Archie L. Brown v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 14, 2018
• Docket: 45A03-1710-CR-2497
• Status: Published

Opinion

MEMORANDUM DECISION FILED Jun 14 2018, 6:07 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as CLERK Indiana Supreme Court precedent or cited before any court except for the Court of Appeals and Tax Court purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Archie L. Brown Curtis T. Hill, Jr. Hammond, Indiana Attorney General of Indiana

Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Archie L. Brown, June 14, 2018

Appellant-Petitioner, Court of Appeals Case No. 45A03-1710-CR-2497 v. Appeal from the Lake Superior Court. The Honorable Samuel L. Cappas, State of Indiana, Judge. Appellee-Respondent. The Honorable Natalie Bokota, Magistrate. Trial Court Cause No. 45G04-1101-FB-10

Rucker, Senior Judge

[1] Archie L. Brown appeals the trial court’s denial of his petition seeking credit for

days spent in pre-trial confinement. Concluding the trial court correctly denied

Brown’s petition, we affirm.

Court of Appeals of Indiana | Memorandum Decision 45A03-1710-CR-2497 | June 14, 2018 Page 1 of 6 Facts and Procedural History [2] On October 23, 2012 under terms of an agreement Brown pleaded guilty to

robbery as a class C felony. The trial court sentenced Brown to eight years in

the Indiana Department of Correction to be served consecutive to a sentence

Brown was serving in Illinois. In its order of judgment the trial court specified

that Brown “is to receive zero (0) days credit time spent in confinement as a

result of this charge, because he is receiving credit under his Illinois sentences.”

Appellant’s App. Vol. 2, p. 2.

[3] Thereafter on October 6, 2017 Brown pro se filed a “Petition for Jail Time and

Additional Good Time Jail credit.” Id. p. 6. According to Brown, he is entitled

to credit for a period of 95 days from July 20, 2012 – “the date Brown was

arrested under warrant in Illinois and transferred to the Lake County jail,” (id.

pp. 7-8), to October 23, 2012 – “the date Brown was sentenced by the Lake

County court on his Indiana Robbery.” Id. at 8. In addition, Brown contended

that he is not a credit restricted felon and is entitled to an additional 95 days of

Class I “good time” credit for a total of 190 days.

[4] The trial court denied Brown’s petition declaring in relevant part:

A petition for jail time credit may only be used to attack a sentence that is invalid on its face. The sentence in this case is not erroneous on its face. As the sentencing order of October 23, 2012 stated, the defendant was not granted credit for time spent incarcerated in the Lake County Jail because he was serving Illinois sentences. If the defendant wishes to further challenge his sentence, the issue must be addressed in a petition for post- conviction relief.

Court of Appeals of Indiana | Memorandum Decision 45A03-1710-CR-2497 | June 14, 2018 Page 2 of 6 Order of 10-11-17 (attached to Appellant’s Br. p. 10).

Discussion and Decision [5] Brown now appeals the trial court’s denial. However, he does not address the

trial court’s underlying rationale, namely: a petition for jail time credit may

only be used to attack a sentence that is invalid on its face. Instead, Brown

proceeds to the merits of his claim. The State does likewise not responding at

all to the trial court’s rationale. We do so here and conclude the trial court got

it right.

[6] The facts of this case are controlled by Robinson v. State, 805 N.E.2d 783 (Ind.

2004). In Robinson, after a jury trial the defendant was convicted of attempted

murder and sentenced to a term of thirty years. Thereafter he filed a pro se

motion to correct erroneous sentence alleging the trial court improperly failed

to award both credit for time served and good-time credit. Addressing

defendant’s allegation our Supreme Court declared, “We . . . hold that a motion

to correct sentence may only be used to correct sentencing errors that are clear

from the face of the judgment imposing the sentence in light of the statutory

authority. Claims that require consideration of the proceedings before, during,

or after trial may not be presented by way of a motion to correct sentence.” Id.

at 787. “As to sentencing claims not facially apparent, the motion to correct

sentence is an improper remedy. Such claims may be raised only on direct

appeal and, where appropriate, by post-conviction proceedings.” Id.

Court of Appeals of Indiana | Memorandum Decision 45A03-1710-CR-2497 | June 14, 2018 Page 3 of 6 [7] It is true that “[a]n allegation by an inmate that the trial court has not included

credit time earned in its sentencing is the type of claim appropriately advanced

by a motion to correct sentence.” Neff v. State, 888 N.E.2d 1249, 1251 (Ind.

2008). However, in the case before us Brown does not allege the trial court

merely omitted statutorily required information from the sentencing judgment.

Instead, Brown contends that he is entitled to an additional ninety-five days of

credit time, which represents the number of days he spent in pre-trial

confinement prior to sentencing. But resolving this claim would require

consideration of matters not clear from the face of the judgment, for example 1 whether Brown is a credit restricted felon.

[8] Further, Brown’s claim of sentencing error is not facially apparent. The order

lists the conviction for robbery as a class C felony; imposes a sentence of eight

years in the DOC; dictates the sentence is to be served “consecutively” with the

sentence Brown was serving in a foreign jurisdiction; and awards “zero (0) days

credit time spent in confinement as a result of this charge, because he is

receiving credit under his Illinois sentences.” Appellant’s App. Vol. 2, p. 2.

1 A defendant’s status as a credit-restricted felon is relevant to the defendant’s initial assignment to a credit-time class, which, in turn, affects the defendant’s accrual of credit time toward her sentence. See Ind. Code § 35-50-6-4. The statute provides in pertinent part: “(b) A person who is a credit restricted felon and who is imprisoned for a crime or imprisoned awaiting trial or sentencing is initially assigned to Class IV. A credit restricted felon may not be assigned to Class I or Class II.” Id. Here, seeking day for day good-time credit Brown asserts that he is not a credit restricted felon.

Court of Appeals of Indiana | Memorandum Decision 45A03-1710-CR-2497 | June 14, 2018 Page 4 of 6 [9] When a defendant is being held on two different cases, and the sentence in one

case is ordered to run consecutively to the sentence imposed in the other, to

award credit time on both cases would result in more credit time than that to

which the defendant is entitled and would effectively enable him to serve part of

the consecutive sentences concurrently. See State v. Lotaki, 4 N.E.3d 656, 657

(Ind. 2014). “When consecutive sentences are involved, credit time is deducted

from the aggregate total of the consecutive sentences, not from an individual

sentence.” Id. at 657 (Finding error in the trial court’s award of credit time

where defendant was serving consecutive sentences); cf. Maciaszek v. State, 75

N.E.3d 1089, 1094 (Ind. Ct. App. 2017) (Defendant entitled to credit for actual

time served in county jail after he was extradited from foreign state to await

trial on an Indiana charge of felony burglary. And this was because the

conviction in the burglary case did not indicate that defendant’s Indiana

sentence was to be served consecutively to his sentence in the foreign

jurisdiction.), trans. denied.

[10] In this case resolving whether and to what extent Brown received credit on his

Illinois sentence – thus impacting the “zero” credit received on his Indiana

sentence – are matters that are not obvious from the face of the trial court’s

order of judgment. Therefore, Brown’s claim of sentencing error cannot be

pursued through his Petition for Jail Time and Additional Good Time Jail

Credit. Accordingly, the trial court properly denied the petition.

Court of Appeals of Indiana | Memorandum Decision 45A03-1710-CR-2497 | June 14, 2018 Page 5 of 6 Conclusion [11] We affirm the judgment of the trial court.

[12] Affirmed.

Vaidik, C.J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 45A03-1710-CR-2497 | June 14, 2018 Page 6 of 6