indigency hearing in Indiana

2020Taylor now argues that the trial court should have conducted an indigency hearing and could not “delegate the determination of Taylor’s ability to pay fees Court of Appeals of Indiana | Memorandum Decision 19A-CR-2517 | April 1, 2020 Page 12 of 13 to the probation department” by placing Taylor on a “sliding scale.” Appellant’s Br. p 17. [27] This procedure, however, was authorized in Johnson v. State, 27 N.E.3d 793 (Ind. Ct. App. 2015).

2020The State further argues that if there is no obligation to hold an indigency hearing until a defendant completes probation, see Johnson, 27 N.E.3d at 795 , there can be no obligation to set the amount of fees until the defendant has completed probation, either, see Br. of Appellee at 6-7.

2020See Brief of Appellant at 9 (acknowledging the trial court “did explicitly state it was ordering probation fees”). [7] The State argues the trial court was not required to set the amount of fees at the time of sentencing because the trial court is required to hold an indigency hearing when it imposes costs, and indigency is “more appropriately determined not at the time of initial sentencing but at the conclusion of incarceration[.]” Brief of Appellee at 6 (quoting Whedon v. State, 765 N.E.2d 1276, 1279 (Ind. 2002)).

2018It asserts that the indigency hearing was part and parcel of the sentencing hearing. [23] Ind. Code § 35-50-2-5 provides that a person who commits a class B felony “may be fined not more than ten thousand dollars ($10,000).” The Indiana Supreme Court has noted that the Indiana legislature requires indigency Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1876 | May 17, 2018 Page 12 of 17 hearings as to the imposition of fines and costs, see Ind. Code § 33-37-2-3 (a) (providing “when the court imposes costs, it shall conduct a hearing to determine whether the convicted person is

2025We also observe that Spells cited with approval Burnett v. State, 74 N.E.3d 1221, 1227 (Ind. Ct. App. 2017), which treated probation fees as “costs” for which an indigency hearing is required under Indiana Code § 33-37-2-3.

2020See Burnett v. State, 74 N.E.3d 1221, 1227 (Ind. Ct. App. 2017) (explaining that an indigency hearing under INDIANA CODE § 33-37-2-3 is sufficient when the trial court asks questions to determine a defendant’s “ability to pay.”).

2006In Everroad v. State, 730 N.E.2d 222, 224 (Ind.Ct.App.2000), we held Everroad was entitled to an indigency hearing as a matter of law, and noted "[the indigeney issue cannot be waived[.]' Id. n. 5 (quoting Meeker v. State, 182 Ind.App. 292, 302 , 395 N.E.2d 301, 307 (1979).

2006In Everroad v. State, 730 N.E.2d 222, 224 (Ind.Ct.App.2000), we held Everroad was entitled to an indigency hearing as a matter of law, and noted "[the indigeney issue cannot be waived[.]' Id. n. 5 (quoting Meeker v. State, 182 Ind.App. 292, 302 , 395 N.E.2d 301, 307 (1979).

2000The Meeker court further concluded that “the finding of [a defendant’s] indigency *225 for the purpose of appointing defense counsel” is not determinative of his “ability to pay court costs and fines,” noting, that “[t]he determinations are related, but independent, ones and are left to the discretion of the trial court.” Id., 182 Ind.App. at 302 , 395 N.E.2d at 307 n. 5. 6 In Marshall v. State, 505 N.E.2d 853 (Ind.Ct.App.1987), the trial court assessed a fine of $5,000 against the defendant without conducting an indigency hearing.

2000The order of sentencing and conducting the indigency hearing is not critical or reversible so long as an indigency hearing, which is mandatory, is conducted.” Id. at 857 (citations omitted).

