MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        Jan 17 2017, 7:06 am

court except for the purpose of establishing                          CLERK
the defense of res judicata, collateral                           Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Alexander L. Hoover                                      Curtis T. Hill, Jr.
Law Office of                                            Attorney General of Indiana
Christopher G. Walter, P.C.
                                                         Justin F. Roebel
Nappanee, Indiana                                        Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Fabian Roman Rubio,                                      January 17, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         50A05-1608-CR-1836
        v.                                               Appeal from the Marshall Superior
                                                         Court
State of Indiana,                                        The Honorable Robert O. Bowen,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         50D01-1505-MR-3



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 50A05-1608-CR-1836 | January 17, 2017   Page 1 of 3
[1]   Fabian Rubio appeals the sentence imposed by the trial court after Rubio

      pleaded guilty to murder, arguing that the trial court improperly calculated jail

      time credit owed to Rubio. The State concedes that an error was made. We

      agree, and remand for resentencing.


[2]   On June 15, 2016, Rubio pleaded guilty to murder. At the time of sentencing,

      he was already serving a sentence under a separate cause for class C felony

      sexual misconduct with a minor. On July 14, 2016, the trial court sentenced

      Rubio to sixty-five years imprisonment for murder. It ordered the murder

      sentence to be served concurrently with the sexual misconduct sentence:

              I’m going to order that this sentence on murder run concurrent
              with the sentence that you are currently serving. However, the
              sentence for murder starts today. You’re not going to receive any
              credit for time already served on the—on the sexual misconduct so the
              concurrency starts today but no credit for that period of time, so you’re
              running concurrent for approximately, I believe, it’s
              approximately two (2) years.


      Tr. Vol. II p. 57 (emphasis added).


[3]   The State concedes that “[t]he trial court lacked statutory authority to order

      Defendant’s sentence concurrent with his sentence under [the sexual

      misconduct cause] without also awarding jail time credit in both causes. While

      it appears the trial court was attempting to impose partially concurrent

      sentences, our Supreme Court has determined that practice is not permitted by

      statute.” Appellee’s Br. p. 5-6. Evidently, the trial court attempted to order a

      “partially concurrent or hybrid sentence by not awarding jail credit time and

      Court of Appeals of Indiana | Memorandum Decision 50A05-1608-CR-1836 | January 17, 2017   Page 2 of 3
      instead stating ‘the concurrency starts today,’” id. at 8 (quoting Tr. Vol. II p.

      57), but our Supreme Court has explicitly held that such “partially consecutive,

      hybrid, or blended sentences for multiple convictions” are not authorized by

      statute. Wilson v. State, 5 N.E.3d 759, 764 (Ind. 2014). Consequently, we agree

      with Rubio and the State that this sentence was improper and hereby remand to

      the trial court for resentencing.


[4]   The judgment of the trial court is remanded for entry of a new sentencing order.


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




      Court of Appeals of Indiana | Memorandum Decision 50A05-1608-CR-1836 | January 17, 2017   Page 3 of 3
