MEMORANDUM DECISION FILED
Jun 14 2018, 6:07 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as CLERK
Indiana Supreme Court
precedent or cited before any court except for the Court of Appeals
and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Archie L. Brown Curtis T. Hill, Jr.
Hammond, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Archie L. Brown, June 14, 2018
Appellant-Petitioner, Court of Appeals Case No.
45A03-1710-CR-2497
v. Appeal from the Lake Superior
Court.
The Honorable Samuel L. Cappas,
State of Indiana, Judge.
Appellee-Respondent. The Honorable Natalie Bokota,
Magistrate.
Trial Court Cause No.
45G04-1101-FB-10
Rucker, Senior Judge
[1] Archie L. Brown appeals the trial court’s denial of his petition seeking credit for
days spent in pre-trial confinement. Concluding the trial court correctly denied
Brown’s petition, we affirm.
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Facts and Procedural History
[2] On October 23, 2012 under terms of an agreement Brown pleaded guilty to
robbery as a class C felony. The trial court sentenced Brown to eight years in
the Indiana Department of Correction to be served consecutive to a sentence
Brown was serving in Illinois. In its order of judgment the trial court specified
that Brown “is to receive zero (0) days credit time spent in confinement as a
result of this charge, because he is receiving credit under his Illinois sentences.”
Appellant’s App. Vol. 2, p. 2.
[3] Thereafter on October 6, 2017 Brown pro se filed a “Petition for Jail Time and
Additional Good Time Jail credit.” Id. p. 6. According to Brown, he is entitled
to credit for a period of 95 days from July 20, 2012 – “the date Brown was
arrested under warrant in Illinois and transferred to the Lake County jail,” (id.
pp. 7-8), to October 23, 2012 – “the date Brown was sentenced by the Lake
County court on his Indiana Robbery.” Id. at 8. In addition, Brown contended
that he is not a credit restricted felon and is entitled to an additional 95 days of
Class I “good time” credit for a total of 190 days.
[4] The trial court denied Brown’s petition declaring in relevant part:
A petition for jail time credit may only be used to attack a
sentence that is invalid on its face. The sentence in this case is
not erroneous on its face. As the sentencing order of October 23,
2012 stated, the defendant was not granted credit for time spent
incarcerated in the Lake County Jail because he was serving
Illinois sentences. If the defendant wishes to further challenge
his sentence, the issue must be addressed in a petition for post-
conviction relief.
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Order of 10-11-17 (attached to Appellant’s Br. p. 10).
Discussion and Decision
[5] Brown now appeals the trial court’s denial. However, he does not address the
trial court’s underlying rationale, namely: a petition for jail time credit may
only be used to attack a sentence that is invalid on its face. Instead, Brown
proceeds to the merits of his claim. The State does likewise not responding at
all to the trial court’s rationale. We do so here and conclude the trial court got
it right.
[6] The facts of this case are controlled by Robinson v. State, 805 N.E.2d 783 (Ind.
2004). In Robinson, after a jury trial the defendant was convicted of attempted
murder and sentenced to a term of thirty years. Thereafter he filed a pro se
motion to correct erroneous sentence alleging the trial court improperly failed
to award both credit for time served and good-time credit. Addressing
defendant’s allegation our Supreme Court declared, “We . . . hold that a motion
to correct sentence may only be used to correct sentencing errors that are clear
from the face of the judgment imposing the sentence in light of the statutory
authority. Claims that require consideration of the proceedings before, during,
or after trial may not be presented by way of a motion to correct sentence.” Id.
at 787. “As to sentencing claims not facially apparent, the motion to correct
sentence is an improper remedy. Such claims may be raised only on direct
appeal and, where appropriate, by post-conviction proceedings.” Id.
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[7] It is true that “[a]n allegation by an inmate that the trial court has not included
credit time earned in its sentencing is the type of claim appropriately advanced
by a motion to correct sentence.” Neff v. State, 888 N.E.2d 1249, 1251 (Ind.
2008). However, in the case before us Brown does not allege the trial court
merely omitted statutorily required information from the sentencing judgment.
Instead, Brown contends that he is entitled to an additional ninety-five days of
credit time, which represents the number of days he spent in pre-trial
confinement prior to sentencing. But resolving this claim would require
consideration of matters not clear from the face of the judgment, for example
1
whether Brown is a credit restricted felon.
[8] Further, Brown’s claim of sentencing error is not facially apparent. The order
lists the conviction for robbery as a class C felony; imposes a sentence of eight
years in the DOC; dictates the sentence is to be served “consecutively” with the
sentence Brown was serving in a foreign jurisdiction; and awards “zero (0) days
credit time spent in confinement as a result of this charge, because he is
receiving credit under his Illinois sentences.” Appellant’s App. Vol. 2, p. 2.
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A defendant’s status as a credit-restricted felon is relevant to the defendant’s initial assignment
to a credit-time class, which, in turn, affects the defendant’s accrual of credit time toward her
sentence. See Ind. Code § 35-50-6-4. The statute provides in pertinent part: “(b) A person who
is a credit restricted felon and who is imprisoned for a crime or imprisoned awaiting trial or
sentencing is initially assigned to Class IV. A credit restricted felon may not be assigned to Class
I or Class II.” Id. Here, seeking day for day good-time credit Brown asserts that he is not a
credit restricted felon.
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[9] When a defendant is being held on two different cases, and the sentence in one
case is ordered to run consecutively to the sentence imposed in the other, to
award credit time on both cases would result in more credit time than that to
which the defendant is entitled and would effectively enable him to serve part of
the consecutive sentences concurrently. See State v. Lotaki, 4 N.E.3d 656, 657
(Ind. 2014). “When consecutive sentences are involved, credit time is deducted
from the aggregate total of the consecutive sentences, not from an individual
sentence.” Id. at 657 (Finding error in the trial court’s award of credit time
where defendant was serving consecutive sentences); cf. Maciaszek v. State, 75
N.E.3d 1089, 1094 (Ind. Ct. App. 2017) (Defendant entitled to credit for actual
time served in county jail after he was extradited from foreign state to await
trial on an Indiana charge of felony burglary. And this was because the
conviction in the burglary case did not indicate that defendant’s Indiana
sentence was to be served consecutively to his sentence in the foreign
jurisdiction.), trans. denied.
[10] In this case resolving whether and to what extent Brown received credit on his
Illinois sentence – thus impacting the “zero” credit received on his Indiana
sentence – are matters that are not obvious from the face of the trial court’s
order of judgment. Therefore, Brown’s claim of sentencing error cannot be
pursued through his Petition for Jail Time and Additional Good Time Jail
Credit. Accordingly, the trial court properly denied the petition.
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Conclusion
[11] We affirm the judgment of the trial court.
[12] Affirmed.
Vaidik, C.J., and Altice, J., concur.
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