      MEMORANDUM DECISION                                                        FILED
                                                                            Jun 14 2018, 6:07 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as                               CLERK
                                                                             Indiana Supreme Court
      precedent or cited before any court except for the                        Court of Appeals
                                                                                  and Tax Court
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      Archie L. Brown                                           Curtis T. Hill, Jr.
      Hammond, Indiana                                          Attorney General of Indiana

                                                                Michael Gene Worden
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Archie L. Brown,                                         June 14, 2018

      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               45A03-1710-CR-2497
              v.                                               Appeal from the Lake Superior
                                                               Court.
                                                               The Honorable Samuel L. Cappas,
      State of Indiana,                                        Judge.
      Appellee-Respondent.                                     The Honorable Natalie Bokota,
                                                               Magistrate.
                                                               Trial Court Cause No.
                                                               45G04-1101-FB-10



      Rucker, Senior Judge

[1]   Archie L. Brown appeals the trial court’s denial of his petition seeking credit for

      days spent in pre-trial confinement. Concluding the trial court correctly denied

      Brown’s petition, we affirm.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1710-CR-2497 | June 14, 2018           Page 1 of 6
                               Facts and Procedural History
[2]   On October 23, 2012 under terms of an agreement Brown pleaded guilty to

      robbery as a class C felony. The trial court sentenced Brown to eight years in

      the Indiana Department of Correction to be served consecutive to a sentence

      Brown was serving in Illinois. In its order of judgment the trial court specified

      that Brown “is to receive zero (0) days credit time spent in confinement as a

      result of this charge, because he is receiving credit under his Illinois sentences.”

      Appellant’s App. Vol. 2, p. 2.


[3]   Thereafter on October 6, 2017 Brown pro se filed a “Petition for Jail Time and

      Additional Good Time Jail credit.” Id. p. 6. According to Brown, he is entitled

      to credit for a period of 95 days from July 20, 2012 – “the date Brown was

      arrested under warrant in Illinois and transferred to the Lake County jail,” (id.

      pp. 7-8), to October 23, 2012 – “the date Brown was sentenced by the Lake

      County court on his Indiana Robbery.” Id. at 8. In addition, Brown contended

      that he is not a credit restricted felon and is entitled to an additional 95 days of

      Class I “good time” credit for a total of 190 days.


[4]   The trial court denied Brown’s petition declaring in relevant part:

              A petition for jail time credit may only be used to attack a
              sentence that is invalid on its face. The sentence in this case is
              not erroneous on its face. As the sentencing order of October 23,
              2012 stated, the defendant was not granted credit for time spent
              incarcerated in the Lake County Jail because he was serving
              Illinois sentences. If the defendant wishes to further challenge
              his sentence, the issue must be addressed in a petition for post-
              conviction relief.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1710-CR-2497 | June 14, 2018   Page 2 of 6
      Order of 10-11-17 (attached to Appellant’s Br. p. 10).


                                   Discussion and Decision
[5]   Brown now appeals the trial court’s denial. However, he does not address the

      trial court’s underlying rationale, namely: a petition for jail time credit may

      only be used to attack a sentence that is invalid on its face. Instead, Brown

      proceeds to the merits of his claim. The State does likewise not responding at

      all to the trial court’s rationale. We do so here and conclude the trial court got

      it right.


[6]   The facts of this case are controlled by Robinson v. State, 805 N.E.2d 783 (Ind.

