Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1199 | November 22, 2017 Page 1 of 10

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Rory Gallagher

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Angela N. Sanchez

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Lamarcus Williams,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 22, 2017

Court of Appeals Case No.

49A02-1706-CR-1199

Appeal from the Marion Superior 

Court

The Honorable David Certo, Judge

The Honorable David Hooper, 

Magistrate

Trial Court Cause No.

49G12-1601-CM-1518

Riley, Judge.
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STATEMENT OF THE CASE

[1] Appellant-Defendant, Lamarcus Williams (Williams), appeals the trial court’s

order requiring him to pay certain costs and probation fees. 

[2] We remand with instructions. 

ISSUE

[3] Williams presents one issue on appeal, which we restate as: Whether the trial 

court conducted an adequate indigency hearing to determine Williams’ ability 

to pay certain costs and probation fees. 

FACTS AND PROCEDURAL HISTORY

[4] On December 4, 2015, Williams, along with his mother and brother, travelled 

to Mississippi to attend a funeral. In order to travel to Mississippi, Williams’ 

mother rented a vehicle from Avis Car Rental (Avis) at the Indianapolis 

Airport. Williams brought his handgun with him for protection and when the 

car was returned to Avis, he left it loaded underneath the driver’s seat. Avis 

later discovered the handgun and handed it over to the Indianapolis 

Metropolitan Police Department. When Williams was contacted by the police, 

Williams admitted that the handgun belonged to him and that he did not 

possess a permit.

[5] On January 15, 2016, the State filed an Information, charging Williams with 

one Count of carrying a handgun without a license, a Class A misdemeanor. A 

jury trial was conducted on May 11, 2017, and the jury found Williams guilty 
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as charged. On the same day, the trial court conducted Williams’ sentencing 

hearing. During closing arguments, the State recommended no jail time, sixty 

hours of community service, and for Williams’ probation to terminate upon 

payment of all fees. The State additionally sought for the destruction of 

Williams’ handgun. William’s counsel, in turn, argued:

Judge, I’ll just summarize. You know, the facts of this case, you 

know, this wasn’t an incident where he showed up at a, you 

know, ex-girlfriend’s house with a gun or anything like that. I 

would also like to point out that he does have a job. He is 

supporting his children who live with him. He lives with his 

[fiancée], who is in the courtroom right now and who has been in 

the courtroom throughout today. 

Again, he has no criminal history. So, honestly, I was going to 

recommend very close to what the State recommended. I was 

actually going to recommend 45 hours of community service, 

probation, and probation to terminate upon completion of—or 

probation to terminate upon completion of the community 

service and the paying of all fines and fees.

(Sentencing Tr. p. 105). After the parties’ submissions, the following exchange 

occurred between the trial court, Williams’ counsel, and Williams:

[TRIAL COURT]: How much does he make at his job?

[WILLIAMS’ COUNSEL]: He makes $14 an hour, Judge, and 

he works from 11:00 to 7:00.

[TRIAL COURT]: 40 hours a week?
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[WILLIAMS]: Yes, sir.

[TRIAL COURT]: How many kids does he have?

[WILLIAMS]: Now? Five.

[TRIAL COURT]: Five kids. And, gun destruction? Your

response?

[WILLIAMS’ COUNSEL]: Yes. We’re fine with that.

[TRIAL COURT]: Fine with the gun destruction?

[WILLIAMS’ COUNSEL]: Yes.

(Sentencing Tr. p. 105). 

[6] The trial court then sentenced Williams to an executed sentence of two days 

and 363 days suspended to probation. Williams was ordered to complete fortyfive hours of community service as well. The trial court additionally stated, 

because Williams is employed, “he will pay probation costs.” (Sentencing Tr. 

p. 106). Finally, the trial court stated that Williams’ probation would terminate

“upon completion of all terms,” and “payment of all fees.” (Sentencing Tr. p. 

106). The trial court issued a written order on the same day. The order 
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included a section titled “Monetary Obligations,” which listed Williams’ costs 

and probation fees1 as follows:

Part V MONETARY OBLIGATION

Court Costs and Fees 

Adult Probation Administrative Fee -CR $50.00

Adult Probation Monthly and Initial User Fees - CR $281.30

Automated Record Keeping Fee - CR $19.00

Court Administration Fee - CR $5.00

Court Costs - City and Town - CR $3.60

Court Costs- County - CR $32.40

Court Costs - State – CR $84.00

DNA Sample Processing Fee - CR $2.00

Document Storage Fee - CR $5.00

Indianapolis International Airport Authority $4.00

Judicial Insurance Adjustment Fee - CR $1.00

Judicial Salary Fee - CR $20.00

Jury Fee - CR $2.00

Probation User Fee - Clerk’s 3% - CR $8.70

Public Defense Administration Fee - CR $5.00

Safe Schools Fee - CR $200.00

 Total: $723.00

(Appellant’s App. Vol. II, p. 13). 

 

1

 In imposing the costs and fees, the trial court specified the authorizing statute in this case being Indiana 

Code Section 33-37-4-1 (governing the collection of court costs fees) and I.C. § 33-37-5-19 (governing the 

collection of other additional fees). 
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[7] Williams now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

[8] Williams contends that the trial court failed to conduct a hearing to determine 

whether he was indigent prior to the imposition of costs and other probation 

fees. Williams, therefore, wants us to vacate the mandated costs and fees. In 

response, the State argues that vacating the costs and fees is not an appropriate

remedy; rather, we should remand to the trial court if we determine that the 

trial court did not conduct an adequate indigency hearing. 

