Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                               Dec 20 2013, 5:58 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.


APPELLANT PRO SE:                                ATTORNEYS FOR APPELLEE:

TIMOTHY G. WHITE                                 GREGORY F. ZOELLER
Bunker Hill, Indiana                             Attorney General of Indiana

                                                 AARON J. SPOLARICH
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

TIMOTHY G. WHITE,                                )
                                                 )
        Appellant-Defendant,                     )
                                                 )
               vs.                               )    No. 09A04-1203-CR-140
                                                 )
STATE OF INDIANA,                                )
                                                 )
        Appellee-Plaintiff.                      )


                        APPEAL FROM THE CASS CIRCUIT COURT
                           The Honorable Leo T. Burns, Jr., Judge
                               Cause No. 09C01-0812-FB-8


                                      December 20, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       Timothy White appeals the denial of his petition for jail time credit. We affirm.

                                           Issues

       White raises two issues, which we restate as:

              I.     whether the trial court was required to grant his petition
                     for jail time credit when the State failed to respond to it;
                     and

              II.    whether the trial court properly concluded White was
                     not entitled to any jail time credit.

                                            Facts

       On December 17, 2008, the State charged White in the instant case with one count

of Class B felony burglary, one count of Class D felony theft, and two counts of Class D

felony receiving stolen property. The State later added another Class B felony burglary

charge against White under the same charging information. White was held in the Cass

County Jail at the time these charges were filed, and he remained there. On February 25,

2009, while White was still in jail, the State filed a separate charging information against

him for four counts of Class B felony burglary and four counts of Class D felony theft

under cause number 09C01-0902-FB-1 (“FB-1”). FB-1 was filed in the same trial court as

the instant case.

       On January 28, 2010, White pled guilty in the instant case to two counts of Class B

felony burglary. On that same date, he also pled guilty in the FB-1 case to one count of

Class B felony burglary. The trial court conducted a sentencing hearing in both cases on

February 25, 2010. In the FB-1 case, it sentenced White to a term of ten years, with four


                                              2
years suspended, and awarded him 439 days of presentencing jail time credit. In the instant

case, it sentenced him to a term of ten years, with four years suspended, on both

convictions. The sentences were to be served consecutive to each other and to the sentence

in FB-1. The trial court awarded White no jail time credit in the instant case.

        On September 14, 2011, White filed a petition asking to be awarded 439 days of

presentencing jail time credit in the instant case, along with an affidavit of service upon the

State. The State never filed a response to this petition. On January 12, 2012, White filed

a “Notice of Default” asserting that he was entitled to be awarded the 439 days of credit

because of the State’s failure to respond to his petition. App. p. 19. On January 27, 2012,

the trial court denied White’s petition for jail time credit. White now appeals.

                                               Analysis

                                  I. State’s Failure to Respond

        We first address White’s argument that the trial court should have entered a “default

judgment” against the State when it failed to respond to his petition for jail time credit. It

would have been preferable if the State had responded to White’s petition. However, we

do not believe its failure to do so required the trial court to grant the petition.

        In support of his claim that the State “defaulted” by not responding to his petition

for jail time credit, White cites Soffar v. Johnson, 237 F.3d 411 (5th Cir. 2000), and Frink

v. State, 568 N.E.2d 535 (Ind. 1991). Regarding Soffar, White fails to make any argument

as to why this Fifth Circuit case should apply to a matter of Indiana criminal procedure.1


1
 Also, the Soffar opinion White cites was vacated on rehearing en banc, meaning it is not valid authority
even in the Fifth Circuit. See Soffar v. Cockrell, 300 F.3d 588 (5th Cir. 2002).

                                                   3
Regarding Frink, it stated that “if an affidavit is uncontroverted, the reviewing court must

accept its contents as true.” Frink, 568 N.E.2d at 536. This statement, however, explicitly

referred to a defendant’s ability to challenge an allegedly defective probable cause

affidavit. Id. at 536-37. It does not stand for the proposition that a trial court must grant

any motion that goes unchallenged by an opposing party.

       Rather, an affidavit or motion may be contradicted by the record itself, even if the

opposing party does not directly contradict it. See Lopez v. State, 527 N.E.2d 1119,

1128 (Ind. 1988); see also 22A C.J.S. Criminal Law § 608 (“While failure to oppose a

motion may have a bearing on a court’s determination of the motion, an unopposed motion

may not be granted unless the court is satisfied that the legal standards for granting the

motion have been met”). Here, the trial court, which sentenced White in both the instant

case and FB-1 on the same date, was entitled to take judicial notice of the fact that he

already received 439 days of jail time credit in FB-1. See Ind. Evidence Rule 201(b)(5)

(providing courts may take judicial notice of “records of a court of this state . . . .”). In the

face of this record, the trial court was not required to blindly accept that White also was

entitled to 439 days of jail time credit in the instant case, and it was not precluded from

denying his petition.

