MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as Aug 11 2015, 6:22 am precedent or cited before 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 Darren Bedwell Gregory F. Zoeller Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Shayne Thompson, August 11, 2015
Appellant, Court of Appeals Case No. 49A05-1410-CR-480 v. Appeal from the Marion County Superior Court Criminal Division 1
State of Indiana, Cause No. 49G01-1309-MR-063580 Appellee No. 49G01-1406-FA-029370
The Honorable Kurt Eisgruber, Judge
Friedlander, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015 Page 1 of 8 [1] Shayne Thompson appeals the calculation of credit time in conjunction with his
sentencing for one count of murder, one count of robbery as a class A felony,
and one count of robbery as a class B felony.
[2] We reverse and remand with instructions.
[3] On October 24, 2011, Thompson committed acts that eventually led to his
conviction of robbery as a class C felony. He was sentenced to two years,
suspended, and placed on home detention. He was also placed on 365 days
probation. His probation was revoked on January 11, 2013. He was later
released to parole on July 12, 2013. While on parole, on September 19, 2013,
Thompson and several accomplices forced their way into a residence in
Indianapolis and robbed a family at gunpoint. Less than a week later, on
September 25, 2013, Thompson and an accomplice robbed a BP store at
gunpoint. During the robbery, Thompson shot and killed a store clerk.
[4] Based upon Thompson’s subsequent arrest on the murder charge, the parole
department issued a parole warrant on October 2, 2013. On November 20,
2013, “the warrant was lifted and voided due to the amount of time the
defendant had already served on this case and his pending maximum release
date (per legislative order).” Appellant’s Appendix at 301. A supervisor at the
parole department indicated that “they were aware [Thompson] was in the
Marion County Jail, and this case was monitored by parole until [Thompson]
reached his maximum expiration date.” Id. The supervisor further indicated
Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015 Page 2 of 8 that Thompson “was released from parole for this case on 01/10/2014, due to
[Thompson] reaching his maximum expiration date.” Id.
[5] Two separate criminal cases were filed against him as a result of the events of
September 19 and September 25. The State and Thompson eventually entered
into a single plea agreement resolving both cases. As a result of the September
19 incident, which we shall refer to as the confinement case, Thompson pled
guilty to burglary as a class A felony, robbery as a class B felony, and five
counts of criminal confinement, all as class B felonies. As a result of the
September 25 incident, which we shall refer to as the murder case, Thompson
pled guilty to murder and two counts of robbery, one as a class A felony and
one as a class B felony. According to the terms of the agreement, the sentences
for each case would run consecutively, and Thompson’s aggregate sentence
would be between 65 and 110 years. Thompson agreed to waive his right to
appellate review of the appropriateness of the sentence, and the State agreed
that Thompson would not be required to register as a sex offender.
[6] On September 26, 2014, following a hearing, the trial court sentenced
Thompson to fifty-five years for the murder conviction and ten years for the
class B-felony robbery conviction. The court ordered that those sentences were
run consecutively to each other and concurrently with a four-sentence for
robbery as a class A felony. With respect to the confinement case, Thomas was
sentenced to thirty years for the burglary conviction, which was to run
concurrently with a four-sentence for the class B-felony robbery conviction. He
received fifteen-sentences for each of the four B-felony criminal confinement
Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015 Page 3 of 8 convictions, with those sentences to run concurrently with each other and
consecutively to the sentence for the burglary conviction. Finally, the aggregate
sentence for the confinement case was ordered to run consecutively to the
aggregate sentence for the murder case, for a total aggregate sentence of 110
years.
[7] Finally, and germane to the issue presented on appeal, the parties agree that
Thompson was incarcerated for 367 days between his arrest in the murder case
and the time he was sentenced. The State argued, and the trial court ultimately
agreed, that Thompson was not entitled to credit time for 101 of those days
because he was serving a sentence for his parole violation between October 2,
2013 (when the parole department filed the warrant) and January 10, 2014
(when the parole warrant was lifted because Thompson had already “reached
his maximum expiration date”). Id. at 301.
[8] Thompson challenges the award of credit time.1 When considering challenges
to the award of credit time, we review the trial court’s factual determinations
1 We reject the State’s assertion that Thompson cannot appeal this alleged error because he invited it. At the sentencing hearing, the State argued that Thompson should not get credit for “his DOC sentence”, i.e., the time “he was serving [on] a parole violation sentence”. Transcript at 96. When asked for a response, Thompson’s stated: “That is a correct statement based on the law as we understand it.” Id. It is debatable whether Thompson "invited" the error within the meaning of the invited error doctrine. Even if it was argued as a traditional example of waiver for failing to object, the argument would not prevail. See Groves v. State, 823 N.E.2d 1229, 1231–32 (Ind. Ct. App. 2005) (“[g]enerally, a failure to object to error in a proceeding, and thus preserve an issue on appeal, results in waiver. However, a court may remedy an unpreserved error when it determines the trial court committed fundamental error. An improper sentence constitutes fundamental error and cannot be ignored on review”).
Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015 Page 4 of 8 for an abuse of discretion. Harding v. State, 27 N.E.3d 330 (Ind. Ct. App. 2015).
On the other hand, legal conclusions based, as here, upon the interpretation of a
statute are reviewed de novo. See Gardiner v. State, 928 N.E.2d 194, 196 (Ind.
2010) (“we review de novo matters of statutory interpretation because they
present pure questions of law”). On appeal, the defendant bears the burden of
showing that the trial court erred in calculating credit time. Gardner v. State, 678
N.E.2d 398 (Ind. Ct. App. 1997).
[9] Thompson contends the trial court erred in denying him credit time for time
spent on pretrial confinement. It appears the trial court determined that
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as Aug 11 2015, 6:22 am precedent or cited before 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 Darren Bedwell Gregory F. Zoeller Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Shayne Thompson, August 11, 2015
Appellant, Court of Appeals Case No. 49A05-1410-CR-480 v. Appeal from the Marion County Superior Court Criminal Division 1
State of Indiana, Cause No. 49G01-1309-MR-063580 Appellee No. 49G01-1406-FA-029370
The Honorable Kurt Eisgruber, Judge
Friedlander, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015 Page 1 of 8 [1] Shayne Thompson appeals the calculation of credit time in conjunction with his
sentencing for one count of murder, one count of robbery as a class A felony,
and one count of robbery as a class B felony.
[2] We reverse and remand with instructions.
[3] On October 24, 2011, Thompson committed acts that eventually led to his
conviction of robbery as a class C felony. He was sentenced to two years,
suspended, and placed on home detention. He was also placed on 365 days
probation. His probation was revoked on January 11, 2013. He was later
released to parole on July 12, 2013. While on parole, on September 19, 2013,
Thompson and several accomplices forced their way into a residence in
Indianapolis and robbed a family at gunpoint. Less than a week later, on
September 25, 2013, Thompson and an accomplice robbed a BP store at
gunpoint. During the robbery, Thompson shot and killed a store clerk.
[4] Based upon Thompson’s subsequent arrest on the murder charge, the parole
department issued a parole warrant on October 2, 2013. On November 20,
2013, “the warrant was lifted and voided due to the amount of time the
defendant had already served on this case and his pending maximum release
date (per legislative order).” Appellant’s Appendix at 301. A supervisor at the
parole department indicated that “they were aware [Thompson] was in the
Marion County Jail, and this case was monitored by parole until [Thompson]
reached his maximum expiration date.” Id. The supervisor further indicated
Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015 Page 2 of 8 that Thompson “was released from parole for this case on 01/10/2014, due to
[Thompson] reaching his maximum expiration date.” Id.
[5] Two separate criminal cases were filed against him as a result of the events of
September 19 and September 25. The State and Thompson eventually entered
into a single plea agreement resolving both cases. As a result of the September
19 incident, which we shall refer to as the confinement case, Thompson pled
guilty to burglary as a class A felony, robbery as a class B felony, and five
counts of criminal confinement, all as class B felonies. As a result of the
September 25 incident, which we shall refer to as the murder case, Thompson
pled guilty to murder and two counts of robbery, one as a class A felony and
one as a class B felony. According to the terms of the agreement, the sentences
for each case would run consecutively, and Thompson’s aggregate sentence
would be between 65 and 110 years. Thompson agreed to waive his right to
appellate review of the appropriateness of the sentence, and the State agreed
that Thompson would not be required to register as a sex offender.
[6] On September 26, 2014, following a hearing, the trial court sentenced
Thompson to fifty-five years for the murder conviction and ten years for the
class B-felony robbery conviction. The court ordered that those sentences were
run consecutively to each other and concurrently with a four-sentence for
robbery as a class A felony. With respect to the confinement case, Thomas was
sentenced to thirty years for the burglary conviction, which was to run
concurrently with a four-sentence for the class B-felony robbery conviction. He
received fifteen-sentences for each of the four B-felony criminal confinement
Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015 Page 3 of 8 convictions, with those sentences to run concurrently with each other and
consecutively to the sentence for the burglary conviction. Finally, the aggregate
sentence for the confinement case was ordered to run consecutively to the
aggregate sentence for the murder case, for a total aggregate sentence of 110
years.
[7] Finally, and germane to the issue presented on appeal, the parties agree that
Thompson was incarcerated for 367 days between his arrest in the murder case
and the time he was sentenced. The State argued, and the trial court ultimately
agreed, that Thompson was not entitled to credit time for 101 of those days
because he was serving a sentence for his parole violation between October 2,
2013 (when the parole department filed the warrant) and January 10, 2014
(when the parole warrant was lifted because Thompson had already “reached
his maximum expiration date”). Id. at 301.