2018See id. (remanding for trial court to conduct indigency hearing on completion of defendant’s sentence); see also Briscoe v. State, 783 N.E.2d 790, 792-93 (Ind. Ct. App. 2003) (stating that “[w]here a trial court fails to conduct an indigency hearing when required, the proper remedy is to remand with instructions to hold such a hearing”).6 [15] Vacated in part and remanded. [16] Bailey, J., and Pyle, J., concur. 5 Johnson correctly observes that the sentencing order states that his probation would terminate “upon completion of the terms and payment of fees.” Appellant’s App. Vol. II at 16-17.

2018Briscoe v. State, 783 N.E.2d 790 (Ind. Ct. App. 2003). [9] Further, although a trial court has an affirmative duty to conduct an indigency hearing at some point if it imposes fines or costs as part of a defendant’s sentence, id., “[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.” Johnson v. State, 27 N.E.3d at 795 .

2015Court of Appeals of Indiana | Memorandum Decision 59A01-1409-CR-422 | August 24, 2015 Page 14 of 18 was aware of Oberth’s financial status, we find that the purpose behind an indigency hearing was met and that the trial court did not abuse its discretion by not holding a separate or additional indigency hearing.8 See Clenna v. State, 782 N.E.2d 1029, 1034 (Ind. Ct. App. 2003) (no abuse of discretion in imposition of fees and costs, even though trial court did not hold separate “full- blown hearing” on subject of indigency, where defendant testified at sentencing to his minimal income, rent, an

2002See Wooden v. State, 757 N.E.2d 212, 218 (Ind.Ct.App.2001) (“Therefore, because the trial court’s statements and actions at the sentencing hearing indicate an intention to find Wooden indigent, and because the sentencing statement includes the required non-imprisonment language, we find no error in the imposition of costs and fees without a separate indigency hearing.”), trans. denied.

2024In Wright, the Court of Appeals concluded that “the absence of language requiring an indigency hearing” in the cash-bail statute meant that no such hearings were required when cash bail was retained to pay fines, costs, and fees. 949 N.E.2d at 416 (citing parallel language in code section 35-33-8-3.2(a)(2)).

2020See Wright v. State, 949 N.E.2d 411, 414-16 (Ind. Ct. App. 2011) (holding that “[i]n executing the cash bail bond agreement [under Section 35-33-8-3.2(a)(2)], Wright agreed to give the trial court the authority to retain all or a part of the $1000 placed in escrow to pay fines, costs, fees, restitution, and publicly paid costs of representation if she . . . was convicted” without conducting an indigency hearing).

2025He also testified that he had not been employed for “a couple years” but identified two businesses that he 4 This Court has previously held that the indigency hearing required by Indiana Code § 35-38-1-18 (fines) and Indiana Code 33-37-2-3 (costs) “must be conducted after a judgment of conviction” because those statutes refer to a “convicted person.” Meunier-Short v. State, 52 N.E.3d 927, 931 (Ind. Ct. App. 2016); accord Berry v. State, 950 N.E.2d 798, 802 (Ind. Ct. App. 2011).

2020Further, this Court has held that INDIANA CODE § 33-37-2-3 “explicitly requires an indigency hearing.” Berry, 950 N.E.2d at 801-02 .

2018Alternatively, 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).

2017Indiana Code Section 35-38-2-l(b) provides that, if a person is convibted of a misdemeanor, “the court may order the person to pay-the user’s fee prescribed under subsection (e)” following an indigency hearing, Coleman, 61 N.E.3d at 393 (emphasis added).- Subsection (e) states that “the court, may order” the defendant to pay not more than certain specified maximum amounts for specified fees, including user and administrative fees., “to either the probation department or the clerk.” Subsection .(f) states that “the probation department ... shall collect” those fees.

2020Court of Appeals of Indiana | Memorandum Decision 19A-JV-2135 | April 8, 2020 Page 11 of 12 an indigency hearing); A.E.B. v. State, 756 N.E.2d 536, 544 (Ind. Ct. App. 2001) (remanding for indigency hearing to determine juvenile’s ability to pay probation and public defender fees). [19] Affirmed in part, reversed in part, and remanded.

2006See A.E.B. v. State, 756 N.E.2d 536, 544 (Ind.Ct.App.2001) (remanding for indigency hearing to determine juvenile's ability to pay probation and public defender fees).

