Raymond Charles Storck, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Pursuant to a plea agreement in which he waived the right to appeal his sentence, Raymond Charles Storck (“Storck”) pleaded guilty to Level 6 felony operating a vehicle with an alcohol concentration equivalent of .15 or more. Storck appeals, challenging the assessment of a public defender fee—a claim the State argues is waived due to the waiver provision in the plea agreement. Concluding Storck's claim falls outside the scope of the waiver provision, we reach the merits and agree with Storck that the trial court did not comply with applicable statutes in assessing the fee. We, therefore, reverse and remand with instructions to re-evaluate the fee and, as necessary, conduct further proceedings or enter additional findings to establish support for the fee.

Facts and Procedural History

[2] On July 1, 2024, the State charged Storck with Level 6 felony operating a vehicle with an alcohol concentration equivalent of .15 or more. At his initial hearing, Storck told the trial court he was planning to hire private counsel. At a subsequent hearing, Storck confirmed his intent to hire private counsel. Storck later wrote a letter to the court requesting a public defender. The trial court held a hearing on Storck's request where it inquired into his financial resources. Storck told the court he was amid proceedings to dissolve his marriage and had a full-time job with take-home pay of approximately $525.00 per week. Storck explained that he had four minor children, and “with the mortgage and [his] other bills,” he did not have savings to hire an attorney. Tr. Vol. 2 p. 9. The trial court appointed a public defender and scheduled a pretrial conference.

[3] On September 11, 2024, a public defender filed an appearance and a disclosure document. The next day, September 12, 2024, the public defender moved to continue the pretrial conference. The trial court granted the motion later that day. The following day, September 13, 2024, private counsel filed an appearance on behalf of Storck. The public defender was removed as counsel, and Storck was represented by private counsel for the rest of the proceedings.

[4] Eventually, Storck and the State reached a plea agreement (“the Agreement”) under which Storck would plead guilty to the Level 6 felony in exchange for a one-year driver's license suspension and a fixed sentence of 730 days executed in the Indiana Department of Correction with the parties free to argue placement to the trial court. The Agreement provided that “[a]ll other terms and conditions” of the sentence would be “left to the Court's discretion.” Appellant's App. Vol. II p. 38. The Agreement also stated that Storck “waive[d] any and all appellate review of a sentence imposed by the Court that is consistent with the terms of [the Agreement].” Id. at 39 (emphasis added).

[5] On April 15, 2025, Storck pleaded guilty pursuant to the Agreement. The trial court took the plea under advisement and scheduled the sentencing hearing for June 3, 2025. At the hearing, Storck testified that he was working full-time for the same employer, had recently been through a divorce, and was paying $188.00 per week in child support. The trial court accepted the plea agreement and ordered Storck to serve the agreed sentence in the Indiana Department of Correction. The court said it was not imposing a fine but was imposing court costs of $389.50. Although the court did not orally address whether it was assessing a public defender fee, the associated judgment states that it assessed a public defender fee “in the amount of $200.00.” Id. at 47. Storck now appeals.

Discussion and Decision

[6] Storck claims the trial court abused its discretion in assessing the $200.00 public defender fee. We review the assessment of a public defender fee for an abuse of discretion. Spells v. State, 225 N.E.3d 767, 771 (Ind. 2024). A trial court abuses its discretion if its decision was clearly against the logic and effect of the facts and circumstances before it or the court misinterpreted the law. Id. To the extent the matter turns on a question of law, such as the proper interpretation of a contract or a statute, our review is de novo. See Aguilar v. State, 162 N.E.3d 537, 541 (Ind. Ct. App. 2020), trans. denied. Moreover, when interpreting clear and unambiguous legal text, we give words their plain meaning. See id.

