MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Sep 28 2017, 8:35 am
court except for the purpose of establishing
                                                                        CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
estoppel, or the law of the case.                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                       Curtis T. Hill, Jr.
Kokomo, Indiana                                          Attorney General of Indiana

                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Sean A. Landrum,                                         September 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A04-1705-CR-1132
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable William C.
Appellee-Plaintiff.                                      Menges, Jr., Judge
                                                         Trial Court Cause No.
                                                         34D01-0706-FA-457



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A04-1705-CR-1132 | September 28, 2017   Page 1 of 13
                                       Statement of the Case
[1]   Sean A. Landrum appeals the trial court’s sentencing order on a petition to

      revoke his suspended sentence. Landrum raises one issue for our review, which

      we restate as the following two issues:

              1.      Whether the trial court abused its discretion when it
                      sentenced Landrum to a sentence that included supervised
                      probation instead of unsupervised probation.

              2.      Whether the trial court abused its discretion when it
                      declined to apply credit time to Landrum’s sentence.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On June 26, 2007, the State charged Landrum with four counts of dealing in

      cocaine, as Class A felonies (Counts I, III, IV, and V) and also alleged that he

      was a habitual offender (Count II) in cause number 34D01-076-FA-457 (“FA-

      457”). On February 17, 2009, the parties filed a recommendation of plea

      bargain, and, on March 18, the parties filed an amended recommendation of

      plea agreement. During the hearing, Landrum pleaded guilty to Count V,

      dealing in cocaine, as a Class A felony. The trial court accepted Landrum’s

      plea and entered judgment of conviction accordingly. Pursuant to the plea

      agreement, the trial court sentenced Landrum to twenty-five years with the

      Indiana Department of Correction, with twenty years executed and five years

      suspended to unsupervised probation.


      Court of Appeals of Indiana | Memorandum Decision 34A04-1705-CR-1132 | September 28, 2017   Page 2 of 13
[4]   On November 30, 2010, Landrum filed a petition for post-conviction relief. On

      May 16, 2012, the post-conviction court granted Landrum’s petition for post-

      conviction relief and held a hearing. After the hearing, the court found

      Landrum guilty of Count V, dealing in cocaine, as a Class B felony, and entered

      judgment of conviction accordingly. The court then sentenced Landrum to

      twenty years in the Indiana Department of Correction, with fifteen years

      executed and five years suspended to supervised probation. As a specific

      condition of probation, Landrum was required to attend and complete the

      Howard County drug re-entry program.


[5]   On October 6, 2014, the Indiana Department of Correction filed a notice of

      eligibility into the community transition program. On November 6, the trial

      court approved Landrum’s participation in the program and Landrum was

      placed on probation. On June 3, 2015, Landrum signed the re-entry program

      participation agreement in which he agreed to participate in the program and to

      abide by all rules and conditions of the program. Landrum further agreed “to

      waive his right to earn credit time for any time spent in jail or otherwise

      confined to which he would otherwise be entitle[d] pursuant to Indiana law

      during participation in the Reentry Program.” Appellant’s App. Vol. IV at 36.


[6]   On June 10, 2015, the State filed a notice of violation, and Landrum appeared

      in person before the trial court. The court found that he had violated the terms

      of the re-entry program, found him to be in indirect contempt of court, and

      ordered that he be taken into custody. On August 12, the court held a hearing

      on the notice of violation. Landrum appeared in person, and the trial court

      Court of Appeals of Indiana | Memorandum Decision 34A04-1705-CR-1132 | September 28, 2017   Page 3 of 13
      reiterated the same conclusions and again ordered that he be taken into

      custody. On August 19, Landrum failed to appear before the court as ordered,

      and the court issued a warrant for his arrest. On August 23, 2016, Landrum

      was arrested under cause number FA-457. On the same day, he was also

      arrested under cause number 34D01-1508-F4-777 (“F4-777) and charged with

      possession of a narcotic, as a Level 6 felony.


[7]   On August 31, 2016, the Howard County re-entry court case manager filed a

      notice that the program planned to terminate Landrum’s participation because

      he had absconded. Landrum denied the allegations in the notice of termination

      and entered a plea of false. At a hearing on September 28, Landrum withdrew

      that plea of false and entered a plea of true. The trial court then found that

      Landrum had violated the terms of the re-entry court program and terminated

      his participation. On October 3, the State filed a petition to revoke his

      suspended sentence, and, on October 12, Landrum entered plea of false to the

      allegations contained in the petition to revoke his suspended sentence.


