MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 17 2017, 7:06 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
Alexander L. Hoover Curtis T. Hill, Jr.
Law Office of Attorney General of Indiana
Christopher G. Walter, P.C.
Justin F. Roebel
Nappanee, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Fabian Roman Rubio, January 17, 2017
Appellant-Petitioner, Court of Appeals Case No.
50A05-1608-CR-1836
v. Appeal from the Marshall Superior
Court
State of Indiana, The Honorable Robert O. Bowen,
Appellee-Respondent Judge
Trial Court Cause No.
50D01-1505-MR-3
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 50A05-1608-CR-1836 | January 17, 2017 Page 1 of 3
[1] Fabian Rubio appeals the sentence imposed by the trial court after Rubio
pleaded guilty to murder, arguing that the trial court improperly calculated jail
time credit owed to Rubio. The State concedes that an error was made. We
agree, and remand for resentencing.
[2] On June 15, 2016, Rubio pleaded guilty to murder. At the time of sentencing,
he was already serving a sentence under a separate cause for class C felony
sexual misconduct with a minor. On July 14, 2016, the trial court sentenced
Rubio to sixty-five years imprisonment for murder. It ordered the murder
sentence to be served concurrently with the sexual misconduct sentence:
I’m going to order that this sentence on murder run concurrent
with the sentence that you are currently serving. However, the
sentence for murder starts today. You’re not going to receive any
credit for time already served on the—on the sexual misconduct so the
concurrency starts today but no credit for that period of time, so you’re
running concurrent for approximately, I believe, it’s
approximately two (2) years.
Tr. Vol. II p. 57 (emphasis added).
[3] The State concedes that “[t]he trial court lacked statutory authority to order
Defendant’s sentence concurrent with his sentence under [the sexual
misconduct cause] without also awarding jail time credit in both causes. While
it appears the trial court was attempting to impose partially concurrent
sentences, our Supreme Court has determined that practice is not permitted by
statute.” Appellee’s Br. p. 5-6. Evidently, the trial court attempted to order a
“partially concurrent or hybrid sentence by not awarding jail credit time and
Court of Appeals of Indiana | Memorandum Decision 50A05-1608-CR-1836 | January 17, 2017 Page 2 of 3
instead stating ‘the concurrency starts today,’” id. at 8 (quoting Tr. Vol. II p.
57), but our Supreme Court has explicitly held that such “partially consecutive,
hybrid, or blended sentences for multiple convictions” are not authorized by
statute. Wilson v. State, 5 N.E.3d 759, 764 (Ind. 2014). Consequently, we agree
with Rubio and the State that this sentence was improper and hereby remand to
the trial court for resentencing.
[4] The judgment of the trial court is remanded for entry of a new sentencing order.
Mathias, J., and Pyle, J., concur.
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