Jordan Guess v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: July 24, 2012
• Docket: 84A01-1112-CR-620
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this

FILED Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing Jul 24 2012, 8:42 am the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court

APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:

JORDAN GUESS GREGORY F. ZOELLER Indianapolis Re-Entry Educational Facility Attorney General of Indiana Indianapolis, Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

JORDAN GUESS, ) ) Appellant-Defendant, ) ) vs. ) No. 84A01-1112-CR-620 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE VIGO SUPERIOR COURT The Honorable David R. Bolk, Judge Cause No. 84D03-0710-FB-3240

July 24, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge Case Summary

Jordan Guess, pro se, appeals the trial court’s denial of his motion for jail time credit.

The sole issue presented for our review is whether the trial court abused its discretion when it

denied his motion. Guess has submitted an inadequate record on appeal and consequently

has waived our review of his claim. Therefore, we affirm.

Facts and Procedural History

On July 10, 2007, Guess was charged in Clay County with class B felony burglary.

While incarcerated in the Clay County Jail on that charge, Vigo County authorities served

Guess with an arrest warrant and charged him with another class B felony burglary. On

March 24, 2008, Guess pled guilty to the Clay County burglary charge and was sentenced to

ten years for that conviction. 1 On November 6, 2008, Guess pled guilty to the Vigo County

charge. Pursuant to a plea agreement, Guess pled guilty to class B felony burglary and

agreed to a ten-year executed sentence. The plea agreement provided that the Vigo County

sentence would be served consecutively to the sentence imposed in Clay County.

Accordingly, on December 1, 2008, the trial court sentenced Guess pursuant to the plea

agreement. The trial court determined that Guess was not entitled to any jail time credit for

his Vigo County sentence. Guess did not appeal his sentence.

On January 4, 2011, Guess filed a pro se motion for jail time credit. That motion was

denied by the trial court on January 14, 2011. Thereafter, in November of 2011, Guess filed

1 This information was provided by Guess in his appellant’s brief. The State does not challenge this statement, and, although we will presume its accuracy, Guess has provided us no documentation in the record to confirm this information.

2 a petition for post-conviction relief again requesting jail time credit. On November 10, 2011,

the trial court summarily denied Guess’s petition for post-conviction relief, concluding that

post-conviction relief was not the proper avenue for Guess to pursue as he should have

sought direct appeal of the trial court’s original judgment. Guess filed a third request for jail

time credit on November 29, 2011. The trial court again denied Guess’s motion and

admonished Guess not to file repetitive motions seeking the exact same relief. Appellant’s

App. at 6, 32. This appeal ensued.

Discussion and Decision

Pre-sentence 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 inmate] is imprisoned for a crime or confined awaiting trial or

sentencing.” Ind. Code § 35-50-6-3(a). 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). In concurrent sentencing cases, Indiana Code Section 35-50-6-3 entitles the

individual to receive credit time applied against each separate term; however, in consecutive

sentencing cases, credit time is 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. This guards

against an award of “double credit” in situations where a defendant has arguably been

incarcerated at the same time on more than one offense if the sentences for multiple offenses

are to be served consecutively. French v. State, 754 N.E.2d 9, 17 (Ind. Ct. App. 2001).

3 Although Guess claims that, based upon his time served in the Clay County Jail, he is

entitled to 413 days of jail time credit toward his Vigo County sentence, we are unable to

consider his claim due to his failure to provide us with an adequate record on appeal. Pro se

litigants are held to the same standard as trained legal counsel and are required to follow

procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. It

is the appellant’s duty to provide a record that reflects the error alleged. Williams v. State,

690 N.E.2d 162, 176 (Ind. 1997). To the extent the record is inadequate, it results in waiver

of the issue. Id; see Thompson v. State, 761 N.E.2d 467, 471 (Ind. Ct. App. 2002) (failure to

present adequate record regarding credit for time served resulted in waiver of the issue on

appeal).

Other than his mere allegations, Guess has presented no information in the record to

support his claim. Our review of the limited record before us indicates that Guess received

mandatory consecutive sentences pursuant to his plea agreement. Sentencing Tr. at 13-14.

As noted by the trial court during sentencing, Guess was in the Clay County Jail when the

arrest warrant was served for the Vigo County burglary. Pursuant to his plea agreement on

the Vigo County conviction, his ten-year Vigo County sentence was to be served

consecutively to his Clay County sentence. We are unaware of whether Guess received

credit for his time in the Clay County Jail against his Clay County conviction. Awarding

Guess jail time credit against his Vigo County conviction in addition to his Clay County

conviction would improperly result in double credit for the same time served. Guess has

presented us with no information concerning his Clay County plea agreement and whether he

4 received the proper jail time credit when he was sentenced for his Clay County conviction.

Based upon the limited and inadequate record before us, there is no way for this Court to

discern whether Guess is entitled to any jail time credit. The issue is waived. Accordingly,

the judgment of the trial court is affirmed.

Affirmed.

VAIDIK, J., and BRADFORD, J., concur.