Levi Davis v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 22, 2017
• Docket: 34A02-1708-CR-1786
• 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 Dec 22 2017, 6:43 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 Donald E.C. Leicht Curtis T. Hill, Jr. Deputy Public Defender Attorney General Kokomo, Indiana Henry A. Flores, Jr. Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Levi Davis, December 22, 2017 Appellant-Defendant, Court of Appeals Case No. 34A02-1708-CR-1786 v. Appeal from the Howard Superior Court I State of Indiana, The Honorable William C. Appellee-Plaintiff Menges, Judge Trial Court Cause Nos. 34D01-1107-FA-00565 34D01-1111-FA-01001

Vaidik, Chief Judge.

[1] Levi R. Davis admitted that he violated his probation in two cases by

committing a new criminal offense, and the trial court ordered him to serve the

Court of Appeals of Indiana | Memorandum Decision 34A02-1708-CR-1786 | December 22, 2017 Page 1 of 3 balance of his previously suspended sentences in these two cases, which the

court calculated to be 4010 days (4318 days - 308 credit days for time “served

while awaiting trial and disposition in this matter”). Appellant’s App. Vol. II p.

131; Appellant’s App. Vol. V p. 79. Davis claims that the court erred in

calculating the balance of his previously suspended sentences and that “the

correct total owing [is] 1,247 days.” Appellant’s Br. p. 13. He reaches this

much-lower number by asserting that he is entitled to credit for two large

chunks of time spent in a community-transition program. See Ind. Code § 11-

10-11.5-10 (“A person assigned to a community transition program continues to

earn good time credit during the person’s assignment to a community transition

program.”). However, there is nothing in the record to support Davis’s claim

that he spent time in such a program. In fact, there is contrary support. See Tr.

p. 36 (at disposition, Davis testified as follows regarding whether he had ever

been in a community-transition program: “I never even had . . . one day of

supervision on that program whatsoever.”). Based on this lack of support in the

record, the State argued in its brief that Davis has waived this issue for review.

See Brattain v. State, 777 N.E.2d 774, 776 (Ind. Ct. App. 2002) (holding that a

defendant may waive a claim of entitlement to credit for time served by failing

to present the reviewing court with sufficient information to determine the

issue). We agree with the State, and moreover, Davis did not file a reply brief

responding to the State’s waiver argument. Accordingly, we affirm the trial

court.

[2] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 34A02-1708-CR-1786 | December 22, 2017 Page 2 of 3 May, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 34A02-1708-CR-1786 | December 22, 2017 Page 3 of 3