Daniel Nanos v. State of Indiana

CourtIndiana Court of Appeals
DecidedOctober 18, 2012
Docket49A05-1205-CR-238
StatusUnpublished

This text of Daniel Nanos v. State of Indiana (Daniel Nanos v. State of Indiana) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Daniel Nanos v. State of Indiana, (Ind. Ct. App. 2012).

Opinion

FILED Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing Oct 18 2012, 8:35 am the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court

APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:

DANIEL NANOS GREGORY F. ZOELLER New Castle, Indiana Attorney General of Indiana

GARY R. ROM Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA DANIEL NANOS, ) ) Appellant-Defendant, ) ) vs. ) No. 49A05-1205-CR-238 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Mark D. Stoner, Judge Cause No. 49G06-0610-FB-199119

October 18, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge Case Summary

Daniel Nanos appeals the trial court’s denial of his motion for jail time credit. We

reverse and remand.

Issue

The sole restated issue is whether the trial court erred in denying Nanos’s motion

for six days of additional pre-sentencing jail time credit.

Facts

On October 5, 2006, a Greenwood Police Department officer went to a CVS store

in Greenwood, where Nanos worked, to investigate a child pornography complaint. One

of Nanos’s co-workers had found a camera belonging to him and discovered that it

contained photographs of young, nude females. Nanos apparently had not taken the

pictures himself, but had downloaded them from the internet and placed them on the

camera. On October 10, 2006, officers of the Greenwood Police Department and Marion

County Sheriff’s Department executed a search warrant at Nanos’s residence in

Indianapolis. A detective discovered more child pornography images on a computer in

the residence, as well as other photographs of children under eighteen years old that

Nanos apparently had copied from the CVS photo lab.

Nanos then admitted to officers that he kept additional computer media containing

child pornography in a storage shed in Indianapolis, and he consented to a search of the

shed. In the shed, officers discovered, among other items, a CD that contained over

5,000 child pornography images. Additionally, officers found precursors for

2 manufacturing methamphetamine in the shed, and Nanos admitted that he had

manufactured the drug.

On October 11, 2006, Nanos was arrested in Johnson County for at least one count

of Class C felony child exploitation and was subsequently housed at the Johnson County

Jail.1 On October 16, 2006, the Marion County Prosecutor’s Office charged Nanos with

seventeen counts of Class C felony child exploitation, eighty-three counts of Class D

felony possession of child pornography, and one count of Class B felony manufacturing

methamphetamine. On October 17, 2006, Nanos was transferred from the Johnson

County Jail to the Marion County Jail.

Nanos agreed to plead guilty to one count of Class B felony manufacturing

methamphetamine, four counts of Class C felony child exploitation, and two counts of

Class D felony possession of child pornography. The presentence report prepared for

Nanos’s sentencing stated, in part, that the Johnson County Prosecutor’s Office had

declined to prosecute Nanos “due to most of the offenses occurring in Marion County and

they were advised that Marion County would be filing charges against Mr. Nanos.” App.

p. 12. On August 1, 2007, the trial court sentenced Nanos to a term of fifteen years on

the methamphetamine charge, with five years suspended. Nanos also was sentenced to

terms of eight years for each child exploitation conviction and three years for each child

1 The State faults Nanos for failing to provide more documentary evidence regarding the Johnson County charges. However, it does appear that Nanos, who is incarcerated and appearing pro se, has been diligent in attempting to obtain records related to the Johnson County charges. There is no doubt that Nanos was charged with at least one count of Class C felony child exploitation in Johnson County, although Nanos recalls that he was charged with seventeen counts of that offense. 3 pornography conviction, with all sentences to be served concurrently. The trial court also

granted Nanos 289 days of presentencing jail time credit, representing the period between

October 17, 2006 and August 1, 2007, but not the period between October 11-16, 2006.

On April 11, 2012, Nanos filed a motion for jail time credit, alleging he was

entitled to an extra six days of credit for the time when he was held at the Johnson

County Jail. On April 16, 2012, the trial court denied Nanos’s motion for the stated

reason that “a defendant only receives credit for the days he spends incarcerated under a

specific cause number.” Id. at 15. Nanos now appeals.

Analysis

Under Indiana Code Section 35-50-6-3, a defendant earns credit time for each day

he or she is confined while awaiting trial or sentencing. A defendant who believes he or

she has erroneously been denied pre-sentencing credit time may seek review of the

alleged error at any time. Weaver v. State, 725 N.E.2d 945, 947-48 (Ind. Ct. App. 2000).2

Trial courts generally lack discretion to deny pre-sentencing jail time credit because it is a

matter of statutory right. James v. State, 872 N.E.2d 669, 671 (Ind. Ct. App. 2007). To

the extent a sentencing decision is not mandated by statute, we will reverse a trial court’s

decision only for an abuse of discretion. Id. An abuse of discretion will be found if the

trial court’s decision is against the logic and effect of the facts and circumstances before

it. Felder v. State, 870 N.E.2d 554, 560 (Ind. Ct. App. 2007). Additionally, a ruling

2 The State makes no argument that Nanos chose an improper vehicle to raise this issue, pursuant to Robinson v. State, 805 N.E.2d 783 (Ind. 2004). 4 based on an error of law or not supported by the evidence constitutes an abuse of

discretion. Pruitt v. State, 834 N.E.2d 90, 104 (Ind. 2005), cert. denied.

The trial court expressly stated that Nanos was not entitled in Marion County to

any pre-sentencing jail time credit for the time he spent in the Johnson County Jail

because “a defendant only receives credit for the days he spends incarcerated under a

specific cause number.” Id. at 15. This is an incorrect statement of the law. Generally,

to be entitled to pre-sentencing jail time credit, there must be (1) pre-sentencing

confinement that (2) was the result of the criminal charge for which sentence is being

imposed. Payne v. State, 838 N.E.2d 503, 510 (Ind. Ct. App. 2005), trans. denied. And,

it is true that a defendant “is not entitled to credit for time served ‘on wholly unrelated

offenses.’” James, 872 N.E.2d at 672 (quoting Dolan v. State, 420 N.E.2d 1364, 1373

(Ind. Ct. App. 1981)). However, the mere fact that pre-sentencing time has been served

under different cause numbers does not necessarily mean that the different charges are

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Related

Pruitt v. State
834 N.E.2d 90 (Indiana Supreme Court, 2005)
Robinson v. State
805 N.E.2d 783 (Indiana Supreme Court, 2004)
Weaver v. State
725 N.E.2d 945 (Indiana Court of Appeals, 2000)
Brown v. State
907 N.E.2d 591 (Indiana Court of Appeals, 2009)
Payne v. State
838 N.E.2d 503 (Indiana Court of Appeals, 2005)
James v. State
872 N.E.2d 669 (Indiana Court of Appeals, 2007)
Felder v. State
870 N.E.2d 554 (Indiana Court of Appeals, 2007)
Dolan v. State
420 N.E.2d 1364 (Indiana Court of Appeals, 1981)

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