Donald C. Newlin v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: February 27, 2012
• Docket: 32A01-1109-CR-444
• Status: Unpublished

Opinion

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 the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

PAULA M. SAUER GREGORY F. ZOELLER Danville, Indiana Attorney General of Indiana

AARON J. SPOLARICH Deputy Attorney General

FILED Indianapolis, Indiana

Feb 27 2012, 9:26 am IN THE COURT OF APPEALS OF INDIANA CLERK of the supreme court, court of appeals and tax court

DONALD C. NEWLIN, ) ) Appellant-Defendant, ) ) vs. ) No. 32A01-1109-CR-444 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE HENDRICKS SUPERIOR COURT The Honorable Mark A. Smith, Judge Cause No. 32D04-1006-FC-13

February 27, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge Case Summary

Donald C. Newlin appeals the trial court’s failure to award him credit for time he

served in Putnam County while his probation revocation in this case was pending.

Because the record shows that Newlin was on probation in Putnam County when he

committed the underlying offense in this case, consecutive sentences were required.

Although the trial court did not originally order consecutive sentences, Newlin conceded

that the court should have done so, and the court in effect corrected its earlier illegal

sentence. Accordingly, the court properly found that because Newlin’s probation

revocation sentences were required to be served consecutively, he was not entitled to

credit for the time he served in Putnam County. Also, the trial court did not abuse its

discretion in ordering Newlin to serve the entirety of his previously-suspended sentence.

We therefore affirm the trial court.

Facts and Procedural History

On June 14, 2010, in Hendricks County, Indiana, Newlin stabbed his friend in the

back with a fork and then bit his arm. At his initial hearing the following day, Newlin

said he was not on probation or parole. Tr. p. 9. On September 1, 2010, Newlin pled

guilty to Class D felony criminal recklessness (deadly weapon). This time, however,

Newlin acknowledged that he was on probation in Putnam County when he committed

criminal recklessness. Id. at 30. The trial court warned Newlin that as a result of his

criminal recklessness conviction, Putnam County could revoke his probation and order

him to serve the suspended portion of his sentence. Id. The court sentenced Newlin to

385 days in the Department of Correction, all suspended to probation. Neither the plea

2 agreement nor the court’s sentencing order called for Newlin’s criminal recklessness

sentence to be served consecutive to his Putnam County sentence.1 Appellant’s App. p.

31-33.

On December 22, 2010 – while still on probation in Hendricks and Putnam

counties – Newlin tested positive for oxycodone, marijuana, and methamphetamine.

Newlin told his Hendricks County probation officer that he was planning to enter

Salvation Army’s Harbor Light in-patient substance-abuse treatment program the

following week. Newlin’s probation officer called Harbor Light the following week and

learned that Newlin “was not in their program and did not have an appointment to come

to their detox program or any other program at this agency.” Id. at 36.

Based on these facts, the Hendricks County probation department filed a notice of

probation violation on December 29, 2010. The notice alleged that Newlin tested

positive for three drugs and did not enter the substance-abuse treatment program as

directed. Newlin’s probation revocation petition was before the same trial judge as the

underlying offense.

At a bond reduction hearing in March 2011, Newlin admitted having, among

numerous other convictions, a 2008 conviction in Putnam County for operating while

intoxicated. Tr. p. 53. No other Putnam County conviction was referenced when

discussing Newlin’s extensive criminal history.

On April 26, 2011, Newlin admitted to violating his probation in Hendricks

County. The trial court took his sentence under advisement. See id. p. 64 (“[T]his is a

1 To the extent that Newlin argues that the trial court did not advise him that his Hendricks County sentence could be served consecutive to his Putnam County sentence, Newlin is correct that the proper procedure is to challenge the voluntariness of his plea agreement on post-conviction review. 3 qua[s]i opportunity or it’s an opportunity for you to get yourself clean. If you are

motivated to do it, I will send you to Harbor Light, you can do it, you screw it up, you are

going to go to prison.”). The court kept Newlin in jail pending his transfer to Harbor

Light once a bed opened up so that he could complete a fourteen-day residential program.

Id.; see also Appellant’s App. p. 47. The court set the matter for a review hearing on

May 24.

