Chad E. Adams v. State of Indiana

FILED
Mar 15 2019, 9:15 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian A. Karle Curtis T. Hill, Jr.
Ball Eggleston, PC Attorney General of Indiana
Lafayette, Indiana
Marjorie H. Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Chad E. Adams, March 15, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1544
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79D02-1708-F5-103

Barteau, Senior Judge.

Court of Appeals of Indiana | Opinion 18A-CR-1544 | March 15, 2019 Page 1 of 15
 Statement of the Case
[1] Chad E. Adams appeals from his four-year aggregate sentence after pleading
1
guilty to one count of Level 5 felony carrying a handgun with a prior felony,

contending that the trial court improperly calculated his accrued time and that

his sentence is inappropriate in light of the nature of the offense and the

character of the offender. We affirm in part, reverse in part and remand with

instructions.

Issues
[2] Adams presents the following restated issues for our review:

I. Did the trial court improperly calculate Adams’ accrued time
by failing to recognize the time he spent in jail after his arrest and
before posting bond later that same day?

II. Is Adams’ sentence inappropriate in light of the nature of the
offense and the character of the offender?

Facts and Procedural History
[3] In June of 2017, Adams was living in an apartment with his girlfriend, Melissa

Lagoy. Lagoy owned two vehicles and one of them was a van. The van did

not have a valid license plate or registration and was not insured. No one had

driven the van for several months prior to the date of the offense. Among the

1
Ind. Code § 35-47-2-1(e)(2)(B) (2014).

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 many things Lagoy kept in the locked van was a handgun placed under the

driver’s seat instead of in the apartment where children also lived. Another

reason for the placement of the handgun was Adams’ 2006 felony conviction

for possession of marijuana which prevented him from legally possessing a

firearm.

[4] On the evening of June 16, 2017, Adams was home when he received a call that

Lagoy and a friend had car trouble and were stranded. Adams entered Lagoy’s

van and left in it to bring her home.

[5] Approximately two minutes after Adams began driving the van, a local police

officer recognized him. The officer initiated a traffic stop because he knew that

Adams did not have a valid driver’s license. During the stop, the officer noticed

the firearm under the driver’s seat. Lagoy arrived on foot at the scene of the

traffic stop and informed the officer that the firearm belonged to her.

[6] Adams was arrested and charged with unlawful possession of a firearm with a

prior felony as a Level 5 felony along with other charges. Adams entered into a

plea agreement pursuant to which he pleaded guilty to the Level 5 felony in

exchange for dismissal of the other counts. After a hearing, the trial court

sentenced Adams to an aggregate term of four years with one and a half years

executed in the Indiana Department of Correction, one and a half years

executed on community corrections, and one year of supervised probation.

Adams now appeals.

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 Discussion and Decision
I. Calculation of Time
[7] Adams challenges the trial court’s failure to recognize the time Adams spent in

jail prior to sentencing. Adams was arrested and imprisoned in the county jail

on June 17, 2017 and was confined, according to his statement made during a

colloquy with the trial court at the sentencing hearing, for approximately six to

eight hours before he was able to post bond. Tr. p. 27. His pre-sentence

investigation report credits him with one actual jail day from June 17, 2017 to

June 17, 2017. Appellant’s App. Vol. 2, p. 62.

[8] Despite the recommendation in the pre-sentence investigation report and

Adams’ statement of the time he was confined prior to bonding out, the trial

court refused to recognize one day of actual jail time because Adams had not

been in jail for “twenty-four hours,” which the court noted was its view of the

law until notified of caselaw to the contrary. Tr. pp. 27-28.

[9] Without citation to authority, the State argues that “[a]lthough the award of

credit is mandatory, it remains within the trial court’s discretion to make the

factual determination of whether the person in fact spent a day in prison before

awarding the credit.” Appellee’s Br. p. 9. (emphasis added). The State’s

position is that this factual determination is reviewed for an abuse of discretion,

citing Harding v. State, 27 N.E.3d 330, 331 (Ind. Ct. App. 2015). Additionally,

the State contends that “[g]iven that the Defendant failed to establish the length

of time he was actually in jail pending his release, the trial court did not abuse

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 its discretion in not awarding Defendant credit time for one full day.”

Appellee’s Br. pp. 9-10. (emphasis added). This argument is made despite

Adams’ statement at the sentencing hearing and the calculation included by

probation in the pre-sentence investigation report. We also pause to observe

that the applicable statute refers to time and not to days.

[10] “‘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.’” Perry v.

