Court of A pp eals of Indiana | Memorandum Decision 18A

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### 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

.
A TTORNEY FOR A PPELLANT Talisha Griffin Marion County Public Defender Agency Appellate Division Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Tiffany A. McCoy Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIA NA

Ronny Bradley , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff August 27, 2019 Court of Appeals Case No. 18A

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- 2926 Appeal from the Marion Superior Court The Honorable Alicia A. Gooden, Judge The Hon orabl e Richard Hagenmaier, Commissioner Trial Court Cause No. 49G21

- 1806

- F6

- 19457

Crone , Judge
.Court of A pp eals of Indiana | Memorandum Decision 18A

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### Case Summary

[1] Ron ny B radley app eals his eight

- and

- one - half

- year sentence imposed by the trial court foll owing his conviction s for l evel 6 fe lony po ssession of cocai ne and class B misdemeanor possession of marijuana and his adjudication as a habitual offender. Bradley cont ends that his se n tence is inappropriate in light of the nature of the offenses and his cha racter. Bradley also argues that the trial court ab used its discretion when it imposed a $100 public defender fee without determining his ability to pay

. We affirm his s entence b ut reverse and remand the fee order with instructions to d etermine Bradley ’s ability to pay the fee.



### Fact s and Procedural Histo ry 1

[2] T he facts most favorable to the jury ’ s verdict are as fo llows. On June 13, 2018, Indianapolis Metropol itan Po lice Departmen t Officer Michael Sojka wa s on patrol when he observed a car stopped on a street in a la ne of traffic

. After Officer Sojka pull ed be hind the car , the driver began driving and turn ed down an alley without signaling. Officer Sojka activated h is ligh ts and initiated a traffic stop

. H e observed a female in the driver’s seat and Bradley in t h e passenger seat

. As Officer Sojka was ge tting out of his car , he c ould hear Bradley and th e female driver yell ing at each other , and he observed Bradley

r eaching down w ith his hands toward the f lo or board and being “very

a ni m ated ” with his arms and body

. Tr. Vol. 2 at 36. Bradley refused to com ply

1 Bradley fails to set for th the facts in his appellant ’ s brief in a ccordance with the applicable standard of review as req

uir ed by Indiana Appellate Rule 46( A)(6) (b)

.Court of A pp eals of Indiana | Memorandum Decision 18A

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w ith the officer ’ s commands to pl a ce his hands outside the passenger window and instead kept “ brin g ing his rig ht hand back i n side ” and was “fumbling i n s ide the vehicle , doing something in his la p .” Id

. at 39 , 72

. Officer Sojka removed Bradley from th e car and con ducted a s ea r ch o f the car . On the passenger side , Officer Sojka located two bags of a “white rock s ubstanc e” that was later confirmed to be 3 .66 grams of cocai ne. Id. at 41 ; State’s Ex. 29

. On the
passenger - side fl oo rboard, Officer Sojka f ound a crack pipe , a n e y eglass case contai ning dr

ug paraphernalia , and a small baggie with pills that w ere later

c onfirmed to co ntain fe ntanyl

. Tr. Vol. 2 a t 4 5

. A handgun was loc ated u nder the passenger seat

. Bra dley admitted to Officer Sojka that he an d the driver had gone together to buy co caine and that he had been using the drug p araphernalia and the crack pipe

. Officer Soj ka placed Bradley insi de h i s patrol car , smelled

a n odor of marijuana , and as ked Bradley if he had a n y marijuana on him

. Bradle y ope n ed his mout h , and Officer Soj ka saw a white wrapper with “ green leafy substances ” stick ing out o f it. Id. a t 48. Before tak ing Bradley int o

c u stod y, another officer searched his person and found a bag of m arij u ana
.

[3] T he State c harged Bradley with l evel 4 felony unlawful possession of a firear m by a serious violent felon, level 5 felony possession of a narcotic dr ug , leve l 5 felony possession of cocaine , class B misdemeanor possession of marijuana, class C misdemeanor possession of parapherna lia, and with being a habitual offender. At the in itial hearing, th e trial court appointed Bradley a public defen der and impose d a $100 public d e fen der f ee
. Foll owing a tria l , the jury found Bradley not guilty of level 4 felony unlawful possession of a f irear m by aCourt of A pp eals of Indiana | Memorandum Decision 18A

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s erious violent felon , level 5 felony possession of a narcotic dr ug, and class C misdemean or possessio n of paraphern ali a and found him guilty of level 6 felony possession of cocaine and class B misdemeanor possession of marijuana

. Th e trial court adjudicat ed Bradley a habitual off ender. The trial court sentenced Bradley to two and one

- half years for the felony , enhanced by six years fo r the habitual offender finding, and to a concurrent 180

- day term for the misdemea nor for a total of e ight and one - half yea rs executed

. Th is appeal

ensu ed.


### D isc ussion and Decision Section 1

– Bradley has failed to e stablish that his sentence is in ap propr iate in light of the nature of the offenses and his chara cter.