Newlin, however, was never transported to Harbor Light because Putnam County

put a hold on him for violating his probation. Tr. p. 68. As a result of the hold, Newlin

was not present at the May 24, 2011, review hearing because he was serving a 200-day

sentence in Putnam County. Id. at 66. The trial court reset the matter to June 28 and

noted, “It doesn’t make sense to send him on to Harbor Light at this point. He’s got 200

days there to serve and he won’t be out until sometime in August.” Id. When defense

counsel asked if the court was going to leave Newlin’s substance-abuse problem

untreated, the court responded:

Well, I mean, the order was to send him to Harbor Light right away so that he could detox and do what he needed to do, but, he’s got a place to stay the next 90 days, that is the Putnam County Jail.

Id. The court reiterated that it had not imposed a sentence yet; rather, “the only thing I’ve

done at this point is vacated the Harbor Light order.” Id. at 67.

Newlin was present in court on June 28, 2011. At this time, Newlin had been in

the Putnam County Jail for sixty-three days and was set to be released on August 4 at

midnight. Id. at 70. When asked why he was in Putnam County, Newlin responded,

“operating with a BAC of .15.” Id. Despite this turn of events, Newlin still requested to

4 be sent to Harbor Light for violating his Hendricks County probation. Newlin also

requested credit for the sixty-three days he had been in Putnam County. The State argued

that Newlin was not entitled to the credit. Newlin confirmed with the trial court that he

was on probation in Putnam County when he committed criminal recklessness in

Hendricks County and that he was currently “locked up” for “the OWI out of Putnam

County” because of the “dirty” drug screen in Hendricks County. Id. at 74. When the

court asked Newlin if his Hendricks County sentence should have been consecutive to his

Putnam County sentence from “the get go,” Newlin responded yes. Id. at 75. The trial

court reset the matter until Newlin was released from Putnam County.

Newlin was released from Putnam County on July 31, 2011, and was immediately

returned to custody in Hendricks County. Id. at 82. The trial court held the final

sentencing hearing on August 23. At the time, Newlin had served a total of 179 days,

with 76 days in Putnam County and 103 days in Hendricks County. The trial court

observed that Newlin had one of the highest risk assessments it had ever seen as a result

of his prior convictions and alcohol/drug abuse. Id. at 92. The court also observed that

Newlin violated his probation after only ninety days. As for whether Newlin was entitled

to credit for the seventy-six days he served in Putnam County, the trial court said, “You

can’t get dual credit. If you’ve got 76 days on Putnam County, you can’t get it here. . . .

You were on probation for an offense at the time that you committed this offense.

Therefore, any sentence on this case has to be consecutive . . . .” Id. at 93. The court

sentenced Newlin to his previously-suspended sentence of 385 days in the DOC and

awarded him credit of 103 days for time served, plus 103 days of good-time credit.

5 Newlin now appeals.

Discussion and Decision

Newlin raises two issues on appeal. First, he contends that the trial court erred in

failing to award him credit for the seventy-six days he served in Putnam County. Second,

Newlin contends that the trial court erred in ordering him to serve all 385 days of his

previously-suspended sentence in the DOC.

I. Credit Time

Newlin contends that the trial court erred in failing to award him credit for the

seventy-six days he served in Putnam County. Presentence 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). Indiana inmates imprisoned awaiting trial or sentencing earn Class

I jail-time credit or “one (1) day of credit time for each day [the defendant] is imprisoned

for a crime or confined awaiting trial or sentencing.” Ind. Code § 35-50-6-3(a).

Determination of a defendant’s pretrial credit is dependent upon (1) pretrial confinement

and (2) the pretrial 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), trans. denied.

When multiple unrelated charges are involved, jail-time credit operates differently

depending on whether the sentences are consecutive or concurrent. Corn v. State, 659

N.E.2d 554, 558 (Ind. 1995); Hall, 944 N.E.2d at 542. In concurrent sentencing cases,

Indiana Code section 35-50-6-3 entitles the defendant to receive credit time applied

against each separate term; however, in consecutive sentencing cases, pretrial credit is

6 awarded against the total or aggregate of the sentence terms. Stephens v. State, 735

N.E.2d 278, 284 (Ind. Ct. App. 2000), trans. denied.

A trial court cannot order consecutive sentences absent express statutory authority.

Weaver v. State, 664 N.E.2d 1169, 1170 (Ind. 1996). Indiana Code section 35-50-1-2(d)

provides that if after being arrested for one crime, a person commits another crime:

(1) before the date the person is discharged from probation, parole, or a term of imprisonment imposed for the first crime; or (2) while the person is released: (A) upon the person’s own recognizance; or (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).

