MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be
                                                                   Aug 19 2016, 8:00 am
regarded as precedent or cited before any
court except for the purpose of establishing                            CLERK
                                                                    Indiana Supreme Court
the defense of res judicata, collateral                                Court of Appeals
                                                                         and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald E. C. Leicht                                      Gregory F. Zoeller
Kokomo, Indiana                                          Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Nicholas Burchett,                                       August 19, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A04-1602-CR-333
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable William C.
Appellee-Plaintiff                                       Menges, Judge
                                                         Trial Court Cause No.
                                                         34D01-1301-FC-13



Bailey, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 34A04-1602-CR-333 | August 19, 2016       Page 1 of 9
[1]   Nicholas Burchett (“Burchett”) appeals a probation revocation order of the

      Howard Superior Court reinstating his previously-suspended sentence for

      Dealing in a Look-Alike Substance, a Class C felony,1 and calculating his pre-

      disposition credit time to be 328 days. Burchett presents the issue of whether

      the trial court erred in its calculation of credit time.2 We reverse and remand.



                                Facts and Procedural History
[2]   On September 4, 2013, Burchett pled guilty to Dealing in a Look-Alike

      Substance, Battery, and Resisting Law Enforcement. He received an aggregate

      sentence of eight years, with three years suspended to probation.


[3]   On July 23, 2014, the Indiana Department of Correction (“the DOC”) filed in

      the trial court documents verifying that Burchett had completed a DOC

      therapeutic community program (“the DOC program”), had “received 183 days

      of credit for his achievement,” and thus the DOC had assigned a “New earliest

      possible release date” of January 7, 2015. (App. at 57, 59.) On September 15,

      2014, Burchett was approved for the Community Transition Program, “under




      1
          Ind. Code § 35-48-4-4.6(a). The offense is now a Level 5 felony.
      2
        He also makes a cursory allegation that the trial court violated a plea agreement by including the provision:
      “The sentence imposed in this cause shall run consecutively to any sentence imposed in Wabash County.”
      (App. at 93.) Indiana Code Section 35-50-1-2(e) provides that, if, after being arrested for a crime, a person
      commits another crime before the date the person is to be discharged from probation, “the terms of
      imprisonment shall be served consecutively, regardless of the order in which the crimes are tried and
      sentences are imposed.” The trial court’s language did not increase the sanction upon Burchett. The
      observation appears to be superfluous, as Burchett had already served his sentence arising from conduct in
      Wabash County. Nonetheless, although Burchett admitted his violation of probation, he could not enter into
      a plea agreement avoiding the statutory requirement of consecutive sentences.

      Court of Appeals of Indiana | Memorandum Decision 34A04-1602-CR-333 | August 19, 2016               Page 2 of 9
      Electronic Monitoring, Day Reporting and/or Reentry Court Supervision.”

      (App. at 71.) The trial court ordered Burchett’s sentence modified to provide

      for release from the DOC on December 13, 2014. Without a specific reference

      to a number of days, “the balance of the executed sentence” was suspended, to

      be served on supervised probation. (App. at 71.) As a condition of probation,

      Burchett was ordered to successfully complete the Howard County Re-Entry

      Program.


[4]   On December 10, 2014, the trial court entered an additional order:

              The Defendant having violated the terms and conditions of the
              Re-Entry Court Program, the Court now finds the Defendant is
              in indirect contempt of Court. The Court further now orders the
              Defendant, Nicholas Burchett, to be held without bond.


      (App. at 72.) On February 4, 2015, the trial court noted that Burchett had

      “fail[ed] to appear for the Re-Entry Court Program” and ordered a warrant

      issued for Burchett. (App. at 8.) On September 10, 2015, the Howard County

      Sheriff notified the trial court that Burchett had been arrested one day earlier on

      the outstanding warrant.


[5]   On November 18, 2015, Burchett appeared at a hearing on a Notice of

      Termination from Re-Entry Court Program. He admitted that the allegations

      contained in the notice were true. The trial court stated that Burchett was to be

      “held without bond” and the “probation department is given 72 hours to file a

      Petition to Revoke.” (App. at 11.) On the same day, the State filed its Petition

      to Revoke Suspended Sentence. Again, the trial court issued a warrant for

      Court of Appeals of Indiana | Memorandum Decision 34A04-1602-CR-333 | August 19, 2016   Page 3 of 9
      Burchett. On December 9, 2015, the Sheriff notified the court that Burchett

      “was arrested on December 7, 2015 on the outstanding warrant for the Petition

      to Revoke Suspended Sentence filed November 18, 2015.” (App. at 10.)


