Jeffery A. Sarver v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 30, 2016
• Docket: 34A02-1601-CR-47
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 30 2016, 6:06 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E.C. Leicht Gregory F. Zoeller Kokomo, Indiana Attorney General of Indiana

Paula J. Beller Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jeffery A. Sarver, June 30, 2016 Appellant-Defendant, Court of Appeals Case No. 34A02-1601-CR-47 v. Appeal from the Howard Superior Court State of Indiana, The Honorable William C. Appellee-Plaintiff. Menges, Judge Trial Court Cause No. 34D01-0609-FA-762

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 34A02-1601-CR-47 | June 30, 2016 Page 1 of 4 [1] Jeffery A. Sarver appeals following the revocation of his probation. He claims

the trial court abused its discretion by ordering the sentence to be served

consecutively to a sentence imposed in another cause for a crime committed

while on probation in the instant case. Sarver also asserts that the abstract of

judgment contains an error regarding credit time.

[2] We affirm.

Facts & Procedural History

[3] On December 19, 2007, pursuant to a plea agreement, Sarver pled guilty to

Class B felony aiding, inducing, or causing dealing in cocaine, which was

reduced from a Class A felony. In exchange for the plea, the State also

dismissed a habitual offender enhancement. The trial court sentenced Sarver in

accordance with the plea agreement to fifteen years in the Department of

Correction (the DOC) with ten years executed and five years suspended to

supervised probation.

[4] Sarver was released from the DOC in March 2011. On April 9, 2015, the State

filed a petition to revoke alleging that Sarver had: (1) failed to report to

probation on or after August 6, 2013; (2) failed to notify his probation officer

regarding new criminal charges that resulted in a conviction in October 2013 for

class A misdemeanor operating a vehicle while intoxicated (OWI) endangering

a person, under cause number 27D03-1307-CM-106; and (3) failed to notify his

probation officer that new criminal charges had been filed against him in

December 2014 for Level 6 felony possession of cocaine, Level 6 felony OWI

Court of Appeals of Indiana | Memorandum Decision 34A02-1601-CR-47 | June 30, 2016 Page 2 of 4 with an ACE of .08 or more, and Level 6 felony obstruction of justice, under

cause number 34D01-1412-F6-945 (F6-945). Sarver subsequently admitted the

allegations contained in the petition. On August 12, 2015, the trial court

ordered Sarver to execute 102 days of his previously suspended sentence, which

had been satisfied prior to the hearing, and extended his probation for a period

of 183 days. The court ordered that the sentence in this cause and the sentence

in F6-945 be served consecutively. Further, the court ordered as a condition of

probation, among others, that Sarver successfully complete the Re-Entry

Program offered by Howard County Community Corrections.

[5] On October 14, 2015, Sarver was terminated from the Re-Entry Program due to

repeated use of controlled substances. This led to the immediate filing of a

second petition to revoke, and Sarver’s admission that he had violated

probation. On December 23, 2015, the trial court revoked Sarver’s probation

and ordered him to serve the balance of his suspended sentence, 1723 days, in

the DOC. In its sentencing order, the court noted that Sarver had credit of “99

actual days or 198 credit days, day for day credit, served while awaiting

disposition in this matter.” Appendix at 211.

Discussion & Decision

[6] Sarver’s arguments on appeal are fleeting and without merit. He first

challenges the consecutive nature of this sentence to the sentence imposed in

F6-945. Aside from the fact that this was clearly required by Ind. Code § 35-50-

Court of Appeals of Indiana | Memorandum Decision 34A02-1601-CR-47 | June 30, 2016 Page 3 of 4 1-2(e),1 we observe that Sarver did not appeal the August 12, 2015 revocation

order that expressly made the sentences consecutive. Accordingly, he may not

now be heard to complain about this on appeal from the subsequently issued,

December 23, 2015 revocation order.

[7] Next, Sarver claims that the abstract of judgment entered on December 31,

2015, does not comply with the sentencing order with respect to credit time. As

set forth above, the trial court indicated in its sentencing order that Sarver had

credit time of “99 actual days or 198 credit days”. Appendix at 211. The

abstract of judgment indicates that he had accrued time of 99 days and good

time credit of 99, which in our calculation would total 198 days of credit time.

See Ind. Code § 35-50-6-0.5 (defining accrued time, credit time, and good time

credit). There is no discrepancy in this regard between the court’s order and the

abstract of judgment.

[8] Judgment affirmed.

[9] Bailey, J. and Bradford, J., concur.

1 The statute provides in pertinent part: “If, after being arrested for one (1) crime, a person commits another crime…before the date the person is discharged from probation… for the first crime…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.” Id. (emphasis supplied). Sarver was on probation in this matter when he was charged and convicted in F6-945.

Court of Appeals of Indiana | Memorandum Decision 34A02-1601-CR-47 | June 30, 2016 Page 4 of 4