[7] At the outset, we address the State's contention that Storck waived his appellate challenge because the Agreement said he “waive[d] any and all appellate review of a sentence imposed by the Court that is consistent with the terms of [the Agreement].” Appellant's App. Vol. II p. 39 (emphasis added). In general, “[a]ppeal rights ․ are limited by the text and scope of the waiver” provision in the plea agreement. Anderson v. State, 269 N.E.3d 817, 821 (Ind. 2025). Thus, “[t]he broader the waiver [provision], the fewer the appeal rights.” Id. Nevertheless, regardless of the scope of the waiver provision, a defendant is always free to challenge the legality of the sentence. See id. at 819. “[A] sentence is illegal, and thus an appeal challenging it cannot be waived, only if it either is outside the prescribed statutory range or is unconstitutional.” Id.

[8] The State argues that, by waiving the right to appeal his sentence, Storck waived the right to appeal the imposition of a public defender fee. As to the scope of the instant waiver provision, “[b]ecause plea agreements are contracts, contract law principles generally apply.” Id. at 824 (quoting Davis v. State, 217 N.E.3d 1229, 1232 (Ind. 2023)). “Like any contract, we ‘begin with its plain language.’ ” Id. (quoting Berry v. State, 10 N.E.3d 1243, 1247 (Ind. 2014)). “Any ambiguity is construed against the State, as the agreement's drafter.” Id.

[9] We note that the Agreement did not define “sentence” or expressly address fees or costs. In asserting that a defendant's sentence encompasses fees and costs, the State exclusively relies on Johnson v. State, where this court recited the applicable standard of review and stated: “Sentencing decisions include decisions to impose fees and costs.” 27 N.E.3d 793, 794 (Ind. Ct. App. 2015). Critically, however, the Indiana Supreme Court's recent caselaw regarding public defender fees indicates a distinction between (1) the defendant's sentence and (2) the costs and fees imposed as part of the judgment. See Spells, 225 N.E.3d at 771. Indeed, when the Spells Court recited the applicable standard of review, the Court explicitly stated that the standard “applie[d] to a trial court's sentencing decisions and to the imposition of costs and fees.” 225 N.E.3d at 771 (emphasis added). This language comports with our approach in Jackson v. State, where we noted that “costs and fees are not a part of the defendant's sentence and are separate from fines.” 968 N.E.2d 328, 333 (Ind. Ct. App. 2012). In support of this approach, we cited Indiana Code article 33-37—one of three articles authorizing the assessment of public defender fees—wherein our legislature explicitly distinguished between (1) the defendant's sentence and (2) the fees and costs. See Ind. Code §§ 33-37-2-2(a) (“Costs in a criminal action are not a part of the sentence[.]”), 33-37-1-3(b) (“The costs imposed by this article include fees.”), 33-37-2-3(e) (authorizing, under certain circumstances, an order to pay “the cost of the defense services rendered on behalf of the [defendant]”).

[10] Based on the foregoing, we conclude that the appellate waiver provision—which was limited to sentencing issues—does not apply here, where Storck is challenging a public defender fee. Therefore, Storck is not precluded from bringing this appeal. As to the merits, when previously facing a plea agreement that was silent as to fees and costs, we determined that the trial court was not “prohibited from imposing them, albeit within statutory restrictions.” Jackson, 968 N.E.2d at 333. In Jackson, we explained that “[t]hree statutory provisions address the imposition of public defender fees” and a court may “order reimbursement under any or a combination thereof.” Id. As to these statutory provisions, the State acknowledges that if the court ran “afoul of the statutory requirements for imposing a public defender fee,” the “correct remedy” would be to remand “so that [the court] may conduct, formally, a hearing into [Storck's] ability to pay and the amount due.” Appellee's Br. p. 9.

[11] Here, as in Jackson, “[w]e do not know ․ whether the trial court attempted to adhere to statutory restrictions because it did not identify the statutory basis for imposing the public defender fees[.]” 968 N.E.2d at 333. Under the circumstances, we address in turn each potential source of statutory authority.