Newlin first argues that the evidence does not show “that the Putnam County

probation revocation was for the same offense Newlin was on probation when he

committed the Hendricks County offense.” Appellant’s Br. p. 8. More specifically,

Newlin argues that “because there were no cause numbers before the court, there is no

way to determine definitively that the offense for which Newlin was on probation at the

time he committed the offense in Hendricks County was the same offense for which he

was serving a sentence on a probation revocation months later.” Id.

Even though the Putnam County cause numbers were never referenced, it is

apparent from the record that Newlin served seventy-six days for violating his probation

in the Putnam County OWI case and that Newlin was on probation for that same OWI

when he committed criminal recklessness in Hendricks County. The record references

only one Putnam County conviction for Newlin, that is, an OWI from 2008. In addition,

7 Newlin admitted at his guilty plea hearing to being on probation in Putnam County when

he committed criminal recklessness in Hendricks County. Later at a review hearing

Newlin confirmed that he was currently “locked up” for the OWI from Putnam County

because he violated that probation by having the “dirty” drug screen in Hendricks

County. Tr. p. 74. Newlin also conceded that the trial court should have originally

ordered his Hendricks County criminal recklessness sentence to run consecutive to his

Putnam County OWI sentence. Therefore, even though the trial court did not have the

Putnam County cause numbers before it, the above timeline and Newlin’s concession

show that Newlin served the seventy-six-day probation revocation sentence in Putnam

County for the same offense that he was on probation for when he committed criminal

recklessness in Hendricks County.

Newlin next argues that even if the offenses were the same and the Hendricks

County trial court should have originally ordered consecutive sentences, Appellant’s

Reply Br. p. 3, the court had no “authority” at this late stage of the proceedings to

determine that the original Hendricks and Putnam County sentences should have been

served consecutively. Appellant’s Br. p. 11; see also id. at 9-10 (“There is simply no

statute or rule that allows a trial court the discretion to essentially go back in time and

modify a person’s sentence.”).

We, however, find that such authority exists. While a trial court typically has no

authority over a defendant after he pronounces sentence, any continuing jurisdiction must

derive from either the judgment itself or statute/rule, and the court is bound by any plea

agreement it accepts, it is also the “general, if not unanimous, rule that a trial court has

8 the power to vacate an illegal sentence and impose a proper one,” even if doing so results

in an increased sentence after the erroneous sentence has been partially executed and

regardless of whether the sentencing error occurred following a trial or guilty plea. Ennis

v. State, 806 N.E.2d 804, 809 (Ind. Ct. App. 2004) (quotation omitted). Indeed, Indiana

Code section 35-38-1-5 provides a mechanism to correct erroneous or illegal sentences.

See Hardley v. State, 905 N.E.2d 399, 401-03 (Ind. 2009) (addressing similar situation

where the trial court should have originally ordered consecutive sentences because the

defendant was on recognizance when he committed the new offense and holding that the

State can challenge an illegal sentence for the first time on appeal: “Considering the clear

unacceptability of sentences that plainly exceed or otherwise violate statutory authority

and the fact that the legislature has authorized the State to challenge erroneous sentences,

we hold that sound policy and judicial economy favor permitting the State to present

claims of illegal sentence on appeal when the issue is a pure question of law that does not

require resort to any evidence outside the appellate record.”). Accordingly, based on the

evidence before it and Newlin’s concession that his original sentences should have been

consecutive, the trial court properly corrected Newlin’s erroneous Hendricks County

sentence by ordering it to be served consecutive to his Putnam County sentence. See Ind.

Code § 35-50-1-2(d) (explaining that if a person commits a crime while on probation,

“the terms of imprisonment for the crimes shall be served consecutively . . . .”). As a

result of this correction, the probation revocation sentences in the two counties must be

consecutive as well. See Tr. p. 77 (trial court explaining, “But, clearly, the time [in the

Hendricks County probation revocation case] has to be consecutive to what he is serving

9 [in the Putnam County probation revocation case].”). And because these sentences must

be consecutive, Newlin is not entitled to credit in Hendricks County for the seventy-six

days he served in Putnam County because he would be getting double credit. See Payne

v. State, 838 N.E.2d 503, 510 (Ind. Ct. App. 2005) (observing that we should avoid

construing the credit-time statutes as permitting a defendant to claim “double or extra

credit” for presentence confinement), trans. denied. Accordingly, the trial court did not

err in not awarding Newlin credit for the seventy-six days he served in Putnam County. 2

II. Probation-Violation Sentence

Newlin admitted violating his probation in Hendricks County and therefore does

not contest the revocation of this probation. Instead, he contends that the trial court erred

in ordering him to serve his entire suspended sentence in the DOC.

