ATTORNEY FOR APPELLANT
Nicholas C. Deets
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Steve Carter
Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
TERRY R. KINCAID, )
)
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 06S01-0204-PC-258
v. )
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 06A01-0104-PC-138
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE BOONE SUPERIOR COURT
The Honorable James R. Detamore, Judge
Cause No. 06D02-9607-CF-310
__________________________________________________________________
ON PETITION FOR TRANSFER
__________________________________________________________________
November 12, 2002
BOEHM, Justice.
The Court of Appeals concluded that double jeopardy required that
time served on probation must be credited toward a new sentence of
probation imposed for the same conviction after a defendant successfully
petitions for post-conviction relief. We agree. Kincaid’s claim is also
governed by Indiana Code section 35-50-1-5 and Post-Conviction Rule 1(10),
which require credit for time served by a successful post-conviction
petitioner who is resentenced. However, because Kincaid did not appeal his
sentence until after he violated the terms of his probation, the trial
court did not commit reversible error by requiring him to serve out the
remainder of his sentence.
Factual and Procedural Background
On September 16, 1997, Terry Kincaid entered into a plea agreement
with the State under which he pleaded guilty to Operating While Intoxicated
and Resisting Law Enforcement in exchange for the State’s dropping charges
of Escape, Attempted Theft, Criminal Mischief, and a violation of probation
in another case. On September 22, 1997, the trial court sentenced Kincaid
to consecutive one-year sentences, suspended them but for time served, and
placed Kincaid on probation for two years. Kincaid’s probationary period
was extended an additional year on March 4, 1999, due to a violation.
On October 6, 1999, Kincaid filed a petition for post-conviction
relief, arguing that his guilty pleas were not made knowingly or
voluntarily. On February 3, 2000, after Kincaid had served 636 days on
probation,[1] the post-conviction court granted Kincaid’s petition and set
aside his convictions. On February 17, 2000, Kincaid again pleaded guilty
to Operating While Intoxicated and Resisting Law Enforcement, and received
two years probation. However, the trial court did not credit Kincaid with
the 636 days of probation he had already served before winning in the post-
conviction court.[2]
On July 28, 2000, Kincaid violated his probation by again operating a
vehicle while intoxicated, and the State filed a petition to revoke
probation. Kincaid responded with a Motion to Correct Erroneous Sentence
and to Dismiss Petition to Revoke, contending that the trial court
improperly failed to credit his sentence with the 636 days he had served on
probation under the original sentence. If those days had been credited, he
argued, his second “two year” probationary term would have expired before
the violation occurred. The trial court denied his motion.[3] Kincaid
then filed a motion to reconsider, arguing that denying him credit for the
636 days violated the constitutional prohibition against double jeopardy.
That motion also was denied. The trial court granted Kincaid leave to seek
an interlocutory appeal, but the Court of Appeals denied Kincaid’s petition
to do so. After the trial court denied an amended Motion to Correct
Erroneous Sentence and to Dismiss Petition to Revoke, Kincaid admitted
violating his probation. The trial court ordered Kincaid to serve the
remaining portion of his sentence, but stayed the order so that Kincaid
might appeal that decision.
The Court of Appeals agreed with Kincaid’s double jeopardy claim,
holding that “Kincaid was subjected to multiple punishments for the same
offense.” Kincaid v. State, 757 N.E.2d 713, 718 (Ind. Ct. App. 2001). To
hold otherwise, the court stated, “could have a chilling effect upon a
defendant’s decision to file a petition for post-conviction relief to set
aside an illegal plea.” Id. This Court granted the State’s petition to
transfer.
Credit for Time on Probation
A. Constitutional Grounds
The State contends that the Court of Appeals’ application of double
jeopardy principles to Kincaid’s case was erroneous, because “Indiana law
provides that a defendant does not earn credit for time served while on
probation.” However, the case the State cites, Via v. State, 738 N.E.2d
684 (Ind. Ct. App. 2000), is not dispositive. Via addressed the issue
whether probation time must be credited when probation is revoked and the
defendant ordered to serve out the same sentence.
