MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                        Feb 14 2017, 10:21 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                     CLERK
                                                                          Indiana Supreme Court
court except for the purpose of establishing                                 Court of Appeals
                                                                               and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


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

Dax C. Rutherford,                                       February 14, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A04-1608-CR-2050
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable William C.
Appellee-Plaintiff                                       Menges, Judge
                                                         Trial Court Cause No.
                                                         34D01-1406-FA-436



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A04-1608-CR-2050 | February 14, 2017          Page 1 of 4
[1]   Dax Rutherford appeals the order issued by the trial court revoking his

      probation and ordering that he serve the balance of his previously-suspended

      sentence. Rutherford argues that he did not receive credit time for programs he

      allegedly completed while incarcerated and that the trial court erred in

      calculating the balance of his sentence. Finding no error, we affirm.


                                                     Facts
[2]   On September 17, 2014, Rutherford pleaded guilty to Class B felony dealing in

      a narcotic drug. Pursuant to the plea agreement, the trial court sentenced

      Rutherford to twelve years imprisonment, with eight years executed and four

      years suspended to probation. On May 5, 2016, at Rutherford’s request, the

      trial court modified his sentence. The trial court ordered that Rutherford would

      be released to supervised probation on May 15, 2016, pursuant to a requirement

      that Rutherford be placed in the Community Transition Program and

      successfully complete the Howard County Re-Entry Court Program. The trial

      court suspended the remainder of Rutherford’s sentence.


[3]   On June 15, 2016, the Howard County Re-Entry Court Case Manager filed a

      notice with the trial court indicating that Rutherford had been terminated from

      the program because he had committed a new criminal offense. On July 20,

      2016, the State filed a petition to revoke Rutherford’s suspended sentence,

      alleging that he had violated his probation by failing to complete the Re-Entry

      Program. On August 23, 2016, following a hearing, the trial court found that

      Rutherford had violated the terms of his probation. The court ordered


      Court of Appeals of Indiana | Memorandum Decision 34A04-1608-CR-2050 | February 14, 2017   Page 2 of 4
      Rutherford to serve the balance of his previously-suspended sentence, which the

      trial court determined was 2,632 days, beginning on October 31, 2016.

      Rutherford now appeals.


                                      Discussion and Decision
[4]   Rutherford raises a number of arguments in this appeal, which we restate as

      follows. First, he argues that the trial court did not give him credit for programs

      he allegedly completed while incarcerated. Second, he argues that the trial

      court erred in its calculation of the number of days remaining in the balance of

      the suspended sentence.


[5]   As to programs completed while incarcerated, it is Rutherford’s burden to

      establish that he was entitled to additional credit time. E.g., Gardner v. State,

      678 N.E.2d 398, 401 (Ind. Ct. App. 1997). Rutherford acknowledges that there

      is no evidence in the record to support his claim that he completed programs

      while incarcerated; consequently, he has not met his burden to show that the

      trial court erred in this regard.1


[6]   As to the trial court’s calculation of the balance remaining in Rutherford’s

      suspended sentence, Rutherford argues that he is entitled to the following credit

      time:




      1
        Moreover, even if he had established that he had completed these programs, the credit time would have
      already inured to his benefit before his first release from incarceration by the advancement of his earliest
      possible release date. He would not be entitled to a second bite of this apple.

      Court of Appeals of Indiana | Memorandum Decision 34A04-1608-CR-2050 | February 14, 2017             Page 3 of 4
           198 days credit time before his original sentencing hearing;
           1,190 days credit time while incarcerated; and
           68 days credit time for the period of time between the Re-Entry Program
            violation hearing and the probation revocation hearing.

      In other words, Rutherford argues that he is entitled to a total of 1,456 days

      credit time. Rutherford’s original sentence totaled 4,380 days imprisonment

      with a portion executed and a portion suspended. When the trial court

      modified Rutherford’s sentence on May 5, 2016, it ordered that the balance of

      his sentence would be suspended to probation. To find that balance, the

      amount of credit time must be subtracted from the amount of the total sentence.

      Therefore, assuming for argument’s sake that Rutherford is entitled to all of his

      requested credit time, we would subtract 1,456 from 4,380, for a balance of

      2,924 days. The trial court here actually imposed 2,632 days, which is nearly a

      full year less than that balance.2 Therefore, even if we agreed with Rutherford

      about the amount of credit time to which he is entitled, he cannot show any

      error as the trial court calculated the balance of his sentence to be even lower

      than Rutherford himself would. We find no error.


[7]   The judgment of the trial court is affirmed.


      Mathias, J., and Pyle, J., concur.




      2
       Rutherford may also be arguing that he should have received credit time for the period of time between
      June 15 and July 20, 2016. Even if we assume for argument’s sake that he is correct, the balance according to
      Rutherford’s calculations would still be significantly higher than the 2,632 days imposed by the trial court.
      Therefore, this argument is unavailing.

      Court of Appeals of Indiana | Memorandum Decision 34A04-1608-CR-2050 | February 14, 2017          Page 4 of 4
