MEMORANDUM DECISION FILED
Dec 05 2018, 6:49 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
purpose of establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E. C. Leicht Curtis T. Hill, Jr.
Kokomo, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Parker, December 5, 2018
Appellant-Defendant, Court of Appeals Cause No.
18A-CR-1582
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable William C. Menges,
Judge
Appellee-Plaintiff.
Trial Court Cause No. 34D01-1610-
F3-1071
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Robert Parker (Parker), appeals his sentence following
his conviction after pleading guilty to dealing in a narcotic drug, a Level 3
felony, Ind. Code § 35-48-4-1(d)(2).
[2] We affirm, but we remand with instructions.
ISSUES
[3] Parker presents two issues on appeal, which we restate as the following three
issues:
(1) Whether the trial court erred by not awarding Parker credit time for days
he served in jail prior to his sentencing;
(2) Whether Parker was entitled to receive credit time during the time he
participated in the drug court program; and
(3) Whether Parker’s sentence is inappropriate in light of the nature of the
offense and his character.
FACTS AND PROCEDURAL HISTORY
[4] On October 12, 2016, Parker was the target of an arrest warrant based on
allegations that he had previously sold drugs to a confidential informant
working with the Kokomo Police Department drug task force unit. On that
day, the same confidential informant called Parker on his cellphone and
arranged to buy “4 grams of heroin and 3.5 grams of cocaine” from Parker.
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(Appellant’s App. Vol. II, p. 17). Also, at the request of the confidential
informant, Parker agreed to bring a scale with him. Parker arranged to meet
the confidential informant at the parking lot of a restaurant. Parker’s friend,
Christopher Carter (Carter), accompanied Parker to the drug sale.
[5] With no intention of having the confidential informant present at the drug buy,
the officers arrived at the agreed meeting spot and observed Parker standing at
the corner of the restaurant smoking a cigarette. The officers instructed the
confidential informant to call Parker to confirm that Parker was the person
outside the restaurant. Parker confirmed that he was “standing outside
smoking a cigarette.” (Appellant’s App. Vol. II, p. 22). Following that
confirmation, the officers approached and arrested Parker. In Parker’s left coat
pocket, the officers found two knotted plastic bags. One held 4 grams of a
white powered substance which tested positive for cocaine, and the other
knotted bag held 3.5 grams of a grey powdered substance, which field tested
positive for heroin. The officers also recovered a .38 caliber handgun in
Parker’s front waistband. Upon running the gun’s serial number, the report
showed that the gun had previously been reported stolen. The scale which
Parker had agreed to bring to the drug sale was located inside Parker’s vehicle.
A whitish residue on the scale field tested positive for cocaine. Carter, who was
inside the vehicle, was also arrested.
[6] On October 14, 2016, the State filed an Information, charging Parker with
Count I, dealing in a narcotic drug, a Level 3 felony; Count II, dealing in
cocaine, a Level 3 felony; Count III, possession of a narcotic drug, a Level 5
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felony; Count IV, possession of cocaine, a Level 5 felony; and Count V, theft, a
Level 6 felony.
[7] On October 4, 2017, pursuant to a plea agreement, Parker agreed to plead guilty
to Level 3 felony dealing in a narcotic drug, and the State agree to dismiss all
the remaining charges. The agreement called for a deferment of Parker’s
conviction and sentence if Parker successfully completed the Howard County
Drug Court Program. The agreement, however, stipulated that non-compliance
with the terms and conditions of the drug program would result in Parker’s
conviction and sentencing to the Level 3 felony dealing in a narcotic drug.
[8] October 5, 2017, Parker was released into the Howard County Drug Court
Program. During his participation in the drug court program, Parker violated
the terms and conditions of the program from November 8, 2017, through
November 15, 2017, and also from December 6, 2017, through January 10,
2018. Whenever Parker violated the conditions of the drug court program, he
was sanctioned with jail time.
[9] On January 31, 2018, Parker was placed on work release with an electronic
ankle monitor after he committed perjury while testifying in another cause.
Sometime thereafter, Parker cut his electronic ankle monitor, failed to
participate in the drug court program, and absconded from the trial court’s
jurisdiction. On February 2, 2018, Parker failed to report to drug court, and on
the same day, the trial court issued an arrest warrant for Parker. Parker
remained a fugitive until May 3, 2018, when he was arrested.
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[10] On May 9, 2018, the Howard County Drug Court Program filed its notice to
terminate Parker’s participation in the program. On May 14, 2018, the trial
court entered a judgment of conviction for Parker’s Level 3 felony dealing in a
narcotic drug. On June 13, 2018, the trial court conducted a sentencing
hearing. At the close of the evidence, the trial court sentenced Parker to serve a
sixteen-year term in the Department of Correction. In the sentencing order, the
trial court held that Parker’s “jail time credit” was “in the sum of 357 actual
days or 476 credit days.” (Appellant’s App. Vol. II, p. 60).
