DARDEN, Judge.
Barry T. Owens appeals from his sentence, following a jury trial, for two counts of Class B felony dealing in cocaine and one count of Class D felony maintaining a common nuisance.
We affirm.
In July of 2008, Owens sold cocaine to a confidential informant who was working
On November 24-25, 2008, Owens was tried to a jury, and was convicted of Counts I, II and IV. On June 24, 2009, the trial court imposed an aggregate sentence of fifteen years, with nine years ordered executed at the Department of Correction, two years executed on electronic monitoring, and four years suspended to probation. He was also ordered to pay $3,988.23 in pauper counsel fees and $164.00 in court costs. In assessing the fees and costs, the trial court did not specify in its sentencing order that Owens could not be imprisoned for nonpayment thereof.
On May 19, 2010, Owens filed a verified petition for permission to file a belated notice of appeal, which was denied. On July 29, 2010, he filed a motion requesting that the trial court reconsider his verified petition for permission to file a belated notice of appeal. The trial court granted Owens' motion and appointed a public defender to represent him on appeal. On August 26, 2010, Owens filed a belated notice of appeal.
Owens argues that the trial court erred in its assessment of fees and costs at his sentencing. ("[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)). Such decisions "are reviewed on appeal only for an abuse of discretion." Leffingwell v. State, 810 N.E.2d 369, 371 (Ind.Ct.App.2004). "An abuse of discretion occurs if the decision is `clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.'" Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.2007), clarified on reh'g, 875 N.E.2d 218 (Ind.2007) (citations omitted).
Owens argues that the trial court erred by failing to specify in its sentencing order, after finding him to be indigent, that he could not be imprisoned for nonpayment of court costs. He asks that we remand to the trial court with instructions to remedy said omission. We disagree.
Indiana Code section 35-37-2-3 provides that "when the court imposes costs, it shall conduct a hearing to determine whether the convicted person is indigent." See Ind.Code § 35-38-1-18 ("whenever the court imposes a fine, it shall conduct a hearing to determine whether the convicted person is indigent").
Before 2002, our Supreme Court applied the general rule "that when fines or costs are imposed upon an indigent, the trial court must expressly state that the defendant shall not be imprisoned for failing to pay the fine." Petty v. State, 532 N.E.2d 610, 612 (Ind.1989), overruled by Whedon v. State, 765 N.E.2d 1276, 1279 (Ind.2002). See Fry v. State, 447 N.E.2d 569 (Ind. 1983), overruled by Whedon v. State, 765 N.E.2d 1276, 1279 (Ind.2002); see also Whitehead v. State, 511 N.E.2d 284 (Ind. 1987) (remanding to the trial court with instructions to insert the indicated language), overruled by Whedon v. State, 765 N.E.2d 1276, 1279 (Ind.2002).
In 2002, the Whedon Court reiterated the general rule; however, it rejected the proposition "declaring that trial courts' sentencing orders must necessarily recite
In light of Whedon, which expressly overrules Fry, Petty, Whitehead and their progeny, Owens cannot prevail on his claim of error. Id. Accordingly, we find that the trial court did not abuse its sentencing discretion by omitting the prohibition against imprisonment for nonpayment of fines or costs from its sentencing order.
Next, Owens argues that the trial court abused its discretion by "fail[ing] to inquire into [his] ability to pay all or even part of the cost of his representation" before ordering him to pay public defender reimbursement fees. Owens' Br. at 5. He also argues that the court erred because its order that he pay $3,988.23 in public defender reimbursement fees far exceeded the prescribed statutory limit for an indigent defendant. Id. This issue is not ripe for appellate review.
Indiana Code section 35-33-7-6 provides, in relevant part, as follows:
I.C. § 35-33-7-6. Indiana Code section 33-37-2-3 provides, in relevant part, as follows:
I.C. § 33-37-2-3 (emphasis added).
In Rich v. State, 890 N.E.2d 44 (Ind.Ct. App.2008), trans. denied, the defendant argued that the trial court had abused its discretion in ordering him, as a condition of probation, to reimburse the Public Defender Fund in the amount of $200.00. In rejecting the defendant's claim, we opined,
Rich, 890 N.E.2d at 48 (emphasis added).
Similarly in Kimbrough, the defendant argued, inter alia, that the trial court's sentencing order was defective because the court had not conducted an indigency hearing regarding the payment of court costs and a $5,000.00 suspended fee. In finding no such abuse of discretion, we cited Whedon for the proposition that "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." Kimbrough, 911 N.E.2d at 639 (citing Whedon, 765 N.E.2d at 1279).
Here, as in Rich and Kimbrough, the matter of Owens' indigency is not yet ripe for appellate review, because he has yet to complete his executed sentence. Thus, at the time of initial sentencing, the trial court was under no obligation to make a determination of Owens' ability to pay. Accordingly, we conclude that the trial court did not abuse its discretion when it failed to hold a hearing to determine Owens' ability to reimburse the Public Defender Fund at the time of his initial sentencing. See Kimbrough, 911 N.E.2d at 638 (no abuse of discretion from trial court's order that defendant reimburse Public Defender Fund or from court's failure to hold hearing to determine defendant's current ability to pay where defendant was not ordered to pay the public fee immediately and had not completed his executed sentence). We find no abuse of discretion.
Affirmed.
NAJAM, J., and BAILEY, J., concur.