KISER v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] After a jury found Bradley Kiser guilty of nine drug-related charges, the trial court sentenced him to an aggregate twenty-year sentence and imposed several costs and fees attributed to Kiser's case. On appeal, Kiser contends that the trial court erred in imposing those costs and fees as part of its sentencing order. We reverse and remand.

Facts and Procedural History

[2] On February 27, 2023, and as amended in June of 2024, the State charged Kiser with Level 2 felony dealing in methamphetamine, Level 3 felony possession of methamphetamine, Level 2 felony dealing in a Schedule II controlled substance, Level 5 felony possession of cocaine, Level 6 felony possession of a controlled substance, Level 6 felony dealing in marijuana, Level 6 felony unlawful possession of a syringe, Level 6 felony maintaining a common nuisance, Class B misdemeanor possession of marijuana, and Class C misdemeanor possession of paraphernalia. Kiser posted a cash bond and a surety bond for pretrial release. As part of the bond agreement, Kiser agreed that “the cash deposited is available for payment of court costs, fines, restitution, probation user fees, and publicly paid costs of representation ordered by the Court.” Appellant's App. Vol. II p. 36.

[3] On June 12, 2024, a jury found Kiser guilty of all counts except Level 2 felony dealing in a Schedule II controlled substance. At the sentencing hearing, the trial court asked Kiser if he could afford an attorney on appeal, and Kiser responded that he could not. The trial court asked Kiser whether he owned any real estate, and Kiser responded, “no.” Tr. Vol. II p. 232. Kiser indicated that he had “sold [his] stuff” to post the bond, but that the cash bond was his money. Tr. Vol. II p. 232. The trial court asked defense counsel for a “ballpark” range on how much appellate counsel would cost, and defense counsel responded, “[p]robably around I would say $5500.” Tr. Vol. II p. 232.

[4] The trial court then asked Kiser about “collective items” that he owned, and Kiser responded, “[i]t's all gone” and “everything is gone. I hired a person to sell that, I made a deal I pay rent and clean my house up and sell stuff and she ripped me up.” Tr. Vol. II pp. 232–33. The trial court took the issue of bond release under advisement and informed Kiser that, if it ordered that fees be withheld from the cash bond, it would order only “some but not all” of the bond funds withheld so that “some of the money goes on [Kiser's] books” in the Department of Correction (“DOC”). Tr. Vol. II p. 233.

[5] The trial court ultimately sentenced Kiser to an aggregate twenty-year sentence with five years suspended to probation. The trial court's written order also contained the following:

IT IS FURTHER ORDERED AND ADJUDGED that [Kiser] pay court costs in the amount of $185.00, a drug screen cost of $15.00 owed to Probation, a Probation Administrative Fee of $100.00, a Probation Initial User Fee of $100.00, and a $200.00 Drug Abuse, Prosecution, Interdiction, and Correction Fee.

[Kiser] posted a surety and cash bond. All sureties are hereby released. As to the cash bond of $3,000, the Court finds that [Kiser] is indigent, but only due to his incarceration. His family sold most of his personal belongings to post his bond. Pursuant to I.C. 35-33-8-3.2 and the cash bond agreement, the Court orders [Kiser] to pay the publicly paid costs of representation in the $2000.00, which is a reasonable attorney fee.

Appellant's App. Vol. II p. 58. The remaining money from the cash bond, after the court costs, fees, and public defender costs were paid, was ordered to be sent to Kiser, who was in custody.

Discussion and Decision

[6] Kiser contends that the trial court improperly assessed public defender fees and other costs and fees after finding him indigent and without determining the costs directly attributable to his defense.

An abuse-of-discretion standard of review applies to a trial court's sentencing decisions and to the imposition of costs and fees. Holder v. State, 119 N.E.3d 621, 624 (Ind. Ct. App. 2019). This standard allows reversal 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.” Abbott v. State, 183 N.E.3d 1074, 1083 (Ind. 2022) (internal quotation and citation omitted).

Spells v. State, 225 N.E.3d 767, 771 (Ind. 2024).