2006In Everroad v. State, 730 N.E.2d 222, 224 (Ind.Ct.App.2000), we held Everroad was entitled to an indigency hearing as a matter of law, and noted "[the indigeney issue cannot be waived[.]' Id. n. 5 (quoting Meeker v. State, 182 Ind.App. 292, 302 , 395 N.E.2d 301, 307 (1979).

2006In Everroad v. State, 730 N.E.2d 222, 224 (Ind.Ct.App.2000), we held Everroad was entitled to an indigency hearing as a matter of law, and noted "[the indigeney issue cannot be waived[.]' Id. n. 5 (quoting Meeker v. State, 182 Ind.App. 292, 302 , 395 N.E.2d 301, 307 (1979).

2025He also testified that he had not been employed for “a couple years” but identified two businesses that he 4 This Court has previously held that the indigency hearing required by Indiana Code § 35-38-1-18 (fines) and Indiana Code 33-37-2-3 (costs) “must be conducted after a judgment of conviction” because those statutes refer to a “convicted person.” Meunier-Short v. State, 52 N.E.3d 927, 931 (Ind. Ct. App. 2016); accord Berry v. State, 950 N.E.2d 798, 802 (Ind. Ct. App. 2011).

2019Notwithstanding the indigency hearing requirement contained in Indiana Code sections 33-37-2-3(a) and 35-38-1-18(a), a trial court has the authority to assess fines, costs, and fees against an indigent defendant; “indeed, a different result would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other[.]” Meunier-Short v. State, 52 N.E.3d 927, 931 (Ind. Ct. App. 2016) (quoting Williams v. Illinois, 399 U.S. 235, 244 (1970)). [13] Affirmed.

2020However, the court in Johnson stated that “[w]e find no requirement that a trial court should conduct an indigency hearing at the time probation fees are ordered[,]” implicitly acknowledging that the assessment of fees is to be done at the time of sentencing even if the determination of whether the defendant can afford to pay them can be deferred. 27 N.E.3d at 794 Court of Appeals of Indiana | Memorandum Decision 19A-CR-2883 | May 22, 2020 Page 6 of 8 (emphasis added); see Kimbrough v. State, 911 N.E.2d 621, 636 (Ind. Ct. App. 2009) (“[S]entencing decisions, including decisions to impose resti

2013See Berry v. State, 950 N.E.2d at 801 (“Rich [v. State, 890 N.E.2d 44 (Ind. Ct. App. 2008)] and Kimbrough [v. State, 911 N.E.2d 621 (Ind. Ct. App. 2009)] mean that if the trial court suspends payment of costs [under I.C. § 33-37-2- 3] until the executed portion of the sentence has been served, then it must hold an indigency hearing at the time the costs are due”).

2025We agree only as to the $200 drug-interdiction fee. [8] “A plea agreement is contractual in nature, binding the defendant, the State, and the trial court.” Coleman v. State, 162 N.E.3d 1184 , 1189 (Ind. Ct. App. 2021) (quoting Bennett v. State, 802 N.E.2d 919, 921 (Ind. 2004)); see Ind. Code § 35-35-3-3 (e) (“If the [trial] court accepts a plea agreement, it shall be bound by its terms.”).

2018“A plea agreement is contractual in nature, binding the defendant, the State, and the trial court.” Vaughn v. State, 982 N.E.2d 1071, 1073 (Ind. Ct. App. 2013) (quoting Bennett v. State, 802 N.E.2d 919, 921 (Ind. 2004)).

2019Appellant’s Br. at 7. “‘Sentencing decisions include decisions to impose fees and costs,’ and a trial court’s sentencing decision is reviewed for abuse of discretion.” De La Cruz v. State, 80 N.E.3d 210, 213 (Ind. Ct. App. 2017) (quoting Coleman v. State, 61 N.E.3d 390, 392 (Ind. Ct. App. 2016)).

