Court of Appeals of Indiana | Memorandum Decision 19A

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- 2084 | March 18, 2020 Page 1 of 6 

### 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 Christopher Kunz Marion County Public Defender Appellate Division Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Courtney Staton Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Steven Thomas , Appellant

- Defendant , v. 

### State of Indiana , Appellee

- Plaintiff

. March 18, 2020 Court of Appeals Ca se No. 19A

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- 2084 Appeal from the Marion Superior Court The Honorable Marshelle Dawkins Broadwell, Magistrate Trial Court Cause No. 49G17

- 1907

- F6

- 27189

Brown , Judge .Court of Appeals of Indiana | Memorandum Decision 19A

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- 2084 | March 18, 2020 Page 2 of 6 [1] Steven Thomas appeals his sentence for domestic battery as a class A misdemeanor. He raises one issue which we revise and restate as whether t he trial court abused its discretion in sentencing him with respect to certain fees. We remand. 

### Facts and Procedural History
[2] On July 12, 2019, the State charged Thomas with strangulation as a level 6 felony and domestic battery as a class A misdemeanor. On August 8, 2019, the court held a bench trial . The court found Thomas guilty of domestic battery as a class A misdemeanor and not guilty of strangulation as a level 6 felony. At the end of the trial, the court stated: [T]he Defendant is going to be sentenced in this matter to three hundred and sixty

- five (365) days, with credit for 22 (22) days, which leaves three hundred and forty

- three (343) days remaining. One hundred and twenty (120) days will be served on Marion C ounty Community Corrections Home Detention, with GPS Moni toring . Two hundred and twenty

- three (223) of the total three sixty

- f ive (365) will be suspended to probation. Transcript Volume II at 20.

[3] Upon questioning by the court, Thomas indicated he was not working , lost his job because of his incarceration , and was in the process of looking for employment. The court stated: So, with respect to court costs, I’m going to find you indigent to court costs and I’m not going to order a fine, and I will cap proba tion fees at a total of one hundred dollars ($100.00USD).Court of Appeals of Indiana | Memorandum Decision 19A

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- 2084 | March 18, 2020 Page 3 of 6 Sir, you may appeal both the sentence and the conviction. You have thirty (30) days to do so, if you fail to do so, you waive your right to appeal. If you need the public Defender Agency to repre sent you for the appeal, I can appoint them as pauper counsel.
Id. at 21.

[4] On August 22, 2019, t he court entered an order which listed the “Sentence” as “0 Year(s) and 365 Day(s)” and under the heading “Suspended” state d “0 Year(s) and 343 Day(s).” Appellant’s Appendix Volume II at 12 (some capitalization omitted). Under “Confinement Type,” the court listed community corrections and, under “Confinement Comments,” the order state d : “D efendant is sentenced to 120 days MCCC/HD/GPS and 223 Probation.” Id. (some capitalization omitted)

. Under “Sentencing Conditions” and “Amount/Comment ,” the court listed “120 days. Sliding scale” for each category of “Community Corrections, ” “Electronic Monitoring,” and “Home Detention.” Id. at 12

- 13. Under “Probation,” it stated “223 Days. Fees capped at $100.00.” Id. at 13. Under “Monetary Obligations” and “Court Costs and Fees,” the court listed a $100 Supplemental Public Defender Fee. Id. A n entry in the chronological case summary (“CCS”) states: “Conditions of Community Corrections Sliding Scale .” Id. at 8. A document titled “Courtroom Minutes

– Criminal Pre

- Trial/Guilty Plea” contains handwritten notations of “Cap Prob Fees $100.00 NCO re mains” and “Prob

- capped @ 100.00.” Id. at 44

- 45.

[5] On October 7, 2019, Marion County Community Corrections (“MCCC”) filed a discharge summary indicating Thomas successfully completed his homeCourt of Appeals of Indiana | Memorandum Decision 19A

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- 2084 | March 18, 2020 Page 4 of 6 detention sentence through community corrections. The discharg e summary states he “paid $0.00 towards their fees and [is] currently $840.00 in arrears to [MCCC] .” Id. at 51. On October 8, 2019, the court granted the motion for discharge. In a letter from Thomas’s probation officer to the court , which was filed on October 15, 2019, the officer noted that the court ordered Thomas’s probation fees be capped at $100.00 and sought “clarification on how much is to be assessed to his Administrative fee and how m uch is to be assessed as his Probation User fee.” Id. at 52. On October 16, 2019, the court entered an order indicat ing to “[s]plit the fee 50/50.” Id. at 53.


