COWART v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Steven Cowart appeals the trial court's order of fines, fees, and costs, alleging the court failed to conduct a statutorily required indigency hearing. We remand.

Facts and Procedural History

[2] In the early morning of October 1, 2022, Garrett Anderson took an Uber from his home to visit a friend in Indianapolis. He left his wallet in the vehicle. Anderson's wallet had a tracking device allowing him to pinpoint its location. Later that day, he traced his wallet to a Guitar Center Distribution Warehouse. Anderson drove to the warehouse where employees granted him permission to enter the premises and search for the wallet. He abandoned the search when pings from the tracking device led him to the warehouse's trash compactor.

[3] Cowart rode in the same Uber as Anderson on October 1. He worked at the warehouse. Cowart used a credit card he found in Anderson's wallet to buy goods from vending machines located in the warehouse breakroom. After several trips to the breakroom, Cowart disposed of Anderson's wallet by placing it in the trash compactor.

[4] The State charged Cowart with Class A misdemeanor theft, enhanced to a Level 6 felony because of a prior unrelated conviction.¹ A jury found him guilty of the Class A misdemeanor. After discussing the matter with appointed counsel, Cowart agreed to plead guilty to the prior unrelated conviction and waived his right to a jury trial on that charge. The trial court entered judgment of conviction of theft as a Level 6 felony.

[5] At sentencing, Cowart and the State presented the trial court with an agreement:

[DEFENSE COUNSEL]: Your Honor the agreement ․ would be a 545-day sentence. All of that time would be suspended. Mr[.] Cowart will be placed on Probation for 545-days under the regular terms and conditions of Probation, including the additional ones that are reflected in the Probation Order. And his Probation can be terminated after 365-days if all fees are paid and there are no violations that have been filed.

Tr. Vol. 2 at 150. The trial court accepted the oral agreement between the parties. As it pronounced Cowart's sentence, the court elaborated on the following terms:

THE COURT: ․ [H]e must pay all Probation user fees ․ He must participate in a cognitive skills theft class approved by the Probation Department․ [H]is Probation may be transferred to Marion County. After 365-days on Probation as long as we had no violations, no new criminal cases filed against you, and all your fees have been paid, you may petition for early termination of Probation. I will impose a $1 fine, $189 in court costs, you must repay the County $200 in pauper counsel fees.

Id. at 151.

Absent specific agreement as to costs and fees, an indigency hearing is required.

[6] We apply an abuse of discretion standard of review to a trial court's sentencing decision and to the imposition of costs and fees. Spells v. State, 225 N.E.3d 767, 771 (Ind. 2024). An abuse of discretion standard permits 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.” Id. (internal quotation marks omitted).

[7] The trial court's imposition of fines, fees, and costs generally requires an ability-to-pay determination. Indiana Code Section 35-38-1-18(a) governs the imposition of fines and provides, “whenever the court imposes a fine, it shall conduct a hearing to determine whether the convicted person is indigent.” Similarly, Indiana Code Section 33-37-2-3(a) concerns the imposition of costs and provides, “when the court imposes costs, it shall conduct a hearing to determine whether the convicted person is indigent.” See also I.C. § 35-33-7-6(a) & (c) (2024) (requiring indigency determination before appointing public counsel and capping costs of representation if court finds defendant can pay part of costs); I.C. § 33-40-3-6 (2023) (requiring indigency determination before imposition of attorney fees if the court has appointed an attorney).

[8] Cowart argues the trial court abused its discretion when it did not conduct a statutorily required hearing to determine his ability to pay the imposed fines, fees, and costs. The State maintains Cowart waived his right to an indigency hearing when he entered into a sentencing agreement requiring him to pay fees in exchange for a sentence of probation. We disagree with the State.

[9] In this case, the record does not contain a written plea agreement. See I.C. § 35-35-3-3(a) (2017) (requiring plea agreements on felony charges to be in writing). Instead, the parties presented, and the trial court accepted, an oral sentencing agreement. The oral agreement did not specify the fines, fees, and costs Cowart would be responsible for paying. The “Probation Order” referenced by Cowart's counsel does not identify any specific sums he must pay. See Appellant's App. Vol. 2 at 128. Only the “Order on Cash Bond/Supplemental Probation Order/Cost Sheet” specifies the imposed fines, fees, and costs, but neither the trial court nor parties referenced this document during the sentencing hearing. Id. at 127.²

[10] A panel of this Court recently considered a similar claim in a case in which the defendant argued the trial court abused its discretion by ordering him to pay fines, fees, and costs without conducting an indigency hearing. Eversole v. State, 260 N.E.3d 1000, 1002 (Ind. Ct. App. 2025). In Eversole, the panel explained the defendant waived his right to have the trial court determine his ability to pay a $200 drug-interdiction fee which he specifically agreed to pay in the plea agreement. Id. at 1003–04. When a defendant enters into a plea agreement requiring them to pay a specific amount, “the defendant acknowledges their ability to pay that amount and thereby waives the right to have the court inquire into that ability.” Id. at 1004. But the panel held an indigency hearing was required for costs and fees left to the trial court's discretion. Id.

[11] Here, the oral agreement presented to the trial court did not specify any expenses Cowart was required to pay. The only document identifying the imposed expenses was not incorporated into the agreement during the sentencing hearing. And it is unclear whether this document was created, and whether Cowart signed it, before or after the sentencing hearing. Based on the record before us, we cannot agree Cowart waived his right to an indigency hearing.

[12] The trial court must conduct an indigency hearing before Cowart becomes eligible for early release from probation. Indiana Code Section 35-38-1-18(b) clarifies, “[i]f the court suspends payment of the fine, the court shall conduct a hearing at the time the fine is due to determine whether the convicted person is indigent.” Similarly, Indiana Code Section 33-37-2-3(b) explains if the trial court suspends payment of costs, “the court shall conduct a hearing at the time the costs are due to determine whether the convicted person is indigent.” “A trial court acts within its authority when it chooses to wait and see if a defendant can pay probation fees before it finds the defendant indigent.” Johnson v. State, 27 N.E.3d 793, 795 (Ind. Ct. App. 2015) (interpreting I.C. § 33-37-2-3); see also Whedon v. State, 765 N.E.2d 1276, 1279 (noting a “defendant's financial resources are more appropriately determined not at the time of initial sentencing but at the conclusion of incarceration”). The trial court acted within its authority when it took a “wait and see” approach. But on remand the court must conduct an indigency hearing before Cowart is eligible for early release from probation.

Conclusion

[13] The record before us does not demonstrate Cowart waived his right to an indigency hearing. The trial court must conduct an indigency hearing before Cowart becomes eligible for early release from probation.

[14] Remanded.

FOOTNOTES

1.   Ind. Code § 35-43-4-2(a)(1)(C) (2022).

2.   In this document, the trial court ordered Cowart to pay $200 in public defender fees; a $100 probation administrative fee; a $100 initial probation user's fee; $189 in court costs; a $1 fine; and $50 for a cognitive skills theft class. In total, Cowart was ordered to pay $640. The document left unspecified his monthly probation costs presumably because those would be subject to Marion County's fee structure upon transfer of the case to that jurisdiction. Although unclear when, Cowart signed the document.

Kenworthy, Judge.

Bradford, J., and Pyle, J., concur.