SIMMONS v. STATE (2024)

MEMORANDUM DECISION

Case Summary

[1] Kenneth Simmons appeals his sentence, following a bifurcated jury trial, for level 4 felony unlawful possession of a firearm by a serious violent felon. He contends that the trial court abused its discretion at sentencing by imposing community corrections home detention fees based on an unspecified sliding scale. The State concedes error. Finding that the trial court failed to clarify its intent regarding the community corrections fees, we remand for clarification of the fees and correction of the sentencing order.

Facts and Procedural History

[2] On August 24, 2023, the State charged Simmons with level 4 felony unlawful possession of a firearm by a serious violent felon. On November 1, the trial court held a bifurcated jury trial. At the conclusion of the first phase of the trial, the jury found that Simmons knowingly or intentionally possessed a firearm. In the second phase of the trial, Simmons waived his right to have the jury determine whether he was a serious violent felon, and he stipulated that he had a prior conviction for dealing in cocaine or a narcotic drug. The trial court found Simmons to be a serious violent felon.

[3] On November 15, following a sentencing hearing, the trial court orally sentenced Simmons to an aggregate term of four years, with two years to be served in the Department of Correction and two years served in community corrections on home detention. The trial court found Simmons “indigent as to [fines,] fees[,] and costs” but did not note the imposition of any community correction fees at that time. Tr. Vol. 2 at 224. However, in its written sentencing order, issued that same day, the trial court imposed “[c]ommunity [c]orrections fees” based on a “[s]liding scale[.]” Appealed Order at 1. This appeal ensued.

Discussion and Decision

[4] Simmons contends that the trial court abused its discretion at sentencing by imposing community corrections home detention fees based on a sliding scale. Sentencing decisions include decisions to impose fees and costs. Berry v. State, 950 N.E.2d 798, 799 (Ind. Ct. App. 2011). A trial court's sentencing decisions are reviewed under an abuse of discretion standard. McElroy v. State, 865 N.E.2d 584, 588 (Ind. 2007). “An abuse of discretion has occurred when the sentencing decision is ‘clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.’ ” Id. at 588 (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)).

[5] “If the fees imposed by the trial court fall within the parameters provided by statute, we will not find an abuse of discretion.” Berry, 950 N.E.2d at 799. However, if we determine that there is an irregularity in a trial court's sentencing decision, we can remand to the trial court for clarification or a new sentencing determination, affirm the sentence if the error is harmless, or adjust the sentence directly. McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016). “The approach employed by Indiana appellate courts in reviewing sentences in non-capital cases is to examine both the written and oral sentencing statements to discern the findings of the trial court.” McElroy, 865 N.E.2d at 589.

[6] Simmons asserts, and the State concedes, that remand is appropriate to give the trial court an opportunity to clarify its intent regarding the community corrections fees. Indiana Code Section 35-38-2.5-5(a) provides that “as a condition of probation a court may order an offender confined to the offender's home for a period of home detention.” However, under Indiana Code Section 35-38-2.5-6(7), a home detention order must include, among other things, “[a] requirement that the offender pay a home detention fee set by the court[.]” (Emphasis added.) Simmons argues that the record “does not include the sliding scale” and does not “indicate who established it, or who administers it.” Appellant's Br. at 9. He further argues that it is “unclear if the trial court improperly delegated to another party its statutory responsibility to set the home detention fee.” Id.

[7] We conclude that remand is appropriate. Here, the trial court imposed community corrections home detention fees based on a sliding scale but did not include the amount of the fee or any additional detail regarding the fee. Indeed, there is no indication in either the sentencing order or the sentencing hearing transcript of what “[s]liding scale” the court was referring to, who established the scale, or who administers it. Appealed Order at 1. As such, and as Simmons argues, we have no way of knowing whether the court intended to delegate its statutory responsibility regarding the fees to community corrections. Therefore, we remand to give the trial court an opportunity to clarify its intent regarding the community correction fees and to correct its sentencing order. See Amick v. State, 126 N.E.3d 909, 911-12 (Ind. Ct. App. 2019) (remanding to provide the trial court an opportunity to clarify its intent regarding the sliding fee scale).

[8] Remanded.

Crone, Judge.

Bailey, J., and Pyle, J., concur.