                                                                         FILED
                                                                     Mar 15 2019, 9:15 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Brian A. Karle                                            Curtis T. Hill, Jr.
Ball Eggleston, PC                                        Attorney General of Indiana
Lafayette, Indiana
                                                          Marjorie H. Lawyer-Smith
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Chad E. Adams,                                            March 15, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1544
        v.                                                Appeal from the Tippecanoe
                                                          Superior Court
State of Indiana,                                         The Honorable Steven P. Meyer,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          79D02-1708-F5-103



Barteau, Senior Judge.




Court of Appeals of Indiana | Opinion 18A-CR-1544 | March 15, 2019                           Page 1 of 15
                                          Statement of the Case
[1]   Chad E. Adams appeals from his four-year aggregate sentence after pleading
                                                                                             1
      guilty to one count of Level 5 felony carrying a handgun with a prior felony,

      contending that the trial court improperly calculated his accrued time and that

      his sentence is inappropriate in light of the nature of the offense and the

      character of the offender. We affirm in part, reverse in part and remand with

      instructions.


                                                     Issues
[2]   Adams presents the following restated issues for our review:


                 I. Did the trial court improperly calculate Adams’ accrued time
                 by failing to recognize the time he spent in jail after his arrest and
                 before posting bond later that same day?


                 II. Is Adams’ sentence inappropriate in light of the nature of the
                 offense and the character of the offender?


                                   Facts and Procedural History
[3]   In June of 2017, Adams was living in an apartment with his girlfriend, Melissa

      Lagoy. Lagoy owned two vehicles and one of them was a van. The van did

      not have a valid license plate or registration and was not insured. No one had

      driven the van for several months prior to the date of the offense. Among the




      1
          Ind. Code § 35-47-2-1(e)(2)(B) (2014).


      Court of Appeals of Indiana | Opinion 18A-CR-1544 | March 15, 2019              Page 2 of 15
      many things Lagoy kept in the locked van was a handgun placed under the

      driver’s seat instead of in the apartment where children also lived. Another

      reason for the placement of the handgun was Adams’ 2006 felony conviction

      for possession of marijuana which prevented him from legally possessing a

      firearm.


[4]   On the evening of June 16, 2017, Adams was home when he received a call that

      Lagoy and a friend had car trouble and were stranded. Adams entered Lagoy’s

      van and left in it to bring her home.


[5]   Approximately two minutes after Adams began driving the van, a local police

      officer recognized him. The officer initiated a traffic stop because he knew that

      Adams did not have a valid driver’s license. During the stop, the officer noticed

      the firearm under the driver’s seat. Lagoy arrived on foot at the scene of the

      traffic stop and informed the officer that the firearm belonged to her.


[6]   Adams was arrested and charged with unlawful possession of a firearm with a

      prior felony as a Level 5 felony along with other charges. Adams entered into a

      plea agreement pursuant to which he pleaded guilty to the Level 5 felony in

      exchange for dismissal of the other counts. After a hearing, the trial court

      sentenced Adams to an aggregate term of four years with one and a half years

      executed in the Indiana Department of Correction, one and a half years

      executed on community corrections, and one year of supervised probation.

      Adams now appeals.




      Court of Appeals of Indiana | Opinion 18A-CR-1544 | March 15, 2019        Page 3 of 15
                                    Discussion and Decision
                                        I. Calculation of Time
[7]   Adams challenges the trial court’s failure to recognize the time Adams spent in

      jail prior to sentencing. Adams was arrested and imprisoned in the county jail

      on June 17, 2017 and was confined, according to his statement made during a

      colloquy with the trial court at the sentencing hearing, for approximately six to

      eight hours before he was able to post bond. Tr. p. 27. His pre-sentence

      investigation report credits him with one actual jail day from June 17, 2017 to

      June 17, 2017. Appellant’s App. Vol. 2, p. 62.


[8]   Despite the recommendation in the pre-sentence investigation report and

      Adams’ statement of the time he was confined prior to bonding out, the trial

      court refused to recognize one day of actual jail time because Adams had not

      been in jail for “twenty-four hours,” which the court noted was its view of the

      law until notified of caselaw to the contrary. Tr. pp. 27-28.