2017See De La Cruz, 80 N.E.3d at 215 n.7 (holding that it was not necessary to remand for an indigency hearing because the trial court determined that the defendant was indigent).

2016“A plain reading of [s]ection 35-33-8-3.2(a)(2) . . . leads us to the conclusion that the absence of language requiring an indigency hearing means that when a bail bond agreement is executed, such a Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016 Page 10 of 11 hearing is not required.” Id. (citing State v. Dugan, 793 N.E.2d 1034, 1036 (Ind. 2003) (“It is just as important to recognize what the statute does not say as it is to recognize what it does say.”)).

2016“A plain reading of [s]ection 35-33-8-3.2(a)(2) . . . leads us to the conclusion that the absence of language requiring an indigency hearing means that when a bail bond agreement is executed, such a Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1632 | May 17, 2016 Page 10 of 11 hearing is not required.” Id. (citing State v. Dugan, 793 N.E.2d 1034, 1036 (Ind. 2003) (“It is just as important to recognize what the statute does not say as it is to recognize what it does say.”)).

2016To the extent the trial court intended any of the fines, costs, or fees be due on December 15, 2015, the trial court erred by failing to conduct an indigency hearing, See Bex v. State, 952 N.E.2d 347, 355-56 (Ind.Ct.App.2011) (holding the trial court did not abuse its discretion by imposing a fee as a condition of probation without first conducting an indi-gency hearing because the fee was not due until after the defendant completed the executed portion of her sentence), trans. denied, 9 .

2014See Bex v. State, 952 N.E.2d 347, 356 (Ind. Ct. App. 2011)(upholding trial court’s imposition of costs and fees absent indigency hearing where trial court postponed payment until after Bex served executed portion of her sentence), trans. denied.

2015See Pridemore v. State, 577 N.E.2d 237, 238 (Ind.Ct.App.1991) (holding that traffic infractions are civil proceedings in nature and that there can be no imprisonment), reh’g denied; see also Ladd v. State, 710 N.E.2d 188, 192 (Ind.Ct.App.1999) (holding that when restitution is ordered as part of an executed sentence, an inquiry into the defendant’s ability to pay is not required, and in such a situation, restitution is merely a money judgment, and a defendant cannot be imprisoned for non-payment). [17] We also do not find any merit in Smith’s argument that, because the Noblesville City Court g

2014Also, Smith’s adjudication was civil in nature, and a trial court is not required to conduct an indigency hearing where there is no chance that a party will be imprisoned for non-payment.” See Ladd v. State, 710 N.E.2d 188, 192 (Ind. Ct. App. 1999) (holding that when restitution is ordered as part of an executed sentence, an indigency hearing is not required because the restitution is merely a money judgment and the defendant cannot be imprisoned for non- payment). 6

2015Court of Appeals of Indiana | Memorandum Decision 59A01-1409-CR-422 | August 24, 2015 Page 14 of 18 was aware of Oberth’s financial status, we find that the purpose behind an indigency hearing was met and that the trial court did not abuse its discretion by not holding a separate or additional indigency hearing.8 See Clenna v. State, 782 N.E.2d 1029, 1034 (Ind. Ct. App. 2003) (no abuse of discretion in imposition of fees and costs, even though trial court did not hold separate “full- blown hearing” on subject of indigency, where defendant testified at sentencing to his minimal income, rent, an

2005Clenna v. State, 782 N.E.2d 1029, 1034 (Ind.Ct.App.2003).

2002In Ratliff v. State, 741 N.E.2d 424, 435 (Ind.Ct.App.2000), we held that where the trial court had previously determined that the defendant was indigent and had appointed counsel for trial, and then subsequently appointed counsel for the defendant’s appeal, the trial court did not need to hold an indigency hearing if its intention was to stand on its previous determination of indigency.

