Goff, J.
Indiana’s criminal code authorizes trial courts to impose a multitude of fines, court costs, and fees on defendants. By statute, a trial court may order payment of nearly all these expenses only after considering the defendant’s ability to pay. Conversely, our criminal code also authorizes trial courts, with a defendant’s consent, to retain cash bail to pay fines, costs, fees, and public-defender expenses. Today, we explore whether trial courts must consider a defendant’s ability to pay before retaining cash bail under such an agreement. Ultimately, we reach three principal conclusions: the statutory agreement permits application of cash bail to the whole of a defendant’s public-defender costs; a court may retain cash bail to pay most other fines, costs, and fees only after considering the defendant’s ability to pay; and, applying a recently enacted statute, the indigency determination in this case was incomplete, thus warranting partial remand to the trial court.
…
Our analysis commences with the agreement Spells made under Indiana Code section 35-33-8-3.2(a) (the cash-bail statute), which we hold permits the retention of public-defender costs—but not most other fines, costs, or fees—without an indigency determination. We then proceed to interpret the requirements of the recently enacted indigency statute and review whether the trial court complied with those requirements when ordering Spells to pay a fine, costs, and fees. We conclude that a partial remand is necessary for the trial court to inquire more thoroughly into Spells’s ability to pay these expenses.
…
We first address the statute’s treatment of “publicly paid costs of representation.” Spells argues that this term does not include her $100 supplemental public-defender fee because that fee is a “flat fee” unreflective of actual costs. Oral Argument at 06:22–06:55. And she reads the statute as permitting retention only of representation costs that the trial court may order after an indigency determination. We disagree on both counts and hold that the court had authority to retain the $100 fee from Spells’s cash bail.
The term “publicly paid costs of representation” refers to “the portion of all attorney’s fees, expenses, or wages incurred by the county” that are “directly attributable to the defendant’s defense.” I.C. § 35-33-8-1.5(1) (1987). The phrase “all attorney’s fees, expenses, or wages” is an expansive one, indicating the entire incremental cost of the defendant’s own defense and excluding only “overhead expenditures made in connection with the maintenance or operation of a governmental agency.” I.C. § 35-33-8-1.5(2). We must ask, therefore, whether Spells’s supplemental public-defender fee represents part of this incremental cost and, thus, whether it falls within the “publicly paid costs of representation.”
Our reading of the public-defender statutes informs us that the supplemental public-defender fee is indeed intended to defray part of the costs “directly attributable to the defendant’s defense.” A criminal defendant who “requests assigned counsel” is entitled to a determination of indigency under Indiana Code section 35-33-7-6.5. I.C. § 35-33-7-6(a) (2020). The court must consider the defendant’s “assets,” “income,” and “necessary expenses” in determining their ability to pay for representation. I.C. § 35-33-7-6.5(a) (2020). If the defendant is “found to be indigent,” counsel must be assigned. I.C. § 35-33-7-6(a). If, however, the court finds that the defendant “is able to pay part of the cost of representation by the assigned counsel,” the court “shall order” a supplemental public-defender fee of $100 in a felony case and $50 in a misdemeanor case. I.C. § 35-33-7-6(c) (emphasis added). 7 This language tells us that the supplemental fee is intended as a contribution toward the actual cost of representing the defendant, leading us to conclude that the “publicly paid costs of representation” include the supplemental public defender fee.
…
…in the adjacent code section 35-33-8-3.2(a)(2), governing the retention of ten-percent cash bail, the phrase “publicly paid costs of representation” is found in a paragraph separate from the “fines, costs, fees, and restitution that the court may order the defendant to pay if the defendant is convicted.” This indicates two distinct concepts.
Second, a useful rule of thumb is that “a limiting clause or phrase” is ordinarily “read as modifying only the noun or phrase that it immediately follows.” Barnhart v. Thomas, 540 U.S. 20, 26 (2003) (citing 2A N. Singer, Sutherland on Statutory Construction § 47.33, p. 369 (6th rev. ed. 2000)). This “rule of the last antecedent” suggests that only the phrase “fines, costs, fees, and restitution” is modified by the relative clause “that the court may order.” See id.
Lastly, representation costs are not, in most cases, costs “that the court may order the defendant to pay if the defendant is convicted.” Rather, they may be imposed under two code provisions whether the defendant is convicted or not. See I.C. § 35-33-7-6(c) (the supplemental public-defender fee); I.C. § 33-40-3-6(a) (2023) (requiring reasonable attorney’s fees to be imposed on a defendant found able to pay “at any stage of a prosecution”); but see I.C. § 33-37-2-3(e) (2019) (requiring “part of the costs of representation” to be imposed on a “convicted person” who is able to pay them). The “publicly paid costs of representation” referred to in Spells’s cash-bail agreement are not, therefore, likely to be only those the trial court could impose after her conviction.
