Joseph Brett Mayer v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: September 12, 2014
• Docket: 03A04-1401-CR-44
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Sep 12 2014, 10:15 am 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:

CHRISTOPHER L. CLERC GREGORY F. ZOELLER Columbus, Indiana Attorney General of Indiana

JESSE R. DRUM Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

JOSEPH BRETT MAYER, ) ) Appellant-Defendant, ) ) vs. ) No. 03A04-1401-CR-44 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT The Honorable Stephen R. Heimann, Judge Cause No. 03C01-1309-FD-4794 Cause No. 03C01-1110-FC-5539

September 12, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge Case Summary

Joseph Brett Mayer (“Mayer”) was convicted of Operating a Vehicle While

Intoxicated (“OWI”), as a Class D felony.1 He appeals the trial court’s calculation of

presentence credit time. We affirm.

Issue

Mayer presents one issue for review: whether the trial court erred in awarding him two

days credit time for the period he was confined prior to sentencing.

Facts and Procedural History

On April 16, 2012, Mayer was convicted of Sexual Misconduct with a Minor, as a

Class D felony (“FC-5539”). Mayer was sentenced to 260 days imprisonment in the

Bartholomew County Jail (“BCJ”), followed by an eighteen-month commitment to the

Department of Correction (“DOC”), which was suspended to probation.

While on probation, Mayer was arrested for OWI on August 15, 2013. On August 16,

2013, the State filed a 2nd Verified Petition to Revoke Probation (the “Petition to Revoke”) in

FC-5539, citing Mayer’s OWI arrest and his failure to report for a scheduled probation

appointment on August 7, 2013. (Appellant’s App’x at 14-15.) On August 20, 2013, the

court issued a warrant in FC-5539 and set bond at $50,000. The warrant was served on

August 20, 2013. Unable to make bond, Mayer remained incarcerated on the warrant in FC-

5539 until January 9, 2014.

1 Ind. Code §§ 9-30-5-2(a) & 9-30-5-3 (2013).

2 While incarcerated, Mayer, on September 3, 2013, was charged with one count OWI,

as a Class D felony (“Count I”), and one count Operating a Vehicle with an ACE of .08 or

More, as a Class C misdemeanor (“Count II”). The trial court did not set any additional bond

on the new charges.

As part of a plea agreement, Mayer pleaded guilty to Count I. In exchange, the State

dismissed Count II and the Petition to Revoke in FC-5539. On January 9, 2014, the court

sentenced Mayer to three years commitment to the DOC. The court awarded Mayer “two (2)

actual days credit (8/15/13 to 8/16/13) toward the sentence of imprisonment for time spent in

confinement as a result of this charge.” (Appellant’s App’x at 32.)

Mayer now appeals the trial court’s calculation of two days credit time.

Discussion and Decision

Because pre-sentence jail time credit is a matter of statutory right, trial courts

generally do not have discretion in awarding or denying credit time. James v. State, 872

N.E.2d 669, 671 (Ind. Ct. App. 2007) (citing Molden v. State, 750 N.E.2d 448, 449 (Ind. Ct.

App. 2001)). However, sentencing decisions not mandated by statute are within the

discretion of the trial court and will be reversed only upon a showing of abuse of that

discretion. Id.

A person “imprisoned for a crime or imprisoned awaiting trial or sentencing is initially

assigned to Class I,” and based on that classification, “earns one (1) day of credit time for

each day the person is imprisoned for a crime or confined awaiting trial or sentencing.” I.C.

§§ 35-50-6-3 & 35-50-6-4 (2013). “Confined awaiting trial or sentencing” has been

3 interpreted to mean confined as a result of the charge for which the defendant is being

sentenced. Diedrich v. State, 744 N.E.2d 1004, 1005 (Ind. Ct. App. 2001). That is, “[c]redit

time allowed by legislative grace toward a specific sentence clearly must be for time served

for the offense for which that specific sentence was imposed.” Dewees v. State, 444 N.E.2d

332, 334 (Ind. Ct. App. 1983). Our case law is clear: a defendant is not entitled to credit for

time served “on wholly unrelated offenses.” James, 872 N.E.2d at 672 (quoting Dolan v.

State, 420 N.E.2d 1364, 1373 (Ind. Ct. App. 1981)).

In this case, Mayer is entitled by statute to one day of credit time for each day he was

confined awaiting sentencing for OWI. The trial court awarded Mayer two days credit for

August 15 and 16, 2013, the time he was held in the BCJ after his arrest for OWI, but before

the Petition to Revoke was filed. Thereafter, Mayer remained incarcerated, not for the OWI,

but for his inability to make bond on the probation revocation charge. This is clear from the

record wherein Mayer’s counsel filed a petition for bond reduction, and the trial court “had a

hearing and found that [Mayer] was not being held on [this] case because there never was a

bond set in it.” (Tr. at 7.) And, at Mayer’s sentencing hearing, the trial court reiterated that

Mayer “wasn’t being held on the [OWI].” (Tr. at 8.)

Additionally, while acknowledging that “[a]fter a 48-hour hold, Mayer was held on a

Warrant for a Probation violation,” he nevertheless contends that, because his arrest for OWI

was one of the violations listed on the Petition to Revoke, “[t]he cause for which [he] was

convicted and the cause under which [he] was detained are not wholly unrelated.”

4 (Appellant’s Br. at 4, 5.) He argues that he should receive credit in this case for all time

served from August 15, 2013, until his January 9, 2014, sentencing date.

Although Mayer allegedly violated his probation in part by driving while intoxicated,

the alleged probation violation in FC-5539 and the OWI are wholly unrelated offenses. See,

e.g., I.C. § 35-38-2-3(h) (sanctions for probation violations); I.C. § 9-30-5-3 (OWI, as a

Class D felony); Bischoff v. State, 704 N.E.2d 129, 130-31 (Ind. Ct. App. 1998) (treating as

wholly unrelated offenses the defendant’s convictions for (a) violating probation in an OWI

case by carrying an unlicensed handgun and (b) Carrying a Handgun without a License),

trans. denied. Because they are wholly unrelated, Mayer is not entitled to any credit in this

case for time accrued in FC-5539, even though the probation revocation charge was

ultimately dismissed as part of the plea agreement.

Conclusion

Mayer has not shown that—other than on August 15 and 16, 2013—he was detained

in this case. Accordingly, the trial court did not err in awarding Mayer two days credit time.

Affirmed.

NAJAM, J., and PYLE, J., concur.