MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Aug 19 2016, 8:00 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E. C. Leicht Gregory F. Zoeller
Kokomo, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nicholas Burchett, August 19, 2016
Appellant-Defendant, Court of Appeals Case No.
34A04-1602-CR-333
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable William C.
Appellee-Plaintiff Menges, Judge
Trial Court Cause No.
34D01-1301-FC-13
Bailey, Judge.
Case Summary
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[1] Nicholas Burchett (“Burchett”) appeals a probation revocation order of the
Howard Superior Court reinstating his previously-suspended sentence for
Dealing in a Look-Alike Substance, a Class C felony,1 and calculating his pre-
disposition credit time to be 328 days. Burchett presents the issue of whether
the trial court erred in its calculation of credit time.2 We reverse and remand.
Facts and Procedural History
[2] On September 4, 2013, Burchett pled guilty to Dealing in a Look-Alike
Substance, Battery, and Resisting Law Enforcement. He received an aggregate
sentence of eight years, with three years suspended to probation.
[3] On July 23, 2014, the Indiana Department of Correction (“the DOC”) filed in
the trial court documents verifying that Burchett had completed a DOC
therapeutic community program (“the DOC program”), had “received 183 days
of credit for his achievement,” and thus the DOC had assigned a “New earliest
possible release date” of January 7, 2015. (App. at 57, 59.) On September 15,
2014, Burchett was approved for the Community Transition Program, “under
1
Ind. Code § 35-48-4-4.6(a). The offense is now a Level 5 felony.
2
He also makes a cursory allegation that the trial court violated a plea agreement by including the provision:
“The sentence imposed in this cause shall run consecutively to any sentence imposed in Wabash County.”
(App. at 93.) Indiana Code Section 35-50-1-2(e) provides that, if, after being arrested for a crime, a person
commits another crime before the date the person is to be discharged from probation, “the terms of
imprisonment shall be served consecutively, regardless of the order in which the crimes are tried and
sentences are imposed.” The trial court’s language did not increase the sanction upon Burchett. The
observation appears to be superfluous, as Burchett had already served his sentence arising from conduct in
Wabash County. Nonetheless, although Burchett admitted his violation of probation, he could not enter into
a plea agreement avoiding the statutory requirement of consecutive sentences.
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Electronic Monitoring, Day Reporting and/or Reentry Court Supervision.”
(App. at 71.) The trial court ordered Burchett’s sentence modified to provide
for release from the DOC on December 13, 2014. Without a specific reference
to a number of days, “the balance of the executed sentence” was suspended, to
be served on supervised probation. (App. at 71.) As a condition of probation,
Burchett was ordered to successfully complete the Howard County Re-Entry
Program.
[4] On December 10, 2014, the trial court entered an additional order:
The Defendant having violated the terms and conditions of the
Re-Entry Court Program, the Court now finds the Defendant is
in indirect contempt of Court. The Court further now orders the
Defendant, Nicholas Burchett, to be held without bond.
(App. at 72.) On February 4, 2015, the trial court noted that Burchett had
“fail[ed] to appear for the Re-Entry Court Program” and ordered a warrant
issued for Burchett. (App. at 8.) On September 10, 2015, the Howard County
Sheriff notified the trial court that Burchett had been arrested one day earlier on
the outstanding warrant.
[5] On November 18, 2015, Burchett appeared at a hearing on a Notice of
Termination from Re-Entry Court Program. He admitted that the allegations
contained in the notice were true. The trial court stated that Burchett was to be
“held without bond” and the “probation department is given 72 hours to file a
Petition to Revoke.” (App. at 11.) On the same day, the State filed its Petition
to Revoke Suspended Sentence. Again, the trial court issued a warrant for
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Burchett. On December 9, 2015, the Sheriff notified the court that Burchett
“was arrested on December 7, 2015 on the outstanding warrant for the Petition
to Revoke Suspended Sentence filed November 18, 2015.” (App. at 10.)
[6] On January 20, 2016, Burchett appeared at a fact-finding hearing and admitted
that he had violated a term of his probation when he had been terminated from
the Re-Entry Program. Burchett testified that he had experienced a drug
relapse and “took off.” (Tr. at 21.) Thereafter, he was charged with, and
served time for, a criminal offense in Wabash County.
[7] Also on January 20, 2016, the trial court entered an order on the petition to
revoke, providing in relevant part:
The Court accepts the Defendant’s plea of True and finds the
Defendant, Nicholas William Burchett, violated the terms of his
probation as alleged[.] . . .
The Court now imposes the balance of the Defendant’s
suspended sentence and orders the same executed in the Indiana
Department of Correction which the court determines to be 1512
days, all executed.
The sentence imposed in this cause shall run consecutively to any
sentence imposed in Wabash County.
The Defendant has jail time credit in the sum of 164 actual days
or 328 credit days, day for day credit, served while awaiting
disposition in this matter.
(App. at 86.) This appeal ensued.
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Discussion and Decision
[8] Burchett does not challenge the trial court’s decision to revoke his probation
and impose the entirety of his suspended sentence as a probation violation
sanction. However, he challenges the trial court’s calculation of credit time in
two respects. He argues that he did not receive full credit for his time in jail
awaiting disposition and that he was deprived of his credit for participation in
the DOC program.
[9] We review a trial court’s factual determinations for an abuse of discretion, and
we review legal conclusions de novo. Harding v. State, 27 N.E.3d 330, 331 (Ind.
Ct. App. 2015). On appeal, the appellant bears the burden of showing that the
trial court erred. Id. at 332.
[10] Generally, because presentence jail time credit is a matter of statutory right,
trial courts do not have discretion in awarding or denying such credit. James v.