[4] Bradley req

uests that we revise his sen tence pursuant t o Ind iana Appe llate Ru le 7(B) , which p rovides that we “ may revise a sentence authorized by statute if, after due consideration of th e tria l court’ s decision, [ we ] find that the sentence is inappropr iate in light of the n ature of the offense and the character of the offende r.” “ Sentence review under Appellate Rule 7( B ) is very deferential to the trial court. ” Conley v. State , 972 N.E.2d 864, 876 (Ind. 2012). “ Such deference should prevail unless overcome by compelling evidence portraying in
a po sitive light the nature of the offense (such as a ccompanied by restraint, regard, and lack of brutality) and the defendant ’ s character (such as subst antial virtuous traits or persistent examples of good character). ” Stephenson v. State , 29 N.E.3d 111 , 122 (Ind. 2015)

. T he principal role of app ellate re view is toCourt of A pp eals of Indiana | Memorandum Decision 18A

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attempt t o “leaven the outliers [

. ] ” Ca rdwell v. S tate , 895 N.E. 2d 1219, 122 5 (Ind. 2008)

. “ We do not l o ok to determine if the s entence was appropriate; instead we look to make sure the sente nce w as not inappropr iate. ” Conley , 972 N.E.2d

at 876

. Bra dley bear s the burden of persuading us t hat his senten ce is inappro p riate. Bowman v. State , 5 1 N.E.3d 1174, 1181 (Ind

. 2 0 16).

[5] In co n sidering the nature of Bradley ’ s offenses, “ the advi sory senten ce is the

s tarting po int the Legislature has selected as an appropriate sentence for the crime committed .” Id

. The sentenc i n g range for a level 6 felony is between six months and two and one

- half year s , wi th a on e - year ad visory t erm. Ind . Code § 35

- 50

- 2

- 7(b)

. The maximum sentence for a class B misdemeanor is 18 0 days of impr iso nment. Ind

. Code § 3 5

- 50

- 3

- 3. A habitual offender en hancement carries

an ad d itional fixed term between two years and six y e a rs if the person is

c onvicted of a level 6 felony

. Ind

. Code § 35

- 50

- 2

- 8(i)

.

[6] Bradley contends t hat the nature of the offense s did not warr ant the se n tence he received bec aus e his o ffenses were “non

- violent, drug offe nses that stem from an addiction. ” Appel lant’s Br. at 16

. “One factor we consider when det ermining the appropriateness of a deviation from the advis ory sentence i s whether there is anythi ng more or less egregious about the offense committed by the defendant that makes it different from the ‘typ ical’ offense ac counted for by the legislature when it set the advisory sentence.” Williams v . State , 51 N.E. 3d 1205, 1211 (Ind. Ct. App. 2016)

. “ T he nature of the of fense is found in the details and circumstances surrounding the offense and the defe ndant ’ s participation ther ein

. ” Morr is v. State , 114 N.E.3d 531, 539 (Ind. Ct. App.Court of A pp eals of Indiana | Memorandum Decision 18A

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2018), trans. denied (2019)

. Althou gh Bradley ’ s o ffenses are not p articula rly egregious , he repea tedly disobey ed the officer s ’ commands to show his hands and attempted to concea l the marijua na
.

[7] A s for Bradley ’ s character , he ackno wledges that he h as a significant criminal hist or y, but bl ames his le n gt hy crimi nal history on hi s addiction to d rug s
. “The significance of a crimin al history in assessing a defend ant’s chara cter a nd

an app rop riate s en ten ce v ar ie s based on t he grav ity, nature, and nu mber of prior offenses in relation to the c u rren t offense. ” Rutherford v. State , 8 66 N.E.2d 867, 874 (Ind. Ct. App. 2007 ). During his adult life, the fi fty

- four

- year - old B radley has be en a r rested twent y - fi ve times , resulting in ten misdemeanor and nine felony convictions ranging from dealing and p ossessi on of m arijua na, possession of cocaine and narcot ic s , unlawful pos session of a firearm by a

ser ious vi olent felon, battery , and resisti ng l a w enforcement

. Bradley claims he

now recognizes that he ha s an addiction problem and is less likely to reoff end because of his age. However, his age has not slowed down h is criminal ac tivity. He committed his most re cent offense just a few months b efore he committed th e current offenses. Bradley ’ s extensive criminal history does not support a sentence reductio n.

[8] Moreover, B radley ’ s many contacts with the law have not caused h im to reform his behavi or
. He argues that “ a lengthy prison sent ence do es no t fu rth er his
go a l of effectively addressing and resol ving the underlying cause for his convictions

. ” Appella nt ’ s B r. at 16

. The record indicates that Bradl ey has

r eceived help in the past for his men tal illness and drug addictio n , but heCourt of A pp eals of Indiana | Memorandum Decision 18A

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stopped tak ing h is p rescribed me dication and self

- medicate d with illicit d rugs. Moreo ver, Bradley has been granted the lenie ncy of probati on and community correcti ons but has viola ted both thirty times, which reflect s extremely poorly

on his chara cter. In sum, Brad ley h as not persua ded us that his sente nce is inap propr iate in lig h t of the nature of the offense s or his charact e r
. A ccordingl y, we affirm it

. 