Once a trial court has exercised its grace by ordering probation rather than

incarceration, “the judge should have considerable leeway in deciding how to proceed.”

Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007). If this discretion were not given to

trial courts and sentences were scrutinized too severely on appeal, trial judges might be

less inclined to order probation. Id. Accordingly, a trial court’s sentencing decision for a

probation violation is reviewable using the abuse of discretion standard. Id. An abuse of

discretion occurs where the decision is clearly against the logic and effect of the facts and

circumstances. Id.

2 We acknowledge that Indiana Code section 35-38-1-15 requires that written notice be given to the convicted person before an erroneous sentence may be corrected. But given that a hearing was held at which Newlin admitted that the trial court should have originally ordered consecutive sentences and he does not complain that the lack of written notice prejudiced him in any way, we believe it would be an exercise in futility to remand this case to the trial court for written notice. 10 If a trial court finds that a person has violated his probation before termination of

the period, the court may order execution of all or part of the sentence that was suspended

at the time of initial sentencing. Ind. Code § 35-38-2-3(g). Here, we find that Newlin’s

criminal history and likelihood of reoffending sufficiently support the trial court’s

decision to order execution of all 385 days that were suspended at the time of his original

sentencing. When imposing Newlin’s probation-revocation sentence, the trial court

explained that Newlin had one of the highest risk assessment scores it had ever seen and

that Newlin was on probation for only “a little over 90 days” before violating it.3 Tr. p.

94. The court predicted that if it were to let him out of jail, “he’s going to come right

back in. There is no question in my mind.” Id. The record shows that Newlin has

convictions in numerous counties for OWI (1993), battery resulting in bodily injury

(1994), possession of marijuana (2004), domestic battery and disorderly conduct (2004),

public intoxication (2008), OWI (2008), and two different public intoxication convictions

(2009). The record also shows that Newlin has a “very long” history of alcohol and drug

abuse but failed to seek treatment while on probation before. Id. at 86, 89. In fact,

Newlin tested positive for various drugs after approximately ninety days of probation in

this case. Newlin’s probation officer expressed concern that if he continued to drink, the

community was at risk because of his “serious history of violence against people.” Id. at

3 Newlin points out that the trial court said that by pleading guilty to Class D felony criminal recklessness, he received a benefit because the State initially charged him with a Class C felony. Even assuming the court relied on this in reaching its decision, which is questionable, we find that Newlin’s criminal history and likelihood of reoffending more than justify his 385-day probation revocation sentence. Because of this, the case that Newlin relies on, Puckett v. State, 956 N.E.2d 1182 (Ind. Ct. App. 2011), is distinguishable. In Puckett, this Court found that numerous errors by the trial court did not support the trial court’s order that Puckett serve all of his previously-suspended sentence. Id. at 1188. 11 87. The trial court did not abuse its discretion in sentencing Newlin to all 385 days of his

previously-suspended sentence.

Newlin also argues that instead of sending him to the DOC, the trial court should

have placed him in a residential treatment facility, like the court originally planned to do.

The trial court, however, found that the reason for placing Newlin in Harbor Light in the

first place had dissipated. That is, the court originally planned to send Newlin to Harbor

Light for fourteen days so that he could detox. This plan was interrupted when Putnam

County put a hold on Newlin for violating his probation there. Newlin ended up

spending 179 days in custody, during which time Newlin, by his own admission,

“definitely detoxed.” Id. at 85. Because the reason for sending Newlin to Harbor Light

was no longer valid, the trial court did not abuse its discretion in sending Newlin to the

DOC. See id. at 77 (trial court stating, “I’m not just going to enter an order sending him

to Harbor Light[] and then terminating. I mean . . . there is no monitoring there, if he

wants to go to Harbor Light[] under that capacity he can go on his own and do it on his

own.”). We therefore affirm the trial court.

Affirmed.

ROBB, C.J., and NAJAM, J., concur.