We agree that Via correctly held that a probation violation may
result in an executed sentence for the full term. But Kincaid is not
claiming that double jeopardy requires that a defendant who violates his
probation and is ordered to complete his prison term is entitled to credit
for the time spent on probation. That point is clearly settled against
such a claim under double jeopardy principles, because the probation and
prison time are both part of the same sentence. See, e.g., Hall v. Bostic,
529 F.2d 990, 992 (4th Cir. 1975). Rather, Kincaid’s claim is that a
defendant who succeeds in a post-conviction relief proceeding that vacates
the initial sentence of probation, and who is given a new sentence of
probation for the same crimes, is entitled to credit for the probation time
already served.
Although the State concedes that probation is a form of criminal
punishment, it contends that probation should not be considered punishment
for double jeopardy purposes. However, the State cites no cases directly
on point, and we agree with the several courts that have rejected this
contention, “at least where the question is whether the probationer can be
required to re-serve probation time already served.” Kennick v. Superior
Court, 736 F.2d 1277, 1281 (9th Cir. 1983) (citing United States v. Bynoe,
562 F.2d 126, 128 (1st Cir. 1977); United States v. Teresi, 484 F.2d 894,
899 (7th Cir. 1973); Oksanen v. United States, 362 F.2d 74, 80 (8th Cir.
1966); United States v. Rosenstreich, 204 F.2d 321 (2d Cir. 1953)); see
also Commonwealth v. Walton, 397 A.2d 1179, 1184 (Pa. 1979) (“[A]n order
placing a defendant on probation must be regarded as punishment for double-
jeopardy purposes.”). In North Carolina v. Pearce, 395 U.S. 711, 718-19
(1969), the United States Supreme Court held that “the constitutional
guarantee against multiple punishments for the same offense absolutely
requires that punishment already exacted must be fully ‘credited’ in
imposing sentence upon a new conviction for the same offense.” That was
clearly the case here. Kincaid served 636 days of punishment (probation)
for his first conviction, which was subsequently vacated, then served an
additional term of punishment (probation) for a second conviction based on
the very same offenses. Thus, the federal constitution requires that
Kincaid receive 636 days credit from the first sentence toward the second
sentence.
This Court has held that voluntarily accepting the terms of a plea
agreement results in the waiver of double jeopardy claims arising from the
sentence imposed. See Mapp v. State, 770 N.E.2d 332, 334 (Ind. 2002);
Games v. State, 743 N.E.2d 1132, 1134-35 (Ind. 2001). However, Mapp,
Games, and the earlier cases upon which they rest do not address the
present situation. Rather, they deal with sentences that ordinarily would
violate double jeopardy principles—e.g., sentencing for two “facially
duplicative” charges, Mapp, 770 N.E.2d at 334, or an offense and its
factually lesser-included charge, Games, 743 N.E.2d at 1134-35—but are
imposed as a result of a bargain specifically calling for conviction on
both crimes. Such an agreement forecloses the risk of charges on other
counts and typically provides an agreed or a maximum punishment.
Acceptance of those benefits waives any double jeopardy objection to
conviction for the agreed crimes. Here, there was no bargain on the part
of Kincaid and the State to forego crediting the 636 days Kincaid already
had served in exchange for some other consideration. In fact, it appears
that the original sentence was simply reimposed without the effect of
Kincaid’s probation time being addressed by the parties or the trial court.
The issue was not raised until Kincaid claimed he should not have remained
on probation at the time of his latest OWI incident. Under these
circumstances Kincaid cannot be said to have agreed in the plea agreement
to forego his constitutional right to credit for time served.