[12] Turning to the first statute, Indiana Code section 35-33-7-6(a) provides that, “[p]rior to the completion of the initial hearing,” the court must assign counsel to a person who requests counsel and is “found to be indigent” under Indiana Code section 35-33-7-6.5, which “govern[s] indigency determinations in a criminal case.”¹ Spells, 225 N.E.3d at 778. The first statute also specifies that the trial court may revisit its indigency determination “at any time during the proceedings” if (1) the court “receives evidence of a material change in the person's income or assets” or (2) “the person has failed to provide the court with sufficient evidence, including documentary evidence, to sustain the court's initial indigency determination.” I.C. § 35-33-7-6(g). The statute further provides that if the court “finds that the person is able to pay part of the cost of representation by the assigned counsel,” the court must impose a public defender fee of $200.00 in a felony action. I.C. § 35-33-7-6(c). In the instant felony action, the trial court imposed a public defender fee of $200.00. However, contrary to statute, the court did not explicitly find that Storck was able to pay part of the cost of representation by the assigned counsel, who represented him at public cost for approximately two days. We, therefore, conclude that Indiana Code section 35-33-7-6(a) did not authorize the fee.

[13] Second, Indiana Code section 33-37-2-3(e) authorizes the assessment of a public defender fee, but only if the court (1) holds an indigency hearing and (2) “determines that [the] convicted person is able to pay part of the costs of representation[.]” The statute limits the fee to “an amount of not more than the cost of the defense services rendered on behalf of the person.” I.C. § 33-37-2-3(e). The State acknowledges that the trial court “did not formally label its inquiry an ‘indigency hearing,’ ” but argues that the court “effectively conducted one even if not nominally.” Appellee's Br. p. 8. The State ultimately argues the fee was statutorily authorized because, “[e]ffectively, the trial court did not impose the fee until after acquiring the evidence that justified imposing it.” Id.

[14] We note, however, that regardless of the scope of the trial court's inquiry into Storck's financial means, the trial court did not explicitly find that Storck was able to pay part of the costs of representation. Furthermore, assuming the trial court intended to impose a public defender fee under this statute—as opposed to the statue prescribing a flat fee of $200.00 in a felony action—there is no indication the court considered “the cost of the defense services rendered on behalf of the person.” I.C. § 33-37-2-3(e). This is especially notable in that, here, Storck was represented by a public defender for approximately two days, with counsel filing a disclosure document and a motion to continue. We ultimately cannot say Indiana Code section 33-37-2-3(e) authorized the fee.

[15] Third, and finally, Indiana Code section 33-40-3-6(a) directs a court, “at any stage of a prosecution,” to order payment of “[r]easonable attorney's fees if an attorney has been appointed for the person”—but only if “the court makes a finding of [the defendant's] ability to pay the costs of representation[.]” As earlier noted, the record is devoid of a finding regarding Storck's ability to pay and there is also no indication the trial court considered the reasonableness of imposing a $200.00 fee in light of the particularly brief period of representation. Therefore, Indiana Code section 33-40-3-6(a) does not support the instant fee.

[16] All in all, it is unclear whether the trial court intended to assess a public defender fee under (1) Indiana Code section 35-33-7-6, (2) Indiana Code section 33-37-2-3, or (3) Indiana Code section 33-40-3-6(a). Regardless, the trial court did not enter the necessary findings or hold the required proceedings to support assessing the fee under any of the three potential authorizing statutes. Under the circumstances, we reverse the $200.00 fee and remand with instructions to re-evaluate the fee, and as necessary, conduct further proceedings or enter additional findings to establish statutory support for the fee assessment.

[17] Reversed and remanded.

FOOTNOTES

1.   Among other things, the indigency statute mandates consideration of the person's “assets,” “income,” and “necessary expenses” while allowing a court to “prorate the person's fine, fee, and court costs” based on what the person “can reasonably afford.” Ind. Code § 35-33-7-6.5(a), (e). Recently, the Indiana Supreme Court emphasized that “it is incumbent on trial courts” to consider the defendant's assets, income, and necessary expenses—“three distinct items ․ the legislature deems essential in calculating a defendant's ability to pay”—such that, even “if the parties fail to provide the information, courts themselves must make inquiries calculated to bring out the necessary evidence.” Spells v. State, 225 N.E.3d 767, 778 (Ind. 2024).

Foley, Judge.

Altice, C.J. and May, J., concur.