public defense costs.
No such hearing was conducted here; nor was such a finding reached. In its
brief, the State concedes, “[R]emand appears necessary in order to clarify the
inconsistency between the finding of indigency, which states that no
reimbursement is required, and the contradictory order requiring that public
defender costs be paid.” Appellee’s Br. p. 12. Accordingly, and given the
inconsistencies between the trial court’s record, its sentencing remarks, and its
sentencing order, we reverse the assessment of the supplemental public defender
fee and remand to the trial court with instructions to conduct a hearing to
determine whether Allen is able to pay part of the costs of his representation.
Conclusion
[7] The trial court erred in assessing a supplemental public defender fee to Allen
without conducting a hearing to determine his ability to pay part of the costs of
his representation. We reverse and remand for a hearing consistent with this
opinion.
[8] Reversed and remanded.
[9] Vaidik, C.J., and Pyle, J., concur.
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