MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                      Apr 24 2017, 9:38 am
regarded as precedent or cited before any
                                                                               CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court

estoppel, or the law of the case.




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James Harper                                             Curtis T. Hill, Jr.
Harper & Harper, LLC                                     Attorney General of Indiana
Valparaiso, Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dennis J. Draper, III,                                   April 24, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         64A03-1612-CR-2943
        v.                                               Appeal from the Porter Superior
                                                         Court
State of Indiana,                                        The Honorable Roger V. Bradford,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         64D01-0910-FB-10218



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017              Page 1 of 11
                                          Case Summary
[1]   On October 6, 2009, Appellant-Defendant Dennis J. Draper, III was charged in

      Porter County with one count of Class B felony burglary (“the Porter County

      case”). At some point before the Porter County case was resolved, Draper was

      charged with and convicted of an unrelated charge of burglary in Lake County.

      Draper subsequently pled guilty in the Porter County case to a lesser charge of

      Class C felony burglary.


[2]   The instant appeal involves the amount of pre-trial credit time granted to

      Draper by the trial court in connection to time spent incarcerated in relation to

      the Porter County case prior to his guilty plea. Appellee-Plaintiff the State of

      Indiana (“the State”) concedes that Draper is entitled to some additional credit

      time, but argues that Draper is not entitled to the entire amount of additional

      credit time requested. Concluding that, as the State concedes, Draper is entitled

      to some of the additional requested credit time, we affirm in part, reverse in

      part, and remand to the trial court with instructions.



                            Facts and Procedural History
                    A. Facts Relating to the Porter County Case
[3]   On October 4, 2009, in Porter County, Draper knowingly or intentionally broke

      and entered the dwelling of Alex Skomac with the intent to commit theft

      therein. Two days later, on October 6, 2009, Draper was charged with one

      count of Class B felony burglary in the Porter County case. Draper was held in


      Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017   Page 2 of 11
      relation to the Porter County case until he posted bond on October 30, 2009. A

      bench warrant for Draper’s arrest was ordered in connection to the Porter

      County case on February 1, 2010. Draper was arrested in connection to this

      warrant on March 5, 2010, and was held in relation to the Porter County case

      until he posted bond on April 5, 2010.


                      B. Facts Relating to the Lake County Case
[4]   On May 22, 2010, Draper was arrested in connection to and charged under

      Lake County Cause 45G04-1005-FB-48 (“the Lake County case”) with Class B

      felony burglary. Draper subsequently pled guilty in the Lake County case and

      was sentenced to a term of seven years.


           C. Facts Relating to the Contested Periods of Pre-Trial
                                Confinement
[5]   While Draper was in custody awaiting trial in the Lake County case, a second

      bench warrant for Draper’s arrest was issued in the Porter County case on June

      28, 2010 (“the June 28, 2010 bench warrant”).


[6]   Draper was released from the Department of Correction (“DOC”) to parole in

      connection to the Lake County case on July 9, 2013.


[7]   On July 18, 2013, Draper was arrested in connection to the Porter County case.

      He was released from incarceration after his previous bonds were reinstated by

      the trial court on July 29, 2013.




      Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017   Page 3 of 11
[8]    On July 21, 2015, a third warrant for Draper’s arrest was issued in connection

       to the Porter County case. Draper was arrested on this third warrant on July

       30, 2015. Draper remained in custody until January 4, 2016, at which time he

       pled guilty to Class C felony burglary. Draper was released on his prior bond

       pending sentencing.


        D. Facts Relating to Draper’s Sentence in the Porter County
                                  Case
[9]    On June 6, 2016, Draper failed to timely appear before the trial court in relation

       to the Porter County case. He was subsequently taken into custody and held

       without bond. On November 7, 2016, the trial court sentenced Draper in

       connection to Porter County case to a term of four years in the DOC. In

       sentencing Draper, the trial court found that Draper was entitled to 219 days of

       credit for time spent incarcerated prior to sentencing.


[10]   On November 22, 2016, Draper filed a pro se motion to correct error, in which

       he claimed that the trial court had failed to award him certain pre-trial credit

       time which he claimed that he was owed. The trial court denied Draper’s

       motion on November 29, 2016. This appeal follows.



                                  Discussion and Decision
[11]   On appeal, Draper challenges the trial court’s denial of certain requested pre-

       trial credit time. A determination of the amount of credit time a defendant is

       entitled to receive for time spent confined prior to trial is dependent upon the


       Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017   Page 4 of 11
       defendant’s (1) pre-trial confinement, and (2) the confinement being a result of

       the criminal charge for which sentence is being imposed. Hall v. State, 944

       N.E.2d 538, 542 (Ind. Ct. App. 2011) (citing Bischoff v. State, 704 N.E.2d 129,

       130 (Ind.Ct.App.1998), trans. denied), trans. denied. “‘Pre-sentence jail time

       credit is a matter of statutory right, not a matter of judicial discretion.’” Id.

