Appellant Pro Se Attorneys for Appellee Amici Curiae
Jesse E. Robinson Steve Carter John F.
Sievers, Chairman
Bunker Hill, Indiana Attorney General of Ind. Stephen
J. Johnson, Exec. Dir.
Zachary J. Stock Ind. Prosecuting
Attorneys Council
Deputy Attorney General
Larry Landis, Exec. Dir.
Ind. Public Defender
Council
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 45S03-0307-PC-314
Jesse E. Robinson, Appellant (Plaintiff below),
v.
State of Indiana, Appellee (Defendant below).
_________________________________
Appeal from the Lake Superior Court, No. 45G02-8500-CR-76
The Honorable Clarence D. Murray, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 45A03-0209-
PC-303
_________________________________
March 10, 2004
Dickson, Justice.
Upon his 1986 jury verdict and conviction for attempted murder, the
defendant, Jesse E. Robinson, was sentenced to a term of thirty years. The
judgment was affirmed on direct appeal. Robinson v. State, 525 N.E.2d 605
(Ind. 1988). In 1989 the defendant filed a pro se petition for post
conviction relief (PCR) and thereafter requested and received waiver of
representation by the Indiana Public Defender. The defendant withdrew his
PCR petition in 1995. In 2002, he filed a motion to correct sentence
asserting that the trial court's sentence improperly failed to award both
credit for time served and credit time. The trial court summarily denied
the motion. The Court of Appeals initially reversed this judgment.
Robinson v. State, 783 N.E.2d 1206 (Ind. Ct. App. 2003). On rehearing,
however, it withdrew its previous opinion and affirmed the trial court.
Robinson v. State, 789 N.E.2d 965 (Ind. Ct. App. 2003). Because of the
need to address recurring issues regarding pre-sentence credit time and the
availability of recourse to challenge its omission, we granted transfer,
vacating both prior opinions of the Court of Appeals pursuant to Indiana
Appellate Rule 58(A), and invited amicus curiae briefs. We affirm the
trial court, noting that its judgment does include credit for both days
spent in pre-sentence confinement and for Class I credit time earned
thereby.
In this appeal from the denial of his motion to correct sentence, the
defendant contends that "it is clear upon the face of the abstract of
judgment that the trial court did not properly credit Robinson's sentence
with time served and credit time for the 187 days of imprisonment awaiting
trial or sentencing." Br. of Appellant at 4. He argues that he is
entitled to a trial court judgment expressly awarding credit not only for
the 187 days of imprisonment before sentencing but also for an additional
equal amount of credit time for a total of 374 days of credit.
This appeal presents two questions: (1) whether the defendant may
challenge the award of credit time by means of a motion to correct
erroneous sentence, and (2) if so, whether the sentence in this case was
erroneous for failing to award credit for both time served and credit time.
1. Motion to Correct Sentence
The defendant's motion to correct sentence derives from Indiana Code
§ 35-38-1-15 which provides:
If the convicted person is erroneously sentenced, the mistake does not
render the sentence void. The sentence shall be corrected after
written notice is given to the convicted person. The convicted person
and his counsel must be present when the corrected sentence is
ordered. A motion to correct sentence must be in writing and
supported by a memorandum of law specifically pointing out the defect
in the original sentence.
The purpose of the statute "is to provide prompt, direct access to an
uncomplicated legal process for correcting the occasional erroneous or
illegal sentence." Gaddie v. State, 566 N.E.2d 535, 537 (Ind. 1991). In
Thompson v. State, we declined to limit a defendant to the remedy provided
by the Indiana Post-Conviction Rules and stated:
By allowing a defendant either avenue in forwarding his sentencing
error, judicial time and effort may be conserved while justice is
speedily and efficiently afforded those convicted of crime. When a
defendant wishes to question only the propriety of his sentence, he
may utilize the vehicle of [now Indiana Code § 35-38-1-15]. This
vehicle is available to a defendant whether or not a guilty plea has
been filed. Of course, the defendant may also file, within sixty days
of sentencing, a motion to correct errors and designate an erroneous
sentence as the complained of error. But, there is nothing in the
statute which should preclude a defendant from raising the issue of an
erroneous sentence at a time after sixty days have elapsed.