2001See Ratliff v. State, 741 N.E.2d 424, 435 (Ind.Ct.App.2000), trams. denied (holding that where the trial court had previously determined that the defendant was indigent and had appointed counsel for trial, and then subsequently appointed counsel for the defendant's appeal, the trial court did not need to hold an indigeney hearing if its intention was to stand on its previous determination of indigeney, but did need to amend its sentencing order to reflect that the defendant could not be imprisoned for failure to pay).

2020See, e.g., E.M., 128 N.E.3d at 2 (reversing the imposition of costs and remanding for a hearing to consider statutory factors, including the parents’ ability to pay and whether reimbursement served the interest of justice); M.Q.M. v. State, 840 N.E.2d 441, 449 (Ind. Ct. App. 2006) (remanding the case for the juvenile court to conduct 4 We reject the State’s initial argument that K.B. forfeited his right to appeal the imposition of fees and costs because he did not file a notice of appeal when the juvenile court entered its initial disposition order and because there are no extraordinary compel

2019Our own Court of Appeals has already found this requirement in several *461 cases prior to the present dispute. 1 See M.Q.M. v. State , 840 N.E.2d 441 , 449 (Ind. Ct. App. 2006) (accepting the argument that a juvenile court improperly ordered a parent to pay fees without first conducting an indigency hearing); In re M.L.K. , 751 N.E.2d 293 , 298-99 (Ind. Ct. App. 2001) (finding the legislative purpose of the "obligation of parent or guardian" statute was to require an inquiry into a parent's ability to pay); Matter of C.K. , 695 N.E.2d 601 , 605-606 (Ind. Ct. App. 1998) (remanding a determinat

2019Notwithstanding the indigency hearing requirement contained in Indiana Code sections 33-37-2-3(a) and 35-38-1-18(a), a trial court has the authority to assess fines, costs, and fees against an indigent defendant; “indeed, a different result would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other[.]” Meunier-Short v. State, 52 N.E.3d 927, 931 (Ind. Ct. App. 2016) (quoting Williams v. Illinois, 399 U.S. 235, 244 (1970)). [13] Affirmed.

2016Notwithstanding the indigency hearing requirement contained in Indiana Code sections 33-37-2-3(a) and 35-38-l-18(a), a trial court has the authority to assess fines, costs, and fees against an indigent defendant; “indeed, a different result would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other ...” Williams v. Illinois, 399 U.S. 235, 244 , 90 S.Ct. 2018 , 26 L.Ed.2d 586 (1970).

2025When a trial court orders a defendant to pay restitution as a condition of probation, “the court is [statutorily] required to inquire into the defendant’s ability to pay.” Pearson v. State, 883 N.E.2d 770, 772 (Ind. 2008); see Ind. Code § 35-38-2-2 .3(a)(6) (“[T]he court shall fix the amount [of restitution], which may not exceed an amount the person can or will be able to pay.”).

2024Applying this modern view, Indiana courts have concluded that the threat of incarceration for criminal contempt triggers the defendant’s right to an indigency hearing and to the appointment of counsel, that the punitive sanctions imposed in a criminal-contempt proceeding implicate double-jeopardy concerns, and that a criminal-contempt finding may be collaterally attacked under our post-conviction rules.1 See, respectively, In re Paternity of C.N.S., 901 N.E.2d 1102, 1106 (Ind. Ct. App. 2009); Buford v. State, 139 N.E.3d 1074 , 1080 (Ind. Ct. App. 2019); Wine v. State, 147 N.E.3d 409 , 415 (Ind

2020See, e.g., E.M., 128 N.E.3d at 2 (reversing the imposition of costs and remanding for a hearing to consider statutory factors, including the parents’ ability to pay and whether reimbursement served the interest of justice); M.Q.M. v. State, 840 N.E.2d 441, 449 (Ind. Ct. App. 2006) (remanding the case for the juvenile court to conduct 4 We reject the State’s initial argument that K.B. forfeited his right to appeal the imposition of fees and costs because he did not file a notice of appeal when the juvenile court entered its initial disposition order and because there are no extraordinary compel

2018Smith v. State, 38 N.E.3d 218, 222 (Ind. Ct. App. 2015).