State, 13 N.E.3d 909, 911 (Ind. Ct. App. 2014) (quoting Molden v. State, 750

N.E.2d 448, 449 (Ind. Ct. App. 2001)). On the other hand, sentencing

decisions not mandated by statute remain within the discretion of the trial court

and will be subject to reversal only upon a showing of an abuse of that

discretion. Perry, 13 N.E.3d at 911. We have often stated what constitutes an

abuse of discretion and do so again here. A trial court abuses its discretion

when its 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. Id. (citing Anglemyer v. State, 868 N.E.2d

482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218).

[11] Because Adams was imprisoned prior to trial on an allegation that he

committed a Level 5 felony, he was assigned to Class B for the calculation of

accrued and credit time. Ind. Code § 35-50-6-4 (2016). Indiana Code section

35-50-6-0.5(1) (2015) defines accrued time as “the amount of time that a person

is imprisoned or confined.” Credit time is defined as “the sum of a person’s

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 accrued time, good time credit, and educational credit.” Ind. Code § 35-50-6-

0.5(2) (2015).

[12] In Purdue v. State, 51 N.E.3d 432, 436 (Ind. Ct. App. 2016), a panel of this

Court stated as follows:

Indiana treats pre-sentence imprisonment as a form of
punishment. By enacting statutes that award credit for pre-
sentencing confinement, the General Assembly sought to
implement the guarantee of common law and the Fifth
Amendment to the U.S. Constitution against double jeopardy.
Further, with an eye toward avoiding equal protection violations,
the statutes were drafted to equalize total confinement time
among inmates serving identical sentences for identical offenses
by allowing those who cannot post bail before sentencing to be
given credit towards their sentence for pre-sentence
imprisonment or confinement. Accordingly, during sentencing, a
trial court must strive to reach the balance between granting too
little or too much credit time, while keeping in mind that the
grant of credit time, as remedial legislation, should be liberally
construed in favor of those benefitted by the statute.

(internal citations and quotations omitted). Indeed, the panel in Purdue, noted

that “the intent of the statute [Ind. Code § 35-50-6-0.5] was to provide

clarification in the area of credit time.” 51 N.E.3d at 433 n.3; see also, Ind.

Code § 35-50-6-0.6 (2015) (change of terms is intended for clarification). In

Purdue, as is pertinent to this appeal, the defendant received credit for three days

of confinement which lasted only forty-eight hours spanning between January

29 through January 31, 2015. 51 N.E.3d at 434.

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[13] The State cites Dobeski v. State, 64 N.E.3d 1257 (Ind. Ct. App. 2016) in support

of the trial court’s ruling. In Dobeski, the central issue was how to calculate the

passage of time. The statute in that case required that the defendant register as

a sex offender not more than seven days after his release from a penal facility.

Ind. Code § 11-8-8-7(g) (2013) (emphasis added). Dobeski argued the evidence

was insufficient to support his conviction for failure to register as a sex offender

because seven days had not yet elapsed at the time he was arrested. The State

had argued that the “days” referred to in the statute were twenty-four-hour

periods, beginning with the moment Dobeski had been released from prison.

The trial court agreed with the State and Dobeski appealed.

[14] On appeal, Dobeski argued that Indiana Trial Rule 6(A) applied. That trial rule

governs the computation of time, and provides:

In computing any period of time prescribed or allowed by these
rules, by order of the court, or by any applicable statute, the day
of the act, event, or default from which the designated period of
time begins to run shall not be included. The last day of the
period so computed is to be included unless it is:

(1) a Saturday,

(2) a Sunday,

(3) a legal holiday as defined by state statute, or

(4) a day the office in which the act is to be done is closed during
regular business hours.

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 In any event, the period runs until the end of the next day that is
not a Saturday, a Sunday, a legal holiday, or a day on which the
office is closed. When the period of time allowed is less than
seven [7] days, intermediate Saturdays, Sundays, legal holidays,
and days on which the office is closed shall be excluded from the
computations.

T.R. 6(A).

[15] This rule of trial procedure was considered in Dobeski because Indiana Criminal

Rule 21 provides that the rules of trial procedure apply in criminal proceedings

when they are not in conflict with any specific rule adopted for the conduct of

criminal proceedings. Further support was found in the computation of time

used in the Indiana Rules of Appellate Procedure and the computation set out

by statute for administrative procedures and orders. See Dobeski, 64 N.E.3d at

1260-61.