       (quoting Weaver v. State, 725 N.E.2d 945, 948 (Ind. Ct. App. 2000)).


[12]   At the time that Draper committed the burglary at issue in the Porter County

       case, a defendant who was imprisoned for a crime or confined awaiting trial or

       sentencing was initially assigned to Class I and earned one day of credit time

       for each day that he was confined. Ind. Code § 35-50-6-3(a); Hall, 944 N.E.2d

       at 542.

               When a defendant is incarcerated on multiple unrelated charges
               at the same time, a period of confinement may be the result of
               more than one offense. Diedrich v. State, 744 N.E.2d 1004, 1005
               (Ind. Ct. App. 2001). 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. Stephens v. State, 735 N.E.2d 278, 284 (Ind. Ct.
               App. 2000), trans. denied. However, “[w]here a defendant is
               convicted of multiple offenses and sentenced to consecutive terms,
               the jail credit is applied against the aggregate sentence.” Shane v.
               State, 716 N.E.2d 391, 400 (Ind. 1999).


       Hall, 944 N.E.2d at 542 (emphases added).




       Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017   Page 5 of 11
         A. The Period of Time that Elapsed Between June 28, 2010
                            and July 17, 2013
[13]   Draper claims that the trial court erred in denying his request for pre-trial credit

       time for the period between June 28, 2010 and July 17, 2013. In support of this

       claim, Draper asserts that he should be considered to have been confined in the

       Porter County case starting on June 28, 2010, the date on which a warrant was

       issued for his arrest. However, we have previously concluded that a defendant

       is not confined for purposes of determining accrued credit time merely because

       a warrant has been issue for his arrest. Willoughby v. State, 626 N.E.2d 601, 602

       (Ind. Ct. App. 1993); Dolan v. State, 420 N.E.2d 1364, 1373 (Ind. Ct. App.

       1981). Rather the confinement period begins when the defendant is actually

       arrested on the warrant. Willoughby, 626 N.E.2d at 602; Dolan, 420 N.E.2d at

       1373.


[14]   In Willoughby, the defendant challenged the amount of pre-trial credit time

       awarded to him by the trial court. Specifically, the defendant argued “that the

       trial court should have credited him with time served from May 19, 1992, the

       date the notice of probation violation was filed in Marion County, until April

       21, 1993, because he was in continuous custody.” Willoughby, 626 N.E.2d at

       602. Review of the relevant facts demonstrated that although the notice of

       probation was filed on May 19, 1992, the defendant was not arrested and

       transferred to Marion County pursuant to the probation violation notice until

       November 12, 1992. Upon review, we noted that




       Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017   Page 6 of 11
               The court in Dolan, under very similar facts, stated that Dolan
               “should be credited for the time he spent in confinement from the
               date of his arrest for the violation of probation (May 25, 1978) to
               the date of his sentencing for the violation of probation
               (December 28, 1978). Dolan spent that time under the arrest
               warrant for the violation of probation.” 420 N.E.2d at 1373.


       Id. We concluded that following the logic set forth in Dolan, the defendant

       should be credited from November 12, 1992, until April 21, 1993, the time he

       was confined under the arrest warrant for the violation of probation.


[15]   In the instant matter, it is undisputed that Draper was confined in relation to

       the Lake County case starting on May 22, 2010. An arrest warrant was issued

       in connection to the Porter County case on June 28, 2010. However, Draper

       was not arrested on this warrant until July 18, 2013. As such, pursuant to our

       prior conclusions in Willoughby and Dolan, the earliest date to which Draper

       could possibly be entitled to pre-trial credit in the Porter County case was July

       18, 2013.1


[16]   Furthermore, Draper is not entitled to receive pre-trial credit in the Porter

       County case for the time which he was incarcerated for the Lake County case

       as his sentences in the two cases were required to be run consecutively. At the




       1
         Draper seems to argue that the time he spent incarcerated with relation to the Lake County case also
       applied to the Porter County case because a detainer was allegedly placed on him after the issuance of the
       June 28, 2010 warrant. However, although Draper filed petitions to lift detainer while he was serving his
       sentence in the Lake County case in March of 2012 and July of 2013, Draper’s petitions did not contain any
       documentation which proves that a detainer from the June 28, 2010 warrant was actually placed on him, let
       alone provides any indication as to when such a detainer was allegedly entered.

       Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017          Page 7 of 11
       time that Draper committed the burglary at issue in the Porter County case,

       Indiana Code section 35-50-1-2(d)(2) provided that “[i]f, after being arrested for

       one (1) crime, a person commits another crime … (2) while the person is

       released … (B) on bond; the terms of imprisonment for the crimes shall be served

       consecutively, regardless of the order in which the crimes are tried and sentences are

       imposed.” (Emphasis added). As is mentioned above, the Indiana Supreme

       Court has held that “when consecutive sentences are involved, credit time is

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

       individual sentence.” State v. Lotaki, 4 N.E.3d 656, 657 (Ind. 2014); see also

       Shane, 716 N.E.2d at 400 (providing the same). Stated differently, “where

       consecutive sentences are required, credit time cannot be earned against each of

       the underlying sentences.” Brown v. State, 907 N.E.2d 591, 595 (Ind. Ct. App.

       2009).


[17]   In Lotaki, the defendant was charged with battery of a prison employee while

       incarcerated on an unrelated offense. 4 N.E.3d at 657. At sentencing for the

       battery, the trial court awarded the defendant credit time for the time spent

       incarcerated while awaiting trial. Id. However, the time that the defendant

       spent time incarcerated awaiting trial on the battery charge was time he was

       serving for the unrelated offense, and he received credit for that time against the

       unrelated offense. Id. Upon review, the Indiana Supreme Court held that “[t]o

       award credit for this time against the battery sentence rather than against the

       aggregate of the consecutive sentences would result in more credit to which




       Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017   Page 8 of 11
       [defendant] was entitled and would effectively enable him to serve part of the

       consecutive sentences concurrently.” Id.


[18]   It is undisputed that Draper committed the offense at issue in the Lake County

       case while out on bond in the Porter County case. As such, pursuant to Indiana

       Code section 35-50-1-2(d)(2), his sentences in the two cases were statutorily

       required to be served consecutively. Because the sentences imposed in these

       cases must be served consecutively, any accrued credit time must be applied to

       the aggregate sentence, not to each individual sentence. See id. The record

       reveals that credit for the time period in question was applied to the aggregate

       sentence as it was attributed to the Lake County case. Draper does not allege,

       much less prove, that he did not receive credit for the period in question applied

       in the Lake County case. As such, we conclude that Draper has received full

       credit for the period between June 28, 2010 and July 9, 2013, the date on which

       he was released from incarceration in the Lake County case. To award Draper

       additional credit for this time period would result in more credit than Draper

       was entitled to and would effectively enable him to serve part of the consecutive

       sentences concurrently. See id.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017   Page 9 of 11
           B. The Period of Time that Elapsed Between July 18, 2013
                              and July 28, 2013
[19]   However, as the State points out, Draper is entitled to additional credit time for

       the period between July 18, 2013 and July 28, 2013.2 The record reflects that

       Draper was arrested in connection to the June 28, 2010 warrant on July 18,

       2013. It is undisputed that this warrant was issued in relation to the Porter

       County case. Draper was confined in relation to this warrant until July 29,

       2013, when he was released on his prior bonds. As such, on remand, the trial

       court should award Draper pre-trial credit for the days he spent incarcerated

       during the period between July 18, 2013 and July 28, 2013.


           C. The Period of Time that Elapsed Between July 31, 2015
                             and January 4, 2016
[20]   Draper also claims that the trial court erred in denying his request for pre-trial

       credit time for the period between July 31, 2015 and January 4, 2016. The State

       agrees that Draper was entitled to receive credit time for this period. The State

       concedes that Draper was arrested on July 30, 2015, as a result of a warrant

       issued in the Porter County case and was subsequently held in custody until

       January 4, 2016, when he pled guilty and was released on his prior bonds

       pending sentencing. As such, the State further concedes that the matter should




       2
         It does not appear that Draper was incarcerated during the period between his release in the Lake County
       case on July 9, 2013 and his arrest in the Porter County case on July 18, 2013.

       Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017         Page 10 of 11
       be remanded to the trial court with instruction for the trial court to award

       Draper credit for the period between July 31, 2015 and January 4, 2016.



                                               Conclusion
[21]   Draper is not entitled to the requested credit time for the period between June

       28, 2010 and July 9, 2013. However, Draper is entitled to the requested credit

       time for the period between July 18, 2013 and July 28, 2013. He is also entitled

       to the requested credit time for the period between July 31, 2015 and January 4,

       2016. Accordingly, on remand, the trial court should revise its sentencing order

       to reflect this additional pre-trial credit.


[22]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded with instructions.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1612-CR-2943 | April 24, 2017   Page 11 of 11
