Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                     Oct 22 2014, 9:50 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


APPELLANT, PRO SE:                                 ATTORNEYS FOR APPELLEE:

DARCELL MCCANTS                                    GREGORY F. ZOELLER
Bunker Hill, Indiana                               Attorney General of Indiana

                                                   KYLE HUNTER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

DARCELL MCCANTS,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 79A04-1311-CR-591
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                            The Honorable Thomas H. Busch, Judge
                                Cause No. 79D02-0607-FB-48


                                        October 22, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                             STATEMENT OF THE CASE

        When the trial court sentenced Darcell McCants (“McCants”), it specifically noted

that he was entitled to 427 days of presentence jail credit and 427 days of presentence

earned or good time credit. McCants later filed a grievance with the Department of

Correction to challenge the Department of Correction’s application of his presentence

credit time, claiming that the Department of Correction had not credited him with his

earned credit time at sentencing, which would have affected his projected release date.

After the Department of Correction denied his request, McCants filed a motion for

presentence credit time with the trial court, which denied his motion.

        McCants, pro se, now appeals the trial court’s order denying his motion for

presentence credit time. Applying the method of calculating a prisoner’s earliest projected

release date set forth by our Indiana Supreme Court in Neff v. State, we conclude that the

Department of Correction credited McCants with his presentence earned credit time.

Accordingly, we affirm the trial court’s denial of McCants’s motion for presentence credit

time.

        We affirm.

                                          ISSUE

        Whether the trial court abused its discretion by denying McCants’s motion
        for presentence credit time.


                                         FACTS

        On November 24, 2008, the trial court ordered McCants to serve an aggregate term

of thirty-five (35) years in the Department of Correction for his Class A felony dealing in

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cocaine conviction and his habitual substance offender adjudication. On its Abstract of

Judgment, the trial court noted that McCants was entitled to jail time credit of “427 Actual

Days with an equivalent amount of good time [credit].” (App. 7).

       In May 2013, McCants filed a grievance with the Department of Correction,

challenging its application of his 427 days of good time or earned credit time for his time

served prior to sentencing. The Department of Correction denied McCants request, noting

that “JTC [jail time credit] was applied correctly” and indicating that McCants had received

both jail time credit and earned credit time. (App. 2).

       On July 12, 2013, McCants filed a pro se “Motion for Jail Time Credit” with the

trial court. In his motion, McCants acknowledged that the Department of Correction had

applied his 427 days of presentence jail credit but argued that the Department of Correction

was “not properly applying” his 427 days of earned credit time. (App. 4). McCants

asserted that his “EPRD” or earliest possible release date—also referred to as an “out

date”—was incorrect. (App. 3). In his motion, McCants referred to a “Detail Credit Time

Calculation” and argued that the Department of Correction had made an “incorrect

calculation[.]” (App. 4). The Department of Correction form entitled “Detail Credit Time

Calculation as of 04/26/2013[,]” which is included in the record, indicates that McCants

initially had a projected release date of March 24, 2025, assuming that he remained in a

Class I credit class during his entire incarceration.1 In his motion, McCants did not offer

an alternative calculation or explain what he thought his projected release date should be.



1
 While in the Department of Correction, McCants apparently had conduct infractions and, accordingly,
had his projected release date modified. This adjusted credit time is not at issue in this appeal.
                                                 3
Instead, McCants stated that he was not requesting the trial court to “fix his out date as this

is the sole responsibility of the [Department of Correction,]” but asserted that he was

“simply point[ing] out the facts that support the incorrect calculations and the proper

calculations that are on the face of the record.” (App. 4). McCants requested the trial court

to issue an amended abstract of judgment reflecting that he was entitled to 427 days of

presentence jail credit and 427 of earned credit time2 and to serve it upon the Department

of Correction.