      2004). In Robinson, after a jury trial the defendant was convicted of attempted

      murder and sentenced to a term of thirty years. Thereafter he filed a pro se

      motion to correct erroneous sentence alleging the trial court improperly failed

      to award both credit for time served and good-time credit. Addressing

      defendant’s allegation our Supreme Court declared, “We . . . hold that a motion

      to correct sentence may only be used to correct sentencing errors that are clear

      from the face of the judgment imposing the sentence in light of the statutory

      authority. Claims that require consideration of the proceedings before, during,

      or after trial may not be presented by way of a motion to correct sentence.” Id.

      at 787. “As to sentencing claims not facially apparent, the motion to correct

      sentence is an improper remedy. Such claims may be raised only on direct

      appeal and, where appropriate, by post-conviction proceedings.” Id.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1710-CR-2497 | June 14, 2018   Page 3 of 6
[7]   It is true that “[a]n allegation by an inmate that the trial court has not included

      credit time earned in its sentencing is the type of claim appropriately advanced

      by a motion to correct sentence.” Neff v. State, 888 N.E.2d 1249, 1251 (Ind.

      2008). However, in the case before us Brown does not allege the trial court

      merely omitted statutorily required information from the sentencing judgment.

      Instead, Brown contends that he is entitled to an additional ninety-five days of

      credit time, which represents the number of days he spent in pre-trial

      confinement prior to sentencing. But resolving this claim would require

      consideration of matters not clear from the face of the judgment, for example
                                                            1
      whether Brown is a credit restricted felon.


[8]   Further, Brown’s claim of sentencing error is not facially apparent. The order

      lists the conviction for robbery as a class C felony; imposes a sentence of eight

      years in the DOC; dictates the sentence is to be served “consecutively” with the

      sentence Brown was serving in a foreign jurisdiction; and awards “zero (0) days

      credit time spent in confinement as a result of this charge, because he is

      receiving credit under his Illinois sentences.” Appellant’s App. Vol. 2, p. 2.




      1
        A defendant’s status as a credit-restricted felon is relevant to the defendant’s initial assignment
      to a credit-time class, which, in turn, affects the defendant’s accrual of credit time toward her
      sentence. See Ind. Code § 35-50-6-4. The statute provides in pertinent part: “(b) A person who
      is a credit restricted felon and who is imprisoned for a crime or imprisoned awaiting trial or
      sentencing is initially assigned to Class IV. A credit restricted felon may not be assigned to Class
      I or Class II.” Id. Here, seeking day for day good-time credit Brown asserts that he is not a
      credit restricted felon.



      Court of Appeals of Indiana | Memorandum Decision 45A03-1710-CR-2497 | June 14, 2018      Page 4 of 6
[9]    When a defendant is being held on two different cases, and the sentence in one

       case is ordered to run consecutively to the sentence imposed in the other, to

       award credit time on both cases would result in more credit time than that to

       which the defendant is entitled and would effectively enable him to serve part of

       the consecutive sentences concurrently. See State v. Lotaki, 4 N.E.3d 656, 657

       (Ind. 2014). “When consecutive sentences are involved, credit time is deducted

       from the aggregate total of the consecutive sentences, not from an individual

       sentence.” Id. at 657 (Finding error in the trial court’s award of credit time

       where defendant was serving consecutive sentences); cf. Maciaszek v. State, 75

       N.E.3d 1089, 1094 (Ind. Ct. App. 2017) (Defendant entitled to credit for actual

       time served in county jail after he was extradited from foreign state to await

       trial on an Indiana charge of felony burglary. And this was because the

       conviction in the burglary case did not indicate that defendant’s Indiana

       sentence was to be served consecutively to his sentence in the foreign

       jurisdiction.), trans. denied.


[10]   In this case resolving whether and to what extent Brown received credit on his

       Illinois sentence – thus impacting the “zero” credit received on his Indiana

       sentence – are matters that are not obvious from the face of the trial court’s

       order of judgment. Therefore, Brown’s claim of sentencing error cannot be

       pursued through his Petition for Jail Time and Additional Good Time Jail

       Credit. Accordingly, the trial court properly denied the petition.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1710-CR-2497 | June 14, 2018   Page 5 of 6
                                                Conclusion
[11]   We affirm the judgment of the trial court.


[12]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1710-CR-2497 | June 14, 2018   Page 6 of 6
