Dennis James Draper, III v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 24, 2017
• Docket: 64A03-1612-CR-2943
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 24 2017, 9:38 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James Harper Curtis T. Hill, Jr. Harper & Harper, LLC Attorney General of Indiana Valparaiso, Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dennis J. Draper, III, April 24, 2017 Appellant-Defendant, Court of Appeals Case No. 64A03-1612-CR-2943 v. Appeal from the Porter Superior Court State of Indiana, The Honorable Roger V. Bradford, Appellee-Plaintiff. Judge Trial Court Cause No. 64D01-0910-FB-10218

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017 Page 1 of 11 Case Summary [1] On October 6, 2009, Appellant-Defendant Dennis J. Draper, III was charged in

Porter County with one count of Class B felony burglary (“the Porter County

case”). At some point before the Porter County case was resolved, Draper was

charged with and convicted of an unrelated charge of burglary in Lake County.

Draper subsequently pled guilty in the Porter County case to a lesser charge of

Class C felony burglary.

[2] The instant appeal involves the amount of pre-trial credit time granted to

Draper by the trial court in connection to time spent incarcerated in relation to

the Porter County case prior to his guilty plea. Appellee-Plaintiff the State of

Indiana (“the State”) concedes that Draper is entitled to some additional credit

time, but argues that Draper is not entitled to the entire amount of additional

credit time requested. Concluding that, as the State concedes, Draper is entitled

to some of the additional requested credit time, we affirm in part, reverse in

part, and remand to the trial court with instructions.

Facts and Procedural History A. Facts Relating to the Porter County Case [3] On October 4, 2009, in Porter County, Draper knowingly or intentionally broke

and entered the dwelling of Alex Skomac with the intent to commit theft

therein. Two days later, on October 6, 2009, Draper was charged with one

count of Class B felony burglary in the Porter County case. Draper was held in

Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017 Page 2 of 11 relation to the Porter County case until he posted bond on October 30, 2009. A

bench warrant for Draper’s arrest was ordered in connection to the Porter

County case on February 1, 2010. Draper was arrested in connection to this

warrant on March 5, 2010, and was held in relation to the Porter County case

until he posted bond on April 5, 2010.

B. Facts Relating to the Lake County Case [4] On May 22, 2010, Draper was arrested in connection to and charged under

Lake County Cause 45G04-1005-FB-48 (“the Lake County case”) with Class B

felony burglary. Draper subsequently pled guilty in the Lake County case and

was sentenced to a term of seven years.

C. Facts Relating to the Contested Periods of Pre-Trial Confinement [5] While Draper was in custody awaiting trial in the Lake County case, a second

bench warrant for Draper’s arrest was issued in the Porter County case on June

28, 2010 (“the June 28, 2010 bench warrant”).

[6] Draper was released from the Department of Correction (“DOC”) to parole in

connection to the Lake County case on July 9, 2013.

[7] On July 18, 2013, Draper was arrested in connection to the Porter County case.

He was released from incarceration after his previous bonds were reinstated by

the trial court on July 29, 2013.

Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017 Page 3 of 11 [8] On July 21, 2015, a third warrant for Draper’s arrest was issued in connection

to the Porter County case. Draper was arrested on this third warrant on July

30, 2015. Draper remained in custody until January 4, 2016, at which time he

pled guilty to Class C felony burglary. Draper was released on his prior bond

pending sentencing.

D. Facts Relating to Draper’s Sentence in the Porter County Case [9] On June 6, 2016, Draper failed to timely appear before the trial court in relation

to the Porter County case. He was subsequently taken into custody and held

without bond. On November 7, 2016, the trial court sentenced Draper in

connection to Porter County case to a term of four years in the DOC. In

sentencing Draper, the trial court found that Draper was entitled to 219 days of

credit for time spent incarcerated prior to sentencing.

[10] On November 22, 2016, Draper filed a pro se motion to correct error, in which

he claimed that the trial court had failed to award him certain pre-trial credit

time which he claimed that he was owed. The trial court denied Draper’s

motion on November 29, 2016. This appeal follows.

Discussion and Decision [11] On appeal, Draper challenges the trial court’s denial of certain requested pre-

trial credit time. A determination of the amount of credit time a defendant is

entitled to receive for time spent confined prior to trial is dependent upon the

Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017 Page 4 of 11 defendant’s (1) pre-trial confinement, and (2) the confinement being a result of

the criminal charge for which sentence is being imposed. Hall v. State, 944

N.E.2d 538, 542 (Ind. Ct. App. 2011) (citing Bischoff v. State, 704 N.E.2d 129,

130 (Ind.Ct.App.1998), trans. denied), trans. denied. “‘Pre-sentence jail time

credit is a matter of statutory right, not a matter of judicial discretion.’” Id.