[16] Further, we held that “Indiana case law has long defined a ‘day’ as a twenty-

four-hour period running from midnight to midnight.” Id. at 1261. “Indeed,

the legislature’s use of a seventy-two-hour time frame elsewhere in I.C. § 11-8-8-

7 indicates that when the legislature intends for a time frame to be calculated as

a period of hours rather than full calendar days, it will make that intention

clear.” Id. The trial court’s computation of time was reversed and remanded

because the rule of lenity required an interpretation of the statute construing the

term day to be a calendar day instead of a twenty-four-hour period. Id. at 1262.

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[17] The State’s argument here is that under that reasoning set forth in Dobeski the

first day should not be included and that Adams was not entitled to any accrued

time.

[18] In contrast, Adams cites to the Indiana Department of Correction Adult

Offender Classification Policy Manual, which provides as follows:

Credit Time Calculation

1. An offender receives incarceration credit, and credit time on
the sentence for the day of release from a Department facility to
parole or court jurisdiction.

Indiana Department of Correction, Adult Offender Classification Policy Manual,

Section (VII)(L)(1)-Credit Time Calculation, available at

https://www.in.gov/idoc/3264.htm (last visited February 26, 2019). The

argument follows that if the first day does not result in credit time under the

State’s citations to authority, the release date should count under the DOC

policy manual.

[19] In this case, however, the governing statute refers to the amount of “time” that

a person is imprisoned or confined. Ind. Code § 35-50-6-0.5. Hence, there is no

reference to days, as argued by Adams, or hours, as argued by the State.

Further, the term “time” is not defined elsewhere in Title 35, Article 50. As

such, we deem the statutory reference to time to be ambiguous.

[20] “Under well-established principles of statutory interpretation, a statute is

ambiguous when it allows more than one reasonable interpretation.” Day v.
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 State, 57 N.E.3d 809, 813 (Ind. 2016). Adams and the State have vigorously

argued in favor of their opposing interpretations of the statute. If a statute is

deemed ambiguous, then courts on review resort to the rules of statutory
2
interpretation to fulfill the legislature’s intent. Id. “In criminal cases, this

includes the rule of lenity–interpreting the statute in the defendant’s favor as far

as the language can reasonably support.” Id.

[21] Here, Adams’ liberty was deprived, by his undisputed account, for between six

and eight hours. The trial court did not recognize Adams’ loss of liberty for

that time. Further, we can only imagine the burden placed upon the

Department of Correction if required to “clock in” a defendant upon his or her

arrest and then “clock out” that defendant upon the posting of bond for

purposes of determining the “time” spent in pre-sentence incarceration to be

recognized later against any sentence imposed. We conclude that the rule of

lenity informs us to implement the intent of the legislature by reversing the

decision of the trial court and remanding the matter to the trial court for the

issuance of an order awarding Adams with one day of accrued time.

II. Inappropriate Sentence
[22] Adams claims that his sentence is inappropriate in light of the nature of the

offense and the character of the offender. Adams specifically requests that this

2
We invite the legislature to determine whether a more precise definition of “time” is needed as respects
accrued and credit time given the arguments presented here.

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 Court revise his sentence to “an advisory term of three (3) years, with one (1)

year executed in the Department of Correction, one (1) year [of] community

corrections, and one (1) year on probation.” Appellant’s Br. p. 20. The

sentencing range for a Level 5 felony is a fixed term of imprisonment between

one and six years with the advisory sentence being three years. Ind. Code § 35-

50-2-6(b) (2014).

[23] Our Supreme Court has stated the following about our role in the appellate

review of sentences.

Even where a trial court has not abused its discretion in
sentencing, the Indiana Constitution authorizes independent
appellate review and revision of a trial court’s sentencing
decision. Appellate courts implement this authority through
Indiana Appellate Rule 7(B), which provides that we may revise
a sentence if after due consideration of the trial court’s decision
we find the sentence is inappropriate in light of the nature of the
offense and the character of the offender.

Eckelbarger v. State, 51 N.E.3d 169, 170 (Ind. 2016) (internal citations and

quotations omitted). “The defendant bears the burden of persuading the Court

that [his] sentence is inappropriate.” Phipps v. State, 90 N.E.3d 1190, 1198 (Ind.

2018).

[24] Case law further instructs that “[s]entencing is principally a discretionary

function in which the trial court’s judgment should receive considerable

deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). “Such

deference should prevail unless overcome by compelling evidence portraying in

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 a positive light the nature of the offense (such as accompanied by restraint,

regard, and lack of brutality) and the defendant’s character (such as substantial

virtuous traits or persistent examples of good character).” Stephenson v. State, 29

N.E.3d 111, 122 (Ind. 2015).