[8]   On March 16, 2017, the parties filed a recommendation of plea agreement. In

      the recommended plea agreement, Landrum agreed to plead guilty in cause

      number F4-777 and to enter a plea of true to the allegations contained in the

      petition to revoke suspended sentence in cause number FA-457. The agreement

      further recommended as follows:

              [F4-777]: Defendant shall be sentenced to the Indiana
              Department of Correction for a period of one (1) year, all of
              which shall be executed. Overlapping credit time, up to one (1)

      Court of Appeals of Indiana | Memorandum Decision 34A04-1705-CR-1132 | September 28, 2017   Page 4 of 13
               year, shall be first applied to this cause to satisfy the executed
               sentence with any excess applied to cause number [FA-457]. The
               sentence imposed in this cause shall be served concurrently [sic]
               with any sentence imposed in the Defendant’s Illinois case and
               consecutively [sic] to the sentence in [cause number FA-457].


                                                  * * *


               [FA-457]: Sentencing shall be left to the Court after the parties
               have the opportunity to present evidence and argument.


       Appellant’s App. Vol. IV at 57.


[9]    At a hearing on April 27, pursuant to the plea agreement, Landrum withdrew

       his plea of false and entered a plea of true to the allegations contained in the

       petition to revoke suspended sentence in cause number FA-457, and he pleaded

       guilty in cause number F4-777. The trial court found him guilty in cause

       number F4-777 and entered judgment of conviction accordingly. During the

       hearing, the trial court stated that Landrum would serve his sentence for cause

       number F4-777 “concurrently [sic] with the sentence being served in Illinois

       that was committed for a weapons charge apparently while he was a fugitive in

       connection with these two cases . . . .” Tr. at 8.


[10]   The following conversation then occurred between the trial court and

       Landrum’s counsel to determine the amount of credit time from cause number

       F4-777, if any, that would be applied to Landrum’s sentence in cause number

       FA-457:



       Court of Appeals of Indiana | Memorandum Decision 34A04-1705-CR-1132 | September 28, 2017   Page 5 of 13
        THE COURT: Ok. Now let’s just make sure I’m understanding
        this. As I read it, it says he’s entitled to credit from the time he
        arrives in Indiana.


        [Landrum’s counsel]: Yes, sir.


        THE COURT: Which was August 23, 2016?


        [Landrum’s counsel]: (Inaudible) there should be a carry over to
        the [petition to revoke] case.


        THE COURT: Well, there would be a little bit, yes.


        [Landrum’s counsel]: It has to be consecutive[] so there
        shouldn’t be any carry over because he’s still (inaudible) the
        Illinois stuff through—


        THE COURT: Hang on a minute. Let me figure this. August
        23rd through today is 247 actual days, 494 days credit, so there’s
        129 extra days there that would apply to the Petition to Revoke.


        [Landrum’s counsel]: No.


        THE COURT: No, it wouldn’t because he’s running into
        consecutive.


        [Landrum’s counsel]: Correct.


        THE COURT: So the bottom line is that 129 is just gone,—


        [Landrum’s counsel]: Yes.



Court of Appeals of Indiana | Memorandum Decision 34A04-1705-CR-1132 | September 28, 2017   Page 6 of 13
                THE COURT: —days is gone other than he’s getting credit for it
                in [Illinois1].


                [Landrum’s counsel]: Correct.


       Id. at 9-10.


[11]   The court found that Landrum had violated the terms of his probation and

       entered judgment accordingly. The trial court sentenced Landrum to one year

       with the Indiana Department of Correction in cause number F4-777, which the

       court found had been satisfied. For cause number FA-457, the trial court issued

       a sentencing order on the petition to revoke the suspended sentence. In that

       order, the trial court ordered Landrum to serve the balance of his previously

       suspended sentence, which the court determined to be 1,825 days, as an

       executed term in the Department of Correction. The trial court also ordered

       that Landrum “shall receive no jail time credit while awaiting disposition in this

       matter.” Appellant’s App. Vol. IV at 59. This appeal ensued.


                                          Discussion and Decision
[12]   Landrum contends that the trial court abused its discretion when it sentenced

       him. Specifically, Landrum asserts that the trial court abused its discretion

       when it subjected him to supervised probation with a condition that he

       complete a drug re-entry program instead of unsupervised probation. Landrum



       1
         The trial court references a sentence in Michigan, but it is clear from the record that the trial court is
       referring to a sentence Landrum served in Illinois.

       Court of Appeals of Indiana | Memorandum Decision 34A04-1705-CR-1132 | September 28, 2017              Page 7 of 13
       further argues that the trial court failed to apply credit time to his sentence after

       it revoked his probation. We address each argument in turn.