       White also seems to contend that the trial court itself was “in default by not ruling

on [his motion] for over 4 months . . . .” Appellant’s Br. p. 5. However, the trial court’s

delay in ruling on the motion was not erroneous. Indiana Trial Rule 53.1(A) provides

generally that a trial court has thirty days after a motion is filed to rule on the motion if no

hearing is required or to set it for hearing if one is required. However, post-conviction

                                               4
relief petitions are exempt from this time limit. Ind. Trial Rule 53.1(B)(4). Our supreme

court has construed motions to correct erroneous sentences, such as White’s, as post-

conviction relief petitions for purposes of Trial Rule 53.1(B)(4) and, therefore, they are

exempt from the thirty-day time limit. See State ex rel. Gordon v. Vanderburgh Circuit

Court, 616 N.E.2d 8, 9 (Ind. 1993). Moreover, if White believed the trial court was taking

too long to rule on his motion, he would have been required to seek a mandate from our

supreme court seeking removal of a “lazy judge” under Trial Rule 53.1(A) and could not

wait until after receiving an unfavorable ruling to claim inordinate delay in issuance of the

ruling. See Williams v. State, 716 N.E.2d 897, 900-01 (Ind. 1999). The trial court’s delay

in ruling on White’s petition did not require that it be granted.

                                     II. Denial of Credit Time

        We next address the merits of the trial court’s denial of White’s petition for jail time

credit.2 A person who is jailed or confined awaiting trial and sentencing earns one day of

credit time against his or her eventual sentence for each day of confinement. Hall v. State,

944 N.E.2d 538, 542 (Ind. Ct. App. 2011) (citing Ind. Code §§ 35-50-6-3, 35-50-6-4(a)),

trans. denied. “Determination of a defendant’s pretrial credit is dependent upon (1) pretrial

confinement, and (2) the pretrial confinement being a result of the criminal charge for

which sentence is being imposed.” Id. Such credit is not discretionary, but a matter of

statutory right. Id.




2
 The State makes no argument that White should have filed a petition for post-conviction relief instead of
a petition for jail time credit or motion to correct erroneous sentence, pursuant to Robinson v. State, 805
N.E.2d 783 (Ind. 2004). Thus, we will address the denial of White’s petition on the merits.

                                                    5
          A period of presentencing confinement may be the result of more than one offense

when a defendant is incarcerated on multiple unrelated charges at the same time. Id. “If a

person is incarcerated awaiting trial on more than one charge and is sentenced to concurrent

terms for the separate crimes, he is entitled to credit time applied against each separate

term.” Id. If, however, a defendant is convicted of multiple offenses and sentenced to

consecutive terms for each, the presentencing jail credit is applied only against the

aggregate sentence, not each separate sentence. Id. It is irrelevant whether a consecutive

sentencing order was statutorily-mandated or discretionary. Id.

          White was jailed while awaiting trial and sentencing in both the instant case and

FB-1. The record here is clear that the trial court ordered the sentence in the instant case

to be served consecutive to the sentence in FB-1. White was awarded 439 days of

presentencing jail time credit in FB-1.3 As such, he received the full amount of credit time

to which he was entitled because it was applied to his aggregate sentence in the instant case

and FB-1. The trial court was not required to award the credit time against White’s

sentence in the instant case, which would have resulted in an improper double award of

credit time. See id. at 543. Therefore, it properly denied White’s petition for jail time

credit.

                                             Conclusion


3
  As noted by the State, December 17, 2008—the date of charging in the instant case—to February 25,
2010—the date of sentencing in both cases—was a span of 436 days. It is unclear why there is a three-day
discrepancy in the amount of credit time awarded, but the State does not seek a reduction in the amount of
credit time. Also, it technically may have been more correct to award the 439 days of credit time in the
instant case as opposed to FB-1, because White was not charged in that case until February 25, 2009.
Regardless, the end result is the same with respect to White’s aggregate sentence and the amount of credit
time he was awarded.

                                                    6
       The State’s failure to respond to White’s petition for jail time credit and the trial

court’s delay in issuing a ruling did not mandate the granting of the petition. On the merits,

White received all the credit time to which he was entitled when the trial court awarded

him 439 days of credit against his sentence in FB-1 and ordered his sentence in the instant

case to be served consecutive to the FB-1 sentence. We affirm.

       Affirmed.

ROBB, C.J., and BROWN, J., concur.




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