[9]   Without citation to authority, the State argues that “[a]lthough the award of

      credit is mandatory, it remains within the trial court’s discretion to make the

      factual determination of whether the person in fact spent a day in prison before

      awarding the credit.” Appellee’s Br. p. 9. (emphasis added). The State’s

      position is that this factual determination is reviewed for an abuse of discretion,

      citing Harding v. State, 27 N.E.3d 330, 331 (Ind. Ct. App. 2015). Additionally,

      the State contends that “[g]iven that the Defendant failed to establish the length

      of time he was actually in jail pending his release, the trial court did not abuse


      Court of Appeals of Indiana | Opinion 18A-CR-1544 | March 15, 2019         Page 4 of 15
       its discretion in not awarding Defendant credit time for one full day.”

       Appellee’s Br. pp. 9-10. (emphasis added). This argument is made despite

       Adams’ statement at the sentencing hearing and the calculation included by

       probation in the pre-sentence investigation report. We also pause to observe

       that the applicable statute refers to time and not to days.


[10]   “‘Because pre-sentence jail time credit is a matter of statutory right, trial courts

       generally do not have discretion in awarding or denying such credit.’” Perry v.

       State, 13 N.E.3d 909, 911 (Ind. Ct. App. 2014) (quoting Molden v. State, 750

       N.E.2d 448, 449 (Ind. Ct. App. 2001)). On the other hand, sentencing

       decisions not mandated by statute remain within the discretion of the trial court

       and will be subject to reversal only upon a showing of an abuse of that

       discretion. Perry, 13 N.E.3d at 911. We have often stated what constitutes an

       abuse of discretion and do so again here. A trial court abuses its discretion

       when its decision is clearly against the logic and effect of the facts and

       circumstances before the court, or the reasonable, probable, and actual

       deductions to be drawn therefrom. Id. (citing Anglemyer v. State, 868 N.E.2d

       482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218).


[11]   Because Adams was imprisoned prior to trial on an allegation that he

       committed a Level 5 felony, he was assigned to Class B for the calculation of

       accrued and credit time. Ind. Code § 35-50-6-4 (2016). Indiana Code section

       35-50-6-0.5(1) (2015) defines accrued time as “the amount of time that a person

       is imprisoned or confined.” Credit time is defined as “the sum of a person’s



       Court of Appeals of Indiana | Opinion 18A-CR-1544 | March 15, 2019           Page 5 of 15
       accrued time, good time credit, and educational credit.” Ind. Code § 35-50-6-

       0.5(2) (2015).


[12]   In Purdue v. State, 51 N.E.3d 432, 436 (Ind. Ct. App. 2016), a panel of this

       Court stated as follows:


               Indiana treats pre-sentence imprisonment as a form of
               punishment. By enacting statutes that award credit for pre-
               sentencing confinement, the General Assembly sought to
               implement the guarantee of common law and the Fifth
               Amendment to the U.S. Constitution against double jeopardy.
               Further, with an eye toward avoiding equal protection violations,
               the statutes were drafted to equalize total confinement time
               among inmates serving identical sentences for identical offenses
               by allowing those who cannot post bail before sentencing to be
               given credit towards their sentence for pre-sentence
               imprisonment or confinement. Accordingly, during sentencing, a
               trial court must strive to reach the balance between granting too
               little or too much credit time, while keeping in mind that the
               grant of credit time, as remedial legislation, should be liberally
               construed in favor of those benefitted by the statute.


       (internal citations and quotations omitted). Indeed, the panel in Purdue, noted

       that “the intent of the statute [Ind. Code § 35-50-6-0.5] was to provide

       clarification in the area of credit time.” 51 N.E.3d at 433 n.3; see also, Ind.

       Code § 35-50-6-0.6 (2015) (change of terms is intended for clarification). In

       Purdue, as is pertinent to this appeal, the defendant received credit for three days

       of confinement which lasted only forty-eight hours spanning between January

       29 through January 31, 2015. 51 N.E.3d at 434.




       Court of Appeals of Indiana | Opinion 18A-CR-1544 | March 15, 2019         Page 6 of 15
[13]   The State cites Dobeski v. State, 64 N.E.3d 1257 (Ind. Ct. App. 2016) in support

       of the trial court’s ruling. In Dobeski, the central issue was how to calculate the

       passage of time. The statute in that case required that the defendant register as

       a sex offender not more than seven days after his release from a penal facility.