270 Ind. 677, 679, 389 N.E.2d 274, 276 (1979). [1] We held that a motion
to correct sentence would not preclude the defendant from filing a later
petition for post-conviction relief where warranted. Id.
When an error related to sentencing occurs, it is in the best
interests of all concerned that it be immediately discovered and corrected.
Other than an immediate motion to correct sentence, such errors are best
presented to the trial court by the optional motion to correct error under
Indiana Trial Rule 59, or upon a direct appeal from the final judgment of
the trial court pursuant to Indiana Appellate Rule 9(A).[2] See Thompson
v. State, 270 Ind. 677, 679-80, 389 N.E.2d 274, 276-77 (1979). Thereafter,
for claims not waived for failure to raise them by direct appeal, a
defendant may seek recourse under Indiana Post-Conviction Rule 1, § 1(a)(3)
by claiming "that the sentence exceeds the maximum authorized by law, or is
otherwise erroneous." As noted above, however, we have recognized the
statutory motion to correct sentence as an alternate remedy. Mitchell v.
State, 726 N.E.2d 1228, 1243 (Ind. 2000); Reffett v. State, 571 N.E.2d
1227, 1228-29 (Ind. 1991); Jones v. State, 544 N.E.2d 492, 496 (Ind. 1989);
Gee v. State, 508 N.E.2d 787, 788 (Ind. 1987); Thompson, 270 Ind. at 679-
80, 389 N.E.2d at 276. A trial court's ruling on a motion to correct
sentence is subject to appeal by normal appellate procedures. Thompson,
270 Ind. at 680, 389 N.E.2d at 276-77.
While the motion to correct sentence is available as an alternate
remedy, we have repeatedly cautioned that it is appropriate only when the
sentence is "erroneous on its face." Mitchell, 726 N.E.2d at 1243;
Reffett, 571 N.E.2d at 1229; Jones, 544 N.E.2d at 496. We acknowledge that
some of our decisions may not have rigorously applied the "erroneous on its
face" standard. In Jones, we stated that the motion to correct sentence
could be used to correct errors such as "illegal sentences in violation of
express statutory authority or an erroneous interpretation of a penalty
provision of a statute," but would not be available for claims raising
"constitutional issues or issues concerning how the trial court weighed
factors in imposing sentence." Jones, 544 N.E.2d at 496. In apparent
contradiction to the facial invalidity limitation, however, this Court in
Jones then proceeded to address the merits of a claim that the trial court
imposed a maximum sentence in partial reliance upon invalid aggravating
factors—a claim that required this Court to go beyond the face of the
sentencing judgment and the applicable penalty statute. In Reffett, we
permitted a motion to correct sentence, summarily reasoning that "[i]f a
sentence that violates express statutory authority is facially erroneous, a
sentence that violates the express terms of a plea agreement is also
facially erroneous." 571 N.E.2d at 1229. And in Mitchell we addressed a
double jeopardy claim presented by a motion to correct sentence, likewise
summarily concluding that "[i]f a sentence violating express statutory
authority is facially erroneous, a sentence violating double jeopardy is
also facially erroneous." 726 N.E.2d at 1243.
When claims of sentencing errors require consideration of matters
outside the face of the sentencing judgment, they are best addressed
promptly on direct appeal and thereafter via post-conviction relief
proceedings where applicable. Use of the statutory motion to correct
sentence should thus be narrowly confined to claims apparent from the face
of the sentencing judgment, and the "facially erroneous" prerequisite
should henceforth be strictly applied, notwithstanding Jones, Reffett, and
Mitchell. We therefore 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.[3]
In addition to limiting a motion to correct sentence to errors
apparent on the face of the judgment, Indiana case law has long emphasized
that "the preferred procedure is by way of a petition for post-conviction
relief." Jones, 544 N.E.2d at 496. See, e.g., Reffett, 571 N.E.2d at
1228; Gee, 508 N.E.2d at 788; Hatchett v. State, 794 N.E.2d 544, 546 (Ind.
