Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                    Dec 19 2014, 8:18 am
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:

BRYAN M. TRUITT                                  GREGORY F. ZOELLER
Bertig & Associates, LLC                         Attorney General of Indiana
Valparaiso, Indiana

                                                 CHRISTINA D. PACE
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DANIEL L. SCARPINATO,                            )
                                                 )
        Appellant-Defendant,                     )
                                                 )
               vs.                               )      No. 64A04-1403-CR-146
                                                 )
STATE OF INDIANA,                                )
                                                 )
        Appellee-Plaintiff.                      )


                      APPEAL FROM THE PORTER SUPERIOR COURT
                           The Honorable William E. Alexa, Judge
                             Cause No. 64D02-1210-FB-10657


                                      December 19, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                        Case Summary

       Daniel Scarpinato appeals the trial court’s denial of good time credit for his

pretrial incarceration. We affirm.

                                            Issue

       Scarpinato raises one issue, which we restate as whether the trial court properly

declined to award him good time credit for time spent in jail awaiting trial.

                                           Facts

       In 2012, Scarpinato was charged with Class B felony burglary and three other

crimes. The burglary charge was severed from the other charges and, in January 2014, a

jury found Scarpinato guilty of Class B felony burglary. The trial court sentenced

Scarpinato to twenty years executed. At the sentencing hearing, the trial court explained

that it was not awarding him any credit for his pretrial incarceration because of his

conduct in jail. According to the pre-sentence investigation report, Scarpinato incurred at

least twenty-five jail violations while jailed. Scarpinato was also charged with Class C

felony battery and Class D felony battery for punching employees of the Porter County

Jail in the face on January 19, 2014.

       In a subsequent proceeding, Scarpinato pled guilty to several outstanding charges,

including the two battery charges. At that hearing, the trial court revisited the issue of

credit time and explained that it would award Scarpinato credit for the 531 days he was

actually incarcerated awaiting trial but would not award him any good time credit.

Scarpinato now appeals.



                                             2
                                        Analysis

      Scarpinato argues that it was beyond the trial court’s power to deny him good time

credit. The State asserts that this issue is waived because Scarpinato did not object at

trial. However, “[w]e may correct sentencing errors by the trial court on appeal even

though the issue was not raised below.” Groves v. State, 823 N.E.2d 1229, 1232 (Ind. Ct.

App. 2005). Accordingly, we address the merits of Scarpinato’s argument.

      There is no dispute that Scarpinato was entitled to and received credit for the 531

days he was incarcerated while awaiting trial. As for whether the trial court was required

to award Scarpinato an additional 531 days of good time credit, we are not persuaded by

Scarpinato’s argument.

      In making his argument that the trial court did not have discretion to deny him

good time credit, Scarpinato relies on Weaver v. State, 725 N.E.2d 945, 947-48 (Ind. Ct.

App. 2000), in which a panel of this court explained:

             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.

At the time of Scarpinato’s sentencing, Indiana Code Section 35-50-6-3 provided:

             (a) 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.

             (b) A person assigned to Class II earns one (1) day of credit
             time for every two (2) days the person is imprisoned for a
             crime or confined awaiting trial or sentencing.

             (c) A person assigned to Class III earns no credit time.

                                            3
              (d) A person assigned to Class IV earns one (1) day of credit
              time for every six (6) days the person is imprisoned for a
              crime or confined awaiting trial or sentencing.

However:

              A person under the control of a county detention facility or
              the department of correction who:

                     (1) has been charged with a new crime while confined;
                     or

                     (2) has allegedly violated a rule of the department or
                     county facility;

             may be immediately assigned to Class III and may have all
             earned credit time suspended pending disposition of the
             allegation.

Ind. Code § 35-50-6-7(a). Moreover, after Weaver was decided, our supreme court

decided Robinson v. State, 805 N.E.2d 783, (Ind. 2004), and discussed the role of trial

courts in memorializing credit time calculations.

              Indiana Code § 35-38-3-2(b) unequivocally declares that the
              trial court sentencing judgment “must include” the amount of
              credit earned for time spent in confinement before
              sentencing. This determination serves to memorialize any
              modifications in credit time class or credit time imposed by
              local prison authorities upon a person confined before trial
              and sentencing. A trial court’s sentencing judgment thus
              does not merely “recommend.”           On the contrary, it
              determines a prisoner’s credit time for time served as of the
              time of sentencing. This credit time, however, is subject to
              modification thereafter by the Department of Corrections
              pursuant to statutory procedures.

Robinson, 805 N.E.2d at 791-92 (emphasis added).




                                            4
       Here, Scarpinato was charged with and pled guilty to two counts of battery for an

incident that occurred while he was incarcerated. During his incarceration, Scarpinato

was also alleged to have violated jail rules on more than twenty-five occasions. Under

these circumstances, the trial court was warranted in determining that Scarpinato was not

entitled good time credit. See Groves, 823 N.E.2d at 1233 (concluding the trial court did

not abuse its discretion in classifying the defendant’s credit time as Class III where the

defendant was charged with new crimes while under the control of a detention facility).

Scarpinato has not established that the trial court erred by denying him good time credit.

                                       Conclusion

       The trial court did not err in denying Scarpinato good time credit for his pretrial

incarceration. We affirm.

       Affirmed.

MAY, J., and PYLE, J., concur.




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