Barbara Bell-Shannon v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 23, 2019
• Docket: 19A-CR-381
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 23 2019, 7:22 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David W. Stone IV Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Michael Vo Sherman Certified Legal Intern Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Barbara Bell-Shannon, August 23, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-381 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Mark K. Dudley, Appellee-Plaintiff Judge Trial Court Cause No. 48C06-1402-FB-355

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-381 | August 23, 2019 Page 1 of 5 [1] Barbara Bell-Shannon appeals the trial court’s sentencing order, arguing that

the trial court erred when it omitted the correct credit time on her sanctions

order and abstract of judgment form. Finding that there was an error, we

remand with instructions that the trial court include the proper credit time.

[2] On March 9, 2015, Bell-Shannon pleaded guilty to one count of Class D felony

possession of methamphetamine. That same day, the trial court sentenced Bell-

Shannon to 36 months, with credit for 188 days she had already executed in the

Department of Correction and with the remaining 907 days suspended to

probation. Under the terms of her probation, Bell-Shannon could not be in

contact with a convicted felon, had to notify the probation office of any change

in address, and could not consume or possess any illegal or illicit substance.

[3] On December 23, 2015, the State filed a notice of violation of probation,

alleging that Bell-Shannon had failed to obtain a substance abuse evaluation,

pay required fees, and provide a current address. On February 2, 2016, the State

filed an amended notice of violation of probation, alleging that Bell-Shannon

had possessed a synthetic drug and had been in contact with a convicted felon.

Following a February 9, 2016, evidentiary hearing, the trial court ordered Bell-

Shannon committed to home detention for violating the terms of her probation.

[4] On March 7, 2016, Bell-Shannon tested positive for drugs and on April 6, 2016,

she fled from home detention. Once again, the State filed a notice of violation

Court of Appeals of Indiana | Memorandum Decision 19A-CR-381 | August 23, 2019 Page 2 of 5 of probation on April 6, 2016. Following a January 18, 2019,1 evidentiary

hearing on this matter, the trial court found that Bell-Shannon had violated the

terms of her probation and ordered that she serve the remainder of her

previously-suspended sentence as a sanction. The trial court then calculated the

amount of time Bell-Shannon had been incarcerated and arrived at 324 days of

credit time. Neither the sanctions order nor the abstract of judgment form

included the 188 days of credit time Bell-Shannon had previously accrued.

[5] On March 22, 2019, Bell-Shannon filed a pro se motion for jail time credit,

arguing that the trial court had failed to include the 188 days that had been

documented on all previous sentencing orders. The trial court denied Bell-

Shannon’s motion. Bell-Shannon now appeals.

[6] Bell-Shannon’s sole argument on appeal is that the trial court erred by omitting

the 188 days of accrued credit time from the January 18, 2019, abstract of

judgment form and the sanctions order. When reviewing motions or requests to

alter allegedly erroneous sentencing orders, we defer to the trial court’s factual

findings and will reverse the trial court’s decision only when it is against the

logic and effect of the facts and circumstances before it. Brattain v. State, 777

N.E.2d 774, 776 (Ind. Ct. App. 2002).

1 The record does not reflect a reason for the nearly three-year delay, but we surmise that Bell-Shannon absconded during that period.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-381 | August 23, 2019 Page 3 of 5 [7] Pursuant to Indiana Code section 35-38-3-2(b)(4), the judgment of conviction

and sentencing must include “the amount of credit time earned for time spent in

confinement before sentencing[.]” “[T]herefore, pre-sentence jail time credit is a

matter of statutory right, not a matter of judicial discretion.” Weaver v. State, 725

N.E.2d 945, 948 (Ind. Ct. App. 2000). Thus, a trial court does not have

discretion to omit or forego statutorily-afforded credit time on entries of

judgment. Here, the trial court committed a scrivener’s error and neglected to

include the 188-day credit time on both the sanctions order and the abstract of

judgment form. While motions to correct or modify sentence2 are not available

to challenge entries or omissions on solely an abstract of judgment form,

Robinson v. State, 805 N.E.2d 783, 794-95 (Ind. 2004), here, the judgment of

conviction—the sanctions order—also omits the 188-day credit time. In fact,

“[t]he State acknowledges that neither the trial court’s sanctions order nor the

abstract of judgment account for Bell-Shannon’s already-served 188-day

executed sentence.” Appellee’s Br. p. 11.3

2 We recognize that Bell-Shannon, here, filed a motion for jail time credit and not a motion to correct or modify sentence. However, Bell-Shannon’s motion, in essence, sets out to correct a sentencing error, and we will not dismiss her appeal by elevating form over substance. 3 The State goes on to explain how reversal and remand is unnecessary because this Court “must analyze the trial court’s intent[.]” Appellee’s Br. p. 11. The State is making a mountain out of a proverbial mole hill. Bell- Shannon is not trying to have her sentence reversed or reduced, and this Court need not analyze the “true intent” behind the trial court’s sanctions order when it revoked Bell-Shannon’s probation. Rather, the trial court sentenced Bell-Shannon yet omitted an important morsel of information from both the sanctions order and the abstract of judgment form—namely, the 188 days of credit time she had accrued from before the initial March 9, 2015, sentencing. We are simply asking that the trial court fix its error.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-381 | August 23, 2019 Page 4 of 5 [8] Accordingly, our inquiry ends here. Because neither the sanctions order nor the

abstract of judgment form contains the 188-day pre-sentence credit time, we

remand with instructions that the trial court include this information.

[9] The judgment of the trial court is remanded with instructions.

Kirsch, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-381 | August 23, 2019 Page 5 of 5