From this textual and structural analysis, we hold that a trial court may retain the whole of a defendant’s incremental representation costs without making the indigency determination that is otherwise required for assessment of a supplemental public-defender fee. In this respect, we follow the results reached in Wright v. State, 949 N.E.2d 411 (Ind. Ct. App. 2011), and Obregon v. State, 703 N.E.2d 695 (Ind. Ct. App. 1998), each of which concerned cash-bail language similar to that involved here.
…
There will, of course, be cases involving genuine hardship on defendants and worthy potential uses for bail money other than paying public defenders. We therefore emphasize that the language of code section 35-33-8-3.2(a)(1) is permissive. The statutory agreement “allows” the court to retain cash for representation costs, and the defendant and depositor are notified that the court “may” do so. In view of alternative uses for a defendant’s cash bail, such as restitution to victims or paying for the needs of defendants and their dependents, it may not always be desirable to retain the entire allowable representation costs.
Here, the trial court was required to make an indigency determination under Indiana Code section 35-33-7-6.5 before imposing Spells’s supplemental public-defender fee. However, the trial court was also authorized by the cash-bail agreement to apply $100 from Spells’s cash bail to the cost of her defense without inquiring into her ability to pay. It is, therefore, a moot question in this case whether the trial court made an adequate indigency determination respecting the supplemental fee.
We turn next to the fines, costs, and fees “that the court may order the defendant to pay if the defendant is convicted.” See I.C. § 35-33-8-3.2(a)(1). The issue is whether the trial court could retain Spells’s cash bail to pay her fine, costs, and fees (other than her representation costs) without inquiring into her ability to pay. We first examine whether the fine, costs, and fees imposed on Spells would require an indigency hearing absent a cash-bail agreement, concluding that they virtually all would. We then consider whether Spells’s cash-bail agreement supplanted the hearing requirement and hold that it did not.
To start with, we observe that the imposition of a fine usually requires an indigency hearing. By statute, “whenever the court imposes a fine, it shall conduct a hearing to determine whether the convicted person is indigent” and it may order the payment of a fine only “[i]f the person is not indigent.” I.C. § 35-38-1-18(a) (2007). When costs are imposed, too, the court “shall conduct a hearing” into the person’s indigency and order the costs paid only “[i]f the person is not indigent.” I.C. § 33-37-2-3(a). Spells’s fine and costs would, therefore, usually be subject to a requirement for an indigency hearing.
…
To sum up, imposition of Spells’s fine, costs, and every fee except her jury fee would usually necessitate an indigency hearing. We must consider, then, whether her cash-bail agreement supplanted that requirement.
Code section 35-33-8-3.2(a)(1) allows the court, by agreement, to retain cash bail to pay “fines, costs, fees, and restitution that the court may order the defendant to pay if the defendant is convicted.” The parties dispute whether this language anticipates the trial court holding the usual indigency hearing or whether it dispenses with it.
In Wright, the Court of Appeals concluded that “the absence of language requiring an indigency hearing” in the cash-bail statute meant that no such hearings were required when cash bail was retained to pay fines, costs, and fees. 949 N.E.2d at 416 (citing parallel language in code section 35-33-8-3.2(a)(2)). To impose such a hearing, the Wright panel reasoned, “would render the bail bond agreement meaningless.” Id. We disagree. The cash-bail statute can be read in harmony with the fines, costs, and fees statutes in a way that gives effect to them all.
The key phrase in the cash-bail statute refers to the expenses “that the court may order the defendant to pay” if convicted. See I.C. 35-33-8- 3.2(a)(1) (emphasis added). “May” could refer here to what the court is permitted or authorized to do, or to what it might possibly do. If “may” is intended in its permissive sense here, it arguably provides the trial court an independent source of authority to order payment of fines, costs, and fees without an indigency hearing. Equally, though, “may” could simply refer to the possibility of the court ordering payments in the usual course after indigency hearings. We find the latter reading the more natural of the two: the defendant agrees to retention of whatever fines, costs, and fees the trial court might possibly order—under its authority granted elsewhere. In short, this is a statute dealing with the disposition of cash bail, not one authorizing the imposition of fines, costs, and fees without hearings.
…
We conclude that the required procedure is for a trial court first to hold an indigency hearing and only then, under the terms of any applicable agreement, to retain from cash bail any fine, costs, or fees that the defendant is able to pay. Just as an indigent defendant may not be ordered to pay unaffordable fines, costs, or fees, neither may a court order their cash bail to be applied as a form of payment.
