CRONE, Judge.
Shaun M. Berry appeals the trial court's imposition of a $100 public defender fee and $364 in court costs following his conviction for class A felony aiding in the manufacture of methamphetamine.
Berry was charged with class A felony aiding in the manufacture of methamphetamine, class B felony possession of methamphetamine, class C felony possession of a controlled substance, and class D felony maintaining a common nuisance. At the initial hearing, the trial court found that Berry was indigent and appointed him a public defender. Berry pled guilty to class A felony aiding in the manufacture of methamphetamine in exchange for the dismissal of the remaining charges. The trial court sentenced him to thirty years, with twenty years suspended. The trial court also imposed a public defender fee of $100, court costs of $364, and restitution in the amount of $10,000. Berry appeals the imposition of the fee and court costs.
"[S]entencing decisions, including decisions to impose restitution, fines, costs, or fees, are generally left to the trial court's discretion." Kimbrough v. State, 911 N.E.2d 621, 636 (Ind.Ct.App.2009). If the fees imposed by the trial court fall within the parameters provided by statute, we will not find an abuse of discretion. Mathis v. State, 776 N.E.2d 1283, 1289 (Ind.Ct.App.2002), trans. denied (2003). "A defendant's indigency does not shield him from all costs or fees related to his conviction." Banks v. State, 847 N.E.2d 1050, 1051 (Ind.Ct.App.2006), trans. denied.
The trial court failed to identify which statute it relied on to impose a public defender fee of $100. The State suggests that the trial court imposed the fee pursuant to Indiana Code Section 35-33-7-6, which provides in relevant part,
(Emphasis added.)
The fact that Berry was found indigent at the initial hearing and the trial court ordered a fee of $100 leads us to agree with the State that the trial court imposed the public defender fee pursuant to Indiana Code Section 35-33-7-6.
Neither Whedon v. State, 765 N.E.2d 1276 (Ind.2002) nor Indiana Code Section 33-37-2-3 supports the position that the issue is not ripe for review. In Whedon, the defendant appealed his sentencing order because it failed to expressly state that he would not be imprisoned for failing to pay the costs imposed. The Whedon court held that the rule prohibiting imprisonment as a sanction for nonpayment of fines applied to the nonpayment of costs as well. 765 N.E.2d at 1279. The Whedon court also held that the defendant's sentencing order was not required to contain an express statement prohibiting imprisonment for nonpayment of costs, thereby overruling its precedents declaring that sentencing orders had to include such a statement. Id. In reaching the latter holding, the Whedon court noted, "a defendant's 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." Id.
That statement was quoted in Rich v. State, 890 N.E.2d 44 (Ind.Ct.App.2008), trans. denied, and Kimbrough, 911 N.E.2d 621. In each case, the court held that the defendant's argument that the trial court had erred in failing to hold an indigency
Rich and Kimbrough mean that if the trial court suspends payment of costs until the executed portion of the sentence has been served, then it must hold an indigency hearing at the time the costs are due. They do not stand for the proposition that a trial court is required to defer assessment of costs until after release from incarceration. We also believe that the dicta in Whedon does not require that all fees, costs, and fines must be assessed after the defendant is released from incarceration.
Indiana Code Section 33-37-2-3, which provides the trial court with great flexibility in imposing costs, reads as follows:
(Emphases added.)
We make four observations regarding Section 33-37-2-3. First, it explicitly requires
Here, we have found that Section 35-33-7-6 is applicable. We do not think that the determination of unripeness in Kimbrough and Rich, which was based on Section 33-37-2-3 can be reasonably extended to Section 35-33-7-6. Section 35-33-7-6 does not require an additional hearing, only a finding of ability to pay. Section 35-33-7-6 permits the trial court to assess the public defender fee at the initial hearing or indeed at any time during the proceedings when the trial court finds a defendant indigent and appoints a public defender. If Kimbrough and Rich required the assessment of all public defender fees and costs to be deferred until all sentences were served, the deprivation of these monies would deleteriously impact the public defender fund.
To reiterate, we conclude that Berry's $100 public defender fee was imposed pursuant to Section 35-33-7-6, which requires a finding of ability to pay. We therefore remand for such a determination.
As to the imposition of court costs, the trial court did not specify the statutory sources upon which it relied to calculate the amount of $364. The trial court likely relied on Indiana Code Section 33-37-4-1, which requires the trial court to impose costs regardless of whether the convicted person is indigent.
The statute then lists nineteen types of fees that must be collected from a defendant if required by Indiana Code Chapter 33-37-5.
Berry acknowledges that because he pled guilty to a felony drug offense, the trial court was required to assess some fees under Indiana Code Section 33-37-4-1.
Reversed and remanded.
NAJAM, J., and ROBB, C.J., concur.
The second statute, Indiana Code Section 33-40-3-6, provides that if "at any stage of a prosecution for a felony or a misdemeanor the court makes a finding of ability to pay the costs of representation," the trial court shall assess against the person reasonable attorney's fees or costs incurred by the county as a result of court appointed legal services. (Emphases added.) Section 33-40-3-6 does not apply to Berry because he was ordered to pay only $100, not the entire costs of his publicly paid representation.
Ind.Code § 33-37-4-1(b).