                                     Issue One: Supervised Probation

[13]   Landrum first claims that the trial court abused its discretion when it subjected

       him to supervised probation with a condition that he participate in the Howard

       County drug re-entry program. Landrum was first sentenced in 2009, pursuant

       to a plea agreement, to twenty-five years with the Department of Correction,

       with twenty years executed and five years suspended to unsupervised probation.

       On May 16, 2012, the post-conviction court granted Landrum’s petition for

       post-conviction relief and set aside the original judgment. Instead, the post-

       conviction court found Landrum guilty of dealing in cocaine, as a Class B

       felony, and sentenced him to twenty years, with fifteen years executed and five

       years suspended to supervised probation. As a specific condition of probation,

       the court ordered Landrum to attend and successfully complete the Howard

       County drug re-entry program. Landrum now asserts that the court erred when

       it entered that sentencing order because the amended plea agreement filed on

       March 18, 2009, and the original sentencing order issued on May 25, 2009,

       called for unsupervised probation.


[14]   Pursuant to Indiana Appellate Rule 9, “[a] party initiates an appeal by

       conventionally filing a Notice of Appeal with the Clerk . . . within thirty (30)

       days after the entry of a Final Judgment is noted in the Chronological Case

       Summary.” Further, Indiana Appellate Rule 9(A)(5) provides that the right to

       appeal is “forfeited” unless an appeal is initiated within thirty days of final
       Court of Appeals of Indiana | Memorandum Decision 34A04-1705-CR-1132 | September 28, 2017   Page 8 of 13
       judgment, or a criminal appellant obtains permission to file a belated appeal

       under Post–Conviction Rule 2. A sentencing order is a final judgment from

       which a defendant only has thirty days to appeal. See e.g. Dillman v. State, 16

       N.E.3d 445, 447 (Ind. Ct. App. 2014).


[15]   Here, the trial court issued its order sentencing Landrum to twenty years with

       the Indiana Department of Correction, with five years suspended to supervised

       probation on May 16, 2012. On May 24, 2017, Landrum filed his Notice of

       Appeal challenging, among other things, the trial court’s order sentencing him

       to supervised probation. Landrum waited five years after the trial court issued

       the May 16, 2012, sentencing order before he disputed it. Further, there is

       nothing in the record to indicate that Landrum obtained permission to file a

       belated appeal under Post-Conviction Rule 2.


[16]   Because Landrum failed to file his notice of appeal within thirty days after the

       trial court’s May 16, 2012, order was noted in the Chronological Case

       Summary, Landrum has forfeited his right to appeal that sentencing order.


                                          Issue Two: Credit Time

[17]   Landrum also asserts that the trial court erred when it failed to apply seventy-

       four days of credit time to his sentence in cause number FA-457 and when it

       failed to apply excess credit time from cause number F4-777 to his sentence in

       cause number FA-457.




       Court of Appeals of Indiana | Memorandum Decision 34A04-1705-CR-1132 | September 28, 2017   Page 9 of 13
                                          Credit for Seventy-Four Days

[18]   Landrum contends that the trial court erred when it failed to credit him with

       seventy-four jail days between his June 10, 2015, arrest in cause number FA-

       457 and his August 23, 2016,2 arrest in cause number F4-777. We do not reach

       the merits of Landrum’s claim. We find, instead, that Landrum has waived this

       issue by his failure to present a record showing any abuse of discretion by the

       trial court. “It is the appellant’s burden to present the reviewing court with a

       record complete enough to sustain his argument.” McGuire v. State, 617 N.E.2d

       548, 550 (Ind. Ct. App. 1993). “Where he fails to do so, the issue is deemed

       waived.” Thompson v. State, 761 N.E.2d 467, 471 (Ind. Ct. App. 2002) (quoting

       Jackson v. State, 496 N.E.2d 32, 33 (Ind. 1986)). In particular, this court has

       previously held that “a defendant may waive a claim of entitlement to credit

       time served by failing to present us with sufficient information to determine the

       issue.” Brattain v. State, 777 N.E.2d 774, 776 (Ind. Ct. App. 2002).


[19]   On June 10, Landrum appeared in person before the trial court. The court

       found that he had violated the terms of the re-entry program, found him to be in

       indirect contempt of court, and ordered that he be taken into custody. On

       August 12, Landrum appeared in person before the trial court and the trial court

       again ordered that he be taken into custody. On August 19, Landrum failed to




       2
         In his brief, Landrum cites August 23, 2015, as his arrest date for cause number F4-777 and calculates the
       time owed to him between June 10, 2015, and August 23, 2015, as seventy-four days. The Chronological
       Case Summary for cause F4-777 was not included in the record before the court, but the record indicates that
       Landrum was arrested for that cause on August 23, 2016.