       Ind. Code § 11-8-8-7(g) (2013) (emphasis added). Dobeski argued the evidence

       was insufficient to support his conviction for failure to register as a sex offender

       because seven days had not yet elapsed at the time he was arrested. The State

       had argued that the “days” referred to in the statute were twenty-four-hour

       periods, beginning with the moment Dobeski had been released from prison.

       The trial court agreed with the State and Dobeski appealed.


[14]   On appeal, Dobeski argued that Indiana Trial Rule 6(A) applied. That trial rule

       governs the computation of time, and provides:


               In computing any period of time prescribed or allowed by these
               rules, by order of the court, or by any applicable statute, the day
               of the act, event, or default from which the designated period of
               time begins to run shall not be included. The last day of the
               period so computed is to be included unless it is:


               (1) a Saturday,


               (2) a Sunday,


               (3) a legal holiday as defined by state statute, or


               (4) a day the office in which the act is to be done is closed during
               regular business hours.


       Court of Appeals of Indiana | Opinion 18A-CR-1544 | March 15, 2019            Page 7 of 15
               In any event, the period runs until the end of the next day that is
               not a Saturday, a Sunday, a legal holiday, or a day on which the
               office is closed. When the period of time allowed is less than
               seven [7] days, intermediate Saturdays, Sundays, legal holidays,
               and days on which the office is closed shall be excluded from the
               computations.


       T.R. 6(A).


[15]   This rule of trial procedure was considered in Dobeski because Indiana Criminal

       Rule 21 provides that the rules of trial procedure apply in criminal proceedings

       when they are not in conflict with any specific rule adopted for the conduct of

       criminal proceedings. Further support was found in the computation of time

       used in the Indiana Rules of Appellate Procedure and the computation set out

       by statute for administrative procedures and orders. See Dobeski, 64 N.E.3d at

       1260-61.


[16]   Further, we held that “Indiana case law has long defined a ‘day’ as a twenty-

       four-hour period running from midnight to midnight.” Id. at 1261. “Indeed,

       the legislature’s use of a seventy-two-hour time frame elsewhere in I.C. § 11-8-8-

       7 indicates that when the legislature intends for a time frame to be calculated as

       a period of hours rather than full calendar days, it will make that intention

       clear.” Id. The trial court’s computation of time was reversed and remanded

       because the rule of lenity required an interpretation of the statute construing the

       term day to be a calendar day instead of a twenty-four-hour period. Id. at 1262.




       Court of Appeals of Indiana | Opinion 18A-CR-1544 | March 15, 2019        Page 8 of 15
[17]   The State’s argument here is that under that reasoning set forth in Dobeski the

       first day should not be included and that Adams was not entitled to any accrued

       time.


[18]   In contrast, Adams cites to the Indiana Department of Correction Adult

       Offender Classification Policy Manual, which provides as follows:


               Credit Time Calculation


               1. An offender receives incarceration credit, and credit time on
               the sentence for the day of release from a Department facility to
               parole or court jurisdiction.


       Indiana Department of Correction, Adult Offender Classification Policy Manual,

       Section (VII)(L)(1)-Credit Time Calculation, available at

       https://www.in.gov/idoc/3264.htm (last visited February 26, 2019). The

       argument follows that if the first day does not result in credit time under the

       State’s citations to authority, the release date should count under the DOC

       policy manual.


[19]   In this case, however, the governing statute refers to the amount of “time” that

       a person is imprisoned or confined. Ind. Code § 35-50-6-0.5. Hence, there is no

       reference to days, as argued by Adams, or hours, as argued by the State.

       Further, the term “time” is not defined elsewhere in Title 35, Article 50. As

       such, we deem the statutory reference to time to be ambiguous.


[20]   “Under well-established principles of statutory interpretation, a statute is

       ambiguous when it allows more than one reasonable interpretation.” Day v.
       Court of Appeals of Indiana | Opinion 18A-CR-1544 | March 15, 2019          Page 9 of 15
       State, 57 N.E.3d 809, 813 (Ind. 2016). Adams and the State have vigorously

       argued in favor of their opposing interpretations of the statute. If a statute is

       deemed ambiguous, then courts on review resort to the rules of statutory
                                                                     2
       interpretation to fulfill the legislature’s intent. Id. “In criminal cases, this

       includes the rule of lenity–interpreting the statute in the defendant’s favor as far

       as the language can reasonably support.” Id.


