MEMORANDUM DECISION
[1] Wilbur Allen Howe, II appeals from the trial courts sentencing order, claiming that the court: (1) abused its discretion by imposing one year of probation as part of his sentence for a Class C misdemeanor conviction; and (2) erred by imposing court costs and fees without hearing evidence to make an indigency determination. Concluding there was no reversible error, we affirm.
Facts and Procedural History
[2] On August 29, 2023, Dearborn County law enforcement officers were attempting to serve arrest warrants when they discovered Howe in possession of a smoking device that he intended to use for smoking marijuana. They arrested him, and the State charged him with one count of Class C misdemeanor possession of paraphernalia. Howe agreed to plead guilty to the charge with sentencing left to the trial courts discretion.
[3] During the hearing, Howe admitted that he regularly smoked marijuana beginning around three to four years prior to the time of this offense. The trial court advised him that the penalties for a Class C misdemeanor included fines capped at $500. Howe testified that he had stable housing and that he had been earning income by working for Instacart and DoorDash such that he was covering his child support and his bills. He further stated that with that employment and the money he has earned, he would be able to become current on his child support obligations as well.
[4] The court accepted Howes plea and sentenced him to a term of sixty days with fifty-six days suspended and credit for four days (total of accrued time and good time credit). The court also placed Howe on probation for one year. The court stated, “Since this is a substance use case, the Court has discretion to go up to one year probation and thats what Im going to do.” Tr. Vol. II, p. 23. Howe was ordered to complete forty hours of community service within ninety days, pay court costs of $389.00, a probation user fee of $50.00, a probation administrative fee of $50.00 per month, probation fees of $20.00 per month, and an alcohol and drug assessment fee of $200.00. The total of these court costs and fees equal $929.00. No fines were ordered.
[5] Howe filed a request for appellate counsel, arguing that “sentencing me to a year probation on top of the 56 days suspended time clearly exceed the Indiana law on punishment.” Appellants App. Vol. II, p. 41. Additionally, he argued that “[t]he $689.00 exceeds the maximum allotted by the statute for this sentence.” Id. The trial court granted Howes request for the appointment of appellate counsel.
Discussion and Decision
[6] Howe appeals, contending that the trial court erred by imposing one year of probation “in excess of the maximum sentence allowed by law” for a Class C misdemeanor conviction, and by imposing costs and fees “in excess of the maximum fine amount allowed by law.” Appellants Br. p. 4. We address each argument in turn.
A. Probationary Term
[7] Howe argues that the trial court was without authority to order him to serve one year on probation in addition to his suspended sentence. He notes that Indiana Code section 35-50-3-4 (1978) provides that a person convicted of a Class C misdemeanor “shall be imprisoned for a fixed term of not more than sixty (60) days.”
[8] Sentencing decisions rest within the discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Smallwood v. State, 773 N.E.2d 259, 263 (Ind. 2002). An abuse of discretion occurs if “the decision is clearly against the logic and effect of the facts and circumstances.” Pierce v. State, 705 N.E.2d 173, 175 (Ind. 1998).
[9] Just as the trial court observed in its order granting Howes request for appointed appellate counsel, Indiana Code section 35-50-3-1(c) (2002) provides that “if the court finds that the use or abuse of alcohol, drugs, or harmful substances is a contributing factor or a material element of the offense, the court may place the person on probation ․ for a fixed period of not more than two (2) years.” Subsection (c) additionally provides that “a court may not place a person on probation for a period of more than twelve (12) months in the absence of a report that substantiates the need for a period of probation that is longer than twelve (12) months for the purpose of completing a course of substance abuse treatment.” Id. Thus, without the report, the trial courts discretion was limited to the imposition of up to one year of probation.
[10] Here, Howe unequivocally admitted that he had been smoking marijuana for “probably about three years, possibly four, whenever CBD became real big in stores is when I started getting it.” Tr. Vol. II, p. 10. And Howe agreed with the States factual basis for the plea that he possessed a smoking device he intended to use for introducing marijuana into his body. The trial courts order granting Howes request for appellate counsel noted Howes admission and cited the very statute, Indiana Code section 35-50-3-1(c), which authorized the imposition of probation if the court finds the abuse of drugs or alcohol is a contributing factor. Appellants App. Vol. II, p. 42.
[11] In Datzek v. State, 838 N.E.2d 1149, 1163 (Ind. Ct. App. 2005), trans. denied, the use of alcohol was a material element of Class A misdemeanor operating a vehicle with a blood alcohol content greater than .08% but less than .15%. Datzeks offense was enhanced to a Class D felony because of his prior offense, but he was sentenced under the alternate misdemeanor sentencing scheme. The sentencing range for a Class A misdemeanor is a fixed term of not more than one year. Ind. Code § 35-50-3-2 (1977). The court sentenced Datzek to a 365-day sentence, with ninety days executed in a community corrections program with the remainder suspended, with one year on probation. We held that under Indiana Code section 35-50-3-1(c) the trial court correctly sentenced Datzek to one year with ninety days executed and one year of probation because the abuse of alcohol was a material element of the offense. 838 N.E.2d at 1163-64.
[12] The same analysis applies to Howes situation. The trial court correctly sentenced him to sixty days with fifty-six days suspended and one year of probation because the abuse of marijuana was a material element of his offense. We find no error here.
B. Costs
[13] Howe correctly observes that Indiana Code section 35-50-3-4 caps the fines which may be imposed for a Class C misdemeanor at $500.00. He argues, nevertheless, that the court erroneously imposed “court costs and fees in excess of the statutory maximum for fines imposed for a C misdemeanor.” Appellants Br. p. 8 (emphasis added). However, no fines, subject to the $500.00 cap, were imposed here.
[14] Consequently, we turn to the costs and fees imposed. Howe acknowledges that claimed errors related to court costs are not sentencing errors. Id. at 10. Indeed, Indiana Code section 33-37-2-2(a) (2007) provides that “[c]osts in a criminal action are not part of the sentence ․” Rather, sentencing decisions to impose restitution, fines, costs, or fees, are generally left to the trial courts discretion. Berry v. State, 950 N.E.2d 798, 799 (Ind. Ct. App. 2011).
[15] Here, the trial courts written order expressly identified how the costs and fees were to be paid and for which services. See Appellants App. Vol. II, pp. 31-34. Furthermore, costs may only be suspended if the person is indigent. Ind. Code § 33-37-2-3 (2019). Howe claims that the court erred because it did not hold a separate indigency hearing.
[16] In this particular factual setting, it is apparent that the singular hearing covered much ground, encompassing the guilty plea, sentencing, and indigency determination at one time. Howe appeared at his hearing represented by private counsel, not a public defender. Prior to the entry of Howes guilty plea, the trial court advised Howe of the potential $500.00 fine which could be imposed as part of his sentence. Howe pleaded guilty, nonetheless. He testified that he had income from working for Instacart and DoorDash, such that he was covering his child support payment and his bills. And he further testified that with his employment and money he has secured he would be able to become current on his child support obligations. Thus, there was ample evidence from which the trial court could conclude that Howe was not indigent.
[17] Nonetheless, our Supreme Court held in Whedon v. State, 765 N.E.2d 1276, 1279 (Ind. 2002) that “a defendants financial resources are more appropriately determined not at the time of initial sentencing but at the conclusion of incarceration, thus allowing consideration of whether the defendant may have accumulated assets through inheritance or otherwise.” Thus, for this additional reason, we find no reversible error.
Conclusion
[18] In light of the foregoing, we affirm the trial courts judgment.
affirmed
Baker, Senior Judge.
Bailey, J., and Weissmann, J., concur.