Baker, J.
Wendy Burnett appeals her conviction of Operating a Vehicle While Intoxicated Endangering a Person, a Class A Misdemeanor. She argues that there was insufficient evidence to support her conviction for operating a vehicle while intoxicated endangering a person, that the trial court erred when it did not conduct an indigency hearing before imposing probation fees, and that her probation fees were improperly imposed by the probation department. …
… the trial court sentenced Burnett to 365 days, with five days executed and the remainder suspended to probation. … The trial court ordered Burnett to pay a $200 countermeasure fee, a $250 alcohol drug services fee, $183.50 in court costs, and a $16.50 fine. The trial court stated that the court costs and fine “are in addition to your various probation fees that are required.” …
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The sentencing order for Burnett includes a section on the conditions of her probation, which includes the comment “all standard conditions and fees of probation.” The order’s monetary obligations section states that Burnett owes $649.50 in court costs and fees. This section does not include any probation fees. … Subsequently, the probation department charged Burnett an adult probation administrative fee of $50, an adult probation monthly and initial user fee of $281.30, a probation user fee of $8.70, and a highway work zone fee of $.50, for a total of $340.50.
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When a defendant is convicted of a misdemeanor, the trial court has discretion to impose certain probation fees. Ind. Code § 35-38-2-1(e). If the probation department later wants to alter the fees imposed by the trial court, it must petition the trial court to increase the probation fees. To be entitled to an increase in fees, the probation department must demonstrate that there was a change in the financial ability of the probationer while on probation.
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The State contends that “[t]here is no reason whatsoever to believe that probation would arrive at a non-statutory scheme for fees in contrast with the trial court’s determination.” This argument misses the essence of our state’s statute—it is the trial court, not the probation department, that has the discretion to impose probation fees. That the amount of the probation fees imposed on Burnett falls within the statutory scheme does not mean that the fees were imposed according to statute. Here, the trial court stated that Burnett had “various probation fees that are required.” … Because the trial court did not impose any probation fees or costs on Burnett, it was erroneous to accept the imposition of these fees without a petition from the probation department and a showing that Burnett’s financial situation has changed since the sentencing hearing. Accordingly, we vacate the fees and remand for further proceedings.
Lastly, Burnett argues that the trial court erred by failing to conduct an indigency hearing before imposing fees. …
The trial court asked one question to determine Burnett’s financial situation. After her counsel stated that she makes less than $20,000, the trial court stated that defense counsel “summarized your financial situation. Is that correct? Is that your income?” … In this case, a sufficient indigency hearing would consist of the trial court asking Burnett questions in order to assess her actual ability to pay. Such questions might include asking about her exact yearly income, her assets or debts, or any financial expenses that could have an impact on her ability to pay fees, such as the cost of her rent, utilities, or transportation to and from work, medical expenses, or any dependents.
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The judgment of the trial court is reversed with respect to Burnett’s conviction and remanded with instructions to vacate her conviction of Class A misdemeanor, to enter judgment for Class C misdemeanor operating a vehicle while intoxicated, and to resentence Burnett accordingly. The judgment of the trial court regarding the fees owed by Burnett is vacated and remanded for further proceedings consistent with this opinion.
Barnes, J., and Crone, J., concur.