Court of Appeals of Indiana | Opinion 49A05-1610-CR-2417 | June 23, 2017 Page 1 of 11

ATTORNEY FOR APPELLANT

Valerie K. Boots

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Eric P. Babbs

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jose Arcia De La Cruz,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 23, 2017

Court of Appeals Case No.

49A05-1610-CR-2417

Appeal from the Marion Superior 

Court

The Honorable Rebekah F. 

Pierson-Treacy, Judge

The Honorable Ronnie Huerta, 

Commissioner

Trial Court Cause No.

49G19-1512-CM-45644

Najam, Judge.

Statement of the Case

[1] Jose Arcia De La Cruz appeals the imposition of probation fees after his 

conviction, following a bench trial, for operating a vehicle while intoxicated, as 
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a Class C misdemeanor. He raises one issue on appeal, namely, whether the 

trial court abused its discretion when it allowed the probation department to 

assess probation fees against him. In response, the State contends that De La 

Cruz’ appeal is moot.

[2] We disagree that this appeal is moot. On the merits, we reverse the trial court’s 

order that the probation department assess probation fees, and we remand with 

instructions to vacate the imposition of probation fees and order reimbursement 

of those fees.

Facts and Procedural History

[3] On December 23, 2015, the State charged De La Cruz with operating a vehicle 

while intoxicated endangering a person, as a Class A misdemeanor, and 

operating a vehicle with an ACE of .15 or more, as a Class A misdemeanor. 

The trial court appointed counsel for De La Cruz based on his indigency, with 

no requirement for reimbursement. On September 29, 2016, the trial court 

conducted a bench trial and found De La Cruz guilty of only the lesser-included 

offense of operating a vehicle while intoxicated, as a Class C misdemeanor. 

The trial court then sentenced De La Cruz to sixty days in jail, with fifty-six 

days suspended, and to an additional 180 days of “non-reporting” probation. 

Tr. at 37.

[4] During sentencing, the trial court questioned De La Cruz about his finances as 

follows:

Court: . . . What is your weekly income, sir?
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De La Cruz: About three or four hundred dollars, but work has 

gone down so I don’t have work right now.

Court: How much did you earn last week?

De La Cruz: Last week I didn’t work. There was no work.

Court: Do you support any minor children?

De La Cruz: In Mexico.

Court: How many children?

De La Cruz: Three.

Id. at 38. The trial court then stated, “All right, then I will find you indigent. I 

won’t impose any court cost[s], no fines[,] no fees. I will also order probation[,]

if there are any fees associated with non-reporting[,] to assess your ability to 

pay, also known as sliding scale for all of it.” Id.

[5] In the sentencing conditions section of the sentencing order, the probation 

“amount/comment” subsection states in relevant part: “180 DAYS 

PROBATION. AET AND AAID IS COMPLETED. ADS AND CMF IS 

NOT ORDERED. SLIDING SCALE FOR PROBATION FEES. 

NONREPORTING PROBATION AFTER INITIAL SIGN UP.” Appellant’s 
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App. Vol. II at 12-13. The order of probation,

1

signed on the same date as the 

sentencing order, lists fourteen “Standard Conditions,” including “pay all 

Court-ordered fines, costs, fees[,] and restitution as directed.” Id. at 44. Under 

the “Special Conditions” section, the probation subsection states in relevant 

part: “180 DAYS PROBATION. AET AND AAID IS COMPLETED. ADS 

AND CMF IS NOT ORDERED. SLIDING SCALE FOR PROBATION 

FEES. NONREPORTING PROBATION AFTER INITIAL SIGN UP.” Id. 

[6] The “Monetary Conditions” section of the probation order includes a 4-column 

chart. Id. The first column, entitled “Monetary Obligations,” lists various fees, 

fines, and costs. Id. The second and third columns show “Misdemeanor Rate” 

and “Felony Rate,” respectively. Id. The fourth column is entitled “Ordered 

Amount,” but most of the rows in the column are blacked out. Id. The 

“Administrative Fee” and “Probation User Fee” rows are two of the rows that 

are blacked out. Id. The rows that are not blacked out are left blank.

[7] The last page of the Chronological Case Summary (“CCS”) shows the 

following entry under the heading “FINANCIAL INFORMATION:”

Defendant Arcia De La Cruz, Jose

Total Charges 220.00

 

1

 The State is incorrect when it asserts that the probation order was not entered on the CCS. See Appellant’s 

App. Vol. II at 11.
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Total Payments and Credits 220.00

Balance Due as of 11/17/2016 0.00

Id. at 11. The “Case Transactions Summary for Arcia De La Cruz, Jose” sets 

out probation administrative and user fees totaling $220 and payments of such 

fees totaling $220. Appellant’s Supp. App. Vol. II at 2. 