Ct. App. 2003); White v. State, 793 N.E.2d 1127, 1129 (Ind. Ct. App. 2003);
Funk v. State, 714 N.E.2d 746, 748-49 (Ind. Ct. App. 1999); Poore v. State,
613 N.E.2d 478, 480 (Ind. Ct. App. 1993); Browning v. State, 576 N.E.2d
1315, 1317 (Ind. Ct. App. 1991); Powell v. State, 574 N.E.2d 331, 333 (Ind.
Ct. App. 1991). This emphasis that post-conviction proceedings are
"preferred" for raising sentencing error should not be understood to imply
that the statutory motion to correct sentence is nevertheless permissible
to raise claims that are not facially evident on the judgment. It is not.
This Court "tries to encourage conservation of judicial time and energy
while at the same time affording speedy and efficient justice to those
convicted of a crime." Reffett, 571 N.E.2d at 1229. 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.
When a motion to correct sentence presents a claim that may be
resolved by considering only the face of the judgment and the applicable
statutory authority without reference to other matters in or extrinsic to
the record, such a motion may be expeditiously considered and corrections
made without invoking post-conviction proceedings. The "preferred
procedure" language does not require that such claims of facial error be
presented by petition for post-conviction relief. This may appear contrary
to Indiana Post-Conviction Rule 1(1)(b), which declares that the post-
conviction relief procedure "takes the place of all other common law,
statutory, or other remedies heretofore available for challenging the
validity of the conviction or sentence and it shall be used exclusively in
place of them." (emphasis added.) Because this rule already existed when
Indiana Code § 35-38-1-15 was enacted in 1983, the motion to correct
sentence remedy was not "heretofore available" as provided in the rule.
Compare Ind. P-C.R. 1(1)(b) (West 1982) with Acts 1983, Public Law 311,
Section 3. Furthermore, our cases have clearly permitted a defendant to
use the statutory motion to correct sentence notwithstanding the potential
availability of post-conviction relief. See Mitchell, 726 N.E.2d at 1243;
Reffett, 571 N.E.2d at 1229; Jones, 544 N.E.2d at 496; Gee, 508 N.E.2d at
788; Thompson, 270 Ind. at 679, 389 N.E.2d at 276. Because such motions to
correct sentence based on clear facial error are not in the nature of post-
conviction petitions, we conclude that they may also be filed after a post-
conviction proceeding without seeking the prior authorization necessary for
successive petitions for post-conviction relief under Indiana Post-
Conviction Rule 1(12). This holding overrules those cases that have held
to the contrary, primarily in the interest of finality. See, e.g., White,
793 N.E.2d at 1132; Waters v. State, 703 N.E.2d 688, 689 (Ind. Ct. App.
1998).
In the present case, the defendant challenged his sentencing by a
motion to correct sentence claiming that the trial court failed to comply
with Indiana Code § 35-38-3-2(a) which provides in relevant part that
"[w]hen a convicted person is sentenced to imprisonment, the court shall,
without delay, certify, under the seal of the court, copies of the judgment
of conviction and sentence to the receiving authority," and further
specifies in subsection 2(b) that "[t]he judgment must include," among
other things, "the amount of credit, including credit time earned, for time
spent in confinement before sentencing."
The defendant contends that the trial court's sentence reported only
the actual time served before sentencing and did not comply with the
statutory requirement that it also include a separate statement of credit
time earned for time spent in confinement before sentencing. He does not
allege a calculation error that would require consideration of matters
outside the face of the sentencing judgment. His assertion is that
required information is omitted. This claim is the type of claim that may
be asserted by a motion to correct sentence.
