MEMORANDUM DECISION
[1] Kristen Kirincich appeals the Marion Superior Courts imposition of fees in its sentencing order. Kirincich argues that the court found her indigent, and, therefore, it erred when it ordered her to pay a drug and alcohol fee and a domestic violence fee.
[2] We reverse and remand for proceedings consistent with this opinion.
Facts and Procedural History
[3] Kirincich and Billie Bedgood were romantically involved for several years. On February 12, 2023, when Bedgood returned home from work, he noticed that Kirincich was intoxicated. The couple argued because Kirincich wanted to go to the liquor store and Bedgood refused to take her. During the argument, Kirincich struck Bedgood in the face with a beer bottle.
[4] Bedgood called 9-1-1 and reported the battery to the police. The responding officer observed that Bedgoods nose was red and he had an abrasion under his left eye.
[5] The State charged Kirincich with Class A misdemeanor domestic battery resulting in serious bodily injury. The State also charged Kirincich with Level 5 felony domestic battery because Kirincich had a prior Class A misdemeanor battery conviction for battering Bedgood. Kirincich was arrested and jailed. On March 8, a third party posted the $500 cash bond on her behalf. The bond agreement stated that the payor understood “that if the Defendant complies with all conditions of bond but pleads guilty or is found guilty, then the bond money may be used to pay court-ordered fines, fees & costs under Indiana Code 35-33-8-3.2[.]” Appellants App. p. 47.
[6] The trial court held Kirincichs bench trial on December 13, 2023, and found her guilty as charged. The trial court vacated the misdemeanor battery count due to double jeopardy concerns and only entered judgment of conviction on the Level 5 felony domestic battery charge.
[7] During the sentencing hearing, the trial court imposed a suspended two-year sentence, with credit for time served. The court also found Kirincich “indigent as to fines, fees, and costs” because Kirincich has a medical condition and her income consists solely of disability payments. Tr. pp. 122-23. The court stated it would “put her on minimum probation fees ․” Id. at 123. The court asked Kirincich if she had other assets, and she testified that her only asset was a bank account with a balance of $82. Id. at 124. The court then found her “indigent for purposes of appeal.” Id.
[8] In the courts written sentencing order, the court ordered a substance abuse evaluation and treatment as a condition of probation and imposed a $400 alcohol and drug fee. But the court found Kirincich “indigent to user fees.” Appellants App. p. 16. The court also imposed a $100 adult probation administrative fee and a $50 domestic violence prevention fee. Id. at 17.
Discussion and Decision
[9] Kirincich appeals the trial courts imposition of the alcohol and drug fee and domestic violence prevention fee. She argues that the trial court should not have imposed those fees after the court concluded that she was indigent. The State requests that we remand this case to the trial court for clarification due to the discrepancy between the oral and written sentencing orders.
[10] Indiana Code section 33-37-2-3(a) provides that a trial court “shall conduct a hearing to determine whether the convicted person is indigent” when the court imposes costs.
1
The trial court may order “the costs paid only ‘[i]f the person is not indigent.’ ” Spells v. State, 225 N.E.3d 767, 775 (Ind. 2024) (quoting I.C. § 33-37-2-3(a)). Our supreme court recently explained that:
In 2020, the General Assembly enacted a new statute governing indigency determinations in a criminal case. When making such a determination, a trial court “shall” consider a defendants “assets,” “income,” and “necessary expenses.” Pub. L. No. 140-2020, § 2, 2020 Ind. Acts 1284, 1285 (codified at I.C. § 35-33-7-6.5(a)). The court “may consider” a defendants eligibility for SNAP, TANF, or “another need based public assistance program” as sufficient evidence of indigency. I.C. § 35-33-7-6.5(b). The court may make an “initial indigency determination” pending receipt of evidence. I.C. § 35-33-7-6.5(c). And, lastly, the court may “prorate” fines, fees, and costs to what a defendant “can reasonably afford.” I.C. § 35-33-7-6.5(d). We note that a defendant may be deemed unable to pay one cost, yet able to pay another. See Meeker v. State, 182 Ind. App. 292, 302, 395 N.E.2d 301, 307 n.5 (1979).
Id. at 778. Importantly, the court reiterated that
it is incumbent on trial courts to consider these factors. This means that if the parties fail to provide the information, courts themselves must make inquiries calculated to bring out the necessary evidence. Bell [v. State], 59 N.E.3d [959,] 964 [(Ind. 2016)]. As to the burden of proof, “once a defendant presents or the court elicits from [the] defendant information demonstrating an inability to pay,” then the burden “shifts to the State to rebut the evidence.” Id.
If the trial courts indigency “inquiry is unreasonably superficial, it may be appropriate to vacate and remand for another hearing.” Id. at 799.
[11] Here, Kirincich reported to the probation officer who prepared the presentence investigation report that she receives $659 per month for social security disability and $281 per month in food stamps. Appellants App. p. 106. Kirincich stated she lived with her boyfriend, who was employed, and that her monthly expenses for rent, utilities, and her cellphone totaled $525. Id. Kirincich reported that her checking account balance was $800. Id. During the sentencing hearing, Kirincich stated that her account balance was $82, her only income was her disability income, and she had no other assets. Tr. p. 124.
[12] While this information is pertinent to a determination of Kirincichs ability to pay costs, we conclude that the trial court did not “undertake a sufficient indigency inquiry.” See Spells, 225 N.E.3d at 779. Kirincich told the probation officer that her boyfriend is a truck driver and that he supports her. Appellants App. p. 106. Kirincich reported the monthly expenses in the amount of $525 per month but did not disclose whether she is fully responsible for that amount or whether she splits those expenses with her boyfriend. Aside from reviewing the presentence investigation report, the trial court did not inquire about expenses Kirincich was responsible for on a monthly basis. In addition, Kirincich posted a $500 cash bond, which was paid by a third party.
2
The court did not consider whether Kirincich had agreed to repay the third party for posting her bond. See Spells, 225 N.E.3d at 778-79 (explaining that courts can consider cash bonds when determining a defendants ability to pay costs).
[13] The court found Kirincich “indigent as to fines, fees, and costs” before considering the limited evidence concerning her ability to pay costs. See Tr. pp. 123-24. Yet, in its written sentencing order, the court ordered her to pay $400 in alcohol and drug program fees and a $50 domestic violence prevention fee. Appellants App. p. 17.
[14] The trial courts indigency determination was incomplete, but it also conflicts with the courts written sentencing order imposing costs on Kirincich. For this reason, we vacate the $450 in costs imposed in the written sentencing order and remand this case for an indigency hearing to determine Kirincichs ability to pay. See Spells, 225 N.E.3d at 780.
[15] We reverse and remand for proceedings consistent with this opinion.
FOOTNOTES
1
. “[F]ees prescribed by” Indiana Code section 33-37-4-1 “are costs and may be collected from a defendant against whom a conviction is entered.” Ind. Code § 33-37-2-5. An alcohol and drug services program fee and domestic violence prevention and treatment fee are listed as fees the trial court clerk may collect pursuant to section 33-37-4-1.
2
. If the court determines that the defendant is indigent following an indigency hearing, Indiana Code section 35-33-8-3.2(a) allows the court to retain part or all of a defendants cash bond to pay costs if the defendant is convicted. See Spells, 225 N.E.3d at 773, 780. And the bond agreement made that clear to the payor as well. Appellants App. p. 47.
Mathias, Judge.
Altice, C.J., and Bailey, J., concur.