MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                             Jun 30 2015, 10:19 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Mark Small                                                Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          J. T. Whitehead
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Charles Sweeney,                                          June 30, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          10A01-1411-CR-488
        v.                                                Appeal from the Clark Circuit Court.
                                                          The Honorable Daniel E. Moore,
State of Indiana,                                         Judge.
                                                          Cause No. 10C01-9403-CF-51
Appellee-Plaintiff.




Riley, Judge.




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                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Charles Sweeney (Sweeney), appeals the trial court’s

      denial of his petition for jail time credit.


[2]   We affirm.


                                                     ISSUE

[3]   Sweeney raises four issues on appeal, which we consolidate and restate as the

      following single issue: Whether the trial court abused its discretion in denying

      his petition for jail time credit.


                           FACTS AND PROCEDURAL HISTORY

[4]   In Sweeny’s direct appeal, our supreme court recited the underlying facts as

      follows:

              On May 28, 1991, the victim, Danny Guthrie, left his family to go
              fishing with [Sweeney]. Guthrie did not return home that evening and
              his wife assumed that he decided to camp over with [Sweeney]. The
              next morning, [Sweeney] called to see if Guthrie wanted to check the
              trout lines. Guthrie’s wife informed [Sweeney] that Guthrie never
              returned home and [Sweeney] told Guthrie’s wife that he brought
              Guthrie home between 4:00 and 6:00 p.m. the previous day. After
              several unsuccessful attempts to obtain more information from
              [Sweeney], Guthrie’s wife called the police. On May 29, 1991,
              Detective Kramer, the lead investigator, and other police officers
              questioned [Sweeney] at his home. However, no arrest was made and
              Guthrie remained missing.


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        In February 1992, [Sweeney] was investigated by the Bureau of
        Alcohol, Tobacco and Firearms for placing a pipe bomb under
        Detective Kramer’s police car. After being charged for these offenses,
        [Sweeney] entered into a plea agreement with the U.S. Attorney’s
        Office on June 26, 1992. Pursuant to the plea agreement, [Sweeney]
        pled guilty to placing the bomb under Kramer’s car, agreed to
        implicate all others involved in the bombing and also to disclose the
        whereabouts of Guthrie’s body and any information relating to the
        cause of Guthrie’s death. We summarize [Sweeney’s] story as
        communicated to the federal authorities as follows.
        According to [Sweeney], on the return trip from the fishing expedition,
        [Sweeney] agreed to give Guthrie approximately 150 marijuana plants
        in exchange for a saddle. Immediately after arriving at [Sweeney’s]
        home, [Sweeney] explained to Guthrie where the marijuana plants
        were located and provided Guthrie with a shovel, two buckets, and a
        9mm gun for protection. [Sweeney] claimed that he then went to play
        bingo at the Sellersburg Moose Lodge and did not see Guthrie again
        that evening. The next day (May 29, 1991), after Guthrie’s wife
        claimed that Guthrie never came home, [Sweeney] alleges that he
        went to look for Guthrie and found him dead with a gunshot wound to
        the head. He also found the 9mm gun that he had given Guthrie the
        day before with one round missing and an empty shell casing a foot or
        two south of Guthrie’s body. Because [Sweeney] did not want the
        police to discover the marijuana, he dragged Guthrie’s body to a ditch
        located behind a trailer and buried the body with sweet lime and
        covered it with dirt and trash. He then threw the shell casings in a
        creek, and placed one shoe and a pair of sunglasses in the burn barrel
        by his trailer. [Sweeney] also buried the gun in an ammunition can
        near his home, but at a later date retrieved the gun and had it in his
        possession for personal protection. [Sweeney] told the authorities that
        eventually the gun was seized from him in the State of Utah as a result
        of a routine traffic violation. At all times, [Sweeney] proclaimed his
        innocence.
        On July 1, 1992, the police obtained a search warrant for [Sweeney’s]
        property and located Guthrie’s body in the area described by
        [Sweeney]. An autopsy was performed on the body on July 2, 1992,
        and the medical examiner positively identified the body as that of
        Daniel Guthrie. The examiner also retrieved the bullet that caused
        Guthrie’s death. The bullet and the 9mm gun that was confiscated