2. Trial Court Award of Credit Time
The defendant contends that the trial court erred in denying his
motion to correct sentence. He argues that he was entitled to receive
credit toward his sentence for the days he served while imprisoned before
his sentence plus an additional one day of credit time for each day of pre-
sentence imprisonment, and that the trial court's abstract of judgment
violated the statutory obligation to separately include designation of both
time served and the amount of credit time thus earned.
The State acknowledges that, for the defendant's 187 days of pre-
sentence incarceration, he could be entitled to a total of 374 days credit
against his sentence—so long as he remained classified in the credit time
classification granting one day of credit time for each day imprisoned (for
a total credit of two days). The State argues that this classification was
subject to change by the Department of Correction (DOC) and thus the trial
court may only make recommendations but may not enter a binding order
fixing credit time.
Amicus Indiana Public Defender Council urges that a sentencing judge
has a statutory duty to separately determine not only credit for time spent
in confinement but also credit time earned based on a prisoner's credit
time classification, and that the Department of Correction does not have
statutory authority to deprive a person of good time credit for a pre-
sentence violation of a jail rule or rule of a non-DOC penal facility. As
to the latter point, we disagree.
As noted above, Indiana Code § 35-38-3-2 requires the trial court's
judgment to include "the amount of credit, including credit time earned,
for time spent in confinement before sentencing." Under the Indiana Penal
Code, prisoners receive credit time that is applied to reduce their term of
imprisonment. A person imprisoned for a felony or misdemeanor generally
shall be released upon completion of the fixed term of imprisonment, "less
the credit time he has earned." Ind. Code §§ 35-50-6-1(a), 35-50-6-2. The
time spent in confinement before sentencing applies toward a prisoner's
fixed term of imprisonment. The amount of additional credit is primarily
determined by the prisoner's credit time classification. The applicable
statute provides:
(a) A person assigned to Class I earns one (1) day of credit time for
each day he is imprisoned for a crime or confined awaiting trial or
sentencing.
(b) A person assigned to Class II earns one (1) day of credit time for
every two (2) days he is imprisoned for a crime or confined awaiting
trial or sentencing.
(c) A person assigned to Class III earns no credit time.
Ind. Code § 35-50-6-3. The statute also provides: "A person imprisoned for
a crime or imprisoned awaiting trial or sentencing is initially assigned to
Class I." Ind. Code § 35-50-6-4(a). In addition to this credit time, a
person may also earn credit time in one other manner—by successfully
completing specified educational achievements while demonstrating "a
pattern consistent with rehabilitation." Ind. Code § 35-50-6-3.3. We
interpret Indiana Code § 35-38-3-2 to require that a trial court's judgment
of conviction separately include both the amount of time spent by the
defendant prior to imposition of sentence and also the amount of credit
time earned in accordance with the defendant's credit time class.
Other statutory provisions authorize a prisoner's credit time class
and earned credit time benefits to be diminished:
A person may be reassigned to Class II or Class III if he violates any
of the following:
(1) A rule of the department of correction.
(2) A rule of the penal facility in which he is imprisoned.
(3) A rule or condition of a community transition program.
However, a violation of a condition of parole or probation may not be
the basis for reassignment. Before a person may be reassigned to a
lower credit time class, he must be granted a hearing to determine his
guilt or innocence and, if found guilty, whether reassignment is an
appropriate disciplinary action for the violation. The person may
waive his right to the hearing.
Ind. Code § 35-50-6-4(b):
A person may, with respect to the same transaction, be deprived of any
part of the credit time he has earned for any of the following:
(1) A violation of one (1) or more rules of the department of
correction.
(2) If the person is not committed to the department, a
violation of one (1) or more rules of the penal facility in
which the person is imprisoned.
(3) A violation of one (1) or more rules or conditions of a
community transition program.
(4) If a court determines that a civil claim brought by the
person in a state or an administrative court is frivolous,
unreasonable, or groundless.
Ind. Code § 35-50-6-5(a).
