MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                     Apr 05 2017, 7:10 am
court except for the purpose of establishing
the defense of res judicata, collateral                            CLERK
                                                               Indiana Supreme Court
                                                                  Court of Appeals
estoppel, or the law of the case.                                   and Tax Court




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

David C. Franks,                                         April 5, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A02-1607-CR-1671
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable George A.
Appellee-Plaintiff.                                      Hopkins, Judge
                                                         Trial Court Cause Nos.
                                                         34D04-1203-FB-54
                                                         34D04-1112-FB-235
                                                         34D04-1203-FB-39



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1607-CR-1671 | April 5, 2017   Page 1 of 4
                                          Case Summary
[1]   David C. Franks (“Franks”) appeals an order revoking his suspended sentences

      in three cause numbers. He presents the sole issue of whether he was

      erroneously denied credit time for his incarceration prior to the revocation. We

      remand for correction of the revocation order.



                            Facts and Procedural History
[2]   On July 6, 2012, Franks pled guilty to Burglary, as a Class C felony, under

      Cause No. 34D04-1112-FB-235 (“FB-235”), Receiving Stolen Property, as a

      Class D felony, under Cause No. 34D04-1202-FD-15 (“FD-15”), Receiving

      Stolen Property, as a Class D felony, under Cause No. 34D04-1203-FB-39

      (“FB-39”), and Receiving Stolen Property, as a Class D felony, under Cause

      No. 4D04-1203-FB-54 (“FB-54”).


[3]   Pursuant to the terms of the plea agreement, the trial court sentenced Franks to

      consecutive sentences of: six years imprisonment with four years executed and

      730 days suspended to probation under cause number FB-235; two years with

      one year to be served on home detention and one year suspended to probation

      under FD-15; two years, all suspended to probation under FB-39; and three

      years, all suspended to probation under FB-54.


[4]   Awaiting trial, Franks had been incarcerated from October 3, 2011 to

      November 2, 2011, from January 10, 2012 to February 2, 2012, from March 27,

      2012 to April 7, 2012, and from May 11, 2012 to July 6, 2012. He was awarded

      Court of Appeals of Indiana | Memorandum Decision 34A02-1607-CR-1671 | April 5, 2017   Page 2 of 4
      credit time of 31 days under FD-15, 24 days under FB-235, 12 days under FB-

      39, and 57 days under FB-54.


[5]   On May 16, 2016, the State filed a Petition to Revoke Suspended Sentence,

      related to FB-235, FD-39, and FB-54. At a fact-finding hearing on July 8, 2016,

      Franks admitted that he had violated conditions of his probation. The trial

      court revoked Franks’ suspended sentences and probation and ordered Franks

      to serve “the balance” of each suspended sentence. (App. at 89.) The trial

      court found the remaining balances to be: 730 days under FB-235, 730 days

      under FB-39, and 1,095 days under FB-54. The trial court reasoned that,

      because Franks was arrested on May 7, 2016, any credit time he had earned

      would be applicable to the new charges, Cause No. 34D01-1605-F6-399.

      Franks appealed.



                                 Discussion and Decision
[6]   Franks challenges the trial court’s failure to award credit time for his pre-trial

      confinement in FB-39 and FB-54.


[7]   We review a trial court’s factual determination for an abuse of discretion, and

      we review legal conclusions de novo. Harding v. State, 27 N.E.3d 330, 331 (Ind.

      Ct. App. 2015). Credit time is a statutory right, and trial courts do not have

      discretion in awarding or denying that credit. Id. at 331-32. The appellant

      bears the burden of showing that the trial court erred. Id. at 332.




      Court of Appeals of Indiana | Memorandum Decision 34A02-1607-CR-1671 | April 5, 2017   Page 3 of 4
[8]    Franks and the State agree that Franks is entitled to the credit time awarded in

       the original sentencing order as to FB-39 (12 days) and FB-54 (57 days). This is

       because the sentences in those cause numbers were completely suspended to

       probation and thus, the Department of Correction could not have applied the

       credit time previously.1


[9]    We remand to the trial court with instructions to amend the revocation order to

       reflect that Franks is entitled to 12 days credit time in FB-39 and 57 days credit

       time in FB-54.


[10]   Remanded.


       Vaidik, C.J., and Robb, J., concur.




       1
         As for FB-235, because Franks had been incarcerated in the Department of Correction, he would have
       received his pre-trial credit time of 24 days. He does not challenge the disposition of credit time in FB-235.

       Court of Appeals of Indiana | Memorandum Decision 34A02-1607-CR-1671 | April 5, 2017                 Page 4 of 4