[8] De La Cruz filed this appeal on October 27, 2016, and, on March 30, 2017, he 

was discharged from probation. 

Discussion and Decision

[9] De La Cruz challenges the imposition of probation fees. Specifically, he 

contends that the trial court abused its discretion when it allowed the probation 

department, rather than the court, to assess those fees. “Sentencing decisions 

include decisions to impose fees and costs,” and a trial court’s sentencing 

decision is reviewed for abuse of discretion. Coleman v. State, 61 N.E.3d 390, 

392 (Ind. Ct. App. 2016). “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. The trial court must impose fees within 

statutory parameters. Berry v. State, 950 N.E.2d 798, 799 (Ind. Ct. App. 2011).

[10] Before we address De La Cruz’ contentions, we must first address the State’s 

assertion that this appeal is moot. As we have previously explained:
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where the principal questions at issue cease to be of real 

controversy between the parties, the errors assigned become 

moot questions and this court will not retain jurisdiction to 

decide them. Stated differently, when we are unable to provide 

effective relief upon an issue, the issue is deemed moot, and we 

will not reverse the trial court’s determination where absolutely 

no change in the status quo will result.

Jones v. State, 847 N.E.2d 190, 200 (Ind. Ct. App. 2006) (citations and 

quotations omitted), trans. denied. 

[11] Here, the State contends that De La Cruz’ appeal is moot because he has 

already paid all of the probation fees and completed probation. We disagree. 

De La Cruz timely appealed the trial court’s order that the probation 

department assess probation fees. The probation department subsequently 

charged him $220 in probation fees which he paid.

2

 On appeal he asserts that 

the probation department should never have charged him the probation fees

because only the court had the statutory authority to do so. He seeks a remedy 

of reimbursement of those fees. As discussed below, we reverse the trial court 

order that the probation department assess probation fees and remand with 

instructions to vacate the probation fees erroneously imposed and order 

 

2

 Thus, while satisfaction of a judgment will generally moot an appeal on the merits of that judgment, e.g., 

Carey v. Haddock, 877 N.E.2d 842, 844 (Ind. Ct. App. 2007), trans. denied, there is no court judgment for 

probation fees in this case, only a probation department assessment of fees. That is, De La Cruz does not 

appeal a trial court judgment of fees; rather, he appeals the trial court order allowing the probation 

department to assess such fees.
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reimbursement of those fees. Because that remedy will provide De La Cruz

with effective relief, his appeal is not moot. 

[12] The State’s assertion that Indiana Code Section 35-38-2-1.7(a) (2016) prohibits 

the remedy of reimbursement in this case is not well taken. That statute 

provides in relevant part that, “if the person is discharged from probation before 

the date the person was scheduled to be released from probation, any monthly 

probation user’s fee paid in advance by the person may not be refunded.” Id. 

However, De La Cruz was not discharged from probation before the date he 

was scheduled to be released from probation, nor is it clear from the record that 

he paid the monthly user’s fee in advance of the date it was due.3 Therefore, the 

State has not shown that Indiana Code Section 35-38-2-1.7(a) is applicable, 

and, again, De La Cruz’ appeal is not moot.

[13] We thus turn to the merits of this appeal. De La Cruz contends that the trial 

court erred when it did not order probation fees and instead allowed the 

probation department to impose such fees on its own. We agree. Indiana Code 

Section 35-38-2-1(b) provides that, if a person is convicted 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 

 

3

 Moreover, the statute only addresses the monthly users’ fees, not the initial users’ fee or the administrative 

fee that are also at issue in this case.
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user and administrative fees, “to either the probation department or the clerk.” 

Subsection (f) states that “the probation department . . . shall collect” those fees. 

(Emphasis added.) And Indiana Code Section 35-38-2-1.7(b) states that “[a] 

probation department may petition a court” to “impose” or “increase” a 

person’s probation fees. 

[14] We recently held that those statutes give “the trial court, not the probation 

department, . . . the discretion to impose probation fees.” Burnett v. State, No. 

49A02-1610-CR-2402, -- N.E.3d --, 2017 WL 1399845, at *4 (Ind. Ct. App. 

