Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA panel of the Indiana Court of Appeals has vacated an order requiring a man to pay more than $300 in probation fees after concluding that it was erroneous for the trial court to accept, post-sentencing, the imposition of such fees based on a probation department memo.
After his conviction of Class A misdemeanor domestic battery, Anthony Ross was sentenced to one year with 353 days suspended to unsupervised probation. Additionally, the Marion Superior Court ordered Ross to complete 80 hours of community service and 13 weeks of batterers’ intervention classes.
Although the trial court’s order imposed no probation fees and noted that Ross’ probation could terminate early if he successfully completed all the terms, the probation department sent a memorandum to the trial court on the day of sentencing asking whether the court wanted to assess probation fees.
Specifically, the probation department noted the “eligible” fees of $50 administrative fee and $290 user fee. But Ross appealed when the trial court issued an order approving the probation department’s memorandum and directed the department to “[a]ssess fees as indicated.”
The Indiana Court of Appeals vacated the trial court’s order in a Wednesday decision, citing Burnett v. State, 74 N.E.3d 1221 (Ind. Ct. App. 2017) and Coleman v. State, 61 N.E.3d 390 (Ind. Ct. App. 2016) – two cases concerning statutes Ind. Code § 35-38-2-1(e) (2012) and Ind. Code § 35-38-2-1.7(b) (2015).
“It is the trial court, not the probation department, that has the discretion to impose probation fees in a misdemeanor case. Nothing in the record here indicates that it was the trial court that imposed these probation fees; essentially, Ross’ probation fees were imposed by the probation department. At sentencing, the court stated nothing about Ross paying probation fees, and neither the court’s sentencing order nor its probation order imposed any probation fees. As we previously determined in both Burnett and Coleman, a probation order such as Ross’, along with the absence of a clear statement imposing probation fees, shows the trial court’s intent not to impose such fees,” Senior Judge Ezra Friedlander wrote for the appellate court.
Thus, the appellate court concluded it was erroneous for the trial court to accept, post-sentencing, the imposition of the fees based on a probation department memo.
“The proper procedure was for the probation department to petition the trial court pursuant to Section 35-38-2-1.7(b) and show that Ross’ financial situation has changed since the sentencing hearing. Moreover, we note that this practice of probation submitting a memo to the court post-sentencing and without notice to the defendant impedes the interest of criminal defendants in the transparency of judicial proceedings,” the appellate court wrote. “Accordingly, we vacate the fees and remand for further proceedings.”
On remand, the appellate court noted that if any probation fees are imposed upon Ross, the trial court should conduct a hearing at the time the fees are imposed to assess Ross’ ability to pay.
It additionally noted that “because the trial court ordered that Ross could terminate his probation early upon completion of his community service and classes, any probation fees ordered upon remand should reflect this situation and correspond to the probation time Ross actually serves.”
The case is Anthony W. Ross v. State of Indiana, 19A-CR-2966.
Please enable JavaScript to view this content.