Summarizing, a prisoner's release date is determined by the term of
imprisonment imposed by the trial court less the time spent in confinement
before sentencing less credit time earned. Credit time is accrued in two
ways: (1) by the credit time classification to which a prisoner is
assigned, Indiana Code § 35-50-6-3, and (2) by educational achievement
pursuant to Indiana Code § 35-50-6-3.3. There is no other provision for
the award of any credit time for good behavior.[4] It is possible,
however, for a prisoner to be deprived of credit time classification or
earned credit time for violations of penal facility rules. Ind. Code §§ 35-
50-6-4(b), 35-50-6-5(a). Thus, credit time earned under Class I and that
earned for educational achievements is sometimes described as "good time"
credit because such credit is conditioned on the absence of bad conduct.[5]
A. Finality of Trial Court Credit Time Determination
We now turn to resolve whether a trial court's designation of credit
time earned for confinement before sentencing is merely a recommendation,
or whether it is final and immune from subsequent modification by the
Department of Correction.
The authorization to reduce credit time benefits in Indiana Code § 35-
50-6-4 and 6-5 is not limited to the Department of Correction. The County
Jail Standards contained in the administrative rules promulgated by the
Department of Correction expressly provide for the imposition of discipline
by jail officials subject to procedural safeguards. Ind. Adm. Code title
210, rule 3-1-17 (2004). This regulation states in relevant part:
Discipline. (a) Each sheriff shall establish written rules of inmate
conduct for the maintenance of order and discipline among inmates.
Such rules shall describe the conduct for which disciplinary action
may be imposed . . . . (c) Any of the following may be imposed as
disciplinary action on jail inmates: . . . (8) Reassignment to a lower
credit time class under IC 35-50-6-4; (9) Deprivation of earned credit
time under IC 35-50-6-5.
While local jail personnel are authorized to modify a prisoner's
credit time class and/or credit time, the Department of Correction may
later revise such determinations. Ind. Code § 11-11-5-3 expressly
authorizes the Department of Correction to also impose various sanctions as
disciplinary actions. Among these are "[r]eassignment to a lower credit
time class under IC 35-50-6-4" and "[d]eprivation of earned credit time
under IC 35-50-6-5." The credit time class assigned pursuant to Indiana
Code § 35-50-6-4 includes both a person's initial assignment to Class I
while "awaiting trial or sentencing" as well as subsequent reassignments to
lower credit time assignments for violation of a rule "of the penal
facility in which he is imprisoned" (as well as providing for restoration
of prior credit time assignments). Similarly, the credit time deprivations
and restorations authorized by Indiana Code § 35-50-6-5 are not limited to
those accrued during confinement at the Department of Correction but may
also be imposed with respect to violations of a rule of "the penal facility
in which the person is imprisoned." We therefore hold that the credit time
earned while awaiting sentencing in a trial court is subject to subsequent
deprivation by the Department of Correction.
In addition, it appears that viewing a sentencing statement's credit
time designation as a mere "recommendation" may be a relic from prior
times. Previous statutes had required the sentencing judge to "specify"
the days spent in confinement and to "make recommendations as to credit for
good time conduct for time spent in confinement prior to sentencing." Ind.
Code §§ 35-8-2.5-1—5 (repealed in Acts 1979, Public Law 120, Section 22).
The present statute specifying the content of the sentencing judgment was
enacted in 1983 and does not call for "recommendations" but simply requires
that the "judgment must include . . . the amount of credit, including
credit time earned, for time spent in confinement before sentencing." Ind.
Code § 35-38-3-2. Nonetheless, recent opinions have held that a sentencing
judge "only has the authority to make recommendations with respect to good
time allowances." Kindred v. State, 771 N.E.2d 760, 763 (Ind. Ct. App.
