by Douglas Ankney

The Supreme Court of Indiana clarified the framework for determining when a court may apply a cash bail toward payment of public-defender costs and toward payment of fines, costs, and fees.

Tailar L. Spells was arrested on charges related to her altercation with Officer Lynnford Parker of the Indianapolis Metropolitan Police Department. The trial court set a $250 cash bond, which was deposited in full by a third party – Diane Rolle. Both Spells and Rolle signed a cash-bond agreement pursuant to Indiana Code § 35-33-8-3.2 that permitted the trial court, “upon full satisfaction of all bond conditions, to ‘retain all or part of the cash to pay publicly paid costs of representation and fines, costs, fees, and restitution that the court may order the defendant to pay if the defendant is convicted.’” (Note: All further statutory references are to the Indiana Code.)

The trial court subsequently appointed a public defender and imposed a $100 supplemental public-defender fee. Spells was ultimately convicted at a bench trial of felony battery on Parker. Pertinent to this review, the trial court imposed probation, a $20 fine, and $185 in various fees and costs with the probation terminating upon, inter alia, payment of all fines and costs. Weeks later, the trial court granted the probation department’s request that the cash bond be applied to Spells’ fines, fees, and costs. The remaining outstanding balance of $60 was paid in full. (Note: While the bond was $250, only $245 was applied to the supplemental public-defender fee and the fines, fees, and costs – presumably because $5 was automatically deducted as a bail-deposit fee under § 35-33-8-3.2(d)(1) (2023).)

Spells timely appealed, arguing “the trial court had failed to adequately inquire into her ability to pay her fine, costs, and fees.” The Court of Appeals (“COA”) affirmed, relying on Wright v. State, 949 N.E.2d 411 (Ind. Ct. App. 2011). The COA also determined that Spells’ payment of the $60 mooted her appeal as to that money. The Indiana Supreme Court transferred the appeal, vacating the COA’s decision.

The Court observed that resolution of the appeal required interpretation of the cash bail statute, reading the “words in their plain and ordinary meaning, taking into account the structure of the statute as a whole.” Town of Linden v. Birge, 204 N.E.3d 229 (Ind. 2023). The Court stated: “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.’” § 35-33-8-1.5(1). “A criminal defendant who ‘requests assigned counsel’ is entitled to a determination of indigency under ... section[s] 35-33-7-6.5 and 35-33-7-6(a).” Additionally, “The court must consider the defendant’s ‘assets,’ ‘income,’ and ‘necessary expenses’ in determining their ability to pay for representation.” § 35-33-7-6.5(a).

If a defendant is found indigent, counsel must be appointed, but if the court determines that the defendant “is able to pay part of the cost of representation by assigned counsel,” the court “‘shall order’ a supplemental public-defender fee of $100 in a felony case and $50 in a misdemeanor case.” § 35-33-7-6(c). The Court in the present case concluded that the trial court made the necessary indigency finding and “ability-to-pay” determination when applying $100 from the cash bond to the public-defender fee.

But the fines, costs, and fees “that a court may order the defendant to pay if the defendant is convicted” were another matter. “[T]he 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.’” § 35-38-1-18(a) (2007). The same is true regarding any costs. § 33-37-2-3(a). And broadly speaking, “fees” are considered “costs,” also requiring the indigency hearing with the same prohibition against collection from indigent defendants, according to the Court. § 33-37-4-1. In the present case, the Court determined that all of Spells’ fees (except the $2 jury fee not imposed pursuant to § 33-37-4-1) were “costs” that required an indigency hearing before they could be collected.

Pursuant to the General Assembly’s amendments of 2020 regarding indigency determinations, “a trial court ‘shall’ consider a defendant’s ‘assets,’ ‘income,’ and ‘necessary expenses.’” § 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.” § 35-33-7-6.5(b). “The court may make an ‘initial indigency determination’ pending receipt of evidence.” § 35-33-7-6.5(c). “[L]astly, the court may ‘prorate’ fines, fees, and costs to what a defendant ‘can reasonably afford.’” § 35-33-7-6.5(d). “[A] defendant may be deemed unable to pay one cost, yet able to pay another.” Meeker v. State, 395 N.E.2d 301 (Ind. Ct. App. 1979).

In the present case, the Court concluded that the trial court failed, with regard to the fines, costs, and fees, to hold an adequate indigency hearing or make appropriate findings as to Spells’ ability to pay none, some, or all of the fines, costs, and fees.

Furthermore, the COA’s “mootness” determination regarding the $60 was in error. “[W]hen the controversy at issue has been ended, settled, or otherwise disposed of so that the court can give the parties no effective relief,” the case becomes moot. E.F. v. St. Vincent Hosp. & Health Care Ctr., 188 N.E.3d 464 (Ind. 2022). Because a remedy in the present case remained available, i.e., reimbursement of the $60 to Spells, the issue was not moot, the Court concluded. De La Cruz v. State, 80 N.E.3d 210 (Ind. Ct. App. 2017).

Accordingly, the Court affirmed the trial court’s retention of $100 of Spells’ cash bail to cover the supplemental public-defender fee but vacated the $20 fine and the $183 in other fees and costs and remanded to the trial court for further proceedings consistent with its opinion. See: Spells v. State, 225 N.E.3d 767 (Ind. 2024).

Related legal case