       Court of Appeals of Indiana | Memorandum Decision 34A04-1705-CR-1132 | September 28, 2017 Page 10 of 13
       appear before the trial court and the trial court issued a warrant for his arrest.

       On August 23, 2016, Landrum was arrested on both cause number FA-457 and

       cause number F4-777.


[20]   In his brief, Landrum states that “[b]etween June 10, 2015, and his August 23,

       2015[,] [sic] arrest on the companion case, there are 74 jail days that apply to

       this case only. It is error to deny him (at least) these 74 jail days.” Appellant’s

       Br. at 14. The trial court ordered that Landrum be taken into custody on June

       10, 2015. The trial court then again ordered that he be taken into custody on

       August 12. However, Landrum does not present any documentation of the

       actual time he served with the Department of Correction between those dates.

       As such, we have no indication in the record of his actual time served, if any.


[21]   Further, it is clear from the record that Landrum was not in custody between

       August 19, 2015, when a warrant was issued for his arrest, and August 23,

       2016, when he was arrested. During the April 27, 2017, hearing, the trial court

       stated that Landrum, while in Illinois, was serving a sentence in connection

       with a charge committed “apparently while he was a fugitive in connection with

       these two cases . . . .” Tr. at 8 (emphasis added). Landrum was clearly not in the

       custody of the Department of Correction while he was a fugitive between

       August 19, 2015, when he failed to appear before the trial court, and August 23,

       2016, when he was returned to Indiana and arrested.


[22]   Because Landrum failed to present us with sufficient information to determine

       the actual time, if any, that he was in the custody of the Department of


       Court of Appeals of Indiana | Memorandum Decision 34A04-1705-CR-1132 | September 28, 2017 Page 11 of 13
       Correction between June 10, 2015, and August 23, 2016, Landrum has waived

       this issue. See e.g. Brattain, 777 N.E.2d at 776.


                                              Excess Credit Time

[23]   Landrum further contends that the trial court should have applied the excess

       credit time he earned while he waited to be sentenced in cause number F4-777

       to his sentence in cause number FA-457. Landrum was arrested in cause

       number F4-777 on August 23, 2016, and he was sentenced on April 23, 2017.

       This amounts to 247 actual days that Landrum spent with the Department of

       Correction, which equates to 494 credit days. Landrum was sentenced to one

       year, or 365 days, under cause F4-777, so he earned an excess of 129 days.

       Landrum argues that, pursuant to his May 16, 2017, plea agreement, those 129

       days should have been applied to Landrum’s sentence in cause number FA-457.


[24]   We cannot agree. At the sentencing hearing on April 27, the trial court

       expressly asked Landrum’s counsel how to apply the 129 days. Landrum’s

       counsel then informed the court that Landrum was not entitled to that credit

       time in light of the Illinois offenses. The court relied on that representation

       when it sentenced Landrum. Thus, we agree with the State that Landrum has

       invited any error in the court’s assessment of those 129 days. The invited error

       doctrine forbids a party from taking advantage of an error that he “commits,

       invites, or which is the natural consequence of [his] own neglect or

       misconduct.” Brewington v. State, 7 N.E.3d 946, 975 (Ind. 2014) (quoting Wright

       v. State, 828 N.E.2d 904, 907 (Ind. 2005)).


       Court of Appeals of Indiana | Memorandum Decision 34A04-1705-CR-1132 | September 28, 2017 Page 12 of 13
[25]   Landrum’s counsel agreed that the excess credit time from cause number F4-

       777 was gone and would not be applied to the petition to revoke the suspended

       sentence in cause number FA-457. As such, any error that may exist in the trial

       court’s failure to apply the excess days was invited error, which Landrum may

       not take advantage of on appeal. See e.g. Wright, 828 N.E.2d at 907. Therefore,

       we decline to reverse on this basis.


[26]   In sum, we hold as follows: Landrum has forfeited his right to appeal the trial

       court’s order of supervised probation issued on May 16, 2012; Landrum has

       waived the issue of credit time for his claimed seventy-four days of actual credit;

       and Landrum invited any error in the court’s decision to not award the 129

       excess credit days. As such, we affirm the trial court’s April 27, 2017,

       sentencing order on the petition to revoke the suspended sentence.


[27]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A04-1705-CR-1132 | September 28, 2017 Page 13 of 13