          Thereafter, the State filed a response to McCants’s motion, which apparently

included an attached declaration in support of the Department of Correction’s credit time

calculation.3 On September 29, 2013, the trial court issued findings of fact and conclusions

of law, denying McCants’s motion.4 Specifically, the trial court applied the method for

calculating a prisoner’s earliest release date described in our Indiana Supreme Court’s

opinion of Neff v. State, 888 N.E.2d 1249 (Ind. 2008), determined that McCants’s initial

projected release date was March 24, 2025, and concluded that McCants was not entitled

to additional presentence credit time. In its order, the trial court explained that the

Department of Correction’s method of calculating the initial projected release date varied


2
    As noted above, the trial court’s abstract of judgment already included this credit information.
3
 McCants has failed to include a copy of the State’s response and corresponding attachments in his
Appellant’s Appendix.
4
 Contrary to Appellate Rule 50, McCants has failed to include a copy of this trial court order being appealed
in his Appendix. Nevertheless, he has, in accordance with Appellate Rule 46(A)(10), included a copy of
the trial court’s order in the back of his Appellant’s Brief. This order, however, is unsigned, undated, and
contains no file stamp. The State does not challenge the validity of this unsigned order; thus, we will review
McCants’s argument and proceed in this appeal under the assumption that this order is valid. See Ind.
Appellate Rule 49(B) (providing that a “party’s failure to include any item in an Appendix shall not waive
any issue or argument”).
                                                        4
slightly from the Neff method but resulted in the same initial projected release date of

March 24, 2025. Specifically, the Department of Correction credited McCants with his

427 days of presentence jail credit and earned credit time by subtracting the jail credit time

from his date of sentencing to arrive at an effective date of sentencing and then placing him

in Class I credit during that time period. Because both methods led to the same initial

projected release date and revealed that McCants had been credited with his presentence

earned credit time, the trial court denied McCants’s motion. McCants now appeals.

                                        DECISION

       McCants challenges the trial court’s order denying his motion for presentence credit

time. When reviewing a trial court’s decision denying a request for credit time, we review

only for an abuse of discretion. Brattain v. State, 777 N.E.2d 774, 776 (Ind. Ct. App. 2002).

“An abuse of discretion occurs when the trial court’s decision is against the logic and effect

of the facts and circumstances before it.” Id.

       As he did below, McCants acknowledges that the Department of Correction

awarded him with 427 days of presentence jail credit but contends that it did not apply his

427 days of earned credit time and “improperly calculated” his projected release date.

(McCants’s Br. 2). Again, as he did below, McCants fails to offer an alternative calculation

or explain what his projected release date should be.

       The State contends that the trial court’s denial of McCants’s motion for presentence

credit time should be affirmed because application of the calculation method described in

Neff reveals that McCants had an initial projected release date as March 24, 2025 and that



                                              5
the Department of Correction did not deny McCants any presentence credit time. We agree

with the State.

          The Neff Court reviewed the proper method of calculating a prisoner’s earliest

release date and explained that “when an offender is sentenced and receives credit for time

served, earned credit time, or both, that time is applied to the new sentence immediately,

before application of prospective earned credit time, in order to determine the defendant’s

earliest release date.” Neff, 888 N.E.2d at 1251. Application of the Neff calculation method

to McCants’s sentence reveals the following:

35-year sentence                                                  12,783 days
Time already served at sentencing                                  - 427 days
Earned Class I credit at sentencing                                - 427 days
Time left to serve                                                11,929 days
Time to serve with Class I credit (half of days left)               5,964 days

          Based on McCants’s sentencing date of November 24, 2008, this calculation results

in a projected release date of March 24, 2025, which is the initial projected release date

contained in the records of the Department of Correction presented to the trial court.5

Because the Department of Correction calculated McCants’s projected release date to

include his presentence jail credit and his earned credit time, the trial court did not abuse

its discretion by denying McCants’s motion.6




5
    As discussed above, McCants’s projected release date has since changed due to his conduct issues.
6
  As the trial court noted, although the Department of Correction’s method for calculating the initial
projected release date differed slightly from the method described in Neff, the Department of Correction’s
method nevertheless follows the Neff Court’s instructions to apply presentence credit time prior to
prospective earned credit time.

                                                      6
      Affirmed.

NAJAM, J., and BAILEY, J., concur.




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