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FOR PUBLICATION

ATTORNEY FOR APPELLANTS: KATHLEEN M. SWEENEY Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JAMIE MUELLER, VICKI EVANS, Appellants-Defendants, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) )

No. 49A02-0503-CR-172

INTERLOCUTORY APPEALS FROM THE MARION SUPERIOR COURT The Honorable William Nelson, Judge Cause Nos. 49F07-0403-CM-51572 49F07-0410-CM-189904

November 16, 2005 OPINION - FOR PUBLICATION

BARNES, Judge

Case Summary Jamie Mueller and Vickie Evans appeal the trial court's refusal to require the Marion County Prosecutor ("the Prosecutor") 1 to permit them to participate in a pretrial diversion program. We reverse and remand. Issue The dispositive issue before us is whether requiring payment of a fee as an absolute condition of participating in a pretrial diversion program violates the Fourteenth Amendment to the United States Constitution. 2 Facts On March 25, 2004, Jamie Mueller was charged with being a minor in a tavern, a Class C misdemeanor. At her initial hearing, she was found to be indigent and was appointed a public defender. On March 29, 2004, the Prosecutor offered to allow

Mueller to participate in that office's pretrial diversion program, and Mueller accepted. Among other things, Mueller admitted guilt, agreed to commit no crime during the next two years, agreed to attend a behavior modification class, and agreed to pay an $80 class fee and a $150 user fee, for a total of $230. The trial court specifically found "it credible that Mueller believed she could pay the fees initially but then was unable to pay." Mueller App. p. 37. The Prosecutor sought to withdraw the pretrial diversion agreement on the sole basis of Mueller's inability to pay the fees.

1

The State of Indiana is the nominal party in this case. Because this case concerns only this prosecutor's pretrial diversion program, we refer to him as the party throughout the opinion.

2

Because of our resolution of this issue, we do not address Mueller's and Evans's arguments under the Indiana Constitution.

2

On October 20, 2004, Vicki Evans was charged with conversion, a Class A misdemeanor. Like Mueller, Evans also was appointed a public defender because she was found indigent. The Prosecutor also offered Evans the opportunity to participate in a pretrial diversion program. However, unlike Mueller, Evans never executed a pretrial diversion agreement because she did not believe she could pay the required $230 in fees. Mueller and Evans requested that the trial court require the Prosecutor to allow them to participate in the pretrial diversion program, notwithstanding their inability to pay the $230 in fees. The trial court found that at least at the time of Mueller's and Evans's cases, the Prosecutor's practice and policy in implementing his pretrial diversion program was that persons who were unable to pay the fees were denied entry into the program or were removed from the program if they could not pay the fees. 3 The State does not challenge the accuracy of this finding on appeal. Nonetheless, the trial court concluded that requiring payment of the fees as a condition of participation in the pretrial diversion program was a rational requirement that violated neither the United States nor Indiana Constitutions. Mueller and Evans now appeal. Analysis We begin by reviewing the pretrial diversion statute, now found at Indiana Code Section 33-39-1-8. The statute, as recently amended, provides in part: (c) A prosecuting attorney may withhold prosecution against an accused person if:

3

There appears to be some evidence that the $80 class fee sometimes would be waived, but never the $150 user fee.

3

(1)

the person is charged with a misdemeanor;

(2) the person agrees to conditions of a pretrial diversion program offered by the prosecuting attorney; (3) the terms of the agreement are recorded in an instrument signed by the person and the prosecuting attorney and filed in the court in which the charge is pending; and (4) the prosecuting attorney electronically transmits information required by the prosecuting attorneys council concerning the withheld prosecution to the prosecuting attorneys council, in a manner and format designated by the prosecuting attorneys council. (d) An agreement under subsection (c) may include conditions that the person: (1) pay to the clerk of the court an initial user's fee and monthly user's fees in the amounts specified in IC 3337-4-1 . . . . (e) An agreement under subsection (c)(2) may include other provisions reasonably related to the defendant's rehabilitation, if approved by the court. (Emphases added). As our emphases make clear, the pretrial diversion statute does not require the payment of fees, either statutorily-denominated or otherwise, as an absolute condition of participation in a pretrial diversion program. Mueller and Evans concede the statute is constitutional on its face. The undisputed evidence before us, however, is that at the time of Mueller's and Evans's cases, the Prosecutor here had implemented a policy of unconditionally requiring the payment of certain fees as a condition of participation in his pretrial diversion program. The question, therefore, is whether this was an