[11] Parker now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Credit Time
[12] Parker asserts that the trial court erred when it calculated his pretrial credit
time. As our Supreme Court has noted, there are two types of credit that must
be calculated: “(1) the credit toward the sentence a prisoner receives for time
actually served, and (2) the additional credit a prisoner receives for good
behavior and educational attainment.” Purcell v. State, 721 N.E.2d 220, 222
(Ind. 1999). Credit time is a matter of statutory right, and trial courts do not
have discretion in awarding or denying such credit. Harding v. State, 27 N.E.3d
330, 331-32 (Ind. Ct. App. 2015).
[13] Consistent with the sentencing order, the Abstract of Judgment read that Parker
was entitled to receive accrued time of 357 days and good time credit of 119
days, totaling 476 days of credit time. On appeal, Parker contends that his
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actual time served from the date of his arrest, October 12, 2016, to his release
date, October 5, 2018, was 358 days instead of 357 days. The record shows that
Parker was arrested on October 12, 2016, for the instant drug offense. On
October 4, 2017, the trial court conducted Parker’s guilty plea hearing, but
Parker was released to the Howard Drug Court Program the following day,
October 5, 2017. The State agrees that Parker is due one additional day of
credit. Also, Parker contends that he was entitled to accrued time and good
time credit when he was detained on May 3, 2018, up until his sentencing
hearing on June 13, 2018. The State does not dispute that Parker deserves
accrued time and good time credit during that period.
[14] Based on the foregoing, and consistent with this opinion, we remand to the trial
court for the recalculation of Parker’s credit time.
II. Credit Time during the Drug Court Program
[15] Parker additionally argues that he was entitled to receive credit time during his
participation in the drug court program and for any time he was incarcerated
for violating the terms of the drug court program. The State contests Parker’s
claim that he enjoyed a statutory entitlement to credit time during his
participation in a drug court program.
[16] “Because pre-sentence jail time credit is a matter of statutory right, trial courts
generally do not have discretion in awarding or denying such credit.” Molden v.
State, 750 N.E.2d 448, 449 (Ind. Ct. App. 2001). “However, those sentencing
decisions not mandated by statute are within the discretion of the trial court and
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will be reversed only upon a showing of abuse of that discretion.” Id. An abuse
of discretion occurs if the decision is “clearly against the logic and effect of the
facts and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.” Anglemyer v. State, 868 N.E.2d 482, 490,
(Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (citation omitted).
[17] A person who is imprisoned and awaiting trial or sentencing for a crime other
than a Level 6 felony or misdemeanor is initially assigned to Class B. I.C. § 35-
50-6-4(b)(2). Such a person earns one day of good time credit for every three
days the person is confined awaiting trial or sentencing. I.C. § 35-50-6-3.1(c).
We note that Indiana Code chapter 33-23-16, concerning drug court programs,
is silent as to whether a drug court participant is entitled to credit time.
[18] In resolving this issue, we find Meadows v. State, 2 N.E.3d 788 (Ind. Ct. App.
2014), instructive. In that case, Meadows challenged the trial court’s denial of
his request for credit time for time he spent on electronic monitoring as part of a
drug court program. Id. at 790. Meadows admitted to violating the conditions
of his drug court agreement but argued the time he spent on electronic
monitoring should count against his imposed sentence. Id. at 791. This court
reasoned that statutes governing electronic monitoring as a condition of
probation were inapplicable to a person who voluntarily participated in a drug
court program. Id. at 792. Further, credit time statutes that apply to persons
convicted or sentenced were inapplicable since Meadows was neither convicted
of a crime nor sentenced at the time he participated in electronic monitoring.
Id. Ultimately, this court decided it was within the trial court’s discretion to
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award or deny credit time spent on electronic monitoring while participating in
a deferral program. Id. at 794.
[19] Parker argues that we should “reconsider [our] reasoning” in Meadows, and he
contends that “to say that [he] was not [] awaiting sentencing [] is ignoring a
reality that is used to underpin compliance in [d]rug [c]ourt.” (Appellant’s Br.
pp. 11-12). We decline Parker’s invitation.
[20] In exchange for his participation in the drug court program under Indiana Code
section 33-23-16-14, Parker pleaded guilty to Level 3 felony dealing in a
narcotic drug. At the time, the trial court did not enter a judgment of
conviction or sentence. We note that Indiana Code chapter 33-23-16 does not
provide for the application of credit time. Therefore, with no mandate in place
with regard to the grant or denial of credit time in this instance, the trial court is
free to exercise its discretion. See Molden, 750 N.E.2d at 449.
[21] In Meadows, we found that if we were to award offenders credit for time spent in
diversion programs prior to sentencing, it would diminish the reward for
completing the program and ultimately be rewarding offenders for their failure.
Meadows, 2 N.E.3d at 793. Had Parker successfully completed the drug
program, his Level 3 felony drug charge would have been dropped. See
Meadows, 2 N.E.3d at 793 (holding that drug court deferral program provides an
opportunity for those qualified to avoid conviction and sentence, but only if
they comply with the conditions of the program.) Thus, Parker was not eligible
to earn credit time while he was participating in the drug court program; he was
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only eligible to begin earning credit for time served once his participation in the
program was terminated.