Court of Appeals of Indiana | Memorandum Decision | 10A01-1411-CR-488 | June 30, 2015   Page 3 of 11
        from [Sweeney] by a Utah police officer [were] sent to the Bureau of
        Alcohol, Tobacco and Firearm Laboratory. The Bureau confirmed
        that the bullet that killed Guthrie had been fired from the 9mm gun
        belonging to [Sweeney].
        On August 10, 1992, Judge Donahue in the Clark Circuit Court issued
        a warrant to arrest [Sweeney] for the murder of Guthrie. On October
        8, 1992, upon the State’s request, Judge Donahue issued a writ of
        habeas corpus ad prosequendum (a writ of habeas corpus ad
        prosequendum is referred to in this opinion as a “Writ”) so that the
        State could obtain temporary custody of [Sweeney]. At that time,
        [Sweeney] was incarcerated in federal prison in Louisville, Kentucky
        and was scheduled to be sentenced that very same day by Judge Barker
        in the United States District Court for the Southern District of Indiana.
        [Sweeney] was transported to Clark County shortly after the Writ was
        issued. On October 22, 1992, [Sweeney] filed a Motion to Quash the
        Writ, and a hearing was held on the motion on November 10, 1992.
        The focus of the hearing concerned whether the State had jurisdiction
        over [Sweeney]. [Sweeney] argued that before he was sentenced in
        federal court, the State could have sought temporary custody of him
        through the use of the Writ, but once defendant was sentenced, the
        State was obligated to follow the procedures set forth in the Interstate
        Agreement on Detainers (referred to in this opinion as the “IAD”). In
        order to avoid conducting a trial and then having a higher court decide
        that the trial court had no jurisdiction over [Sweeney], Judge Donahue
        decided that the safer approach would be to return [Sweeney] to
        federal prison and proceed appropriately. Consequently, Judge
        Donahue granted [Sweeney’s] motion and ordered that the Writ be
        held for naught and declared void.
        On April 22, 1993, the State dismissed charges against [Sweeney], and
        [Sweeney] was sent back to federal prison in Kentucky. The State
        refiled charges on March 30, 1994. On August 1, 1994, upon the
        State’s request, Judge Donahue granted another writ of habeas corpus
        ad prosequendum so that the State could obtain temporary custody of
        [Sweeney]. At this time, [Sweeney] was being held at the Federal
        Correctional Institution in Manchester, Kentucky. For the second
        time, [Sweeney] was transported to Clark County. In response,
        [Sweeney] filed a Motion to Quash the Writ on September 13, 1994,
        and on October 3, 1994, Judge Donahue held a hearing on this matter.
        Once again, [Sweeney] contended that the IAD was the exclusive

Court of Appeals of Indiana | Memorandum Decision | 10A01-1411-CR-488 | June 30, 2015   Page 4 of 11
              means of obtaining temporary custody of [Sweeney]. Additionally,
              [Sweeney] argued that the circumstances surrounding the issuance of
              both Writs were identical and that because the issue had been litigated,
              the doctrine of res judicata and collateral estoppel applied. Judge
              Donahue denied [Sweeney’s] Motion to Quash the Writ, relying on
              the fact that [Sweeney’s] custody status had changed since the first
              Writ was issued.
              A jury trial was conducted on November 14, 1995, and [Sweeney] was
              found guilty of the murder of Guthrie. The trial court sentenced
              [Sweeney] to 60 years to be served upon the completion of his federal
              sentence of 210 months.
      Sweeney v. State, 704 N.E.2d 86, 91-93 (Ind. 1998) (internal footnotes omitted).


[5]   Sweeney directly appealed to the Indiana Supreme Court, raising ten

      allegations of error, including a request for jail time credit, the reasonableness of

      his sentence, and an argument against the imposition of consecutive sentences.

      Specifically, Sweeney contended:

              That the trial court erred in denying him credit for pretrial detention.
              As discussed supra, [Sweeney] was serving a federal sentence when he
              was brought to Indiana to face pending criminal charges. On two
              separate occasions, [Sweeney] was detained in the Clark County Jail
              before being convicted for the crime of Murder. The trial court
              determined that because [Sweeney] was incarcerated for some other
              crime by some other court, he was not entitled to credit for the time
              served in Indiana. We affirm the trial court’s decision.
              Ind. Code § 35-50-6-3 (1988) established the credit time that may be
              earned by a defendant. There are two criteria to consider in
              determining whether a defendant had a right to pretrial credit: (1)
              pretrial confinement (2) which was a result of the criminal charge for
              which sentence is now imposed.
              The facts of this case are substantially similar to the facts in Smith v.
              State, 165 Ind. App. 37, 330 N.E.2d 384, 388 (Ind. Ct. App. 1975).
              After being released on bail from state charges, defendant Smith was
              convicted for another crime and incarcerated in federal prison. The

      Court of Appeals of Indiana | Memorandum Decision | 10A01-1411-CR-488 | June 30, 2015   Page 5 of 11
              State of Indiana, pursuant to a Writ, obtained temporary custody of
              Smith from federal authorities. Smith argued that he should receive
              credit time for the period after Indiana assumed jurisdiction over him.
              The Court of Appeals denied pre-trial credit time because Smith’s
              incarceration was “occasioned by his conviction in federal court, and
              not by reason of the charges in the case at bar.” Smith, 330 N.E.2d at
              388. Additionally, the court noted that the trial court’s custody of
              defendant “was with the permission and on behalf of federal officials.”
              Id. Similarly, [Sweeney] in this case was incarcerated as a result of his
              federal conviction and not due to the charges filed by the State of
              Indiana. For the same reason, we find that [Sweeney] should be
              denied pre-trial credit time.
      Id. at 108-09 (some internal references omitted). The supreme court affirmed

      Sweeney’s conviction and sentence in all respects. See id. at 112.


