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Court erred in setting defender fee, skipping indigency hearing

February 11, 2019

A woman convicted of misdemeanor disorderly conduct after police came on her property and arrested another person was wrongly ordered to pay an inflated public defender fee without the trial court first determining whether she was able to pay.

Indianapolis Metropolitan Police Department officers entered a get-together Teresa L. Holder was hosting in her backyard in August 2017, looking for a man they believed was armed and had committed a felony. Holder, who was surprised and had been drinking, began to yell and was handcuffed without incident, but later began to run toward the man who was being arrested before officers took her to the ground, according to the record.

Holder was charged with Class A misdemeanor resisting law enforcement and Class B misdemeanor disorderly conduct, and she was convicted of the latter offense at a bench trial last March in Marion Superior Court. In addition to a sentence of 180 days suspended to time served, the judge ordered her to pay a series of court costs and fees including $100 in public defender fees.

“Here, the fees imposed do not fall within the parameters of the statute,” Judge Paul Mathias wrote for the panel in Teresa L. Holder v. State of Indiana, 18A-CR-968. He noted Indiana Code § 33-37-2-3(b) requires an indigency hearing, which the trial court never conducted. Additionally, I.C. § 35-33-7-6(c) states that if a person is able to pay a portion of a public defender fee, that fee may be no greater than $50 for a misdemeanor action.

“On remand, we instruct the trial court to conduct a hearing to determine Holder’s ability to pay this $50 fee,” Mathias wrote for the panel. 

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