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unconstitutional application of an otherwise constitutional statute with respect to indigent defendants. It has been said, "The determination of whom to prosecute is within the sole discretion of the prosecutor, and the court may not substitute its discretion for that of the prosecutor." Deurloo v. State, 690 N.E.2d 1210, 1211 (Ind. Ct. App. 1998) (citing Johnson v. State, 675 N.E.2d 678, 683 (Ind. 1996)). This principle was applied in Deurloo, in which two judges of this court held that "the organization and administration of a pretrial diversion program is left entirely to the prosecutor." Id.; but see id. at 1213 (Sullivan, J., concurring) (stating that trial court had erred "in its conclusion that it totally lacked responsibility or authority with regard to the [diversion] agreement or with respect to whether any of the conditions of the agreement had been violated.") However, it is also clear that a prosecutor's charging decisions cannot be made in a way that violates the United States Constitution. Within the limits set by the legislature's constitutionally valid definition of chargeable offenses, "the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation" so long as "the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 668-69 (1978) (quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 506 (1962)) (emphases added). "Where a law or the application of a law is challenged on constitutional grounds, the judiciary has the authority, as well as the duty, to explore the constitutional ramifications of the law." City of Anderson v. Associated Furniture & Appliances, Inc., 423 N.E.2d 293, 295 (Ind. 5

1981). Thus, in this case we have the authority, and the duty, to assess whether it is constitutional for a prosecutor to decide to prosecute some individuals and not others on the sole distinguishing basis that some are able to pay pretrial diversion fees and others are not. This assumes that the two groups are otherwise similarly situated, i.e. individuals in both groups possess identical characteristics with respect to their eligibility to participate in a pretrial diversion program except for their respective abilities to pay the required fees. There is nothing in the record to suggest there was any other reason for Mueller and Evans to be excluded from the pretrial diversion program, except for their asserted inability to pay the fees. The Fourteenth Amendment to the United States Constitution provides in part: "No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Generally, when assessing a claim that government action has violated the Fourteenth Amendment, the threshold question concerns the level of scrutiny of the action. Indiana High School Athletic Ass'n, Inc. v. Carlberg by Carlberg, 694 N.E.2d 222, 236 (Ind. 1997). Absent a burden upon the exercise of a constitutionally protected right or creation of a suspect class, the general standard of review of state action challenged under the Fourteenth Amendment is the rational basis test. Id. This merely requires "that the law be `rationally related to a legitimate governmental purpose.'" Id. (quoting Clark v. Jeter, 486 U.S. 456, 461, 108 S. Ct. 1910, 1914 (1988)). There is no argument here that there is a constitutional right to 6

participate in a pretrial diversion program. Additionally, we acknowledge that indigency alone has not been identified as a suspect classification for Fourteenth Amendment purposes. See Maher v. Roe, 432 U.S. 464, 471, 97 S. Ct. 2376, 2381 (1977). These general principles aside, however, there has developed a substantial independent body of precedent that has specifically addressed whether the government's charging of fees for access to a government-provided benefit is permissible under the Fourteenth Amendment, as applied to persons unable to pay the fees. The starting point in this analysis is Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585 (1956). There, the United States Supreme Court held that the State of Illinois violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment when it refused to allow indigent criminal defendants appealing their convictions to obtain free trial transcripts, despite the fact that allowing the appeal in the first place is not a requirement of the federal constitution. Id. at 18-19, 76 S. Ct. at 590-91. Although Griffin dealt specifically with criminal appeals, it contains much language that suggests broader application to the criminal justice system generally, and we quote Justice Black writing for the plurality at length: Providing equal justice for poor and rich, weak and powerful alike is an age-old problem. People have never ceased to hope and strive to move closer to that goal. This hope, at least in part, brought about in 1215 the royal concessions of Magna Charta: "To no one will we sell, to no one will we refuse, or delay, right or justice. * * * No free man shall be taken or imprisoned, or disseised, or outlawed, or exiled, or anywise destroyed; nor shall we go upon him nor send upon him, but by the lawful judgment of his peers or by the law of the land." These pledges were unquestionably steps toward a fairer and more nearly equal application of criminal justice. 7

In this tradition, our own constitutional guaranties of due process and equal protection both call for procedures in criminal trials which allow no invidious discriminations between persons and different groups of persons. Both equal protection and due process emphasize the central aim of our entire judicial system

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