[6]   On January 20, 2016, Burchett appeared at a fact-finding hearing and admitted

      that he had violated a term of his probation when he had been terminated from

      the Re-Entry Program. Burchett testified that he had experienced a drug

      relapse and “took off.” (Tr. at 21.) Thereafter, he was charged with, and

      served time for, a criminal offense in Wabash County.


[7]   Also on January 20, 2016, the trial court entered an order on the petition to

      revoke, providing in relevant part:

              The Court accepts the Defendant’s plea of True and finds the
              Defendant, Nicholas William Burchett, violated the terms of his
              probation as alleged[.] . . .


              The Court now imposes the balance of the Defendant’s
              suspended sentence and orders the same executed in the Indiana
              Department of Correction which the court determines to be 1512
              days, all executed.


              The sentence imposed in this cause shall run consecutively to any
              sentence imposed in Wabash County.


              The Defendant has jail time credit in the sum of 164 actual days
              or 328 credit days, day for day credit, served while awaiting
              disposition in this matter.


      (App. at 86.) This appeal ensued.

      Court of Appeals of Indiana | Memorandum Decision 34A04-1602-CR-333 | August 19, 2016   Page 4 of 9
                                  Discussion and Decision
[8]    Burchett does not challenge the trial court’s decision to revoke his probation

       and impose the entirety of his suspended sentence as a probation violation

       sanction. However, he challenges the trial court’s calculation of credit time in

       two respects. He argues that he did not receive full credit for his time in jail

       awaiting disposition and that he was deprived of his credit for participation in

       the DOC program.


[9]    We review a trial court’s factual determinations for an abuse of discretion, and

       we review legal conclusions de novo. Harding v. State, 27 N.E.3d 330, 331 (Ind.

       Ct. App. 2015). On appeal, the appellant bears the burden of showing that the

       trial court erred. Id. at 332.


[10]   Generally, because presentence jail time credit is a matter of statutory right,

       trial courts do not have discretion in awarding or denying such credit. James v.

       State, 872 N.E.2d 669, 671 (Ind. Ct. App. 2007). At the initial imposition of

       Burchett’s sentence, he was assigned to Class I for credit time purposes,3 and

       Indiana Code Section 35-50-6-3.1(b) then provided: “A person assigned to

       Class I earns one (1) day of credit time for each day the person is imprisoned for

       a crime or confined awaiting trial or sentencing.” Credit time is earned for time

       spent in confinement as a result of the charge for which the defendant is being




       3
           I.C. § 35-50-6-4(a).


       Court of Appeals of Indiana | Memorandum Decision 34A04-1602-CR-333 | August 19, 2016   Page 5 of 9
       sentenced. Bischoff v. State, 704 N.E.2d 129, 130 (Ind. Ct. App. 1998), trans.

       denied.


[11]   At the January 20, 2016 fact-finding hearing, Burchett testified that he had first

       been arrested on January 10, 2013 and had continuously accrued credit time

       while incarcerated at the Howard County Jail or in the DOC, or participating in

       a Community Transition program “all the way up until January 9, 2015” or

       “one day shy of two years.” (Tr. at 23.) Burchett also testified that he had

       completed the DOC Program. According to Burchett, he had received a “one

       year credit time cut” for that program and was, as of January 9, 2016, “two

       days shy of having five years credit.” (Tr. at 23.)


[12]   Burchett also testified regarding a charge in Wabash County. Burchett

       admitted that he faced a new charge in Wabash County after he absconded

       from the Community Transition Program, and that he had been “sentenced to a

       time-served plea.” (Tr. at 25.) Burchett testified that he entered into a plea

       agreement on September 3, 2015, was released from Wabash County’s custody

       on that same date, and was transported to the Howard County Jail on

       September 9, 2015.


