Fabian Roman Rubio v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 17, 2017
• Docket: 50A05-1608-CR-1836
• 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 Jan 17 2017, 7:06 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Alexander L. Hoover Curtis T. Hill, Jr. Law Office of Attorney General of Indiana Christopher G. Walter, P.C. Justin F. Roebel Nappanee, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Fabian Roman Rubio, January 17, 2017 Appellant-Petitioner, Court of Appeals Case No. 50A05-1608-CR-1836 v. Appeal from the Marshall Superior Court State of Indiana, The Honorable Robert O. Bowen, Appellee-Respondent Judge Trial Court Cause No. 50D01-1505-MR-3

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 50A05-1608-CR-1836 | January 17, 2017 Page 1 of 3 [1] Fabian Rubio appeals the sentence imposed by the trial court after Rubio

pleaded guilty to murder, arguing that the trial court improperly calculated jail

time credit owed to Rubio. The State concedes that an error was made. We

agree, and remand for resentencing.

[2] On June 15, 2016, Rubio pleaded guilty to murder. At the time of sentencing,

he was already serving a sentence under a separate cause for class C felony

sexual misconduct with a minor. On July 14, 2016, the trial court sentenced

Rubio to sixty-five years imprisonment for murder. It ordered the murder

sentence to be served concurrently with the sexual misconduct sentence:

I’m going to order that this sentence on murder run concurrent with the sentence that you are currently serving. However, the sentence for murder starts today. You’re not going to receive any credit for time already served on the—on the sexual misconduct so the concurrency starts today but no credit for that period of time, so you’re running concurrent for approximately, I believe, it’s approximately two (2) years.

Tr. Vol. II p. 57 (emphasis added).

[3] The State concedes that “[t]he trial court lacked statutory authority to order

Defendant’s sentence concurrent with his sentence under [the sexual

misconduct cause] without also awarding jail time credit in both causes. While

it appears the trial court was attempting to impose partially concurrent

sentences, our Supreme Court has determined that practice is not permitted by

statute.” Appellee’s Br. p. 5-6. Evidently, the trial court attempted to order a

“partially concurrent or hybrid sentence by not awarding jail credit time and

Court of Appeals of Indiana | Memorandum Decision 50A05-1608-CR-1836 | January 17, 2017 Page 2 of 3 instead stating ‘the concurrency starts today,’” id. at 8 (quoting Tr. Vol. II p.

57), but our Supreme Court has explicitly held that such “partially consecutive,

hybrid, or blended sentences for multiple convictions” are not authorized by

statute. Wilson v. State, 5 N.E.3d 759, 764 (Ind. 2014). Consequently, we agree

with Rubio and the State that this sentence was improper and hereby remand to

the trial court for resentencing.

[4] The judgment of the trial court is remanded for entry of a new sentencing order.

Mathias, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 50A05-1608-CR-1836 | January 17, 2017 Page 3 of 3