April 19, 2017) (emphasis added). In Burnett, the trial court referred at the 

sentencing hearing to “various probation fees that are required,” and it noted in 

its sentencing and probation orders that the defendant had to follow “all 

standard conditions and fees of probation, and that probation would become 

non-reporting upon “payment of all fees.” Id. However, as in our case, the 

probation order had blacked out or left blank the spaces for the “ordered 

amount” of probation fees. Id. Thus, despite the court’s general references to 

probation fees, we held that the trial court had not imposed probation fees on 

the defendant and that it was therefore “erroneous to accept the imposition of 

these fees without a petition from the probation department and a showing that 

[the defendant’s] financial situation has changed since the sentencing hearing.” 

Id.; see also Coleman, 61 N.E.3d at 393-94 (vacating probation fees imposed by 

the probation department where the sentencing order did not list any such fees,

and the probation order included “ordered amount” sections that were either 

blacked out or blank). 
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[15] De La Cruz’ situation is similar to that of the defendants in Burnett and 

Coleman. Although De La Cruz’ sentencing and probation orders referred to a 

“sliding scale for probation fees” and the trial court “order[ed] probation[,] if 

there are any fees associated with non-reporting[,] to assess [De La Cruz’] 

ability to pay,” Tr. at 38, the trial court did not impose probation fees. Rather, 

as in Burnett and Coleman, the probation order included a “monetary 

obligations” section with an “ordered amount” column in which all the rows 

for specific fees were either blacked out or blank. Such a probation order, along 

with the absence of a clear statement imposing probation fees, shows the trial 

court’s intent not to impose such fees. Burnett, 2017 WL 1399845, *4; Coleman, 

61 N.E.3d at 394. 

[16] However, the State maintains that Marion County courts presumptively impose 

probation fees pursuant to a local rule. Marion County LR49-CR00-1154

provides that “whenever an individual is placed on probation,” certain listed 

probation fees and costs, including administrative and user fees, “shall be 

imposed under the Probation Court or Probation Order unless the sentencing 

Judge specifically modifies the Order.” The local rule does not provide what 

amounts should be imposed for each specified fee.5 Id. “Indiana trial courts 

 

4

 We note that this local rule was not raised or addressed in either Burnett or Coleman.

5

 The State contends that “the trial court’s order read in conjunction with the local rule provided for 

assessing the statutory maximum amount of probation fees.” Appellee’s Br. at 20. However, nothing in the 

plain language of the local rule requires the assessment of the statutory maximum amount of probation fees; 

rather, the local rule is completely silent as to the amount of any fees. 
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may establish local rules for their own governance as long as the local rules do 

not conflict with the rules established by the Indiana Supreme Court or by 

statute.” Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 645–646 (Ind.

2012); see also I.C. § 34-8-1-4 (“Other Indiana Courts may establish rules for 

their own government, supplementary to and not conflicting with the rules 

prescribed by the supreme court or any statute.”).

[17] De La Cruz contends that LR49-CR00-115 is invalid because it conflicts with 

Indiana Code Section 35-38-2-1(b). Specifically, he maintains that, while the 

statute makes the imposition of probation fees discretionary for misdemeanors, 

the local rule makes such fees mandatory. We disagree. Although LR49-

CR00-115 creates a presumption that probation fees are ordered, by its plain 

language it allows a trial court discretion to modify an order regarding 

probation fees in any manner it sees fit. Thus, under both the local rule and 

state statute, the trial court has discretion to order probation fees or not.

[18] However, the local rule did not operate as an order for probation fees in this 

case because the trial court did “specifically modify” the presumption of 

probation fees when it blacked out or left blank every row for specific fees in the 

“amount ordered” column of the “monetary obligations” section of the 

probation order. Appellant’s App. at 44. The trial court did not order 

probation fees, and it abused its discretion when it authorized the probation 
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department to do so.6 Accordingly, we reverse the order that the probation

department assess probation fees, and we remand with instructions to vacate 

the probation fees and order reimbursement of those fees from the probation 

department.

7

[19] Reversed and remanded with instructions.

Riley, J., and Bradford, J., concur.

 

6

 Clearly, this error was not harmless, as the State contends, since it cost De La Cruz $220 he should not 

have been required to pay.

7 Unlike in Burnett and Coleman, the trial court here conducted an indigency hearing and determined that De 

La Cruz was indigent. Therefore, it is not necessary to remand for such a hearing. Cf. Burnett, 2017 WL 

1399845, *4 (holding trial court made insufficient indigency inquiry where it only asked if it was true that the 

defendant made less than $20,000 per year); Coleman, 61 N.E.3d at 394 (holding no indigency inquiry was 

made, and remanding for such a hearing).