### Section 2

– T he trial co ur t abuse d its discretion in impo s ing

the public defende r fee.

[9] B radley also c laims tha t the tr ia l co urt err ed in imposing a $100 pu bl i c defender fee without first determining his ability to pay

. “[S] entencing deci sions, including decis io ns to impose resti tution, fines, cos ts, or fees, are genera lly left to the trial court 's dis cr eti o n.” Be rry v . Sta te, 950 N.E

. 2d 798, 79 9 (In d. Ct. A pp
. 20 11). If the fe e s imposed by the trial cour t fall within statut ory parameters , we wil l not find an ab use of dis cretion. Langdon v. State , 71 N.E.3d 1 16 2, 1164 (Ind. Ct. Ap p. 2017)

. “A d ef endant ’ s indigen cy d o es not s hield hi m from all
cost s or fees relat ed to his convi c tion. ” Berry , 950 N.E.2d at 799.

[10] Here, Bradl ey suggests , a nd the State agrees, tha t the trial court i mposed the public defender fee pur s uant to Ind iana Code Section 35

- 33

- 7

- 6 , whic h prov ides in r elevant part , ( a) Prior to the c om pletion of the initia l h e aring, the judicial officer shall de termine w hether a pers o n who requests assigned
coun sel i s indigen t. If the person is f ound to be indigent , th e judicial officer shall assign coun sel to the person.Court of A pp eals of Indiana | Memorandum Decision 18A

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... . (c) I f the court finds tha t t he pers on i s ab le to pa y part of the cost of representation b y the as signed counsel , the court shall order the person t o pay the following:
(1) For a felon y action, a fee of one hundred dollars ($100).

.... (d) Th e cou rt may review th e finding of indigency at any t ime d uring the proceedings.

The statute acknowledges that ther e can be “ degr ees of indigenc y ” and that

“ one may be ind igent for purposes of paying private counsel thousands of dollars for rep resentation, but s till be able to pay a nominal amount to partially reimburse the costs of his appointed counsel. ” Wooden v. S tate , 757 N.E. 2d 212, 281 n. 4 (Ind. Ct. App. 2001), trans . denied (2002)

.

[11] On appeal, Bradley contends that “ nothing in the record support s that the t rial court inquired i n to [his] ability to pay part of the costs of representation before imposing the fee. ” Appel lant ’ s Br . at 18. Before Bradley ’s in itial hearing, he

c om pleted a Request for Appointment of Public Defender form in which he

a ffirmed under pena lty of perjury t hat he was not homeles s, supported only himself, was not employ ed , and did not own his own ho me. 2 Appellan t ’ s App.

2 D uring his se ntencing hearing a nd in his pres entence investigation re port, Bradley indicated that he r e ceive s monthly disability benefits of $730 to $750

. Tr. Vol. 2 at 154; Appellant ’ s App. Vol. 2 at 151.Court of A pp eals of Indiana | Memorandum Decision 18A

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Vol. 2 at 43. Based on the informa tion that Bradley provided , the trial court appointed Bradle y a public defender and order ed him to pa y a $100 public defender fee. A p p e l l a n t ’ s A p p. Vol. 2 at 41

- 42 ; Supp. Tr. Vol. 2 at 7

- 8

.

[12] Our c ourts have i nt erpreted Ind iana Code Section 35

- 33

- 7

- 6 t o r equire that the tria l court make a find ing regar ding a d efe ndant ’ s ability to pay. S ee Ba nks v. State , 84 7 N.E.2d 1050, 1052 (Ind. Ct. App. 20 06) ( “ Under Ind. Code § 35

- 33

- 7

- 6 ... , a court must explic itly find a de fendant can pay the fees imposed

. ” ) , trans. d enied ; s ee also Berr

y , 950 N.E.2d at 80 0 ( conc luding that $100 public defender fee was i mposed under Ind . Code § 35

- 33

- 7

- 6 , which require s a finding by the trial court to determin e the defendant ’ s ability to pay ). Because the trial cou rt in this case did not make such a fi nding, we reverse and remand to the t rial court to determine Bra dley ’ s ability to pay the $100 public defender fee as part of the costs of representation

. “ Section 35

- 33

- 7

- 6 doe s not requir e an additional hearing , only a finding of ability to pay. ” Berry , 950 N.E.2d at 8 02. Thus, in maki ng its determination, the tri al co urt on remand ma y, but is not required to , hold a hearing.

[13] Aff

irmed in part and reversed and remanded in pa rt.
Baker, J., and Kirsch, J., concur

.