[25] “[W]hether 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 myriad other factors that come to light in a given

case.” Cardwell, 895 N.E.2d at 1224. “The principal role of appellate review

should be to attempt to leaven the outliers, and identify some guiding principles

for trial courts and those charged with improvement of the sentencing statutes,

but not to achieve a perceived ‘correct’ result in each case.” Id. at 1225.

[26] We first evaluate whether the sentence imposed is supported by evidence of the

nature of the offense. Adams knew that the van was not properly registered,

plated, or insured. He was also aware that there was a gun stored under the
3
driver’s seat and that there was spice in the van. Further, Adams knew that he

was not allowed to possess a gun because he was a felon. Additionally, he

knew that he did not have a valid driver’s license. Nonetheless, Adams chose

to drive the van containing the spice and a handgun. This behavior is

3
Spice is also known by the street names “fake weed, moon rocks, and skunk” according to the National
Institute on Drug Abuse for Teens, and is a mix of herbs, or shredded plant material and manmade chemicals
with mind-altering effects. https://teens.drugabuse.gov/drug-facts/spice (last visited on February 21, 2019).

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 demonstrative of a disregard for the law and an indifference to the potential

consequences of his actions.

[27] Next, we evaluate whether the sentence imposed is warranted given Adams’

character. On review, analysis of the character of the offender involves a

“broad consideration of a defendant’s qualities.” Aslinger v. State, 2 N.E.3d 84,

95 (Ind. Ct. App. 2014). “The character of the offender is shown by the

offender’s life and conduct.” Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App.

2011).

[28] The record reveals that Adams’ prior criminal history consists of several prior

convictions spanning over more than a decade. He has multiple misdemeanor

and felony convictions for drug offenses and was offered treatment on at least

three prior occasions. Several petitions to revoke probation were filed against

him and he was unsatisfactorily discharged from probation. He then continued

to engage in criminal activity resulting in convictions. Again, he violated

probation for those convictions and was unsatisfactorily discharged from

probation. Further, while out on bond after pleading guilty in the current case,

Adams was charged with and convicted of driving while suspended as a Class

A misdemeanor.

[29] The trial court stated the following during sentencing:

On the aggravating side, one thing that I note in this case is your
character toward probation. Your attitude toward probation is
lousy. Right from the very beginning, you [sic] the probation
officer reports that you arrived but your packet was not filled out.

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 You advi-, the probation officer advised you to turn the packet in
completely filled out and do a telephone interview. Then you did
turn your packet in. After reviewing the packet, the officer still
noticed there was not completed, several questions were not
complete. Specifically, those pertaining to family. When asked
about the unanswered questions over the telephone, you said I
thought all that stuff was crap. That’s the attitude you’re
showing to probation. And so, if you’re going into it with that
kind of an attitude, it does not bode well for me in considering
that you might be a good candidate for probation, if you’re going
into it thinking that this is a lot of crap. I also note that you had
the opportunity, you also took the opportunity to indicate that in
the writing on the pre-sentence report when you talked about the
charge, you said gun charge fifteen years ago, felon, because they
cannot get me with a ten-year law. Crap! Is what you wrote to
me. So, your overall attitude here about this case and about the,
overall seriousness of this offense, the role that probation, the
role that the Court has, is lousy. And, those are your, based
upon your own words. I also note that you were not completely
forthright and honest with probation. When you were asked
about your children, you refused to report that. You didn’t
report anything about wages. And you declined to answer about
when, about the issue of what drugs, what role drugs played in
this case. Although, obviously, there were some drugs found in
the car and your response at least at the time of the arrest was, I
don’t smoke it, I deal it. So, there is some evidence that you
could have, been at least more forthcoming on that.

Tr. pp. 52-53.

[30] The trial court did observe that Adams pleaded guilty to the Level 5 felony in

exchange for the dismissal of the other charges but noted that Adams did

benefit from the agreement. The trial court also acknowledged Adams’ work

history. However, when considering the aggravating and mitigating

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 circumstances, the trial court concluded that Adams’ criminal history

warranted a slightly enhanced executed term. We agree with the trial court’s

assessment and conclude that Adams has not met his burden of persuading us

that his sentence is inappropriate in light of the nature of the offense and the

character of the offender.

Conclusion
[31] For the reasons stated above, we affirm the judgment of the trial court in part,

reverse in part, and remand with instructions to issue a corrected sentencing

order recognizing the correct amount of time, one day, during which Adams

was deprived of his liberty prior to sentencing.

[32] Affirmed in part, reversed in part, and remanded with instructions.

Najam, J., and Bailey, J., concur.

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