[6]   On October 25, 2005, Sweeney filed a petition for post-conviction relief, which

      was amended on February 13, 2006. Therein Sweeney alleged, among other

      issues, that the State lacked jurisdiction to detain him and to move him across

      state lines. A hearing on his petition was conducted on April 16, 2007. On

      June 4, 2007, the post-conviction court denied his petition for post-conviction

      relief. Sweeney v. State, 886 N.E.2d 1, 6 (Ind. Ct. App. 2008). Sweeney

      appealed. This court affirmed the post-conviction court’s ruling. With respect

      to Sweeney’s jurisdictional argument, we noted as follows:

              Transport without Federal Officer. Sweeney alleges that appellate counsel
              failed to ask that the Indiana Supreme Court apply Indiana Code
              section 35-38-3-2(d) and “correct his erroneous sentence.” Sweeney
              alleges that he was transported from Kentucky by Indiana officials, in
              violation of Indiana Code section 35-33-10-5(2), which sets forth
              procedures for obtaining a writ of habeas corpus ad prosequendum
              and contemplates that the prisoner shall be “under the custody of a
              federal public servant.” Sweeney postulates that this “stopped and


      Court of Appeals of Indiana | Memorandum Decision | 10A01-1411-CR-488 | June 30, 2015   Page 6 of 11
              started” his federal sentence and he “cannot now be returned and
              compelled to serve the balance of [the Indiana] sentence.”
              Sweeney did not present any testimony at the post-conviction hearing
              from which the post-conviction court could make a factual
              determination as to whether or not Clark County officials or State of
              Indiana officials were accompanied by a federal official when
              transporting Sweeney from Kentucky to Indiana. No statutory
              violation was established. Also, Sweeney does not present legal
              authority for the proposition that his Indiana sentence was “stopped”
              illegal, or subject to “correction” if challenged by appellate counsel.
      Id. at 8 (internal references omitted).


[7]   On September 26, 2013, Sweeney, pro se, filed a petition for modification of

      sentence and a motion for order of evaluation. The State filed an objection to

      both motions on October 2 and October 24, 2013, respectively. On June 18,

      2014, Sweeney, pro se, filed a petition for jail time credit. That same day, the

      trial court conducted a conference by telephone, confirming that Sweeney was

      represented by counsel and ordering that only pleadings signed or co-signed by

      Sweeney’s counsel would be accepted. Therefore, filings or pleadings signed

      only by Sweeney would be deemed denied and stricken.


[8]   On August 4, 2014, the State filed its objection to Sweeney’s petition for jail

      time credit. On August 11, 2014, the trial court denied Sweeney’s motion for

      an evidentiary hearing, his motion for modification of sentence, and petition for

      jail time credit. On September 17, 2014, Sweeney, by counsel, filed a motion

      for jail time credit, arguing that his sentence for murder could not be served

      consecutively to his federal sentence and that the doctrine of res judicata is not




      Court of Appeals of Indiana | Memorandum Decision | 10A01-1411-CR-488 | June 30, 2015   Page 7 of 11
       applicable to his claim for jail time credit. On September 25, 2014, the trial

       court summarily denied Sweeney’s motion.


[9]    On October 10, 2014, Sweeney, by counsel, filed a motion to renew motion for

       jail time credit, or in the alternative, a motion to correct error. The trial court

       denied Sweeney’s motion to correct error on November 6, 2014.


[10]   Sweeney now appeals. Additional facts will be provided as necessary.


                                      DISCUSSION AND DECISION

[11]   Sweeney now contends that the trial court abused its discretion by denying his

       motion to correct error. Focusing on the underlying issues, Sweeney maintains

       that the trial court wrongly determined that he is not entitled to jail time credit.