### Discussion
[6] The issue is whether the trial court abused its discretion in sentencing Thomas wit h respect to fees. Sentencing decisions include decisions to impose fees and costs. Johnson v. State , 27 N.E.3d 793, 794 (Ind. Ct. App. 2015). A trial court’s sentencing decisions are reviewed under an abuse of discretion standard. McElroy v. State , 86 5 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 there from.’” Id. (quoting K.S. v. State , 849 N.E.2d 538, 544 (Ind. 2006)). “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. 20 11).

[7] Thomas argues his fees for home detention as a condition of probation must be capped at $100 because that was the court’s only verbal order while he wasCourt of Appeals of Indiana | Memorandum Decision 19A

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- 2084 | March 18, 2020 Page 5 of 6 present in court , the fee of $840 was not ordered by the court , and the $100 cap on probation fees must also apply to any home detention fees assessed. H e asserts that , if this Court find s the sliding scale language in the sentencing order and CCS supersedes the court’s oral order at sentencing, we should remand for the trial court to clarify its intent regarding fees because the record is unclear whether the court improperly delegated its statutorily

- imposed responsibility to set the home detention fees.

[8] The State asserts remand is appropriate to a llow the trial court to determine the amount of fees owed. It conte nds the court’s order that Thomas’s probation user fees be capped at $100 would not similarly cap his home detention fees because home detention fees are distinct from probation user fees and that remand will allow the trial court to clarify its intent.

[9] Ind. Code § 35

- 38

- 2.5

- 5 provides that “ as a condition of probation a court may order an offender confined to the offender ’ s home for a period of home detention .” Ind. Code § 35

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- 2.5

- 6(7) provides that an order for home detention must include “ [a] requirement that the offender pay a home detention fee set by the court in addition to the probation user ’ s fee required under IC 35

- 38

- 2

- 1 or IC 31

- 40. ” 1 (Emphasis added).

1 Rules governing the direct placement in a community corrections program are governed by Ind. Code § 35

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- 2.6 et seq. State v. Vanderkolk , 32 N.E.3d 775, 777 (Ind. 2015). Ind. Code § 35

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- 2.6

- 1(a) provides that
“ this chapter applies to the sentencing o f a person convicted of a felony whenever any part of the sentence may not be suspended under IC 35

- 50

- 2

- 2.1 or IC 35

- 50

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- 2.2. ” Thomas asserts that , because he was not convicted of a felony , his sentence to home detention was necessarily as a condition o f probation pursuant to Ind. Code § 35

- 38

- 2.5

- 5.Court of Appeals of Indiana | Memorandum Decision 19A

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- 2084 | March 18, 2020 Page 6 of 6 [10] The record does not indicate who established the “sliding scale” or who administers it. We have no way of knowing whether the trial court intended to delegate any statutory responsibility regarding fees to MCCC or whether the fees requested by MCCC were consistent with the s liding scale. Accordingly, we remand the matter to provide the trial court an opportunity to clarify its intent regarding the fee s and for further proceedings consistent with this opinion. 2 See Amick v. State , 126 N.E.3d 909, 911

- 912 (Ind. Ct. App. 2019) (remanding the matter to provide the trial court an opportunity to clarify its intent regarding the fee )

.
[11] Remanded. Baker, J., and Riley, J., concur.

2 Thomas argues that, to the extent the sentencing order and CCS contradict what the court verbally told him, we should follow Whatley v. State , 685 N.E.2d 48 (Ind. 1997). In that case, the trial court orally informed the defendant that he was being sentenced to 365 days, but the abstract of judgment sent to the Department of Correction reflected that the defendant was sentenced to the charge as a class C felony with a two
- year sentence. 685 N.E.2d at 50. The Court observed that the required separate judgment under Indiana Criminal Rule 15.1 was not done, but noted that a CCS entry existed which was consistent with the abstract of judgment but varied from the court’s oral sentencing pronouncement. Id. The Court held that various approaches have been taken to resolve the inconsistency between a judge’s in

- court pronouncement of sentence and the subsequent abstract of judgment. Id. The Court o bserved that the Court of Appeals has either stricken the sentence modification or remanded to the trial court for a proper sentencing. Id. The Court held that “ [w]hile either approach is available , we elect to reinstate the original in

- court sentencing and to vacate the subsequent contradictory language.” Id. (emphasis added). Whatley does not preclude remand in this case

.