[8] Thompson challenges the award of credit time.1 When considering challenges
to the award of credit time, we review the trial court’s factual determinations
1 We reject the State’s assertion that Thompson cannot appeal this alleged error because he invited it. At the sentencing hearing, the State argued that Thompson should not get credit for “his DOC sentence”, i.e., the time “he was serving [on] a parole violation sentence”. Transcript at 96. When asked for a response, Thompson’s stated: “That is a correct statement based on the law as we understand it.” Id. It is debatable whether Thompson "invited" the error within the meaning of the invited error doctrine. Even if it was argued as a traditional example of waiver for failing to object, the argument would not prevail. See Groves v. State, 823 N.E.2d 1229, 1231–32 (Ind. Ct. App. 2005) (“[g]enerally, a failure to object to error in a proceeding, and thus preserve an issue on appeal, results in waiver. However, a court may remedy an unpreserved error when it determines the trial court committed fundamental error. An improper sentence constitutes fundamental error and cannot be ignored on review”).
Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015 Page 4 of 8 for an abuse of discretion. Harding v. State, 27 N.E.3d 330 (Ind. Ct. App. 2015).
On the other hand, legal conclusions based, as here, upon the interpretation of a
statute are reviewed de novo. See Gardiner v. State, 928 N.E.2d 194, 196 (Ind.
2010) (“we review de novo matters of statutory interpretation because they
present pure questions of law”). On appeal, the defendant bears the burden of
showing that the trial court erred in calculating credit time. Gardner v. State, 678
N.E.2d 398 (Ind. Ct. App. 1997).
[9] Thompson contends the trial court erred in denying him credit time for time
spent on pretrial confinement. It appears the trial court determined that
Thompson was not entitled to credit time for the period of his confinement
spanning from October 2 through January 10. It further appears that the trial
court accepted the State’s argument that Thompson was not qualified to receive
credit time because during that time he was serving a sentence for violating his
parole. See fn. 1 infra.
[10] We begin by considering the statutory scheme devised by our Legislature
relating to credit time for parole violations. Pursuant to Ind. Code Ann. § 35-
50-6-1(a) (West, Westlaw current with all 2015 First Regular Session of the
119th General Assembly legislation), “when a person imprisoned for a felony
completes the person’s fixed term of imprisonment, less the credit time the
Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015 Page 5 of 8 person has earned with respect to that term, the person shall be … (1) released
on parole for not more than twenty-four (24) months, as determined by the
parole board[.]” As reflected in this provision, parole is administered and
determined by the parole board, and not the court. See Mott v. State, 273 Ind.
216, 221, 402 N.E.2d 986, 989 (1980) (“[t]he Indiana parole board of the
Department of Corrections has exclusive power to parole prisoners, under our
statutes”). I.C. § 35-50-6-7 (West, Westlaw current with all 2015 First Regular
Session of the 119th General Assembly legislation) does provide that credit time
may be denied for a person who is jailed on new charges stemming from acts
committed while on parole. Pursuant to this provision, a parolee who “has
been charged with a new crime may be immediately assigned to Class III and
may have all earned credit time suspended pending disposition of the
allegation” by the DOC or the county detention facility. I.C. § 35-50-6-7(a).
The statute further provides that in the event the parolee is found not guilty of
the alleged misconduct following a hearing, the credit time must be restored.
We reiterate, however, that this is a decision committed to the parole board and
the Department of Correction. See I.C. § 35-50-6-7; see also Propes v. State, 587
N.E.2d 1291, 1293 (Ind. 1992) (“the manner in which a sentence is served once
the prisoner has been committed to the Department of Correction is a matter of
discretion of that department together with the parole board and the clemency
commission and their interactions with the Governor”), cert. denied, 505 U.S.
1226. It appears from the record before us that these steps were not undertaken
and Thompson’s parole was never revoked.
Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015 Page 6 of 8 [11] Based upon Thompson’s arrest for the murder charge, the parole department
issued a parole warrant on October 2, 2013. Approximately a month and a half
later, that warrant “was lifted and voided due to the amount of time [he] had
already served … and his pending maximum release date.” Appellant’s Appendix
at 301. Although the parole department was aware that he was in the Marion
County Jail and continued to monitor the case, Thompson’s parole was never
revoked. In fact, Thompson was released from parole on January 10, 2014,
because he had “[reached] his maximum expiration date.” Id. Importantly,
neither the parole department nor the DOC held a hearing to determine, for
purposes of revoking parole, whether Thompson was guilty of the charges for
which he was arrested on October 2, 2013. Further, neither the parole board
nor the DOC undertook the steps necessary to assign him to Class III and/or
suspend his credit time. Therefore, it cannot be said that Thompson’s
incarceration during that time was attributable to his parole having been
revoked, or indeed any official change in his parole status at all. This means
that during this period Thompson remained in Class I credit time. Thus, any
loss of credit time during that period could only have been premised upon the
fact of the allegation that he violated parole. Under these circumstances, we
can find no authority for denying credit time on this basis.
[12] Accordingly, we conclude that the trial court erred in depriving Thompson of
101 days credit time in the murder case for the time he was incarcerated
between October 2, 2013 and January 10, 2014. We remand with instructions
Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015 Page 7 of 8 to correct the sentencing order to reflect that Thompson is entitled to receive an
additional 101 days credit time against the present sentence.
[13] Judgment reversed and remanded with instructions.
Baker, J., and Najam, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-480 | August 11, 2015 Page 8 of 8