Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of Mar 10 2014, 8:49 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JAMES A. SHOAF GREGORY F. ZOELLER
Columbus, Indiana Attorney General of Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAROD A. WHEELER, )
)
Appellant-Defendant, )
)
vs. ) No. 03A01-1310-CR-462
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT
The Honorable Stephen R. Heimann, Judge
Cause No. 03C01-1007-FB-1494
March 10, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Here, appellant-defendant Darod A. Wheeler’s probation was revoked, and he was
ordered to serve a portion of his suspended sentence in the Indiana Department of
Correction (DOC). Wheeler’s credit time was applied to the remaining portion of his
suspended sentence. Wheeler appealed.
After a panel of this Court determined that Wheeler’s credit time must be applied
to the executed portion of his sentence and remanded the case back to the trial court to
correct the abstract of judgment, the trial court increased the executed portion of
Wheeler’s sentence, stating that if it did not, Wheeler would not receive the treatment that
he needs from the DOC. Now, less than seven months later, Wheeler is before this Court
again.
While the intent of the trial court may have been to ensure that Wheeler received
the treatment that he needs, it erred by increasing the executed portion of his sentence on
remand. Accordingly, we vacate the order of the trial court and instruct the trial court to
reinstate the original sentencing order and modify it by applying the credit time that
Wheeler has earned to the executed portion of his sentence. We further instruct the trial
court to expedite this matter, insofar as Wheeler should likely be released.
FACTS
On July 12, 2010, Wheeler was charged with two counts of class B felony dealing
in cocaine. On January 21, 2011, the State amended the charging information, reducing
both counts to class C felonies, and Wheeler pleaded guilty to the amended counts. On
February 18, 2011, the trial court entered a judgment of conviction on both counts and
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sentenced Wheeler to concurrent terms of five years on each count with all time
suspended. Wheeler was ordered to serve a four-year term on probation and to a one-
year placement with community corrections, which could include work release or home
detention. Wheeler was given “71 actual days credit . . . toward the sentence of
imprisonment for time spent in confinement as a result of these charges.” Wheeler v.
State, No. 03A01-1212-CR-545, memo op. at 2 (Ind. Ct. App. August 14, 2013).
On April 25, 2012, the State filed a petition to revoke probation, alleging that
Wheeler had violated the terms of his probation by failing to: complete substance abuse
treatment, maintain full-time employment, pay fees, complete twenty-four hours of
community service during the weeks that he was not fully employed, and submit to three
requested drug screens. Additionally, Wheeler had consumed alcoholic beverages and
was arrested for public intoxication.
Following a hearing on July 23, 2012, the trial court determined that Wheeler had
violated the terms of his probation. On November 13, 2012, the trial court held a hearing
and ordered Wheeler to serve three years of his previously suspended sentence in the
DOC and gave Wheeler credit for five days. The trial court’s order further provided that
the balance of Wheeler’s credit time was to be applied towards “the balance of his
sentence not imposed.” Appellant’s App. p. 93.
Wheeler filed a notice of appeal on December 10, 2012. On appeal, Wheeler
argued that the trial court erred in failing to award credit time, namely, the seventy-one
days from his original sentence, the five days served, and the good time credit for the
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days he was placed on home detention, when it ordered him to serve a portion of his
previously suspended sentence. The State declined to file a brief, but instead filed a
motion to dismiss and remand, stating that it “agrees that [Wheeler] is entitled to credit
time which he has earned, including the seventy-one days from his original sentence, the
five days served, and the time which he served on home detention.” Wheeler, memo op.
at 4.
A panel of this Court determined that the trial court “should have determined the
total number of years or days of the previously suspended sentence which it intended to
impose as an executed sentence and then awarded Wheeler the credit time to which he is
entitled.” Id. at 6. The Court then specified that Wheeler’s credit for time served
consists of the seventy-one days of confinement before the February 28, 2011 sentencing
order, the five days of confinement before the reinstatement of a portion of his previously
suspended sentence, and good time credit for the period that Wheeler was placed on
home detention. Id. at 6-7. The Court remanded the case to the trial court with
instructions to calculate Wheeler’s total credit time and to amend the abstract of
judgment. Id. at 7.
On August 20, 2013, the trial court ordered Bartholomew County Community
Corrections to provide written documentation showing Wheeler’s credit days. On
September 9, 2013, Wheeler filed a request to advance the hearing and a request for
release, both of which were denied on September 11, 2013.
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On October 10, 2013, the trial court held a hearing on this Court’s instructions on
remand. It amended the November 13, 2012 order and sentenced Wheeler to four years
and four months in the DOC with seventy-one days credit he had received before his
initial sentence, five days credit for time served before the reinstatement of his previous
sentence, and 180 days good time credit for home detention. The trial court explained:
I specifically ordered on November 13th of 2012, the Court recommends to
the Indiana Department of Corrections [sic] the defendant be placed in a
substance abuse program. Had I put you in there for three years and given
you this . . . 71 days and the five days and the 180 days, you wouldn’t have
had sufficient time in the Indiana Department of Corrections to be placed
into a substance abuse program. Okay.
Tr. p. 21.
Wheeler now appeals.
DISCUSSION AND DECISION
Wheeler argues that instead of following the specific instructions on remand from
this Court, “the trial court viewed the Decision as an opportunity to re-sentence the
Wheeler [sic].” Appellant’s Br. p. 12. More particularly, Wheeler maintains that the
“instruction from the Court of Appeals was to calculate credit days and amend Abstract
of Judgment – not re-sentence.” Id.
This Court has stated that “[u]pon resentencing a defendant, a court cannot impose
a more severe penalty than that originally imposed unless the court includes in the record
of the sentencing hearing a statement of the court’s reasons for selecting the sentence that
it imposes . . . .” Gootee v. State, 942 N.E.2d 111, 113 (Ind. Ct. App. 2011). In this case,
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the trial court was not instructed to resentence, but rather, to correct its previous
sentencing order. Accordingly, it was without authority to resentence Wheeler, and it
was certainly without authority to impose a harsher penalty by increasing Wheeler’s
executed time in the DOC from three years to four years and four months.
Nevertheless, the State maintains that the trial court did not impose a harsher
penalty. Instead, according to the State, the trial court did exactly as instructed by this
Court by calculating the total number of executed years that it intended to impose,
indicated that the number was four years and four months, and then awarded Wheeler his
credit time.
Here, the November 13, 2012 order states that Wheeler is “to serve three (3) years
of the balance of sentence in the Indiana Department of Corrections.” Appellant’s App.
p. 93. Furthermore, the abstract of judgment reflects credit time of seventy-one days, five
days, and 180 days, as discussed throughout this opinion. Id. at 57. Finally, while the
trial court may have intended that Wheeler spend more time in the DOC for treatment
purposes, this Court’s August 14, 2013 Memorandum Decision is the law of this case,
and it instructed the trial court to calculate the credit time to which Wheeler was entitled
and amend the abstract of judgment. Memo op. at 7; see also Ind. Appellate Rule 65(D)
(providing that a “memorandum decision shall not be regarded as precedent and shall not
be cited to any court except by the parties to the case to establish res judicata, collateral
estoppel, or law of the case”). That is all that decision instructed the trial court to do.
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The judgment of the trial court is vacated and remanded with instructions to the
trial court to reinstate the November 13, 2012 sentencing order and modify it with the
appropriate credit time. We further instruct the trial court to expedite this cause as
Wheeler should likely be released.
NAJAM, J., and CRONE, J., concur.
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