Brown v. State

BAKER, Chief Judge,

concurring in part and dissenting in part.

I agree with my colleagues' conclusion that the trial court did not abuse its discretion in not recognizing Brown's guilty plea as a significant mitigating factor. Moreover, I agree that Brown's ten-year sentence is appropriate when considering the nature of his offense and his character. However, I part ways with the determination that Brown is entitled to pretrial ered-it time against his sentence.

The lead opinion quotes this court's opinion in James v. State for the proposition that whether a defendant earns credit time for charges dismissed by a plea agreement turns on whether those charges and the charges on which the sentence is imposed are "based on the same set of underlying facts." 872 N.E.2d 669, 672 (Ind.Ct.App.2007). - Here, it is not disputed that the charges dismissed on March 6 were not related to the April 9 charge on which Brown was eventually sentenced. Thus, I agree with the lead opinion's determination that Brown is not entitled to credit for time served from March 6 to April 10.

On the other hand, I cannot agree with the conclusion that Brown should receive credit for time served between April 10 and October 15. As the lead opinion notes, this court in Stephens v. State, 735 N.E.2d 278, 284 (Ind.Ct.App.2000), held that where the defendant incarcerated on more than one charge is sentenced to concurrent terms for the separate crimes, "IC 35-50-6-3 entitles him to receive eredit time applied against each separate term." However, Brown was not sentenced to concurrent terms of incarceration for separate crimes. Rather, he pleaded guilty to only one charge and the remaining unrelated counts were dismissed pursuant to the plea agreement. Because those charges were dismissed in accordance with the terms of the plea agreement, it follows that Brown *597was not incarcerated as a result of the charge for which he was sentenced. Thus, I cannot agree that the rule announced in Stephens cited above regarding Indiana Code section 35-50-6-3 applies in these circumstances. Although the parties could have allowed for credit time that pertained to the "wholly unrelated charges" that were ultimately dismissed, the parties did not negotiate such terms in the plea agreement.

Additionally, I believe that this court's opinion Dewees v. State is instructive here. In Dewees

[The defendant] was arrested ... and confined to jail on a theft charge on August 12, 1981. An information was filed on August 18, 1981. Dewees made bond on September 1, 1981, and remained free ... until September 3, 1981, when he was rearrested ... on new unrelated theft and burglary charges.... Dewees remained in ... jail until December 30, 1981, when, upon his plea of guilty pursuant to a written plea bargain, he was given a four-year executed sentence for the earlier theft charge. The later, unrelated burglary and theft charges were dismissed pursuant to the same plea bargain. The trial court credited the defendant with 21 days presentence jail time (apparently from August 12 to September 1).

444 N.E.2d 382, 332 (Ind.Ct.App.1983). In affirming the trial court, we observed that

Although IC 35-50-6-3 states a defendant is allowed credit for time 'confined awaiting trial or sentencing," we conclude the Legislature clearly intended the eredit to apply only to the sentence for the offense for which the presen-tence time was served. Any other result would allow credit time for time served on wholly unrelated offenses. Under the criminal justice system, once convicted, the defendant must serve the sentence imposed for the offense committed. - Credit time allowed by legislative grace toward a specific sentience clearly must be for time served for the offense for which that specific sentence was imposed.
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Dewees was clearly not held more than 21 days on the charge for which he was sentenced. He is not entitled to any credit which may have acerued on a separate charge. The rule and the statute are based on the constitutional guarantees involving double jeopardy and equal protection. The end result is that a defendant, because of time spent in jail awaiting trial, will not serve more time than the statutory penalty for the offense, and will not serve more time than a defendant who has the good fortune to have bail money.

Id. at 334 (emphases added).

In light of the conclusion reached in Dewees, coupled with the rule that credit is to be applied for confinement time that is a "result of the criminal charge for which sentence is being imposed," e.g., James, 872 N.E.2d at 672, I believe that the trial court properly denied Brown's request for pretrial credit time. Thus, I would affirm the judgment in all respects.