Felony drug conviction affirmed, but public defender fee reversed

A man’s felony drug convictions were affirmed Thursday, but a trial court’s order requiring him to pay a $250 public defender fee and reimburse a northern Indiana county for his medical expenses were struck down by the Indiana Court of Appeals.

Jimmy Tyree Neal appealed his convictions in Marshall Superior Court of Level 5 felony counts of dealing in or possessing a lookalike substance and dealing in marijuana. He was convicted after he was arrested by Bremen police following a traffic stop in June 2018 during which officers found baggies of marijuana and what turned out to be caffeine pills. Neal told police he had taken ecstasy the day of his arrest, and a police reported indicated officers believed the caffeine pills were that drug.

“In light of the shape, color, size, and overall unit appearance of the pills, and the manner in which they were packaged … we conclude that a reasonable finder of fact could determine that the pills constituted a substance described (as a lookalike) in Ind. Code § 35-48-4-4.5,” Judge Elaine Brown wrote for the panel in Jimmy Tyree Neal v. State of Indiana, 19A-CR-174. “…Further, given the number of pills and their packaging, numerous empty baggies, and scale, the finder of fact could reasonably infer that Neal possessed the substance with intent to distribute.”

The appellate court also dismissed another of Neal’s sufficiency of the evidence arguments, finding his Wisconsin convictions constituted prior convictions for the purpose of enhancing the penalties for drug dealing offenses under I.C. 35-48-4-10(d)(1).

However, the COA found the trial court abused its discretion in ordering Neal to pay a $250 public defender fee and reimburse the county for an unsaid amount for medical expenses rendered after his arrest.

“As to medical expenses, Neal argues the court did not give him notice before imposing the expenses, the court is required to consider an inmate’s ability to pay, he reported no cash or other assets at his initial hearing, and appellate counsel was appointed for him at sentencing,” Brown wrote for the panel. “The record does not indicate a total amount he is required to pay, and Neal states (he) has no idea what expenses are being sought.

“As to public defender fees, he argues the court abused its discretion by imposing a fee without a hearing, that he is indigent, and that the court imposed a $250 fee without indicating the statutory basis for doing so,” Brown continued. “The State concedes that there is uncertainty in the record regarding whether Neal is currently able to pay these fees and requests that this Court remand for further proceedings to determine his present ability to pay.”

The COA did so, reversing the order requiring Neal to pay the public defender fee and whatever medical expenses Marshall County is seeking in the case. That order is remanded for a hearing to determine Neal’s ability to pay. The panel also noted that in addition to an ability to pay determination, I.C. § 11-12-5-7(e) requires that if an inmate is ordered to reimburse the cost of medical care, “the amount of the medical care expenses shall be reduced by the amount of any copayment the inmate was required to make.”

Finally, the panel noted, “the trial court’s order does not state a statutory basis for requiring Neal to pay a public defender fee.”

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