[21]   Here, Adams’ liberty was deprived, by his undisputed account, for between six

       and eight hours. The trial court did not recognize Adams’ loss of liberty for

       that time. Further, we can only imagine the burden placed upon the

       Department of Correction if required to “clock in” a defendant upon his or her

       arrest and then “clock out” that defendant upon the posting of bond for

       purposes of determining the “time” spent in pre-sentence incarceration to be

       recognized later against any sentence imposed. We conclude that the rule of

       lenity informs us to implement the intent of the legislature by reversing the

       decision of the trial court and remanding the matter to the trial court for the

       issuance of an order awarding Adams with one day of accrued time.


                                      II. Inappropriate Sentence
[22]   Adams claims that his sentence is inappropriate in light of the nature of the

       offense and the character of the offender. Adams specifically requests that this




       2
        We invite the legislature to determine whether a more precise definition of “time” is needed as respects
       accrued and credit time given the arguments presented here.

       Court of Appeals of Indiana | Opinion 18A-CR-1544 | March 15, 2019                              Page 10 of 15
       Court revise his sentence to “an advisory term of three (3) years, with one (1)

       year executed in the Department of Correction, one (1) year [of] community

       corrections, and one (1) year on probation.” Appellant’s Br. p. 20. The

       sentencing range for a Level 5 felony is a fixed term of imprisonment between

       one and six years with the advisory sentence being three years. Ind. Code § 35-

       50-2-6(b) (2014).


[23]   Our Supreme Court has stated the following about our role in the appellate

       review of sentences.


                Even where a trial court has not abused its discretion in
                sentencing, the Indiana Constitution authorizes independent
                appellate review and revision of a trial court’s sentencing
                decision. Appellate courts implement this authority through
                Indiana Appellate Rule 7(B), which provides that we may revise
                a sentence if after due consideration of the trial court’s decision
                we find the sentence is inappropriate in light of the nature of the
                offense and the character of the offender.


       Eckelbarger v. State, 51 N.E.3d 169, 170 (Ind. 2016) (internal citations and

       quotations omitted). “The defendant bears the burden of persuading the Court

       that [his] sentence is inappropriate.” Phipps v. State, 90 N.E.3d 1190, 1198 (Ind.

       2018).


[24]   Case law further instructs that “[s]entencing is principally a discretionary

       function in which the trial court’s judgment should receive considerable

       deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). “Such

       deference should prevail unless overcome by compelling evidence portraying in


       Court of Appeals of Indiana | Opinion 18A-CR-1544 | March 15, 2019         Page 11 of 15
       a positive light the nature of the offense (such as accompanied by restraint,

       regard, and lack of brutality) and the defendant’s character (such as substantial

       virtuous traits or persistent examples of good character).” Stephenson v. State, 29

       N.E.3d 111, 122 (Ind. 2015).


[25]   “[W]hether we regard a sentence as appropriate at the end of the day turns on

       our sense of the culpability of the defendant, the severity of the crime, the

       damage done to others, and myriad other factors that come to light in a given

       case.” Cardwell, 895 N.E.2d at 1224. “The principal role of appellate review

       should be to attempt to leaven the outliers, and identify some guiding principles

       for trial courts and those charged with improvement of the sentencing statutes,

       but not to achieve a perceived ‘correct’ result in each case.” Id. at 1225.


[26]   We first evaluate whether the sentence imposed is supported by evidence of the

       nature of the offense. Adams knew that the van was not properly registered,

       plated, or insured. He was also aware that there was a gun stored under the
                                                        3
       driver’s seat and that there was spice in the van. Further, Adams knew that he

       was not allowed to possess a gun because he was a felon. Additionally, he

       knew that he did not have a valid driver’s license. Nonetheless, Adams chose

       to drive the van containing the spice and a handgun. This behavior is




       3
        Spice is also known by the street names “fake weed, moon rocks, and skunk” according to the National
       Institute on Drug Abuse for Teens, and is a mix of herbs, or shredded plant material and manmade chemicals
       with mind-altering effects. https://teens.drugabuse.gov/drug-facts/spice (last visited on February 21, 2019).

