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

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Lyubov Gore

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Robert E. Ellett,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

September 9, 2015

Court of Appeals Case No.

49A02-1410-CR-706

Appeal from the Marion Superior 

Court

The Honorable Clayton A. 

Graham, Judge

Trial Court Cause No.

49G17-1312-CM-78908

Crone, Judge.

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Case Summary

[1] Robert E. Ellett appeals the trial court’s sentencing order imposing fees, costs, 

and a fine totaling $338. Ellett contends that the trial court abused its discretion 

in imposing this amount without first conducting an indigency hearing 

regarding his ability to pay. Finding no abuse of discretion, we affirm.

Facts and Procedural History

[2] On December 13, 2013, the State charged Ellett with class A misdemeanor 

battery and class A misdemeanor domestic battery. Thereafter, the trial court 

held an indigency hearing, found Ellett indigent, and appointed a public 

defender to represent him. The State subsequently amended the charging 

information to add a charge for class D felony criminal confinement. The case 

proceeded to a jury trial, and the jury found Ellett guilty as charged. During the 

sentencing hearing, Ellett discussed his stable financial situation due to his fulltime job with Jiffy Lube earning $8.80 per hour, and the fact that the suspension 

of the entirety of his sentence to probation would allow him to maintain that 

job. The trial court noted that Ellett was able to and had already paid a $100 

public defender recoupment fee. Tr. at 165. The trial court merged the two 

battery convictions and sentenced Ellett to an aggregate sentence of 545 days 

with 473 days suspended to probation, and seventy-two days of credit time for 

days already served. The trial court assessed court costs, fees, and a fine against 

Ellett in the aggregate amount of $338. Specifically, the court’s order imposed 

the following:

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Adult Probation Monthly and Initial User Fees – CR $97.00

Automated Record Keeping Fee – CR $7.00

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

Criminal Court Fines $20.00

DNA Sample Processing Fee – CR $2.00

Document Storage Fee – CR $2.00

Domestic Violence Prevention Fee – CR $50.00

Indianapolis Metropolitan Police $4.00

Judicial Insurance Adjustment Fee – CR $1.00

Judicial Salary Fee – CR $20.00

Jury Fee – CR $2.00

Probation User Fee – Clerks 3% - CR $3.00

Public Defense Administration Fee – CR $5.00

Supplemental Public Defender Fee – CR $100.00[1

]

Total: $338.00

Appellant’s App. at 18. These amounts were ordered to be paid “during the 

course of probation.” Tr. at 165. 

[3] Private counsel entered an appearance on Ellett’s behalf and filed a notice of 

appeal. However, due to Ellett’s failure to maintain contact with counsel and 

his alleged inability to pay for transcript fees and the costs of representation, 

counsel moved to withdraw his appearance. This Court granted counsel’s 

motion to withdraw and remanded the matter to the trial court to determine 

1 Although the $100 public defender fee remains listed in the trial court’s order, as we stated above, the trial 

court determined during sentencing that Ellett had already paid this fee. This amount is not included in the

trial court’s total calculation of $338, and Ellett does not appeal the imposition of this fee. 

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whether Ellett was entitled to pauper counsel for the purposes of appeal. On 

March 17, 2015, the trial court appointed pauper counsel and the Marion 

County Public Defender Agency perfected this appeal. We will provide 

additional facts where necessary.

Discussion and Decision

[4] Sentencing decisions, including decisions to impose fines, costs, or fees, are 

generally left to the discretion of the trial court. Berry v. State, 950 N.E.2d 798, 

799 (Ind. Ct. App. 2011). We will reverse only for an abuse of discretion—that 

is to say, if 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. McElroy v. State, 865 N.E.2d 584, 588 (Ind. 

2007). “A defendant’s indigency does not shield him from all costs or fees 

related to his conviction.” Berry, 950 N.E.2d at 799 (quoting Banks v. State, 847 

N.E.2d 1050, 1051 (Ind. Ct. App. 2006), trans. denied.). Indeed, a trial court 

does not abuse its discretion if the fees imposed fall within the parameters 

provided by statute. Id. Although Ellett challenges only the aggregate amount 

that the trial court imposed, we will address each type of fee, cost, or fine 

separately, as the law differs with regard to each.

Section 1 – The trial court did not abuse its discretion in 

imposing statutory costs and fees.

[5] In its written sentencing order imposing fees and costs, the trial court relied on

Indiana Code Sections 33-37-4-1 and 33-37-5-19. Indiana Code Section 33-37-

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4-1 specifically requires the trial court to impose certain court costs regardless of 

whether the convicted person is indigent. Id. at 802. Indiana Code Section 33-

37-4-1(a) mandates a trial court to impose a “criminal costs fee” of $120 when a 

defendant is convicted of a felony or a misdemeanor. In addition, subsection

(b) of that statute mandates the imposition of nineteen additional fees as 

required by Indiana Code chapter 33-37-5, including several that were imposed 

by the trial court here, such as an automated record keeping fee, a court 

administration fee, a DNA sample processing fee, a document storage fee, a 

domestic violence prevention fee, a law enforcement continuing education 

program fee,2 a judicial insurance adjustment fee, a judicial salary fee, and a 

public defense administration fee. See Ind. Code § 33-37-4-1(b). Similarly, 

Indiana Code Section 33-37-5-19 mandates the collection of a “jury fee” of $2 

in each action in which a defendant is found to have committed a crime. 