2002), citing Leavell v. State, 181 Ind. App. 69, 73, 391 N.E.2d 246, 248
(1979). We disapprove of this view.[6]
In Campbell v. State, 714 N.E.2d 678 (Ind. Ct. App. 1999), our Court
of Appeals confronted a claim that the trial court exceeded its statutory
authority by denying Campbell's request for credit time for serving in the
work release program prior to the revocation of his probation. Concluding
that "the deprivation or restoration of a person's credit time is a
discretionary matter entrusted not to the courts but to the administrators
of the DOC," the Campbell court held that the trial court exceeded its
statutory authority. Id. at 683-84. Campbell did not involve a challenge
to the trial court's sentencing judgment. In the course of its discussion,
however, the court stated that "credit time should be initially determined
by the DOC, not the trial court." 714 N.E.2d at 682. This view was
followed by the Court of Appeals in its opinion on rehearing in the present
case. Robinson v. State, 789 N.E.2d 965, 967 (Ind. Ct. App. 2003). We
find this to be incorrect.
Indiana Code § 35-38-3-2(b) unequivocally declares that the trial
court sentencing judgment "must include" the amount of credit earned for
time spent in confinement before sentencing. This determination serves to
memorialize any modifications in credit time class or credit time imposed
by local prison authorities upon a person confined before trial and
sentencing. A trial court's sentencing judgment thus does not merely
"recommend." On the contrary, it determines a prisoner's credit time for
time served as of the time of sentencing. This credit time, however, is
subject to modification thereafter by the Department of Corrections
pursuant to statutory procedures.
Appellate authority has been rather inconsistent in providing
direction to our trial courts on this issue. Compare Crow v. State, 797
N.E.2d 319, 325 (Ind. Ct. App. 2003) and Hatchett, 794 N.E.2d at 547 (trial
court sentencing must include credit time) with Robinson, 789 N.E.2d at
967 and Kindred, 771 N.E.2d at 763 (sentencing judge may only make credit
time recommendations). It is not surprising that the sentencing judgments
of many trial judges is presented in language of "recommending" that credit
time be awarded, or in omitting any reference to credit time whatsoever.
As discussed above, a person is initially entitled to Class I credit for
the days confined before sentencing, subject to a deprivation of Class I
status by the Sheriff or other penal authority, and a trial court's
sentencing judgment must include both days imprisoned before sentencing and
the credit time earned thereby, thus reflecting any credit time deprivation
imposed before sentencing.
In an effort to facilitate the fair and expeditious resolution of
appellate litigation arising from these judgments, we adopt the following
appellate presumption. Sentencing judgments that report only days spent in
pre-sentence confinement and fail to expressly designate credit time earned
shall be understood by courts and by the Department of Correction
automatically to award the number of credit time days equal to the number
of pre-sentence confinement days. In the event of any pre-sentence
deprivation of credit time, the trial court must report it in the
sentencing judgment.[7] Because the omission of designation of the
statutory credit time entitlement is thus corrected by this presumption,
such omission may not be raised as an erroneous sentence.
B. Omission of Credit Time from Abstract of Judgment
There is a split of authority regarding whether a trial court's
failure to specify credit time requires remand or correction on appeal.
Concluding that a trial court must determine the amount of credit time for
pre-sentence imprisonment, some cases have granted relief. See, e.g., Crow
v. State, 797 N.E.2d 319 (Ind. Ct. App. 2003); Senn v. State, 766 N.E.2d
1190 (Ind. Ct. App. 2002). But in Hatchett v. State, 794 N.E.2d 544, 547
(Ind. Ct. App. 2003), while emphasizing that trial courts may not routinely
disregard the requirements of Indiana Code § 35-38-3-2(b)(4) requiring a
sentencing judgment to included credit time earned, the court held that "a
trial court's failure to record a defendant's credit time earned . . . in
its abstract of judgment does not render the defendant's sentence facially
erroneous." Id. For the reasons discussed in this opinion, we do not
completely approve of these cases.
