Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                     Dec 19 2014, 8:38 am
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:

DARREN BEDWELL                                   GREGORY F. ZOELLER
Indianapolis, Indiana                            Attorney General of Indiana

                                                 CYNTHIA L. PLOUGHE
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

KARACHI WARREN,                                  )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )        No. 49A04-1405-CR-225
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Mark D. Stoner, Judge
                            Cause No. 49G06-1309-FA-63900



                                      December 19, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Karachi Warren was convicted of robbery, as a Class C felony, and criminal

confinement, as a Class C felony, following a jury trial. The trial court also adjudicated

Warren an habitual offender following a bench trial. In this appeal, Warren presents two

issues for our review:

       1.     Whether the State used the same evidence to support his conviction
              for robbery and his conviction for criminal confinement.

       2.     Whether the trial court erred when it did not grant him credit time.

       We affirm and remand with instructions.

                         FACTS AND PROCEDURAL HISTORY

       During the early morning hours of June 29, 2013, Warren broke into the residence

of Carolyn Roney. Warren and Roney were “friend[s],” and Warren recently had helped

Roney move into a new residence in Indianapolis. Tr. at 53. During the move, Warren

helped move a fifty-five-inch flat screen television into Roney’s residence.         When

Warren broke into Roney’s residence on June 29, he found Roney asleep in her bed, and

he began to strangle her. After Roney woke up, Warren asked her whether she would

scream if he removed his hands from her throat. Roney assured Warren that she would

not scream, so he stopped strangling her.

       Roney sat up in her bed, and Warren asked her whether she had any money.

When Roney said, “No,” Warren said, “Well, then, that t.v. is going.” Id. at 63. Roney

objected, and Warren began strangling Roney again. Warren strangled Roney “at least

four times,” and the force was so great that Roney bled from her nose and urinated on

herself. Id. at 64. Roney asked Warren for permission to change her clothes. Warren
                                             2
consented, but insisted on watching her while she changed. Warren then used Roney’s

cell phone to make a call. Roney heard Warren tell the person who answered his call that

he had access to a large-screen television, and he gave Roney’s address.

         Warren escorted Roney to a door at the back of the residence, and the two stood

on a porch. Roney’s residence was one-half of a duplex, and Roney’s sister lived in the

other half. At some point, Roney ran away from Warren and “banged” on a window at

her sister’s residence, but Warren caught up to Roney and “grabbed [her] by [her] throat

again and dragged [her] back around the house and back into the house again.” Id. at 68.

Warren threatened to “get” Roney’s mother and daughter if Roney called the police. Id.

at 69.

         A van pulled up outside of Roney’s residence, and Warren “made [Roney] sit

down [o]n the bed while he started to unhook the t.v.” Id. at 70-71. Roney “[took] off

out the front door” and told the driver of the van, “You know y’all stealing that t.v.” Id.

at 72. Then Roney made her way to her sister’s front door and began knocking on it.

Warren carried the television out of Roney’s house, put it in the waiting van, and the two

men drove off.

         The State charged Warren with burglary, as a Class A felony; robbery, as a Class

C felony; criminal confinement, as a Class C felony; strangulation, a Class D felony; and

theft, as a Class D felony. The State also alleged that Warren was an habitual offender.

A jury found Warren guilty of robbery, as a Class C felony; criminal confinement, as a

Class C felony; and theft, as a Class D felony; and the jury acquitted him of the other

charges. Warren waived his right to a jury trial and pleaded guilty on the habitual


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offender allegation, and the trial court adjudicated him an habitual offender. The trial

court entered judgment of conviction only on the robbery and criminal confinement

verdicts and sentenced Warren as follows: eight years for robbery, as a Class C felony,

enhanced by seven years for the habitual offender adjudication; and eight years for

criminal confinement, as a Class C felony, to be served concurrent with the fifteen-year

sentence for robbery; for an aggregate sentence of fifteen years with twelve years

executed and three years on work release.

      In the sentencing order, the trial court stated in relevant part as follows:

      COURT DID NOT AWARD THE 207 DAYS CREDIT [for Warren’s
      pretrial incarceration] ON THIS CASE FROM 09/30/2013-04/24/14,
      BECAUSE THE COURT BELIEVES THOSE DAYS SHOULD BE
      USED TOWARDS THE VIOLATION OF PAROLE CASE UNDER . . .
      49G040803PC063333. IF DOC DOES NOT AWARD THE 207 DAYS
      CREDIT TOWARDS THE PAROLE VIOLATION CASE, THEN THOSE
      DAYS SHOULD BE APPLIED TO THIS CASE.

