MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
                                                                         Dec 19 2017, 10:15 am
regarded as precedent or cited before any
court except for the purpose of establishing                                   CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                      Curtis T. Hill, Jr.
Kokomo, Indiana                                         Attorney General of Indiana
                                                        Michael Gene Worden
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Elijah D. Cook,                                         December 19, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        34A02-1707-CR-1618
        v.                                              Appeal from the Howard Superior
                                                        Court
State of Indiana,                                       The Honorable William C.
Appellee-Plaintiff                                      Menges, Judge
                                                        Trial Court Cause No.
                                                        34D01-1604-F6-364



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1707-CR-1618 | December 19, 2017           Page 1 of 5
[1]   Elijah Cook appeals the sentencing order following his fourth probation

      violation. He argues that the trial court erroneously calculated the balance of

      his previously suspended sentence. The State concedes that an error was made.

      Finding that the trial court erred in its calculation, we reverse and remand with

      instructions.


                                                    Facts
[2]   On June 29, 2016, Cook pleaded guilty to Level 6 felony possession of

      methamphetamine. On that same date, the trial court sentenced Cook to 913

      days, with 124 days executed and 789 days suspended to supervised probation.

      Appellant’s App. Vol. II p. 31.


[3]   On August 24, 2016, the State filed a petition to revoke Cook’s probation

      because he failed to appear for a required alcohol and drug assessment. Cook

      was arrested on September 3, 2016, and on October 13, 2016, he admitted to

      the violation; the trial court revoked 100 days of the previously suspended

      sentence and gave him credit for 50 actual days or 100 credit days.

      Accordingly, Cook was returned to probation.


[4]   On October 31, 2016, the State filed a second petition to revoke Cook’s

      probation because he failed to report to his probation officer. Cook was

      arrested on November 8, 2016, and on December 27, 2016, he admitted to the

      violation; the trial court returned Cook to probation.


[5]   On January 23, 2017, the State filed a third petition to revoke Cook’s probation

      because he again failed to report to his probation officer. Cook was arrested on
      Court of Appeals of Indiana | Memorandum Decision 34A02-1707-CR-1618 | December 19, 2017   Page 2 of 5
      March 8, 2017, and on April 4, 2017, he admitted to the violation and was

      sentenced to five days of his previously suspended sentence. The trial court also

      found that Cook “has no jail time credit served while awaiting disposition in

      this matter.” Id. at 47.1


[6]   On May 4, 2017, the State filed a fourth petition to revoke Cook’s probation

      because he again failed to report to his probation officer. Cook was arrested on

      May 13, 2017, and on June 15, 2017, he admitted to the violation. On June 15,

      2017, the trial court revoked the balance of the previously suspended sentence,

      which the trial court calculated to be 689 days. Cook now appeals.


                                      Discussion and Decision
[7]   Cook’s sole contention on appeal is that the trial court erroneously calculated

      the balance of his suspended sentence in the June 15, 2017, order. We will

      reverse a trial court’s factual determination only if the decision is clearly against

      the logic and effect of the facts and circumstances before the trial court. Prewitt

      v. State, 878 N.E.2d 184, 188 (Ind. 2007). On appeal, it is the appellant’s

      burden to demonstrate that the trial court erred in the calculation of credit time.

      Harding v. State, 27 N.E.3d 330, 332 (Ind. Ct. App. 2015).


[8]   Cook first argues that the trial court erred by finding the balance of his sentence

      was 689 days, excluding credit days. Cook was initially sentenced to 913 days,




      1
        It appears that the period of time Cook was incarcerated from March 8 – April 4, 2017, was applied to a
      sentence or sentences in one or two unrelated criminal cases.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1707-CR-1618 | December 19, 2017          Page 3 of 5
       with 124 days executed and 789 days suspended. It is undisputed that Cook

       satisfied the executed portion of the sentence, leaving a balance of 789 days

       suspended. The parties also agree that the trial court correctly determined that

       Cook had satisfied an additional 100 days following his first probation

       violation, leaving a balance of 689 days suspended. Next, Cook argues—and

       the State concedes—that the trial court erred by finding that the balance of

       Cook’s suspended sentence was 689 days, because following his third probation

       violation, he served five days of his previously suspended sentence.

       Consequently, the balance of his suspended sentence was at most 684 days.

       Therefore, the trial court erred by finding that the balance of Cook’s sentence

       was 689 days.


[9]    Cook also asserts that the April 4, 2017, order, which awarded him no jail time

       credit, was erroneous and led to additional miscalculations in the June 15,

       2017, order. Cook did not appeal the April 4, 2017, order, and may not now

       argue that it was erroneous.


[10]   In any event, the record before us is insufficient to properly evaluate this

       argument. Cook contends that the trial court did not credit him for twenty-

       eight days he spent in jail between his arrest and the hearing for his third

       probation violation. However, he acknowledges that this calculation is

       complicated by intervening sentences in two other unrelated criminal cases.

       The record does not contain sentencing orders or Chronological Case

       Summaries from those other two cases. Cook requests that we take judicial

       notice of the records in the other cases, but we find this to be unnecessary. On

       Court of Appeals of Indiana | Memorandum Decision 34A02-1707-CR-1618 | December 19, 2017   Page 4 of 5
       remand, the trial court can consider whether a calculation error related to these

       other cases was made.


[11]   The judgment of the trial court is reversed and remanded with instructions to

       credit Cook with at least five days on the balance of the suspended sentence and

       to consider whether other credit is due based on the unrelated cases.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1707-CR-1618 | December 19, 2017   Page 5 of 5