In the present case, the defendant's claim is based on the trial
court's entries on the abstract of judgment, a form issued by the
Department of Correction and completed by trial judges for the convenience
of the Department. The instructions on this form requested that it
"accompany the Judgment, Pre-Sentence Report, and all other documents
required by law, upon the commitment of the adult offender to the Indiana
Department of Correction." The form called for the signature of the
committing judge and the attestation of the county clerk. Part 3 of the
abstract of judgment form, entitled "Judge's Recommendations," contains a
box requesting "No. of days confined prior to sentencing." It is unclear
from the form whether the Department was seeking the trial judge's
verification of (a) actual time spent in pre-sentence confinement or (b)
credit time earned from time spent in pre-sentence confinement. Clearly,
however, the abstract of judgment form requested only one number. In this
box, the trial judge entered "187."
In contrast to the abstract of judgment, the trial court's actual
sentencing judgment includes the following: "The Court also finds that the
Defendant shall be given one hundred eighty-seven (187) days credit toward
the sentence of imprisonment for time spent in confinement as a result of
this charge and the Court recommends that said time be considered as good
time credit provided by law." Supplemental Appendix at 10-11.
Thus in this case, the trial court's written judgment entry imposing
the sentence presumptively complied with the statutory requirement that the
sentencing judgment include "the amount of credit, including credit time
earned, for time spent in confinement before sentencing." Ind. Code § 35-38-
3-2(a). However, the abstract of judgment form signed by the trial judge
for transmission of the judgment to the Department of Correction contained
no separate reference to credit time. Our Court of Appeals has stated that
Indiana trial courts use the abstract of judgment "to convey the final
judgment to the receiving authority," and that it is the abstract of
judgment "which embodies the final judgment of the trial court." Hatchett,
794 N.E.2d at 546, quoting Risner v. Indiana Parole Board, 779 N.E.2d 49,
52 (Ind. Ct. App. 2002). Transfer to this Court was not sought in either
Hatchett or Risner.
The statute requiring the trial court's inclusion of credit time does
not refer to the abstract of judgment.
(a) When a convicted person is sentenced to imprisonment, the
court shall, without delay, certify, under the seal of the court,
copies of the judgment of conviction and sentence to the receiving
authority.
(b) The judgment must include:
(1) the crime for which the convicted person is adjudged guilty
and the classification of the criminal offense;
(2) the period, if any, for which the person is rendered
incapable of holding any office of trust or profit;
(3) the amount of the fines or costs assessed, if any, whether
or not the convicted person is indigent, and the method by which
the fines or costs are to be satisfied;
(4) the amount of credit, including credit time earned, for time
spent in confinement before sentencing; and
(5) the amount to be credited toward payment of the fines or
costs for time spent in confinement before sentencing.
(c) The judgment may specify the degree of security recommended
by the court.
(d) A term of imprisonment begins on the date sentence is
imposed, unless execution of the sentence is stayed according to law.
Ind. Code § 35-38-3-2 (emphasis added). Other than the ambiguous box
labeled "No. of days confined prior to sentencing," the Department of
Correction's abstract of judgment form requested only the information
specified by subsection (b)(1), and clearly did not seek that specified in
subsections (b)(2), (b)(3), and (b)(5). The contents of the abstract of
judgment form do not control the information that the sentencing judge must
include in the judgment of conviction. We construe the italicized word
"judgment" in subsection (b) above to refer to the phrase "judgment of
conviction" in subsection (a) and thus to require the inclusion of
designated information only in the judgment of conviction, a copy of which
must be provided by the trial court to the Department as receiving
authority. The Department's abstract of judgment form is not the "judgment
of conviction." To the extent they hold otherwise, Hatchett and Risner are
overruled.
The remedy of a motion to correct sentence arising from by Indiana
Code § 35-38-1-15 speaks only in terms of "sentence," not "judgment of
conviction":
If the convicted person is erroneously sentenced, the mistake does not
render the sentence void. The sentence shall be corrected after
written notice is given to the convicted person. The convicted person
and his counsel must be present when the corrected sentence is
ordered. A motion to correct sentence must be in writing and
supported by a memorandum of law specifically pointing out the defect
in the original sentence.