B. The Statutory Right to Credit for “Time Served”
Kincaid’s claim also raises issues under Indiana Code section 35-50-1-
5 and Post-Conviction Rule 1(10). Section 35-50-1-5 states:
If:
(1) prosecution is initiated against a petitioner who has
successfully sought relief under any proceeding for
postconviction remedy and a conviction is subsequently obtained;
or
(2) a sentence has been set aside under a postconviction remedy
and the successful petitioner is to be resentenced;
the sentencing court may impose a more severe penalty than that
originally imposed, and the court shall give credit for time
served.
(Emphasis added). Post-Conviction Rule 1(10)(b) similarly states:
If a sentence has been set aside pursuant to this rule and the
successful petitioner is to be resentenced, then the sentencing court
shall not impose a more severe penalty than that originally imposed
unless the court includes in the record of the sentencing hearing a
statement of the court’s reasons for selecting the sentence that it
imposes . . . and the court shall give credit for time served.
Kincaid’s earlier sentence was set aside under a post-conviction remedy,
and he was resentenced. Therefore, both the statute and rule apply.
The issue is whether time on probation is “time served” that must be
credited when a successful post-conviction petitioner is again sentenced to
probation for the same offense. Neither the statute nor the rule carves
out an exception for time served on probation. And as the Court of Appeals
pointed out, if no credit is given, petitioners like Kincaid who serve out
a good portion of their sentence before the merit of their claim is decided
would face longer punishment than those who forego the post-conviction
relief process. This contravenes the principle on which the statute and
rule are based: a successful petitioner should not be put in a worse
position—in Kincaid’s case, having to serve almost twice as much time on
probation—than if he had not sought relief at all. Although both section
35-50-1-5 and Post-Conviction Rule 1(10) permitted the trial court to
impose a more severe sentence than two years probation the second time
around, they did not give it the discretion to ignore the 636 days on
probation Kincaid had already served.
C. Kincaid’s Failure to Challenge His Sentence Until After His
Violation
Kincaid presumably could have challenged this failure to give proper
credit, but he had not done so by the time he committed the probation
violation. Kincaid’s argument is that his violation should be ignored
because the sentence upon which the probation was predicated was erroneous.
We disagree. The Fourth Circuit Court of Appeals’ analysis in United
States v. Wright, Nos. 94-6410, 95-6123, 1995 U.S. App. LEXIS 15839 (4th
Cir. June 27, 1995) (unpublished), is instructive. Even though Kincaid’s
sentence was erroneous, Kincaid was not entitled to make that determination
unilaterally and disregard the terms of his probation. Kincaid “had no
more right to ignore the terms of his probation than he would have to
escape from prison based on his own conclusion that he was wrongfully
incarcerated. Self help is simply not a legal option for postconviction
relief.” Id. at *15. Kincaid remained on probation subject to the terms
of his original sentence until adjudicated otherwise. Thus the trial court
did not commit reversible error by requiring Kincaid to serve out the
unexecuted portion of his sentence.
Conclusion
Although Kincaid’s new sentence should have credited him with the 636
days he already served on probation, no court had so ruled and Kincaid
remained on probation at the time of his violation. Accordingly, the trial
court’s order to serve the remainder of his sentence is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
-----------------------
[1] The calculation of Kincaid’s probation time served may be found in the
Court of Appeals’ opinion. Kincaid v. State, 757 N.E.2d 713, 718 (Ind. Ct.
App. 2001).
[2] The trial court’s new sentencing order and probation conditions make no
mention of how, if at all, the court accounted for the days Kincaid already
served on probation. The failure to mention those days raised the
possibility that the court believed it was imposing a new probationary
period of two years plus 636 days, giving credit to the 636 days Kincaid
had served. However, the court’s later order on Kincaid’s motion to
correct his sentence makes clear that the days were not credited by the new
sentence: “This Court is aware of no cases and does not believe that any
Appellate Court would determine that probation is being referred to by the
words ‘credit for time served.’”
[3] Neither Kincaid’s motion nor the trial court’s ruling is part of the
record on appeal.