Court of Appeals of Indiana | Memorandum Decision 14A05-1701-CR-200 | July 7, 2017 Page 1 of 4

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

Victoria L. Bailey

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Laura R. Anderson

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Matthew Wininger,

Appellant-Respondent,

v.

State of Indiana,

Appellee-Plaintiff.

July 7, 2017

Court of Appeals Case No.

14A05-1701-CR-200

Appeal from the Daviess Superior 

Court

The Honorable Dean A. Sobecki, 

Judge

Trial Court Cause No.

14D01-1510-F6-1343

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 14A05-1701-CR-200 | July 7, 2017 Page 2 of 4

Case Summary

[1] Following a jury trial, Matthew Wininger (“Wininger”) was convicted of 

Operating a Vehicle as a Habitual Traffic Violator, as a Level 6 felony.1 His sole 

contention on appeal is that the trial court abused its discretion when it ordered 

him to pay a public defender fee of $100.

[2] We affirm in part and reverse in part.

Facts and Procedural History

[3] Wininger was charged with one count of Operating a Vehicle as a Habitual 

Traffic Violator, and an initial hearing was held on December 14, 2015. At the 

hearing, Wininger stated that appointed counsel was representing him in 

another criminal matter. The trial court took judicial notice of the previous 

appointment of counsel, and appointed the same counsel to represent Wininger.

[4] A jury trial was held on November 15, 2016, and Wininger was found guilty as 

charged. Wininger received a sentence of two and one-half years, and was 

ordered to pay court costs. The trial court also imposed a $100 fine suspended 

on the condition that Wininger pay $100 to the Daviess County Supplemental 

Public Defender’s Fee Fund. The trial court offered to appoint a public 

defender to represent Wininger on appeal, and later appointed counsel.

 

1

Ind. Code § 9-30-10-16(a)(1).
Court of Appeals of Indiana | Memorandum Decision 14A05-1701-CR-200 | July 7, 2017 Page 3 of 4

[5] This appeal ensued.

Discussion and Decision

[6] Wininger argues, and the State concedes, that the trial court erred when it

imposed a public defender fee without evaluating Wininger’s ability to pay.

[7] “Sentencing decisions, including decisions to impose restitution, fines, costs, or 

fees, are generally left to the trial court’s discretion.” Kimbrough v. State, 911 

N.E.2d 621, 636 (Ind. Ct. App. 2009). An abuse of discretion occurs if the 

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. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g. 

“If the trial court imposes fees within the statutory limits, there is no abuse of 

discretion.” Kimbrough, 911 N.E.2d at 636.

[8] Here, the trial court did not identify a statutory basis for imposing a public 

defender fee. Nonetheless, three different statutes authorize the imposition of 

public defender fees, all of which require at least some inquiry into the 

defendant’s financial circumstances. See I.C. § 35-33-7-6(c) (requiring a 

“find[ing] that the person is able to pay part of the cost of representation”); I.C. 

§ 33-40-3-6(a) (requiring a “finding of ability to pay the costs of 

representation”); I.C. § 33-37-2-3(e) (requiring a hearing on indigency and a 

“determin[ation] that a convicted person is able to pay part of the costs of 

representation”); see also Jackson v. State, 968 N.E.2d 328, 333-34 (Ind. Ct. App. 
Court of Appeals of Indiana | Memorandum Decision 14A05-1701-CR-200 | July 7, 2017 Page 4 of 4

2012) (discussing the three statutes). Moreover, even where a trial court does 

not impose a public defender fee but instead imposes only a fine, the trial court 

must at some point conduct a hearing to determine whether the convicted 

person is indigent. See I.C. § 35-38-1-18(a) (requiring a hearing “whenever the 

court imposes a fine”); I.C. § 35-38-1-18(b) (in the case of a suspended fine, 

requiring a hearing “at the time the fine is due”).

[9] In the instant case, the trial court erred when it imposed the public defender fee 

without considering Wininger’s ability to pay. We therefore reverse that

portion of the sentencing order imposing this fee. We affirm the judgment of 

the trial court in all other respects.

Conclusion

[10] The trial court erred when it imposed the public defender fee without an 

indigency hearing.

[11] Affirmed in part and reversed in part.

Vaidik, C.J., and Robb, J., concur.