Id. (emphasis added). We nevertheless hold that the "sentence" that is
subject to correction under this procedure means the trial court's judgment
of conviction imposing the sentence and not the trial court's entries on
the Department of Correction's abstract of judgment form. It is the
court's judgment of conviction and not the abstract of judgment that is the
official trial court record and which thereafter is the controlling
document. Therefore, a motion to correct sentence may not be used to seek
corrections of claimed errors or omissions in an abstract of judgment.
We note that the actual judgment of the trial court included the fact
that the defendant had spent 187 days in confinement before sentencing and
designated that he was entitled to credit time for these 187 days, which
results in a total credit of 374 days. This judgment of conviction, not
the abstract of judgment, is controlling. Because the defendant is seeking
correction of the abstract of judgment in his case, there is no error in
denying the defendant's motion to correct sentence.[8]
3. Conclusion
We hold that a motion to correct sentence is available only to correct
sentencing errors clear from the face of the judgment; that such motion is
not equivalent to a petition for post-conviction relief and may be filed at
any time; that a trial court's sentencing judgment must report not only the
number of days confined while imprisoned before sentence but also must
separately designate the credit time earned for the said period of
confinement; that such trial court determination is subject to modification
by the Department of Corrections pursuant to statute; that judgments
reporting pre-sentence confinement time but omitting credit time will be
presumed to designate credit time days equal to days of pre-sentence
confinement; and that a motion to correct sentence is not available to
challenge entries or omissions in an abstract of judgment. We affirm the
trial court's denial of the defendant's motion to correct sentence.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Beginning in 1989, the role of the motion to correct error as a
prerequisite to appeal was substantially modified. Compare Ind. Trial Rule
59 (1988) with Ind. Trial Rule 59 (1989).
[2] Even though a direct appeal may not be used to allege errors
involving a conviction based upon a guilty plea, it may be used to
challenge sentencing errors. Johnson v. State, 734 N.E.2d 242, 247 (Ind.
2000); Tumulty v. State, 666 N.E.2d 394, 395-96 (Ind. 1996).
[3] In Gaddie, 566 N.E.2d at 537, this Court permitted a motion to
correct sentence that presented an allegation requiring a review of the
trial court records, noting that the allegation did not raise an issue of
fact requiring an evidentiary hearing. Because the direct appeal and post-
conviction proceedings, in their present form, are superior vehicles with
which to assemble the court record, and because the essential nature of the
motion to correct sentence is to provide an expedited opportunity to
correct obvious sentencing errors, we decline to approve its use to present
claims that require resort to the record outside the sentencing judgment
for resolution.
[4] The phrase "good time" appears only twice in the entire Indiana
Code. It first appears in the Interstate Agreement on Detainers Statute in
designating the information that must be provided with a prisoner's request
to be brought to trial. Ind. Code § 35-33-10-4(a). Its other appearance
is in the Death Penalty and Life Without Parole Statute regarding the
information that must be given to a penalty phase jury. Ind. Code § 35-50-
2-9(d).
[5] For purposes of our opinion in Purcell v. State, we used the
phrase "good time credit" to describe "the additional credit a prisoner
receives for good behavior and educational attainment," and the phrase
"credit for time served" to refer to "the credit toward the sentence a
prisoner receives for time actually served." 721 N.E.2d 220, 222.
[6] To the extent that past sentencing judgments of Indiana trial
courts have referred to a prisoner's earned credit time as a
"recommendation," we deem such recommendations to constitute the trial
court's final determination.
[7]We recognize the possibility that a person confined awaiting trial
and sentencing may successfully complete educational requirements as
specified in Indiana Code 35-50-6-3.3(b). When this occurs, we recommend
that this fact be recognized in the trial court's sentencing judgment.
[8] The State urged at oral argument that we should require that
claims of sentencing error related to the award of credit time be presented
not by a motion to correct erroneous sentence but by an action for habeas
corpus that would include the Department of Correction or its employee as a
named defendant so that the Department could protect its interests
regarding the prisoner's credit time classification. We decline to impose
this limitation.