Opinion
24A-CR-358
08-21-2024
Jace M. Purcell, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Victoria Bailey Casanova Casanova Legal Services, LLC Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Michelle Hawk Kazmierczak Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Knox Circuit Court The Honorable Monica C. Gilmore, Judge Trial Court Cause No. 42C01-1804-F1-2
ATTORNEY FOR APPELLANT
Victoria Bailey Casanova
Casanova Legal Services, LLC
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Michelle Hawk Kazmierczak
Deputy Attorney General
Indianapolis, Indiana
Judges Bradford and Tavitas concur.
MEMORANDUM DECISION
Crone, Judge.
[¶1] In April 2018, Purcell was charged with level 1 felony child molesting. The trial court set Purcell's bond at $75,000, and he paid a ten-percent cash bond of $7,500 to the county clerk. Purcell's bail bond agreement provided that "if a judgment for fines, costs, fees or restitution is entered by the Court[,] . . . the cost for these may, upon order of the Court, be applied [from] the remainder of the bond deposit." Appellant's App. Vol. 2 at 34. Purcell was released from jail.
[¶2] In November 2023, Purcell pled guilty to level 4 felony child molesting. The plea agreement provided in relevant part:
2. The Court shall be free to impose any sentence authorized by law except that the initial executed portion of the sentence may not exceed eight years.
3. Fines, fees, and costs shall be left to the discretion of the Court.Id. at 89. The trial court accepted the agreement and entered judgment of conviction for level 4 felony child molesting.
[¶3] The court sentenced Purcell to twelve years in the Indiana Department of Correction, with eight years executed and four years suspended to probation. The court imposed a fine of $7,267 plus $183 in court costs and a $50 bond fee and ordered the amounts "deducted" from his cash bail. Tr. Vol. 2 at 70. The court did not hold an indigency hearing before imposing the fine, court costs, and fee. The clerk applied Purcell's $7,500 cash bail toward his fine, costs, and fee.
[¶4] Purcell contends, and the State concedes, that the trial court abused its discretion by failing to hold an indigency hearing before imposing the $7,267 fine. We review a trial court's assessment of costs and fees for an abuse of discretion. Spells v. State, 225 N.E.3d 767, 771 (Ind. 2024). "This standard allows reversal only when a decision is clearly against the logic and effect of the facts and circumstances before the court or if the court has misinterpreted the law." Id. (quotation marks and citation omitted).
[¶5] "'[W]henever the [trial] court imposes a fine, it shall conduct a hearing to determine whether the convicted person is indigent' and it may order the payment of a fine only '[i]f the person is not indigent.'" Id. at 775 (quoting Ind. Code § 35-38-1-18(a)). In determining whether a person is indigent, the court "shall" consider a defendant's assets, income, and necessary expenses. Ind. Code § 35-33-7-6.5(a) (2020).
[¶6] Here, the trial court did not hold a hearing to determine whether Purcell was indigent before imposing the fine. And the bail bond agreement that he signed did not supplant the requirement for the indigency hearing. See Spells, 225 N.E.3d at 777 (concluding that the "required procedure is for a trial court first to hold an indigency hearing and only then, under the terms of any applicable agreement, to retain from cash bail any fine, costs, or fees that the defendant is able to pay"). Thus, the trial court abused its discretion by imposing the fine. Therefore, we remand the case to the trial court for an indigency hearing.
Purcell challenges only the trial court's imposition of the fine. However, applying our supreme court's reasoning in Spells, we conclude that the court also abused its discretion by imposing the $183 in court costs without first holding an indigency hearing. See Spells, 225 N.E.3d at 780 ("Cash bail may not ... be retained to pay fines or most fees and costs unless an indigency determination is made following a hearing.") (emphasis added). "When costs are imposed, ... the court 'shall conduct a hearing' into the person's indigency and order the costs paid only '[i]f the person is not indigent.'" Id. at 775 (quoting Ind. Code § 33-37-2-3(a)). Regarding the trial court's imposition of a bond fee, our supreme court in Spells noted that under Indiana Code Section 33-37-2-5, "costs" include the fees prescribed by Indiana Code Section 33-37-4-1, "making them 'costs' and thus subject to an indigency hearing." 225 N.E.3d at 775. Indiana Code Section 35-33-8-3.2(a)(2) provides that a portion of a defendant's cash bail, not to exceed $50, "may be retained as an administrative fee." However, because the $50 fee that is authorized by Indiana Code Section 35-33-8-3.2(a)(2) is not prescribed by Indiana Code Section 33-37-4-1, it does not appear that an indigency hearing is necessary before imposing a bond fee. See, e.g., Spells, 225 N.E.3d at 776 (noting that "the $2 jury fee [imposed by the trial court and] authorized by [statute] is not part of the 'costs' for which a convicted defendant is liable[] because it is not prescribed by code section 33-37-4-1").
[¶7] Remanded.
Bradford, J., and Tavitas, J., concur.