Joe E. Mourey v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 24, 2016
• Docket: 73A04-1603-CR-599
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 24 2016, 9:50 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Amanda O. Blackketter Gregory F. Zoeller Blackketter Law, LLC Attorney General of Indiana Shelbyville, Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Joe E. Mourey, August 24, 2016 Appellant-Defendant, Court of Appeals Case No. 73A04-1603-CR-599 v. Appeal from the Shelby Superior Court State of Indiana, The Honorable Chris Monroe, Appellee-Plaintiff. Senior Judge Trial Court Cause No. 73D01-1405-FB-33

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 73A04-1603-CR-599 | August 24, 2016 Page 1 of 4 Statement of the Case [1] Joe Mourey (“Mourey”) appeals the trial court’s award of credit time for his

pre-sentence incarceration. The trial court awarded Mourey seventy-seven (77)

days of credit for pre-sentence incarceration but did not specify the award of an

additional seventy-seven (77) of good time credit.1 Mourey requests that he

receive credit for these additional days. However, pursuant to Robinson v. State,

805 N.E.2d 783, 789 (Ind. 2004), where the trial court’s order fails to specify the

additional good time credit, both courts and the Department of Correction

(“DOC”) understand that these days are automatically awarded. We therefore

find no error and affirm.

[2] We affirm.

Issue Whether the trial court erred in calculating Mourey’s credit time for his pre-sentence incarceration.

Facts [3] In May 2014, the State charged Mourey with six counts. Mourey pleaded

guilty to three counts, and the State dismissed the other charges. In June 2015,

the trial court sentenced Mourey for the three convictions. Because Mourey

1 There are two different “time credits” that a defendant may earn: (1) “credit for time served[,]” which is the “credit toward the sentence a prisoner receives for time actually served[;]” and (2) “good time credit[,]” which is the “additional credit a prisoner receives for good behavior and educational attainment.” Purcell v. State, 721 N.E.2d 220, 222 (Ind. 1999), reh’g denied.

Court of Appeals of Indiana | Memorandum Decision 73A04-1603-CR-599 | August 24, 2016 Page 2 of 4 and the State disputed Mourey’s credit time, the trial court held a hearing on

that issue after the sentencing hearing. Thereafter, the trial court awarded

Mourey seventy-seven (77) days of accrued credit time for pre-sentence

incarceration. The trial court’s order did not specify additional good time credit

days. However, the Abstract of Judgment states that Mourey was awarded

seventy-seven (77) days of accrued time credit as well as seventy-seven (77) days

of good time credit. Mourey appeals the trial court’s failure to include the

seventy-seven (77) days of good time credit in its sentencing order.

Decision [4] At the outset, we note that both parties agree that Mourey was entitled to

seventy-seven (77) days of accrued credit for time served. They also both agree

that Mourey is entitled to an additional seventy-seven (77) days of good time

credit.

[5] “Under the Indiana Penal Code, prisoners receive credit time that is applied to

reduce their term of imprisonment.” Robinson v. State, 805 N.E.2d 783, 789

(Ind. 2004). The time spent in confinement before sentencing applies toward a

prisoner’s fixed term of imprisonment. Id. The amount of additional credit or

good time credit is primarily determined by the prisoner’s credit time

classification. Id. INDIANA CODE § 35-38-3-2 provides that the judgment of

conviction must include the amount of credit, including credit time earned, for

time spent in confinement before sentencing. In addition, the Indiana Supreme

Court has interpreted INDIANA CODE § 35-38-3-2 “to require that a trial court’s

judgment of conviction separately include both the amount of time spent by the Court of Appeals of Indiana | Memorandum Decision 73A04-1603-CR-599 | August 24, 2016 Page 3 of 4 defendant prior to imposition of the sentence and also the amount of credit time

earned in accordance with the defendant’s credit time class.” Robinson at 789.

Sentencing judgments that report only days spent in pre-sentence confinement

and fail to expressly designate credit time earned shall be understood by courts

and by the DOC automatically to award the number of credit time days equal

to the number of presentence confinement days. Id, at 792.

[6] Here, Mourey “respectfully requests that he receive credit for the . . . additional

seventy-seven (77) days for good time credit” because the trial court’s order

included the seventy-seven (77) days of accrued credit time but did not

specifically include the additional seventy-seven (77) days of good time credit.

(Mourey’s Br. 5). However, pursuant to Robinson, both courts and the DOC

understand the good time credit days are automatically awarded under these

circumstances. The trial court did not err.2

[7] We affirm.

Bradford, J., and Altice, J., concur.

2 Mourey does not allege that DOC failed to give him the earned credit time. That would be a different issue. If that was the case, Mourey would have to demonstrate that he presented his argument through the relevant DOC administrative grievance process and that he exhausted his administrative remedies. See Young v. State, 888 N.E.2d 1253, 1254 (Ind. 2008).

Court of Appeals of Indiana | Memorandum Decision 73A04-1603-CR-599 | August 24, 2016 Page 4 of 4