EWING v. STATE (2024)

MEMORANDUM DECISION

[1] Robert Ewing appeals the trial court's denial of his motion to find him indigent and to waive outstanding fees. Ewing raises three issues for our review, which we consolidate and restate as whether the trial court erred when it denied his motion. We affirm.

Facts and Procedural History

[2] In September 2000, Ewing entered into a written plea agreement in which he pleaded guilty to two counts of Class D felony battery. In that agreement, Ewing also agreed that the trial court would have “full authority to impose a fine as it deems proper” and to assess costs against him. Appellant's App. Vol. 2, p. 9. In exchange for his guilty plea, the State recommended that Ewing be sentenced to an aggregate term of one-and-one-half years, all of which would be suspended to probation. The trial court accepted Ewing's plea agreement and sentenced him accordingly. The court also ordered Ewing to pay fines and costs totaling $450.

[3] More than twenty-three years later, Ewing filed a motion to find him indigent and to waive the still-outstanding $450 in fees. According to Ewing, he intended to file a petition to expunge his two Class D felony convictions, which, in turn, required him to either satisfy the $450 in fees or have those fees waived. Ewing attached an affidavit of indigency to his motion; in that affidavit, he represented that he had $3,000 in monthly income, $1,756 in monthly expenses, and $6,600 in assets. Ewing did not request a hearing on his motion.

[4] The trial court denied Ewing's motion without a hearing. In doing so, the court referenced the provisions of Ewing's plea agreement in which he had agreed that the court would have the “authority” to assess fines and costs against him. Id. at 8-9. This appeal ensued.

Standard of Review

[5] Ewing appeals the trial court's denial of his motion to find him indigent and to waive outstanding fees. We review the trial court's judgment here for an abuse of discretion. See, e.g., Spells v. State, 225 N.E.3d 767, 771 (Ind. 2024). An abuse of discretion occurs “only when a decision is clearly against the logic and effect of the facts and circumstances before the court or if the court has misinterpreted the law.” Id. (quotation marks omitted).

The trial court did not abuse its discretion when it denied Ewing's motion.

[6] In support of his arguments on appeal, Ewing first asserts that the trial court was required to hold a hearing to determine his indigency status. We agree with the State that this argument is not properly before us for at least three reasons. First, in his motion to the court, Ewing did not request any such hearing. Indeed, and to the contrary, he attached an affidavit to his motion explaining his financial circumstances. Thus, by all appearances, Ewing affirmatively sought a ruling on the paper alone. We therefore conclude that Ewing may not now claim that he was entitled to something more.

[7] Ewing's failure to preserve this issue for appellate review goes further. In his brief to our Court on this issue, Ewing repeatedly states that an in-person hearing on his indigency status is “statutorily required.” E.g., Appellant's Br. at 14. But Ewing cites statutes concerning criminal actions, not expungements. Also, instead of citing the versions of those statutes in effect at the time he was sentenced, he cites the current versions of those statutes, which he then uses to draw inferences about the process he received in 2000. Compare Ind. Code § 33-37-2-3 (2024) with I.C. § 33-19-2-3 (2000). Thus, we conclude that Ewing's argument that a hearing was statutorily required here is not supported by cogent reasoning or appropriate citations to authority. Ind. Appellate Rule 46(A)(8)(a).

[8] Finally, Ewing does not argue fundamental error on this issue. Accordingly, any potential relief under that doctrine is likewise not properly before us.

[9] As for the merits of the trial court's denial of his motion, Ewing is unable to demonstrate reversible error. Ewing's affidavit to the court demonstrated that he earns $3,000 in monthly income, pays $1,756 in monthly expenses, and has $6,600 in assets. Conversely, he owes $450 in fees, which have gone unpaid for nearly a quarter of a century. Ewing has failed to demonstrate that he is indigent.¹ We therefore affirm the trial court's denial of his motion to find him indigent and to waive outstanding fees.

[10] Affirmed.

FOOTNOTES

1.   As we conclude that Ewing has failed to show that he is indigent, we need not consider his constitutional arguments on appeal, all of which are premised on his own conclusion that he is indigent.

Mathias, Judge.

Altice, C.J., and Bailey, J., concur.