       Court of Appeals of Indiana | Opinion 18A-CR-1544 | March 15, 2019                             Page 12 of 15
       demonstrative of a disregard for the law and an indifference to the potential

       consequences of his actions.


[27]   Next, we evaluate whether the sentence imposed is warranted given Adams’

       character. On review, analysis of the character of the offender involves a

       “broad consideration of a defendant’s qualities.” Aslinger v. State, 2 N.E.3d 84,

       95 (Ind. Ct. App. 2014). “The character of the offender is shown by the

       offender’s life and conduct.” Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App.

       2011).


[28]   The record reveals that Adams’ prior criminal history consists of several prior

       convictions spanning over more than a decade. He has multiple misdemeanor

       and felony convictions for drug offenses and was offered treatment on at least

       three prior occasions. Several petitions to revoke probation were filed against

       him and he was unsatisfactorily discharged from probation. He then continued

       to engage in criminal activity resulting in convictions. Again, he violated

       probation for those convictions and was unsatisfactorily discharged from

       probation. Further, while out on bond after pleading guilty in the current case,

       Adams was charged with and convicted of driving while suspended as a Class

       A misdemeanor.


[29]   The trial court stated the following during sentencing:


                On the aggravating side, one thing that I note in this case is your
                character toward probation. Your attitude toward probation is
                lousy. Right from the very beginning, you [sic] the probation
                officer reports that you arrived but your packet was not filled out.

       Court of Appeals of Indiana | Opinion 18A-CR-1544 | March 15, 2019         Page 13 of 15
               You advi-, the probation officer advised you to turn the packet in
               completely filled out and do a telephone interview. Then you did
               turn your packet in. After reviewing the packet, the officer still
               noticed there was not completed, several questions were not
               complete. Specifically, those pertaining to family. When asked
               about the unanswered questions over the telephone, you said I
               thought all that stuff was crap. That’s the attitude you’re
               showing to probation. And so, if you’re going into it with that
               kind of an attitude, it does not bode well for me in considering
               that you might be a good candidate for probation, if you’re going
               into it thinking that this is a lot of crap. I also note that you had
               the opportunity, you also took the opportunity to indicate that in
               the writing on the pre-sentence report when you talked about the
               charge, you said gun charge fifteen years ago, felon, because they
               cannot get me with a ten-year law. Crap! Is what you wrote to
               me. So, your overall attitude here about this case and about the,
               overall seriousness of this offense, the role that probation, the
               role that the Court has, is lousy. And, those are your, based
               upon your own words. I also note that you were not completely
               forthright and honest with probation. When you were asked
               about your children, you refused to report that. You didn’t
               report anything about wages. And you declined to answer about
               when, about the issue of what drugs, what role drugs played in
               this case. Although, obviously, there were some drugs found in
               the car and your response at least at the time of the arrest was, I
               don’t smoke it, I deal it. So, there is some evidence that you
               could have, been at least more forthcoming on that.


       Tr. pp. 52-53.


[30]   The trial court did observe that Adams pleaded guilty to the Level 5 felony in

       exchange for the dismissal of the other charges but noted that Adams did

       benefit from the agreement. The trial court also acknowledged Adams’ work

       history. However, when considering the aggravating and mitigating

       Court of Appeals of Indiana | Opinion 18A-CR-1544 | March 15, 2019         Page 14 of 15
       circumstances, the trial court concluded that Adams’ criminal history

       warranted a slightly enhanced executed term. We agree with the trial court’s

       assessment and conclude that Adams has not met his burden of persuading us

       that his sentence is inappropriate in light of the nature of the offense and the

       character of the offender.


                                                 Conclusion
[31]   For the reasons stated above, we affirm the judgment of the trial court in part,

       reverse in part, and remand with instructions to issue a corrected sentencing

       order recognizing the correct amount of time, one day, during which Adams

       was deprived of his liberty prior to sentencing.


[32]   Affirmed in part, reversed in part, and remanded with instructions.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1544 | March 15, 2019       Page 15 of 15