I. Public Defender Fee

[7] Under Indiana Code section 35-33-8-3.2(a)(1), a trial court “may require the defendant ․ to execute an agreement that allows the court to retain all or part of the cash to pay publicly paid costs of representation[.]”

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).

Spells, 225 N.E.3d at 773. Here, Kiser executed a bond agreement in which he agreed that “the cash deposited is available for payment of court costs, fines, restitution, probation user fees, and publicly paid costs of representation ordered by the Court.” Appellant's App. Vol. II p. 36.

[8] The trial court imposed a $2000.00 fee after asking Kiser's defense counsel for a “ballpark” range on how much appellate counsel would cost, to which defense counsel responded, “[p]robably around I would say $5500.” Tr. Vol. II p. 232. We have previously concluded that “a trial court may not hold a portion of a criminal defendant's bond money in trust to be used toward public defender fees not yet incurred.” Sandoval v. State, 70 N.E.3d 889, 890 (Ind. Ct. App. 2017). The record reveals that Kiser was represented by a public defender in a suppression hearing, jury trial, and sentencing hearing. However, the only discussion in this case concerning the cost of Kiser's defense was about potential appellate fees, i.e. fees not yet incurred. Therefore, we disagree with the State's suggestion that the $2000.00 fee was reasonable in light of the exchange regarding appellate counsel costs and conclude that the trial court's order regarding attorney's fees requires reversal and remand. On remand, the trial court should make findings as to the direct costs reasonably attributable to Kiser's defense, although a detailed accounting of exactly how much of the public defender's salary could be attributed is not required. See Spells, 225 N.E.3d at 773.

II. Remaining Costs and Fees

[9] The Spells court observed that the imposition of a fine “usually requires an indigency hearing” and concluded that “[c]ash bail may not ․ be retained to pay fines or most fees and costs unless an indigency determination is made following a hearing.” 225 N.E.3d at 775, 780. The trial court ordered Kiser to “pay court costs in the amount of $185.00, a drug screen cost of $15.00 owed to Probation, a Probation Administrative Fee of $100.00, a Probation Initial User Fee of $100.00, and a $200.00 Drug Abuse, Prosecution, Interdiction, and Correction Fee,” for a total of $600.00 in court costs and fees. Appellant's App. Vol. II p. 58.

[10] In ordering Kiser to pay these costs and fees, the trial court found “[a]s to the cash bond of $3,000, the Court finds that [Kiser] is indigent, but only due to his incarceration. His family sold most of his personal belongings to post his bond.” Appellant's App. Vol. II p. 58. Kiser does not dispute that the trial court held a proper indigency hearing but instead contends that “it was improper to order [Kiser] to pay those fees from the cash bond after he was (correctly) found to be indigent.” Appellant's Br. p. 16. The State contends that the trial court's finding, “when read in context, shows that it did not determine that he was indigent and unable to pay any costs and fees, but rather that he was limited in the amount he could pay because of his incarceration.” Appellee's Br. p. 10.

[11] When an individual is found indigent, Indiana Code section 35-33-7-6.5(e) provides that “[i]f the court finds that the person is able to pay some of the fines, fees, and court costs, the court may prorate the person's fine, fee, and court costs, and require the person to pay an amount that the person can reasonably afford.” The trial court here found Kiser to be “indigent, but only due to his incarceration.” Appellant's App. Vol. II p. 58. While the State suggests that the trial court's limiting language should be read as a determination that Kiser was able to pay some of the fines, fees, and court costs, we do not read the trial court's statement so broadly.

[12] We therefore reverse and remand the matter to the trial court for further findings as to whether Kiser was able to pay “some” of the fines pursuant to Indiana Code section 35-33-7-6.5(e). On remand, the trial court should make findings as to both the direct costs associated with Kiser's defense at trial and his ability to pay some fines, costs, and/or fees.

[13] We reverse the trial court's order and remand for proceedings consistent with this opinion.

Bradford, Judge.

Pyle, J., and Kenworthy, J., concur.