[9] Sentencing decisions, which include the imposition of fees, costs, and fines, are 

generally left to the trial court’s discretion. Bex v. State, 952 N.E.2d 347, 354 

(Ind. Ct. App. 2011), trans. denied. A trial court’s sentencing decisions are 

reviewed under an abuse of discretion standard. McElroy v. State, 865 N.E.2d 

584, 588 (Ind. 2007). “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. at 588 (quoting K.S. v. State, 849 

N.E.2d 538, 544 (Ind. 2006)). 

[10] In the instant case, Williams was ordered to pay certain court costs, fines, and 

probation fees. Indiana Code Section 33-37-4-1 sets forth the costs the court 

shall collect from convicted defendants by operation of law. In addition, where, 

as here, a person is convicted of a misdemeanor, the trial court has discretion to 

impose probation fees. I.C. § 35-38-2-1(b). 
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[11] The Indiana legislature requires indigency hearings as to the imposition of fines 

and costs. See I.C. § 33-37-2-3(a) (providing “when the court imposes costs, it 

shall conduct a hearing to determine whether the convicted person is 

indigent”); and I.C. § 35-38-1-18 (providing the same for court-imposed fines). 

With respect to probation fees, we have held that 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 793, 795 

(Ind. Ct. App. 2015) (citing I.C. ch. 35-38-2). However, the trial court has a 

duty to conduct an indigency hearing, at the latest, upon the completion of the 

defendant’s sentence. Id.

[12] Williams states that his case mimics the factual scenario in this court’s decision 

of Burnett v. State, 74 N.E.3d 1221, 1227 (Ind. Ct. App. 2017). In Burnett, 

Burnett was charged with operating a vehicle while intoxicated endangering a 

person, a Class A misdemeanor. Id. Following a bench trial, Burnett was 

found guilty as charged. Id. During the sentencing phase, the trial court asked 

one question to determine Burnett’s financial situation. Id. After Burnett 

expressed that she made less than $20,000, the trial court sentenced her to 365 

days with five days executed and the remainder suspended to probation. Id.

The trial court ordered Burnett to pay several court costs, fees, and fines, which 

were payable alongside other probation fees. Id. The trial court’s sentencing 

order and order of probation indicated that Burnett’s probation would become 

non-reporting after she had finished paying all her probation fees. Id. On 

appeal, Burnett argued that the trial court failed to conduct an adequate 
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indigency hearing before it ordered her to pay certain probation fees. Id. In 

turn, the State contended that the trial court did conduct an indigency hearing 

based in part on its one question and on the fact that the record showed that 

Burnett was employed as a nurse and wore her nurse’s uniform to trial. Id. We 

agreed with Burnett and noted:

While in some cases such a brief inquiry into a defendant’s 

financial situation may be sufficient—if, for example, the 

defendant reports a six-figure income or significant assets or has 

in some other way established herself as financially secure—in 

Burnett’s case, it was not. . . . In this case, a sufficient indigency 

hearing would consist of the trial court asking Burnett questions 

in order to assess her actual ability to pay. Such questions might 

include asking about 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. In the instant case, we observe the existence of conflicting evidence 

in the record concerning Williams’ financial status. Although Williams

retained private counsel and was employed at the time of sentencing, the trial 

court subsequently appointed appellate counsel. At his sentencing, Williams’ 

trial counsel’s argument for Williams’ probation was to “terminate upon 

completion of the community service and the paying of all fines and fees,” 

instead of requesting the trial court to find Williams indigent for the purposes of 

paying costs and fines. (Sentencing Tr. p. 105). 
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[13] We agree with Williams’ that the facts of this case militate a similar finding as 

stipulated in Burnett. Like in Burnett, the trial court engaged in a superficial 

review of Williams’ financial status. The trial court did not ask whether 

Williams had any debts, whether he paid any child support, or whether the trial 

court should know anything else about his financial circumstances that would 

impact his ability to pay mandated costs and fees. Instead, all the trial court 

asked was how many hours Williams worked, how much he earned, and how 

many children he had. Based on the limited exchange between the trial court 

and Williams regarding his financial position, we conclude that the trial court

did not conduct a sufficient indigency hearing with regards to Williams’ costs. 

See I.C. § 33-37-2-3(a). Therefore, because the court ordered Williams to pay 

costs and fees without conducting an adequate indigency hearing, the proper 

remedy is to remand to the trial court for such a hearing. See Briscoe v. State, 783 

N.E.2d 790, 792 (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”). 

[14] With respect to Williams’ probation fees, as we discussed above, the 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, 27 N.E.3d at 

795 (citing I.C. ch. 35-38-2). Consequently, in this case, on the completion of 

Williams’ sentence the trial court should conduct an indigency hearing to assess 

Williams’ ability to pay probation fees.
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CONCLUSION 

[15] For the foregoing reasons, we remand with instructions to the trial court to 

determine whether Williams is indigent for the purposes of paying the costs and 

probation fees. 

[16] Remanded with instructions.

[17] Robb, J. and Pyle, J. concur