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Polk v. State

Court of Appeals of Indiana

November 30, 2017

Kristofer Polk, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the Marion Superior Court The Honorable Alicia Gooden, Judge Trial Court Cause No. 49G21-1610-F4-41626

          ATTORNEY FOR APPELLANT Matthew D. Anglemeyer Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana

          PYLE, JUDGE.

         Statement of the Case

         [¶1] Kristofer Polk ("Polk") was convicted of three felonies. For one of those felonies, the trial court imposed an eight-year sentence, with six years executed and two years suspended, and ordered that he serve one year on probation. The trial court found Polk indigent as to fines and costs, did not impose probation fees, and ordered the probation department to conduct a financial assessment. Polk contends that the trial court's directive to the probation department to conduct a financial assessment was an improper delegation of the trial court's authority to impose probation fees. Based on the alleged improper delegation of authority, he requests that we remand his case to the trial court to determine the amount of probation fees and to conduct an indigency hearing regarding his ability to pay.

         [¶2] We agree that remand to the trial court is necessary but not for the reason suggested by Polk. Because the trial court placed Polk on probation for a felony conviction, the trial court was statutorily required to impose probation fees. Here, however, the trial court did not impose probation fees. We also agree that the trial court will be required to hold an indigency hearing. Accordingly, we remand with instructions for the trial court to impose the statutorily-mandated probation fees for Polk's felony conviction and to hold an indigency hearing, at the latest, upon the completion of Polk's sentence.

         [¶3] We remand.

         Issue

         Whether the trial court abused its discretion when it did not impose probation fees and ordered the probation department to conduct a financial assessment.

         Facts

         [¶4] In January 2017, following a jury trial, Polk was found guilty 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.[1]Thereafter, the trial court imposed an eight (8) year sentence for Polk's Level 4 felony conviction, with four (4) years executed in the Indiana Department of Correction, two (2) years executed on Community Corrections, two (2) years suspended, and one (1) year of probation; a three (3) year sentence for his Level 5 felony conviction to be served concurrently to the eight-year sentence; and a one (1) year sentence for his Level 6 felony conviction to be served consecutively to his eight-year sentence. Thus, the trial court imposed an aggregate nine-year sentence. When imposing this sentence, the trial court found Polk to be "indigent as to fines and costs[, ] . . . ordered a sliding scale for Community Corrections[, ] and order[ed] Probation to do a financial assessment." (Tr. Vol. 3 at 104).[2]

         [¶5] During the sentencing hearing, the trial court made no comment about the amount of probation fees that it was going to impose. Additionally, in its written sentencing order, the trial court did not impose probation fees. Instead, the sentencing order, under the "Amount/Comment" section of "Part IV Sentencing Conditions[, ]" provided, in relevant part, that: Polk would be subject to the "standard terms and conditions]" of probation; "Probation shall conduct financial assessment[;]" and the trial court was "assessing Court Costs and Fees in the amount of $0.00[.]" (App. Vol. 2 at 7). The trial court's probation order was also silent on the specific amount of probation fees to be imposed. The probation order contained a "Standard Condition" that Polk would be required to "pay all Court-ordered fines, costs, fees and restitution as directed." (App. ...


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