Appellant’s App. at 18. This appeal ensued.

                            DISCUSSION AND DECISION

                              Issue One: Double Jeopardy

      Warren first contends that the State supported each of his two convictions with the

same evidence, in violation of Indiana’s Double Jeopardy Clause. See Richardson v.

State, 717 N.E.2d 32 (Ind. 1999). As our supreme court has explained:

             In Richardson, we reviewed the history of the Indiana Constitution’s
      Double Jeopardy Clause to ascertain and articulate a single comprehensive
      rule synthesizing and superseding previous formulations and exceptions.
      We explained that two offenses are the “same offense” in violation of the
      Indiana Double Jeopardy Clause if, “with respect to either the statutory
      elements of the challenged crimes or the actual evidence used to convict,
      the essential elements of one challenged offense also establish the essential
      elements of another challenged offense.” [Richardson, 717 N.E.2d at 49].
                                              4
       In the present case the defendant claims a violation of the Indiana Double
       Jeopardy Clause not under the statutory elements test but under the actual
       evidence test. To show that two challenged offenses constitute the same
       offense under the actual evidence test, “a defendant must demonstrate a
       reasonable possibility that the evidentiary facts used by the fact-finder to
       establish the essential elements of one offense may also have been used to
       establish the essential elements of a second challenged offense.” Id. at 53.

              Application of the actual evidence test requires the reviewing court
       to identify the essential elements of each of the challenged crimes and to
       evaluate the evidence from the jury’s perspective, considering where
       relevant the jury instructions, argument of counsel, and other factors that
       may have guided the jury’s determination. Richardson, 717 N.E.2d at 54 n.
       48; see, e.g., Burnett v. State, 736 N.E.2d 259, 262-63 (Ind. 2000). The
       Richardson actual evidence test was carefully and deliberately crafted to
       provide a general formulation for the resolution of all actual evidence test
       claims. The language expressing the actual evidence test explicitly requires
       evaluation of whether the evidentiary facts used to establish the essential
       elements of one offense may also have been used to establish the essential
       elements of a second challenged offense. The test is not merely whether
       the evidentiary facts used to establish one of the essential elements of one
       offense may also have been used to establish one of the essential elements
       of a second challenged offense. In other words, under the Richardson
       actual evidence test, the Indiana Double Jeopardy Clause is not violated
       when the evidentiary facts establishing the essential elements of one
       offense also establish only one or even several, but not all, of the essential
       elements of a second offense. Application of this principle has been
       articulated in different ways. Compare Richardson, 717 N.E.2d at 54 (“the
       defendant has demonstrated a reasonable possibility that the evidentiary
       facts used by the jury to establish the essential elements of robbery were
       also used to establish the essential elements of the class A misdemeanor
       battery”), with Chapman v. State, 719 N.E.2d 1232, 1234 (Ind. 1999) (“the
       same evidence used by the jury to establish the essential elements of
       murder was also included among the evidence establishing the essential
       elements of robbery as a Class A felony”).

Spivey v. State, 761 N.E.2d 831, 832-33 (Ind. 2002) (footnote omitted). “To establish

that two offenses are the same offense under the actual evidence test, the possibility must

be reasonable, not speculative or remote.” Griffin v. State, 717 N.E.2d 73, 89 (Ind.




                                             5
1999). We review whether multiple convictions violate the prohibition against double

jeopardy de novo. Goldsberry v. State, 821 N.E.2d 447, 458 (Ind. Ct. App. 2005).

      To prove robbery, as a Class C felony, the State was required to show that Warren

knowingly or intentionally took property from Roney by using or threatening the use of

force or by putting Roney in fear. Ind. Code § 35-42-5-1. And to prove criminal

confinement, as a Class C felony, the State was required to show that Warren knowingly

or intentionally confined Roney, without her consent, by forcibly moving her back inside

her residence, which resulted in bodily injury to Roney. I.C. § 35-42-3-3. The State’s

charging information tracked the statutory language on both allegations.

      In Bunch v. State, 937 N.E.2d 839 (Ind. Ct. App. 2010), trans. denied, the

defendant alleged that his convictions for robbery and criminal confinement violated the

actual evidence test. We rejected that argument and held as follows:

      In Hopkins v. State, our Supreme Court noted “confinement is not a lesser-
      included offense of robbery.” 759 N.E.2d 633, 639 (Ind. 2001).
      “Furthermore, where the confinement of a victim is greater than that which
      is inherently necessary to rob them, the confinement, while part of the
      robbery, is also a separate criminal transgression.” Id. Here, Bunch’s
      confinement of K.V. extended well beyond what was necessary to rob her;
      Bunch forced her to the floor at gunpoint, remained in the home for more
      than two hours, and, while leaving the residence, threatened K.V. to remain
      on the floor for an additional fifteen minutes after Bunch left. Bunch’s
      conviction for both the robbery and criminal confinement of K.V. did not
      violate the prohibition against double jeopardy.

