Najam, J.
Jose Arcia De La Cruz appeals the imposition of probation fees after his conviction, following a bench trial, for operating a vehicle while intoxicated, as a Class C misdemeanor. He raises one issue on appeal, namely, whether the trial court abused its discretion when it allowed the probation department to assess probation fees against him. In response, the State contends that De La Cruz’ appeal is moot.
We disagree that this appeal is moot. …
On December 23, 2015, the State charged De La Cruz with operating a vehicle while intoxicated endangering a person, … and operating a vehicle with an ACE of .15 or more. … On September 29, 2016, the trial court conducted a bench trial and found De La Cruz guilty of only the lesser-included offense of operating a vehicle while intoxicated, as a Class C misdemeanor. The trial court then sentenced De La Cruz to sixty days in jail, with fifty-six days suspended, and to an additional 180 days of “non-reporting” probation.
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In the sentencing conditions section of the sentencing order, the probation “amount/comment” subsection states in relevant part: “180 DAYS PROBATION. AET AND AAID IS COMPLETED. ADS AND CMF IS NOT ORDERED. SLIDING SCALE FOR PROBATION FEES. NONREPORTING PROBATION AFTER INITIAL SIGN UP.”
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The “Monetary Conditions” section of the probation order includes a 4-column chart. … The “Administrative Fee” and “Probation User Fee” rows are two of the rows that are blacked out. The rows that are not blacked out are left blank.
De La Cruz challenges the imposition of probation fees. Specifically, he contends that the trial court abused its discretion when it allowed the probation department, rather than the court, to assess those fees. … Coleman v. State, 61 N.E.3d 390, 392 (Ind. Ct. App. 2016). …
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Here, the State contends that De La Cruz’ appeal is moot because he has already paid all of the probation fees and completed probation. We disagree. De La Cruz timely appealed the trial court’s order that the probation department assess probation fees. …
… De La Cruz contends that the trial court erred when it did not order probation fees and instead allowed the probation department to impose such fees on its own. We agree. Indiana Code Section 35-38-2-1(b) provides that, if a person is convicted of a misdemeanor,
“the court may order the person to pay the user’s fee prescribed under subsection (e)” following an indigency hearing. Coleman, 61 N.E.3d at 393 (emphasis added). … And Indiana Code Section 35-38-2-1.7(b) states that “[a] probation department may petition a court” to “impose” or “increase” a person’s probation fees.
We recently held that those statutes give “the trial court, not the probation department, . . . the discretion to impose probation fees.” Burnett v. State, No. 49A02-1610-CR-2402, — N.E.3d –, 2017 WL 1399845, at *4 (Ind. Ct. App. April 19, 2017) (emphasis added). …
De La Cruz’ situation is similar to that of the defendants in Burnett and Coleman. Although De La Cruz’ sentencing and probation orders referred to a “sliding scale for probation fees” and the trial court “order[ed] probation[,] if there are any fees associated with non-reporting[,] to assess [De La Cruz’] ability to pay,” the trial court did not impose probation fees. …
… the State maintains that Marion County courts presumptively impose probation fees pursuant to a local rule. Marion County LR49-CR00-1154 provides that “whenever an individual is placed on probation,” certain listed probation fees and costs, including administrative and user fees, “shall be imposed under the Probation Court or Probation Order unless the sentencing Judge specifically modifies the Order.” The local rule does not provide what amounts should be imposed for each specified fee. …
De La Cruz contends that LR49-CR00-115 is invalid because it conflicts with Indiana Code Section 35-38-2-1(b). Specifically, he maintains that, while the statute makes the imposition of probation fees discretionary for misdemeanors, the local rule makes such fees mandatory. We disagree. Although LR49-CR00-115 creates a presumption that probation fees are ordered, by its plain language it allows a trial court discretion to modify an order regarding probation fees in any manner it sees fit. Thus, under both the local rule and state statute, the trial court has discretion to order probation fees or not.
However, the local rule did not operate as an order for probation fees in this case because the trial court did “specifically modify” the presumption of probation fees when it blacked out or left blank every row for specific fees in the “amount ordered” column of the “monetary obligations” section of the probation order. The trial court did not order probation fees, and it abused its discretion when it authorized the probation department to do so. Accordingly, we reverse the order that the probation department assess probation fees, and we remand with instructions to vacate the probation fees and order reimbursement of those fees from the probation department.
Riley, J., and Bradford, J., concur.