       Because the doctrine of res judicata is inapplicable to claims for jail time credit,

       Sweeney asserts that he is entitled to an evidentiary hearing as he established a

       prima facie showing that he was escorted across state lines pursuant to the Writ

       by State of Indiana officials and not by the federal authorities, in violation of

       I.C. § 35-33-10-5(2).1




       1
           Indiana Code section 35-33-10-5(2) provides:

       When such a defendant is in federal custody as specified in subsection 1, a court in which the criminal action
       against such defendant is pending, may, upon application of the prosecuting attorney of such county, issue a
       certificate, known as a writ of habeas corpus ad prosequendum, addressed to the attorney general of the
       United States, certifying that such defendant has been charged by indictment or information filed against him
       in the specified court with the offense or offenses alleged therein, and that attendance of the defendant in
       such court for the purpose of criminal prosecution thereon is necessary in the interest of justice and
       requesting the attorney general of the United States to cause such defendant to be produced in such court,
       under custody of a federal public servant, upon a designated date and for a period of time necessary to
       complete the prosecution. Upon issuing such a certificate, the court may deliver it, or cause or authorize it to

       Court of Appeals of Indiana | Memorandum Decision | 10A01-1411-CR-488 | June 30, 2015               Page 8 of 11
[12]   We review a trial court’s ruling on a motion to correct error for an abuse of

       discretion. Nichols v. State, 947 N.E.2d 1011, 1015 (Ind. Ct. App. 2011). Where

       the issues presented upon appeal involve matters of law exclusively, we review

       the trial court’s decision de novo. Id.


[13]   Indiana Code section 35-50-6-3 sets forth in no uncertain terms that a person

       confined awaiting trial or sentencing is statutorily entitled to one day of credit

       for each day he is so confined; therefore, pre-sentence jail time credit is a matter

       of statutory right, not a matter of judicial discretion. Weaver v. State, 725

       N.E.2d 945, 947-48 (Ind. Ct. App. 2000). A trial court’s sentencing authority is

       only that which is conferred by the legislature, and it does not possess the

       power to impose sentences beyond the statutorily prescribed parameters.

       Johnson v. State, 654 N.E.2d 788, 790 (Ind. Ct. App. 1995). Indeed, a sentence

       that violates express statutory authority is facially defective. See Lockhart v.

       State, 671 N.E.2d 893, 904 (Ind. Ct. App. 1996). In light of these principles, we

       held in Weaver that “any time a defendant whose liberty has been restricted

       through imprisonment or confinement requests a trial court to reconsider its

       previous award of jail time credit, and the defendant’s motion in this regard

       identifies a sufficient factual basis for its eligibility, the court must address the

       merits of such action.” Weaver, 725 N.E.2d at 948. This is not to say that a

       trial court must address the merits of every pre-sentence jail time credit motion




       be delivered, together with a certified copy of the indictment or information upon which it is based, to the
       attorney general of the United States or to his representative authorized to entertain the request.

       Court of Appeals of Indiana | Memorandum Decision | 10A01-1411-CR-488 | June 30, 2015               Page 9 of 11
       filed by a defendant, but only those presenting a legitimate issue with respect to

       credit which are supported by the facts of the case and existing legal theories,

       thus triggering the need to reconsider an award of credit. Id. at 948 n.7. By

       way of illustration, a trial court may summarily deny a motion for pre-sentence

       jail time credit that provides no information or factual basis from which the

       court can determine whether credit time is or may be due; one that makes only

       bald assertions of error or entitlement to credit time; or one that advances a

       theory of eligibility not recognized by our existing case law interpreting Indiana

       Code section 35-50-6-3. Id.


[14]   In his petition for jail time credit, Sweeney again maintains that because he was

       transported across state lines by Clark County Sheriff detectives, instead of by

       federal authorities as required by I.C. § 35-33-10-5(2), he was under the

       jurisdiction of the State of Indiana and should receive pre-trial credit time. As

       we noted supra, our supreme court considered and rejected this argument

       during Sweeney’s direct appeal. See Sweeney, 704 N.E.2d at 109. A similar

       argument was raised during Sweeney’s post-conviction proceedings, with the

       same result. See Sweeney, 886 N.E.2d at 6.


[15]   While we agree with Sweeney that res judicata considerations are not at play

       with respect to pre-trial credit proceedings, we do not have to interminably

       address every petition. In this latest installment, Sweeney fails to advance new

       factual elements or legal theories. Rather, Sweeney repeats his speculative and

       unsupported statements that he was “illegally arrested and transported across

       State lines” after being “illegally released by an Inmate Systems Management

       Court of Appeals of Indiana | Memorandum Decision | 10A01-1411-CR-488 | June 30, 2015   Page 10 of 11
       Officer.” (Appellant’s Br. p. 13). Accordingly, we cannot conclude that the

       trial court abused its discretion by summarily denying Sweeney’s petition for

       jail time credit.


                                               CONCLUSION

[16]   Based on the foregoing, we conclude that the trial court properly denied

       Sweeney’s petition for jail time credit.


[17]


[18]   Affirmed.


[19]   Bailey, J. and Barnes, J. concur




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