937 N.E.2d at 848 n.8.

      Likewise, here, Warren’s confinement of Roney extended well beyond what was

necessary to rob her. Before Warren unhooked the television to remove it from the

house, Warren had forcibly moved Roney from inside the house to a porch outside.


                                            6
Warren then forcibly moved Roney back inside the house. Once they were back inside,

Warren began unhooking the television and removed it from the house. Warren strangled

Roney “at least four times” and threatened to harm Roney’s mother and daughter if she

reported him to the police. Tr. at 64. We hold that the robbery and criminal confinement

convictions are not the same offense under the actual evidence test.

                                Issue Two: Credit Time

       Warren next contends that the trial court erred when it did not apply his 207 days

of credit time for his pretrial incarceration against his sentence in this case. In essence,

the trial court ordered that the 207 days of credit time should be applied against a

sentence not yet imposed for Warren’s violation of his parole in another case. But, as

Warren correctly contends, the 207 days of credit time should have been applied to the

sentence in this case.

       In support of the trial court’s handling of Warren’s credit time, the State directs us

to Indiana Code Section 35-50-1-2(d), which provides in relevant part that if, after being

arrested for one crime, a person commits another crime before the date the person is

discharged from probation, parole, or a term of imprisonment imposed for the first crime,

the terms of imprisonment for the crimes shall be served consecutively, regardless of the

order in which the crimes are tried and sentences are imposed. Citing to State v. Lotaki,

4 N.E.3d 656, 657 (Ind. 2014), the State asserts that “[a]ny [credit] time [Warren]

accrued in the present case . . . had to be applied to the aggregate sentence by attribution

to Defendant’s 2008 sentence.” Appellee’s Br. at 6.




                                             7
       But Lotaki is inapposite here. In Lotaki, the defendant was incarcerated for a 2005

offense when, in 2010, he was convicted of battery for striking a prison employee. Under

Indiana Code Section 35-50-1-2(d), the trial court properly ordered that the defendant’s

sentence for the 2010 battery would run consecutive to his sentence for the 2005 offense.

But, on appeal, our supreme court held that the trial court erroneously gave the defendant

471 days of credit time toward each sentence, for a total of 942 days. As our supreme

court observed,

       when consecutive sentences are involved, credit time is deducted from the
       aggregate total of the consecutive sentences, not from an individual
       sentence. Here, the time Lotaki spent incarcerated awaiting trial on the
       [2010] battery charge was time he was serving the 2005 sentence, and he
       received credit for that time against the 2005 sentence. To award credit for
       this time against the battery sentence rather than against the aggregate of
       the consecutive sentences would result in more credit to which he was
       entitled and would effectively enable him to serve part of the consecutive
       sentences concurrently.

Lotaki, 4 N.E.3d at 657.

       Here, at the time the trial court imposed sentence for the instant offense, Warren

had not yet been sentenced for his parole violation. Thus, while the sentence for the

parole violation, once imposed, will run consecutive to the sentence for the instant

offense, there was no “aggregate of the consecutive sentences” against which to apply the

credit time. See id.

       Indiana Code Section 35-38-3-2 provides in relevant part as follows:

       (a) When a convicted person is sentenced to imprisonment, the court shall,
       without delay, certify . . . copies of the judgment of conviction and sentence
       to the receiving authority.

       (b) The judgment must include:


                                             8
                                           ***

              (4) the amount of credit, including credit time earned, for
              time spent in confinement before sentencing[.]

In Tate v. State, 813 N.E.2d 437, 439 (Ind. Ct. App. 2004), we observed that this statute

provides a “clear mandate” that the trial court “must provide a copy of the judgment of

conviction and sentence to the receiving authority and that it must include the amount of

credit time earned for time spent in confinement before sentencing[.]” And we held that,

given that mandate, “in addition to case law which has consistently held that the pretrial

credit must arise from pretrial confinement for the criminal charge for which the

defendant is sentenced,” the trial court erred when it “saved” the defendant’s pretrial

detention credit to be used towards the sentence on a pending charge in another cause.

Id.

       Accordingly, here, we remand and instruct the trial court to apply the 207 days of

credit time to Warren’s sentence in the instant case.

       Affirmed and remanded with instructions.

MATHIAS, J., and BRADFORD, J., concur.




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