Because all of these fees are mandated by statute, they are imposed by operation 

of law, and “neither indigency nor ability to pay is relevant and a hearing is not 

required.” Berry, 950 N.E.2d at 803. 

[6] Here, the trial court properly provided the statutory authority for the court costs 

imposed and listed and identified each of the applicable fees. See id. (requiring 

trial court to specify statutory sources for fees imposed upon a defendant). 

Therefore, we conclude that the trial court did not abuse its discretion in 

2 We note that the trial court lists a $4 fee for the “Indianapolis Metropolitan Police.” Appellant’s App. at 18. 

We will presume by the label that this fee is a law enforcement continuing education program fee as neither 

Ellett nor the State discusses this fee or informs us otherwise.

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imposing these statutory fees and costs at the time of sentencing without first 

holding an indigency hearing. This comes with the caveat, however, that the 

imposition of these court costs is a separate issue from the sanctions imposed 

for nonpayment. “Such sanctions could only be imposed in the event of a 

determination of an ability to pay.” Id. at 803 n.6; see Whedon v. State, 765 

N.E.2d 1276, 1278-79 (Ind. 2002) (holding that “when fines or costs are 

imposed upon an indigent defendant, such a person may not be imprisoned for 

failure to pay the fines or costs”). 

Section 2 – The trial court did not abuse its discretion in 

imposing probation fees.

[7] We next address the trial court’s imposition of probation user fees. Specifically, 

the trial court ordered that Ellett “be placed on a sliding fee scale or a reduced 

fee schedule” for $100 of probation fees. Tr. at 165. Ellett correctly points out 

that Indiana Code Section 33-37-2-3 states in relevant part that “when the court 

imposes costs, it shall conduct a hearing to determine whether the convicted 

person is indigent.” However, we have recognized that this statute “provides 

the trial court with great flexibility in imposing costs.” Berry, 950 N.E.2d at 

801. Indeed, a panel of this Court recently held that a trial court may, within its 

discretion, delay holding an indigency hearing regarding the payment of 

probation fees until a defendant completes his sentence. Johnson v. State, 27 

N.E.3d 793, 795 (Ind. Ct. App. 2015). We noted that although Indiana Code

Section 33-37-2-3 provides that a trial court that imposes costs on a defendant is 

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required to conduct an indigency hearing, the statute does not otherwise dictate 

when the hearing is to be held. Id. 

[8] Thus, while we acknowledged that a trial court has a duty pursuant to Indiana 

Code Section 33-37-2-3 to conduct an indigency hearing at some point in time, 

we concluded that a trial court is within its discretion to wait and see if a 

defendant can pay probation fees before it finds the defendant indigent. See id. 

(citing Indiana Code chapter 35-38-2 which contains no language requiring the 

trial court to conduct an indigency hearing before or directly after ordering 

probation fees). The trial court here indicated such a desire to wait and see if 

Ellett could handle the probation fees by imposing them “on a sliding fee 

scale.” Tr. at 165. Accordingly, we cannot say that the trial court abused its 

discretion in imposing probation fees at the time of sentencing without first 

holding an indigency hearing. As with the imposition of statutory costs, this 

comes with the caveat that the trial court does have a duty to conduct a hearing 

before imposing any sanctions upon Ellett for failure to pay. See Whedon, 765 

N.E.2d at 1278-79. 

Section 3 – The trial court did not abuse its discretion in 

assessing a fine.

[9] Finally, we address the trial court’s assessment of a $20 fine. Indiana Code 

Section 35-38-1-18(a) states in relevant part that “whenever the court imposes a

fine, it shall conduct a hearing to determine whether the convicted person is 

indigent.” Similar to the language of Indiana Code Section 33-37-2-3(a)

considered above, the statutory language regarding the imposition of fines 

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requires an indigency hearing but does not dictate when that hearing must be 

held. Therefore, a trial court could arguably, within its discretion, delay 

holding an indigency hearing regarding the payment of a fine until the 

defendant completes his sentence. While it may have been more prudent for the 

trial court here to hold an indigency hearing prior to the imposition of this

albeit minimal fine, we decline to find an abuse of discretion. Again, we 

remind the trial court that Ellett may not be sanctioned or imprisoned for 

failure to pay this fine. See Whedon, 765 N.E.2d at 1278-79. The trial court’s 

sentencing order is affirmed.

[10] Affirmed.

May, J., and Bradford, J., concur.

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