[22] Further, Parker argues that he was entitled to earn credit time during the times
he was sanctioned with jail time after he violated the conditions of the drug
court program. By virtue of his status as a participant in a deferral program,
Parker was not awaiting trial or sentencing for his drug charge during the time
that he was in the drug court program. Rather, he was temporarily exempt
during this time from the consequences of his charge. Therefore, when Parker
was incarcerated during the times he violated the drug court program, his
period of incarceration was not a fulfillment of any penal consequences to his
charge, but it was a fulfillment of the requirements of the drug court program,
which, if finished successfully, would result in a complete dismissal of the
charge. Similarly, we conclude that the trial court did not abuse its discretion in
awarding credit time during the time Parker was imprisoned for not complying
with the drug court program.
[23] In sum, we conclude that the trial court did not abuse its discretion in not
awarding Parker credit time during Parker’s participation in the drug court
program, or credit time for any time he was incarcerated for violating the terms
of the drug court program.
III. Inappropriate Sentence
[24] Parker claims that his sixteen-year sentence is inappropriate in light of the
nature of the offense and his character. Indiana Appellate Rule 7(B) empowers
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us to independently review and revise sentences authorized by statute if, after
due consideration, we find the trial court’s decision inappropriate in light of the
nature of the offense and the character of the offender. Reid v. State, 876 N.E.2d
1114, 1116 (Ind. 2007). The “nature of offense” compares the defendant’s
actions with the required showing to sustain a conviction under the charged
offense, while the “character of the offender” permits a broader consideration of
the defendant’s character. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008);
Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007). An appellant bears
the burden of showing that both prongs of the inquiry favor a revision of his
sentence. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we
regard a sentence as appropriate at the end of the day turns on our sense of the
culpability of the defendant, the severity of the crime, the damage done to
others, and a myriad of other considerations that come to light in a given case.
Cardwell, 895 N.E.2d at 1224. Our court focuses on “the length of the aggregate
sentence and how it is to be served.” Id.
[25] The advisory sentence is the starting point the legislature has selected as an
appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,
1019 (Ind. 2012). For his Level 3 felony dealing in a narcotic drug, Parker
faced a sentencing range of three to sixteen years, with the advisory sentence
being nine. Parker was ordered to serve the maximum sentence of sixteen
years. I.C. § 35-50-2-5.
[26] We first examine the nature of Parker’s offense. After previously selling drugs
to a confidential informant, Parker was willing to do it again. On October 12,
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2016, Parker agreed to sell 4 grams of heroin and 3.5 grams of cocaine to a
confidential informant. Not only was Parker armed with a .38 caliber handgun
during the drug transaction, that gun had previously been reported as stolen.
[27] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct.
App. 2013). The significance of a criminal history varies based on the gravity,
nature, and number of prior offenses in relation to the current offense. Id.
[28] At the time of his sentencing, Parker was twenty-four years old. As a juvenile,
Parker was arrested, but not adjudicated as a delinquent, for receiving stolen
property. As an adult, in 2012, Parker was arrested for carrying a false
identification card. In 2014, Parker was charged with four misdemeanor drug
offenses in Pennsylvania and was ordered to complete probation. In 2016,
Parker was arrested for carrying a handgun without a license and false
informing, however, those charges were later dropped.
[29] Also, we find that Parker’s substance abuse reflects poorly on his character. In
the presentencing report, Parker reported that he began consuming alcohol at
age fourteen. Parker additionally indicated that from age fourteen until age
twenty-four, he had used the following “illegal substances: hash, marijuana,
spice, [] ecstasy, methamphetamine, amphetamine, codeine, morphine, heroin,
oxycontin, opium, Xanax, Lortab, Klonopin, Norco, Suboxone and Adderall.”
(Appellant’s App. Conf. Br. p. 13).
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[30] Most significantly, Parker was given an extraordinary chance to have his Level
3 felony dealing in a narcotic drug charge dismissed had he successfully
completed the drug court program. Instead of taking part in the program,
Parker violated the conditions and was sanctioned twice with jail time.
Sometime in February 2018, Parker fled the state, abandoning his
responsibilities in the drug court program. Here, Parker has not convinced us
that his sixteen-year sentence is inappropriate in light of the nature of the
offense, and his character.
CONCLUSION
[31] In sum, we hold that the trial court did not abuse its discretion by not awarding
Parker credit time during his participation in the drug court program and during
the time he was incarcerated for violating the terms of the program. Also, we
find that Parker’s sentence is not inappropriate in light of the nature of the
offense and his character. However, consistent with this opinion, we remand to
the trial court for the recalculation of Parker’s credit time.
[32] Affirmed but remanded with instructions.
[33] Vaidik, C. J. and Kirsch, J. concur
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