State, 872 N.E.2d 669, 671 (Ind. Ct. App. 2007). At the initial imposition of
Burchett’s sentence, he was assigned to Class I for credit time purposes,3 and
Indiana Code Section 35-50-6-3.1(b) then provided: “A person assigned to
Class I earns one (1) day of credit time for each day the person is imprisoned for
a crime or confined awaiting trial or sentencing.” Credit time is earned for time
spent in confinement as a result of the charge for which the defendant is being
3
I.C. § 35-50-6-4(a).
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sentenced. Bischoff v. State, 704 N.E.2d 129, 130 (Ind. Ct. App. 1998), trans.
denied.
[11] At the January 20, 2016 fact-finding hearing, Burchett testified that he had first
been arrested on January 10, 2013 and had continuously accrued credit time
while incarcerated at the Howard County Jail or in the DOC, or participating in
a Community Transition program “all the way up until January 9, 2015” or
“one day shy of two years.” (Tr. at 23.) Burchett also testified that he had
completed the DOC Program. According to Burchett, he had received a “one
year credit time cut” for that program and was, as of January 9, 2016, “two
days shy of having five years credit.” (Tr. at 23.)
[12] Burchett also testified regarding a charge in Wabash County. Burchett
admitted that he faced a new charge in Wabash County after he absconded
from the Community Transition Program, and that he had been “sentenced to a
time-served plea.” (Tr. at 25.) Burchett testified that he entered into a plea
agreement on September 3, 2015, was released from Wabash County’s custody
on that same date, and was transported to the Howard County Jail on
September 9, 2015.
[13] At the conclusion of the testimony, the trial court made an oral statement with
respect to credit time:
The defendant was originally sentenced in this case on September
4th, 2013 to 2,920 days at the Department of Correction. At that
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period of time he was given credit for 428 [sic] 4 days which left a
balance of 2,242 days [sic]. He then served within the
Department of Correction from September 5th, 2013 through
December 13th, 2014, which was 930 days, credit days, leaving a
balance of his suspended sentence of 1,512 days. The court now
finds that that should be executed. He’s given credit for 164 days
or 328 days day-for-day credit served while awaiting disposition
in this matter [leaving 1,184 days] and we also need to show that
he is entitled to whatever credit time he’d earned previously
while within the Department of Correction which would reduce
the 1,512 days to whatever the Department of Correction deems
appropriate.
(Tr. at 27-28.)
[14] On appeal, Burchett observes that he was incarcerated in the DOC or
participating in a Community Transition Program (and thus accruing credit
time) from his sentencing on September 4, 2013 until his probation violation
sanction was imposed on January 26, 2016. He then argues that all that time is
applicable to the Dealing conviction and he had “no more than 694 days to
serve (2,920 less 478, less (874 x 2)).” Appellant’s Br. at 6. The State argues
that a portion of the time Burchett was incarcerated before the probation
violation sanction was imposed was attributable to a new charge in Wabash
County.
[15] According to the State, the proper calculation of credit time is as follows. The
aggregate sentence of 2,920 days was reduced by 478 days credit for pretrial
4
The actual number of days of pretrial credit was 478.
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incarceration, leaving 2,442 days. Burchett was in the DOC from September 5,
2013 through December 13, 2014 (accruing 465 actual and 465 good time credit
days for a total of 930 days). Subtracting 930 from 2,442 leaves 1,512 days.
This time remained when Burchett was arrested in Wabash County. He was
released from custody in Wabash County and began serving custodial, pre-
disposition time in this case on September 4, 2015. He was awarded 164 actual
days and 164 good time credit days (equal to 328 days) for this pre-disposition
incarceration, leaving 1,184 days.
[16] Evidence presented at the fact-finding hearing indicates that, on some
unspecified date after his release from the DOC in December of 2014, Burchett
was incarcerated in Wabash County; he was sentenced to time served in
Wabash County and began serving time in the Howard County case in
September of 2015. If, after being arrested for a crime, a person commits
another crime before the date the person is to be discharged from probation,
“the terms of imprisonment shall be served consecutively, regardless of the
order in which the crimes are tried and sentences are imposed.” I.C. § 35-50-1-
2(e). When consecutive sentences are required, credit time cannot be earned
against each underlying sentence. Brown v. State, 907 N.E.2d 591, 595 (Ind. Ct.
App. 2009). Such an interpretation would result in “double credit,” essentially
allowing the sentences to be served concurrently, not consecutively. French v.
State, 754 N.E.2d 9, 17 (Ind. Ct. App. 2001); Diedrich v. State, 744 N.E.2d 1004,
1006 (Ind. Ct. App. 2001) (citing Stephens v. State, 735 N.E.2d 278, 284 (Ind. Ct.
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App. 2000), trans. denied). Here, the trial court did not err in declining to award
Burchett credit for days serving a sentence in Wabash County.
[17] As to credit for the DOC program, it is clear from the trial court’s oral
statement that there was no factual dispute regarding the program completion,
and the trial court intended that Burchett receive the appropriate time
reduction. However, the probation violation sanction order was not in
conformity with the modification order, as the calculation of days in the
sanction order did not reflect a reduction of days for completion of the DOC
program. And, unlike the modification order, the sanction order did not
include the DOC in the distribution list. It is thus unclear how Burchett would
actually receive his credit after the modification order was superseded.
Accordingly, we reverse and remand for correction.
Conclusion
[18] The trial court did not err in its calculation of credit time for Burchett’s pre-
disposition incarceration. However, the additional credit attributable to the
DOC program was omitted from the trial court’s sanction order. We thus
reverse that order and remand for correction.
[19] Reversed and remanded.
Riley, J., and Barnes, J., concur.
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Nicholas Burchett v. State of Indiana (mem. dec.)
Combined Opinion