Appellant Pro Se Attorneys for Appellee
Samuel I. Crow Steve Carter
Bunker Hill, Indiana Attorney General of
Indiana
Andrew A. Kobe
Deputy Attorney General
____________________________________________________________________________
__
In the
Indiana Supreme Court
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No. 87S01-0403-CR-119
Samuel I. Crow,
Appellant (Defendant below),
v.
State Of Indiana,
Appellee (Plaintiff below).
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Appeal from the Warrick Superior Court, No. 87D01-0105-CF-54
The Honorable Keith A. Meier, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 87A01-0301-
CR-0005
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March 10, 2004
Dickson, Justice.
Eleven months after his 2001 convictions and fifteen-year sentence
for six counts of theft, the defendant filed a motion to correct sentence
alleging that the trial court failed to grant him credit time in addition
to actual time served.[1] In its denial of the motion, the trial court
"suggest[ed] the defendant consult with the [Department of Correction]
concerning their assignment of credit time." Appellee's Appendix at 6.
Upon the defendant's appeal from the denial of his motion, the Court of
Appeals reversed and remanded, instructing the trial court to issue a
corrected abstract of judgment. Crow v. State, 797 N.E.2d 319, 325 (Ind.
Ct. App 2003). We grant the State's petition to transfer to resolve this
case in accord with our opinion today in Robinson v. State, ___ N.E.2d ___
(Ind. 2004).
The trial court's judgment of conviction imposing sentence stated:
"defendant is entitled to 179 days of credit time." Appellee's Appendix at
5. This was the only language in the judgment relating to the time spent
in pre-sentence confinement or the credit time earned. The Department of
Correction's abstract of judgment form completed by the trial judge in this
case[2] included the following relevant part:
PART 3: JUDGE'S RECOMMENDATIONS
. . .
Class One Credit: YES ____ NO x
Credit days: 179
Appellee's Appendix at 9.
In Robinson, we hold that the "judgment of conviction, not the
abstract of judgment, is controlling." Robinson, ___ N.E.2d at ___ (slip
opin. at 14). While a motion to correct sentence may be used to address
facial errors in a sentencing judgment, it is not available to challenge
entries or omissions in an abstract of judgment. Id.
The trial court's sentencing judgment statement that "defendant is
entitled to 179 days of credit time" falls somewhat short of the statutory
requirement 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(b)(4). This statute requires that the trial court's
judgment of conviction separately include both the amount of time spent by
the defendant in confinement prior to imposition of sentence and also the
amount of credit time earned in accordance with the defendant's credit time
class. Robinson, ___ N.E.2d at ___ (slip opin. at 8). In the interests of
facilitating the fair and expeditious resolution of appellate litigation,
however, we note in Robinson that "[s]entencing 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." Id. at ___ (slip opin. at
12).
From the trial court's entry that the defendant "is entitled to 179
days of credit time," it is unclear whether "179" represents the number of
pre-sentence days spent in confinement, the amount of credit time under
Class I, or the amount of credit time following a reduction in credit time
class or deprivation of credit time during pre-sentence confinement.[3] If
the number of days spent in pre-sentence confinement had been clearly
indicated, an equal amount of additional credit time would be presumed. We
find entry in this case, however, to be sufficiently ambiguous so as to
constitute an erroneous sentence on the face of the judgment of conviction.
The State argues that the trial court does not have jurisdiction to
grant credit time for time spent in pre-sentence confinement. We reject
this argument today in Robinson, noting that the trial court has a
statutory obligation to include this determination in its sentencing
judgment, but acknowledging that the Department of Correction may
thereafter modify such pre-sentence credit time determination. Id. at ___
(slip opin. at 11).
We reverse the judgment of the trial court denying the defendant's
motion to correct sentence and remand for correction in accordance with
this opinion.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
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[1] Neither party's Appendix contains a copy of the motion to correct
sentence, but the briefs filed by both the defendant and the State agree as
to the nature of the claim made therein. Br. of Appellant at 1; Br. of
Appellee at 2.
[2] The abstract of judgment form here significantly differs from the
one used in Robinson.
[3] In contrast, we found presumptive compliance in the language of
the sentencing judgment in Washington v. State, ___ N.E.2d ___ (Ind. 2004),
also handed down today, in which the judgment stated: "The defendant is
given credit for 140 days pretrial confinement time." Id. at ___ (slip
opin. at 2). Unlike the judgment in Washington, which refers to the time
spent in confinement, the judgment in the present case is unclear regarding
the length of time served by Crow before the final judgment.