The cash-bail statute does not, therefore, provide trial courts as much authority to retain money for fines, costs, or fees as it does for publicly paid costs of representation. Still, we think the statute helps meet the need to “facilitate meaningful imposition of fines, costs and restitution.”
Anticipating that an indigency hearing might indeed have been required, the State argues that the trial court could have held one at any time before Spells completed her sentence. Had the trial court suspended Spells’s fine and costs, this would be correct. See I.C. § 35-38-1-18(b), I.C. § 33-37-2-3(b). Indeed, this Court has recommended such a procedure.
…
We hold that the retention from Spells’s cash bail of $143 in fine, fees, and costs could not properly be ordered until an adequate indigency hearing and determination took place as to these items. 11 In Part II, we turn to the question of whether an adequate indigency determination was in fact made.
…
In 2020, the General Assembly enacted a new statute governing indigency determinations in a criminal case. When making such a determination, a trial court “shall” consider a defendant’s “assets,” “income,” and “necessary expenses.” Pub. L. No. 140-2020, § 2, 2020 Ind. Acts 1284, 1285 (codified at I.C. § 35-33-7-6.5(a)). The court “may consider” a defendant’s eligibility for SNAP, TANF, or “another need based public assistance program” as sufficient evidence of indigency. I.C. § 35-33-7- 6.5(b). The court may make an “initial indigency determination” pending receipt of evidence. I.C. § 35-33-7-6.5(c). And, lastly, the court may “prorate” fines, fees, and costs to what a defendant “can reasonably afford.” I.C. § 35-33-7-6.5(d). We note that a defendant may be deemed unable to pay one cost, yet able to pay another. See Meeker v. State, 182 Ind. App. 292, 302, 395 N.E.2d 301, 307 n.5 (1979).
…
The General Assembly has now firmed up the requirements for determining indigency as to representation, I.C. § 35-33-7-6(a), and as to fines, costs, and fees, I.C. § 35-33-7-6.5(d). Courts must consider three distinct items—assets, income, and necessary expenses—that the legislature deems essential in calculating a defendant’s ability to pay. I.C. § 35-33-7-6.5(a). We reiterate that it is incumbent on trial courts to consider these factors. This means that if the parties fail to provide the information, courts themselves must make inquiries calculated to bring out the necessary evidence. Bell, 59 N.E.3d at 964. As to the burden of proof, “once a defendant presents or the court elicits from [the] defendant information demonstrating an inability to pay,” then the burden “shifts to the State to rebut the evidence.” Id
…
As for appellate review, we will defer to the sound discretion of a trial court when the record discloses a reasonable inquiry into the mandatory factors as they pertain to the defendant’s ability to pay. Other relevant factors may also need to be examined in an individual case, once brought to the court’s attention, such as the defendant’s living situation, employment history, potential earnings, social security benefits, state of health, and dependents. See Bell, 59 N.E.3d at 963 (discussing some of these factors). The record must reflect evidence of the defendant’s ability to pay the expenses imposed. Id. at 966. If one of the mandatory factors, especially either the defendant’s income or necessary expenses, is passed over, or if the inquiry is unreasonably superficial, it may be appropriate to vacate and remand for another hearing. We next apply this newly clarified standard to Spells’s case.
…
We find it a close question whether the trial court’s inquiries were adequate under the standard we set out today. Certainly, the court made some inquiries into Spells’s income and circumstances. On the other hand, the court entered its order without knowing for sure the amount of Spells’s income or of any necessary expenses like rent or prenatal healthcare. This omission seems especially important given that Spells was living alone and had a child on the way. We note, too, that the cash bail was deposited by a third party, not by Spells herself. This could have been a gift, or it could have been only a loan. We think that the trial court, having found Spells indigent as to representation and probation fees, should have investigated more deeply just what Spells could afford to pay in fines, costs, and other fees. On these facts and under the standard announced in this opinion, we conclude that the trial court did not undertake a sufficient indigency inquiry.
We hold that execution of a cash-bail agreement under code section 35- 33-8-3.2(a)(1) entitles the trial court to retain all or part of the cash bail to cover the cost of a defendant’s public defender. Cash bail may not, however, be retained to pay fines or most fees and costs unless an indigency determination is made following a hearing. Under the new statutory standard, the record of an indigency determination must disclose evidence of the defendant’s assets, income, and necessary expenses, insofar as they bear on ability to pay. Under this standard, Spells’s indigency determination was incomplete.
We affirm the retention of Spells’s cash bail to cover her $100 supplemental public-defender fee and $2 jury fee. The $20 fine and $183 in other costs and fees are vacated. We remand the case to the trial court for proceedings on the fine, costs, and fees consistent with this opinion.
Rush, C.J., and Massa, Slaughter, and Molter, JJ., concur.