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Mason Meunier-Short pleaded guilty to criminal recklessness while armed with a deadly weapon, a Level 6 felony. The trial court sentenced him to two years in the Department of Correction, with one year suspended to probation. Meunier-Short appeals, arguing (1) the trial court abused its discretion by assessing fines, costs, and [“substance abuse” and “alcohol and drug countermeasures”] fees without first conducting an indigency hearing and by ordering all fines, costs, and fees be paid prior to his earliest possible release date, and (2) the trial court abused its discretion by ordering him to return to school and maintain a “C” average as a condition of his probation.
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Meunier-Short contends a trial court may not impose costs or fines upon an indigent defendant. But we have previously held, “A defendant’s indigency does not shield him from all costs or fees related to his conviction.” [Citation omitted.] An indigency determination merely prevents the defendant from being imprisoned for his inability to pay. …
In addition, the costs and fees mandated by Indiana Code section 33-37-4-1 are imposed by operation of law; the defendant’s ability to pay is not considered. [Citation omitted.] …
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First, we note the trial court lacked the statutory authority to impose the $200.00 substance abuse fee [which I.C. § 33-37-5-9(b) imposes on persons convicted of controlled-substance offenses “under IC 35-48-4,” not offenses against the person] and the $200.00 alcohol and drug countermeasures fee [which I.C. § 33-37-5-10 imposes on persons convicted of OWI offenses “under IC 9-30-5,” but not criminal recklessness.]5 … Accordingly, the trial court was without authority to impose either the substance abuse fee or the alcohol and drug countermeasures fee and erred by doing so.
[Footnote 5:] Although neither party brought this issue to the court’s attention, we cannot ignore a sentence that is improper as a matter of law. See Groves v. State, 823 N.E.2d 1229, 1232 (Ind. Ct. App. 2005) (stating an improper sentence constitutes fundamental error and cannot be ignored on review).
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Second, contrary to Meunier-Short’s assertion, the trial court is not required to defer the assessment of fines, costs, and fees until after a defendant’s release date. [Citation omitted.] Nor is the trial court required to suspend payment of fines, costs, and fees until a defendant completes his sentence. [Citation omitted.] Indiana Code sections 33-37-2-3 and 35-38-1-18 permit, but do not require, the trial court to suspend payment. [Citation omitted.] …
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Finally, we do not agree with the State’s contention that an indigency hearing would have been superfluous in this case. Indiana Code sections 33-37-2-3(a) and 35-38-1-18(a) unequivocally require an indigency hearing, and … there is conflicting information in the record regarding Meunier-Short’s ability to pay. … We therefore remand to the trial court to conduct an indigency hearing prior to the termination of Meunier-Short’s probation, or in the event the State files a petition to revoke his probation, prior to revoking Meunier-Short’s probation for failure to pay fines, costs, and fees. In addition, we vacate the portion of the Supplemental Probation Order imposing a $200.00 substance abuse fee and $200.00 alcohol and drug countermeasures fee. The trial court was without authority to impose either fee and erred by doing so. [Footnote omitted.]
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The trial court also ordered Meunier-Short to return to school and maintain a “C” average as a condition of his probation ….
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… The trial court may, as a condition of probation, require a person to “[w]ork faithfully at suitable employment or faithfully pursue a course of study or career and technical education that will equip the person for suitable employment.” Ind. Code § 35-38-2-2.3(a)(1) (emphasis added). However, the trial court ordered Meunier-Short to “maintain full time employment” in addition to ordering that he “enroll and return to school and maintain C’s or better.” [Record citation omitted.] …
In short, requiring Meunier-Short to return to school and maintain a “C” average while also working full time—without regard to his ability to pay for school or the time needed to maintain satisfactory grades—is not reasonably related to Meunier-Short’s rehabilitation or the public’s safety. We therefore remand to the trial court with instructions to amend the Probation Order by giving Meunier-Short the option to either maintain full time employment or “faithfully pursue” a course of study that will equip him for suitable employment. Ind. Code § 35-38-2-2.3(a)(1).
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Reversed in part and remanded with instructions.
Barnes, J., and Altice J., concur.