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COA: Trial court must impose probation fees for felonies

November 30, 2017

The Marion Superior Court must hold an indigency hearing and correct its failure to impose probation fees on a man convicted of a felony after the Indiana Court of Appeals determined Thursday that state statute requires the imposition of probation fees for felony convictions.

In Kristofer Polk v. State of Indiana, 49A02-1703-CR-622, Kristofer Polk was convicted of Level 4 felony unlawful possession of a firearm by a serious violent felon, Level 5 felony possession of cocaine and Level 6 felony resisting law enforcement. The Marion Superior Court imposed an aggregate sentence of nine years, a portion of which was suspended to probation, found Polk to be indigent and ordered the probation department to conduct a financial assessment.

Then in its written sentencing order, the trial court said it was assessing $0 in court costs against Polk, but was silent on the amount of probation fees. However, Polk’s probation order contained a “standard condition” requiring him to pay all fines, costs, fees and restitution as directed.

Probation fees were never imposed, so Polk appealed, arguing the trial court’s order for the probation department to conduct a financial assessment was an improper delegation of its authority. While the Indiana Court of Appeals agreed the trial court erred, Judge Rudolph Pyle wrote Thursday the appellate court’s logic was different than Polk’s.

Under Indiana Code section 35-38-2-1(b), the trial court “shall” impose probation fees if a person is convicted of a felony, as Polk was here. Thus, because the trial court did not follow its statutory requirement to impose probation fees on Polk, it abused its discretion, Pyle said.

The appellate court remanded Polk’s case to the trial court to impose probation fees and to hold an indigency hearing. Pyle pointed to Johnson v. State, 27 N.E.3d 793, 795 (Ind. Ct. App. 2015), which held that trial courts must hold indigency hearings for probation fees.

Johnson also held that, “(a)t the latest, an indigency hearing for probation fees should be held at the time a defendant completes his sentence,” Pyle said. Thus, the appellate court ordered the trial court on remand to hold Polk’s indigency hearing when he has completed the executed portion of his sentence. Additionally, Pyle wrote in a footnote that the indigency hearing would have to be held before the trial court could revoke probation on the basis of a failure to pay fees.

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