Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1336 | February 28, 2017 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.

ATTORNEY FOR APPELLANT

Suzy St. John

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Jesse R. Drum

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jaron C. Gibbs,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

February 28, 2017

Court of Appeals Case No.

49A05-1606-CR-1336

Appeal from the Marion Superior 

Court

The Honorable Christina R. 

Klineman, Judge

Trial Court Cause No.

49G17-1504-CM-12284

Baker, Judge.
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[1] Jaron Gibbs appeals the probation department’s imposition of costs and fees 

after the trial court elected to impose no fees. He also argues that the trial court 

erred by merging one conviction into another instead of vacating one of them, 

violating the prohibition against double jeopardy. We agree on both 

arguments, and vacate and remand for further proceedings and with 

instructions to vacate the second of Gibbs’s convictions.

Facts

[2] At the beginning of Gibbs’s legal proceedings, the trial court found him indigent 

and appointed a public defender. On May 31, 2016, following a bench trial, the 

trial court found Gibbs guilty of Class A misdemeanor domestic battery and 

Class A misdemeanor domestic battery resulting in bodily injury. At the 

sentencing hearing, the trial court asked for argument, and Gibbs’s attorney 

explained as follows:

Mr. Gibbs is looking for work currently. He’s not working, he 

doesn’t have a license, he doesn’t drive. We don’t believe that 

any form of probation, I don’t know if that would be appropriate. 

Because he [would] have to worry about his transportation with 

him being (INAUDIBLE) or any treatment or anything like that. 

We would ask for time served.

Tr. p. 100. The same day, the trial court sentenced Gibbs to 365 days, with 339 

days suspended to non-reporting probation. The sentencing order states that 

“The Court is assessing Court Costs and Fees in the amount of $0.00 . . . .” 

Appellant’s App. Vol. II p. 13. The probation order includes a space for 
Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1336 | February 28, 2017 Page 3 of 6

monetary conditions of probation. That section of Gibbs’s order reads as 

follows:

Monetary 

Obligation

Misdemeanor 

Rate

Felony Rate Ordered Amount

Administrative 

Fee

50 100

Alcohol/Drug 

Services Program

250 (A Misd)

150 (B & C)

250

Child Abuse Fee 100 100

Countermeasure 

Fee

200 200

Court Costs 183/183.50 183/183.50

Domestic 

Violence Fee

50 50

Drug Interdiction 

Fee

200-1,000 200-1,000

Fine 0-5,000 0-10,000 $

Pre-Trial Fee 50 100

Probation User 

Fee

50 + 20/month 100 + 30/month

Public Defender 

Fee

50 100

Safe School Fee 200-1,000 200-1,000

Sexual Assault 

Victim Fee

250-1,000 250-1,000

 

Id. at 51 (blacked-out sections and blank spaces original). Subsequently, the 

probation department charged Gibbs $340 in probation user’s fees and $233 in 

miscellaneous fees.1 On June 6, 2016, the trial court granted the probation 

department’s request to transfer Gibbs’s bond to apply to the outstanding 

 

1 None of these fees fell into the categories of “Fine,” “Safe School Fee,” or “Sexual Assault Victim Fee.”
Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1336 | February 28, 2017 Page 4 of 6

balance, leaving Gibbs with a remaining balance owed of $378. Gibbs now 

appeals.

Discussion and Decision

I. Probation Fees and Costs

[3] When a defendant is convicted of a misdemeanor, the trial court has discretion 

to impose certain probation fees. Ind. Code § 35-38-2-1(e). If the probation 

department later wants to alter the fees imposed by the trial court, it must 

petition the trial court to increase the probation fees. I.C. § 35-38-2-1.7(b). To 

be entitled to an increase in fees, the probation department must demonstrate 

that there was a change in the financial ability of the probationer while on 

probation. Id.

[4] This Court has already considered the precise issue before us regarding 

probation fees and costs. In Coleman v. State, 61 N.E.3d 390 (Ind. Ct. App. 

2016), the trial court’s sentencing order did not list any court costs or fees, and 

the probation order’s monetary obligation section included ordered amount 

sections that were blacked out with the exception of “fine,” “safe school fee,” 

and “sexual assault victim fee,” which were all blank. 61 N.E.3d at 393-94. 

The probation department subsequently imposed an aggregate amount of $640 

in fees on the defendant. This Court found that, “based on the record, we 

cannot conclude that the trial court imposed these probation fees.” Id. at 394. 

Therefore, we vacated the fees and remanded for further proceedings.
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[5] The State directs our attention to a Marion County local rule, which provides 

that whenever an individual is placed on probation, a series of fees and costs 

“shall be imposed under the Probation Court or Probation Order unless the 

sentencing Judge specifically modifies the Order.” LR49-CR00-115(a). 

Initially, we emphasize that any local rule (along with any statute) must also 

comply with the constitutional due process rights of the people to whom the 

rule is applied. Therefore, were this rule to be applied in a way that violated 

Gibbs’s due process rights, we would find it to be unconstitutional.

[6] As a constitutional argument has not been made in this case, however, we note 

that while we acknowledge this rule, we can only conclude that, by blacking out

the sections for the “Ordered Amount” of relevant fees and costs in the 

probation order, the trial court did, in fact, modify the default imposition of 

fees. Because the trial court in this case did not impose any probation fees or 

costs on Gibbs, it was erroneous to accept the imposition of these fees without a 

petition from the probation department and a showing that Gibbs’s financial 

situation has changed since the sentencing hearing. Accordingly, we vacate the 

fees and remand for further proceedings.2

 

2

Should the probation department petition for fees and costs, the trial court would have to hold an indigency 

hearing at some point. The trial court could hold the hearing immediately or wait until Gibbs completes his 

sentence to make the indigency determination. Johnson v. State, 27 N.E.3d 793, 795 (Ind. Ct. App. 2015).
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II. Merger

[7] Finally, the trial court entered a judgment of conviction for both Class A 

misdemeanor convictions. In an attempt to avoid running afoul of the 

prohibition against double jeopardy, the trial court merged one count into 

another. The State concedes that Gibbs is correct that merging a conviction 

without vacating it does not remedy a double jeopardy violation. West v. State, 

22 N.E.3d 872, 875 (Ind. Ct. App. 2014). We agree. Therefore, we remand 

with instructions to vacate Gibbs’s conviction for Class A misdemeanor 

domestic violence causing bodily injury.

[8] The judgment of the trial court regarding the fees owed by Gibbs is vacated and 

remanded for further proceedings consistent with this opinion and with 

instructions to vacate Gibbs’s conviction for Class A misdemeanor domestic 

violence resulting in bodily injury.

Mathias, J., and Pyle, J., concur.