(quoting Weaver v. State, 725 N.E.2d 945, 948 (Ind. Ct. App. 2000)).

[12] At the time that Draper committed the burglary at issue in the Porter County

case, a defendant who was imprisoned for a crime or confined awaiting trial or

sentencing was initially assigned to Class I and earned one day of credit time

for each day that he was confined. Ind. Code § 35-50-6-3(a); Hall, 944 N.E.2d

at 542.

When a defendant is incarcerated on multiple unrelated charges at the same time, a period of confinement may be the result of more than one offense. Diedrich v. State, 744 N.E.2d 1004, 1005 (Ind. Ct. App. 2001). If a person is incarcerated awaiting trial on more than one charge and is sentenced to concurrent terms for the separate crimes, he is entitled to credit time applied against each separate term. Stephens v. State, 735 N.E.2d 278, 284 (Ind. Ct. App. 2000), trans. denied. However, “[w]here a defendant is convicted of multiple offenses and sentenced to consecutive terms, the jail credit is applied against the aggregate sentence.” Shane v. State, 716 N.E.2d 391, 400 (Ind. 1999).

Hall, 944 N.E.2d at 542 (emphases added).

Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017 Page 5 of 11 A. The Period of Time that Elapsed Between June 28, 2010 and July 17, 2013 [13] Draper claims that the trial court erred in denying his request for pre-trial credit

time for the period between June 28, 2010 and July 17, 2013. In support of this

claim, Draper asserts that he should be considered to have been confined in the

Porter County case starting on June 28, 2010, the date on which a warrant was

issued for his arrest. However, we have previously concluded that a defendant

is not confined for purposes of determining accrued credit time merely because

a warrant has been issue for his arrest. Willoughby v. State, 626 N.E.2d 601, 602

(Ind. Ct. App. 1993); Dolan v. State, 420 N.E.2d 1364, 1373 (Ind. Ct. App.

1981). Rather the confinement period begins when the defendant is actually

arrested on the warrant. Willoughby, 626 N.E.2d at 602; Dolan, 420 N.E.2d at

1373.

[14] In Willoughby, the defendant challenged the amount of pre-trial credit time

awarded to him by the trial court. Specifically, the defendant argued “that the

trial court should have credited him with time served from May 19, 1992, the

date the notice of probation violation was filed in Marion County, until April

21, 1993, because he was in continuous custody.” Willoughby, 626 N.E.2d at

602. Review of the relevant facts demonstrated that although the notice of

probation was filed on May 19, 1992, the defendant was not arrested and

transferred to Marion County pursuant to the probation violation notice until

November 12, 1992. Upon review, we noted that

Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017 Page 6 of 11 The court in Dolan, under very similar facts, stated that Dolan “should be credited for the time he spent in confinement from the date of his arrest for the violation of probation (May 25, 1978) to the date of his sentencing for the violation of probation (December 28, 1978). Dolan spent that time under the arrest warrant for the violation of probation.” 420 N.E.2d at 1373.

Id. We concluded that following the logic set forth in Dolan, the defendant

should be credited from November 12, 1992, until April 21, 1993, the time he

was confined under the arrest warrant for the violation of probation.

[15] In the instant matter, it is undisputed that Draper was confined in relation to

the Lake County case starting on May 22, 2010. An arrest warrant was issued

in connection to the Porter County case on June 28, 2010. However, Draper

was not arrested on this warrant until July 18, 2013. As such, pursuant to our

prior conclusions in Willoughby and Dolan, the earliest date to which Draper

could possibly be entitled to pre-trial credit in the Porter County case was July

18, 2013.1

[16] Furthermore, Draper is not entitled to receive pre-trial credit in the Porter

County case for the time which he was incarcerated for the Lake County case

as his sentences in the two cases were required to be run consecutively. At the

1 Draper seems to argue that the time he spent incarcerated with relation to the Lake County case also applied to the Porter County case because a detainer was allegedly placed on him after the issuance of the June 28, 2010 warrant. However, although Draper filed petitions to lift detainer while he was serving his sentence in the Lake County case in March of 2012 and July of 2013, Draper’s petitions did not contain any documentation which proves that a detainer from the June 28, 2010 warrant was actually placed on him, let alone provides any indication as to when such a detainer was allegedly entered.

Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017 Page 7 of 11 time that Draper committed the burglary at issue in the Porter County case,

Indiana Code section 35-50-1-2(d)(2) provided that “[i]f, after being arrested for

one (1) crime, a person commits another crime … (2) while the person is

released … (B) on bond; the terms of imprisonment for the crimes shall be served

consecutively, regardless of the order in which the crimes are tried and sentences are

imposed.” (Emphasis added). As is mentioned above, the Indiana Supreme

Court has held that “when consecutive sentences are involved, credit time is

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

individual sentence.” State v. Lotaki, 4 N.E.3d 656, 657 (Ind. 2014); see also

Shane, 716 N.E.2d at 400 (providing the same). Stated differently, “where

consecutive sentences are required, credit time cannot be earned against each of

the underlying sentences.” Brown v. State, 907 N.E.2d 591, 595 (Ind. Ct. App.

2009).

[17] In Lotaki, the defendant was charged with battery of a prison employee while

incarcerated on an unrelated offense. 4 N.E.3d at 657. At sentencing for the

battery, the trial court awarded the defendant credit time for the time spent

incarcerated while awaiting trial. Id. However, the time that the defendant

spent time incarcerated awaiting trial on the battery charge was time he was

serving for the unrelated offense, and he received credit for that time against the

unrelated offense. Id. Upon review, the Indiana Supreme Court held that “[t]o

award credit for this time against the battery sentence rather than against the

aggregate of the consecutive sentences would result in more credit to which

Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017 Page 8 of 11 [defendant] was entitled and would effectively enable him to serve part of the

consecutive sentences concurrently.” Id.

[18] It is undisputed that Draper committed the offense at issue in the Lake County

case while out on bond in the Porter County case. As such, pursuant to Indiana

Code section 35-50-1-2(d)(2), his sentences in the two cases were statutorily

required to be served consecutively. Because the sentences imposed in these

cases must be served consecutively, any accrued credit time must be applied to

the aggregate sentence, not to each individual sentence. See id. The record

reveals that credit for the time period in question was applied to the aggregate

sentence as it was attributed to the Lake County case. Draper does not allege,

much less prove, that he did not receive credit for the period in question applied

in the Lake County case. As such, we conclude that Draper has received full

credit for the period between June 28, 2010 and July 9, 2013, the date on which

he was released from incarceration in the Lake County case. To award Draper

additional credit for this time period would result in more credit than Draper

was entitled to and would effectively enable him to serve part of the consecutive

sentences concurrently. See id.

Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017 Page 9 of 11 B. The Period of Time that Elapsed Between July 18, 2013 and July 28, 2013 [19] However, as the State points out, Draper is entitled to additional credit time for

the period between July 18, 2013 and July 28, 2013.2 The record reflects that

Draper was arrested in connection to the June 28, 2010 warrant on July 18,

2013. It is undisputed that this warrant was issued in relation to the Porter

County case. Draper was confined in relation to this warrant until July 29,

2013, when he was released on his prior bonds. As such, on remand, the trial

court should award Draper pre-trial credit for the days he spent incarcerated

during the period between July 18, 2013 and July 28, 2013.

C. The Period of Time that Elapsed Between July 31, 2015 and January 4, 2016 [20] Draper also claims that the trial court erred in denying his request for pre-trial

credit time for the period between July 31, 2015 and January 4, 2016. The State

agrees that Draper was entitled to receive credit time for this period. The State

concedes that Draper was arrested on July 30, 2015, as a result of a warrant

issued in the Porter County case and was subsequently held in custody until

January 4, 2016, when he pled guilty and was released on his prior bonds

pending sentencing. As such, the State further concedes that the matter should

2 It does not appear that Draper was incarcerated during the period between his release in the Lake County case on July 9, 2013 and his arrest in the Porter County case on July 18, 2013.

Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017 Page 10 of 11 be remanded to the trial court with instruction for the trial court to award

Draper credit for the period between July 31, 2015 and January 4, 2016.

Conclusion [21] Draper is not entitled to the requested credit time for the period between June

28, 2010 and July 9, 2013. However, Draper is entitled to the requested credit

time for the period between July 18, 2013 and July 28, 2013. He is also entitled

to the requested credit time for the period between July 31, 2015 and January 4,

2016. Accordingly, on remand, the trial court should revise its sentencing order

to reflect this additional pre-trial credit.

[22] The judgment of the trial court is affirmed in part, reversed in part, and

remanded with instructions.

Najam, J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017 Page 11 of 11