[13]   At the conclusion of the testimony, the trial court made an oral statement with

       respect to credit time:


                 The defendant was originally sentenced in this case on September
                 4th, 2013 to 2,920 days at the Department of Correction. At that




       Court of Appeals of Indiana | Memorandum Decision 34A04-1602-CR-333 | August 19, 2016   Page 6 of 9
                  period of time he was given credit for 428 [sic] 4 days which left a
                  balance of 2,242 days [sic]. He then served within the
                  Department of Correction from September 5th, 2013 through
                  December 13th, 2014, which was 930 days, credit days, leaving a
                  balance of his suspended sentence of 1,512 days. The court now
                  finds that that should be executed. He’s given credit for 164 days
                  or 328 days day-for-day credit served while awaiting disposition
                  in this matter [leaving 1,184 days] and we also need to show that
                  he is entitled to whatever credit time he’d earned previously
                  while within the Department of Correction which would reduce
                  the 1,512 days to whatever the Department of Correction deems
                  appropriate.


       (Tr. at 27-28.)


[14]   On appeal, Burchett observes that he was incarcerated in the DOC or

       participating in a Community Transition Program (and thus accruing credit

       time) from his sentencing on September 4, 2013 until his probation violation

       sanction was imposed on January 26, 2016. He then argues that all that time is

       applicable to the Dealing conviction and he had “no more than 694 days to

       serve (2,920 less 478, less (874 x 2)).” Appellant’s Br. at 6. The State argues

       that a portion of the time Burchett was incarcerated before the probation

       violation sanction was imposed was attributable to a new charge in Wabash

       County.


[15]   According to the State, the proper calculation of credit time is as follows. The

       aggregate sentence of 2,920 days was reduced by 478 days credit for pretrial



       4
           The actual number of days of pretrial credit was 478.


       Court of Appeals of Indiana | Memorandum Decision 34A04-1602-CR-333 | August 19, 2016   Page 7 of 9
       incarceration, leaving 2,442 days. Burchett was in the DOC from September 5,

       2013 through December 13, 2014 (accruing 465 actual and 465 good time credit

       days for a total of 930 days). Subtracting 930 from 2,442 leaves 1,512 days.

       This time remained when Burchett was arrested in Wabash County. He was

       released from custody in Wabash County and began serving custodial, pre-

       disposition time in this case on September 4, 2015. He was awarded 164 actual

       days and 164 good time credit days (equal to 328 days) for this pre-disposition

       incarceration, leaving 1,184 days.


[16]   Evidence presented at the fact-finding hearing indicates that, on some

       unspecified date after his release from the DOC in December of 2014, Burchett

       was incarcerated in Wabash County; he was sentenced to time served in

       Wabash County and began serving time in the Howard County case in

       September of 2015. If, after being arrested for a crime, a person commits

       another crime before the date the person is to be discharged from probation,

       “the terms of imprisonment shall be served consecutively, regardless of the

       order in which the crimes are tried and sentences are imposed.” I.C. § 35-50-1-

       2(e). When consecutive sentences are required, credit time cannot be earned

       against each underlying sentence. Brown v. State, 907 N.E.2d 591, 595 (Ind. Ct.

       App. 2009). Such an interpretation would result in “double credit,” essentially

       allowing the sentences to be served concurrently, not consecutively. French v.

       State, 754 N.E.2d 9, 17 (Ind. Ct. App. 2001); Diedrich v. State, 744 N.E.2d 1004,

       1006 (Ind. Ct. App. 2001) (citing Stephens v. State, 735 N.E.2d 278, 284 (Ind. Ct.




       Court of Appeals of Indiana | Memorandum Decision 34A04-1602-CR-333 | August 19, 2016   Page 8 of 9
       App. 2000), trans. denied). Here, the trial court did not err in declining to award

       Burchett credit for days serving a sentence in Wabash County.


[17]   As to credit for the DOC program, it is clear from the trial court’s oral

       statement that there was no factual dispute regarding the program completion,

       and the trial court intended that Burchett receive the appropriate time

       reduction. However, the probation violation sanction order was not in

       conformity with the modification order, as the calculation of days in the

       sanction order did not reflect a reduction of days for completion of the DOC

       program. And, unlike the modification order, the sanction order did not

       include the DOC in the distribution list. It is thus unclear how Burchett would

       actually receive his credit after the modification order was superseded.

       Accordingly, we reverse and remand for correction.



                                               Conclusion
[18]   The trial court did not err in its calculation of credit time for Burchett’s pre-

       disposition incarceration. However, the additional credit attributable to the

       DOC program was omitted from the trial court’s sanction order. We thus

       reverse that order and remand for correction.


[19]   Reversed and remanded.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A04-1602-CR-333 | August 19, 2016   Page 9 of 9
