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State statute authorizes trial courts to retain cash bail for the payment of public defender fees, but an indigency hearing is required before the cash can be retained for most other fines, fees and costs.
That ruling came in a partial remand from the Indiana Supreme Court in Tailar L. Spells v. State of Indiana, 23S-CR-232.
The case began in November 2021, when Tailar Spells spit on a police officer who was trying to break up a fight outside an Indianapolis bar. Spells was arrested and charged with Level 6 felony battery by bodily waste and Class A misdemeanor resisting law enforcement.
A woman named Diane Rolle paid Spells’ $250 cash bond. Rolle and Spells also signed an agreement, pursuant to Indiana Code § 35-33-8-3.2, permitting the Marion Superior Court to retain the cash to pay the costs of representation and fines, costs, fees and restitution.
A public defender was appointed for Spells, which came with a $100 supplemental fee.
Spells was convicted at a bench trial on the battery charge and was sentenced to 365 days, with 363 days suspended and 40 hours of community service. She was also ordered to pay a $20 fine and $185 in fees and costs, although she was found indigent as to probation fees.
Later, the trial court granted the probation department’s request to apply $245 from Spells’ cash bond to her fine, costs and fees, leaving $60 still owed. That amount has since been paid, according to the chronological case summary.
Spells completed her community service, and her conviction was reduced to a misdemeanor.
She then appealed, arguing the trial court had not adequately inquired into her ability to pay the fines, costs and fees.
But the Court of Appeals of Indiana affirmed, relying on Wright v. State, 949 N.E.2d 411 (Ind. Ct. App. 2011). It also found that Spells’ payment of the outstanding $60 balance mooted her appeal as to that money.
The Indiana Supreme Court granted transfer to Spells’ case, which the justices partially remanded in their Tuesday opinion.
Justice Christopher Goff began with the agreement Spells made under I.C. 35-33-8-3.2(a), which the justices found “permits the retention of public-defender costs — but not most other fines, costs, or fees — without an indigency determination.”
Specifically, the statute provides that a trial court can require a defendant and the person depositing bail to sign an agreement authorizing the court to retain the deposit “to pay publicly paid costs of representation and fines, costs, fees, and restitution that the court may order the defendant to pay if the defendant is convicted.”
Spells argued that the phrase “publicly paid costs of representation” did not include her $100 supplemental public-defender fee. She also said the statute only allows retention of costs that the trial court may order after an indigency determination.
The justices disagreed with both of those arguments, holding instead that the court here had the authority to retain the $100 fee from Spells’ cash bail. They pointed to I.C. 35-33-7-6(c), which holds that if the court finds a defendant “is able to pay part of the costs of representation,” the court “shall order” a $100 supplemental fee.
In a footnote, the justices added that “the supplemental public-defender fee need not be assessed at the initial hearing, but can be left for the sentencing hearing.”
Further, “(R)epresentation costs are not, in most cases, costs ‘that the court may order the defendant to pay if the defendant is convicted,’” Goff wrote. “Rather, they may be imposed under two code provisions whether the defendant is convicted or not.
“… From this textual and structural analysis, we hold that a trial court may retain the whole of a defendant’s incremental representation costs without making the indigency determination that is otherwise required for assessment of a supplemental public-defender fee,” the court held, following Wright and Obregon v. State, 703 N.E.2d 695.
But the justices emphasized the permissive language of the statute, which “allows” the court to retain cash for representation costs. Also, in a footnote, they differentiated I.C. 35-33-8-3.2(a)(2) regarding 10% cash bail agreements.
“Here, the trial court was required to make an indigency determination under Indiana Code section 35-33-7-6.5 before imposing Spells’s supplemental public-defender fee. However, the trial court was also authorized by the cash-bail agreement to apply $100 from Spells’s cash bail to the cost of her defense without inquiring into her ability to pay,” Goff wrote. “It is, therefore, a moot question in this case whether the trial court made an adequate indigency determination respecting the supplemental fee.”
But regarding most other costs, fines and fees, the high court found that an indigency hearing is required before retaining cash bail, pointing to I.C. 35-38-1-18(a), 33-37-2-3(a) and 33-37-4-1.
“However,” Goff added, “the $2 jury fee authorized by code section 33-37-5-19 is not part of the ‘costs’ for which a defendant is liable, because it is not prescribed by code section 33-37-4-1. No indigency hearing appears, therefore, to be necessary for the jury fee.”
The question then became whether Spells’ cash bail agreement supplanted the indigency hearing requirement — a question the justices answered with a no.
“The key phrase in the cash-bail statute refers to the expenses ‘that the court may order the defendant to pay if convicted,’” Goff wrote. “‘May’ could refer here to what the court is permitted or authorized to do, or to what it might possibly do.
“… We find the latter reading the more natural of the two: the defendant agrees to retention of whatever fines, costs, and fees the trial court might possibly order — under its authority granted elsewhere,” Goff continued. “In short, this is a statute dealing with the disposition of cash-bail, not one authorizing the imposition of fines, costs, and fees without hearings.
“… The cash-bail statute does not, therefore, provide trial courts as much authority to retain money for fines, costs, or fees as it does for publicly paid costs of representation.”
Finally, the justices examined whether the trial court made an adequate indigency determination on the retention of $143 in fines, fees and costs in Spells’ case. The court reached that amount by considering the $245 deducted from Spells’ cash bail, minus $100 in representation costs and the $2 jury fee.
First, the justices disagreed with the Court of Appeals that Spells’ appeal of the $60 she paid is moot.
“Here, reimbursement of Spells’s $60 would be effective relief, so her appeal remains justiciable as to the $60 balance payment,” Goff wrote.
The court then pointed to I.C. 35-33-7-6.5(a), which requires courts to consider assets, income and necessary expenses in making an indigency determination.
“We reiterate that it is incumbent on trial courts to consider these factors,” Goff wrote. “This means that if the parties fail to provide the information, courts themselves must make inquiries calculated to bring out the necessary evidence.”
As for appellate review, “If one of the mandatory factors, especially either the defendant’s income or necessary expenses, is passed over, or if the inquiry is unreasonably superficial, it may be appropriate to vacate and remand for another hearing.”
In Spells’ case, the justices determined remand is necessary.
“We find it a close question whether the trial court’s inquiries were adequate under the standard we set out today,” Goff wrote, noting that “the court entered its order without knowing for sure the amount of Spells’s income or any necessary expenses like rent or prenatal healthcare.”
“… We think that the trial court, having found Spells indigent as to representation and probation fees, should have investigated more deeply just what Spells could afford to pay in fines, costs, and other fees,” the high court concluded. “On these facts and under the standard announced in this opinion, we conclude that the trial court did not undertake a sufficient indigency inquiry.”
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